FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION U.S. DEPARTMENT OF TRANSPORTATION DOCKET # FMCSA

Transcription

1 FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION U.S. DEPARTMENT OF TRANSPORTATION DOCKET # FMCSA IMPROVEMENTS TO THE COMPLAINCE, SAFETY, ACCOUNTABILITY (CSA) MOTOR CARRIER SAFETY MEASUREMENT SYSTEM (SMS) SUBMITTED BY: American Trucking Associations, Inc. 950 North Glebe Road Suite 210 Arlington, VA July 30, 2012 Primary Contact: Rob Abbott Vice President Safety Policy (703) I. INTRODUCTION The American Trucking Associations, Inc. (ATA) submits the following comments to the Federal Motor Carrier Safety Administration s (FMCSA) planned changes to the motor carrier Safety Measurement System (SMS). 1 ATA is the national trade association representing the American trucking industry. 2 ATA is vitally interested in matters affecting the nation s trucking fleet, including FMCSA s Compliance, Safety, Accountability (CSA) program and, more specifically, the SMS methodology. II. SUMMARY OF ATA S POSITION Before offering ATA s views on the planned methodology changes, it is important to point out that ATA supports this new approach to making adjustments to the Safety Measurement System (SMS) methodology. Previously, FMCSA occasionally made changes to the methodology with no prior explanation or announcement. As a result, carriers were surprised by abrupt and sometimes dramatic adjustments to their SMS scores that were not the result of a corresponding change in their safety performance. In making these more sudden changes, FMCSA did not have the benefit of completely understanding the impact on the industry and the system s subsequent capability to identify unsafe carriers Federal Register at ATA is a united federation of motor carriers, state trucking associations, and national trucking conferences created to promote and protect the interests of the trucking industry. Its membership includes more than 2,000 trucking companies and industry suppliers of equipment and services. Directly and indirectly through its affiliated organizations, ATA encompasses over 34,000 companies and every type and class of motor carrier operation. 1

2 While this approach to making methodology changes is better, it can be further improved. Specifically, greater visibility to the analysis and data upon which FMCSA develops changes would be useful. Not only would it help generate more informed comments, but it would help stave off skepticism of the program s effectiveness and impact. For instance, in the subject notice the agency made several references to effectiveness testing and analysis FMCSA performed to arrive at the planned changes, but did not initially make such analysis publicly available. Only after subsequent requests for these analyses did FMCSA eventually create and release a new document outlining the agency s data supporting the proposed changes. Crash Accountability The subject notice also explains that FMCSA is conducting additional research and analysis to determine the feasibility of different weighting for crashes in SMS based on an objective set of criteria. Of course, the agency had developed a methodology for evaluating preventability and accountability and had planned to place it in the subject notice, but suddenly reversed course just prior to publication. This came as a surprise to the industry because, over two full years ago, the Administrator confirmed that FMCSA had tested the ability of the agency to make accountability determinations based on police accident reports (PARs). Later, FMCSA staff acknowledged that the study confirmed the agency s ability to make accountability determinations in over 90 percent of the instances tested. Now, two years later, FMCSA contends it must conduct additional research and analysis on the feasibility of using PARs for this purpose. ATA appreciates the seriousness with which FMCSA is addressing this issue, but questions the lengthy timeframe for completing this additional research. At a minimum, FMCSA should establish an interim process to remove from consideration in SMS scoring those crashes in which it is plainly evident (with a great deal of likelihood) that the crash was not preventable on the part of the truck driver. ATA is also puzzled by FMCSA s intention to conduct a cost/benefit analysis on this component of the SMS methodology. FMCSA has not indicated that such an analysis is a factor in making other changes to the methodology, leaving ATA to wonder why the test is being applied in this instance. Is it FMCSA s intent to conduct a cost/benefit analysis on all future methodology changes? Of interest is that the subject notice discusses proper weighting of crashes in SMS. 3 This statement suggests that all crashes should bear some weight even those that were entirely non-preventable. For example, a crash involving an unoccupied truck that is legally and properly parked might hold some weight in the system. ATA believes this approach is illogical and inappropriate. The intent of weighting crashes and violations is to help FMCSA prioritize carriers for intervention. However, crashes like the one described above do nothing to suggest that a carrier is any more worthy of scrutiny than another. Conversely, because scores are a reflection of comparative performance, by assigning some weight to crashes like this one the agency would be mitigating the impact of the weight assigned to crashes caused by motor carriers. Also, a carrier struck while parked would erroneously be labeled as less safe than a carrier that had not been involved in a crash at all (assigned no points). Some have contended that FMCSA s approach is appropriate since it follows the insurance industry s practice of establishing rates based on frequency, not solely responsibility. In other words, insured motorists with a history of crash involvement pay higher rates, even if the 3 77 Federal Register at

