To the extent that courts continue to impute liability to brokers for the negligent acts of the contracted motor carriers, the problem is compounded by the current, uncertain state of the FMCA’s system for collecting motor carrier data and publishing safety assessments of motor carriers. Ever since the FMCSA, in 2010, first instituted Compliance, Safety, Accountability (“CSA”), the program by which the FMCSA measures motor carriers’ safety performance, it has been subject to a range of criticism from key stakeholders. Following a mandate from the Fixing America’s Surface Transportation Act (“FAST Act”) of 2015, the FMCSA authorized a replacement of the CSA’s Safety Management System (“SMS”), and authorized the National Academy of Sciences (“NAS”) to conduct a thorough study of the efficacy and integrity of the CSA program. In particular, the NAS was tasked with addressing various key criticisms of the system, such as how to collect more and better data regarding motor carrier safety, the need for a better and more statistically sound data-collection methodology than the SMS, and the need for better user interface for stakeholders to access information and results on the FMCSA’s websites.
The NAS, comprised of a 12-member elite panel of researchers, published its report in mid-2017 at the end of a 15-month study. The NAS concluded that generally the SMS system for identifying high-risk motor carriers was “conceptually sound” and had good overall goals, but it recommended sweeping changes, including a more detailed, “more statistically principled approach” to data measurement in the form of an alternate methodology to SMS, called “Item Response Theory” (“IRT”), a data measurement model that has been successfully used to analyze a range of social issues. Under the SMS, safety scores relied on seven Behavior Analysis and Safety Improvement Categories (or “BASICs”). The NAS recommended that the FMCSA adopt this new methodology model, but suggested that the agency take its time testing and incorporating it into its current system. The FMCSA has signaled its adoption of the IRT system, and one year into its evaluation of its two-year planned study of IRT, the agency has said that it is making progress, but that it is too soon to say whether the new methodology could improve on the CSA program. The agency said it will complete its full evaluation by the Fall of 2019.
One issue of concern is that the new system, even if statistically improved, involved greater complexity that will create challenges for stakeholders used to the simpler (if substantially flawed) CSA system. Another concern for stakeholders in the transportation industry is precisely which data will be collected moving forward, and whether the data-collection methods will accurately reflect which motor carriers are at-risk carriers, and which are not.
For example, many motor carriers have complained that in the past, drivers have not been given credit for “no violation” or “clean” roadside inspections by federal inspectors, whereas their negative inspection results do get recorded. In addition, much concern has been voiced from the industry that safety results published by the FMCSA tend to misrepresent the safety risks of motor carriers by failing to eliminate “non-preventable” crashes from the agency’s safety scores. In response, the FMCSA instituted a Crash Preventability Demonstration Program in August 2017, whereby motor carriers could file requests for data review (“RDRs”) with the agency, regarding motor carrier crashes where the carrier’s driver was clearly not at fault. As of now, the new program has experienced some growing pains. However, this is one sign that the agency has become more responsive to legitimate concerns from within the trucking industry that the safety ratings made public by the FMCSA mislead the public into thinking that a motor carrier presents a higher risk to safety than it actually does.
For more information regarding this article, contact Stephen J. Marshall.