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TRANSPORTATION

LAWYERJuly 2012 Volume 14, Number 1

A Comprehensive Journal of Developments in Transportation Law

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There have been some signifi-cant developments in Compliance, Safety, Accountability (“CSA”)1 since the first of the year, as CSA not only continues to be a work in progress but also a good source of contro-versy. These developments include a delay by the Federal Motor Carrier Safety Administration (“FMCSA”) in implementing a system for assessing carrier responsibility for reportable crashes, changes or “enhancements” to the Safety Measurement System (“SMS”), and further delays in imple-menting the FMCSA’s plan to use SMS data in the making of Safety Fitness Determinations for carriers. These three issues are addressed sepa-rately below.

Crash Indicator BASIC Changes

At the time that this article was written, controversy was still swirl-ing over the abrupt decision by the FMCSA to delay the planned March 2012 implementation of a system for assessing fault for reportable crashes and then to use the assessments to weigh reportable crash data for the Crash Indicator BASIC. The frustra-tion over the lack of a fault assessment process mounted when the FMCSA subsequently announced plans to

*Special Legal Projects Counsel (Atlanta, Georgia)

CONTINUES TO BE A WORK IN PROGRESS

Walter R. Metz, Jr.*

disclose the number of fatal accidents in which a carrier has been involved separately from the “injuries/crashes” in a carrier’s SMS information cat-egory. The separate fatality accident data breakout change was scheduled to be made public later this year, as part of a slate of FMCSA changes to CSA. These changes are discussed in more detail below, but the upshot of the two agency decisions is to allow the number of a carrier’s fatal acci-dents to be highlighted in public view, while withholding the fault assess-ments that could put the raw numbers of fatal accidents in a different light. Meanwhile, public access to carrier scores for the Crash Indicator BASIC is also delayed.

Separate Fatality Accident Number Breakout IssueThe implication of the separate

breakout of fatality accident numbers is best seen through an illustration. A public view of an anonymous carrier’s “Summary of Activities” under CSA looked like this before the scheduled change (note the last category of “Injuries/Fatalities”):

Number OOS RateTotal Inspections: 17,345 Vehicle Inspections: 9,159 14 % Driver Inspections: 17,245 1 % Hazardous Materials Inspections: 788 2 % HM Placard Inspections: 535 3 %

Total Crashes: 981 Tow-aways: 944 Injuries/Fatalities: 350

The July change replaces the category of “Injuries/Fatalities” by pro-viding separate numbers for accidents involving fatalities and those involv-ing non-fatal injuries. The FMCSA described the reason for the sepa-rate breakout of fatality crash data as follows:2

Overview: In the “Summary of Activities” section of a car-rier’s information on SMS Website, FMCSA displays a count of reportable crashes broken into two categories: “fatal/injury” and “tow away.” Stakeholders have asked FMCSA to separate the combined “fatality/injury” category.

Solution: FMCSA developed a method to display injury crashes and fatality crashes separately.

Notwithstanding the explanation provided by the agency, carriers do not like the fact that the number of fatal accidents in which a carrier has been involved is now being highlighted, regardless of fault.

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TLA Feature ArticlesCrash Indicator

BASIC Scores and the Fault Assessment Delay

Although a carrier’s publicly avail-able information on the SMS website will now include a separate count of fatal crashes and injury crashes, the FMCSA is still not providing public access to a carrier’s Crash Indicator BASIC score. This is because of con-cerns voiced by trucking companies that interested parties, such as ship-pers and insurance companies, should not be influenced by Crash Indicator BASIC scores that do not take into account fault. At present, the Crash Indicator BASIC scores (currently unavailable to the public) are based upon “reportable accidents” data. This data is defined as “[t]he number of crashes that required at least one vehi-cle to be towed from the scene due to

disabling damage . . . as well as the number of crashes that resulted in an injury or fatality to a person involved in the crash”3 As described by the FMCSA, the agency uses all crashes, regardless of fault, in scoring carriers under the Crash Indicator BASIC as follows:4

