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Metz July 2012 Trans Lawyer Article On CSA Developments


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Walt Metz article entitled “Recent Developments Show CSA Continues To Be a Work in Progress” as published in the July, 2012 edition of "The Transportation Lawyer", a prestigious quarterly legal journal by the Transportation Lawyers of America.

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Metz July 2012 Trans Lawyer Article On CSA Developments

  2. 2. CONTINUES TO BE A WORK IN PROGRESS Walter R. Metz, Jr.* disclose the number of fatal accidents The July change replaces the in which a carrier has been involved category of “Injuries/Fatalities” by pro- separately from the “injuries/crashes” viding separate numbers for accidents in a carrier’s SMS information cat- involving fatalities and those involv- egory. The separate fatality accident ing non-fatal injuries. The FMCSA data breakout change was scheduled described the reason for the sepa- to be made public later this year, as rate breakout of fatality crash data as part of a slate of FMCSA changes to follows:2 CSA. These changes are discussed in Overview: In the “Summary There have been some signifi- more detail below, but the upshot of of Activities” section of a car-cant developments in Compliance,Safety, Accountability (“CSA”)1 since the two agency decisions is to allow rier’s information on SMSthe first of the year, as CSA not only the number of a carrier’s fatal acci- Website, FMCSA displays acontinues to be a work in progress dents to be highlighted in public view, count of reportable crashesbut also a good source of contro- while withholding the fault assess- broken into two categories:versy. These developments include a ments that could put the raw numbers “fatal/injury” and “tow away.”delay by the Federal Motor Carrier of fatal accidents in a different light. Stakeholders have askedSafety Administration (“FMCSA”) in Meanwhile, public access to carrier FMCSA to separate theimplementing a system for assessing scores for the Crash Indicator BASIC combined “fatality/injury”carrier responsibility for reportable is also delayed. category.crashes, changes or “enhancements”to the Safety Measurement System Separate Fatality Accident Solution: FMCSA developed(“SMS”), and further delays in imple- Number Breakout Issue a method to display injurymenting the FMCSA’s plan to use crashes and fatality crashes The implication of the separateSMS data in the making of Safety separately. breakout of fatality accident numbersFitness Determinations for carriers. is best seen through an illustration. A Notwithstanding the explanationThese three issues are addressed sepa- public view of an anonymous carrier’s provided by the agency, carriers do notrately below. “Summary of Activities” under CSA like the fact that the number of fatal looked like this before the scheduled accidents in which a carrier has been Crash Indicator involved is now being highlighted, change (note the last category of BASIC Changes “Injuries/Fatalities”): regardless of fault. At the time that this article waswritten, controversy was still swirl- Number OOS Rateing over the abrupt decision by the Total Inspections: 17,345FMCSA to delay the planned March Vehicle Inspections: 9,159 14 %2012 implementation of a system for Driver Inspections: 17,245 1%assessing fault for reportable crashes Hazardous Materials Inspections: 788 2%and then to use the assessments to HM Placard Inspections: 535 3%weigh reportable crash data for theCrash Indicator BASIC. The frustra- Total Crashes: 981tion over the lack of a fault assessment Tow-aways: 944process mounted when the FMCSA Injuries/Fatalities: 350subsequently announced plans to*Special Legal Projects Counsel (Atlanta, Georgia) 46 TRANSPORTATION LAWYERS ASSOCIATION CANADIAN TRANSPORT LAWYERS’ ASSOCIATION
  3. 3. THE TRANSPORTATION LAWYER TLA Feature Articles Crash Indicator disabling damage . . . as well as the the Federal Motor Carrier BASIC Scores and the number of crashes that resulted in an Safety Administration take injury or fatality to a person involved this approach? This approach Fault Assessment Delay in the crash” 3 As described by the is taken because data analy- Although a carrier’s publicly avail- FMCSA, the agency uses all crashes, sis has historically shownable information on the SMS website regardless of fault, in scoring carriers that motor carriers who arewill now include a separate count of under the Crash Indicator BASIC as involved in crashes, regardlessfatal crashes and injury crashes, the follows:4 of accountability, are likelyFMCSA is still not providing public The structure of the new SMS to be involved in more futureaccess to a carrier’s Crash Indicator is such that crash account- crashes than carriers who areBASIC score. This is because of