FMCSA Withdraws Its January 2016 Notice of Proposed Rule Making (NPRM) in Regards to CSA
In October 2015, the Federal Motor Carrier Safety Administration (FMCSA) had responded to both a Government Accountability Office (GAO) Report and a Congressional request in continuing to defend the (clearly flawed in our humble opinion) methodology underlying FMCSA’s Compliance, Safety, Accountability (CSA) program’s Safety Measurement System (SMS). The GAO had released a report recommending that the FMCSA revise the SMS methodology to better account for limitations in drawing comparisons of safety performance information across carriers. FMCSA opposed the alternative suggested methodology, warning that less than 10% of the nation’s motor carriers would meet the proposed threshold, thus skewing safety prioritization towards the largest motor carriers. FMCSA’s response ultimately concluded that, while the data limitations of SMS are “consistent with any large scale predictive model with significant variances in events and exposures,” SMS has appropriate measures to account for the greatly varying sizes of motor carriers and uniformly assess their safety. Citing the reduction in safety violations and crashes since SMS implementation, FMCSA concluded that SMS data was “sufficiently reliable” for it to identify groups of “high-risk carriers for intervention.”
In what was no doubt a completely unrelated decision, three months later in January 2016, FMCSA issued a Notice of Proposed Rule Making (NRPM) to revise the SMS methodology. The most significant revisions would mean that: (1) rather than requiring a compliance review before any Safety Fitness Determination (SFD) could be made under the old rule, an unfit determination could be made based on a carrier’s on-road safety data alone (i.e. local law enforcement basic accident reports arbitrarily finding the commercial driver at fault and/or equipment issues that have little or nothing to with safety); do away with the ‘three tier’ categories of “satisfactory-unconditional-unsatisfactory” in favor of a single determination of “unfit;” and also do away with the term “safety rating.”
The FMCSA received over 150 comments and several replies from industry sources and safety advocates (and of course from organizations made up of plaintiffs’ attorneys!). The withdrawal notice references correspondence from 62 industry groups to the Secretary of Transportation, urging that the NPRM be withdrawn. In particular, the Fixing America’s Surface Transportation (FAST) Act, specifically provides that “[u]nless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 CFR Part 385, or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation’s roadways.” The FAST Act also required the National Academy of Sciences (NAS) to conduct a thorough study of the CSA program, specifically the SMS that leads to SFDs and this study is still pending (last estimate being this was expected later this month).[1]
The withdrawal notice provides that the FMCSA “withdraw[s] the January 2016 NPRM and, accordingly, cancels the plans to develop a SNPRM as announced by the Agency on January 12, 2017. If FMCSA determines changes to the safety fitness determination process are still necessary and advisable in the future, a new rulemaking would be initiated that will incorporate any appropriate recommendations from the National Academies of Science and the comments received through this rulemaking.”
[1] In January 2017 FMCSA did issue a notice advising it had determined a Supplementary Notice of Proposed Rule Making (SNPRM) was the appropriate next step in order to assess the comments and the results of the FAST Act study by NAS.
[1] In January 2017 FMCSA did issue a notice advising it had determined a Supplementary Notice of Proposed Rule Making (SNPRM) was the appropriate next step in order to assess the comments and the results of the FAST Act study by NAS.
