For FMCSA’s January-published proposal to implement major reforms to the way it rates carriers and intervenes to place them out of service, the “Devil’s in the details,” says transportation attorney Henry Seaton.
“All stakeholders should recognize this proposal is bad for [business] competition and for carriers both small and large,” Seaton told attendees Tuesday, May 11, at CCJ’s Spring Symposium in Birmingham, Alabama.
Seaton cited numerous problems his firm, Seaton and Husk, has uncovered while reading through the agency’s 1,500-page Safety Fitness Determination rule proposal and FMCSA’s explanation of the rule. Potentially chief among the issues Seaton found is the rule’s heavy reliance on the agency’s flawed CSA Safety Measurement System and its percentile-based carrier ratings, despite a federal law passed by Congress last year specifically directing the agency to discontinue use of the SMS ratings and the myriad of reports, including in-depth reporting by CCJ, that reveals the disconnect between SMS and carrier crash risk.
“It ignores Congress by presuming there’s a correlation between SMS and carrier fitness,” Seaton said. “Congress told [FMCSA] to spend a year answering questions about SMS, and they haven’t done that. And in 1,500 pages they haven’t explained why they haven’t done any of that.”
Seaton’s not alone in his analysis. Trucking advocacy groups and lawmakers in the House have chided FMCSA for its continued use of SMS data in spite of Congressional directive to stop. FMCSA, however, has maintained it has not violated the CSA reform measures called for by Congress.
The SFD system would, in short, replace the agency’s current Unsatisfactory, Conditional and Unsat rating system with a simple Fit and Unfit determination. However, the Fit and Unfit ratings would be much more heavily tied to roadside inspection data and violations and wouldn’t require an on-site compliance review to rate the carrier.
Such “desktop monitoring,” says Seaton, is another major flaw with the agency’s SFD rule, as is the removal of a subsequent due process and corrective action plan allowed by the current Conditional and Unsatisfactory rating system. A current Unsatisfactory rating stemming from an on-site compliance review gives the carriers the chance to hire a consultant, form a corrective action plan and continue to operate, Seaton says, while meeting certain conditions in the corrective action plan.
Under the SFD proposal, FMCSA would be able to make an Unfit determination based solely on data derived from roadside inspections and the like, and carriers would lose their leverage and their ability to appeal. “When you rely just on statistics and don’t examine the actual safety posture of a carrier, you’re doing a real disservice to the industry.”
Methodology flaws from the onset
The Safety Fitness Determination methodology is “disingenuous from Day 1,” says Seaton, given the major flaws in the underlying SMS data. Seaton referred to the oft-cited state to state variability in enforcement, randomly assigned peer groups, lack of crash fault assignment and the lack of data on small carriers as the key issues plaguing SMS and, now, the SFD methodology.
Moreover, he said, the agency’s SFD proposal will be undermined by other coming regulations, given its heavy dependence on the Unsafe Driving BASIC and Hours of Service Compliance BASIC in the SFD methodology.
Both BASICs are set for a major adjustment or “compression,” Seaton says, when the DOT’s mandates for electronic logging devices and speed limiters take effect. Because 50 percent of the HOS violations are form and manner violations with paper logs, violations in the BASIC will “drop tremendously when everybody has an ELD,” Seaton says. The same thing will happen in the Unsafe Driving BASIC, since a large chunk of its violations are speeding violations.
“We’re arguing that the marginal utility of emphasizing these BASICs in any SFD performance is going to be lost,” he says. “[These mandates] render the analysis done by FMCSA in 2011 irrelevant.”