As part of a settlement with three trucking organizations, the Federal Motor Carrier Safety Administration will change the disclaimer it places in the website that disseminates Safety Measurement System data and to remove the term “alert” from its characterization of the data. The settlement follows mediation with the National Association of Small Trucking Companies (NASTC), Expedite Alliance of North America (TEANA) and the Air & Expedited Motor Carrier Association (AEMCA). The SMS is a core element of FMCSA’s new Compliance Safety Accountability (CSA) program.
The three associations in late November sued FMCSA to block public disclosure of SMS rankings and alerts. They contended that the SMS methodology was a work in progress intended for FMCSA’s internal use but that shippers and brokers were treating the data inappropriately as a de facto safety rating system. The U.S. Court of Appeals for the District of Columbia rejected the groups’ bid for an emergency stay in December but set the case for briefing while encouraging mediation, which resulted in a settlement.
Under the settlement, FMCSA will replace, effective March 25, the current orange alert symbol that signifies a ranking above specified thresholds in the five publicly available Behavior Analysis and Safety Improvement Categories (BASICs) with a new symbol that is an exclamation point inside a gold triangle. Also, FMCSA will replace the current disclaimer on the SMS data with the following language:
“The data in the Safety Measurement System (SMS) is performance data used by the Agency and enforcement community. A [gold triangle] symbol, based on that data, indicates that FMCSA may prioritize a motor carrier for further monitoring. The [gold triangle] symbol is not intended to imply any federal safety rating of the carrier pursuant to 49 USC 31144. Readers should not draw conclusions about a carrier’s overall safety condition simply based on the data displayed in this system. Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 CFR Part 385, or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation’s roadways. Motor carrier safety ratings are available at http://safer.fmcsa.dot.gov and motor carrier licensing and insurance status are available at http://li-public.fmcsa.dot.gov/”
To see how the new disclaimer might look, click here.
In addition, FMCSA agreed to remove the word “established” from the phrase “established intervention thresholds” everywhere that phrase appears on the public SMS website. The three groups had argued that FMCSA’s thresholds basically were arbitrary.
“CSA is a safety-critical program that helps to reduce commercial motor vehicle-related crashes and save lives,” said FMCSA Administrator Anne Ferro. “Through this settlement agreement, we addressed the concerns raised by petitioners without compromising the CSA program and its safety benefits.”
“We applaud the Agency for affirmatively restating its sole duty to credential carriers as safe for operation over the nation’s roadways,” the three organizations said in a joint statement. “We believe these changes will disabuse shippers and brokers of the misconception that SMS methodology, percentile rankings of carriers, and monitoring thresholds are intended for their use in determining carrier fitness. This important settlement confirms for a confused industry that it is still the job of the FMCSA to certify carriers.” The disclaimer also is important, the groups say, because it will direct readers to FMCSA’s Licensing & Insurance database to confirm that carriers are authorized under existing regulations, reaffirming that unless a carrier is rated as unsatisfactory or out of service, the agency has determined it is fit.
“Our issue with the agency was that premature publication of SMS data before rulemaking effectively put the cart before the horse,” adds Henry Seaton, attorney for the three trucking groups. “The industry perceived SMS publication as effectively replacing the current safety fitness rating system with dire adverse consequences on competition, efficiency and small carrier viability. As a result of this settlement, the agency, while maintaining its commitment to transparency and accountability, has affirmed its statutory duty to credential carriers as safe to operate.”
“We have always been a strong supporter of safety and look forward to working with the agency to develop SMS methodology as a fair and balanced progressive intervention tool for its internal use,” says David Owen, president of NASTC. “This important settlement should end the misapprehension in the industry that release of SMS data was intended as an abrogation of the agency’s duty to certify carriers or as a replacement for existing safety rules.”