In this week's special edition of Overdrive Radio, find the final installment in our Trucking’s State of Surveillance multipart series.
If you missed "Long Haul Paul" Marhoefer’s talk with author Karen Levy in the previous edition of the podcast, track back to it. Levy’s "Data Driven" book, about how the ELD mandate changed the face of trucking in so many ways (magnifying longstanding issues in others), really sets the stage for this talk with Nashville-headquartered transportation attorney Hank Seaton. Seaton spells out what he sees as connections between various disparate roadside and investigatory enforcement programs of the Federal Motor Carrier Safety Administration -- likewise its safety rating program.
Several related advance notices of proposed rulemaking and other requests for public comment lead him to a feeling that FMCSA could be moving toward a new rating regime that relies heavily on motor carrier inspection/violation data garnered at roadside. More concrete moves toward that approach have been made before. Seaton feels such a system for ratings would likely reinforce problems with the current carrier audit program that stack the deck against small fleets and independents ever being rated Satisfactory -- or rated at all.
The first federal notice that caught Seaton’s eye this year in his role commenting on behalf of a coalition of carrier and broker/shipper groups: the proposed CSA Safety Measurement System changes put up for review, which many felt offered a "kinder, gentler" CSA SMS, in Seaton's words also quoted in this report. With changes to the SMS safety-scoring methodology, more of the smallest fleets might be likely to fly under the radar of the SMS's scoring metrics. Yet if automated inspections become a compulsory part of truckers' travels past scale houses and/or other mobile checkpoints nationwide, voluminous inspection/violation data collected could mean quite the opposite of "kinder" and "gentler." We're a ways from that point today, yet programs are lining up to bring CVSA's Level 8 standard into the light of day.
As the FMCSA moves forward with an intent to re-examine and potentially change its safety rating program, Seaton offers a safety rating idea that runs counter to the inspection data-driven approach long-envisioned, and long-embattled. Seaton's is an approach that might actually give the agency a chance to offer a basic "red-light/green-light," he said, or a fit- or unfit-to-operate designation for most every carrier around the nation.
Take a listen:
All the features in Trucking's State of Surveillance:
Podcast -- Truckers 'canaries' in the tech mine: Inside story around 'Data Driven' book on ELD mandate, rise of 'new workplace surveillance'
Video monitoring, in two parts:
**Can AI transform the prying eyes of in-cab cameras for the better?
**In-cab and out, camera options expand amid push-pull of privacy concern, regulatory attention
ELDs/smartphones and location tracking -- Broker intrusions on the rise with ubiquitous location tracking capability
Truck and trailer telematics -- Telematics beyond ELD systems: Promise, redundancy and real expense/uptime benefits
Data mining -- The third parties following you around freight networks: Brokers looking more like carriers with 'data driven' decision-making
Smartphones/GPS -- Counterpoint to some truckers' tech reticence: 'If you use a smartphone, you embrace it'
Roadside inspections -- 'Nothing to hide, nothing to fear,' right? Get ready for Level 8, automated inspections
Podcast -- FMCSA offering 'kinder, gentler' approach to safety scoring? Not if automated inspections go live
Todd Dills: In today's early special edition of Overdrive Radio for podcast subscribers, another installment in the Trucking's State of Surveillance multi-part series. For this one, we should actually be live now with the series at overdriveonline.com. If you missed Long Haul Paul Marhoefer's talk with Karen Levy, the previous edition of the podcast, track back to it. It dropped Friday, July 7th, to the feed. Levy's book about how the ELD mandate changed the face of trucking in so many ways, magnified longstanding issues in others, really sets the stage for this one in some ways.
For those of you coming into the audio from overdriveonline.com, it's likely you've seen companion stories in the State of Surveillance: Special Reports, particularly germane is the story about rather slow, though quickening, moves toward automation of roadside inspections. I'm Todd Dills, your host for this long talk with Nashville-headquartered transportation attorney, Hank Seaton, about issues of roadside and investigatory enforcement via the Federal Motor Carrier Safety Administration's audit and safety rating programs. And what he sees happening with several related advanced notices of rulemaking and other notices that have been popping up over the course of this year. And last year in my view, as you'll hear, is they relate to the FMCSA's inspection program in particular. The first thing that caught Hank Seaton's eye this year are those proposed CSA safety measurement system changes put up for review back in the early months, I believe it was. Seaton noted those changes.
Hank Seaton: From the outside looking in, if you're just taking a head count, it would appear that the agency is looking at a kinder, gentler reboot.
