Forward, Summer 2016 Issue

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Summer 2016 Q Forward Magazine
Congress passes legislation and at
times, we applaud its good work.
Many times the sounds of applause
have long faded when federal agencies begin
the rulemaking process actually to put into
action what Congress has instructed. It
is extremely important that AfA’s voice is
heard early in the legislative forming stages
and it is important that AfA’s voice is heard
in the rulemaking process as the details
of the rulemaking can be a devil and have
unintended consequences for our industry.
Let’s take a look at some examples of legisla-
tion and how the subsequent rulemaking
has been conducted.
The last two highway reauthorizations
(Map-21 and FAST Act) included provi-
sions that will directly (registration and
training provisions) and indirectly (removal
of CSA scores) affect forwarders. Overall
these two laws placed a heavy burden on the
Federal Motor Carrier Safety Administration
(FMCSA) with several rulemaking require-
ments. For example, Map-21 required 37
separate rulemakings for the FMCSA and
the FAST Act requires 20 such rulemakings.
Congress passes a law that directs an agency
to solve a particular problem or accomplish
a goal but leaves the development of the rule
to a specific agency.
So how do Agencies develop the rules?
Federal agencies begin the rulemaking
process by issuing a Notice of Proposed
Rulemaking (NPRM). The NRPM is
the official document that announces
and explains the Federal agency’s plan to
address a problem or accomplish a goal. All
proposed rules must be published in the
Federal Register to notify the public and to
give them an opportunity to submit com-
ments. The proposed rule and the public
comments received on it form the basis
of the final rule. The agency then adjudi-
cates all submitted comments made to the
docket and must publish them and the
agency’s responses alongside the final rule.
For example, the Food and Drug Adminis-
tration (FDA) just published the final rule
on the Food and Safety Modernization Act.
FDA listened to the industry’s comment
on transportation responsibility and revised
the rule to place the responsibility for
determinations about appropriate transport
operations on the shipper primarily. “The
shipper may rely on contractual agreements
to assign some of the responsibilities to
other parties such as loader or carrier if
they agree to accept the responsibility.”
Let’s return to the FAST Act. For the last few
years, AfA voiced it’s objection to Con-
gress regarding the Compliance, Safety and
Accountability (CSA) scores for trucking
companies, as aspects of the methodology
were flawed and opened forwarders up to
potential vicarious liability lawsuits. AfA
and other interested stakeholders applauded
Congress’s instruction on CSA in the FAST
Act. The FAST Act required a comprehen-
sive study of the CSA and instructed the
Federal Motor Carrier Safety Administration
(FMCSA) to remove CSA scores from the
general public until the study is completed
and evaluated. AfA and the rest of the
industry believed that for the time being –
CSA scores had been put in a lockbox for
at least two years. As the famous football
analyst Lee Corso says “Not so fast, my
friend.” CSA has issued an NPRM for a
Safety Fitness Determination for drivers and
proposes to use CSA Safety Measurement
System Data to determine if fleets are “unfit.”
Many are scratching their heads regarding
FMCSA’s stated belief that “BASIC alerts
and relative percentiles prohibited by the
FAST Act are not being proposed to be used
in the Safety Fitness Determination, so there
is no Act violation”. Bottom line, CSA scores
have escaped the lockbox and are suggested
to be utilized in the SFD rulemaking. AfA
will submit it’s comments and objections to
this rulemaking.
In summary, AfA and AfA’s regulatory
committee closely monitor the rulemaking
process and when warranted, express our
opinions through the comment period. Ulti-
mately, we seek to ensure that federal agencies
do not create any unintended consequences
during the rulemaking process.