3 crashes were not their responsibility. Those who contend it is appropriate for FMCSA to follow this practice say it is an indicator that crash involvement, regardless of fault, is a measure of safety. ATA contacted a number of insurance companies to verify that this is, in fact, industry practice - and why. Though crash involved motorists often pay higher rates regardless of fault, it is not because they are perceived by their insurers as less safe. Instead, it is a measure of exposure. Just as FMCSA has found, insurers often find that past crash involvement is a good predictor of future crash involvement. However, this does not mean these motorists are more likely to be at fault in a crash, but rather that they operate in an environment where there is elevated exposure. Insurers may raise rates for these motorists as a financial protection since they realize that some not-at-fault accident claims are not recoverable from the responsible party (e.g., when struck by an uninsured motorist). The subject notice points out that FMCSA s intent is to identify carriers with the greatest risk of future crashes. ATA believes this is a fundamentally flawed objective. Instead, the agency should seek out motor carriers with the greatest risk of causing crashes. Carriers at the greatest risk of being involved in future crashes are often those with greater exposure (e.g., urban carriers), not necessarily those with fundamental safety problems that could be impacted by an FMCSA intervention. FMCSA s current safety rating methodology acknowledges the role exposure plays in crash risk. Specifically, FMCSA sets a higher threshold for acceptable crash rates for those carriers operating exclusively in urban environments. The language in the safety rating methodology reads as follows: Experience has shown that urban carriers, those motor carriers operating primarily within a radius of less than 100 air miles (normally in urban areas) have a higher exposure to accident situations because of their environment and normally have higher accident rates. 4 For most carriers, FMCSA has established a threshold of 1.5 crashes per million miles as acceptable performance. Carriers with crash rates above that threshold are assigned a rating of Unsatisfactory in the accident factor of the safety rating methodology and, as a result, are unable to obtain an overall safety rating better than Conditional. However, for urban carriers the acceptable threshold (for measuring safe performance) is 1.7 crashes per million miles. Rather than devoting attention to carriers that endure greater exposure due to their operating environment, FMCSA should direct its limited resources where they would be most effective in preventing future crashes by focusing on carriers that are causing them. After all, doing so would help better meet the objective of CSA, to reduce crashes injuries and fatalities. ATA recognizes FMCSA s reluctance to assign fault in commercial motor vehicle crashes. Indeed, doing so can be difficult and, in some cases, is not necessarily the role of the agency. Instead, the need is to determine which crashes hold value in identifying those carriers that should be prioritized for enforcement. 4 See 49 C.F.R Part 385 Appendix B- Explanation of Safety Rating Process, B. Accident Factor. 3