Todd Dills: He uses that word, reboot, to mean changes to the CSA program's SMS methodology, through which FMCSA reports to prioritize carriers for intervention, various safety audits, some of them comprehensive type audits with the possibility of a safety rate. Yet, given the relative few ratings that have been issued in recent years, the majority adverse, conditional, or unsatisfactory ratings, the basic unlikelihood of an audit for truly safe and well-performing independent owner of a small carrier...
Hank Seaton: So that very system prejudices the public's view of a new entrant who really has no chance of getting a satisfactory safety rating under the current thing, unless he is, first of all, in the bullseye of needing an audit.
Todd Dills: If a new entrant needs an audit, generally speaking, it's because someone in an FMCSA regional office or state partner saw an issue, with one crash maybe, patterns of violations for equipment issues, drug testing, hours of service. A satisfactory rating is highly unlikely, impossible under the current system without a fully comprehensive onsite audit. So speaking on a coalition of carriers, shippers and brokers and other supply chain entities have long argued for a simple red light/green light system for ratings. A biannual desktop audit akin to the new entrant audit conducted for every carrier in the nation, to deliver a safe to use or not clear judgment from the FMCSA. Carriers might better know where they stand, shippers and brokers and everyone could more effectively fight off lawyers in search of nuclear verdicts. The vagaries of the current system, the parallel safety scoring program in the SMS could be made certainly less vague in this application in some ways.
Hank Seaton: I guess, the best analogy is maybe to the cop on the block. We know that what we expect of our police force is people who are enforcing the laws, but are not quick to shoot. I mean, if they're going to be the ombudsman, they don't need to profile every newbie as somebody who shouldn't be in the industry. That's what we call prosecutorial abuse.
What I'm suggesting is that, at that level, the agency's function should not be prosecutorial. It should be more to be sure that the traveling public understands the rules and is complying, and to separate out those who are negligent and wrong.
Todd Dills: Unfortunately, in Hank Seaton's view, that doesn't seem to be where the agency is headed, with its aim to put forward an advanced rulemaking notice to revamp the safety ratings, Hank said. The Level 8 automated electronic inspection program, agency partners have said, could fully implement it, deliver 10 times the amount of data into the entire enforcement system. If that's true, while-
Hank Seaton: I do not have access to the minds of the bureaucrats. And I don't want to be a naysayer. I understand that in the future, we have got to accept that there's going to be a whole lot of technology and that big data is going to drive things. My concern is that trucking, as we know it, is going to have a major birthing pain trying to get some of this accomplished. I just don't see the pain being worth the gain, and I don't see it working for little guys.
Todd Dills: Hear much more of the details of Seaton's line of thinking, to roll us through the end of our Trucking's State of Surveillance: Special Reports here on the podcast, after this brief word from Overdrive Radio's sponsor.
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Todd Dills: Find much more information about Defender at H-O-W-E-S, howesproducts.com. Here's Seaton leaning into where the pieces of the puzzle started for him at least, with 2023's early CSA safety measurement system reboot, as he calls it.
Hank Seaton: Okay, SMS methodology, the idea that you can use roadside inspections and crash data to profile carriers for safety fitness purposes is nothing new. It started with CSA 2010, we're now 13 years down the stream. A lot has happened over the past 13 years. The agency's made 800 changes in the methodology, which tried to float the methodology as a safety fitness determination. As a result of the systemic flaws that were in the system, Congress directed that the program be submitted to the National Academy of Science for review, that USDOT review it, that the very use of it be taken down from the website until all that was accomplished. That legislation passed in 2015, which is now seven years ago.
The National Academy of Sciences report confirmed that the existing system didn't work. They said it would have to be modified with an entirely different system. Then the USDOT refused to approve it for the agency's use. In 2016, notwithstanding that the agency tried to launch a safety fitness determination, which they quickly withdrew. So since 2016 till today, SMS methodology has been a system working in the background that has no approval as a rule. It has been, unfortunately, used by insurance companies to increase rates. It's been unfortunately used by plaintiffs' bar to exacerbate judgments by saying that it shows deficiencies in carrier operation. As a result, misuse of SMS has been the linchpin of the problems with the red light/green light for carrier service. So a lot of shippers and insurance companies are looking at this data regardless of its content or relevance, because they have nothing else to look to and they feel as though plaintiffs' bar will create a nuclear judgment if they don't.
Todd Dills: We can include brokers in that, too.
