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A Trojan Horse

A further examination of the NPRM for the agency’s Safety Fitness Determination suggests the surprise rulemaking may be a Trojan horse.  The idea that rehashed SMS methodology will be used to find approximately 300 carriers per year unfit based on roadside inspections appears to be a concession to the critics of SMS methodology, only penalizing the “worst of the worst.” Similarly, the agency’s rulemaking says that it has heard from SMS critics and in unexplained ways addressed concerns about peer group anomalies enforcement inconsistencies.



Unfortunately, when called SMS methodology, we had 5 years, first-hand experience, and at least half a dozen formal requests for comments to examine the SMS scores and then convince Congress, the GAO, the IG and the agency’s own internal review panel that changes needed to be made.  Now, without supporting data, we are told that the new SFD solves all of our concerns and should be quickly blessed in a 2 month public comment period based not upon contemporary studies of the SFD but upon stale studies of roadside enforcement from 2011.

The little noticed trap door in the Trojan horse is the agency’s proclamation that somehow roadside data can be unhinged from crash data and used to measure 75,000 motor carriers who presumably will be measured but permitted to operate without any formal fitness safety rating.  Somehow the agency proclaims that the new system, which will include at least abbreviated audits for approximately 1,500 new carriers found to be unfit will be conducted without any consideration of which of these carriers could effectively appeal an unfitness finding or satisfactorily complete a compliance agreement (see Table 5).

That is twice the number of carriers found unfit annually based on a new formula which disregards crash data!

The Trojan horse is really the conclusion that a certain percent of carriers must be excluded from the industry based upon compliance data alone to justify the agency’s existence, no matter the individual’s safety performance.

Congress told the agency that it clearly had to treat the elephant in the room – determining crash preventability as a prerequisite to any critical cost benefit analysis of a new rule.  What has been proposed is a rule which assumes there is public value in decimating carriers based on roadside inspections with no basis in large part on roadside inspections and “raw score” limbo bars without connecting the dots to individual carrier safety performance.

Now, that’s an idea we cannot allow to go unchallenged. 

By |February 9th, 2016|ASECTT|Comments Off on A Trojan Horse

Warmed over SMS



For over a decade, the FMCSA has tried to develop a system to rate carriers based on roadside performance alone – depriving carriers of an audit and due process.

SafeStat, which had percentile rankings in 3 safety event groups or BASICs, was a bust.  So the agency created 7 BASICs, arbitrarily constructed peer groups, and started feeding the system with highly granulated, non out-of-service violations to increase the data count.


Without tying the resulting scores to a fair measurement of individual carrier performance, the agency went live with its scoring methodology in December of 2010.  It told the public on the one hand that the data is for our use in determining progressive intervention and, on the other, touted its rating system as intended and fit for shippers to use under peril of negligent selection liability.

From 2011 through 2015 the agency conducted over half a dozen informal “listening sessions” and “request for comments” as it tweaked SMS methodology but never addressed its critics – cut off – major and systemic flaws such as data inadequacy, enforcement anomalies, peer group creep, statistical flaws and due process issues.  All were presented to the agency but have never been addressed.

Finally, Congress intervened.  In the FAST Act it directed the agency to go back to the drawing board, conduct a thorough investigation of its roadside inspection methodology and issue a corrective action plan beforeproceeding to the rulemaking stage.  It also told the agency in no uncertain words that no major rulemaking could be issued until the effects on all aspects of the industry were considered.

Less than a month after the FAST Act was passed, the agency issued the Safety Fitness Determination which looks an awful lot like warmed over SMS methodology.  It is not something new or different which is not subject to all of the criticism which Congress said must be addressed in the corrective action plan.  It is the same roadside inspection data, the same weighted infraction methodology and it is based on the same self-serving and often discounted studies the agency has used over the past 10 years to justify SMS.

All that is really different is an acknowledgement by the agency that it cannot statistically measure accurately carriers with few inspections.  Higher but still arbitrary thresholds have been introduced.  In addition, the agency proclaims the relative measurement stick of percentile rankings has been removed, but actually it has retro-engineered the measurement system using percentile rankings to fix raw scores by safety event groups. 

All this effort that after 10 years of trials ostensibly to determine based on numbers alone that 320 carriers should be placed out of service?  That is what the agency states but there is more. Somehow this warmed over SMS will allow the agency to measure 75,000 carriers although they will not be assigned a safety rating. 

