What a great movie! And what a great analogy of what FMCSA seems to be attempting to do with regurgitating up CSA data in the form of the new proposed Safety Fitness Determination.
For those that haven’t heard, FMCSA has proposed a new rule to replace the existing SafeStat system that is currently used to rate carriers (FMCSA Issues Proposed Safety Fitness Determination Rule). The existing rule, which primarily relies on on-site investigations of carriers and some roadside data, has a three-tiered rating of Satisfactory, Conditional and Unsatisfactory. Because the system relies on on-site Compliance Reviews, and limited resources of FMCSA, it is difficult to keep up in rating carriers. And FMCSA has come under fire lately for some carriers who should have been put out of service that caused accidents.
So in their infinite wisdom, FMCSA has decided to propose a new rule that would simply rate carriers as Fit or Unfit and do away with on-site reviews. Sounds easy enough. The problem is the new system proposes to use raw data accumulated by the CSA system, a system we all know is flawed to say the least and doesn’t necessarily correlate with an increase in crashes. Keeping it at its simplest, a carrier could be rated Unfit by failing two or more BASIC scores (being in the worst 1% of carriers for Driver Fitness, Vehicle Maintenance and HazMat Compliance). But in order to be rated to begin with, a carrier has to have enough roadside data. FMCSA touts that this new system will allow them to assess and rate more carriers (upwards of 75,000 a month) than they do now (15,000 a year).
Here is where it gets a little dicey…Vigillo, a company that monitors CSA scores for carriers, looked at this and found some interesting issues (Doing the math: CSA doomed, fitness proposal useless). Under FMCSA’s proposed rule, Vigillo found that only 51,000 carriers are eligible to be rated, compared to 98,000 trucking companies with CSA scores, from a total population of 1.6 million in DOT’s April 2016 database.
Of those 51,000 eligible carriers that could be rated under the new system…only 67 of them would be declared Unfit! Do the math…51,000 carriers eligible to be rated (because they have enough data), 67 of which are unfit = 1,550,000 carries unrated.
I attended a great webinar on Safety Ratings last week that was put on by Frederic Marcinak with Smith Moore and Leatherwood. Terrific job! Frederic pointed out some pretty basic pros and cons to the new system:
- Pros: Elimination of Condition Ratings; Not compared to peer carriers as in SMS; Accident evaluated based on preventability
- Cons: Continued reliance on CSA scores
Vigillo concluded that while the proposed system might seem fine, without CSA or a meaningful safety rating (remember, 1.5 million don’t have enough data to be rated), anyone interested in evaluating a carrier (shipper, broker, insurance, etc.) has to look to the raw data in CSA, data which we know is flawed, comparing one carrier to another.
And this, Vigillo concludes, “is children playing with dynamite. If you don’t understand the math behind the measures, they are completely incomparable.”
I feel like the above speaks for itself. But here is what is not said that concerns me…even less learned than shippers, carriers, brokers, trucking insurance, etc., on this stuff are jurors and judges. Plaintiff’s attorneys have begun an all out assault on trucking. And they use this very data to tell a story that trucking companies are not safe. They instill fear in jurors to think “well that could have been me or my family member”. And when jurors are scared of a company that is “unsafe”, they hit us hard. Really hard. We are the next big pockets and we are just beginning to scratch the surface, I think, of where plaintiffs go from here to attack us.
We have to know this, understand this, and be prepared to defend it. I’ll steal the words from Vigillo’s CEO to conclude this post: “This is probably the most important thing that I’ll leave you with. If you don’t understand how to talk about the BASIC measures, they’re going to use them against you.”