The structure of the new SMS is such that crash account-ability is not automatically determined or considered. In fact, recordable crash reports that States submit to the Federal Motor Carrier Safety Administration do not include an accountability determination. Consequently, motor carriers are identi-fied for possible intervention based on recordable crashes without consideration of accountability. Why does

the Federal Motor Carrier Safety Administration take this approach? This approach is taken because data analy-sis has historically shown that motor carriers who are involved in crashes, regardless of accountability, are likely to be involved in more future crashes than carriers who are not. Put simply, past crashes are a good predictor of future crashes.By way of illustration, this is how

the lack of public access to Crash Indicator BASIC scores was reflected for an anonymous carrier on the FMCSA website at the time this arti-cle was written (note that by the time this article is published, the changes to the Cargo-Related BASIC discussed in a subsequent section of this article would have been made):

BASICs Overview(Based on a 24-month record ending March 23, 2012) On-Road Investigation BASICs Status

Unsafe Driving 44.7% =

Fatigued Driving (Hours-of-Service) 11.9% =

Driver Fitness 51.7% =

Controlled Substances and Alcohol 25% =

Vehicle Maintenance 58.5% =

Cargo-Related Not Public = Not Public

Crash Indicator Not Public = Not Public

*USE OF SMS DATA/INFORMATION

Until very recently, it appeared that the agency’s ultimate goal remained to be the implementation of a crash accountability process to be used for the Crash Indicator, and that the agency continued to work on a plan to provide carriers with an assessment of fault in the crashes to be used for the Crash Indicator. The agency had stated that the “FMCSA is assessing the feasibility of

evaluating crashes for accountability/preventability before they are used by the SMS in the Crash Indicator BASIC. This would allow FMCSA to better concentrate intervention efforts on motor carriers that have high preventable/accountable crash rates”5 However, FMCSA Administrator Anne Ferro disclosed in late April that the agency was studying whether implementation of an improved crash

accountability process would be cost effective. Administrator Ferro indicated that she was hopeful the further study would shed light on whether the removal of preventable crashes from a carrier’s crash indicator score will help turn the enforcement spotlight “towards companies with a significantly high crash risk.” The study should be completed by the end of the year.6

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The crash accountability assess-ment plan, as originally proposed, would have placed primary reliance upon information gleaned from acci-dent police reports. The plan would have provided a method of coding every interstate motor carrier crash as either “accountable” or “not account-able” to the motor carrier and the driver.7 If a carrier was found to be without fault in certain reportable accidents, the adverse impact of those accidents on the carrier’s score would be diminished through a system of weighing crashes for fault.

When the FMCSA changed its plans to implement the fault assess-ment system for crash accountability in March, it apparently did so in reac-tion to concerns voiced by advocates that the system should not have pri-mary reliance upon police reports and that the plan did not provide the means for interested parties to comment upon the facts.8 Later, in public remarks, Administrator Ferro expressed doubts as to the reliability of the planned fault assessment sys-tem, due to the lack of uniformity and consistency of law enforcement agency accident reports nationwide and because of the need to provide a means for public input.9

Trucking industry representa-tives, who have been critical of the fault assessment system implementa-tion delay, are concerned that despite the continued cooperation of the trucking industry in the CSA imple-mentation process, the agency rather abruptly changed plans to implement an improved fault assessment system. This system would have based largely on objective law enforcement accident reports, and carrier statements made in the normal course. The agency apparently is looking to also include presumably subjective comments regarding individual accidents made by unidentified “interested parties.”10 However great the trucking commu-nity previously expressed concerns with the implementation delays and the potential that the fault assessment

system could take into account sub-jective input on individual accidents, greater concerns will likely be voiced if the agency shelves the planned system altogether because of Administrator Ferro’s expressed concerns that such a system may not be cost effective.11

