Steven Bryan
Portland, OR
February 3, 2014:

UPDATED 8/10/14: Another Update, ASCETT Lawsuit dismissed in June.

Today (June 17, 2014), a 3-judge panel of the US Court of Appeals for the District of Columbia Circuit issued its decision in Alliance for Safe, Efficient and Competitive Truck Transportation, et al. v. FMCSA, et al. (D.C. Cir. No. 12-1305), dismissing the petition brought by a trucking association and individual motor carriers challenging FMCSA’s Compliance, Safety, Accountability (CSA) program.  Petitioners alleged that a PowerPoint presentation posted on the CSA website was a rule issued without notice and comment.  The Court, in a unanimous decision, held that the presentation does no more than describe the Safety Measurement System (SMS) that FMCSA announced by Federal Register notice in December 2010.  To the extent Petitioners could have challenged SMS, their time for doing so has long since expired.  In determining that the presentation was not a new rule, the Court found that display of a motor carrier’s official safety rating in SAFER, insurance status on L&I, and prioritization status in SMS to provide users with “an informed, current and comprehensive picture of a motor carrier’s compliance standing;” and the Agency’s recommendation that the public use FMCSA information “to help make sound business judgments” was not a new and far-reaching, novel, or astonishing reversal of Agency policy as characterized by Petitioners.  The challenged guidance is substantively no different than the guidance FMCSA provided in the 2010 Federal Register notice announcing the SMS.  Moreover, SMS was intended to provide public users with information about motor carrier safety performance assessments.  Because the PowerPoint presentation does not amount to a rule, regulation, final order, change in agency policy, or substantive reconsideration or alteration of the SMS methodology, it is not subject to judicial review.  The Court dismissed the Petition.  Petitioners can seek reconsideration or review by the US Supreme Court. 

UPDATED 3/10/2014: Radar is pinging again.  The awaited IG Audit was released last week and has some more guidance for the FMCSA to continue making improvements to CSA.  There are six (6) recommendations in the IG’s Report.  I’ve summarized them in the IG Audit Section below, or a link to the entire report is HERE.

UPDATED 3/6/2014:  Another incoming bogey has struck!  Today, a US Court of Appeals in DC ruled in favor of OOIDA and its representative driver on the DataQs challenge issue.  A link to the ruling is now included in the OOIDA Lawsuit section below.

UPDATED 2/4/2014: to include new comments related to the GAO Report released yesterday, a few hours after this blog was posted. See link and comments at the end of this blog.

In honor of last week’s State of the Union address by President Obama, I am inspired to give my State of the Union on the CSA (Compliance, Safety and Accountability) program for 2014.  I hear two things as I travel around the country and talk to hundreds of carriers.

  1. CSA has accomplished one goal in spades; Safety now has a seat at the table and the industry largely supports the goals of CSA
  2. CSA has some critical defects that need to be addressed if the industry is going to continue to support it as an important initiative in the years ahead

2014 is the year where significant progress on goal #2 MUST occur.  I believe it’s going to occur, and I believe it will be done under pressure.  Pressure is coming from many sources and will be applied to many, or all of the constituents of the US commercial trucking industry.

CSA is poised for more disruption and change in 2014 than at any point in the prior three years.  It’s almost impossible to imagine that we will end 2014 with CSA looking as it does today.

CSA launched officially in December of 2010 and became the definitive prioritization system for the safety performance of all trucking companies operating in interstate commerce in the United States.  CSA is the publicly available prioritization system for over 795,000 motor carriers and their 5 million drivers who travel almost 400 billion miles per year (approx. 4300 trips to the Sun) and carry ¾ of a trillion dollars in freight to, from and between the 50 great States that make up the most powerful economy the planet has ever known.

Today, 53,218 carriers have at least one CSA Alert.  That represents 6.68% of all carriers subject to CSA, a ratio that is virtually unchanged since January of 2011.

In the past three years, CSA has become well known by carriers, shippers, brokers, drivers, lawyers, and the public as the defacto standard for judging the safety of a motor carrier.  The FMCSA continues to argue that CSA was intended to be an enforcement tool and that CSA scores alone are not intended to be used for shippers, and have issued disclaimers that state exactly that.  Sorry FMCSA, then CSA should have been kept private and only used by law enforcement.  You made it public, so we all have to live with the results of that, disclaimers mean nothing in this litigious world.

