10 REASONS CARRIERS SHOULD NOT BE BRANDED AS UNDER “ALERT” BASED UPON ARBITRARY STATISTICAL THRESHOLDS

10 REASONS CARRIERS SHOULD NOT BE BRANDED AS UNDER “ALERT” BASED UPON ARBITRARY STATISTICAL THRESHOLDS

Henry E. Seaton, Esq.

The FMCSA knows full well that labeling a carrier as under “Alert” adversely affects a carrier’s ability to operate, as shippers and brokers are forced to bar using carriers so labeled for fear of vicarious liability.

The FMCSA, and only the FMCSA, is charged with the duty of determining fitness to operate and this arbitrary profiling of carriers has been roundly criticized by shippers, brokers and carriers alike. Yet the Agency has continued to profile carriers and make the safety data publicly available, reasoning that doing so allows “… the FMCSA to leverage the support of shippers, insurers, and other interested stakeholders to ensure that motor carriers remain accountable for sustaining safety operations over time.”[1]

Clearly, the FMCSA does not genuinely believe that 57% of the carriers it ranks to operate should be placed out of service or receive an unsatisfactory safety rating and its own data shows that on audit this is not the case. Yet, labeling over half of the effective for-hire motor carriers as under investigation or “Alert” has that unintended consequence as shippers and brokers to protect their own liability interest are now forced to use these artificially constructed thresholds in carrier selection.

Forcing shippers and brokers to second guess the Agency and reduce competition is not what CSA 2010 was intended to do. “CSA 2010 is designed to improve upon FMCSA’s current system used to monitor the safety of carriers … and to take follow-up actions where necessary.”[2]

While responsible motor carriers generally support a progressive intervention system and recognize the need for data accumulation in beginning this process, the Agency should affirmatively disavow CSA (now SMS) scores and percentiles as a proper basis for broker or shipper inquiry. The labeling of a carrier under “Alert” is simply an artificial construct for which there is no scientific or legal authority.

Here are 10 of the numerous reasons why:

1. Highway crashes are down 32% over the past decade and labeling 25% of the industry by category and peer group as marginal or deficient is without scientific or legal warrant.

2. The fact that the FMCSA each year finds less than 5,000 carriers are unfit to operate after audit belies any argument that 175,000 carriers are statistically deficient or that under CSA 2010 that over 400,000 carriers are marginal.

3. Carrier at fault crash data is the gold standard for measuring carrier performance and neither SafeStat nor CSA 2010 measures this matrix. (Recordable accidents are tracked regardless of who caused them.)

4. CSA 2010 data is based on unscrubbed data including citations and warnings which the carrier has little or no chance of correcting.

5. Data collected incorporates inconsistent state enforcement practices – statistics are compiled comparing out of service violations against number of audits and many inspectors fail to log good audits in the system – state enforcement and scale house anomalies can affect carrier violations by a multiple of four.[3]

6. Publication of ISP values results in profiling and more violations for carriers with high scores.

7. The weighted system of assigning greater points to securement and paperwork violations skews safety performance standard.

8. CSA 2010 data considers driver experience as a safety performance factor.

9. The key “Fatigued Driving” BASIC is biased to over-the-road carrier who must complete paper log to benefit of local “100 mile exemption” or EOBR equipped drivers and results in rating carriers as “marginal” or “deficient” based on paperwork which has no nexus to fatigue.

10. The law of large numbers. Small carriers are more susceptible to statistical anomalies as percentage deviations can fluctuate widely based upon random instances. (For instance, in a peer group of 1 to 10 trucks, one or two bad inspections over the norm in any basic area can result in a high percentile ranking.)

In sum, CSA 2010 is not fit for use as a stand alone measure of carrier safety and the FMCSA’s decision to publish the data branding a majority of ranked carriers as under “Alert” has a substantial adverse affect on the efficient and competitive transportation system the Agency is required to foster. See 49 U.S.C. '13101. It exacerbates the vicarious liability concerns of the broker and shipper community and threatens small carriers.

For the reasons stated above, the FMCSA should affirm its non-delegable safety duty and acknowledge that publication of SMS data is not consistent with the Office of Management and Budget’s “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility and Integrity of Information Disseminated by Federal Agencies; Republication,” 67 FR 8452 (February 22, 2002).

The Agency should make clear that its final determination of carrier fitness has a preemptive effect. Commercial shippers and brokers, like any other user of a federally regulated mode of transportation – bus, plane or train included - should be allowed to rely upon the regulatory agency’s ultimate determination of safety fitness without fear of vicarious liability.

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February 8, 2011

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[1] Letter from FMCSA Administrator Ferro to President, Minnesota Trucking Association, June 8, 2010.

[2] “Improving Commercial Vehicle Safety,” UMTRI Research Review, p. 1.

[3] ATA Testimony to House Committee, June 23, 2010.