By James Scapellato
Chief Executive Officer
Scapellato & Co.
This Opinion piece appears in the Feb. 28 print edition of Transport Topics. Click here to subscribe today.
Some trucking industry executives predicted the Federal Motor Carrier Safety Administration’s Compliance, Safety, Accountability program was going to be a “game changer” for the industry. They were right.
The U.S. Department of Transportation’s premature public release of questionable CSA/Safety Measurement System data has caused some of America’s most respected and safe carriers irreparable damage to reputation and productivity — with little recourse.
Here’s an illustration of the problem: From 1995 to 2010, a top for-hire carrier had 11 DOT rateable compliance reviews, compared with an average of three compliance reviews for 15 other for-hire competitors of similar size. In just the past three years, this company has endured four back-to-back, in-depth compliance reviews, while several peers with similar crash rates and violation rates per vehicle inspection have not had a rateable compliance review for several years.
Since 1986, the compliance review has been the primary intervention tool used by DOT investigators to compel compliance. As a general rule, most of the top for-hire carriers have comprehensive safety programs, advanced technologies, modern and well-serviced equipment, and satisfactory on-road safety performance. It’s no surprise that this group of carriers have fewer compliance reviews.
Yet, under CSA, DOT investigators are allowed to deviate from their training, guidelines and the plain reading of the rules in their quest to cite safety violations.
DOT’s administrative “due process” procedures are cast in such a way that an aggrieved carrier’s challenge becomes prolonged, expensive and unrewarding.
Furthermore, an interstate carrier has no real-time means of challenging and overturning alleged compliance review and roadside violations because they are immediately uploaded into FMCSA’s Motor Carrier Management Information System and released to the public under CSA on a monthly basis. As a result, the affected carrier is deemed guilty with neither adequate notice nor due process. That’s not the American way.
The industry has waited 15 years for a supporting documents final rule, despite a specific congressional mandate and a writ of mandamus from the U.S. Court of Appeals compelling it to be done.
At present, the hours-of-service rules once again are in the process of changing. As a result, DOT’s enforcement programs remain haphazard in practice. When ambiguities cloud the matter, enforcement officials amend prior interpretations without notice and opportunity to comment. Hence, a regulated carrier that believes it is in compliance with a rule may discover it actually is far from it right when it counts most (i.e., in the public’s eye) because no bright line exists, and enforcement is impossible to predict.
Administrative challenges to compliance reviews and notices of claim languish for months and years without agency decisions, and carriers are left to their best guess with no ability to right the wrongs. To borrow a truism from Las Vegas, “The house always wins.”
Our target carrier saw its SafeStat Driver Safety Evaluation Area scores skyrocket into the 90s because of creative, yet questionable, enforcement. Now, in the CSA program, the carrier has received an “alert” in a Behavioral Analysis Safety Improvement Category — i.e., BASIC — and most likely is in for an upcoming 12th compliance review.
Meanwhile, the company had to fight to maintain its “satisfactory” rating, was issued a $51,000 civil fine by DOT and saw its reputation and productivity plummet because of premature public disclosure of alleged violations. Fortunately, the carrier ultimately won back its satisfactory rating and was successful in getting the fine dismissed, but the process took some time. And it must be said that the stigma of noncompliance persists for the carrier, albeit unfairly.
As a former DOT regulator and prosecutor, I find the conscious public release of unreliable CSA information simply wrong. It confuses and misleads members of the public who trust in the DOT’s pronouncements.
Even if the new CSA program improves the process and avoids the shortcomings of SafeStat, it cannot serve as a data clearing house for the trucking industry without providing adequate administrative due process mechanisms for noncompliant carriers.
Absent fair notice and due process, DOT certainly owes the 750,000 registered industry members an interim solution. Aggrieved carriers should be able to challenge public findings that are based on unproven allegations.
To kick off the discussion/debate, I suggest the following to the DOT:
• Appoint impartial third-party hearing examiners or arbitrators under federal contract to fast-track resolution of CSA/SMS/ intervention challenges within 30 to 45 days from the date of filing. Require examiners/arbitrators to rule in writing as soon as possible but no later than 45 days from receipt of the record.
• Grant examiners/arbitrators the authority to render binding decisions based on the record and evidence submitted by the parties.
• Where appropriate, grant examiners/arbitrators the authority to enjoin the upload and/or continued disclosure of CSA/SMS calculations and conclusions to the public.
• Allow decisions by examiners or arbitrators to be “final agency action,” which entitles either party (government or carrier) to appeal the decision to the appropriate federal court.
• Require as a prerequisite that enforcement officials submit to the carrier all data, calculations, methodology and rationales to justify the upload of alleged violations into CSA/SMS at least 10 days before disclosure.
• Grant carriers the opportunity to exhaust other administrative challenges on issues such as unreasonable administrative searches, discriminatory enforcement treatment, improper safety rating downgrades, compliance review and Notice of Claims alleged violation and penalties, roadside dataQ issues (short for https://dataqs.fmcsa.dot.gov/login.asp, the website where carriers can contest points on their BASICs) and others before upload and disclosure to the public.
Scapellato & Co. is a transportation and safety consulting firm based in Mount Pleasant, S.C.