Two years after federal regulators launched the Compliance, Safety and Accountability initiative, the program is still incomplete, lacking a long-promised and crucial component: a new motor carrier safety fitness rating system.
But the CSA initiative, the cornerstone of Federal Motor Carrier Safety Administrator Anne Ferro’s efforts to improve truck safety, already is changing trucking in ways that both encourage and alarm.
The program is credited with truck safety gains, but motor carriers, third-party freight brokers and shippers also see CSA as a potential threat. And, when it comes to drivers and equipment, carriers say the CSA is pushing up their costs.
The program leaves many shippers nervous and uncertain about how or whether to use the CSA data available today. One source compared the situation to “reading tea leaves.” And higher carrier costs are beginning to show up as percentages in proposed rate increases. The potential impact on the driver pool and carrier capacity also has more shippers looking to alternative means of transport, especially intermodal rail, in advance of the fall shipping season.
That’s why a battle over the future of the program is under way, with some seeking moderate tweaks and others more radical steps as the FMCSA cautiously moves toward replacing the old compliance audit-based safety fitness determination with one based on the real-time data underlying its CSA safety measurement system.
How effective has the CSA been since its December 2010 launch? Data collected under the initiative increasingly is being used to target unsafe trucking operators, leading to a surge in carriers with “conditional” safety ratings — those with at least one area of noncompliance — and a recent wave of out-of-service orders against unsafe companies.
From February 2011 through last month, the number of carriers with a conditional safety rating jumped by 1,156, or 22.8 percent, to 6,226, according to QualifiedCarriers, a sister company of freight broker Tucker Co. Worldwide. “That increase in conditional carriers is pretty remarkable,” said Jeff Tucker, CEO of the freight brokerage and co-founder and CEO of QualifiedCarriers, a risk management services company for shippers.
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“We asked Jack Van Steenburg, the FMCSA’s chief safety officer, if it had a direct correlation to their internal use of CSA data in the field for compliance reviews,” Tucker told The Journal of Commerce. “He confirmed that is indeed what’s happening.”
The FMCSA is pursuing an increasing number of safety violators, and CSA data is making it easier for the agency to at least hone in on those carriers as it builds the case to put them out of service, a process that often takes months.
Unusually high CSA scores were cited in out-of-service orders used to shut down four trucking companies over the past four months. Judson Mobley Logging, the most recent carrier ordered off the road, had a driver fitness score of 98.1 percent. That’s almost as bad as a CSA score can be — under the program, the lower the score, the better the performance — and well above the driver fitness score threshold of 80 percent that triggers action by the FMCSA.
However, CSA — as well as the existing safety fitness determination system — only touches a fraction of all the drivers, trucks and trucking companies on the road. Of the 166,810 for-hire carriers identified by QualifiedCarriers as “active” in April, 67 percent had no CSA scores. An even higher percentage of trucking companies, 77.8 percent, had no safety fitness rating and effectively were hauling freight under the FMCSA’s regulatory radar.
“To us, that indicates an immature, still growing system,” Tucker said.
On March 27, the FMCSA issued a notice stating it plans to improve its safety measurement system, the core of the CSA, to better identify high-risk carriers and to identify biases in data collection. The agency is conducting “research and analysis to determine the feasibility of different weighting for crashes in the SMS based on an objective set of criteria,” the FMCSA said in a Federal Register filing.
The way the FMCSA collects that safety measurement system data and uses it to develop individual carrier scores, however, is itself the source of much debate and anger directed at the agency, and its methodology is being challenged on several fronts.
Shippers and brokers are concerned about their potential for vicarious liability in accident lawsuits. Carriers worry the public release of five CSA Behavior Analysis and Safety Improvement Category or BASIC scores — available on the FMCSA’s Web site and through commercial services and updated monthly — is costing them business. And studies released recently by Wells Fargo Equity Research and the University of Michigan Transportation Institute raised questions about the linkage between at least some of the CSA BASIC scores and a carrier’s crash risk.
Related: Carriers Adapt to CSA.
Collectively, those concerns are fueling calls for the FMCSA to make more radical changes to its data collection system, to more closely heed trucking industry concerns about its methodology and even to pull BASIC scores off the Web.
