CSA Changes Affect All GAWDA Members

The U.S. Department of Transportation’s announced changes to its Carrier Safety Measurement System (SMS), which was implemented in December 2010 as part of the agency’s broader Compliance, Safety, Accountability (CSA) initiative, will affect the application of that program to all GAWDA members who have delivery vehicles. The system changes are scheduled to be available to the public in July 2012.

The announced amendments include:

  1. Changes to the SMS methodology that identify higher risk carriers while addressing industry biases;
  2. Better applications of SMS results for agency interventions by more accurately identifying safety sensitive carriers (i.e., carriers hauling hazardous materials such as GAWDA members) so that such companies can be selected for CSA interventions at more stringent levels;
  3. More specific fact-based displays of SMS results on the SMS website.

The changes will also create a new Hazardous Materials BASIC and split the cargo securement violations out of that BASIC. In addition, the Federal Motor Carrier Safety Administration plans to change how carriers are classified as hazmat carriers. For a carrier to be subject to the hazmat threshold, that carrier must have at least two inspections on a vehicle transporting hazmat requiring placards, within the past 24 months, with one inspection occurring within the past 12 months and making up at least five percent of the motor carrier’s total inspections. In addition, any motor carrier that has an FMCSA hazmat safety permit or has been identified as a carrier of placarded quantities of hazardous materials from an investigation in the last 24 months will be subject to the increased intervention scrutiny.

But the FMCSA has also dropped the ball on a significant change needed in the CSA standards. At present, all vehicle accidents are included in a company’s CSA score without regard to which driver was at fault. Thus, if a company’s truck is stopped at a red light and an automobile fails to stop and hits the truck from behind, the company operating the truck is still charged with an accident in that CSA BASIC.

When industry representatives complained about this unfair treatment, the FMCSA agreed to amend its approach and assign fault to crashes based on police reports. Carriers would only be charged with a crash when their driver was at fault. The FMCSA has now reneged on this promise, however. One explanation for the change in approach is political pressure from automobile insurers (and plaintiffs’ lawyers) who benefit from payouts of damages without regard to fault. If the FMCSA determines that a crash is not chargeable to the company operating the truck, it is more difficult to collect damages from the truck operator and its insurer.

This affects all GAWDA member companies because it makes them subject to interventions and penalties in the CSA regimen based on incidents out of their control. In addition, insurers look at CSA scores to rate companies’ risk, and customers may also look at CSA scores as one means of evaluating whether to do business with a company subject to the CSA system. A higher accident score will elevate the company’s perceived risk as determined by insurers and customers.

Finally, the FMCSA is supposed to conduct a rulemaking to revise the motor carrier safety rating program to correspond with the CSA scoring system. A proposed rule is expected later this year. But a rating system where companies are evaluated and rated (and penalized if they fail to meet certain thresholds) based even in part on events beyond their control is bad policy, and might even rise to the level of “arbitrary and capricious” rulemaking that would justify a court vacating the regulation. It would not surprise me if the final rule, once it arrives, is challenged in court on these grounds.

Gases and Welding Distributors Association
Richard P. Schweitzer, Esq. Meet the Author
GAWDA’s Government Affairs and Human Resources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC in Washington, DC. Members can reach him at 202-223-3040 and rpschweitzer@rpslegal.com.