asectt mcsac comments

8/6/2019 ASECTT MCSAC Comments

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July 28, 2011

Comments to the Motor Carrier Safety Advisory Committee

COMES NOW, the Alliance for Safe, Efficient and Competitive Truck Transportation

(ASECTT) the undersigned and files this its comments to the Motor Carrier SafetyAdvisory Commitftee (MCSAC) based upon the Notice which appeared in TransportTopics on July 4, 2011 and states as follows:

Petitioner’s Interest

The Alliance for Safe, Efficient and Competitive Truck Transportation is a nonprofitcorporation formed for the purpose of ensuring a balanced regulatory approach tohighway safety, ensuring that efficiency and competition is not sacrificed due to over-regulation which has no demonstrable safety benefit.

ASECTT is composed of interested carriers, brokers, shippers and allied industry

participants which are committed to working with the U.S. DOT and the FMCSA toenhance highway safety while confirming that as the regulating body, the Federal

Government certifies carriers as safe to operate on the nation’s roadways, affordingregulated carriers due process and the shipping public certainty that carriers certified as

safe by the Agency may be chosen for use based upon routes, rates and services, andwithout vicarious liability concerns under differing and inconsistent state law principles.

ASECTT calls for a critical analysis of the FMCSA’s so-called CSA 2010/SMSmethodology prior to its implementation in accordance with the statutory requirementsof the Administrative Procedure Act. Its members are concerned that while SMSmethodology is a work in progress, portions of it have been released to the publicwithout proper vetting, including but not limited to, the most basic scientific and

statistical studies necessary to justify a nexus between the compliance violationsmeasured in each of the so-called 7 BASICs and crash predictability.

ASECTT questions the viability of replacing objective safety standards applied aftercompliance reviews with percentile rankings and artificial peer groups as a satisfactorysafety rating methodology.

ASECTT questions whether any system which arbitrarily concludes that a significantportion of the motor carrier industry should be labeled as marginal should be affirmed,particularly in light of the effect of SMS methodology on efficiency and competition and job creation.

ASECTT is committed to a thoughtful and critical review of SMS methodology throughthe administrative process, in the court of public opinion and through Congressionaloversight of the Agency’s mandate under the National Transportation Policy with a view

to ensuring that the benefits of heightened competition envisioned by deregulation of the motor carrier industry are not damaged as an unintended consequence of anunproven activist safety methodology.



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Background

Attached hereto as Appendix A is the article which appeared in Transport Topics towhich this official comment is directed. Therein, it is reported that the MCSAC has beentasked by the Agency “to make sure that the points the Agency assigns to dozens of

violations under the [CSA] program are fairly weighted so they are an accuratepredictor of carriers’ crash risk. The committee is expected to report back to theFMCSA by the end of August.”

MCSAC has been asked by the Agency “not to reinvent the wheel” but to “redefine theCSA’s controversial carrier safety measurement system and help the agency gainindustry support for the system that went into operation in December.”

Petitioners submit the MCSAC has been charged with an impossible task. Petitionerssubmit that SMS methodology is systemically flawed and that the MCSAC cannot becharged with designing an effective safety fitness determination system in two months

simply by removing the most obvious warts in the severity weighting schema.

Adjusting Severity Weightings

MCSAC has been tasked with the impossible job of adjusting severity weightings to

reflect carrier safety fitness. The long awaited University of Michigan Study which theAgency has touted from the outset as the basis for the alleged safety compliance/crashcausation link has yet to be released and there is no scientific predicate or basis for

MCSAC to make informed decisions.

Some things are obvious, though, even to the untutored. To the Agency’s credit itrecognizes that, notwithstanding its “sophisticated” “statistical regression computeranalysis and expert review,” its violation weighting system remains untethered from

any realistic measure of safety. After working on violations and algorithms for twoyears, the Agency made 800 changes last August to its safety weighting procedures.Scores fluctuated wildly and upon public release of the methodology in December, theflaws in the weighting mechanism have become readily apparent and include:

1. Identifying Crash Preventability. MCSAC cannot correct this glaring error.The Agency’s attempt to use DataQ is not feasible given its budget because the obviousnecessity of calling balls and strikes, with due process, involving hundreds of thousandsof accidents yearly. How do you avoid crippling overhead and distinguish betweenpreventable and non-preventable crashes while establishing due process?

