Tuesday, February 9, 2016

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. 

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