May 28, 2016

Commercial Driving Scores Back on Public Display

On December 4, 2015, President Obama signed into law the Fixing America's Surface Transportation Act (FAST Act), which is the first federal law in more than ten years to provide long-term funding certainty for surface transportation. The FAST Act authorizes $305 billion over the next five years for highway and motor vehicle safety, public transportation, motor carrier safety, hazardous materials safety, rail and research, technology, and statistics programs. With its enactment, states and local governments may now move forward with critical transportation projects, like new highways and transit lines.

Prior to the FAST Act being signed into law, much of the information previously available on the Federal Motor Carrier Safety Administration's (FMCSA) website relating to property carrier's compliance and safety performance was not publicly displayed.  The FMCSA masked performance scores compiled under its Safety Management System (SMS), as well as withheld information on comparative scores among carriers.  The transportation legislation called on FMCSA to ensure its Compliance, Safety, Accountability (CSA) scoring program provided "the most reliable" analysis possible.  In contrast, information on passenger carriers continued to remain available to the public.

Three months later, on March 7, 2016, the FMCSA announced it had returned to public view the CSA program's raw safety data for freight motor carriers.  The so-called "absolute measures" data is generated directly from safety data and not based on relative comparison with other motor carriers.  The CSA percentile sores for property motor carriers will remain unavailable for public view to comply with the FAST Act.

The "absolute measure" represents a time- and severity-weighted calculation of a carrier's violation performance in each of the Behavior Analysis and Safety Improvement Categories (BASICs), which are Unsafe Driving (e.g., speeding, reckless driving); Hours-of-Service (HOS) Compliance (e.g., violations of regulations pertaining to records of duty status (RODS) or operating a CMV while ill or fatigued); Driver Fitness (e.g., failure to have a valid commercial driver's license (CDL) or not being medically qualified to operate a CMV); Controlled Substances/Alcohol (e.g., driving while impaired); Vehicle Maintenance (e.g., failure to make required repairs or improper load securement); Hazardous Materials (HM) Compliance (e.g., no placards/markings when required); and Crash Indicator (i.e., high crash involvement, including frequency and severity).

The higher the number, per the CSA SMS' methodology, the worse the performance.  Essentially, the "absolute measure" is the violation-performance grade before the curve is applied.  Though the FAST Act highway bill required the percentiles and evaluative BASIC alerts to be removed from public view, the bill specifically allowed for the retention of the absolute measures in the SMS public display.  Putting the absolute measures on public display gives private developers all they may need to make CSA SMS' percentile calculations on their own.

What It Means to You

If you own a trucking company, be aware that your drivers' raw scores will now be on public display.  Not only are your customers and competitors reviewing your company's scores, but your insurers and potential claimants are watching, and they will use the scores when it is time to renew your insurance coverage.  Potential plaintiffs and their attorneys will also attempt to use these scores against your company in potential personal injury cases.  Keep a close eye on the scores, and work with your drivers and your safety and compliance team to keep them as low as possible.  Act quickly if you see any scores that appear inaccurate.  As your lawyers, Cipriani & Werner can work with the FMCSA to correct discrepancies so that your company's reputation is not tarnished by faulty information.  Like golf, the lowest scores are the ones you want.  Let us help you get your scores where they should be.