2. Measuring Paperwork Compliance, Not Fatigue. In the so-called fatigued

driving BASIC, half of the accumulated points arise from form and manner violations inpreparing paper logs resulting in improper comparisons of carriers with EOBRs andcarriers with manual logs. Is MCSAC to recommend that form and manner violations be

excluded from the Agency’s algorithms with respect to fatigued driving, bothprospectively and retroactively?



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3. Enforcement Anomalies in the Unsafe Driving BASIC. In the unsafedriving BASIC, state enforcement anomalies and the probable cause effect results inimproper peer group comparisons which cannot be eliminated by merely restructuringthe points assigned for speeding. Ameliorating the severity of speed warnings does notaddress the inequity of grouping carriers in probable cause states with carriers in jurisdictions which write ten times fewer tickets.

4. Absence of Driver Qualification Data. This BASIC presents wild swings incarrier peer group rankings and is predicated largely on the failure of a driver to have amedical card on his person - hardly an accident causing event. CVSA is scheduled tovote on making failure to have a medical card in a driver’s possession an out of serviceevent! Is failure to have a medical card in a driver’s possession, if the driver ismedically qualified, a measure of crash likelihood?

5. Severity Weighting in Vehicle Maintenance Does Not Reflect Critical SafetyIssues. In the vehicle maintenance BASIC, non-out of service violations are significantpoint accumulators. On what basis is MCSAC to determine whether missing light bulbs

on trailer running lights cause crashes?

Systemic Flaws Which MCSAC Cannot Address

Petitioners submit that SMS methodology is systemically flawed and cannot be

remedied by cosmetic changes to severity ratings within artificially created BASICs.Among the systemic flaws in SMS methodology, MCSAC cannot address the following:

(1) Artificial Peer Groups. Carriers are placed into arbitrarily created peergroups for the purposes of ranking. No correlation or justification for arbitrarilygrouping carriers by size, number of miles, or number of incidents for purposes of percentile rankings has been shown or justified. (In artificially creating five separatepeer groups for carriers with 30% straight trucks in August, many OTR carrier scores

were substantially reduced while regrouped OTR carriers placed in the local “nonlogging” class saw their scores jump over the limbo bars without a single additionalinfraction.)

Petitioners submit that safety fitness determinations cannot be made by “gradingon a curve” using a statistical system which arbitrarily assigns unsatisfactory or “marginal” safety ratings to carriers regardless of their individual performance orimprovement. Petitioners submit that such a system can garner neither industry norcourt approbation.

(2) Artificially Constructed Limbo Bars. SMS methodology is based upon 7

defined BASICs, none of which has been shown to have any substantial correlation tosafety. Furthermore, artificial enforcement thresholds based upon percentile rankingshave been established which have no proven correlation to safety. It is capricious on

its face to conclude that a carrier at a 66 percentile ranking in a given BASIC should berated as “marginal” while a carrier rated at 64 percentile in the same BASIC is given a

“continue to operate” rating.



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(3) Due Process Concerns. SMS methodology is based upon citations, notconvictions, and upon total number of crashes without reference to preventability. Inorder to assure data accuracy under the Data Quality Act, it is imperative that there bea uniform administrative adjudication process if unscrubbed violations are to ultimatelyresult in determining whether a carrier can continue to operate. DataQ does notaccomplish this result with consistency or predictability. In some instances,

adjudication of citations are not even considered by state officials.

(4) State Law Enforcement Anomalies. Although the harshness of state lawenforcement anomalies may be ameliorated by downgrading warnings and citations, nosystem which assigns safety ratings based on comparing carriers which operate underdifferent state regimes can be justified as equal treatment under the law.

(5) Profiling and Peer Group Creep. In order to obtain sufficient data to rankmore and more carriers and to selectively target carriers for increased inspections usingSMS, the Agency has targeted carriers labeled as “bad actors” under its unprovenmethodology for additional inspections. These additional inspections of carriers shifts

carriers from one peer group to another, resulting in wild swings in carrier percentile

rankings which have little to do with the actual points accumulated. This systemic flawcannot be ameliorated by changing point allocations.