CSA matters.

Given the high profile CSA has, and the critical impact poor CSA performance can have on a carriers (or drivers) business, income and livelihood, its fair for us to scrutinize the State of CSA as it enters its fourth year.  Multiple bogeys appear on the 2014 CSA radar.  The sections that follow will try and explain each bogey and then a summary at the end to give my opinion as to how it all may tie together.  Each section has a link to a relevant article or other website that I think will help you understand the underlying issues if you care to dig deeper.  These links are a combination of direct sources (FMCSA) and indirect (articles from industry publications).

A disclaimer- Vigillo serves the trucking industry, so we tend to view CSA through the eyes of a carrier.  It is what it is, I don’t apologize for it, I just want you to know where I’m coming from.  So here we go…

CSA Radar

  

If you imagine the radar sweeping clockwise, I have taken my best shot at estimating when these incoming bogeys are likely to impact the industry.  I could be way off in the timing, it’s difficult to predict when lawsuits, government audits and rulemakings will be finalized.  That said, its my blog and my opinion so I’ll go out on a limb, be interesting to come back to this in a year and see if I got any of it right.

ATRI CSA Survey
http://www.ccjdigital.com/drivers-enforcement-still-unsure-on-csa-report-shows/

I know I got the timing of this one right, since it was released the morning I started writing this (last week).  ATRI has just completed its third survey of CSA awareness among carriers, drivers, and enforcement personnel.  Carriers seem to be getting the CSA message, drivers not performing so well, and surprisingly, the enforcement officers who are responsible for the inspections and violations that are the DNA of CSA, really don’t understand the program very well at all. (see Disparate Enforcement Section)

Now I have all the respect in the world for law enforcement, but CSA is a big club that is being used to beat up carriers and they deserve to have well informed enforcement, acting uniformly across the USA, who understand things like the value of clean inspections and will be open minded about DataQ challenges.

GAO Audit
http://www.oig.dot.gov/sites/dot/files/CSA%20Signed%20Announcement%20Letter%5E1-14-13.pdf

In January of 2013, two audits were simultaneously announced.  One by the Government Accountability Office (GAO) and one by the DOT Inspector General.  Both were expected to be released in Summer/Fall of 2013, neither made it.

The GAO audit is mentioned in the DOT IG memorandum as “ The Government Accountability Office (GAO) is currently reviewing CSA’s identification of the highest risk carriers” in other words, GAO is reviewing the methodology, and the DOT IG is looking at data collection and intervention process (See IG Audit Section)

My sources inside the beltway tell me that this Audit (the GAO) is expected “any day now.”  In my opinion, the combination of the GAO and IG Audits will likely give the strongest push towards improving the data and methodology of CSA. We’re watching these very closely and will digest and report on them as soon as they become public.

The GAO issued its report with findings and recommendations on 2/3/2014.  A link to the report is here http://www.gao.gov/products/GAO-14-114

Methodology Changes

https://csa.fmcsa.dot.gov/Whats_new.aspx click on November 2013 link

“The Federal Motor Carrier Safety Administration (FMCSA) is proposing enhancements to the display of information on the SMS Website. The proposed redesign is intended to advance FMCSA’s safety mission by making important information easier to understand for motor carriers who want to improve their safety performance and for public users interested in FMCSA data. In keeping with its dedication to transparency and commitment to consistently improve the SMS, FMCSA is providing a preview of the SMS Website display. These proposed enhancements do not include changes to the SMS methodology.”

The quote above is directly from the SMS website from the FMCSA.  So, this latest round of methodology changes is no change to the methodology at all, but simply cosmetic changes to make it easier to understand.  My opinion is that these design changes were made in response to industry complaints (see ASCETT Lawsuit), but making it easier to understand a flawed system does not seem to me to be the best use of resources.  The comment period is now closed on these changes and a grand total of 19 comments were posted.  It will be very interesting to see what changes 2014 bring as audits, lawsuits and reviews are finalized.

