FMCSA Releases MAP-21 on the Hazardous Materials Safety Program (HMSP) Program
Last week, FMCSA submitted to Congress it’s assessment of the HMSP program as required of MAP-21. The long-awaited report was over five months late. Frustration with the delay prompted Congress to request a second more targeted report from the agency that identifies any improvements FMCSA can make with existing authorities to the HMSP program to give relief to holders prior to instituting a rulemaking, and when FMCSA intends to implement each of these interim improvements. The second report is due today.
Since the 2005 implementation of the Hazardous Materials Safety Permit (HMSP) program, IME has been pointing out flaws with the program. We submitted a petition for rulemaking to fix the program defects in 2010. FMCSA accepted the petition in 2011, but stated that rulemaking would have to wait until CSA safety fitness rules were finalized. Congress disagreed with this timetable and has directed the agency to initiate rulemaking on later than October 1, 2014. FMCSA’s assessment is important because it is supposed to be the basis for this reform rulemaking.
The assessment makes six recommendations. Recommendations 1 and 5 would require rulemaking. Recommendation 6 would require a ICR. Recommendations 2,3 and 4 appear to be reforms of how FMCSA will administer the program. There reforms may be contingent on funds to implement. Most concerning is that it appears the agency is going to use the HMSP community to test fitness concepts that it would like to use under CSA.
Recommendation 1 would set the intervention threshold under the Safety Measurement System (SMS) at the threshold currently set for passenger carriers. The agency would increase the number of interventions on “high-risk HMSP carriers”. What constitutes “high-risk” is not defined, but the agency states at a minimum it would include those carriers already identified in CSA as High-Risk: Crash or Fatigue or Unsafe BASIC ≥ 85, plus 1 other deficient BASIC above the “all other” motor carrier threshold; or any 4 or more BASICs above the “all other” motor carrier threshold.
HMSP holders would be reviewed by the agency monthly. There would no longer be an a 12 month “free-pass” before OOS/crash data begins to count on your record. Appeals of erroneous violations would continue to be managed through the DataQ system, which has its own issues. However, if a HMSP holder’s SMS indicated that intervention is needed, a compliance review would be performed. If, as a result of the compliance review, the holder’s Satisfactory safety rating was at risk of being lowered, the holder would have the option to appeal and engage in corrective actions to upgrade the safety rating. Linking interventions to the safety rating process gives HMSP holders the right to appeal and to seek waivers through the corrective action process. No HMSP holder would be allowed to go more than four years without a compliance review.
While the recommendations in the assessment raise a number of questions, the data in the report on the safety performance of HMSP holders makes the case that these carriers are among the safest on the road. What is disturbing is the only seven carriers in nine years were “bad enough” to justify revocation of their HMSP. But, only half (49.5%) of the hundreds of carriers who have held an HMSP at some time still are active HMSP carriers. This shows how unforgiving this program is, despite clear evidence that HMSP are not carriers presenting safety concerns.