A Look At Alternative Compliance

The Federal Motor Carrier Safety Administration (FMCSA) announced last month that it is considering recognizing “alternative compliance”—that is, offering regulatory flexibility to motor carriers that go beyond minimum safety requirements. The basic idea is that safety rules exist in order to keep the roads safer, and if a company develops its own alternative way of doing that then FMCSA should not insist on compliance with the rules for the sake of compliance alone.

Examples of alternative compliance might include the voluntary use of more safety technologies and enhanced safety management programs focuses on fatigue management, driver health and wellness, or the use of the Pre-employment Screening Program (PSP). The details have not been decided yet, but if a carrier exceeds minimum safety requirements then their Bookend BASICs (Unsafe Driving and Crash Rate) should reflect that improvement and make audits or interventions by FMCSA less likely.

Alternative compliance is related to another measure being considered by FMCSA, where drivers with good records of following safety regulations would receive praise rather than simply an absence of punishment. In both cases, the idea is to shift the focus towards supporting successful safety measures rather than simply going after violations.

In either case, this philosophical shift towards the positive is controversial. Some maintain that people should not be rewarded for what they should be doing anyway. It is true that carriers should make more than minimum investments in safety and that being safer should be its own reward. Then there is the question whether a new regulatory approach might actually be redundant. Fleets that demonstrate more than the minimum commitment to safety already have lower SMS Scores and will get good ratings through the Safety Fitness Determination (SFD), a newly proposed rule that will give absolute rather than relative scores to carriers. Does the industry need another way to reward good behavior?

Making alternative compliance a reality will require grappling with a whole host of other issues. For example, FMCSA will have to make a list of which programs will make a carrier eligible for alternative compliance. That list will indirectly favor the manufacturers and resellers who deal in the products and technologies those programs use. In choosing among programs, FMCSA is therefore also going to have to choose among businesses.

Still, the option of regulatory flexibility does hold some promise for making it easier for fleets to do the right thing in the way that works best for them. It also switches to focus away from compliance for its own safe and on to safety itself.

FMCSA will soon post an invitation for public comment in the Federal Register, asking if alternative compliance makes sense and which programs and technologies should be included.