One” display change” that I am going to be tackling in the coming weeks is the new availability of Safety Event Group data.  For the first time, carriers can see who they are being ranked against (it used to require a Freedom of Information Act request).

Carriers have it, Vigillo has it, I can’t wait to tease that apart and see what wisdom we can deploy. This will reveal a new dimension of analysis that has not been possible until now. Good times!

IG Audit

http://www.scranet.org/industry-news/2013/01/24/dot-office-of-inspector-general-begins-csa-audit

In January 2013, the DOT Inspector General announced the launch of an audit to ”assess whether FMCSA has (1) established adequate controls to ensure the quality of the data used to evaluate carrier performance and risk, and (2) effectively implemented CSA enforcement interventions…  The audit will supplement an ongoing review of CSA by the Government Accountability Office, which also was requested by the House subcommittee.”

There has been no finding released as of now, and it’s gone pretty quiet, so while I do expect to see the results of this audit in 2014, it seems to be on a slow track.  Rumor has it out in March or April, so keep an eye open.  This IG Audit, combined with the GAO Audit mentioned above will likely cause tremors through CSA. These babies were ordered by Congress.

UPDATE 3/10/2014 – IG Audit Report Released

  • FMCSA has not yet implemented planned actions to revise guidance for its data correction process.
  •  FMCSA has not fully implemented the CSA enforcement intervention process nationwide.
  • FMCSA has not fully implemented the CSA enforcement intervention process nationwide. Only 10 States had fully implemented CSA enforcement interventions at the time of our report
  • FMCSA has limited documentation demonstrating that it followed information technology system best practices and Federal guidance while developing and testing CSMS.

 RECOMMENDATIONS AND RESPONSES

 Recommendation 1: “Issue updated DataQs guidance.”
 Response: Concur. FMCSA is currently revising the DataQs User Guide and Manual.
Target Action Date: July 31, 2014 

Recommendation 2: “Implement the process for deactivating USDOT numbers when carriers do not submit required census data, as described in FMCSA memorandum MC-ES-2013-0009.”
Response: Concur. Starting March 1, 2014, FMCSA will begin deactivating USDOT numbers for carriers that do not complete their census data updates as required. |
T
arget Action Date: March 31, 2014

Recommendation 3: “Develop a comprehensive plan to fully implement CSA enforcement interventions in the remaining 41 States. The plan should include an estimated completion date and milestones for releasing Sentri software, developing and delivering training, and using the enforcement interventions.”
Response: Concur. FMCSA will develop an implementation plan to reflect recent activity and future requirements.
Target Action Date: May 30, 2014

 Recommendation 4: “Update the CSMS requirements document to (a) specify all sources of CSMS data, including each of the MCMIS fields used, and (b) fully describe CSMS validation procedures.”
Response: Concur. FMCSA will update the CSMS – System Requirements document to include two new chapters: “Sources of CSMS Data” and “CSMS Validation Procedures.” The latter chapter will address validation of both the monthly CSMS runs and CSMS system changes.
Target Action Date: June 30, 2014

 Recommendation 5: “Develop and implement a process for managing CSMS system documentation that includes a central file for validation records and testing results.”

 Response: Concur. In June 2013, FMCSA implemented a process for recording the completion of the steps required to validate the SMS monthly runs in a centralized location (via SharePoint). Based on the updated validation procedures referenced in Recommendation #4, FMCSA will develop a more comprehensive centralized system that will store important results and correspondence for each monthly run.
Target Action Date: June 30, 2014

 Recommendation 6: “Develop and implement a configuration management policy that includes documentation of system changes and associated testing for CSMS.”

Response: Concur. FMCSA will integrate CSMS system changes into the existing FMCSA information technology (IT) configuration management policy and supporting configuration management tool, the Electronic Change Request System (eReqs). The eReqs process includes: internal FMCSA validation; executive oversight; impact assessment; Software Development Life Cycle documentation, which describes the requirements, testing, and deployment; and, storage of the modification request documentation and release artifacts to the centralized location.

