Looking Both Ways

Coming Soon – New Safety Fitness Determination (SFD)

By John Mueller, CDS, COSS
Posted Feb 10th 2016 5:19PM

FMCSA not playing by their own rules.

This post of Looking Both Ways asks FMCSA to look both ways before issuing a pending ruling that could give life to a new Safety Fitness Determination or SFD. SFD is that rating bestowed onto motor carriers – Satisfactory, Conditional or Unsatisfactory. Under the proposed rule there will just one rating issued to Motor Carriers - a rating of "Unfit". Those carriers without a rating will be assumed to be "safe". How will a new SFD affect drivers and carriers? Read on - you'll get educated and probably want a seat on the bandwagon.

The goal of FMCSA is to reduce highway deaths and injuries. That is a great thing. The trucking industry as a whole, including all drivers and motor carriers, want to operate safely without accidents. We are surely not the monsters depicted by plaintiff's attorneys in court after a car vs. truck crash. It is fairly common knowledge that 80 some percent of car vs. truck accidents are the fault of the car operator – not the professional driver operating the Commercial Motor Vehicle. In most instances the true root cause of car vs. truck crashes lies with the operator of the car. That is a fact. If your goal (FMCSA) is to greatly reduce highway deaths and accidents, to have the greatest immediate impact with the best results it only makes sense to address the true root cause. Gosh, wouldn't it be swell if law enforcement enforced traffic laws on operators of cars as intensely as CMV's? Let's look at what FMCSA is up to.

The FAST Act outlined particular steps to be followed by FMCSA prior to issuing a new Safety Fitness Determination. Certain studies and protocol are mandated to correct or justify data within the flawed CSA system. FMCSA is determined to incorporate data from the CSA into their newly proposed SFD without fixing the flawed CSA system. FMCSA is not adhering to the rules. Following is a letter written by Hank Seaton addressed to The Honorable Deb Fisher. Mr. Seaton represents a number of smaller trucking associations including The Expedite Association of North America or TEANA. Hank works tirelessly to protect the interests of the small motor carrier and drivers. The letter:

February 3, 2016

The Honorable Deb Fischer

Chairman, Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security Committee on Commerce, Science and Transportation

U.S. Senate
454 Russell Senate Office Building
Washington, DC 201510

Fax: 202-228-1325

VIA FACSIMILE

RE: Safety fitness determination NPRM and Scott Darling's nomination hearing

Dear Chairman Fischer:

The trade associations listed at the end of this letter once again thank you for your leadership in reforming the Federal Motor Carrier Safety Administration's regulation and enforcement in general and the agency's Compliance, Safety, Accountability (CSA) program and Safety Measurement System (SMS) methodology in particular. The provisions in Fixing America's Surface Transportation (FAST) Act forcing FMCSA to pull down percentile scores and golden triangles from public websites pending a thorough reform of SMS protects tens of thousands of our nation's motor carriers from arbitrary and unfair branding as unsafe based on extremely flawed metrics.

We are writing today in response to comments made by FMCSA Administrator- designate T.F. Scott Darling, III, during the nomination hearing you chaired on January 20, 2016. We note that under your order the hearing record remains open for two weeks beyond the live hearing, and we believe this represents an important opportunity to elicit more complete information about FMCSA's carrier safety fitness determination (SFD) notice of proposed rulemaking (NPRM), which was released January 15 and published formally on January 21.

The SFD NPRM is premature

At the outset, we reiterate and elaborate on our objections stated in a January 12 letter to you and other key Congressional leaders to the very issuance of the NPRM. FMCSA granted itself a questionable waiver from the requirement in Section 5202 of the FAST Act that the agency either issue an advance notice of proposed rulemaking (ANPRM) or engage in negotiated rulemaking prior to promulgating a major rule.

The agency posted its regulatory evaluation on the NPRM in the public docket on January 22. At first impression, it does not appear that the brief 42-page document provides the rigorous regulatory impact analysis that Congress intended in Section 5202 of the FAST Act.