(6) Insufficient Data. The Agency is charged with measuring and rating

483,000 carriers. SMS measured approximately 97,000 carriers in at least one BASICwhen implemented in December and the numbers for March suggest that the Agencyhas sufficient data to measure at most 19% of the carriers it regulates in any BASIC(vehicle maintenance) and less than 5% of the carriers it regulates in 4 of theremaining BASICs (cargo, driver fitness, crash and substance abuse). See chart atAppendix B. Nothing MCSAC can suggest will address this under-reporting problem orresult in a comprehensive safety analysis for the missing unscored and unmonitoredmotor carriers left out of the SMS system.1

(7) The Law of Large Numbers. An elemental principle of statistics is thatconclusions about general performance trends can only be accurately predicted basedupon a large number of reported incidents. No trend lines are possible under SMSmethodology when predicting carrier performance based upon only a handful of inspections, violations or incidents. Over 95% of the carriers regulated by the FMCSAare small business enterprises operating less than 5 trucks which are inspected only ahandful of times per year. In many of the BASICs there are simply no recordedviolations and a single violation such as the absence of a medical card can result inhuge percentile leaps. The Agency’s own data and the absence of sufficient data tomeasure the vast majority of carriers in the BASIC areas proves that the systemdevised by the Agency is simply statistically inadequate to perform the intended task of

providing a safety rating, much less a statistically accurate one, of all of the half millioncarriers regulated by the FMCSA.

1 The attached scores for John Davis Trucking Company, Inc., the 67 unit DOT authorized

carrier who hit the train in Nevada demonstrates poignantly the inadequacy of the Agency’scollected data. See Appendix C.



APPENDIX A



“Carriers with very low crash frequency can, and do, have BASICs over the threshold,” Gordon told the committee.

“It just doesn’t make sense.”

“Consider that even if a carrier has a low crash rate, customers are looking at other BASICs. Carriers can go for a

year without an inspection and still have BASICs above the threshold.”

Beth Thomas, a senior attorney for regulatory affairs for FedEx Ground, said the package carrier has concerns over

violations not safety- related, such as failure to pay child support or state taxes being listed on a driver’s record.

“These result in driver’s license suspensions for administrative reasons that has nothing to do with the safety

performance of a driver.”

Thomas asked that the committee and FMCSA consider decreasing or eliminating severity weights for such

violations not safety-related.

The committee also was asked to help the agency define the structure that will transmit hours-of-service data from a

handheld wireless electronic logging device via the Internet to a law enforcement officer’s laptop.

Michael Huntley, chief of FMCSA’s vehicle and roadside operations, told the committee that, after meeting with

carriers, law enforcement officers and EOBR suppliers, the agency established that a wireless device would be a

“viable option” for many carriers.

The agency also wants comment from the committee on issues related to the transmission of the data through

telemetric application services, USB connections and the 802.11 wireless local area network.

Randy Mullett, vice president of government relations and public affairs for Con-way Inc., told the committee he was

concerned that an Internet-based system would be costly for carriers that have invested tens of millions of dollars in

Global Positioning System-based EOBRs, rendering those devices “essentially useless.”

The agency is rushing to ensure that EOBR suppliers can provide compliant devices by June 1, 2012, when the

agency plans to publish its final EOBR rule. Nearly all interstate carriers would have three years from the effective

date to comply with the rule, which is designed to enforce hours-of-service compliance.

Parker said the committee plans to come up with the technical specifications by Aug. 29. He said the committee will

hold public meetings on July 11-12 in Alexandria, Va., and a second meeting on Aug. 1-2 at a yet-to-be determined

location.

“There’s a lot to be done,” Parker said.