 Target Action Date: June 30, 2014

Crash Accountability

http://www.truckinginfo.com/channel/fleet-management/news/story/2013/04/some-consensus-some-differences-emerge-from-csa-advisory-panel.aspx

In early 2012, the FMCSA stopped implementation of a system to assign fault to crashes for CSA purposes.  The concept was that crashes that are not the fault of the carrier, like rear ended by a drunk, would not count towards CSA crash measurement and would be removed from the record.  The initiative was halted with these widely publicized comments.

“Ferro explained in an interview that safety advocacy groups raised questions about the proposal that caused her to reconsider the agency’s approach.

The questions had to do with using just the Police Accident Report and a carrier’s statement to determine crash accountability, Ferro said.

 She said that approach is too limited because it does not allow for comment from others impacted by the crash. These presumably could include victims, insurance companies, shippers and witnesses.

 Also, the process did not allow other parties to even know that a carrier was filing a request for an accountability examination, Ferro said. And, if the agency created a window for others to participate, it would have to create a new process to manage the exchange.

 “It was just too early out of the box in this proposal, quite frankly, so I pulled it back,” Ferro said.

The follow up was for FMCSA to begin a year-long study period that was to end in July 2013 with guidance on how crash accountability would be handled.  I just checked, July 2013 is in the past, and no such study has yet to be published.  That said, I simply think its impossible to imagine a final Safety Fitness Rule that does not resolve how and whether crash accountability will be accommodated.

A blog that I wrote last year with a proposed solution is at: http://vigillo.com/2013/04/does-this-crash-make-my-butt-look-fat/

Safety Fitness Rule

http://www.etrucker.com/ccj/dot-regulatory-update-shows-csas-safety-fitness-determination-rule-could-come-this-month

Think about my radar screen analogy for this article.  If each of the bogeys represents an incoming missile that has the potential to impact and cause change to CSA, then the Fitness Determination Rule is the thermonuclear warhead.

The Safety Fitness Determination Rule (SFD) has historically stated that a carrier will be assigned one of three Fitness labels, Unsatisfactory, Conditional, or Satisfactory (or No Data).  These labels are assigned as a result of an on-site compliance review.

In a CSA world, it has always been the plan to use CSA Scores as the mechanism for assigning these labels.  Headed into our fourth year, the rule has not been promulgated to accomplish that goal.

With all of the issues swirling around CSA, this observer has a lot of trouble seeing how it’s going to happen anytime soon.  While the Agency may claim that CSA Scores are primarily for enforcement prioritization, there is no argument that the SFD is for use in determining a carrier’s true safety rating.  If CSA matters, SFD is “the law.” Any rule that proposes to assign a SFD to a carrier based on the methodology and data that exists today, in my opinion, is doomed to failure until the major issues (crash accountability, disparate enforcement, and better peer grouping) are addressed.

ATA Advocacy

http://www.prnewswire.com/news-releases/ata-issues-white-paper-on-the-reliability-of-csa-scores-235064061.html

“ATA continues to support the objectives of CSA and to call for improvements to the program,” said ATA President and CEO Bill Graves. “However, data and methodology problems continue to plague the system and the accuracy and reliability of companies’ scores.”

On December 9, 2013, the American Trucking Associations (ATA) released a white paper detailing its position on some of the defects of CSA. (paper available at link above)

Their comments on areas needing improvement can be summarized as:

  1. Lack of correlation between some BASIC scores and crash risk
  2. Data Sufficiency for many small carriers
  3. Under reporting of crashes
  4. Regional Enforcement Disparities
  5. Crash Accountability
  6. Violation Severity Weights
  7. Relative percentile ranking

ATA continues to be a clear and strong voice with the FMCSA in advocating for some of the needed changes in CSA.  This white paper, and the educational efforts undertaken by ATA will likely result in progress in 2014 towards a better CSA Program.

ASECTT Lawsuit

http://asectt.blogspot.com/2012/07/suit-filed-by-asectt-and-others-fmcsa.html

“ASECTT members believe SMS methodology is a work in progress, unapproved for the Agency’s own use in making safety fitness determinations.  With no concern for the effect of its publication on shippers and brokers or the false branding of carriers and resulting economic consequences on small businesses, the Agency has in effect told the shipping community it cannot rely upon the Agency to do its statutory job to certify carriers as safe for use and must make an independent safety evaluation of all carriers before use. This amounts to a new rule with significant economic consequences which must be timely challenged.”

