The waning weeks of calendar year 2015 witnessed a remarkable convergence of regulatory and legislative activity affecting the transportation industry. For instance, the Federal Motor Carrier Safety Administration (FMCSA) issued final rules regarding electronic logging devices and driver coercion, an overhauled Unified Registration System was implemented, the Federal Aviation Administration implemented a new registration system for airborne drones, and shippers are preparing to begin verifying the gross mass of cargo containers in light of the International Maritime Organization’s rule effective July 1, 2016. Moreover, the U.S. Congress stepped in and intervened on positive train control and hours of service, and, of course, enacted the 600- page highway bill known as the Fixing America’s Surface Transportation Act (the FAST Act), which itself not only provided for highway funding but also contained a potpourri of items affecting the transportation industry, ranging from opening the doors to hair follicle drug testing to enabling military veterans to more easily obtain commercial driver’s licenses in certain circumstances. Any of these subjects—and many others—merit substantial analysis.
However, one subject that deserves particular attention is the FAST Act’s reform of the Compliance, Safety, Accountability (CSA) system. Specifically, the FAST Act requires the FMCSA to commission the National Research Council of the National Academies to undertake a thorough examination of CSA, including the critical Safety Measurement System utilized by the CSA program. The mandated examination will focus on whether a motor carrier’s Behavior Analysis and Safety Improvement Categories (BASICs) correlate to future crash risk, the methodology used to calculate BASICs, the relative value of inspection information and roadside enforcement data, any data collection gaps, accuracy of crash data when a motor carrier was free of fault, inconsistent reporting rates with respect to the same violation in different jurisdictions, and how the public is using CSA data.
The National Research Council must publicly publish and submit its report to Congress and to the Inspector General by June 2017. If the report contains deficiencies, FMCSA must submit to Congress a detailed corrective action plan (including benchmarks, programmatic reforms, proposals, etc.) within the following 120 days (i.e., October 2017). The Inspector General will then review the corrective action plan and submit a report to Congress regarding the responsiveness of the corrective action plan within the next 120 days (i.e., February 2018).
While this timeline stretches years into the future, of immediate practical importance is the prohibition on FMCSA publishing CSA-related data. Specifically, the FAST Act provides that:
. . . [o]n and after the date that is 1 day after the date of enactment of this Act, no information regarding analysis of violations, crashes in which a determination is made that the motor carrier or the commercial motor vehicle driver is not at fault, alerts, or the relative percentile for each BASIC developed under the CSA program may be made available to the general public until . . . .
(emphasis added). The statute then outlines a variety of certifications that the Inspector General must make before such information can be made publicly available again, such as a certification that the report described above was timely submitted, that deficiencies in the report have been addressed, that any corrective action plan has been implemented, and the like. FMCSA removed this data from public access immediately after passage of the FAST Act in early December 2015.
Notably, the FAST Act also provides that “[i]nformation regarding alerts and the relative percentile for each BASIC developed under the CSA program may not be used for safety fitness determinations” until the Inspector General makes the certifications mentioned above. This latter prohibition is particularly important in that FMCSA has been developing a new safety rating system wherein safety fitness determinations were to be tied, at least in part, to CSA-related data. FMCSA has been developing the regulations governing this new system since 2007. Although little is known about the contemplated system, the Office of Management and Budget just cleared the proposed regulation last month. Consequently, the industry has been awaiting the publication of the contemplated system pursuant to a Notice of Proposed Rulemaking. FMCSA stated in its December Report on Significant Rulemakings that the Notice of Proposed Rulemaking was still to be published on December 29, 2015. However, no such Notice of Proposed Rulemaking was issued by that date.
Of course, in light of the FAST Act’s prohibition on the “use” of data in connection with safety fitness determinations and the general review of the CSA program itself, FMCSA may indefinitely delay publication of the Notice of Proposed Rulemaking. However, depending on the precise form and methodology of the proposed safety fitness determination regulations, FMCSA may instead conclude that it can proceed forward with the new system regardless of any eventual revisions to the CSA program. FMCSA may also believe that it can proceed forward with its rulemaking contemporaneously with the National Research Council’s review of the CSA program. At the present time, FMCSA has not yet publicly stated whether it believes the FAST Act completely ties its hands with respect to the expected Notice of Proposed Rulemaking relating to motor carrier safety fitness determinations.
In any event, shippers, brokers and insurers who have had doubts about the probative value of CSA-related data ever since CSA was rolled out have yet another reason to be highly circumspect about relying on CSA data when selecting motor carriers to use. While FMCSA will still use CSA data for its own prioritization of enforcement efforts, and while shippers, brokers and insurers can legally request that motor carriers disclose such data to them, all involved should tread cautiously. Motor carriers who have received CSA “alerts” or who otherwise appear to be “unsafe” through a CSA prism can now point to the FAST Act and the Congressionally mandated study of CSA data as further good reasons as to why shippers, brokers and insurers should not rely on that data.
At any rate, among the unprecedented flurry of regulatory and legislative developments at the end of 2015, the FAST Act’s prohibition on the publication and use of certain CSA-related data is sure to give the industry yet another hot topic to discuss as 2016 gets underway.