Hank Seaton: Yes. Particularly with respect to the broker industry, the broker industry has been begging for a red light/green light for years and trying to accomplish it by new legislation. Now, the position that the group of people that we represent is new legislation really isn't needed because the agency, back in 2010, when they were sued by NASTC and other folks, entered as settlement that said that unless a carrier was placed out of service or was otherwise found to be unsatisfactory was fit to operate on the nation's roadway. Now our argument has been and still is that the FMCSA is the cop on the block. If they say that the guy is fit to use, then it's over, and that is the green light for use.
And our argument is really pretty simple. Congress did not intend shippers to have to be vigilantes to second guess the agency's decision. Unfortunately, much of the chaos in litigation, much of the nuclear verdict is directly related to plaintiffs' bar's use of this tool.
Todd Dills: The SMS.
Hank Seaton: The SMS. So that's basically the background that sets the stage for the fact that now, 13 years later and after seven years of not making any changes, there is a reboot. We call the term a reboot because the agency has continued to be under pressure to give safety ratings. And now, rather than come out with some objective standard, they're trying to go back to SMS and clean it up in some way to use data from roadside inspections and crash data to profile carriers. Now, as part of what we'll be talking about today on the reboot, it's not just that they want guidance to help them use the existing rules to give someone a safety rating. They're actually proposing that this new use of SMS methodology be baked somehow into the cake of assigning a safety rating.
Todd Dills: To be clear, the FMCSA is not there yet, but Hank Seaton believes signs point the way towards such an outcome for the agency.
Hank Seaton: There are four things on the street that all infer that that is where they're going, and that's something I think we're going to cover today.
Todd Dills: Okay. Well, let's talk about the reboot a bit. You were involved with the coalition of carriers that filed commentary on it. What were some of the points that you guys made in that comment? Our readers will be somewhat familiar with some of the changes that were proposed back in February. We've reported on it pretty extensively. If anybody's been reading us, they'll be familiar with it.
Hank Seaton: The agency's proposal was in a guidance format or request for comments, kind of a finger in the air to see how the wind was blowing with the carriers. By and large, most of the comments that were filed were very welcoming.
Todd Dills: There weren't many comments, by the way.
Hank Seaton: No, there weren't many. But from the outside looking in, if you're just taking a head count, it would appear that the agency is looking at a kinder, gentler reboot. I mean, by that, you've got to realize that when they first came out, they had, what, seven or eight different silos for measuring things. The algorithm was very difficult and hard to understand, and things like failing to have a drug test as a random would get you in hot water quickly. So there were obvious glitches in the way that it was imposed. Well, when this one comes out, they take what used to be all of these different things and they combine a lot of them in a catchall called unfit driving.
Todd Dills: Unsafe driving.
Hank Seaton: Unsafe driving. Well, I mean the very name of that suggests that whatever's in there is evidence that you're unsafe, which is probably a bit of a quantum leap. But in general, the kinds of things that they included in their weighting seemed to be a kinder, gentler weighting. But the question that we raised is, okay, agency, for what are you doing this? What is the purpose of this? This really isn't going to change the carrier's score. But for you little guys, we're going to recognize that most of you are not even going to be rated. We're not going to have enough as a result of these changes to say that you are statistically measurable. So what then do they say to the vast majority of carriers who under that schema will not have enough data to be measured? Well, what we scored them on was... So your goal is to give everybody a safety rating. Congress told you 20 years ago that everybody you allowed to operate should have a safety rating. And using SMS in the background, each year you're giving less and less safety ratings.
So if all this does is a status quo ante in terms of allowing you to issue safety ratings, what you're saying is the safety ratings are only going to be given to less than 1% of the carriers a year. Another little hidden jewel in what they said was we've determined that past history is only valid if you go back a year. So when you look at the number of carriers who have safety ratings, there may be 60,000 carriers who have safety ratings. But the ones who have safety ratings issued in the past year is less than 10,000, and there's 700,000 of them.
So our question was what's it all about here? Why are we going into rearranging a system if the outcome is you're going to leave 99% of the carriers unrated? Most of the large carriers or most of the carriers who've enjoyed a safety rating inherited it. It could go back 20 years, and it could be satisfactory. It remains satisfactory. Why? Because they haven't been inspected and found to be less. But if you go into it as a new carrier and you have an audit, they'll cut the audit short and won't issue you a new set. As it currently operates, a new carrier, since they don't consider the new carrier audit, will be shown to be unrated.
