Docket No. FMCSA-_______________
THE
MOTOR CARRIER REGULATORY REFORM (“MCRR”) COALITION’S
PETITION
FOR RULEMAKING ON SCOPE AND USE OF “PREVENTABILITY” DETERMINATIONS IN ASSESSING
SAFETY FITNESS OF MOTOR CARRIERS
COMES NOW, the Motor Carrier Regulatory Reform (MCRR) coalition
and files this its Petition for Rulemaking under 49 C.F.R. § 389.31. MCRR submits that rulemaking under the
Administrative Procedure Act (5 U.S.C. §§ 551, 553) is a necessary prerequisite
to any permanent implementation of a process for determining “preventability” of
commercial motor vehicle accidents as proposed in the Crash Preventability
Demonstration Program (“CPDP”) announced by the Federal Motor Carrier Safety
Administration (“FMCSA” or “Agency”) in July 2017.
I. Identity of the Parties
MCRR for the
purpose of this Petition is composed of ten trade associations including:
Air
and Expedited Motor Carriers Association
Alliance for Safe,
Efficient and Competitive Truck Transportation
American Home
Furnishings Alliance/Specialized Furniture Carriers
Apex Capital Corp.
Auto Haulers Association
of America
National Association of
Small Trucking Companies
Tennessee Motor Coach
Association
The Expedite Alliance of
North America
Transportation &
Logistics Council
Transportation Loss
Prevention & Security Association
Petitioners’
membership includes shippers, brokers and carriers directly affected by the
proposed preventability procedure and publication of preventability findings. MCRR’s membership includes over 10,000 small, frequently
unrated motor carriers. Their interests
are entitled to statutory protection under the Administrative Procedure Act
(APA), the Paperwork Reduction Act and other requirements for administrative
due process before they are assigned safety fitness ratings that can put them
out of business under 49 CFR Part 385.
Petitioners’
interests require particularized regulatory analysis prior to implementation of
any guidance having the effect of a new rule.
If CPDP were made permanent in August 2019 as recently announced by the
Secretary of Transportation, the result would be a comprehensive re-definition
of what constitutes accident “preventability” for purposes of calculating the
“accident factor” used in assigning safety ratings to motor carriers under 49
C.F.R. Part 385, Appendix B, section II.B(e).
Unquestionably, this re-definition of an essential term used in the
safety fitness determination process under 49 U.S.C. § 31144 would set a new
standard of “general … applicability and future effect,” thus constituting a
new “rule” within the meaning of APA (5 U.S.C. § 551(4)). If CPDP is baked into the safety fitness
determination process without being vetted in the rulemaking docket for which
MCRR petitions here, the result will be an open-and-shut violation of the APA.
II. Background
Over 98 percent
of the 525,000 motor carriers the Agency regulates are small businesses under Small
Business Administration (SBA) guidelines. The Agency is required to make safety fitness
determinations and disclose those determinations to the public under 49 U.S.C.
§ 31144(a)(3). Yet during the past 9
years, the Agency has been able to provide actual safety ratings to only about 12,000
carriers per year even when using its methodology known as Compliance, Safety,
Accountability (CSA) as a supposed improvement over Part 385 procedures. The resulting regulatory limbo has left over 95
percent of the regulated carriers in a position of not holding a current safety
rating, thus operating as “unrated” yet approved by the Agency to perform
service on the nation’s roadways.
Neither
collecting and publishing CSA roadside data and scores nor issuing crash
preventability findings can be shown to advance the Agency’s mandate to provide
safety ratings to all carriers. The insufficient data quality and systemic
flaws of CSA have not been addressed almost ten years after its
implementation. No compelling argument
for making preventability determinations has been made to show how the Agency’s
mandate of issuing safety ratings to all carriers would be enhanced.