con- ability is not automatically not. Put simply, past crashescerns voiced by trucking companies determined or considered. are a good predictor of futurethat interested parties, such as ship- In fact, recordable crash crashes.pers and insurance companies, should reports that States submit to By way of illustration, this is hownot be influenced by Crash Indicator the Federal Motor Carrier the lack of public access to CrashBASIC scores that do not take into Safety Administration do Indicator BASIC scores was reflectedaccount fault. At present, the Crash not include an accountability for an anonymous carrier on theIndicator BASIC scores (currently determination. Consequently, FMCSA website at the time this arti-unavailable to the public) are based motor carriers are identi- cle was written (note that by the timeupon “reportable accidents” data. This fied for possible intervention this article is published, the changesdata is defined as “[t]he number of based on recordable crashes to the Cargo-Related BASIC discussedcrashes that required at least one vehi- without consideration of in a subsequent section of this articlecle to be towed from the scene due to accountability. Why does 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% = Not Cargo-Related Not Public = Public Not Crash Indicator Not Public = Public * USE OF SMS DATA/INFORMATION Until very recently, it appeared evaluating crashes for accountability/ accountability process would bethat the agency’s ultimate goal preventability before they are used cost effective. Administrator Ferroremained to be the implementation by the SMS in the Crash Indicator indicated that she was hopeful theof a crash accountability process to BASIC. This would allow FMCSA to further study would shed light onbe used for the Crash Indicator, and better concentrate intervention efforts whether the removal of preventablethat the agency continued to work on motor carriers that have high crashes from a carrier’s crash indicatoron a plan to provide carriers with preventable/accountable crash rates”5 score will help turn the enforcementan assessment of fault in the crashes However, FMCSA Administrator spotlight “towards companies withto be used for the Crash Indicator. Anne Ferro disclosed in late April a significantly high crash risk.” TheThe agency had stated that the that the agency was studying whether study should be completed by the end“FMCSA is assessing the feasibility of implementation of an improved crash of the year.6 TRANSPORTATION LAWYERS ASSOCIATION CANADIAN TRANSPORT LAWYERS’ ASSOCIATION 47
  4. 4. The crash accountability assess- system could take into account sub- violations from vehicle-onlyment plan, as originally proposed, jective input on individual accidents, inspections.would have placed primary reliance greater concerns will likely be voiced if 5. More accurately identifyingupon information gleaned from acci- the agency shelves the planned system carriers involved in transport-dent police reports. The plan would altogether because of Administrator ing HM.have provided a method of coding Ferro’s expressed concerns that such a 6. More accurately identifyingevery interstate motor carrier crash as system may not be cost effective.11 carriers involved in transport-either “accountable” or “not account- SMS Enhancements ing” to the motor carrier and thedriver.7 If a carrier was found to be 7. Modifying the SMS display On March 27, 2012, the FMCSAwithout fault in certain reportable to (i) change current termi- published a Notice in the Federalaccidents, the adverse impact of those nology, (“inconclusive” and Register entitled “Motor Carriers Canaccidents on the carrier’s score would “insufficient data)” to fact- Now Preview the First Package ofbe diminished through a system of based descriptions and (ii) SMS Enhancements.”12 It announcedweighing crashes for fault. separate crashes with injuries the first of a series of changes to be and crashes with fatalities. When the FMCSA changed its made to the SMS system up to twiceplans to implement the fault assess- a year. The changes are detailed in Through items 1 and 2 above,ment system for crash accountability the posted “Foundational Document” the FMCSA has shifted the cargo/in March, it apparently did so in reac- entitled “Safety Measurement System securement violation data fromtion to concerns voiced by advocates Changes.”13 After extension of the the current BASIC category calledthat the system should not have pri- original deadline, the time period for “Cargo Related” into the “Vehiclemary reliance upon police reports making comments with the agency Maintenance” Category and hasand that the plan did not provide regarding the changes was set at July essentially created a free standing haz-the means for interested parties to 30, 2012).7 The changes were to be ardous materials (“HM”) violationscomment upon the facts.8 Later, in implemented into the publicly dis- category. The change was apparentlypublic remarks, Administrator Ferro played website in July. During the made in response to complaints fromexpressed doubts as to the reliability comment period time, individual car- flatbed carriers that cargo/securementof the planned fault assessment sys- riers were given the ability to preview violations had too much of an impacttem, due to the lack of uniformity how the changes would affect them, on overall scores. The change tends toand consistency of law enforcement by logging into the CSA website. dilute the impact of cargo/securementagency accident reports nationwide The FMCSA Foundational violations.and because of the need to provide a Document described the following The agency has created a newmeans for public input.9 changes:14 HM BASIC based on vehicle inspec- Trucking industry representa- 1. Strengthening the Vehicle tions (i.e., Level 1, 2, 5 and 6) andtives, who have been critical of the Maintenance BASIC by HM violations where the vehicle wasfault assessment system implementa- incorporating cargo/load transporting placardable quantities oftion delay, are concerned that despite securement violations from HM. The changes increase the impactthe continued cooperation of the today’s Cargo-Related BASIC. of HM violations for carriers whosetrucking industry in the CSA imple- HM cargos are a small part of their 2. Changing the Cargo-Related overall freight profile. According tomentation process, the agency rather BASIC to the Hazardous the FMCSA, the change was madeabruptly changed plans to implement Materials (“HM”) BASIC to because “the Cargo-Related BASICan improved fault assessment system. better identify HM-relatedThis system would have based largely currently includes HM violations and safety problems.on objective law enforcement accident load securement violations, some HMreports, and carrier statements made 3. Better aligning the SMS safety issues could be masked.”15 Atin the normal course. The agency with Intermodal Equipment the time this article was written, theapparently is looking to also include Provider regulations. agency planned to make the resultspresumably subjective comments 4. Aligning violations that are of the new HM BASIC category pub-regarding individual accidents made included in the SMS with lic, even though the Cargo Relatedby unidentified “interested parties.”10 Commercial Vehicle Safety BASIC had not been made public.However great the trucking commu- Alliance (CVSA) inspection The agency had not been publicly dis-nity previously expressed concerns levels by eliminating vehicle playing the Cargo Related BASIC, outwith the implementation delays and violations derived from driver- of concerns raised by industry repre-the potential that the fault assessment only inspections and driver sentatives that HM violations do not 48 TRANSPORTATION LAWYERS ASSOCIATION CANADIAN TRANSPORT LAWYERS’ ASSOCIATION
  5. 5. THE TRANSPORTATION LAWYER TLA Feature Articlesrepresent a valid crash risk element, probability than non-passenger. Item 7 decouple the Agency’s officialbut the FMCSA has now changed its provides alternative terminology to Safety Rating (as required inposition. better describe carriers that either 49 U.S.C. 31144) from the Items 3 and 4 above are also have enough inspections but too few requirement of an onsite inves-maintenance and inspection related. violations to warrant being consid- tigation. It will allow FMCSAItem 3 specifically relates to regulatory ered for the FMCSA interventions to base Safety Ratings directlychanges with regard to responsibility (“inconclusive”) or carriers that do not on performance data and toto make pre-trip inspections for inter- have enough inspections to produce a update them on a monthlymodal trailers. Previously, the SMS measure “robust enough” to even be basis.18had not included any roadside viola- assessed (“insufficient”). Item 7 also However, the issuance of the SFDtions associated with an intermodal breaks out fatal accidents separately Notice of Rulemaking has beentrailer distinct from the motor carrier. from “injuries/crashes” in a carrier’s delayed several times by the FMCSA, information category, as discussed and, when this article was written,Such violations are now to be applied above. indications from the agency were thatto the motor carrier when there isevidence that the driver performed a When this article was written, the proposed rule would be forthcom-pre-trip inspection and the violation many carriers previewing the impact ing late in 2012. The FMCSA hadcould have been detected in a pre-trip of the changes had been able to indicated that draft rulemaking was determine the potential impact of under review within USDOT, but thatinspection. In item 4, the FMCSA has the changes on