VIDEO: Preventability Determinations without Rulemaking: Why Should the Trucking Industry Care?

SUMMARY VIDEO (12:00) on ASECTT YouTube channel

FULL VIDEO (1:14:08)  on ASECTT Vimeo channel

Preventability Determinations without Rulemaking: Why Should the Trucking Industry Care?

Presented by: Mark Andrews, Henry Seaton, and Rick Gobbell
On behalf of the Motor Carrier Regulatory Reform Coalition 
9/6/2019  https://vimeo.com/asectt/preventability

Making and Publishing Preventability Findings as Guidance without Due Process or Rulemaking – a Mistake of Epic Proportion

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Making and Publishing Preventability Findings as Guidance without Due Process or Rulemaking – a Mistake of Epic Proportion

Henry E. Seaton

Law Office of Seaton & Husk, LP

henryseaton@transportationlaw.net

info@transportationlaw.net

www.transportationlaw.net

FMCSA proposes expanded crash preventability determination program

Based on its two years’ experience with a demonstration program, the Federal Motor Carrier Safety Administration announced that has decided to operate a crash preventability demonstration program that would use a streamlined process and exclude from Safety Measurement System metrics those crashes found to be not preventable. In an August 5 Federal Register notice, FMCSA also said that it would tweak the existing list of reviewable crashes slightly and would begin reviewing additional crash types to determine whether they, too, are predominantly not preventable. Crashes through July 2019 would be reviewable under the demonstration program, which will continue through September. Also, crashes reviewed during the demonstration program would remain in the calculation of the SMS Crash Indicator BASIC.

Petition for Rulemaking on Scope and Use of "Preventability"

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BEFORE THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION

Docket No. FMCSA-_______________

THE MOTOR CARRIER REGULATORY REFORM (“MCRR”) COALITION’S

PETITION FOR RULEMAKING ON SCOPE AND USE OF “PREVENTABILITY” DETERMINATIONS IN ASSESSING SAFETY FITNESS OF MOTOR CARRIERS

           COMES NOW, the Motor Carrier Regulatory Reform (MCRR) coalition and files this its Petition for Rulemaking under 49 C.F.R. § 389.31.  MCRR submits that rulemaking under the Administrative Procedure Act (5 U.S.C. §§ 551, 553) is a necessary prerequisite to any permanent implementation of a process for determining “preventability” of commercial motor vehicle accidents as proposed in the Crash Preventability Demonstration Program (“CPDP”) announced by the Federal Motor Carrier Safety Administration (“FMCSA” or “Agency”) in July 2017.

FOR IMMEDIATE RELEASE June 19, 2019

FOR IMMEDIATE RELEASE
June 19, 2019

Trucking industry coalition pushes FMCSA for rulemaking before changing crash metrics

A coalition of 10 trucking-related organizations has petitioned the Federal Motor Carrier Safety Administration for a rulemaking if the agency intends to change how it analyzes and publishes data on motor carrier crashes. The petition was filed on June 14, 2019, by the Motor Carrier Regulatory Reform (MCRR) coalition, which includes organizations representing more than 10,000 carriers, shippers and brokers.

FMCSA officials have indicated that they plan to make permanent as a matter of enforcement policy its crash preventability pilot program, which has been in place for nearly two years. As of the end of the first quarter this year, carriers had submitted nearly 11,000 requests for crash preventability determinations under FMCSA’s narrowly defined program since August 2017. However, the program has not been subject to a formal rulemaking process.

In its petition, the MCRR coalition argued that FMCSA must conduct a rulemaking before adopting any permanent program to call balls and strikes on crashes. Publication of preventability metrics would, among other things, constitute a violation of the Fixing America’s Surface Transportation (FAST) Act, the Administrative Procedure Act (APA), and federal executive orders intended to protect the industry against bureaucratic overreach in the name of guidance, the coalition told the agency.

A key problem with FMCSA’s approach is that the term “preventability” is an artificial construct that does not equate to carrier fault, much less to a systemic violation of safety regulations. The MCRR coalition argues that the publication of preventability data and metrics would result in increased insurance rates and lost business by carriers that the FMCSA acknowledges are fit to operate and, therefore, fit for shippers and brokers to use. The subjectivity of the preventability standard and its lack of due process suggest that adopting the trial program as policy guidance would hurt the industry, especially small carriers.


About the MCRR coalition
Motor Carrier Regulatory Reform (MCRR) coalition is an affiliation of organizations that frequently weigh in with FMCSA and Congress to promote reasonable regulation and enforcement affecting motor carriers and their business partners. The coalition membership varies slightly depending on the particular issue. For purposes of the crash preventability rulemaking petition the coalition includes:

• Air and Expedited Motor Carriers Association
• Alliance for Safe, Efficient and Competitive Truck Transportation
• American Home Furnishings Alliance/Specialized Furniture Carriers
• Apex Capital Corp.
• Auto Haulers Association of America
• National Association of Small Trucking Companies
• Tennessee Motor Coach Association
• The Expedite Alliance of North America
• Transportation & Logistics Council
• Transportation Loss Prevention & Security Association

Yours truly,
David Gee, Chairman of ASECTT
ASECTT@gmail.com

What is the IRT?

What is the IRT?

Henry E. Seaton

IRT stands for Item Response Theory. It is the FMCSA’s acronym for a new numbers-crunching proposal which would allow the Agency to develop a new system to process and publish new algorithm driven scores for motor carriers.

An excellent article on the IRT model written by Nell Sedransk, PhD will be published soon in the Journal of Transportation Management. Critics of CSA SMS methodology, of which I am one, point out that the NAS in recommending the IRT method noted that it did not address data sufficiency or accuracy issues which have plagued SMS methodology and led to its removal.

Under the Daubert standard used for admission of studies and analyses in court, data accuracy issues must be addressed. Also, OMB requires the FMCSA to follow the Data Quality Act which places restraints on Agency publication of findings which cannot be supported as true or accurate.

Although the NAS suggests inclusion of a number of invasive and irrelevant data issues like driver pay, driver turnover, and method of pay, the IRT is left with basically the same roadside data which has been roundly criticized.

The IRT, when using SMS data, is faced with the same junk-in-junk-out issue which led the Agency to present and then withdraw the safety fitness determination rulemaking that would have identified based on data a mere 252 carriers for an unsat, the majority of whom had no relevant crashes based on the Agency’s own data.

One must ask, how can the Agency propose to use the same flawed and insufficient data and expect a different result?

Moreover, there is a new significant and looming issue with the misuse of algorithms and mathematical profiling which the FMCSA’s pivot to the IRT presents. In an article entitled, “Our Software is Biased Too” it is noted that “Data scientists and civil rights groups are raising the alarm about algorithms that determine everything from who goes to jail to how much your insurance will cost.” See Wall Street Journal (March 23,-24, 2019) at B4.

The author concludes, “No matter how much we know about algorithms making them ‘fair’ may be impossible.” Clearly, the publication of algorithm-generated carrier scores to determine which carriers go to “safety jail” and which ones are subject to crippling insurance costs presents a systemic fairness issue because of the data sufficiency issues for small carriers.