A coalition of groups — the National Association of Small Trucking Companies, Western States Trucking Association, the ASECTT group and five others — issued a challenge to the Federal Motor Carrier Safety Administration’s Safety Fitness Determination rulemaking ahead of expected release this month. The coalition contains many of the same member groups as the one that led the ultimately successful challenge to the so-called Interim Hiring Standard proposed in the initial House version of the highway bill last year
The SFD rule has been long in the making, planned in the early stages of the CSA carrier safety ranking program as a replacement to the current safety rating system. If seen to fruition, it would to a large extent seek to incorporate roadside inspection data into an absolute safety score for every motor carrier with sufficient data in the system, if early descriptions of the SFD hold true. Like the now-pulled scores in the CSA Safety Measurement Safety BASIC categories of measurement, the safety rating would update much more frequently than happens in today’s system. Currently, carriers can receive Satisfactory, Conditional or Unsatisfactory safety ratings only after a compliance review, something that only seldomly happens more than once a year for any one carrier.
In a letter addressed to members of Congress and copied, sources say, to FMCSA Administrator-Designate Scott Darling, the groups expressed a contention that FMCSA should conduct the Congressionally-required review of, and make recommended changes to, the CSA SMS before releasing any SFD rule.
With some sources noting FMCSA was poised to release the rule as early as tomorrow, Jan. 13, the signatories are advising Congress that they see its pursuit as disregarding “the following three provisions of the FAST Act” highway bill.
- Under new subsection 31136(g) of Title 49, U.S. Code, as enacted by section 5202 of the FAST Act, Notices of Proposed Rulemaking issued by FMCSA that are “likely to lead to the promulgation of a major rule” may not be published until the agency either “issue[s] an advance notice of proposed rulemaking [ANPRM]” or “proceed[s] with a negotiated rulemaking [reg-neg],” according to the letter. FMCSA itself classifies the SFD rule as major, of course, and the letter’s signatories note no ANPRM on the SFD has been issued, though the agency’s work on it has been long ongoing, as stated.
- Under new subsection 31136(f) of Title 49, U.S. Code, again enacted by FAST Act section 5202, the “regulatory impact analysis” concerning a “proposed or final major rule issued by [FMCSA]” must consider the impact of such a rule on “different segments” of the motor carrier industry, and on carriers of “various sizes.” The coalition worried over the notion that the SFD rule might simply treat its SMS methodology and the research into it “as a given,” ignoring related “small-business impacts.”
- Finally, the coalition argues that any SFD based upon roadside compliance data and crash statistics used in SMS/CSA methodology is precluded by the FAST Act, which notes that “any rulemaking by [USDOT] that relates to the CSA program, including the SMS or data analysis under the SMS” must consider the results of the highway bill’s required review and revamp of the SMS itself.
For evidence related to the last point, the coalition cites the agency’s own summary of the SFD rule, which notes the safety rating would rely on “on-road safety performance in relation to five of the Agency’s seven Behavioral Analysis and Safety improvement Categories (BASICs)” in the SMS.
(Update: I reached out to FMCSA for comment on these issues today and was assured a reply would be forthcoming Wednesday, so stay tuned.)