Get this.  The agency will still conduct audits and somehow will double the number of carriers found unfit as a result.  Apparently by employing the presumption that half their job is done as soon as any carrier peer group creep puts a carrier over the threshold in a single safety event group (deficiency in 2 is needed for an unfit finding on scores alone). 

So what is the long awaited Safety Fitness Determination all about?  Is it finding 320 carriers unfit based on the numbers?  Or is it a new calculus which admits that the agency will only declare carriers licensed, authorized and insured or unfit and out of operations?  What about SMS scores and the Congress mandated corrective action plan?  Is that even necessary?

Or is the rather surprising safety fitness rule just the nose of the camel under the tent since it seeks a finding that roadside inspections alone have a sufficient correlation to safety to place carriers out of service.  Would its passage forever establish for plaintiff’s bar that raw scores and percentile rankings are fair game in up supply chain lawsuits?  Moreover, look what is happening to treatment of the FAST Act in the process.  Although SMS methodology is tainted and subject to a corrective action study, it is the very process and data the agency relies upon to avoid the zero based cost benefit analysis and economic impact studies which the Administrative Procedure Act and the FAST Act require.

After 10 years in development, SMS has not been scuttled, it has been transformed as a proposed rule for a lifetime which the agency could largely recalibrate based on its own guidance.

The industry has 2 months to respond and make its case.  This improvident rule should be shelved.  The shipper and broker community deserves agency affirmation of the final rule that “Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 C.F.R. Part 385, or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation's roadways.”  This language is already in the NASTC et al. v. FMCSA settlement and in the FAST Act but the agency must be held accountable for not addressing this issue in the SFD rule.

Also, by ignoring crash preventability altogether, the agency seeks to turn a safety fitness determination into a question of roadside compliance without establishing an individual carrier’s nexus to safety or affording judicial appeal. 

ASECTT and a coalition of 7 trade associations will be analyzing the over 1,500 page agency docket of mainly conclusionary statements and previously rebutted warmed over SMS materials and needs your financial support.  Contributions can be made by going to http://asectt.blogspot.com/p/donate.html.


By |February 4th, 2016|ASECTT|Comments Off on Warmed over SMS

FMCSA proposes new safety rating system

The Federal Motor Carrier Safety Administration on Jan. 21 will officially publish a notice of proposed rulemaking (NPRM) that would change how the agency decides which motor carriers are unsafe. Comments on the carrier safety fitness determination (SFD) NPRM will be due March 21, and there will be another 30 days for rebuttal comments.

Although the new highway law known as the FAST Act generally requires FMCSA to issue an advance notice of proposed rulemaking (ANPRM) before proposing a major rule, the agency granted itself a waiver as allowed by the law, saying that an ANPRM is unnecessary and contrary to the public interest. A coalition of trade associations representing primarily small trucking operations had argued that FMCSA could not issue the NPRM due to the ANPRM requirement and other FAST Act provisions. The agency did not address the group's other claims in the NPRM it will publish Jan. 21.

What follows is a brief summary of the changes FMCSA is proposing.
 
Read More » "FMCSA proposes new safety rating system"   - TransComply

By |January 19th, 2016|ASECTT|Comments Off on FMCSA proposes new safety rating system

LEGISLATIVE AND REGULATORY UPDATE August 12, 2015

LEGISLATIVE AND REGULATORY UPDATEAugust 12, 2015Highway Bill Related Legislation Involving SMS MethodologyBefore the Senate skipped town for a month, a Bill was introduced as a compromise in an effort by the Senate to pass a highway funding bill (S....

By |August 13th, 2015|ASECTT, Legislative Update, SMS Methodology|Comments Off on LEGISLATIVE AND REGULATORY UPDATE August 12, 2015

SMS Update




SMS Update
            1.         Legislative Initiatives.  There are 3 Bills pending in Congress:

                        (1)        H.R. 1120 – "To Enhance Interstate Commerce by Creating a National Hiring Standard for Motor Carriers."  Introduced by John Duncan (R-TN) on 2/26/15.  This Bill, supported by TIA, would establish a new hiring standard of "licensed, authorized and insured" and is designed to protect shippers, brokers and intermediaries against negligent selection lawsuits.