If for some reason they come up on the radar, they'll start with a non-rateable audit. If they find no basis for issuing a safety rating, they default back to unrated. If on the other hand, you have a satisfactory safety rating, albeit 20 years old, and they come in and do an unrated audit and decide not to do a full review, you fall back to your set. So that very system prejudices the public's view of a new entrant, who really has no chance of getting a satisfactory safety rating under the current thing unless he is, first of all, in the bullseye of needing an audit.
Todd Dills: Right. And to get there, basically, there are some negative piece of data associated with that carrier already. So the likelihood of a satisfactory rating is even more small, I guess.
Hank Seaton: Yeah, and obviously a difficult problem. I think we all want to be sympathetic with the fact that when you get 100,000 applications a year, you've got yourself a problem. But when you have a system that only selects people for audit based upon unpublished criteria, it can be that if a carrier is involved in a fatality accident that he didn't cause, that someone at the agency says, "Look, we need to go look at this guy," it could very well be that even on a regional basis, an agent makes a decision of who needs to be examined by an increase in HOS. Since these decisions to whom they go in and do a reboot audit is up to them, hopefully they're making intelligence decisions, but it is totally discretionary. The fact that it's totally discretionary doesn't mean that it's a focused audit on the people who most need it.
Todd Dills: Well, I mean, that's the rationale that FMCSA continues to give for the SMS itself, is that it's a way to better prioritize carriers who have issues. It sounds like what you're telling me here is that you don't think that this reboot of the SMS, the changes that they're proposing here, is going to result necessarily in that goal or achieve that goal.
Hank Seaton: But if you look at this particular request for comments, and you see that it's not going to change the ultimate score, then you say, well, if it doesn't change the score and we don't move the score, how is it going to result in people getting more safety ratings?
Todd Dills: Yeah, it doesn't change the nature of the score is what you're saying.
Hank Seaton: Yeah, it won't.
Todd Dills: I mean, the little tweaks do change carrier scores. They go up and down.
Hank Seaton: Yeah, they go up and down. But the real issue with this standalone, and our comments were focused on what's it all about? You say that based upon what you've got, you're going to recalculate the data, but it's not going to change the score. Isn't your real goal to figure out if you only look at a one-year look back, how do we determine that these people are satisfactory to use? How do we do our job rather than every year continue the idea that we're going to look at 5 or 6,000 carriers for whatever reason, but all the rest of them are going to have this absent of a red light/green light, have the difficulty as a new carrier of getting business because brokers are afraid to use you since they know that you haven't even been through a new carrier audit.
So our real issue there was, "Hey, look, we're not standing in the way of the changes you're making, but we are questioning what positive good is it going to accomplish, particularly if you go back to one year and are acknowledging that the system can't measure 98% of the people that are out there." So that was kind of not knowing what they were otherwise going to do. And what they professed to do in that was to call out that it may be a kinder, gentler program and little guys may say, "Well, who? I won't be investigated because I'm going to fly under the radar." But in terms of accomplishing the agency's ultimate goal, it just wasn't in that.
Todd Dills: We've talked about this before you and I, but you guys have posted some pretty concrete things that could be done to actually do the rating of every carrier in the nation. And in the commentary, you actually do propose that, again, officially.
Hank Seaton: Our group, first of all, let me say that our coalition includes strong representation for small carriers through NASTC, who's part of it and who's very motif is designed to see that small people get an easy treatment, a fair treatment. But also, a group of various niche carriers from auto haulers to specialized furniture people, different groups that all have the commonality of the SMS scores, got a large number of drain carriers that participate as well because the special issues that drain carriers have with their containers that result in scores. So I say all that to say that our real goal is not to defeat SMS. Our real goal is to have in place a system that gives everybody who's allowed to operate a red light/green light for use. So then that regardless of size, the shipping public is free to vet a carrier and from safety purposes rely on the FMCSA website. So there wouldn't be any of this unrated. The very term unrated suggests that they ain't even been looked at.
Todd Dills: They don't know anything about it.
Hank Seaton: And unfortunately, with the influx of new applicants, that is increasingly what happens because the agency will issue the authority after a 10 or 15 day notice and they haven't even conducted a new carrier audit. Now the new carrier audit is an issue on which there's actual agreement and it is been around now for 8 or 10 years, and it is an audit that's supposed to be conducted within the first nine months of operations and it's basically a desktop audit. It relieves the pressure of having to send somebody out there to conduct the audit, but it goes through the safety regs, and requires the applicant to prove that they've got the ELD, their driver qualification files are in place. So the test, last time it was priced was $400 for the thing to be done by a skilled auditor. And it results in someone being able to say that this carrier has in place the mechanisms necessary to comply with the agency.