However, it is absolutely clear that FMCSA's SFD rule would violate Section 5221 of the FAST Act because it "relates to the CSA program, including the SMS or data analysis under the SMS." As we noted in our January 12 letter, the FAST Act requires FMCSA to consider in any such rulemaking the agency's corrective action plan – a plan that would reflect reforms identified by the National Academies following a study that is expected to take 18 months and certification by the Department of Transportation Inspector General.

The NPRM confirmed our expectations that FMCSA's "new" program is based squarely on and intertwined with CSA and SMS. Motor carriers would be targeted – and in some cases directly rated – with SMS methodology using the same Behavior Analysis and Safety Improvement Categories (BASICs). The violation severity weights FMCSA proposes to use (Appendix B Violation Severity Tables, see Federal Register, January 21, 2016, page 3617) are the same as those in the current SMS methodology.

FMCSA makes no effort to hide the fact that its SFD NPRM fundamentally relies on CSA/SMS: "It is important to note that while the relative percentiles in SMS are not used in making Safety Fitness Determinations under this NPRM, the same data are used" (see Federal Register, January 21, 2016, page 3564).

Rather than take to heart Congress's broad-based concerns about CSA and SMS, the agency hides behind the technical point that the NPRM complies with Section 5223(b) of the FAST Act because SFDs are not based on SMS alerts or relative percentiles. Even this claim is not necessarily accurate because the fixed failure standards for proposed ratings based on on-road data alone are calculated using BASICs percentiles. Section 5223(b) arguably is broader than FMCSA's interpretation:

Information regarding (emphasis added) alerts and the relative percentile for each BASIC developed under the CSA program may not be used for safety fitness determinations until the Inspector General of the Department makes the certification under subsection (a).

Is a fixed failure standard based on a relative percentile in each BASIC "information regarding...the relative percentile for each BASIC"? Given Congress's fundamental concerns about SMS – well beyond alerts and relative percentiles per se – we believe it is.

We are just beginning to analyze the NPRM, but we already have identified a number of serious concerns about inequitable treatment, due process and more. We certainly will share those concerns with your office once our analysis is complete.

Mr. Darling's hearing responses were incomplete

We very much appreciate your focus on this important issue during Mr. Darling's confirmation hearing. However, as you can see from just the sentence from the NPRM quoted above, your exchanges with Mr. Darling did not really elicit the information you wanted. Attached as Exhibit A is the complete transcript of your exchange with Mr. Darling related to the SFD NPRM.

You had asked Mr. Darling whether the NPRM was "going to include CSA-related data" and whether the flawed data was "going to be used in any way this new rulemaking," but his responses focused on the argument that SFDs would not be based on SMS alerts or relative percentiles.

We understand and appreciate that you were asking Mr. Darling a broader, more important question. SMS data and methodology are thoroughly integrated into the agency's NPRM, which is clearly not what you and other transportation leaders in Congress intended.

Mr. Darling's comments regarding the NPRM's threshold of 11 inspections with violations in a BASIC for conducting a data-only review also require clarification. First, the violations are, indeed, "flawed data from the CSA" because SMS methodology is the very core of the NPRM. It appears that Mr. Darling interpreted your question as applying only to Section 5223(b) even though you really were asking a more fundamental question.

Moreover, Mr. Darling himself unintentionally raised a serious question about FMCSA's proposal. He acknowledged GAO's recommendations that FMCSA use 20 violations as a threshold for analyzing carriers under SMS, but he simply states that "we are going to use 11, which will provide carriers with enough information to make a safety fitness determination assessment for a carrier." Mr. Darling doesn't explain why FMCSA chose 11 inspections as a threshold, which is hardly surprising since FMCSA doesn't explain it in the NPRM either. To us, the choice of 11 violations appears arbitrary.

Again, we will outline many more flaws in FMCSA's NPRM by the end of the unreasonably short 60-day comment period, but we wanted to highlight specific concerns raised during Mr. Darling's confirmation hearing while there is still time to address them.