                        (2)        H.R. 5532 – Reintroduced as H.R. 1371 – "Safer Trucks and Buses Act of 2015." Introduced by Lou Barletta (R-PA) on March 16, 2015.  Supported by NASTC, OOIDA and ATA, this Bill would require removal of SMS methodology from the website pending further study of its efficacy and a report back to Congress.

                        (3)        S. 1454 -Transportation and Logistics Hiring Reform Act. The third Bill which has been introduced in the Senate by Deb Fischer from Nebraska would combine both the House Bills and would force the Agency to address its job of coming up with a safety fitness determination.
While it seems that Congress and industry as a whole is finally getting the issue, there are two problems:  (1) Congress seems deadlocked in getting a highway funding bill which SMS methodology could coattail; and (2) The Agency still seems recalcitrant in responding to broad based criticism.

            2.         Changes to SMS Methodology.  Attached is a Notice from the Agency of further changes it proposes to SMS methodology.  Comments are due July 29th.  Any member with concerns is urged to share them with us.  The Agency appears to continue to solicit opinions but not to address the overriding issues.  See http://www.fmcsa.dot.gov/regulations/notices/2015-15907.

            3.         Finally, there are rumors of rulemaking.  The Agency has sent a safety fitness determination rule to OMB for approval.  Its contents are unknown but it appears to abandon percentile rankings for purposes of making an actual safety fitness determination. Eliminating peer groups and percentile rankings unfortunately will not solve the problems of misuse of SMS data unless the Agency answers the following systemic problems:

                        (1)        The law of large numbers/inadequate data.  Both the Gimpel and the GAO Study say there is insufficient data to accurately statistically measure 90% of the carriers the Agency regulates.

                        (2)        Data accuracy, enforcement inconsistencies and corrupted data preclude an accurate assessment of carrier compliance (an 80% error factor occurs in the Agency's measurement of crashes because preventability cannot be determined).

                        (3)        Due process – Any monthly publication of statistical findings based on roadside inspections alone could deprive carriers of freight before they have any opportunity to appeal.

In any event, the Agency is clearly under pressure from NHTSA and others to act more quickly on identifying "at-risk" carriers.  The "independent" intra-agency report Secretary Foxx commissioned over a year and a half ago has issued a report with voluminous recommendations.  See  http://www.ttnews.com/articles/basetemplate.aspx?storyid=38710.  It offers a lot of suggestions but no answer to the criticism that was represented to the task force concerning the flaws in the methodology. 

In sum, over 4 years in the making, we may soon have a rule to respond to and only several months in which to do it.  Believe it or not, rulemaking will be the court of first impression which the Agency actually has to come to grips with a cost benefit analysis and overcoming the showing that SMS methodology and its use has an overwhelming anti-competitive effect, particularly on small carriers.

We have had progressive interventions, focused audits, using SMS methodology and broad "stakeholder" second guessing in the name of safety.  If this DOT crash data for the years since SMS methodology and progressive intervention have been in place, the Agency cannot point to a quantifiable improvement in crash reduction to justify that its initiative has been successful.



By |July 2nd, 2015|ASECTT, SMS Update|Comments Off on SMS Update

REGULATORY UPDATE March 1, 2015

See below for regulatory update. Law Office of Seaton & Husk, LP Transportation News & Upcoming Events: REGULATORY UPDATE March 1, 2015

By |February 25th, 2015|ASECTT|Comments Off on REGULATORY UPDATE March 1, 2015

News Update

 A second bill aimed at nullifying misuse of SMS methodology has been introduced by Pennsylvanian Congressman. See following press release "Barletta Introduces Safer Trucks and Buses Act."

See also some good press coverage of our letter to Secretary Foxx sent Tuesday - Blocking CSA scores: More calls for FMCSA to remove them from public view - Article: "More trucking, shipper groups ask Foxx to block ‘flawed’ CSA scores"

By |September 19th, 2014|ASECTT|Comments Off on News Update

ASECTT and Coalition Members Call for Removal of SMS Methodology from Website

Several weeks ago, 10 trucking associations led by ATA and OOIDA requested Secretary Foxx to remove SMS methodology from public view.  See Fleetowner Article, "Groups ask DOT to hide CSA scores from public view."This request shows a building cons...

