Eight trade associations representing various segments of the trucking industry are threatening to challenge an expected notice of proposed rulemaking (NPRM) regarding carrier safety fitness determinations (SFDs) as a violation of the recently enacted FAST Act. The White House Office of Management and Budget (OMB) approved the NPRM for publication on Dec. 10. In a speech to the Transportation Research Board's annual meeting on Dec. 11, acting FMCSA Administrator Scott Darling said the NPRM would be published in January.
In a letter to five lawmakers, including the chairmen of the key House and Senate committees overseeing FMCSA, the groups argued that the agency's plan to issue the NPRM ignores the clear mandates of the FAST Act related to rulemakings and to elements of the Compliance, Safety, Accountability (CSA) program and the Safety Measurement System (SMS) methodology.
Organizations signing the letter were the Air & Expedited Motor Carrier Association, American Home Furnishings Alliance, The Expedite Alliance of North America, the Auto Haulers Association of America, the Transportation Loss Prevention & Security Association, the Alliance for Safe, Efficient and Competitive Truck Transportation, the National Association of Small Trucking Companies and the Western States Trucking Association.
"Regardless of whether the proposed SFD rulemaking will incorporate every detail of the current SMS methodology that Congress determined was unworthy of public release by FMCSA, it is apparent that the proposed rule would incorporate the same 'on-road safety performance data' that FMCSA has used in calculating" Behavior Analysis and Safety Improvement Categories (BASICs) under CSA and SMS, the groups said. If FMCSA were to move forward with its "proposed 'quickie' rulemaking it would disregard at least three FAST Act provisions, they argued.
First, section 5202 of the FAST Act states that before FMCSA issues a future NPRM that likely would lead to adoption of a final rule it must either issue and advance notice fo proposed rulemaking (ANPRM) or proceed with a negotiated rulemaking, which is called "reg-neg." FMCSA has already identified an SFD rule as major, but it hasn't issued an ANPRM or used reg-neg, the said. While the section does allow for a waiver of the ANPRM requirement if FMCSA finds it to be "impracticable, unnecessary or contrary to the public interest," agencies typically invoke such waivers under the Administrative Procedures Act only for technical or time-sensitive matters, the groups said.
Second, another provision within section 5202 states that the regulatory impact analysis in any proposed or final major rule must consider the impact on "different segments" of the motor carrier industry and on carriers of "various sizes." Analyses also must be based on "representative" data and on "the best available science." Again, FMCSA can forego these analyses if they are not feasible or appropriate, but the groups argued that there are numerous studies -- including reports from the Government Accounting Office (GAO) and the Department of Transportation Inspector General (IG) -- "showing the statistical defects of SMS scores and demonstrating the disparate impact of such 'on-road data' on small carriers.
"A 'quickie' rulemaking on SFD criteria, in which any aspects of the agency’s flawed SMS methodology would be treated as a given and small-business impacts would be ignored, is patently not what Congress intended in the FAST Act," the letter states.
Finally, any SFD based on roadside compliance data and crash statistics developed for use in SMS/CSA methodology is precluded by section 5221, the groups argued. Under that provision any rulemaking that relates to CSA, "including the SMS or data analysis under the SMS,” must consider the results of a National Research Council (NRC) study of CSA/SMS ordered by Congress as well as FMCSA's corrective action plan in response to the study and the DOT IG's certification that the agency's plan fully responds to the flaws identified not only by NRC but also by GAO.
It is clear that the SFD rulemaking would relate to SMS or data analysis under SMS because FMCSA has already said it wants to use data compiled for five of the BASICs in arriving at SFDs for individual motor carriers, the letter states.
Just because FMCSA doesn't intend to base SFDs on SMS alerts or percentiles -- something directly prohibited by the FAST Act, at least until FMCSA takes future corrective action -- doesn't mean using the underlying data is appropriate, the groups argued. "The undersigned associations have repeatedly pointed out that any use of roadside data to characterize the safety performance of small carriers is statistically flawed due to the law of large numbers, which GAO has confirmed and which Congress has required NRC and the agency to address."
The letter from the eight organizations was sent to Sens. John Thune (R-South Dakota) and Deb Fischer (R-Nebraska) and to Reps. Bill Shuster (R-Pennsylvania), John Duncan (R-Tennessee) and Lou Barletta (R-Pennsylvania). Thune and Fischer chair the Senate Commerce Committee and its surface transportation subcommittee, respectively. Shuster chairs the House Transportation and Infrastructure Committee. Duncan and Barletta are senior members of that committee and have been involved in efforts to reform CSA.