And that in and of itself is the equivalent of taking a driver's license test. That would lead to a certification that you're licensed to operate, the same way a 16-year old has to prove some proficiency. And if as we'll talk about later, they're ultimately aiming at addressing the safety fitness rule, then that changes that denomination of unrated into certified for use and that becomes the red/light green light. So this proposal was presented to the FMCSA and the DOT during the previous administration when they asked for suggestions on how to modify the safety program. It was presented by Rick Gobbell, and you may know Rick did safety compliance in common sense with the road dog system for years. And he's a consultant with our firm. He knows the regulations inside now, and what he basically proposed was that the new carrier audit be given priority. You add into the filing fee, the $400. So it's a revenue neutral to the agency and that it pushed up.
Todd Dills: So it happens before.
Hank Seaton: Yeah, it happens. And I've just got to insert here that there's so many ghost carriers getting authority out here that can't even get beyond having a post office box that spending some money on verifying the elevator of new carriers to certify that when they fill out an MCS-150 and they say they got 25 trucks, somebody needs to see the VIN number. So I'm just saying that the whole process would address far more intelligently an examination of the carrier than whether or not it got caught up in a speed trap.
Todd Dills: Right. But that system, it doesn't seem to you that that's where the agency is heading when it comes to safety ratings.
Hank Seaton: We have not seen anyone pick up on the idea, and it's frustrating because it appears to be a very coaching idea. And I say that understanding that if you do go out and look at all of the newbies, they're going to be some guys that aren't going to be happy. They're going to be some people that our learning curve is not really deep enough. Our hope would be that they would follow the practice that was traditionally in place here in Tennessee, which was that the agents didn't come out there with the presupposition that you were a safety scuffle. That the first audit was, "Look, we understand you've applied for your application, here's a manual of what you're expected to do. If you got any questions about it, give me a call the next week because on Tuesday the 13th, I'm going to have a desktop audit with you."
So the thing is, the agency's goal should be to facilitate the operation of a competitive motor carrier system that's open to everybody who can comply. And just like my 16-year-old grandson took driver training and had a book he had to study before he took his driver's license, something very similar would be helpful. Now fortunately, a large number of the new carriers that are coming into the industries are actually former owner operators and they're very high on the learning curve. If somebody is 22 and his brother was a trucker and he wants to get into it, then we don't necessarily want to discourage his entrepreneurship, but we want to be sure that the system allows for him to get the kind of training he needs.
Todd Dills: So in that case, these new auditors under this kind of a system would almost be like a training resource for people that are getting into the business in addition to just doing the audit. They'd be there to help in some way.
Hank Seaton: I guess, the best analogy is maybe to the cop on the block. We know that what we expect of our police force is people who are enforcing the laws but are not quick to shoot. If they're going to be the ombudsman, they don't need to profile every newbie as somebody who shouldn't be in the industry. And that's what we call prosecutorial abuse. And what I'm suggesting is that at that level, the agency's function should not be prosecutorial. It should be more to be sure that the traveling public understands the rules and is complying and to separate out those who are negligent or wrong.
Todd Dills: Or registering as a motor carrier for reasons that are not to move freight. Reference there to the rise in double brokering by registered entities, both carrier and broker set up for that purpose, of course.
Hank Seaton: As we've discussed, those two issues really play themselves off hand in hand because the way the system is set up now, a lot of people file for authority and aren't able to pay for the insurance. So the authority never goes active. And by the same tone, there are a lot of guys who are non-asset based carriers. They don't even have trucks, but you can't discern that from the data that's on the FMCSA website.
The second issue, which came down close on the heels of the reboot is the Crash Preventability Determination Program. And I'll explain a little bit about that. Back in 2010 when they were looking at roadside inspections and fractions, they realized that they couldn't muscle up a coalition of a correlation between that and safety. And they realized that actual crashes are the best prediction of future crashes. I mean, that would be an obvious thing that if somebody has an accident, is it a one-off because a one bad driver or is it symptomatic that the company didn't care and the guy was encouraged to speed, so you have to get to the root cause of the accident. The agency came up with this notion that they would strip the accident reports and use it as part of the formula to determine the [inaudible 00:35:31].
Todd Dills: Hank seems to be making reference there to the CSA SMS crash category measurement generally. Since establishing, that it's tweaked its system for what crashes can be included there to allow carriers to remove certain crash types deemed to have been non-preventable by panel's review. An FMCSA earlier this year then proposed to expand the types of crashes that could be removed if deemed non-preventable.
