CSA 2010: FMCSA revamps its motor carrier safety assessment guidelines

by Steve Block (Foster Pepper PLLC)

In keeping with the evolving technologies, business practices and volumes modern transportation has presented over the past decade, the Federal Motor Carrier Safety Administration of the U.S. Department of Transportation (FMCSA) recently promulgated the “testing phase” of a new program for assessing, monitoring and reporting the safety and reliability of licensed interstate motor carriers. By the end of this year, the Comprehensive Safety Analysis, dubbed “CSA 2010,” which includes the Safety Measurement System, colloquially called “SMS,” replaces the 13-year old Safety Status Measurement System, or “Safestat” (this business is no place for the acronym-ophobe, is it?). Like Safestat, CSA 2010 will address how naughty or nice motor carriers are in complying with federal safety rules. But the new program is far more comprehensive and encompassing.

Safestat, implemented in 1997 by the Federal Highway Administration (which then oversaw motor carrier safety), evaluates four categories of safety – Accident, Driver, Vehicle and Safety Management – to spit out a score that compares motor carriers regarding their safety. Given privacy issues and FMCSA’s understanding that data used to generate Safestat Scores isn’t all that accurate or dependable, results are not published. Safestat’s primary purpose is to prioritize carriers for compliance reviews, the FMCSA’s current motor carrier safety audit program.

CSA 2010 is designed to be a more reliable, accurate, proactive, issue specific, and public-user friendly. It also has some teeth to it, i.e., it contains an intervention program which can nip naughties in the bud.

SMS will measure seven Behavior Analysis Safety Improvement Categories, or “BASICs,” which include Unsafe Driving; Fatigued Driving (which implicate the new Hours of Service regs); Driver Fitness; Controlled Substances and Alcohol; Vehicle Maintenance; Improper Loading/Cargo Securement; and Crash History. The data in these categories are weighted differently and are derived from safety performance undertakings such as inspections, traffic enforcement, intervention and crashes. Check out FMCSA’s website for a detailed analysis of how these categories will be scrutinized.

Criteria from both drivers and motor carriers will be considered separately, and data will be crunched to spit out scores used to determine whether, and to what extent, an intervention is indicated. Yes, carriers will be able to find out where they stand at any given time. DOT-registered carriers will be assigned PIN numbers to access the “Comprehensive Safety Information,” will be CSA 2010’s data system. Most collected data and assessment results will be made public. However, a carrier’s “crash indicator” score will be generated based on factors no limited to fault and accountability, and will not be publicly accessible.

CSA 2010’s SMS is generally more comprehensive than Safestat. Other differences between the two programs include: SMS will take into account all safety-based inspection violations; Safestat focuses only on certain moving violations. Unlike Safestat, SMS weights risk-based violations; and an adverse SMS assessment will negatively impact a carrier’s safety fitness rating.

Under CSA 2010, trucking companies who pull bad assessments are subject to “carrier interventions,” which consist of a range of escalating corrective and disciplinary measures beginning with warning letters, moving up through burdensome investigations, and culminating in suspension of operating authority. How hard FMCSA will come down on a carrier depends on how many BASICs deficiencies it has (and how serious they are); were it has a high crash indicator, suggesting imminent danger; and whether there’s been a complaint or fatal crash. Where the motor carrier falls on the intervention continuum can be influenced by certain circumstances such as its safety performance; status as a hazmat or passenger carrier; and/or history of no-no’s under the program.

Carrier interventions are designed to be more remedial than the “compliance reviews” undertaken pursuant to Safestat. You can get your wrist slapped pretty hard during an intervention, but unlike the old system, it will also have a corrective component to help well-intentioned carriers in the future. Interventions are more comprehensive and tailor-made for a carrier’s particular circumstances, and will be implemented more systematically and earlier in the process, i.e., to avoid an accident rather than just react to one. A carrier (or driver) will remain in the intervention process until its (his/her) BASICs scores come down below certain thresholds.

