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The Dangers of
Data
A DataQs is a new FMCSA initiative I first heard about at a listening session the agency sponsored to discuss needed modifications to its safety enforcement rules. FMCSA realizes that SafeStat, the data-driven system it uses to target safety enforcement, has flaws and that improvements are needed to cope with future demands. In fact, several months ago, FMCSA removed from its public websites the accident-related portion of SafeStat data as well as the overall SafeStat scores. The move is temporary as FMCSA works with states to ensure that accident data is accurate, complete and timely. Most carriers are unrated, and the task of auditing all motor carriers is impossible. Some quantitative measure such as SafeStat is necessary to determine which carriers pose a risk to public safety and should be investigated accordingly. Yet the agency acknowledges problems in assigning inspection value and with data entry mistakes. The law of large numbers exaggerates the effect of one random accident on small carriers. The failure of many inspectors to enter satisfactory inspections in the system can distort a carrier’s out-of-service percentage. Inconsistent inspector biases and inaccurate benchmarking of comparative carrier size also are distorting factors. DataQs is intended to provide carriers an effective mechanism for correcting erroneous data in the SafeStat system. One entered, the dispute is referred to the reporting state for a response, and determination of the issue with corrective action is supposed to occur within 30 days. A discussion of this initiative can be found on the agency’s website at http://ai.fmcsa.dot.gov/Outreach/feature.asp. DataQs sounds pretty slick if it works. I would like to hear from anyone who tries this feature. Recent legal developments make problems with SafeStat particularly troubling. Even acknowledging the temporary removal of accident data and overall SafeStat scores, FMCSA’s websites still provide detailed safety-related information for all to see, including shippers, brokers, competing carriers and the plaintiff’s lawyers. Data on driver and vehicle inspections, traffic violations, compliance reviews and more remain on FMCSA’s websites. In my opinion, because the agency and law enforcement officials are tasked with keeping the highways safe, they and the affected carrier are the only ones with reason to access carrier-specific information. It’s interesting that even with the accident data removed from public disclosure, it’s still available to FMCSA, its agents and the carrier. A recent decision by the U.S. District Court for the Maryland District (Schramm vs. Foster; Civil No. JFM-02-3442) suggests that public availability of this information can give notice and place a burden of inquiry on a broker to analyze the SafeStat score of an unrated carrier to determine its fitness under the penalty of potential vicarious liability for the contracted carrier’s negligence to third parties. This decision is dead wrong in my opinion. No shipper or broker should have to second-guess the FMCSA about carrier safety. Congress preempted the field when it gave the agency the authority to put unsafe carriers out of service and when it protected the public by establishing carrier financial responsibility limits and the BMC-91X endorsement, which ensures that at least $750,000 would be available in bodily injury and property damage coverage to pay accident victims. A truckload shipper, broker or carrier who hires a licensed and insured carrier should have no more liability for that carrier’s highway accident than a passenger in a taxi does if the driver hits a pedestrian while in transit. It may ultimately take an act of Congress to reconfirm this premise in light of the plaintiff’s bar’s persistence in chasing the “deep pockets.” Yet, as long as SafeStat is available for all to view, the argument will be made that the sophisticated shipper or broker bears some vicarious liability for an accident because it should have and could have known that the unrated carrier it used had a higher-than-average equipment or driver out-of-service ratio. DataQs sounds like a step in the right direction. The next step should be to stop publishing every detail of the flawed data on the FMCSA website for all to see. If the agency continues to permit a carrier to serve the public, the shipping public should be entitled to rely on the agency’s expertise without fear of being sued for failing to second-guess its determination.
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