MCRR’s proposal
for a biennial desktop audit (modeled on the Agency’s current process for
desktop audits of “new entrant” motor carriers under 49 U.S.C. § 31144(g))[1]
is a more effective proposal which should be considered prior to
institutionalization of preventability determinations, resumed publication of
CSA scores, or further tinkering with the Agency’s sketchy “Corrective Action
Plan” for CSA under the FAST Act. In any
event, the CPDP should not be made permanent until it is (i) reviewed as a
proposed rule under APA, (ii) subjected to cost-benefit analyses based on
likely caseloads, (iii) safeguarded with administrative appeal processes, (iv)
expanded to include many additional categories of accidents which often involve
no fault of the carrier, and (v) clarified to reflect that no determination of
fault by the Agency is expressed or implied with regard to accident categories
not within the expanded scope of CPDP.
III. Argument
The Agency has no
statutory mandate to set up ad hoc tribunals for making so-called
“preventability” determinations. As used
in the CPDP test study, the preventability standard is an artificial construct
with no proven correlation to causation, fault, or carrier liability, much less
is it a proven indicator of safety compliance by carrier management or a proven
predictor of future crashes.
1. Requirement for Rulemaking. In
considering the Agency’s CSA 2010 / SMS program, Congress expressly included
the following relevant provisions in the FAST Act (Pub.L. 114-94), which
mandate APA-compliant rulemaking, preclude the misuse of guidance and forbid
the republication of CSA/SMS scores without subsequent Congressional
approval. See, for example:
-- Section 5202,
which expands public participation in formulation of major rules, and requires
regulatory impact studies on representative segments of the motor carrier
industry.
-- Section 5303,
which mandates periodic review, public comment and weeding out in relation to
FMCSA “guidance” documents.
-- Section 5304,
which requires USDOT to publish, prioritize and take tangible action on all
rulemaking petitions, rather than merely sitting on them.
-- Section 5221,
which requires detailed scrutiny of the statistical validity of any proposed
program to reform or replace CSA – a process which the Agency has barely begun.
The National
Transportation Policy, 49 U.S.C. 13101, also requires the Agency to consider
the effect of any new policy initiative on the needs of the traveling and
shipping public, and on free market competition in which all carriers,
regardless of size, compete on an equal footing if they are fit to operate.
2. Effect on Small Businesses. Petitioners
submit that establishing a preventability standard, particularly for small
unrated carriers, will have the unintended consequences of (1) establishing an
inaccurate alternative vetting standard that will result in a higher insurance
cost; (2) fomenting reluctance on the part of the shipping public to use
carriers whose crashes have not been determined to be preventable; and (3)
resulting in misuse of “preventability” by the plaintiffs’ personal injury bar
to characterize small and unrated carriers as unfit for use under an
alternative standard that is inconsistent with statute and existing
regulations.
3. Due Process. While crash
preventability is considered in the context of a compliance review, the broad
exceptions to preventability review under the test program are very different
from those used under Part 385. The CPDP
offers no procedure for adjudication, and no appeals process. As proposed, it amounts to an ad hoc grand
jury proceeding in which the crash is presumed preventable. By the proposed publication of 130,000
crashes annually as subject to the preventability standard, small carriers will
be required to pre-litigate every reportable crash at significant cost.
Pursuant to 49
U.S.C. § 504, information and data collected by enforcement officers concerning
crashes are not admissible in court.
Moreover, MCRR can show that SMS methodology and the concept of
“preventability” is frequently used by the plaintiffs’ bar to prejudice a
jury’s attitude toward the defendant carriers and the motor carrier industry in
particular. Even more troubling is the
fact that many recorded crashes would never be screened as preventable or
non-preventable under the current program, because their fact patterns would
not fit the narrow strictures currently defined by the Agency. This scoping issue would have a particularly
misleading effect with respect to small carriers, given the small sample sizes
and the paucity of crash data available in their safety records.
