Review of the New FMCSA CSA Prioritization System

Riky Von Honaker

As a follow up to last month’s article by Michael Nischan on FMCSA’s approved SMS changes, I am providing an assessment of the impact I believe these changes will have.   These changes have the potential to significantly impact your scores, both positively and negatively.

I have categorized these changes into three groups: positive, neutral, and negative, based on my assessment. My opinions will primarily focus on the potential impact of these changes on lawsuits, broker interactions, and insurance premiums.

It’s crucial to remember that the CSA/SMS system’s primary objective is to identify carriers that require increased oversight, not to serve as the sole determinant of a carrier’s safety fitness by the FMCSA. Regardless of my opinion on each change, everyone in the industry should have a basic understanding of how this new system will function.

Positive Changes

• Violation grouping – As an example, during a roadside inspection you receive two violations “393.9T and 393.9TS” on your trailer. Because the turn signal is out on the trailer that violation would be marked “Out of Service.” Under the current scoring system both violations would be scored.  However, under the new scoring system, as both violations are in the same group, “Lighting – Driver Observed”, only one violation would be scored. In this case the turn signal, as it is the more severe. I feel this will normalize some of the variances between inspections.
• Transferring all “Operating While Out of Service” violations to the “Unsafe Driving” Basic. This makes sense, as it is more of an Unsafe Driving issue rather than a Vehicle Maintenance, Hours of Service, or Driver Fitness violation when drivers continue to operate the vehicle after being placed out of service by an officer or operating while ill, fatigued or impaired.
• Splitting the Vehicle Maintenance Basic. Vehicle Maintenance violations will now be categorized by whether the FMCSA determined the driver should have observed the violation. There will be a new Basic labelled “Vehicle Maintenance: Driver Observed”. Currently there are 219 violations, of the 1,077 available, that would not qualify as driver observed, and those would remain in the Vehicle Maintenance Basic. While I think this is positive, I am curious as to how the determination is made. There are many violations not included in the driver observed category, that – as a former driver – I feel a driver should notice during a typical pre-trip inspection.

Negative Changes

• All violations having the same point value. The proposed system assigns 1 point to all violations, except for CDL Disqualifying violations or violations resulting in an out-of-service order, which are assigned 2 points.I strongly disagree with this approach. The current point values reflect the severity of the violation.   For instance, a false log violation or driving beyond permitted hours of service should carry a higher weight than minor infractions like failing to update the trailer number or sign the log.

  Under the new system, these violations would be treated equally if they didn’t lead to an out-of-service order. This is particularly problematic given recent CVSA OOS criteria changes. False logs and hour-of-service violations may no longer result in an out-of-service order under certain conditions, even when they pose significant safety risks.

• Proportionate Percentiles. Safety Event Groups have always been an issue when a carrier is near the top or bottom of that group. For example, if you have a measure of .50 for Hours of Service with 100 driver inspections, your Basic would be at 50% — well under the 65% threshold. However, if you have the same measure with 101 driver inspections, your Basic would jump to 74%. This would also increase your ISS score from 46 optional to 86 inspect. The new system states it would correct this issue by using “benchmark medians.” If it normalizes the jumps, I am behind this 100%.
• Removal From Percentage Calculation. Carriers that have not had a violation in the last 12 months would not be used in the calculation of percentiles.

There are some other changes that would only affect certain carriers. The current maximum average miles per vehicle to allow for a utilization factor is 200,000 miles per vehicle, which would increase to 250,000 miles per vehicle.

Identifying And Securing Crash Data From A Multitude Of Sources

Todd A. Gray, Taylor McKnight & Joseph Fiorello

Those who practice transportation law are acutely aware of the accident investigation process. There are essential tasks that must be completed in short order, such as driver and witness interviews, obtaining crash reports, retaining the right accident reconstruction expert, and coordinating and completing inspections of the accident scene and involved vehicles. Of course, this list does not cover the entire gamut of tasks that the transportation law practitioner must complete in the first hours and days of an assignment.