FMCSA’s recent technology upgrade, known as “COMPASS,” will be integrated into CSA 2010. COMPASS will allow more fluid access to information in user friendly formats not available under the current program. It will facilitate carrier access to BASICs and other information as described above, and will be more conducive to disseminating and implementing the frequent changes to regulations and business practices than FMCSA’s current IT systems allow.

So what impact will CSA 2010 have on trucking accident litigation? While much remains to be seen, and probably ironed out, here’s a quick forecast of the role a more comprehensive safety regulatory system will play in the courtroom.

Demonstrated compliance with safety regs, and the smiling approval of the trucking industry’s governmental watchdog, probably won’t get a carrier out of a post-accident legal mess altogether. Just because FMCSA likes you and you haven’t been charged with safety violations doesn’t mean you can’t be liable for an accident. However, those things could very well be good evidence. In other words, the fact that Uncle Sam has laid down an increasingly detailed set of safety regs and kept a vigilant eye on who’s been following them leaves less for creative plaintiff lawyers to point to when trying to establish a motor carrier’s fault. At a minimum, a good record under SMS should be effective toward reducing or eliminating punitive damages claims, which typically are based on egregious disregard of public safety and/or blatant violation of trucking regulations rules of the road.

Of course, the reverse might apply as well. Injured plaintiffs could enjoy a tremendous advantage when suing motor carriers with bad BASICs scores in ways pertinent to an accident’s cause. Thus, one potentially negative repercussion of CSA 2010 for carriers is that any trucker with a bad history or a sudden drop in its scores could find itself more prone to lawsuits. With most CSA 2010 data made public, injured plaintiffs might become quick to cease on a basis to allege that a trucker is blameworthy.

Again, however, it remains to be seen whether, or to what extent BASICs and related information generated under CSA 2010 will be admissible trial evidence, as it is subject to considerations, values, focuses, and concerns of a government agency concerned with safety policy, and not with the admissibility of proper trial evidence. A good argument could – and almost certainly will – be made that FMCSA should not be allowed to heavily influence trial proceedings by criteria it applies for reasons different than allocation of tort liability.

Records keeping motor carriers will be heavily incentivized to undertake likely, or at least hopefully, will generate better documentary evidence of often critical points such as hours of service, drug and alcohol testing, log keeping, vehicle maintenance, corrective measures, etc. Because these items are critical to a motor carrier doing better under SMS, improved documentation practices should arm defense counsel with better records to rebut claims of systematic neglect.

Of course, the hope and intention of all concerned is that CSA 2010’s biggest impact on litigation and tort liability will be to reduce it. Incentives to keep FMCSA off truckers’ backs should have the concurrent effect of reducing accidents altogether. Avoiding bad government records accessible by injured plaintiffs and their lawyers is a good idea to all motor carriers (and their insurers, who might also consider their own carrots and sticks based on SMS assessments, i.e., by lowering premiums for those truckers who are in good standing).

CSA 2010 will be tested in six states through the summer of 2010, and then slowly rolled out to the entire land by way of phased dissemination of information and training; followed by issuance of warning letters; commencement of monitoring of compliance; and finally full-blown implementation. Feedback on the experience will be collected from both government and industry sources throughout the process.

CSA 2010 is an opportune effort to increase roadway safety. In these times of economic difficulty, with carriers and their owner operators receiving fewer orders and generating less revenue, cost-cutting tactics – unfortunately – often include disregard of safety measures. With deregulation and the ease of obtaining interstate operating authority, the number of smaller carriers has increased exponentially. Each driver and owner operator associated with America’s 100,000-plus motor carriers has his/her own stake in a good SMS assessment. This creates an environment that requires a more focused and comprehensive safety regulatory program that can be modified with new regs, advancing technology and evolving business practices.

Ref: FMCSA’s website page devoted to CSA 2010, [url=http://csa2010.fmcsa.dot.gov/.]http://csa2010.fmcsa.dot.gov/.

Steve Block is an attorney concentrating on maritime, transportation, and fisheries law with the Seattle law firm of Foster Pepper PLLC. He can be reached at sblock@foster.com or (206) 447-7273.

January 14, 2010