Turning customers into cops
FMCSA outsources enforcement by publishing CSA data analysis
By the time you read this, the Safety Measurement System – the bedrock of the new Comprehensive Safety Analysis program – likely has replaced SafeStat. As with SafeStat, public release of SMS data will come with a lengthy disclaimer warning about the possibility of inaccurate and late data and discouraging misuse of the data.
The SafeStat disclaimer declared: “SafeStat’s ability to accurately and objectively assess the safety fitness of individual motor carriers may be inconsistent and not conclusive without additional analysis.” Another passage states that use of SafeStat for purposes other than federal and state enforcement “may produce unintended results and not be suitable for certain uses.” In other words: “You can go to the next page, but you really shouldn’t.”
SMS data suffers from the same flaws as SafeStat data because it is the same data; the SMS is just another way of processing the same information. Indeed, the flaws potentially are more significant because the SMS methodology relies on a much larger number of violations.
Data quality matters because several recent court decisions have held that shippers and brokers can be liable in crash litigation for knowing that a carrier had deficient driver or vehicle SafeStat scores. The negligent entrustment issue, therefore, isn’t new with the advent of CSA. But the names of two Behavior Analysis and Safety Improvement Categories – Unsafe Driving and Fatigued Driving – could be emotionally charged if presented to juries. Also, breaking the three Safety Evaluation Areas in SafeStat into seven BASICs in the SMS makes it more likely that a carrier will draw deficiencies or “alerts,” as FMCSA now calls them.
CSA represents a major leap forward by introducing, among other things, driver accountability and a graduated intervention process. But CSA also is a work in progress. The SMS methodology has been revised twice since its first release in April, and the agency suggests that further changes are likely as part of the rulemaking it needs in order to use the SMS as the basis for monthly data-only safety ratings.
Scorecards become de facto safety ratings.
Public disclosure of SMS rankings certainly benefits carriers that have invested the resources needed to manage their compliance programs around CSA. Their executives have made sure shippers know all about CSA and have emphasized negligent entrustment worries in case they weren’t aware of them already. These carriers’ efforts to reshape their compliance programs – including adopting electronic logs, imposing speed governors, enforcing driver pre-trip inspections and so on – are admirable. But does that necessarily mean that a carrier with one or two SMS alerts is unsafe? FMCSA’s own disclaimers suggest not.
Inevitably, shippers’ litigation fears will force some unsafe carriers to improve or go out of business more quickly than the agency’s new graduated intervention process would have led them. CSA will reduce capacity, helping the surviving trucking companies become healthier and more profitable. Private-sector enforcement will operate more efficiently than the plodding and sometimes tedious process a government agency uses. In the aggregate, the results might be desirable, but there is no due process in individual cases.
Politically, FMCSA has no choice but to make data available in some form. That ship sailed when the agency first uploaded SafeStat data to a public website a decade or so ago. But FMCSA doesn’t have to summarize the data in a succinct scorecard with color coding and labels that amount to a de facto safety rating in the eyes of shippers, brokers and insurers. They are far too concerned about a multimillion-dollar judgment to worry about using SMS data inappropriately. The agency can’t just ignore this reality.
If FMCSA truly means what it says in its disclaimers, it shouldn’t characterize carriers’ safety performance publicly beyond their safety ratings. FMCSA’s ultimate vision is to conduct a monthly data-only review of all motor carriers. Until the agency is prepared to use its own data as the sole basis for safety ratings, it shouldn’t empower others to do so. n
Avery vise is Editorial Director of Commercial Carrier Journal.