“I believe the FMCSA should stop publishing these scores,” Tom Sanderson, president of third-party logistics provider Transplace, said at the annual conference of the Transportation & Logistics Council last month in Orlando, Fla. “If the FMCSA wants to use this data for its original intended purpose, which is to help them determine where to apply their enforcement resources, that’s a perfectly reasonable use. But don’t put the consumer in the position of determining which carriers are fit to operate on the highways.”
That’s the FMCSA’s responsibility, transportation lawyer Henry Seaton insists. “Many of us older hands who understand the Commerce Clause in the U.S. Constitution understand it’s the government’s job” to certify carrier safety, “just like it’s the state bar’s job to certify me to practice law,” Seaton told the T&LC.
Seaton, who practices law in Washington with Seaton & Husk, took the FMCSA to federal court when it first made its BASIC scores publicly available in December 2010, suing on behalf of the National Association of Small Trucking Companies, the Expedite Alliance of North America and the Air & Expedited Motor Carriers Association.
In a March 2011 settlement, the agency agreed to a disclaimer on its Web site clearly stating CSA scores are not safety fitness ratings, and no one should “draw conclusions about a carrier’s overall safety condition” from the CSA data.
The FMCSA also agreed to stop using the term “alert” when a carrier exceeded a BASIC score threshold. But the BASIC scores remain available online, and the threat of legal liability lingers over shippers and brokers who fear they may be held liable for negligent hiring if a trucker they contract to haul freight is in an accident.
Seaton said shippers and brokers should be worried about being sued by a trucker if they reject or blackball a carrier with a satisfactory or conditional safety rating purely because of a high BASIC score that can change on a monthly basis.
If a shipper or broker decides on its own what an acceptable CSA score should be, “you’re very simply going to get sued,” he said. “It’s going to go before the jury, and it’s a bad situation. You’re going to have a much harder time explaining yourself than if you were to say there’s a bright-line gold standard, a government standard.”
That standard is still the safety fitness rating the FMCSA assigns a carrier — satisfactory, conditional or unsatisfactory — after an audit, not a BASIC score.
Others say ignoring CSA data is unnecessarily risky in a litigious age, and urge shippers to include BASIC scores as one component in a holistic approach to risk management. Active Scout, a risk management company owned by Mike Regan, president of TranzAct Technologies, recommends shippers and brokers evaluate carriers based on the status of their operating authority, safety fitness ratings, BASIC scores, written contracts, insurance status and, eventually, driver qualifications.
“The cost of not knowing your carriers’ (BASIC) scores can be exceptionally high,” the company warned in a white paper on managing transportation risk.
“We’ve heard from (shippers and brokers) who don’t want to know anything about a carrier’s CSA scores to those working very hard to synthesize all the available information,” said Kevin Scullin, project manager for TransCore DAT’s CarrierWatch, which monitors BASIC scores. “There’s divergent opinion on how to use the (SMS) data throughout the transportation intermediary industry,” Scullin said. “It’s hard to find uniformity of thought on how to deal with the CSA program.”
Truckers urge shippers not to view CSA data in isolation. “Look at CSA as a tool, but not the only tool,” John Conley, president of National Tank Truck Carriers, an industry association, told shippers at the NASSTRAC 2012 logistics conference in Orlando this month.
NTTC and other trucking groups, including the American Trucking Associations, say they support the intent of the CSA, but disagree with some of its methods. “We’re pushing (the FMCSA) to do something about crash accountability,” Conley said. The CSA safety measurement system does not distinguish whether a carrier is at fault or not in an accident when calculating BASIC scores, he said.
That means if another vehicle crashes into an unoccupied truck in a parking lot, that crash is counted against the motor carrier’s score under the CSA. The same holds true for fatal accidents where police have ruled the trucker not at fault.
In March, the ATA sent the FMCSA a list of flaws in the current system. “From the outset, ATA has been supportive of the objective of CSA — to reduce crashes and save lives by focusing on real-time, performance-based data,” ATA President and CEO Bill Graves said in March. “Also, we have been gratified with how willing the agency has been to make needed improvements to the program. However, the need to make additional enhancements to improve the reliability and accuracy of carriers’ CSA scores becomes more acute as FMCSA moves toward linking them with motor carrier safety fitness determinations.”
“There’s a lot of misuse of CSA” data, Conley said. “Plaintiff attorneys are certainly using it,” though there’s been no landmark case linking CSA scores and vicarious liability for brokers and shippers — yet.
“I think it’s only a matter of time before that lawsuit happens,” Scullin said.