Monday, May 19, 2014

“The Culture of Safety”

In 1935, Congress appointed federal regulators to police and oversee interstate truckers. USDOT and the ICC before it was charged with the sole preempted duty of policing the industry, certifying operators of commercial motor vehicles as safe to operate on the nation's roadway and finding and placing out of service unsafe operators. The beneficiaries of interstate regulations were the traveling and shipping public. A carrier found safe to operate on the nation's roadway was safe to use.

Publication of SMS Methodology, which rates carriers on a curve and the Agency's touting of this unvetted methodology as fit and required to use by the shipping public is tantamount to abdication of the Agency's responsibility.

In its attempt to create a "culture of safety" based on an arbitrary formula in which half the carriers which are assigned a score are branded in some sense unfit to use, the Agency, in combination with Plaintiff's Bar, has created a "culture of fear" among the shipping and broker public. The result is the encroachment of state law, and theories of action against the shipping public as Plaintiff's Bar trolls up the supply chain for deep pockets.

Shippers and brokers are required to second guess the Agency's ultimate safety fitness determination under penalty of negligent entrustment claims based on use of unvetted, inaccurate, and misleading methodology (over 49% of the small carriers branded with 3 or more caution symbols, , have no crash history).

Ironically, publication of SMS grade on the curve methodology undermines the Agency's own credibility and deters it from doing its own job of investigating and properly policing the industry. NHTSA has criticized the FMCSA for finding after safety audits, that three bus companies were safe only to reverse that decision after second compliance reviews following fatal crashes.

The motor carrier industry is demonized in the press and by Plaintiff's Bar using SMS Methodology to brand carriers as "bad actors." This begs two questions:
  1. If a carrier involved in an accident were deemed unsafe by the FMCSA, why did the Agency allow them to operate?

  2. How can the Agency proclaim "its hands are tied" when touting an unvetted system intended for its internal use?

By all objective standards including two recent GAO studies, SMS Methodology is systemically flawed and not fit for use in evaluating individual carrier performance.

Properly seen, publication of SMS Methodology and the Agency's claim it is fit for use by shippers is more of an indictment of the Agency's inability to fulfill its statutory duty. Its continued touting of SMS Methodology says more about the Agency than the carriers it demonizes.

SMS Methodology should not be published. The Agency should affirm that its ultimate safety fitness determination is the standard shippers and broker should rely upon and that an unrated carrier is not only fit to operate, it is fit to use.

1 comment:

  1. This information is invaluable. It is difficult for the average person working in the transportation industry to make his or her own investigation into these matters. ASECTT is doing a great job for all of us.

    This information begs the questions, where is all this going? Is there any hope of reigning in the Agency and placing the locus of responsibility back where it belongs?

    Please continue to keep us informed and Thank You!


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