Friday, June 24, 2011

ASECTT Update/Status of SMS Methodology

FMCSA Agrees to Modify Website

In response to a letter from the three Petitioners in NASTC et al. v. FMCSA, the Agency has agreed to increase the size of the disclaimer language on each carrier’s SMS page and voluntarily agreed to otherwise include reference to the disclaimer language at other points on the website. Attached is a copy of the Agency’s response to Petitioners and Petitioners’ letter affirming their acceptance of these changes.

Update on Use of SMS

Unfortunately, vendors attempting to sell SMS monitoring services continue to attempt to create a felt need for their services by suggesting to shippers and brokers that SMS methodology should be used notwithstanding the settlement and the TIA credentialing statement. Continued efforts to disabuse shippers and brokers of this self-serving advice is important.

Scheduling for SMS Rulemaking

Although the Agency advised that the University of Michigan study would be released in May, as of this writing, it has not been published. Agency officials continue to report that a proposed rule will be transmitted to OMB this summer and published for notice or comment in the Fall. The Agency has not disavowed its intent to use SMS methodology to assign safety ratings and the terminology “continue to operate,” “marginal,” and “unfit” are still under consideration.

SMS Methodological Flaws

As SMS methodology is undergoing further study, the methodological flaws earlier pointed out by ASECTT have been confirmed and amplified.

(1) The unsafe driving BASIC seems largely affected by the probable cause state anomaly as carriers report wildly disparate numbers of violations per 100,000 miles in probably cause states versus other states.

(2) Fatigued driving (HOS violations). The assessment of points in this BASIC appears to confirm early assumptions that 50% or more of the points assigned result to form and manner violations which have no direct link to fatigue.

(3) Mechanical violations. It appears that most of the points assigned in this BASIC relate to tires, brakes and running lights, and not to violations which would be deemed serious enough to put a truck out of service.

(4) Crashes. Although this BASIC is not released to the public, crash data under Section 385 is a critical factor. Based upon data submitted by the Agency in response to a FOIA request, though, it appears that only 3.3% of the motor carriers regulated by the Agency or 15,982 carriers are measured in this BASIC.

(5) Driver Fitness. Similarly, this BASIC appears to measure very few carriers. 3.52% of the industry or 17,075 carriers appeared to be in this sampling for March. One sizable carrier operating over 350 trucks reports it was unrated in this BASIC one month and had a score of 80 the next based upon failure of 2 drivers to pay a reinstatement fee to a non-domiciled state. Violations in this BASIC seem to result primarily from drivers failing to have the medical card on their person at the time of an inspection.

Wildly Vacillating Numbers

Carriers report that with no change in their safety profile from month to month, fluctuations of as much as 20% in a single BASIC appears to occur as a result of various anomalies such as the movement from one peer group to another, or the unrelated actions of other members in the peer group. This phenomenon appears to occur most frequently in smaller peer groupings.

As more and more large carriers begin to see wildly fluctuating numbers and the absence of any correlation between compliance and safe operations, the number of our supporters is growing.

There appears to be much work left to be done, though. Because of several unfortunate bus crashes, the Agency has gone so far as to publish a release stating that bus passengers should check the SMS scores of bus companies before each trip.

If, as it appears, the Agency intends to proceed at pace with rulemaking, we will need to provide an organized response challenging both the data and the premise that a competitive ranking of carriers is a fair or acceptable way for measuring safety.

We are heartened by support in Congress for increased oversight of job killing regulations by the FMCSA of which the proposed new safety fitness determination is the poster child.

Henry Seaton

FMCSA Response 5-27-11

Response to FMCSA 6-8-11

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