their CSA scores. the NPRM was expected to be pub-removed vehicle violations found dur- There was some significant concern lished in late 2012.19 Latest indicationsing driver-only inspections and driver being expressed by carriers who infre- from Administrator Ferro are thatviolations found during vehicle-only quently haul some HM cargos about by early 2013, the agency will issue ainspections, in order to align the SMS the creation of the standalone HM safety fitness determination rule thatwith existing CVSA policies regarding BASIC. Some of these carriers, in will set “hard thresholds” for CSAinspection levels. viewing their data previews, had found BASIC scores that could be used to Items 5 through 7 above are that the changes were “causing sud- declare a carrier unfit.20intended to identify certain catego- den, dramatic shifts in some carriers’ries of carriers more accurately. Item scores” and primarily raising the scores Under the proposed SFD rule, the5 is primarily related to HM carriers. (thereby showing less safety).17 Flatbed FMCSA would utilize SMS data by:The agency is trying to restrict the carriers had generally seen their scores Incorporating on-road safetynumber of carriers subject to the more improve, since cargo securement had performance via the new SMS,stringent HM thresholds. By the time become a part of the larger “Vehicle which will be updated on athis article is published, the FMCSA Maintenance” Category. monthly basis;will have tightened HM placardable Continuing to include majorinspection criteria, while keeping Further Delays in Using SMS safety violations found as part ofthe HM review and permit criteria, Data to Make Safety Fitness CSA investigations; andto focus intervention resources on Determinations Produce an SFD to determine ifcarriers involved in the majority of a carrier is unfit to operate.21 Still coming in the CSA implemen-placardable HM transport actions.16 tation process is an expected Notice When SMS data is ultimately usedFor a carrier to be subject to the HM of Public Rulemaking (“NPRM”) to as the basis for a carrier’s bottomthreshold due to HM inspection activ- amend existing regulations to allow for line Safety Fitness Determination, theity, that carrier must have: the use of SMS data in making Safety FMCSA plans to use only accidents At least two HM placardable Fitness Determinations (“SFD”). Until determined to be at least partially the inspections within the past 24 that rule change is made, SMS data carrier’s fault.22 months, with one inspection will serve simply as a tool to deter- occurring within the past 12 mine when the intervention of the Conclusion months, and FMCSA is necessary, based on the Until very recently, both the At least 5% of total inspec- carrier’s percentile BASICs in rela- FMCSA and trucking industry rep- tions that are HM placardable tionship to other carriers. According resentatives had been working hard inspections. to the FMCSA: and in a cooperative manner to try Item 6 above is intended to iden- [t]he third part of CSA, deal with the multitude of issues andtify passenger carriers more accurately the updated Safety Fitness details remaining before CSA imple-and to subject them to a significantly Determination (SFD), mentation is complete. However, thehigher standard and intervention will require rulemaking to process has been much slower and less TRANSPORTATION LAWYERS ASSOCIATION CANADIAN TRANSPORT LAWYERS’ ASSOCIATION 49
  6. 6. satisfactory than many in the truck- it would “explore all avenues” to get The implementation of CSA willing industry would like, including the CSA modified and that “the unreli- be ongoing for the near future and,ATA leadership. In reaction to the ability of CSA scores, the loose or, unfortunately, it appears that it willlack of implementation of a crash at times, inverse connection to crash continue to be a good source of con-accountability system and other CSA risk, as well as FMCSA’s unwillingness troversy. Stay tuned!issues, the ATA issued a statement on to frankly discuss the program’s weak-May 22, 2012, in connection with its nesses is very troubling and needs tospring leadership meeting, stating that be addressed.”23Endnotes 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. 3. What is included in the Summary of Activities?, FAQs, 4. Frequently Asked Questions, How does the Safety Measurement System (SMS) handle crashes when motor carriers are not at fault?, http:// 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; “Trucking’s CSA Concerns Are Justified, Studies Claim,” Eric Miller, Staff Reporter, Transport Topics, April 16, 2012.18., 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, “ATA Insists on CSA Changes,” Howard Abramson, Editorial Director, Transport Topics, May 28, 2012. 50 TRANSPORTATION LAWYERS ASSOCIATION CANADIAN TRANSPORT LAWYERS’ ASSOCIATION