Can FMCSA really propose a safety fitness rule?

The FAST Act's provisions suggest that the agency may be on shaky ground

Less than a week after President Obama signed into law a new five-year highway bill known as the FAST Act, the White House Office of Management and Budget approved the Federal Motor Carrier Safety Administration's proposed rule to establish a new motor carrier safety fitness determination (SFD) rule.

More than a month later, FMCSA still hasn't published the notice of proposed rulemaking (NPRM), but that doesn't mean the agency has changed its mind. Acting FMCSA Administrator Scott Darling told attendees of the Transportation Research Board annual meeting on Jan. 11 that the agency will publish the SFD NPRM by the end of January.

FMCSA usually publishes rulemaking documents within a few days of OMB approval; even with the controversial electronic logging device (ELD) final rule it was just a few weeks. In the case of the SFD proposal, the gap could be almost two months. It could be that the FAST Act's language regarding reforming the Compliance, Safety, Accountability (CSA) program and the Safety Measurement System (SMS) methodology underlying it has something to do with the delay.

Section 5223 of the FAST Act states that "information regarding alerts and the relative percentile for each BASIC developed under the CSA program may not be used for safety fitness determinations" until the Department of Transportation Inspector General certifies that FMCSA has corrected problems identified by an upcoming study by the National Academies' National Research Council as well as by a February 2014 report issued by the Government Accountability Office.

From FMCSA's perspective, the key phrase probably is "alerts and the relative percentile." Agency officials have stated for several years that the new SFD regime – unlike SMS – would be based on carrier performance relative to objective standards rather than the relative ones inherent in peer grouping under SMS. If so, the agency might not consider that Section 5223 constrains it in proposing a new SFD rule. However, given that DOT sent the SFD proposal to OMB before even the Senate adopted CSA reform measures, perhaps some "cleaning up" is required to ensure that the rule doesn't violate Section 5223, and that – along with the holidays – could explain the delay.

For additional support, FMCSA also might point out that the Senate version of the legislation was slightly different, barring the "enforcement prioritization" – as well as alerts and percentiles – for each BASIC in SFDs. The argument might be that since Congress chose not retain "enforcement prioritization" in the final version, it clearly did not intend to bar it.

So far, FMCSA might be on solid ground, but there are at least two provisions of the FAST Act that clearly could be interpreted as prohibiting what FMCSA has in mind. First, Section 5221 states that FMCSA's corrective action plan following the National Academies study must include an implementation plan that "shall be considered in any rulemaking by the Department that relates to the CSA program, including the SMS or data analysis under the SMS." That's considerably broader than the Section 5223 language and arguably thwarts any proposal that draws even loosely on the SMS framework.

The key questions are (1) whether SFD is a rulemaking "that relates to the CSA program, including the SMS or data analysis under the SMS;” and (2) if so, whether this language bars FMCSA from proposing a rule that doesn't address the National Academies report – a report that likely won't be issued until late 2017.

It's hard to imagine that an SFD rule won't relate to the "data analysis under the SMS." And as for whether FMCSA could propose a rule that doesn't reflect the corrective action plan, courts have looked unkindly toward final rules that relied heavily on data not subject to public comment. Indeed, the U.S. Court of Appeals for the D.C. Circuit threw out one of the versions of the hours-of-service rule because FMCSA changed the methodology for the regulatory impact analysis without notice and opportunity for comment. If that same thinking applies in this case, at the very least FMCSA would need to issue a supplemental NPRM after the National Academies study. And that begs the question of why bother proposing a rule now.

Also, the corrective action plan is supposed to respond not only to the National Academies study but also to the issues raised by the GAO report (GAO-14-114), which raised issues about the availability of sufficient information -- a concern that applies to any data-driven SFD regime, not just one based on SMS alerts and percentiles.

Let's assume, though, that an SFD rule does not relate to CSA or data analysis under the SMS and that somehow GAO's findings are deemed irrelevant. There's another provision that could shelve FMCSA's plan. Section 5202 of the FAST Act addresses reforms to FMCSA's regulatory process. The section states quite directly that "if a proposed rule under this part is likely to lead to the promulgation of a major rule, the Secretary, before publishing such proposed rule, shall (A) issue an advance notice of proposed rulemaking; or (B) proceed with a negotiated rulemaking."

Clearly, SFD would be a major rule, and it wasn't proposed before the FAST Act's date of enactment. So an ANPRM or negotiated rulemaking presumably is necessary.

There are, however, exceptions in Section 5202 to the requirement to issue an ANPRM or use negotiated rulemaking. FMCSA could move forward with an NPRM if it found those steps to be “impracticable, unnecessary, or contrary to the public interest.”

Given that FMCSA apparently does plan to move ahead, presumably it will claim one or more of those exceptions. Expect the agency to claim that an ANPRM is unnecessary because it has had ample input from stakeholders through the various releases of SMS methodology before and after CSA took effect.

There would be a flaw with that rationale, though. If receiving input on SMS substitutes for issuing an ANPRM, then presumably the rulemaking relates to the data analysis under SMS. In other words, by avoiding the Section 5202 prohibition FMCSA could be admitting to a violation of Section 5221.

Another solution, of course, would be for FMCSA to style its planned NPRM as an ANPRM. That clearly would resolve the limitation imposed by Section 5202 and likely would not violate Section 5221. Chances are, however, that FMCSA will claim a waiver and issue an NPRM. But that doesn't mean it's what Congress expects or wants the agency to do. And given flaws in the data underlying SMS, it's not what FMCSA should do.