Now it appears that trucking companies with bad safety records yelled “TMI!” loudly enough, and spent enough money on “K” Street lobbyists and campaign contributions to impede public access to their safety records.
Five years ago, the Federal Motor Carrier Safety Administration (FMCSA) launched a new trucking safety initiative called the Compliance, Safety, Accountability (CSA) program. At the heart of this program was a Safety Measurement System (SMS) designed to analyze violations from inspections and crash data. The idea was to be able to quantitatively identify carriers with a pattern of unsafe practices in order to intervene to correct safety violations before they result in catastrophic injuries or deaths.
The SMS assessment included seven safety improvement categories, called BASICs: unsafe driving, fatigued driving, driver fitness, substance/alcohol abuse, vehicle maintenance, cargo and crash indicators. Examining data category-by-category could shed light on repeat patterns of unsafe trucking practices.
A key element of the program was that companies exhibiting high-risk behavior would be notified and given an opportunity to correct safety violations before they matured into tragedies on the road. The FMCSA and state law enforcement were enabled to utilize a variety of tools including warning letters, roadside inspections and compliance reviews. If early warnings are not heeded by the carrier companies, the administration can apply costly fines & penalties.
For the past five years, CSA provided the public with improved access to safety data. Shippers and brokers could easily check online for a trucking company’s safety record when choosing who would haul their loads. If they selected a trucking company with a terrible and easily accessible safety record, that could create questions about negligent selection and retention in the event of a terrible crash. In addition, insurers could use the CSA data in liability insurance underwriting analysis.
Some of the benefits of public disclosure of the SMS / CSA, as pointed out by my friend Steve Gursten in Michigan, have been the raising of awareness of the importance of commercial trucking safety, causing motor carriers to devote more attention and resources to safety initiatives due to accountability that comes with having the carrier data publicly displayed, and holding motor carriers accountable when conducting business. About 70 million users logged onto the Safersys website each year, creating a community of transparency that encouraged a culture of commercial motor vehicle safety, created incentives for motor carriers to improve their safety performance, and allowed other companies and members of the public to make informed decisions based on all available sources of FMCSA data.
My routine in reviewing potential truck crash cases in the past five years has included checking the SMS/CSA records at http://safersys.org, often during the initial phone call with a potential client. While companies with good records had bad wrecks, and companies with bad records were not always at fault, a bad safety record was often telling.
Trucking companies and truck drivers did complain bitterly about the program. Much of the truck driver commentary is wrapped in general rage about being told how many hours they could drive (despite all the science about the limits of human fatigue and circadian rhythms), electronic data recorders and safety regulation in general. Some of that reminds me of a truck driver whose deposition I took a while back who referred to his company’s safety director as “the safety moron.”
More articulate criticism of SMS and CSA has raised questions about the accuracy of the data and the scoring algorithms in the FMCSA methodology. A few months ago in Illinois, I took the deposition of the former CEO of what was once a large trucking company that had the worst CSA safety scores I have ever seen. He complained that the CSA formulas did not adequately take into account that his company’s size was declining due to business reversals of their largest hometown customer. Others complained about having wrecks that were not their fault counted against them in the formulas,
All the public and commercial use of the system (such as by shippers, brokers and insurance companies), was the focus of arguments against the CSA methodology, according to a media analysis by Todd Dills. FMCSA compared the crash rates of carriers with sufficient and insufficient data in the system to produce a score. FMCSA said that carriers with scores above intervention thresholds had the highest average crash rates overall. Further, FMCSA looked at the crash rates of groups of carriers with scores above the intervention thresholds in BASICs other than the Crash Indicator, separating those populations by the number of inspections recorded by the system. The highest crash rates were shown for carriers with 11-20 inspections in the system.
The FMCSA report said that increasing the data sufficiency standards to as high as 20 inspections would make it more difficult for the agency to make appropriate safety interventions with the group showing that highest average crash rate. The SMS “ensures that there is oversight on the largest population possible—including both small and large carriers,” the FMCSA report summarizes. “Since introducing the use of the system, violation rates have dropped by 14 percent. Motor carriers are paying attention to their safety data more than ever before, which improves safety.”
Last August, ten trade associations representing companies that own and operate commercial trucks and buses have jointly asked the US DOT to remove the SMS data from public view, citing several reports highly critical of the SMS’ methodology in identifying high-risk carriers. They claimed that, “Removing carriers’ SMS scores from public view “will not only spare motor carriers harm from erroneous scores, but will also reduce the possibility that the marketplace will drive business to potentially risky carriers that are erroneously being painted as more safe.”
When Congress deliberated the massive five-year highway funding bill a little over a month ago, the trucking industry pulled out all the stops in lobbying key members of Congress to insert language to suppress public access to CSA / SMS data. I was not at the committee hearings where the 1,300 page bills was discussed, but I would bet there was not lengthy dialogue on the pros and cons of this public safety measure.
The bill removes from public view the bulk of the Compliance, Safety, Accountability system’s Safety Measurement System. The legislation removes from public view all carriers’ percentile rankings in the seven SMS BASICs It requires FMCSA and the Government Accountability Office to identify the program’s faults, develop a plan to fix them and then implement those fixes before the system can go live again. Congress in the bill directs FMCSA to study issues like carriers’ crash risk and its correlation to CSA scores, CSA’s rankings methodology, accuracy of the CSA data, incorporating crash fault accountability and how the public uses CSA scores in making business decisions or overall safety determinations of carriers. The bill requires the report to be produced within 18 months. Congress also prohibited FMCSA from continuing to use the system and its data to make safety determinations about carriers. Until FMCSA can implement a so-called “corrective action plan,” the CSA program will remain dormant.
Therefore, as of December 4, 2015, much of the information previously available on the Federal Motor Carrier Safety Administration’s (FMCSA) website related to a trucking company’s safety performance will no longer be displayed publicly. This will prevent easy access to the public and to others who want to know about a company’s safety rating. This also applies to information provided to the public through the QCMobile app.
As my friend, Morgan Adams in Chattanooga, has pointed out, “Now, instead of simply looking for what has been free, public safety information, you will have to pay for the records to find out how safe a trucking company is and wade through the labyrinth of regulations to do a formal request for information to the government. The government protected the trucking companies, not the people on this one. Looks like yet another reason to hire a lawyer for your truck accident case but in this instance you shouldn’t have to.”
In light of this congressional action, the handling of motor carrier crash cases will be slightly altered. We can no longer get safety performance data about trucking companies online. However, we can still submit Freedom of Information Act requests to the Federal Motor Carrier Safety Administration. While the FMCSA FOIA office is often overwhelmed with work, and that overloading of staff may increase, they do try to be cooperative.
To be effective in such requests, we will promptly upon being asked to evaluate a potential case, send a concise FOIA request by email to https://www.fmcsa.dot.gov/foia/foia-requests. We will get the same information, at least for now, but it will take weeks or months longer to get it.
Ken Shigley, past president of the State Bar of Georgia, is chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section. He is also a national board member of the Academy of Truck Accident Attorneys, a certified civil trial attorney of the National Board of Trial Advocacy and past chair of the Institute for Continuing Legal Education in Georgia Board of Trustees.