This lawsuit, filed with the U.S. Court of Appeals for the District of Columbia Circuit against the FMCSA, is winding its way through the process.  There is an update at:

http://www.overdriveonline.com/asectts-csa-lawsuit-update/

This, along with the OOIDA lawsuit (below), represent the highest profile cases in the pipeline that have the potential to get judicial weigh-in on various aspects of CSA for the first time.

Lawsuit Dismissed in June

OOIDA Lawsuit

http://www.truckinginfo.com/channel/owner-operators/news/story/2013/05/ooida-files-second-lawsuit-against-fmcsa-over-safety-records.aspx

This is why lawsuits sometimes have to be filed.  OOIDA’s case has not yet been finalized, but it has been successful, at least in part.  The thrust of this lawsuit was to have violations removed that had been dismissed or reduced by a competent court.  CSA has always been disconnected from any judicial process when it comes to violations.  Once you get it, it’s yours for life (or three years at least) for CSA purposes.

Lawsuit in May 2013, guess what?  One of the “display changes” being proposed (see Methodology Changes Section above) is to begin to allow adjudicated violations to be removed through the DataQ’s process.  The OOIDA lawsuit, combined with Congressional pressure appears to have moved the FMCSA to recognize judicial review.

UPDATE: Lawsuit ruling http://m.landlinemag.com/Story.aspx?StoryID=26626#.UxdMBmeYY5s

Disparate Enforcement

http://www.youtube.com/watch?v=4QSUZV0gTZE

25% of all CSA points in 2012 came from 5 counties in Texas.  Nearly all are Maintenance and nearly all are written at a few border crossings. Indiana is notorious for speeding violations, Oregon and Georgia hate HOS violations, and Louisiana is tough on seat belt violators.

CSA is a federal program, implemented and enforced by the State partners.  Each state has its own resources, politics, safety experience, and quite frankly, their own idea of truck safety.  Not bad or good in and of itself, except it creates a very imbalanced CSA impact on carriers who operate in these hot zones.  Some states are generous with clean inspections; some nearly refuse to do one.  Some States respond well to valid DataQ’s challenges, some enforcement personnel see them as an insult and take punitive positions against the carriers who dare to challenge them.

One of two things needs to happen:

  1. Better training on CSA of enforcement (See ATRI Survey Above)
  2. CSA needs to include the historical focus and build a normalizer into CSA to adjust scores for carriers who operate in higher risk environments (sort of a combat pay for being in the war zone) 

NTSB Comments

http://www.truckinginfo.com/channel/owner-operators/news/story/2013/11/ntsb-calls-for-audit-of-fmcsa-s-safety-oversight.aspx

“The National Transportation Safety Board has sharply criticized the Federal Motor Carrier Safety Administration’s oversight processes in light of several deadly crashes that the board investigated, saying the findings from these investigations raise serious questions about the oversight of motor carrier operations and is recommended audits of the agency’s oversight processes.”

So says the report of November 2013 following a review by National Transportation Safety Board of FMCSA’s ability to identify unsafe carriers and act to remove them from operation before crashes occur.

So the NTSB, an independent government agency, not a part of DOT, has now reported that the FMCSA is not being aggressive enough in shutting down unsafe carriers.  The effects of this are unknown, but all 5 Board members of NTSB are nominated by the President and approved by the Senate for 5 year terms.  This is not a light weight group, their opinions and findings matter.  But does this make CSA better?  Or does it just put more pressure on FMCSA to get more aggressive (see Expanded FMCSA Power Section)

Expanded FMCSA Power

http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/rule-programs/rule_making_details.aspx?ruleid=470

In November 2013, the NTSB issued a critical report raising “serious questions” regarding FMCSA’s oversight of trucking safety.  Two months later, FMCSA grants itself more power.