Hank Seaton: Well, a large part of the objection that people had to, this was really twofold. Number one, the categories were looked at very tight. It was almost to the point that, well, we'll give you if it's a deer strike, but not if it's turtle or something. I mean, it was pretty arbitrary in terms of what qualified. A lot of accidents, for example, maybe a rear-ender is easier to determine if somebody swerves in from the left-hand side. Well, the whole system then is based on hearsay because after the wreck occurs, in comes the police and the police take affidavits from the people that are there. And as our friends down in Louisiana have proven, some of the guys that are offering the evidence may be the perpetrator or the fraud.
Todd Dills: As regular Overdrive readers over the past several years will be aware that's a reference to the big bust of a ring staging accidents around New Orleans for the purpose of defrauding truckers and their insurers.
Hank Seaton: So in any event, the reports that you get are from the well-meaning police officer, but they're purely based on hearsay. Whether the car was swiped at a 50 degree angle or a 60 degree angle, how the accident reoccurred is really just pure hearsay based upon A, whether or not a mix app trained officer made the report, and B, what the hearsay was. So the system itself is clawed with due process issues. The agency broadening the scope of what's to be considered again is certainly nothing that is objectionable. But what it does beg is all of the objections which were not cited that we had continually made over that program. And going back 10 years, we had pointed out that there were real due process concerns with that primarily because first of all, it's based on hearsay. The second of all, the decision whether or not this preventability is made by a policeman who may or may not be right. And the decision on appeal has you say, "Hey, I want a DataQs this." well, it goes to the officer's superior.
Todd Dills: Oftentimes in the regular DataQs process.
Hank Seaton: In the regular DataQs process, what you're doing is you're going back to the prosecutor and saying, reconsider. So without getting too geeky and too lawyerly, at best, whatever the cop on the block has done might be a grand jury thing, but it's certainly nothing that should be rubber-stamped as preventability. And so, we're concerned about the due process concerns. You don't get an ALJ on it.
Todd Dills: An administrative law judge, Seaton means there.
Hank Seaton: And moreover, you have to ask yourself, what is it really all about? Now let's say we've got a serious accident. That serious accident is going to be determined based on fault. It's going to be determined by a jury system after a whole lot of evidence, then a whole lot of due process. The DataQs is quick and dirty because it is based on hearsay that the well-meaning officer took down and then the appeal process is back to the processor. So it's just that the system would have a very tough time passing what we call the test for a rule because of the due process concerns.
Todd Dills: And the Crash Preventability Program though, when they're using the DataQs, when carriers use the DataQs system for that, I do not think it goes back to the original jurisdiction necessarily. I think there's a special panel that handles those. Am I wrong with that? I think in the normal course of DataQs when you're challenging a violation or whether your crash should be on the record, it has traditionally gone back to the jurisdiction that issued the inspection. But I think that the Crash Program is a little bit different.
Hank Seaton: It may vary. Well, the most recent one that I've handled was one in Indiana and it went to the Indiana folks. I'm not sure...
Todd Dills: That wasn't one in the Preventability Program probably, right?
Hank Seaton: Yeah. It may not have been-
Todd Dills: That was just a regular crash.
Hank Seaton: It is not our objection. It is not whether or not the appeal is to a state enforcement official or to someone within the FMCSA who has that. The distinction is really a little more well drawn than that. For example, if you are an eminent hazard because of a wreck, the appeal of that, you get an ALJ. And an ALJ is an administrative law judge who is within an agency and is independent of the prosecutorial chain. And so, what we would suggest is that in this regard, that in the chain of command, the proper thing for it, if it's going to have an effect, it would probably be an ALJ.
But I've got to say that if you get a proposed onset, your appeal is to the chief enforcement officer at the agency. So you are already caught up in a non-judicial appeals process that's going back to the prosecutor. The other thing that I would say is, and we've cited it in our filing, that the whole question of the validity of the DataQs process and the other issues are well laid out before this. Part of what... I doubt any of your listeners really want to read the filings that we-
Todd Dills: I do suspect Hank Seaton might well be wrong about that. Look for a couple of links in the show notes where you're listening to this Overdrive Radio episode.
Hank Seaton: But what we are doing is to be sure that the problems with the issues that have been raised over the years are not lost sight of and well, this is a new breed of cat because it's not, it's really probably a step in the right direction. But when you ultimately get to what we're going to talk about is a new safety fitness rating, you need to look at what is the efficacy of the whole program.
