Short answer: It’s complicated (sort of a non-answer, I know — sorry).
Long answer: As reported previously, the ad hoc coalition of motor carrier groups that successfully challenged the highway bill poison pill is also working on Congress to take seriously what it believes is the Federal Motor Carrier Safety Administration’s violation of other highway bill provisions relative to CSA reform.
The FAST Act highway bill, the coalition essentially argued, prohibited the agency from issuing any major rule proposal related to the CSA program before the report on the potential revamp of the CSA Safety Measurement System (and corrective action plan) the bill also required. The coalition outlined three components of the FAST Act it believed the FMCSA was about to violate, which you can see via the above link.
FMCSA declined to comment when I asked them about the charges, and as expected, a day or two later issued the Safety Fitness Determination Notice of Proposed Rulemaking.
In Acting Administrator Scott Darling’s late January appearance before the Senate Commerce Committee, however (part of his confirmation process to become head of the agency), an exchange between Darling and Senator Deb Fisher (R-Neb.) shows just what the agency is thinking relative to the allegation of a FAST Act violation. The transcript below was included in a new letter from the coalition that reiterates its belief that, despite what Darling says, the highway bill’s CSA provisions have been violated by release of the SFD rule.
Sen. Fischer: It seems like you have been moving forward rather vigorously in the past several weeks to issue some rulemakings on the ELDs and the SFD proposed rule. Why are you moving forward on that rulemaking when we’ve already given you so much to do with the passage of that bipartisan FAST Act, and we really worked together on that – worked very hard to find consensus so that we could see some changes made.
Mr. Darling: Those two rules that you mentioned have been in the works for 10 years. They were in the works and production prior to me even showing up at FMCSA. As we go through, we were at a stage where we got approval from the Office of Management and Budget to move forward, and the ELD rule was mandated and we wanted to make sure we completed that mandate.
Sen. Fischer: As you continue to move forward on the rulemaking and we look at the SFD rule that is coming out, it is my understanding that it is going to include CSA‐related data. Is that correct?
The FAST Act’s safety fitness determination language expressly prohibited including “information regarding alerts and the relative percentile for each BASIC developed under the CSA program” in safety ratings until FMCSA issued the report on the SMS study required by the rule.
Mr. Darling: The SFD rule doesn’t include the two CSA data points that the FAST Act doesn’t allow us to use – prohibits us from using – which are the alerts and the relative percentages. The SFD is predicated on a fixed‐measure formula the carriers will have to meet, and it uses that information against the carrier itself, not against other carriers. So the carrier is actually measured against itself ‐‐ its own performance.
In others words, Darling is arguing that the BASIC alerts and relative percentiles prohibited by the FAST Act are not being proposed to be used in the Safety Fitness Determination, so there is no Act violation.
Yet the SFD rule itself proposes thresholds for failure of the BASICs under the SFD and potential “Unfit” safety rating along these lines: “The proposed SFD failure standards would be equivalent to the measures that would determine a motor carrier unfit at the 96th percentile for the Unsafe Driving and HOS Compliance BASICs, that is, a person would know the carrier is in the worst 4 percent of carriers that have measurable (non-zero) data in the [Motor Carrier Management Information System]. The proposed SFD standards would determine that a motor carrier is unfit at the 99th percentile for the Driver Fitness, Vehicle Maintenance, and HM Compliance BASICs.”
I don’t know about you, but that sure sounds like it involves “information regarding … the relative percentile in each BASIC.”
At once, the SFD rule emphasizes that the failure thresholds would not shift month to month with those percentiles but based on percentiles as they stood when measured in a 24-month period ending in March 2013, a fixed moment in time. The final rule, the agency said, would update the thresholds to “be based on a more current data and calculation completed closer to the final rule’s publication date.”
Adopting the fixed threshold, the agency would only have a rough approximation of whatever the current 94th or 99th percentile happened to be. According to the proposed rule, “A carrier’s absolute BASIC performance measure in any given month, not the carrier’s percentile within a given month, would be used to determine if the carrier failed the BASIC. A carrier with an absolute performance measure that equals or is greater than the failure standard proposed in this document for the carrier’s safety-event group would fail that BASIC.”
Data sufficiency standards (at least 11 inspections, as previously reported) are also considerably higher than those required to issue a percentile ranking under the SMS.
The exchange between Fischer and Darling continued:
Sen. Fischer: So the stakeholders really shouldn’t be concerned, then, that data that has been deemed flawed by the GAO is going to be used in any way this new rulemaking? Are you totally discounting that so we don’t have issues with that flawed data in the future?
Mr. Darling: The data that is being used is data that is collected against the carrier itself.
Sen. Fischer: Is it true the CSA process, though, that was deemed flawed by the GAO is still going to be collected that way and used against stakeholders?
Mr. Darling: The GAO said that ‐‐ The safety fitness determination rule will use 11 inspections before a carrier is rated. The GAO said, they said 20. But they said this was just an illustration and the number ‐‐ we don’t know what the number is. But we are going to use 11, which will provide carriers with enough information to make a safety fitness determination assessment for a carrier.
Sen. Fischer: Will one of those 11 be that flawed data from the CSA?
Mr. Darling: No.
Sen. Fischer: Good to hear. Thank you.
The coalition’s Feb. 3 letter to Senator Fischer you can read at this link. It characterizes her questions to Darling directly as reflecting “a broader, more important question” than just what the language of the FAST Act prohibits:
“SMS data and methodology are thoroughly integrated into the agency’s NPRM, which is clearly not what you and other transportation leaders in Congress intended. … Rather than take to heart Congress’ broad-based concerns about CSA and SMS, the agency hides behind the technical point that the NPRM complies with Section 5223(b) of the FAST Act because SFDs are not based on SMS alerts or relative percentiles.”
Do they have a point? I’m inclined to say yes, but we’ll see whether Congress agrees.