That is not the purpose of this article. Rather, this article is meant to serve as a reminder that our understanding of where crash data can be found must go beyond simply downloading an engine control module (ECM) or air bag control module (ACM).

Electronic data recorders (EDR) are, of course, potential gold mines when it comes to crash data. For a transportation newbie, the concept of what an EDR is and where to find crash data may be limited to the aforementioned ECM and ACM. These modules can be the tip of the iceberg when it comes to securing crash data.

Many vehicles are equipped with other types of modules, devices, and advanced safety systems that record crash data. Experienced transportation law practitioners know that these sources of crash data exist and are keen to ensure that they are identified and downloaded by an expert witness. Since there is often only one opportunity to inspect a vehicle, it is important that all sources of crash data are promptly identified and downloaded, or that the modules and devices that store crash data are removed and preserved for later data extraction.

While the identification of modules, devices, and advanced safety systems within a particular vehicle will largely be handled by the accident reconstruction expert, the lawyer or claims professional must remain engaged and be prepared to ask pointed questions to ensure that crash data is not irrevocably lost. The first step of this process is having a working knowledge of the various types of modules, devices, and advanced safety systems that record crash data, such as those identified below.

The next step is taking the time to speak with your expert before, during, and after the inspection. Unfortunately, many folks skip this step and miss out on an opportunity to

(1) learn from an expert,

(2) verify the inspection protocol to be implemented,

(3) confirm that the expert has researched the potential sources of crash data on a particular vehicle, and

(4) confirm that the expert is prepared to tackle any data collection obstacles that might be encountered.

Below is a non-exhaustive list of the types of modules, devices, and advanced safety systems to be aware of when gearing up for a vehicle inspection. It is vital that these are identified and downloaded to avoid missing out on key crash data that could turn the tide in a case. Of note, data retrieval may require proprietary software, and some equipment may need to be shipped to the manufacturer to be downloaded.

• Collision Mitigation Systems (CMS), such as those manufactured by Bendix and Wabco, installed within commercial trucks can be invaluable sources of crash data. The extent of data available is largely dependent on the specific type of CMS installed within the commercial truck. Some systems are equipped with video capability and, if triggered, may record the critical moments before, during and after an impact. These systems also record vehicle dynamic data, which include but are not limited to speed, time, clutch status, engine RPM, wheel speed, steering wheel input, and acceleration.
• Navigation/GPS devices are often overlooked but can be invaluable sources of crash data. Everyone is familiar with these devices, but many folks are oblivious to the fact that some of these devices are capable of recording second-by-second crash data, and may come equipped with a dash camera affixed to the back of the device.
• Newer motorcycles, such as those manufactured by Kawasaki and Honda, are now coming equipped with EDRs.
• Detroit Assurance is a system that is now standard in 2020 and newer Freightliner Cascadia models. This advanced safety system features active brake assist, adaptive cruise control, and active lane assist, to name a few. Detroit Assurance is an entirely new source for retrieving crash information. The protocol for retrieving data from this system is the same as downloading data from the ECM, but with one important caveat: the data are not accessible absent authorization from Detroit Diesel. Thus, obtaining pre-authorization from Detroit Diesel is a must.
• Newer model Toyota vehicles are often equipped with advanced lane departure systems with cameras. If an event triggers the system, these cameras may record the critical moments before, during, and after an impact.

While data retrieval is but one step in the investigation process, it is one of the most important. Identifying and securing all available crash data is critically important to the development of liability and damages defenses, and protecting against potential spoliation of evidence claims.

FMCSA: Highway Safety Coalition Roundtable

Review the Highway Safety Coalition presentation on the new HOS rules here. 

FMCSA published their revised Hours of Service (HOS) final rule 6/1/2020. Driver must operate under this new rule starting 9/29/2020. The final rule changes four provisions;

1. Short Haul Exception
2. Adverse Driving Conditions Exception
3. 30-minute Break Requirement
4. Sleeper Berth Provision

FMCSA Proposes a Pilot Program, Introducing a 3 Hour “Pause” Feature on the 14 Hour Commercial Drivers’ HOS Clock

Read the FMCSA notice here.