“FMCSA amends its regulations to enable the Agency to suspend or revoke the operating authority registration of for-hire motor carriers that show egregious disregard for safety compliance, permit persons who have shown egregious disregard for safety compliance to exercise controlling influence over their operations, or operate multiple entities under common control to conceal noncompliance with safety regulations”

Summary

If you are still with me after this rather lengthy analysis, I congratulate, and kinda take pity on you.

Here’s the bottom line for 2014.  CSA is still a program whose goals are largely supported by the industry.  The vast majority of safety professionals in trucking are very safe operators who care deeply about their companies, drivers, motoring public, and this great nation.  I began this with the statement that one goal that CSA has accomplished is the elevation of safety to hold a seat at the table.  I cannot overstate how important this is.  I hear every day about how the conversation about safety is now top of mind at the C-Level, Board Room, with customers and brokers, and is a key factor in hiring and retaining good drivers.  It’s about culture, and it has changed dramatically since CSA launched.  For this, the FMCSA should be congratulated.

On the other hand, CSA is not completed.  The SFD Rule must be finalized in order for the program to be truly in place, and that simply cannot happen until some of the underlying problems (See ATA Advocacy Section) are addressed in an open and constructive dialog between the FMCSA, carriers, the public, and the customers.

I have outlined 12 incoming bogeys that are on the 2014 CSA radar that virtually guarantee further evolution and I hope, improvement in the CSA Program.

Here is what I see in the crystal ball.  I can almost hear the limb I’m out on creaking under my weight.

1. Crash Accountability will be finalized – FMCSA will determine that all crashes, regardless of preventability, are statistically predictive of future crashes and will leave them in for the SFD Rulemaking. I don’t agree, and the industry won’t like it, but that is what I believe will happen.

2. The pressure of multiple lawsuits, audits, and growing pressure from Congress is going to result in a review of some of the methodology and data problems that underlie CSA.

3. Disparate enforcement is not going to change much.  We live in a Republic with a built-in balance between state and federal governance.  CSA is never going to overcome the political, resource and cultural biases of the states.  States are going to do what states are going to do.

4. The FMCSA is going to add more tools to their bag.  The new rulemaking that gives the Agency the power to shut down “egregious” carriers is the best example, but more may be coming.

2014 will see a lot of change in CSA, it will also see a lot of continuing frustration and confusion.  Stay tuned, Vigillo will do all it can to add transparency to the data and give carriers the best shot possible at operating safely and profitably in the shifting sands of CSA.

Thank you, good night, and God Bless the United States of America.

UPDATE 2/4/14 – Today, the GAO issued its findings from the audit described above (GAO Audit Section).  It makes two recommendations:

1. Recommendation: To improve the CSA program, the Secretary of Transportation should direct the FMCSA Administrator to revise the SMS methodology to better account for limitations in drawing comparisons of safety performance information across carriers; in doing so, the Secretary of Transportation should direct the FMCSA Administrator to conduct a formal analysis that specifically identifies: (1) limitations in the data used to calculate SMS scores including variability in the carrier population and the quality and quantity of data available for carrier safety performance assessments, and (2) limitations in the resulting SMS scores including their precision, confidence, and reliability for the purposes for which they are used

2. Recommendation: To improve the CSA program, the Secretary of Transportation should direct the FMCSA Administrator to ensure that any determination of a carrier’s fitness to operate properly accounts for limitations we have identified regarding safety performance information.

Industry feedback is supportive of the GAO recommendations as stated by Governor Graves of ATA. ATA President Bill Graves said in a statement. “While ATA has long supported CSA’s objectives, we can’t help but agree with GAO’s findings that the scores produced by the program don’t present an accurate or precise assessment of the safety of many carriers.”

FMCSA comments to the GAO Audit are a little less promising. “While we are always looking for ways to improve our safety oversight methods, and will carefully consider the GAO’s latest recommendations, research shows that CSA is already more effective at identifying motor carriers with a greater risk of crashing than the system we replaced in 2010,” spokeswoman Marissa Padilla said.

So, two of my radar bogeys have already impacted.  The ATRI Survey and now the GAO Audit both show room for considerable improvement in CSA.  Having something that is “better than what it replaced” is a low bar indeed.