Todd Dills: And so, we've got well established long-standing problems in the DataQs system in the SMS, and we're making these incremental steps to an agency trying to address some of the issues that are made. And one thing that stuck out to me in that comment that your groups filed on the Crash Preventability Program was the notion of, I think it is the Level 8 inspection, the CVSA inspection standard. That's an electronic inspection that the Volpi Group works with in FMCSA, which is a technology development group and advice advisor.
Hank Seaton: They are in Massachusetts and they have been the agency's vendor of choice for all things technology. The algorithms which mystified us in 2010 was Volpi creation. And they are the data meisters that the agency relies upon. What came as a shock to us that are trying to puzzle together where the agency is going is that soon after the two proposals, we talked about the kinder gentler reboot and broadening the exemptions. We got the opinion, "Well, gee, what's it all about? Thanks for making it easier," but if ultimately it's not going to issue safety ratings, and you admit that there's no sufficient data, what's it all about? Well, maybe a crystal ball got a little clearer with a notice that came out that the FMCSA was going to change its roadside inspection program, and that Volpi was working on programs we haven't seen before.
Todd Dills: Our readers who've tuned into our trucking status surveillance series of special reports will no doubt recognize what Seaton's referencing there and here I explained to him the reporting I'd done about moves towards standing up a test of the Level 8 automated electronics inspection. Essentially, a driver inspection that can occur when the truck is simply rolling by a scale or mobile inspection point and communicating electronically with enforcement. The FMCSA's Volpi Center is not necessarily leading the effort toward making that a reality, yet supporting it with FMCs a itself and the lead and the Commercial Vehicle Safety Alliance in a big organizational role itself. After I shared what I had found about the various moves made toward the Level 8 inspection standard, still rather slow-going Seaton and noted that his coalition had referenced Volpi's late May press release, which suggested Level 8 inspections, have the potential to collect 10 times more inspection and violation data than is currently found. His first reaction to the sheer complexity of it all was this.
Hank Seaton: Well, I mean, I guess, the question is that little bit of information may indicate there's not going to be any new safety fitness determination before my career is over. To think how slowly we have come in the past 13 years, the idea of a rolling inspection and somehow being assured that good inspections were going to be kept is a sincere issue. The problems that we see obviously is 10 times the amount of data. If that is true, it would take what they have said earlier about accountability under SMS and change it. So when they say the reason for a kinder, gentler inspection system is most of you guys are not going to be measured to now say, "Well, gee, we're feeding 10 times the data into it." 10 times the data is just overwhelming to figure out how they would manage it. It's also overwhelming to figure out how you record all that stuff with the truck brake from down there.
Todd Dills: Well, yeah. I mean, right now, CVSA, they write the requirements of all the different levels of inspections, right?
So right now, the Level 8 inspection, which is an electronic inspection, none have been done, but the standard exists. It looks like a level three, which is a driver only inspection, credentials, logs, etc, medical card, that kind of stuff.
Hank Seaton: What does he do stick it out in the window?
Todd Dills: Well, the idea would be transmitted electronically with security -- cybersecurity is a big part of all this. A big part about the talk around it. How do you keep all this stuff secure? While it’s flying back and forth? Of course, that's a question for all the society.
Hank Seaton: Is this supposed to be hands free for the truck driver? Nobody's saying, "Hey, stick your driver's license out the window."
Todd Dills: No. This is hands free for the drivers. But there's no equipment data passing back and forth, well, unless they change that standard. And then that's also been talked about. So the creep of this is the possibility -- this creeping into the vehicle itself and brake sensors and other sensor technologies that can be used to transmit operating status to the roadside is a possibility in the future. But that's not what they're looking at now.
Hank Seaton: Well, yeah, but I mean, we already have this issue in California and elsewhere, not just driverless trucks.
But all of the other kind of things, you basically have to retrofit every truck to have that kind of stuff. I guess, I could see if you've got an ELD, being able to download the ELD so that if some dude crosses the scale and you have correctly assessed who he's working for. I mean, all of those kinds of issues are left to be resolved.
Todd Dills: And there have been demonstrations of that very thing. They call it expedited level three driver wrong inspections where ELDs are used to transmit data to the roadside that pre-populates an inspection report with the carrier driver credentials and everything else. And then in true, what they're envisioning is the Level 8 though, that becomes somehow that that is a full inspection. And an expedited level three, the demonstrations that have been done, it requires that final step of just finalizing by law enforcement officers himself in order to make it an actual inspection. But what they're moving towards seems like is that final step of human interaction doesn't have to take place, I guess. And the inspection occurs just by virtue of a truck rolling by transmitting the information and you're done.
