A Critical Need for Reform of the
Compliance, Safety, Accountability Program
By: Brian D. Carr, Esq.
There has been no shortage of criticism of the Federal Motor Carrier Safety Administration’s (“FMCSA”) Compliance, Safety, Accountability (“CSA”) program which was launched in late 2010. Experience has shown that much of the program has benefits. However, aspects of the program have grown substantially problematic. One of those problematic aspects of the program is the ability of the public to view (and, by extension, the ability of plaintiff’s lawyers to utilize) motor carrier CSA Safety Management System (“SMS”) scores.
Efforts have been underway for some time to remove those scores from public view. The goal of the CSA program is ultimately to improve safety and prevent property damage, injuries, and fatalities arising out accidents involving commercial motor vehicle carriers. Obviously, this is a laudable goal, and one which the industry supports. However, whether the current framework of the program actually achieves those goals is open for debate.
In a report issued by the United States Government Accountability Office (“GAO”) in February of 2014 entitled Federal Motor Carrier Safety: Modifying the Compliance, Safety, Accountability Program Would Improve the Ability to Identify High Risk Carriers, the GAO determined that “many SMS scores do not represent an accurate or precise safety assessment for a [commercial motor vehicle carrier].” GAO-14-114 at page 16. In its report, the GAO further determined that the safety scores are in fact unreliable predictors of subsequent crash performance. There has been widespread industry criticism leveled against the SMS to the extent that its statistical methodology is inherently flawed, and results in the misrepresentation of commercial motor vehicle carrier’s safety performance, and perceived risk.
There has been widespread concern in the industry, some of which is now being borne out by experiences on the ground, that the public availability of such data can have significant adverse consequences on carriers with scores deemed problematic. It is undeniable that a score that unfairly characterizes an otherwise safe and responsible motor carrier as being more likely to be involved in a crash will have a significant detrimental impact for that carrier. Those consequences can include an inability to secure insurance or financing, disqualification from contracts with shippers and brokers, as well as attempts to use such data against carriers in litigation.
The American Trucking Association has continued in its efforts to press for commonsense changes to the CSA program and scoring system, most recently by seeking to remove from the scoring program crashes that were not caused by the motor carrier or its driver. Under the current system, all crashes are included in the CSA scoring, thereby including accidents which were not caused by the carrier.
Concurrent with industry efforts to achieve commonsense changes, legislative efforts are also underway to address these concerns and revise the system. Representative Lou Barletta (R-PA) has filed the “Safer Trucks and Buses Act of 2015” in the House of Representatives. The purpose of the proposed legislation would be to, among other things, remove CSA rankings and SMS scores from public view. Representative Barletta’s proposed legislation would prohibit utilizing data from a crash in which the motor carrier was not at fault, and use only that data which is “determined to be predictive of motor carrier crashes” in the scoring system. H.R. 1371, 114th Cong. (2015). Representative Barletta is not alone in his efforts in this regard, and he has been joined by Senator John Thune (R-S.D.) and Senator Deb Fischer (R-Neb), both of whom have expressed interest in reform and have been critical of the CSA program.
The use of such public data in the course of litigation can present significant problems in the course of defending a commercial motor vehicle carrier. As those of us who regularly represent and defend the trucking industry know, a common theme presented by plaintiffs’ lawyers in such cases is that the trucking industry is solely motivated by profit, and in pursuit of that goal it cuts corners, hires inexperienced or unqualified drivers, operates the commercial motor vehicles recklessly, and employs substandard inspection and maintenance practices. Unfortunately, plaintiffs’ lawyers have been given a potential tool for supporting such claims in the form of CSA scores that are publicly available.
Until there is definitive legislative action to address these very real concerns over the public availability of such scores, motor carriers will continue to be faced with potential adverse consequences arising out of misunderstanding and misuse of CSA scores which are derived from flawed data gathering methodologies.
Brian D. Carr is a Director of the Albany, New York firm of Carter Conboy, which is the exclusively endorsed Upstate New York legal services provider to the NYSMTA members. Mr. Carr handles a range of civil litigation matters primarily involving the defense of transportation, product liability, professional malpractice, premises liability, and personal injury liability claims. Mr. Carr regularly protects the interests of small and large trucking and transportation industry clients in the federal and state courts of New York, as well as in arbitrations, administrative hearings, and before state and federal agencies. Mr. Carr is a Martindale-Hubbell AV® Preeminent rated attorney. Mr. Carr can be reached at 518-810-0523 and at email@example.com.
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