Thank you.

Respectfully submitted,

Scott Klever, President – Air & Expedited Motor Carrier Association
David Purvis, American Home Furnishings Alliance (AHFA)
Specialized Furniture Carriers
International Casual Furnishings Association
Mike Pettrey, President- The Expedite Association of North America
David Owen, President- National Association of Small Trucking Companies
William Schroeder – Auto Haulers Association of America
William D. Bierman, Executive Director – Transportation Loss Prevention & Security Association
Tom Sanderson – Alliance for Safe, Efficient and Competitive Truck Transportation – ASECTT
David Owen, President – National Association of Small Trucking Companies – NASTC
Joe "R" Rajkovacz – Western States Trucking Association

The following is the appendix or exhibit which was attached to the letter above:

Exhibit A – Exchange between Sen. Deb Fischer and Scott Darling regarding SFD NPRM during January 20, 2016 confirmation hearing:

Sen. Fischer:

It seems like you have been moving forward rather vigorously in the past several weeks to issue some rulemakings on the ELDs and the SFD proposed rule. Why are you moving forward on that rulemaking when we've already given you so much to do with the passage of that bipartisan FAST Act, and we really worked together on that worked very hard to find consensus so that we could see some changes made.

Mr. Darling:

Those two rules that you mentioned have been in the works for 10 years. They were in the worksand production prior to me even showing up at FMCSA. As we go through, we were at a stage where we got approval from the Office of Management and Budget to move forward, and the

ELD rule was mandated and we wanted to make sure we completed that mandate.

Sen. Fischer:

As you continue to move forward on the rulemaking and we look at the SFD rule that is coming out, it is my understanding that it is going to include CSA‐related data. Is that correct?

Mr. Darling:

The SFD rule doesn't include the two CSA data points that the FAST Act doesn't allow us to use prohibits us from using which are the alerts and the relative percentages. The SFD is predicated on a fixed- measure formula the carriers will have to meet, and it uses that information against the carrier itself, not against other carriers. So the carrier is actually measured against itself ‐‐ its own performance.

Sen. Fischer:

So the stakeholders really shouldn't be concerned, then, that data that has been deemed flawed by the GAO is going to be used in any way this new rulemaking? Are you totally discounting that so we don't have issues with that flawed data in the future?

Mr. Darling:

The data that is being used is data that is collected against the carrier itself.

Sen. Fischer:

Is it true the CSA process, though, that was deemed flawed by the GAO is still going to be collected that way and used against stakeholders?

Mr. Darling:

The GAO said that ‐‐ The safety fitness determination rule will use 11 inspections before a carrier is rated. The GAO said, they said 20. But they said this was just an illustration and the 6 number ‐ we don't know what the number is. But we are going to use 11, which will provide carriers with enough information to make a safety fitness determination assessment for a carrier.

Sen. Fischer:

Will one of those 11 be that flawed data from the CSA?

Mr. Darling:

No.

Sen. Fischer:

Good to hear. Thank you.

FMCSA and the government legislate many rules and regulations for drivers and carriers to follow. The government audits and fines carriers and drivers at any chance when violations are discovered. Our congress even sets forth rules and regulations for their agencies (like FMCSA) to follow. I am amazed that FMCSA feels exempt from having to play by the (their) rules? I think a full blown compliance review is in order for FMCSA by the general public. Of course we should enter this audit fully seeking to issue FMCSA a "Conditional" rating without any due process of law. Oops, forgot – the old Conditional becomes the new Unfit. Perhaps a side order of fines should also be issued to them for their acute and critical violations. There are currently almost a dozen pending ruling on FMCSA's plate for 2016. What will they impose on our industry next?

Disclaimer: This blog is NOT intended to give legal advice, nor be a substitute for any training required by the Regulations.

Till the next blog, Thank you drivers and all industry associates for all you do!. Please be safe!

Click here to read more of my blogs!

John Mueller, CDS, COSS
jmueller@PTLLLC.com
www.PTLLLC.com

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