The well-known political impasse between the executive and legislative branches of the federal government is mirrored by regulatory gridlock at agencies such as the Federal Motor Carrier Safety Administration (FMCSA or Agency). The regulators and their allies such as safety advocates and the plaintiffs' bar have one vision for trucking regulation; the industry (especially smaller carriers) and sympathetic members of Congress have quite another. Now that the current Administration's days are numbered, the two sides' visions seem more unlike and irreconcilable than ever. The current regulatory gridlock expresses itself in several unique styles of infighting, which can be capsulized as off-the-books rulemaking, zombie dockets, done deals that aren't, and proposed rules that propose nothing in particular.
All four of these techniques have been in play during various phases of the fight over whether the FMCSA's Safety Measurement System (SMS) should supplement or supplant the official methodology for determining motor carrier safety ratings under 49 CFR Part 385. Between 2010 and 2012, the Agency used regulatory "guidance" to suggest that published SMS scores were at least co-equal to Part 385 as a lawful and reliable means by which shippers and freight brokers could select safe carriers for use. When forced in two DC Circuit cases (cited below) to acknowledge that SMS scores are not safety ratings, the Agency gave assurances that it would open a Safety Fitness Determination (SFD) rulemaking to incorporate SMS methodology into Part 385. But SFD languished as a zombie docket with no formal rulemaking proposal until January 2016. In the meantime, mounting evidence of statistical flaws in SMS methodology led Congress to terminate publication of SMS percentile scores in December 2015, by adding language to a transportation authorization bill known as the FAST Act. This legislation galvanized the FMCSA into finally unveiling its Notice of Proposed Rulemaking (NPRM) for incorporating SMS into the official motor carrier safety rating process. But the more the industry scrutinizes the details of the NPRM (on which comments are now due May 23), the harder it becomes to determine the Agency's actual objective the proposed rule – other than to undo the done deal of the FAST Act.
The remainder of this paper will provide further details on the SMS/SFD guerrilla conflict, and on similar regulatory infighting in other recent and current rulemaking dockets before the Agency. Please bear in mind throughout this discussion that the 14 "significant" rulemaking dockets reported by FMCSA as pending in March 2016 (the report is cited below) tell only part of the story. Any practitioner before this Agency can regale you with tales of regulatory improvisation aimed at disfavored carriers. To many observers in the industry, both the rules and the quasi-rules emanating from FMCSA seem to reflect an agency that views the industries it regulates as adversaries, and that is uniquely enamored of prescriptive, top-down, command-and-control approaches to regulation. In short, this Agency often seems to have a chip on its shoulder.
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