SA to Examine Severity Weightings of CSA Violations at Roadside I... http://www.ttnews.com/articles/printopt.aspx?story

7/5/2011



TOTAL # OF CARRIERS = 485,00TOTAL # OF CARRIERS = 485,00

COMPOSITE FOR ALL 7COMPOSITE FOR ALL 7 BASICsBASICs

OVER THRESHOLD

51000 = 10.5%

MEASURED

97000 = 20%UNMEASURED

388000 = 80%

97000

51000

388000

0

100000

200000

300000

400000

500000

UNMEASURED MEASURED OVER THRESHOLD UN

52.58%

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Data extrapolated from FMCSA FOIA Response dated March 25, 2



OVER THRESHOLD

38413 = 7.92%

UNMEASURED

391849 =

80.79%

MEASURED

93151 = 19.21%


VEHICLE MAINTENANCEVEHICLE MAINTENANCE

93151

38413

391849

0

100000

200000

300000

400000

500000


41.24%

58

Data extrapolated from FMCSA FOIA Response dated March 25,



OVER THR

27034 =

UNDER

5030MEASURED

77340 = 15.95%

UNMEASURED

407660 =

84.05%


FATIGUE DRIVINGFATIGUE DRIVING

77340

27034

407660

0

100000

200000

300000

400000

500000


34.9

65.0




UNMEASURED

450938 =

92.98%

MEASURED

34062 = 7.02%

UNDER THRESHOLD

22141 = 4.57%


UNSAFE DRIVINGUNSAFE DRIVING

3406211921

450938

0

100000

200000

300000

400000

500000


35

65.0




UNDER THRESHOLD16944 = 3.49%

MEASURED

21180 = 4.37%

UNMEASURED

463820 =

95.63%


CARGOCARGO

211804236

463820

0

100000

200000

300000

400000

500000


80.00%




UNDER THRESHOLD

13660 = 2.82%

MEASURED

17075 = 3.52%UNMEASURED

467925 =

96.48%


DRIVER FITNESSDRIVER FITNESS

17075 3415

467925

0

100000

200000

300000

400000

500000


80.00




OVER T

7413

UNDER TH

8569 =

MEASURED15982 = 3.30%

UNMEASURED

469018 =

96.70%


CRASHCRASH

15982 7413

469018

0

100000

200000

300000

400000

500000


46.3

53.6




MEASURED

2780 = 0.57%

UNDER THRESHOLD

2224 = 0.46%

UNMEASURED

482220 =

99.43%


SUBSTANCE ABUSESUBSTANCE ABUSE

2780 556

482220

0

100000

200000

300000

400000

500000

600000


80.0




APPENDIX C



Vehicle Type Owned Term Leased Trip Leased

Straight Trucks 2

Truck Tractors 50 15

Trailers* 79 20

Hazmat Cargo Tank Trailers*

Hazmat Cargo Tank Trucks

Motor Coach

School Bus 1-8 Passengers*

School Bus 9-15 Passengers

School Bus 16+ Passengers

Mini-Bus 16+ Passengers

Van 1-8 Passengers*

Van 9-15 Passengers

Limousine 1-8 Passengers*

Limousine 9-15 Passengers

Limousine 16+ Passengers

* Indicates power units not used by the Carrier Safety Measurement System when calculating total power units.

USE OF SMS DATA/INFORMATION

The Federal Motor Carrier Safety Administration’s (FMCSA) Safety Management System (SMS) is an automated data system used by FMCSA to monitor motor carrier on-road safety performance. FMCSA analyzes safety performance by grouping carrier data in the SMS into seven Behavioral Analysis and Safety Improvement Categories(BASICs) which are, in turn, used to identify potential safety problems with individual carriers and determine when an enforcement intervention might be appropriate.

The data and BASICs are used by the enforcement community to prioritize investigations and roadside inspections. The SMS data system is not a Safety FitnessDetermination (SFD), is not a Safety Rating pursuant to 49 C.F.R. Part 385, and does not represent FMCSA’s final determination regarding the accuracy of the datacontained in the SMS.

Use of the SMS data system for purposes other than those identified above may produce unintended results and inaccurate conclusions. FMCSA highly recommends thatall motor carriers periodically review the SMS data system and when necessary verify the accuracy of their SMS data through DataQs, an electronic data correctingsystem in which carriers can request a data review. The DataQ system is available online at http://dataqs.fmcsa.dot.gov/ .

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