The passing of the Fixing America’s Surface Transportation Act (FAST Act) ushers in com- prehensive reforms to the Federal Motor Carrier Safety Administration (FMCSA). One notable provision is the overhaul of the Compliance Safety Accountability (CSA) program. CSA uses roadside violation, inspection and crash data to quantify on-road safety performance of motor carriers. CSA data, however, is often criticized for its seemingly inaccurate results across the entire spectrum of motor carriers.
In recent years, plaintiffs have aggressively pursued negligent hiring or retention claims against shippers, brokers and third-party logistics providers (3PLs). CSA data has been introduced by plaintiffs in an attempt to prove negligence or the negligent hiring of a carrier. Some courts even have held that – at a minimum and before hiring a motor carrier – CSA data should be reviewed to determine whether a prospective carrier is “safe” to hire. Such rulings require assessing a prospective motor carrier’s “safety” based on data compiled and analyzed by the FMCSA but not tied to the FMCSA’s official safety determination of a given carrier, such as a “satisfactory fitness determination.” As a result, brokers, shippers and 3PLs making a hiring decision based on CSA data could potentially find themselves at odds with the FMCSA’s own safety determinations.
The FAST Act directs the FMCSA to commission a study of the CSA program and institute a corrective action plan within the next two years or so to address inaccuracies in CSA data compilation and analysis. In the interim, the FMCSA must remove certain data from public view.
Specifically, the public will not be allowed to access data on safety violations, crashes in which the motor carrier or driver is not at fault, alerts, or motor carrier peer-group percentiles under the Behavior Analysis and Safety Improvement Categories (BASIC). Accordingly, plaintiffs will no longer have access to that CSA data for purposes of introducing it against brokers, shippers and 3PLs until the inaccuracies in the CSA program are cured.
The FAST Act, however, scaled back the level of protection for brokers, shippers and 3PLs envisioned in the House’s version of the bill. The House Surface Transportation Reauthorization & Reform Act of 2015 (STRR Act) included an “interim hiring standard” that provided for an evidentiary exclusion of CSA data while reforms were under way. This latest attempt to standardize motor carrier hiring was, however, stripped from the final version of the bill.
The evidentiary exclusion under the House version would have applied in negligent hiring and retention cases where a broker, shipper or 3PL satisfied certain standardized motor carrier hiring requirements. Had it been included in the final bill, the “interim hiring provision” would have been a valuable tool to combat an increasingly aggressive plaintiff’s bar. While the FAST Act does not permanently exclude CSA data in negligent hiring or retention claims, removing such data from public view during the reform period will ensure potentially inaccurate data is not unfairly used against brokers, shippers and 3PLs.