SMS EnhancementsOn March 27, 2012, the FMCSA

published a Notice in the Federal Register entitled “Motor Carriers Can Now Preview the First Package of SMS Enhancements.”12 It announced the first of a series of changes to be made to the SMS system up to twice a year. The changes are detailed in the posted “Foundational Document” entitled “Safety Measurement System Changes.”13 After extension of the original deadline, the time period for making comments with the agency regarding the changes was set at July 30, 2012).7 The changes were to be implemented into the publicly dis-played website in July. During the comment period time, individual car-riers were given the ability to preview how the changes would affect them, by logging into the CSA website.

The FMCSA Foundational Document described the following changes:14

1. Strengthening the Vehicle Maintenance BASIC by incorporating cargo/load securement violations from today’s Cargo-Related BASIC.

2. Changing the Cargo-Related BASIC to the Hazardous Materials (“HM”) BASIC to better identify HM-related safety problems.

3. Better aligning the SMS with Intermodal Equipment Provider regulations.

4. Aligning violations that are included in the SMS with Commercial Vehicle Safety Alliance (CVSA) inspection levels by eliminating vehicle violations derived from driver-only inspections and driver

violations from vehicle-only inspections.

5. More accurately identifying carriers involved in transport-ing HM.

6. More accurately identifying carriers involved in transport-ing passengers.

7. Modifying the SMS display to (i) change current termi-nology, (“inconclusive” and “insufficient data)” to fact-based descriptions and (ii) separate crashes with injuries and crashes with fatalities. Through items 1 and 2 above,

the FMCSA has shifted the cargo/securement violation data from the current BASIC category called “Cargo Related” into the “Vehicle Maintenance” Category and has essentially created a free standing haz-ardous materials (“HM”) violations category. The change was apparently made in response to complaints from flatbed carriers that cargo/securement violations had too much of an impact on overall scores. The change tends to dilute the impact of cargo/securement violations.

The agency has created a new HM BASIC based on vehicle inspec-tions (i.e., Level 1, 2, 5 and 6) and HM violations where the vehicle was transporting placardable quantities of HM. The changes increase the impact of HM violations for carriers whose HM cargos are a small part of their overall freight profile. According to the FMCSA, the change was made because “the Cargo-Related BASIC currently includes HM violations and load securement violations, some HM safety issues could be masked.”15 At the time this article was written, the agency planned to make the results of the new HM BASIC category pub-lic, even though the Cargo Related BASIC had not been made public. The agency had not been publicly dis-playing the Cargo Related BASIC, out of concerns raised by industry repre-sentatives that HM violations do not

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represent a valid crash risk element, but the FMCSA has now changed its position.

Items 3 and 4 above are also maintenance and inspection related. Item 3 specifically relates to regulatory changes with regard to responsibility to make pre-trip inspections for inter-modal trailers. Previously, the SMS had not included any roadside viola-tions associated with an intermodal trailer distinct from the motor carrier. Such violations are now to be applied to the motor carrier when there is evidence that the driver performed a pre-trip inspection and the violation could have been detected in a pre-trip inspection. In item 4, the FMCSA has removed vehicle violations found dur-ing driver-only inspections and driver violations found during vehicle-only inspections, in order to align the SMS with existing CVSA policies regarding inspection levels.

Items 5 through 7 above are intended to identify certain catego-ries of carriers more accurately. Item 5 is primarily related to HM carriers. The agency is trying to restrict the number of carriers subject to the more stringent HM thresholds. By the time this article is published, the FMCSA will have tightened HM placardable inspection criteria, while keeping the HM review and permit criteria, to focus intervention resources on carriers involved in the majority of placardable HM transport actions.16 For a carrier to be subject to the HM threshold due to HM inspection activ-ity, that carrier must have:

At least two HM placardable inspections within the past 24 months, with one inspection occurring within the past 12 months, and At least 5% of total inspec-tions that are HM placardable inspections.