4 A reasonable solution would be to categorize crashes according to their value in effectively targeting carriers. For instance, if a truck driver crosses the median before striking another motorist head on, the crash should bear substantial weight. Even though fault has not been established, it is very likely that the crash primarily resulted from the actions of the truck driver. Accordingly, it should be used to prioritize the carrier for intervention. Conversely, a crash involving a truck struck while legally parked should not bear any weight in the system. The possibility that the driver of the parked truck is responsible for the crash is exceedingly remote. In short, absolute findings of fault are not necessary in this context. Instead, FMCSA should evaluate which crashes likely were/were not the fault of the carrier and use them for prioritization accordingly. Here is an example of how FMCSA could categorize crashes: Preventability Category Example Prioritization Value Weight Assigned Very Likely Preventable Truck rear-ended stopped passenger vehicle High 10 Preventability Unclear Two vehicles traveling in the same direction collide Moderate 5 Very Likely Non Preventable Passenger vehicle strikes legally parked truck None 0 In this scenario, the default weight assigned to most crashes would be 5 points. However, should an involved party, law enforcement officer or FMCSA present compelling evidence that one of these 5 point crashes could have been prevented, (or was clearly the truck drivers fault) FMCSA should assign 10 points for the incident. Conversely, if a motor carrier, law enforcement officer or FMCSA presents compelling evidence that the crash was nonpreventable, the agency should remove the crash from use in developing the carrier s Crash Indicator score and the details of the crash should be removed from public view on the SMS website. Alternatively, the agency should clearly note the accountability finding on the public website. The subject notice explains that FMCSA is looking at methods for determining preventability and accountability. ATA respects the challenges in making such determinations and stresses the need for uniformity, so as to ensure the value of comparative scores. To that end, ATA recommends that FMCSA consider the following: 4

5 1) The Guide to Determining Accident Preventability this guide includes a set of straight-forward criteria for establishing accident preventability. Developed by safety professionals, this guide has been the industry standard for the administration of safety and awards programs for decades. 2) 49 C.F.R Part 385 Appendix B- Explanation of Safety Rating Process Since the late 1990s, FMCSA has been evaluating crash preventability in the context of making safety rating determinations. This standard simply reads: If a driver, who exercises normal judgment and foresight could have foreseen the possibility of the accident that in fact occurred, and avoided it by taking steps within his/her control which would not have risked causing another kind of mishap, the accident was preventable. 3) The Relative Contribution of Truck Drivers and Passenger Vehicle Drivers to Truck- Passenger Vehicle Traffic Crashes, U.S. Department of Transportation, June 1998 the methodology of this study established that relative vehicle movements, crash configuration and driver coding provided strong, reliable indicators of relative contribution in crashes. 4) Ontario s CVOR and Carrier Safety Rating Public Guideline, July Ontario s process for establishing crash accountability in the context of measuring motor carrier safety performance accordingly has been in place and functioning effectively for years. Reliability and Significance of Scores The notice points out that the SMS includes sufficient data to assess the safety performance of approximately 200,000 of the 525,000 active motor carriers. FMCSA goes on to say that these carriers are involved in over 90% of crashes that are uploaded to the Federal database. However, the agency does not acknowledge that many crashes do not get uploaded at all. Hence, FMCSA cannot claim that it has data on carriers involved in over 90% of all crashes because the true number of crashes is not known. The agency goes on to say that the 50,000 carriers with scores above the thresholds were responsible for 45% of recorded crashes. However, the agency does not know how many of these crashes the carriers were responsible for, since it does not have a means to make crash accountability determinations. The notice also discusses the University of Michigan Transportation Research Institute s Evaluation of the Operational Model Test. For instance, the agency says that UMTRI found that carriers above the intervention threshold in the Unsafe Driving and Fatigued Driving/Hours of Service Behavioral Analysis Safety Improvement Category (BASIC) had higher crashes rates than carriers without scores above thresholds in any BASIC. Of course, this is a very carefully worded statement and is perhaps misleading. They did not say they had higher crash rates than carriers with scores below threshold in those same BASICs. Further, this analysis was conducted before the agency made a number of changes to the CSA/SMS methodology. Hence, the analysis may no longer be completely valid. 5