Hank Seaton: Let me ask you a question in this regard. Increasingly because of the frauds and scams, we have a real problem identifying whether the equipment that shows up is being owned and operated by the carrier We hire.
At this point, all we have is there should be a decal on the side of the truck. Lots of times people will say, "Well, it's trip-leased, can't you see the cardboard?" But I mean, doesn't this system ultimately require a database that show this by VIN number or...
Todd Dills: Then they proposed that too last year. The Universal ID requirement would not likely come into being as a thing where they go back and retrofit every single truck, but proposing to require a system in new vehicles. Well, they started a rulemaking process. I don't know if it'll... I think they did an advance notice last year where essentially they were asking questions about the idea of doing this. CVSA has petitioned for it. And I think within CVSA, the idea is that the VIN number can be electronic, it's your unique ID for any piece of equipment out there. And all new vehicles would come with the capability of transmitting that to the roadside. All of the little pieces of this are in place. But in terms of the safety rating and all of these issues, how do you wrap this up? Where do you see this going? I don't know.
Hank Seaton: I do not have access to the minds of the bureaucrats. And I don't want to be a naysayer. I understand that in the future, we have got to accept that there's going to be a whole lot of technology and that big data is going to drive things. My concern is that trucking, as we know it, is going to have a major birthing pain trying to get some of this accomplished. You start talking about Section 8 and being to-
Todd Dills: Level 8.
Hank Seaton: ... Level 8, being able to get all of this data with artificial intelligence and then convert it somehow into a rulemaking. And I'm thinking about what is the future for small carriers? What is the cost of trucks? It sounds like all of these things, particularly for someone who operates under a fleet model and buys and keeps a unit for four years might work. It might really benefit the large folks. I think it being a real hassle, particularly for holder drivers who may look like me, who have a hard time turning on a computer, much less getting access to FMCSA data, and I just don't see the pain being worth the gain. And I don't see it working for little guys. I mean, I'm certainly open to it, but it needs to be certainly spelled out. There's no way that you can one month say that we don't have the data that makes it the next month. Say, "Well, gee, this is where we're going."
Todd Dills: Yeah, we can get 10 times in that.
Hank Seaton: And then finally, the last thing we're going to talk about is there's notice being offered to OMB that the agency wants to relaunch. And this is not a reboot of SMS. This is they want to look at replacing 385 as the ultimate Safety fitness standard for issuing a safety rating.
Todd Dills: They want to change it somehow. We don't know what yet.
Hank Seaton: Well, yeah, that's the issue. They want to change it somehow. And when you start with the jigsaw puzzle and all, you've got two ends, you really have a hard time figuring it out. I don't see how that's all going to get put together, particularly from a legal point of view, agencies are particularly afraid of the rulemaking process because when they ask for guidance or they give a preliminary notice, they get to certain parts in the notice that requires them to be sure that this is guidance and it's not a rule because if it's a rule, they have to address things like the effect on small carriers and Paperwork Reduction Act. They've got to do a cost risk analysis. There are a whole lot of things that go in to making a permanent rule. And the way this thing is setting up, particularly with some of the things that you've put in today are very forward-thinking.
But making it a reality may come long after there aren't even drivers and trucks. It seems to be the same challenge, particularly given the fact that right now the agencies list of how many trucks a carrier operates woefully deficient, there's no check on it. So I mean, if you were just going to start in terms of accident per million miles, we don't really have that. So I guess, part of my concern about being particularly computer-literate to Eric Human, if you're able to screw it up, get a computer and a bunch of data. So it sounds like these four issues indicate a reboot and a seriousness by the agency on getting down to what's its chore. And let's just keep an eye on the shore, which is to be able to give an objective fair audit to however many carriers is brought to the agency. And I'm not sure that drowning it in a whole lot of more data is more efficient than an actual every two years have somebody go through a new carrier audit on the phone with the guy.
Todd Dills: And that's a wrap on our multi-part Trucking’s State of Surveillance series. You can catch all the reports at the world-famous overdriveonline.com, search Trucking State of Surveillance, or catch a direct link in the show notes wherever you're listening. Overdrive Radio is available via Google and Apple Podcasts, Spotify, TuneIn, SoundCloud, Overcast, and so many of the other podcasting services. Subscribe to access those episodes early. And if you haven't, leave Overdrive Radio a rating or review where you're listening. No doubt it helps other interested owners find the podcast.