Alice in Wonderland-style Truck “Safety” Regs
An interesting Blog from James Edwards, NASTC's Washington Contact. A Line of Sight - Sunday, March 04, 2012 By James R. Edwards Jr., Contributing Editor The so-called Compliance Safety Accountability program out of the U.S. Department of Transportation makes Alice’s experiences in Wonderland look reasonable. CSA amounts to a bureaucratic end run around the legally required rulemaking requirements, an arbitrary and subjective way to re-regulate a deregulated industry, and a disruption to the supply chain in ways that will have substantial effects on consumers and the shipping public. A little background: CSA uses roadside inspection data to rank commercial motor carriers in seven “BASIC” safety categories. BASICs include things like “vehicle maintenance,” “driver fitness,” and “unsafe driving.” A creation of the Federal Motor Carrier Safety Administration, CSA ranks the truck companies against each other in each of the BASICs (five of which are publicized on the Internet). CSA’s Safety Measurement System assigns scores in each BASIC to a carrier. Rated carriers are then compared against their “peers” within each BASIC. A percentile ranking in a category supposedly shows where a carrier stacks up against other motor carriers. But it’s an ever-changing set of peers. FMCSA sets an arbitrary percentile level for each BASIC that some refer to as “limbo bars.” Carriers whose BASIC score crosses the limbo bar gets branded on the CSA website with an “alert” — a golden triangle with an exclamation mark. The agency created CSA to replace its precursor, SafeStat. No doubt SafeStat wasn’t perfect. But SafeStat scores remained unpublicized. They gave agency officers an internal tool for determining what interventions were appropriate for certain carriers that might have some challenging safety area. If CSA were only a newer, internal tool for the agency to do its job, that would be tolerable. But the FMCSA has put CSA scores out there in public. The agency has even been pushing shippers and brokers to rely on CSA scores in choosing freight haulers. But CSA has real problems. And it’s causing turmoil in the industry. Perfectly safe carriers are losing business with established clients because of CSA-spurred fears. How CSA got here reveals a lot about this imperfect system and its harmful consequences. First, CSA was rolled out never having followed legal requirements designed to protect against rogue rulemaking. FMCSA developed CSA itself, without any clear statutory authority from Congress to do so. The agency claims it can do this under its general authority. CSA was field-tested in a handful of states, where indications were that it improved upon SafeStat, but had problems. The University of Michigan produced a study at FMCSA’s request assessing CSA. The study apparently never underwent any kind of peer review and was never published in any reputable academic journal. Instead, FMCSA kept the UM study secret until just a few months ago — releasing it only after CSA had been made public and in use. The study essentially concluded that CSA was better than SafeStat. In December 2010, FMCSA moved forward with what was then called Comprehensive Safety Analysis 2010, putting CSA ratings on the Internet and promoting them as new and improved and ready for the shipping public’s usage. FMCSA never afforded industry or the public the due process required by the Administrative Procedure Act. In order to make such a substantial change in regulation, the APA lays out requirements, such as giving notice of proposed rulemaking, seeking public comment, etc. Federal laws, including the Paperwork Reduction Act and the Regulatory Flexibility Act, require agencies to take into account the regulatory impact of its proposed rules on private industry, especially small businesses (which make up most of the trucking sector). The Data Quality Act requires peer review, which CSA lacks. In FMCSA’s case, the agency is constrained to follow the National Transportation Policy, which is set in law. NTP requires the agencies of DOT to ensure that every rule and regulation balances safety, efficiency and competition. In CSA’s case, none of this ever occurred. Second, CSA’s arbitrary nature and foundation of sand really appear when you look into the facts. The agency only has enough roadside inspection data to rate 92,000 of the 770,000 federally regulated motor carriers in even one BASIC. More than half of the 12 percent of the industry that’s rated is over the agency’s arbitrary trigger level that saddles a carrier with an “alert” in at least one CSA BASIC. In many instances, what data CSA uses has little, if anything, to do with actual safety. For example, the “driver fitness” BASIC only rates 3.5 percent of the industry. Most points in this category are assigned for drivers not having their medical cards on them at an inspection, not for driving with some disqualifying medical condition. One carrier crossed the limbo bar because of a driver operating his vehicle with a suspended driver’s license. His license was suspended for failure to pay child support. In the “vehicle maintenance” BASIC, more than half of the CSA points come from trailer lights burning out, brake adjustments and tire tread depth. None of these factors has a proven correlation with safe vehicle operation. In the “unsafe driver” BASIC, most CSA points accrue from truck drivers getting speed warnings and tickets. Geographic bias tilts the playing field, though, because about half of such speed-related citations are issued in just five Midwestern states. Their “probable cause” state laws mean police there must issue some citation in order to conduct roadside inspections. Thus, Indiana wrote more than 53 percent of all the speed warnings truckers received in 2011 for allegedly driving 1-5 miles per hour over the speed limit. Much of what comprises the “fatigued driver” BASIC is really logbook, paperwork violations — “form and manner” errors — where drivers didn’t strictly comply with the hours-of-service diktats that only a bureaucrat could love. And consider that when inspectors find nothing to mark down a driver or truck for, most inspectors refuse to issue a clean report. Thus, the data that constitute CSA scores are virtually always negative with little positive data to give balance. Further, because CSA ratings use subjective, faulty methods and incomplete, biased data, carriers that pass FMCSA’s safety fitness audits, which are objective, with flying colors may well have BASICs in which they are under “alert.” And the subjective nature of the system makes it where carrier BASIC scores can swing wildly. One carrier reportedly saw its “unsafe driving” BASIC whipsaw from 47 percent to 89 percent the same day. Also, even if a carrier fires a driver who’s a safety risk, such actions won’t reflect in its CSA scores for many months. In other words, fit and safe carriers don’t control their own destiny under CSA. They can watch their BASICs flitter all over the place but have no effective or fair recourse to get their scores settled in the safe zone. That’s because CSA grades carrier safety like Dancing With the Stars grades dancers. No matter how well everyone may dance, at the end of the night, somebody’s going home. Only in the case of misbranded motor carriers, it means the arbitrary destruction of businesses, jobs, and freight capacity. Salt in the wounds that CSA is inflicting comes from reality checks that the FMCSA ignores. On the objective criteria of accidents per million miles and accidents per power unit (tractor that pulls the trailer), Wells Fargo scrutinized CSA. This objective assessor found little or no connection between a carrier’s CSA BASICs for “unsafe driving,” “fatigued driving” or “driver fitness” and accidents per million miles driven or accidents per power unit. Wells Fargo concluded that CSA scores are “misleading.” More salt-grinding comes from the absolute fact that accidents and deaths involving commercial motor vehicles keep falling to historic lows. DOT’s own data show that, objectively looking at safety, the number of accidents and fatalities per million miles driven have steadily dipped to record levels. Also, FMCSA’s advisory committee found fault with CSA. Its members couldn’t say with any confidence that CSA scores relate to carrier crash probability. This group determined that the agency needs more data to make sure SMS methodology employs science instead of intuition or experts’ opinions. Third, CSA is hurting the industry. Trucking companies are getting tarred by an unproven, subjective system at a time the industry has achieved some of the safest records ever. Ultimately, what hurts trucking and shipping hurts consumers, because so much of our economy relies on the distribution system of shippers, brokers, carriers, logistics partners, expediters, and truckers. Trucks play a central role in getting groceries to your local grocery shelves, medicine to your pharmacy, furniture to your department store, etc. A survey of shippers by Morgan Stanley found 55 percent of shippers saying they won’t use a carrier with even one CSA “alert.” The FMCSA website now states that carriers not rated or with an “alert” might be considered a safety risk. This despite the fact the agency is well aware of CSA’s shortcomings and the concerns industry has raised. The Department of Defense has begun relying on CSA, and long-time, safe carriers are losing business hauling goods for DOD. As a number of shippers and brokers, including large retailers, factor CSA into their carrier selection, they are opening themselves up to legal liability. Shippers and brokers that use CSA as part of their own, ad hoc selection criteria now face vicarious liability and negligent selection lawsuits. In other words, rather than keeping the onus on the agency to be the sole determiner of carrier fitness, the shipping public exposes itself to liability lawsuits under state law. It should be enough for the shipping public to compete carriers on rates, routes and services. Safety should not become a competitive matter in this picture. It becoming such subjects the shipping public to liability. This scenario with CSA is much like consumers being forced to do their own inspections of jet airplanes, pilots and air carriers to determine if they are safe enough to fly on, rather than have confidence in the Federal Aviation Administration’s determination that an airline is a fit air carrier. In conclusion, as CSA blackballs perfectly safe and fit motor carriers, thousands of companies, especially small businesses, lose business from a frightened shipping public. This risks loss of jobs at trucking companies and brokerages. The loss of capacity will lead to higher freight rates. Competition suffers. All this pushes consumer prices higher. It could force a tenth of all truck drivers out of the driver pool, at a time when the trucking industry is hiring. Meanwhile, plaintiffs’ lawyers smell blood and launch new rounds of liability suits. This isn’t a situation that ends pretty. While Congress looks at transportation reauthorization, it should block FMCSA from publicizing CSA scores. It should require FMCSA to fulfill its legal requirements of putting CSA through the complete rulemaking process. Further, Congress should require the agency to use only objective measures to assess carrier safety, making absolutely demonstrable correlation of any safety measurement with carrier accidents and fatalities per million miles driven the only acceptable standard. It should force FMCSA to own up to its responsibility as the sole determiner of carrier safety fitness. And Congress should give federal preemption to protect anyone in the industry who relies on the agency’s carrier fitness determination for carrier selection. That would save jobs, promote the economy and restore certainty to the shipping and trucking community.