6 Comments on Planned Changes The following are ATA s comments on many of the planned methodology changes announced on March 27, Incorporating Load Securement Violations into the Vehicle Maintenance BASIC ATA supports FMCSA s plan to incorporate load securement violations into the Vehicle Maintenance BASIC. Based on data preview feedback provided by some of ATA s motor carrier members, it appears this change helps alleviate the current bias against carriers in certain segments, especially flatbed carriers. We suspect this is the case, in part, because load securement violations represent a relatively small percentage of violations used to develop carriers scores in the Vehicle Maintenance BASIC. ATA also supports the planned modification of severity weights assigned to load securement violations. In ATA s view, these changes (mostly weight reductions) are appropriate. Though there may be a strong statistical correlation between cargo shift and crashes, the relationship is often not causal. In other words, when cargo shift occurs it is often the result of a crash and not necessarily the cause of it. While it is important to address such issues that could lead to greater crash severity, a far higher priority should be placed on crash prevention. It is important to note that some ATA member carriers have expressed some concerns about placing load securement violations in the Vehicle Maintenance BASIC. In short, this change muddies the significance of their Vehicle Maintenance BASIC scores. Specifically, scores may no longer exclusively reflect the quality of a carrier s preventative maintenance program or the mechanical condition of its vehicles. As a result, the quality of the carrier s vehicle maintenance program may be erroneously characterized, especially if the carrier s Vehicle Maintenance BASIC score is elevated due to load securement violations. To address this concern, FMCSA should consider renaming the BASIC (e.g. Vehicle Maintenance/Load Securement) or otherwise offering an explanation on the public website displaying carriers scores. Changing the Cargo Related BASIC to the Hazardous Materials BASIC ATA has long called for and supported creation of a separate BASIC to measure the safety performance of motor carriers transporting hazardous materials (HM). Under the existing methodology, HM carriers are measured against all other carriers, including those that don t transport HM at any time or, when they do, not in any considerable quantity. Not surprisingly, HM carriers are 100% more likely to receive HM violations than non-hm carriers. As such, comparative measures of performance in this category are of limited value. However, ATA has substantial concerns with FMCSA s planned design of the Hazardous Materials BASIC. As currently structured, the BASIC assigns high scores to many reputable, safe motor carriers with laudable crash rates and low scores in all other categories. Though FMCSA s contention is that scores in this BASIC are a reflection of compliance, not safety, it must certainly acknowledge that a high score in any BASIC implies that the carrier is unsafe. Here are some sample scores from ATA members carriers (as of May 2012) showing the disparity between their HM BASIC scores, their scores in other BASICs, and in the crash indicator: 6

7 Unsafe Driving Fatigued Driving/ HOS Driver Fitness Controlled Substances/ Alcohol Vehicle Maintenance Hazardous Materials Crash Indicator Carrier A N/A Carrier B Carrier C Carrier D ATA takes issue with FMCSA s justification for assigning high scores to these carriers. The goal of CSA is to reduce commercial motor vehicle crashes, fatalities and injuries. As such, the system should identify carriers more likely to have crashes so as to prioritize these carriers for interventions that will help prevent crashes. To that end, Administrator Ferro has often said that FMCSA s focus is on a CSA program that yields the greatest safety benefits. Also, in the introductory text of the subject notice, FMCSA says: The changes more effectively identify and prioritize high risk and other unsafe motor carriers for enforcement interventions designed to reduce commercial motor vehicle crashes and hazardous materials incidents. 5 Yet, later in the subject notice FMCSA acknowledges that high scores in the HM BASIC identify carriers that are more likely to have future compliance problems, but makes no claim that the scores identify carriers that will have more crashes or HM incidents. However, as data presented above (especially the disparity between HM BASIC scores and Crash Indicator scores) shows, with respect to these carriers, they do not. In fact, FMCSA recently presented data demonstrating that only two-tenths of one percent of the fatalities resulting from large truck crashes in 2010 were attributable to hazardous materials exposure. 6 It is hard to imagine that the agency did not conduct any analysis of the crash risk posed by carriers with high scores in this BASIC. Presumably, if it did, the subject notice would have made reference to this highly beneficial predictive value. Also, it is hard to imagine that FMCSA specifically designed the BASIC to identify carriers with future compliance problems, but not to identify carriers with elevated crash risk. Instead, it is more likely that FMCSA tried to develop such a system and now is grasping onto a different value (e.g., future compliance problems) as justification for the new methodology. As such, the methodology for the new HM BASIC does not result in scores that will help the agency target carriers at increased risk of causing crashes, fatalities or injuries. FMCSA should only implement an HM BASIC after it has modified and tested the methodology to ensure that carriers scores relate to future crash risk. While compelling fleets to improve compliance with HM regulations is important, the more pressing need and the goal of CSA - to is to identify fleets with a greater risk of crash involvement and to change their behavior. Doing so would undoubtedly be a more appropriate and efficient use of the system Federal Register at of the 3,675 truck-related fatalities in 2010 were the result of HM exposure according to an FMCSA Webinar entitled 2010 Large Truck and Bus Crash Data An Overview presented on 6/21/2012 and available at 7

