Why didn’t FMCSA publish an Advance Notice of Proposed Rulemaking (ANPRM) for the Safety Fitness Determination (SFD) rule as discussed in Section 5202 of the FAST Act?

Section 31136(g) provides the Secretary with the authority to waive this requirement when it “is impracticable, unnecessary, or contrary to the public interest.”  FMCSA included in the notice of proposed rulemaking (NPRM) a finding that the publication of an ANPRM was “unnecessary and contrary to the public interest” in this case.  We based this finding on the fact that, in the development of the Compliance Safety Accountability (CSA) program, which includes SFD, the Agency held 11 public listening sessions which served the important purpose of soliciting early public input to inform the NPRM.  The proposed SFD rule has been under development for many years and represents a significant investment of taxpayer dollars along with Federal employee and contractor time.  For the reasons stated above, FMCSA complies with the requirements of the 49 U.S.C. 31136(g) and Section 5202 of the FAST Act.

Does the SFD rule include a regulatory impact analysis that meets the requirements of Section 5202 of the FAST Act?

Yes, FMCSA is confident that the regulatory impact analysis (RIA) accompanying the SFD NPRM meets the requirements of this section of the Act.  The analysis in the RIA, to the extent practicable, considers the effects of the proposed rule on different segments of the motor carrier industry and provides estimates and findings based on the best available science.  It also, consistent with current law, uses data that is representative of commercial motor vehicle (CMV) operators and motor carriers that will be impacted by the proposed rule and takes into account the effects on various sizes and types of commercial truck and bus carriers.  The methodology that FMCSA is proposing for making SFDs is set out in considerable detail in the NPRM, including how it proposes to account for carriers based on types and sizes.  As required by the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., the NPRM and the RIA include a thorough analysis of the impact of the proposed rule on small entities in particular, which make up a significant proportion of the carriers regulated by FMCSA.  A careful review of both the NPRM and the RIA will clearly show that FMCSA satisfied the requirements of 49 U.S.C. 31136(f) and Section 5202 of the FAST Act.  However, FMCSA will carefully consider any additional information provided in the comments to the docket on the RIA and the costs and impacts of the SFD NPRM. 

Doesn’t Section 5221 of the FAST Act prohibit FMCSA from publishing this rule until the requirements of this section have been met?

Section 5221 in subsection (d), requires FMCSA to prepare and submit a corrective action plan to the Senate Committee on Commerce, Science, and Transportation and the House Committee on Transportation and Infrastructure if the report prepared by the National Research Council, and submitted to the aforementioned Committees, “identifies a deficiency or opportunity for improvement in the CSA program or in any element of the SMS.”  Once such a corrective action plan is prepared and submitted to the appropriate Committees, it must be considered in any rulemaking relating to the CSA program and SMS.  It does not prohibit the Agency from moving forward with the SFD NPRM until a corrective action plan is prepared and submitted.

Section 5223 of the FAST act places limitations on the use of CSA analysis, how does that impact the SFD NPRM?

Section 5223(a) of the FAST Act requires the Inspector General of the Department of Transportation to certify that certain actions have been taken by the Agency in response to the report on the correlation study required by Section 5221(c), the Government Accountability Office (GAO) report on CSA, the corrective action plan - if applicable, and implementation of the Beyond Compliance program in Section 5222 before the Agency may resume public display of SMS data.  However, Section 5223(b) of the FAST Act, states specifically that , “[i]nformation regarding alerts and the relative percentiles for each BASIC developed under the CSA program may not be used for SFDs until the Inspector General of the Department makes the certification under subsection [5223](a).”  As articulated in the NPRM, the Agency’s proposal does not use percentiles or alerts to make SFDs on individual carriers, but rather proposes a fixed failure standard using an absolute measure.  Furthermore, Section 5223(c) of the FAST Act states, “absolute measures shall remain available to the public.” The NPRM proposes that the fixed failure standard would not fluctuate from month to month and the Agency would only change the standard through subsequent regulation, which would include a period for public comment prior to enactment. 

The references to percentiles in the SFD NPRM are included to help carriers and the public understand what the proposed fixed failure standards would be equivalent to in SMS.