The only tangible
effect of case-by-case “preventability” determinations by the Agency would be
to create yet another series of bogus “safety” evaluations which the
plaintiffs’ bar could portray – along with legally and statistically flawed CSA
data – as seemingly plausible alternatives to Part 385 safety ratings and/or
SAFER snapshots. “Preventability”
determinations would be even more insidious than CSA because they would misuse
the findings made on individual crashes to undermine the carrier’s over-all
safety record – and to cast doubt on its legal status as fit to operate and fit
to use pursuant to the determinations necessarily made by FMCSA under section
31144 in order to register it as a motor carrier in the first place.
4. Absence of Cost-Benefit Analysis.
There has been no cost-benefit analysis for making the preventability study
permanent. Based upon the Agency’s own
data, Petitioners can show the results are insignificant. During the test period the Agency made
determinations on less than 5 percent of the crashes and found that almost half
of the crashes submitted for review could not be considered under the narrow
fact patterns eligible for review. Even
when front facing cameras show crashes caused by motorists drifting left of
center and hitting the commercial motor vehicle head on, the Agency has
declined to determine the accident was preventable because the motor carrier
could not demonstrate the motorist was either drunk or attempting to commit
suicide.
5. Need for True Regulatory Reform.
Executive Orders 13771 and 13777 require the Agency to remove two regulations
for each new regulation it proposes. In this context, MCRR submits that the
scope and magnitude of adopting a permanent preventability standard and
publishing its results is premature to say the least, at a time when Congress
and the Agency are still working through the procedures prescribed by the FAST
Act with regard to the future of CSA/SMS and the validity and use of roadside
truck safety data in general.
Clearly, the
adoption of the test program as guidance would impose a new and significant
financial burden on carriers, requiring them to contest preventability
immediately upon the occurrence of any accident so as to avoid the adverse
consequences of loss of business and increased insurance rates that would flow
from a preventability determination.
Moreover, accident reconstruction and litigation is a long drawn-out
process; its effects on the carrier would be compounded by having to submit a
request for an FMCSA preventability determination and by gathering all of the
facts in support thereof. The resulting
burdensome costs of this additional layer of fact-finding have not been
calculated and are not covered by insurance.
Thus, adopting the preventability standard by guidance would have a
significant financial impact and effect on the industry. It also would insert the Agency into the role
of quasi-judicial finder of fact, imposing substantial new administrative burdens
on FMCSA and the motor carrier industry alike.
IV. Conclusion and Request for Relief
For all the
reasons stated in this Petition, imposition of a new fact-finding regime on the
trucking industry and on the Agency’s small staff – especially through the
short cut of “guidance” – would be an ill-considered diversion from the safety
compliance mission to which FMCSA always has given priority. The result would be to make it even more
difficult for the Agency to fulfill its statutory mandate of assigning safety
ratings to all carriers it regulates. If
the Agency is to consider taking on additional fact-finding duties as a federal
accident review board, it should do so only after full public notice and
comment on such issues as (i) who would do the fact-finding; (ii) whether the
fact-finders would be agency employees, contractors or both, (iii) how their
work would be funded without further crippling the carrier safety rating
process, and (iv) how to provide appropriate disclaimers for accidents as to
which no findings would be made due to limitations on fact patterns eligible
for review.
Respectfully submitted,
THE MOTOR CARRIER REGULATORY
REFORM COALITION
Henry E. Seaton, Esq.
The Law Office of Seaton & Husk,
LP
2240 Gallows Road
Vienna, VA 22182
T: 703-283-4251; F: 703-573-9786
henryseaton@transportationlaw.net
Mark Andrews, Esq.
Clark Hill, PLC
1001 Pennsylvania Ave NW
Suite 1300 South
Washington, DC 20004
T: 202-552-2352; F: 202-572-8684
mandrews@clarkhill.com
[1]
See Comments submitted by MCRR in “Regulatory Review” Docket No. DOT-OST-2017-0069
(November 16, 2017) at https://www.regulations.gov/document?D=DOT-OST-2017-0069-1680
and Comments submitted by MCRR to the Motor Carrier Safety Advisory Committee
(MCSAC) (July 19, 2018) at https://www.regulations.gov/document?D=FMCSA-2006-26367-0154.
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