8 Change to Applicability of Lower Thresholds for HM Carriers ATA supports the planned change to the criteria for determining which carriers should be subject to the lower thresholds (the HM thresholds) in each BASIC. Currently, a carrier may be labeled a hazmat carrier and subject to the lower thresholds based on a single roadside inspection involving a placarded quantity of hazardous materials. As such, the system erroneously captures carriers that are not truly hazmat carriers but perhaps had a single episode of hauling a placarded quantity of HM. From a public policy perspective, FMCSA s resources would be better spent on carriers that haul measurable amounts of HM (more than episodically) if its goal is to materially reduce the number and severity of HM incidents. Assignment of Violations on Vehicles Provided by Intermodal Equipment Providers ATA understands the rationale for assigning points to drivers and motor carriers for vehicle violations on equipment interchanged by intermodal equipment providers (IEPs) that could have been identified by drivers during routine pre-trip inspections. Such assignment of responsibility was indeed part of the shared responsibility concept embodied in the chassis safety roadability regulations. These regulations also - for the first time - required IEPs to systematically inspect, repair and maintain all equipment/chassis intended for interchange with motor carriers. ATA is concerned, however, that the practice of assigning responsibility for all defects discovered during a roadside inspection (that could reasonably been identified during a pretrip inspection) to the driver is neither an effective nor equitable route to improving the safety and general operating condition of the intermodal chassis fleet. The ultimate goal of the roadability regulations was, and is, to compel IEPs to provide safe, roadworthy equipment before it is offered for driver interchange. During the required pre-trip vehicle inspection, the driver must conduct a visual and audible inspection of statutorily specified items on the chassis but is specifically not required to crawl under the chassis. While this pre-trip inspection should identify obvious deficiencies with the equipment, it is not designed to identify imminent deficiencies (e.g., may occur just after starting a trip) which are latent and will often result from normal wear and tear. These types of deficiencies are rightly the responsibility of the IEP and are the type that a systematic maintenance and repair program would typically identify and correct prior to interchange on a subsequent trip. The safety measurement system suffers from other shortcomings with respect to intermodal equipment as well. Specifically, deficiencies identified by drivers during pre-trip inspections are not reflected on the IEP s record. As a result, those reviewing an IEPs systematic maintenance and repair procedures may draw erroneous conclusions about the program s effectiveness. In addition, drivers who identify these deficiencies know that the IEP will not suffer any adverse regulatory impacts for offering such equipment for interchange and may feel less compelled to identify and point out such deficiencies. FMCSA must address this lack of compliance accountability for IEPs and, using its audit authority, temporarily shut down IEPs who do not meet the roadability law s mandates concerning systematic maintenance and repair standards. Finally, it should be noted that the current erroneous attribution of some chassis defects to motor carriers creates additional CSA-related implications for truck drivers. Naturally, such practices unfairly impact how drivers are perceived by those who use SMS data to measure performance (e.g., current and prospective employers). Sensitive to the fact that operating in the intermodal sector may result in elevated scores and impact their future employment potential, drivers are increasingly leaving this segment of the industry. As a result, the driver shortage is particularly acute for intermodal carriers. 8