Item 6 above is intended to iden-tify passenger carriers more accurately and to subject them to a significantly higher standard and intervention

probability than non-passenger. Item 7 provides alternative terminology to better describe carriers that either have enough inspections but too few violations to warrant being consid-ered for the FMCSA interventions (“inconclusive”) or carriers that do not have enough inspections to produce a measure “robust enough” to even be assessed (“insufficient”). Item 7 also breaks out fatal accidents separately from “injuries/crashes” in a carrier’s information category, as discussed above.

When this article was written, many carriers previewing the impact of the changes had been able to determine the potential impact of the changes on their CSA scores. There was some significant concern being expressed by carriers who infre-quently haul some HM cargos about the creation of the standalone HM BASIC. Some of these carriers, in viewing their data previews, had found that the changes were “causing sud-den, dramatic shifts in some carriers’ scores” and primarily raising the scores (thereby showing less safety).17 Flatbed carriers had generally seen their scores improve, since cargo securement had become a part of the larger “Vehicle Maintenance” Category.

Further Delays in Using SMS Data to Make Safety Fitness

DeterminationsStill coming in the CSA implemen-

tation process is an expected Notice of Public Rulemaking (“NPRM”) to amend existing regulations to allow for the use of SMS data in making Safety Fitness Determinations (“SFD”). Until that rule change is made, SMS data will serve simply as a tool to deter-mine when the intervention of the FMCSA is necessary, based on the carrier’s percentile BASICs in rela-tionship to other carriers. According to the FMCSA:

[t]he third part of CSA, the updated Safety Fitness Determination (SFD), will require rulemaking to

decouple the Agency’s official Safety Rating (as required in 49 U.S.C. 31144) from the requirement of an onsite inves-tigation. It will allow FMCSA to base Safety Ratings directly on performance data and to update them on a monthly basis.18

However, the issuance of the SFD Notice of Rulemaking has been delayed several times by the FMCSA, and, when this article was written, indications from the agency were that the proposed rule would be forthcom-ing late in 2012. The FMCSA had indicated that draft rulemaking was under review within USDOT, but that the NPRM was expected to be pub-lished in late 2012.19 Latest indications from Administrator Ferro are that by early 2013, the agency will issue a safety fitness determination rule that will set “hard thresholds” for CSA BASIC scores that could be used to declare a carrier unfit.20

Under the proposed SFD rule, the FMCSA would utilize SMS data by:

Incorporating on-road safety performance via the new SMS, which will be updated on a monthly basis;Continuing to include major safety violations found as part of CSA investigations; andProduce an SFD to determine if a carrier is unfit to operate.21

When SMS data is ultimately used as the basis for a carrier’s bottom line Safety Fitness Determination, the FMCSA plans to use only accidents determined to be at least partially the carrier’s fault.22

ConclusionUntil very recently, both the

FMCSA and trucking industry rep-resentatives had been working hard and in a cooperative manner to try deal with the multitude of issues and details remaining before CSA imple-mentation is complete. However, the process has been much slower and less

TLA Feature Articles

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Endnotes 1. “CSA” first came into being in 2008 as the CSA Op-Model Test in a small number of pilot test states. During the time the FMCSA was

continuing the pilot tests in a small number of states and readying CSA for nationwide implementation, it became known as “CSA 2010” (Comprehensive Safety Analysis 2010). In 2011, CSA 2010 expanded from pilot states testing to nationwide implementation and became known simply as “CSA,” which now stands for “Compliance Safety Accountability.”