By |September 17th, 2014|ASECTT|Comments Off on ASECTT and Coalition Members Call for Removal of SMS Methodology from Website

ASECTT Update

Please see below for important updates. 1.  Website Enhancements 2.  Anne Ferro Resignation 3.  ATRI Study 4.  Overview of SMS - Webinar Briefing

By |August 1st, 2014|ASECTT|Comments Off on ASECTT Update

SMS Website Enhancements

Critics of SMS Methodology and its publication for use by "stakeholders" have reason to be concerned about the Agency's recently announced "enhancements." The public, shippers and brokers including plaintiff's bar, with a click of the mouse will be able to see a listing of all carriers with better percentile rankings than their preferred carrier vendor in each of the BASICs.  In furthermore of Plaintiff's Bar's argument that the consumer must second guess the Agency's ultimate safety fitness determination, this enhancement will make it all the easier for Plaintiff's Bar to argue that a shipper or broker was negligent in not selecting the safest carrier available based upon the Agency's readily available listing of all competitors by percentile rankings and peer groups.

Yet for skeptics of SMS Methodology, the new "transparency and accountability" which the enhancements incorporate will offer a treasure trove of new minable data. Students of SMS Methodology have long recognized that artificial peer grouping based solely on number of roadside inspections resulted in comparing and ranking of carriers, introducing variable factors which invalidated any statistical comparison between true peers. The geographical and enforcement anomalies, the peer grouping of busses with trucks, OTR carriers with hundred mile radius carriers which do not log, intermodal carriers are obvious examples.

The Agency and its MCSAC have noted the peer group creep phenomenon which can cause a small carrier's scores to increase by 30 or more percentile points as it migrates from one peer group to the next even though the tipping point results from a clean inspection.

Now that all of the data of all of the peer groups will apparently be made public, the harsh reality of the system's basic flaws and inequity will be clear for all to see.

A prototype study conducted by members of the The Expedite Association of North America (TEANA) poignantly demonstrates the types of methodological flaws students of SMS Methodology can expect to see. Over 2 ½ years ago, TEANA obtained a listing with percentile rankings of all 100 carriers in the jumbo Class 5 "straight truck peer group." The straight truck peer groups are artificially defined as carriers which have 30% or more straight trucks and unsafe driving is ultimately measured on miles traveled by all commercial motor vehicles. Traditionally among the carriers with the best scores are truck leasing companies a tree trimming service and local retail delivery services, a dissimilar lot from the higher ranked OTR expeditors which comprise TEANA.

TEANA members complained loudly to the Agency that this mis-peer grouping was a result of an arbitrary construct which should be rectified, pointing out that with the same number of inspections and miles run if properly peer grouped with their OTR counterparts, percentile rankings would fall by in excess of 40 or 50%. Although supported by examples. TEANA's lament has been consistently ignored.

At the time of the initial study, another important segment of the trucking industry was profiled as "bad actors" with high scores in jumbo straight truck unsafe driving BASIC. Eleven of the major household good movers were listed in the group in May 2012 and none had a score under 74 -- Everyone was in an alert status!

Twenty-six months later, none of the 11 show an alert status in unsafe driving. In fact, one shows a 1 month improvement from 96.1% to 12.5%.

How have the van lines accomplished such a great improvement in the critical unsafe driving BASIC, you ask?

The answer is simple. Not a one of them is left in the straight truck jumbo peer group. Whether by adding more combination units or reducing their straight truck fleet to get under the 30% ranking, the van lines all fall in the combo peer group and their average have declined by an average of 69 percentage points! This fall in scores certainly doesn't suggest that the van lines have done anything wrong. Most probably many have simply required their agents to acknowledge and accept safety responsibility for the smaller pickup and delivery vans they operate to lawfully exit the anomalous peer group.

Yet, as this preliminary study shows, the Agency's peer groupings and percentile rankings contain more than anecdotal inequities of relative insignificance which can be ignored.

Most of the peer groups are much larger than the jumbo straight truck group. Yet data miners will have a field day with the increased data which will soon be available.

For lawyers which must defend shippers, brokers and carriers in accident suits, it should be a whole lot easier to exclude SMS Methodology as having no statistical or probative value.

By |August 1st, 2014|ASECTT, FMCSA, SMS|Comments Off on SMS Website Enhancements