9 Characterization of Carriers with Inconclusive and Insufficient Data The reasoning behind FMCSA s plan to change the representation of results for carriers with insufficient data makes sense. Most visitors to the SMS website, especially those that are not motor carriers, will not understand the significance of a label such as insufficient data. Further, they won t take the time to review the SMS methodology to learn it. However, ATA takes issue with FMCSA s persistence in not assigning BASIC scores to carriers that have not had a violation, despite having a sufficient number of inspections. In ATA s view, satisfactory completion of a minimum number of inspections (e.g., 5) should provide adequate verification of a carrier s safety performance, even if no violations are found. It is quite reasonable and appropriate to assign a CSA BASIC score (e.g., 0 ) to such carriers reflecting that their safe, violation-free performance has been verified. The inequity of not assigning scores to such carriers grows with each additional clean inspection. This begs the question: if a carrier has 10 or 15 violation-free inspections, isn t that adequate evidence to say conclusively that the carrier has demonstrated safe/compliant operations? ATA respects FMCSA s view that the primary purpose of the program is to prioritize carriers for intervention and that carriers with no violations should not be ranked at all. Yet, the agency has also acknowledged it makes carriers scores available to third parties (e.g., shippers, insurers) so they can make safety-based business decisions. Hence, it is quite appropriate to assign favorable scores to these carriers. Change to the Presentation of the Summary of Activities on the SMS Website In the subject notice FMCSA points out that it will be making a change to the Summary of Activities displayed for each carrier on the SMS website. The agency currently displays a count of recordable crashes broken into two categories: 1) fatality/injury, and 2) tow-away. Soon, FMCSA will be separating the fatality/injury category into two separate categories. ATA objects to FMCSA displaying the Summary of Activities in any form. Since the agency currently does not have a process for determining crash accountability, all crashes are included in the summary including those the motor carrier did not cause and could not have prevented. Though FMCSA recently added language pointing out that the crashes are recorded without regard to preventability, the uninitiated may still draw erroneous conclusions based on a carrier s crash involvement. This is particularly true for more severe crashes. For instance, a carrier involved in a series of non-preventable fatal crashes will undoubtedly be perceived by some as unsafe. Eliminating Vehicle Violations from Driver Only Inspections, and Vice-Versa ATA supports FMCSA s plans to remove vehicle violations found during driver-only inspections and driver violations found during vehicle-only inspections. The current process likely creates a bias since, as FMCSA points out in the subject notice, driver-only inspections do not count as clean inspections in the Vehicle Maintenance BASIC when vehicle violations are not noted, and vice versa. This creates skewed denominators in the calculation of the BASICs measures. This change is also consistent with the Commercial Vehicle Safety Alliance s (CVSA) policy that inspection reports should only include items relevant to the particular level of inspection being conducted. 9

10 Conclusion ATA supports and appreciates FMCSA s new approach to making changes to the SMS methodology. The ability for carriers to review the planned methodology changes and the impact they will have on their scores will be mutually beneficial. In short, carriers will be able to provide more informed comments and suggestions that will help FMCSA address the unforeseen effects of the changes. By far, the most beneficial improvement FMCSA can make is to develop a process for evaluating crash accountability. There can be no better predictor of future crash risk than past at-fault crash involvement. Since making absolute determinations of fault can be difficult, the agency should consider weighting crashes on their likely value in appropriately prioritizing carriers for intervention. Until such a time as the crash accountability process is developed, the summary of activities (reflecting crash involvement) and underlying crash details on the SMS website should be removed. ATA supports moving load securement violations into the Vehicle Maintenance BASIC and the creation of a separate Hazardous Materials BASIC. Also, ATA supports the revised criteria for applicability of lower thresholds to HM carriers in the other BASICs. However, the methodology for the HM BASIC must be modified substantially so that carriers scores reflect future crash risk. Only then will the HM BASIC help meet the program s objective of reducing crashes, injuries and fatalities. 10