A proficiency exam for new carriers is a great but flawed idea
If you want a commercial driver’s license, you must pass written and driving tests. Same for an automobile driver’s license. In many states, you need to pass a test to obtain a hunting license. To start an interstate trucking company, you need to file forms MCS-150 and OP-1, designate a process agent in each state with form BOC-3, arrange for liability and cargo insurance and pay $300. But you don’t have to pass a test.
Motor carrier registration requirements are hardly insignificant, but they don’t indicate whether or not the owner of a newly minted motor carrier understands his safety responsibilities. That’s one reason Congress in 1999 required that new entrants undergo a safety audit within 18 months of beginning operations and mandated measures to ensure that applicants are knowledgeable about federal motor carrier safety standards. Congress also directed that a new entrant rulemaking consider a proficiency exam to ensure applicants understand regulations before beginning operations.
So far, the Federal Motor Carrier Safety Administration has declined to mandate a proficiency exam. In a December 2008 final rule, the agency said it believed it complied with the law by deciding not to impose a proficiency exam and instead promising to invite comments at some future time on alternatives for ensuring that applicants understand safety requirements.
In January, Advocates for Highway and Auto Safety asked FMCSA to reconsider the new entrant rule on various grounds. Its first and probably most compelling objection, however, was that the agency’s failure to establish minimum requirements ensuring applicants’ knowledge of safety regulations “directly contravenes the statute and violates the expressed intent of Congress.” In response, FMCSA last month issued an advance notice of proposed rulemaking inviting comments on the desirability and feasibility of requiring proficiency exams.
FMCSA has good reason to take Advocates seriously. Public Citizen gets most of the credit for fighting FMCSA’s hours-of-service rules, but it was Advocates’ idea to challenge them on the grounds that FMCSA failed to consider driver health as mandated by Congress. In July 2004, a federal appeals court invalidated the hours rules on that basis alone.
Should FMCSA require a proficiency exam? In theory, yes. FMCSA’s current approach is to post education and training materials on its website and to use the new entrant audits as outreach opportunities as well as enforcement tools. There’s no guarantee that a new carrier actually knows its responsibilities until after an auditor or law enforcement official discovers deficiencies. As Advocates points out in its petition, new entrants that lack adequate knowledge “are left to acquire such knowledge through on-the-road experience or to be identified by the issuance of out-of-service orders at roadside inspections or worse in the aftermath of serious violations and crashes.”
But is a proficiency exam feasible? That’s not quite so clear. Certainly it’s easy enough to administer a test online at very little cost to anyone. But how could FMCSA be sure who is taking the test? Undoubtedly, unethical entrepreneurs would offer to take proficiency exams for a fee. An in-person exam certainly would solve that problem, but such a system might require more personnel and resources at a time when federal and state budgets are tightening.
Another challenge is defining who should take the exam. Most new entrants have only one or two trucks, so the person who holds the authority probably handles safety compliance – and drives the truck for that matter. But many new entrants are significantly larger. In the first five months of this year, FMCSA assigned new DOT numbers to more than 300 for-hire carriers operating 10 or more trucks. In the case of larger new entrants, who takes the test? The owner? The safety director? Everyone involved in safety, including maintenance? And what if the people who take the test leave the company?
FMCSA won’t easily craft an approach to proficiency exams that works in all cases, but it’s a test the agency should at least try to pass.