2. http://csa.fmcsa.dot.gov/Documents/SMS_FoundationalDoc_final.pdf. 3. What is included in the Summary of Activities?, FAQs, http://csa.fmcsa.dot.gov/faqs.aspx?faqid=1421. 4. Frequently Asked Questions, How does the Safety Measurement System (SMS) handle crashes when motor carriers are not at fault?, http://

csa.fmcsa.dot.gov/faqs.aspx?faqid=1421. 5. “FMCSA to Weigh Costs, Benefits of Crash Accountability Process,” By Eric Miller, Staff Reporter, Transport Topics, Transport Topics, May

7, 2012. 6. “Trucking Officials Blast FMCSA Over Crash-Fault Review Delay,” Eric Miller, Staff Reporter, Transport Topics, March 19, 2012. 7. “FMCSA Stops Plan to Determine Accountability in CSA Crash Data,” by Oliver B. Patton, Washington Editor, Truckinginfo, the web site

of Heavy Duty Trucking Magazine, March 12, 2012. 8. In her March 21, 2012 remarks to the Mid America Truck Show, FMCSA Administrator Anne S. Ferro stated in part: “Several areas require

further study before making a decision on how to best approach this issue. These include the uniformity and consistency of police accident reports across the nation; the process for accepting public input; and the actual effect on SMS to better identify carriers that have a high risk of crashes. Ultimately, we will be asking if the investment improves safety outcomes. We will be conducting additional research and analysis in the coming months that looks at the cause of crashes and weighting of those crashes in the SMS.”

9. “FMCSA to Study Crash Accountability Process, Ferro Says,” By Eric Miller, Staff Reporter, Transport Topics, May 1, 2012.10. “FMCSA to Weigh Costs, Benefits of Crash Accountability Process,” By Eric Miller, Staff Reporter, Transport Topics, May 7, 2012.11. 77 FR 18298; https://federalregister.gov/a/2012-7360.12. http://csa.fmcsa.dot.gov/Documents/SMS_FoundationalDoc_final.pdf.13. http://www.truckline.com/pages/article.aspx?id=635%2Faea5857f-2920-4e11-9570-c1de7a491710.14. http://csa.fmcsa.dot.gov/Documents/SMS_FoundationalDoc_final.pdf.15. http://csa.fmcsa.dot.gov/Documents/SMS_FoundationalDoc_final.pdf.16. http://csa.fmcsa.dot.gov/Documents/SMS_FoundationalDoc_final.pdf.17. “Trucking’s CSA Concerns Are Justified, Studies Claim,” Eric Miller, Staff Reporter, Transport Topics, April 16, 2012.18. http://www.fmcsa.dot.gov/documents/strategic-plan/draft-fmcsa-2011-2016-strategic-plan.pdf, P. 8.19. FMCSA Presentation to SBA, February, 2012.20. “FMCSA to Weigh Costs, Benefits of Crash Accountability Process” Eric Miller, Staff Reporter, Transport Topics, May 7, 2012.21. FMCSA Presentation to SBA, February, 2012.22. “In the short-term, the Federal Motor Carrier Safety Administration’s proposed rule on SFD will propose that a motor carrier’s formal safety

rating (i.e., the replacement for the traditional Unsatisfactory, Conditional, or Satisfactory rating process) would be adversely affected by crashes only when the motor carrier is at least partly at fault. These are known as “‘preventable accidents.”’ A Safety Investigator would determine which crashes are preventable.” FAQs, http://csa.fmcsa.dot.gov/FAQs.aspx?faqid=1421.

23. “ATA Insists on CSA Changes,” Howard Abramson, Editorial Director, Transport Topics, May 28, 2012.

satisfactory than many in the truck-ing industry would like, including the ATA leadership. In reaction to the lack of implementation of a crash accountability system and other CSA issues, the ATA issued a statement on May 22, 2012, in connection with its spring leadership meeting, stating that

it would “explore all avenues” to get CSA modified and that “the unreli-ability of CSA scores, the loose or, at times, inverse connection to crash risk, as well as FMCSA’s unwillingness to frankly discuss the program’s weak-nesses is very troubling and needs to be addressed.”23

The implementation of CSA will be ongoing for the near future and, unfortunately, it appears that it will continue to be a good source of con-troversy. Stay tuned!

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