LEGISLATIVE AND REGULATORY UPDATE August 12, 2015

LEGISLATIVE AND REGULATORY UPDATE

August 12, 2015

Highway Bill Related Legislation Involving SMS Methodology

Before the Senate skipped town for a month, a Bill was introduced as a compromise in an effort by the Senate to pass a highway funding bill (S. 1732). With little attention or advance notice, the Senate compromise perverted the intent of both the TIA supported House Bill 1120 (Duncan) and House Bill 5532 (Barletta) which is supported by OOIDA, NASTC and ATA.

The legislation would have created an "interim hiring standard" for shippers and brokers of licensed, authorized and insured, but would have allowed the agency to self-certify SMS methodology in conjunction with the Transportation Research Board (which DOT funds) and then uncouple the ultimate agency safety fitness determination from SMS methodology or any other "guidance" the agency chose to use.

Together with others, we scurried around to try to urge substitution of the Fischer Bill (S. 1454) which recognizes that there is one unitary standard under existing law for carrier safety fitness and that safe to operate is safe to use. Although the Senate passed a comprehensive bill with little amendments and left town, we dodged a bullet because the House insisted on a temporary funding bill.  This effectively saves the issue for further resolution.

Correct the Safety Analysis Act of 2015 (H.R. 3093)

On the House side, there is an encouraging sign.  Congressman Gibbs (R-OH) and cosponsors Mark Meadows (R-NC) and Steve Chabot (R-OH) have introduced H.R. 3093.  This Bill is supported by ASECTT and a coalition of 4 trade associations including us.  It is a friendly amendment to H.R. 1120 and H.R. 5532 which would (1) not create a new hiring standard for shippers and brokers but simply recognize that under existing law the agency's ultimate safety fitness determination is the sole standard for shipper use.  Secondly, the bill would make clear that SMS percentile rankings and data, if not redacted, could not be used to trump the agency's ultimate safety fitness finding.

This bill, unlike other legislation, recognizes the preemptive effect of federal law in trumping the misuse of SMS methodology to support state law vicarious liability and negligent selection charges as well as providing a basis to preclude the misuse of SMS data to inflame juries in accident suits where there is no causation involved. 

Hopefully the Gibbs Bill can focus Congressional thinking on the real issues and gain unified support by all "stakeholders" which SMS methodology threatens.

Garnering support for Correct the Safety Analysis Act of 2015 (H.R. 3093) in the House and the Transportation and Logistics Hiring Reform Act (S. 1454) in the Senate should be the focus of legislative efforts to end improper use of SMS data and affirm the principle that "fit to operate is fit to use" to support legislative action and to monitor these bills.  Visit www.mcrr.net.

Regulatory Update

On July 29, together with four other trade associations, we filed Comments in "Proposal for Future Enhancement to the Safety Measurement System (SMS)" in FMCSA-2015-0149.  This proceeding is not the long expected "rulemaking" but simply a continuation of the agency's effort to tweak SMS methodology and provide an open docket for comments with a view to disarming subsequent industry opposition.

The comments we filed addressed the fact that the continued succession of "tweaks" proved that SMS methodology was not an effective predictor of safety performance.  We were careful to establish on the record our continuing objection to requests for comments about aspects of SMS without addressing the systemic shortcomings to wit: (1) no proven correlation between data and individual carrier safety performance; (2) data insufficiency; (3) lack of data accuracy; (4) inability to determine crash preventability; (5) enforcement anomalies in unsafe driving, hours of service and vehicle maintenance; and (6) no assessment of the effect on small carriers.

Safety Fitness Determination Rule at OMB

Four and a half years after the agency unleashed SMS methodology, it has sent a safety fitness determination rule to OMB for review.  What the rule actually contains is a secret, but clearly the agency will be using SMS methodology and not percentile rankings in making safety fitness determinations.

We requested an audience with OMB to present our concerns.  OMB's role in the administrative process is to examine the rule before publication to ensure that the requirements of the Administrative Procedure Act, including a cost benefit analysis, consideration of the effect of the rule on small carriers, a data quality analysis, and a review of other options.

With half a dozen FMCSA and DOT officials listening on the phone, we were afforded 30 minutes to make our case.  We addressed all of these issues and provided charts, graphs and articles in support.  The OMB representatives seemed engaged and knowledgeable.  Neither the representatives of OMB nor the Assistant Counsel for the Small Business Administration which have access to the rule could provide any information as to its proposed content.

In accordance with accepted timetables, a safety fitness rule should be released for public comment in September or October, but in Washington and particularly with the agency, "we'll know it when we see it."

Caveat:  The safety fitness determination rulemaking will be more significant than the hours of service rulemaking of 2003.  Twelve years later we are still living with its legacy and our failure to challenge the agency's assumptions about circadian rhythms and restorative sleep.  When the safety fitness rule is released we better fight "administrative fatigue" and recognize the rulemaking as the decisive and determinative record making event which will set the stage for trucking for the next generation.

If CCJ's description of the proposed safety fitness determination rule is correct, the agency may be doubling down on use of SMS data to publish and assign safety ratings without an audit or due process! See http://www.ccjdigital.com/our-partners/peak/what-you-can-expect-from-fmcsas-safety-fitness-rules/?utm_source=daily&utm_medium=email&utm_content=08-13-2015&utm_campaign=CCJ&ust_id=e59c3ff1ea&