Article originally written for Grizella LLC.

September 13, 2016

Since the passing of the FAST Act in December 2015, the FMCSA has temporarily removed vital carrier compliance and safety information from public view, meaning that moving into the new year CSA scores were no longer visible to the public for purposes of gauging a carrier’s safety.

Although the raw data from which CSA scores were originally derived is still available, the convenience of FMCSA-calculated scores has been removed, leading to an important question: does removing ready access to CSA scores relieve a broker of potential liability when hiring a carrier?

The FMCSA still uses CSA scores to identify motor carriers that pose the greatest risk to safety for interventions. We all know there has been much controversy over the CSA scores, but many in the industry who must assess carrier risk believe there aren’t other resources available to help determine carrier safety. There is still much debate over the use and effectiveness of the safety rating, and the publicly-available CSA Measures are only a step in the overall CSA percentage calculation. Faced with developing their own system for grading potential carriers, industry participants asked SaferWatch™ to provide a comparable calculation. SaferWatch™ uses the published FMCSA’s Safety Measurement System (SMS) methodology and data to generate CSA-e percentile scores that are consistent with SMS CSA percentiles.

In terms of a carrier selection plan, there are many different perspectives about what data should and should not be used. However, other industry participants are more dependant on the scores–insurance companies, for example, are interested in using the scores to assess insurability. A good percentage of brokers and 3PL’s use vendors that provide discounts conditional on whether or not those members use carriers that meet standards described in CSA data. Completely forbidding the use of CSA score data removes a tool used by many in the industry to help assess carrier risk and results in immediate, tangible financial consequences, to say nothing of the increased potential for negligent hiring.

Asked for a comment, Ben Armistead, Partner of Greenwich Transportation Underwriters in Nashville, a leading insurance provider to carriers and freight brokers, points out that CSA data has not been removed permanently, rather that the data will reappear despite what CSA detractors have taken advantage of their absence to say. This position has been supported by Transportation Secretary, Anthony Foxx, who shared a 1-2 year timeframe for analysis before CSA scores will be re-posted during a testimony before the Senate’s Commerce, Science, and Transportation committee. “While the current data is most certainly not to be viewed as a true measure of accountability,” Armistead says, “it should be taken into context when looking at other risk characteristics.”

While the CSA data may not completely capture a particular carrier’s safety record, the data is still a necessary part of a circumspect carrier selection process. Inspection data still exists and, while some of it may have errors in its calibrations, the information is far from worthless or unusable. Ben continues that “Like an insurance underwriter, any decent lawyer will still be able to build a negligent hiring case against a broker who doesn’t take CSA data into account.”

This then is the issue at stake–completely dismissing the CSA data as a means of measuring carrier quality is not a sustainable proposition if, as Mr. Armistead concludes, “components of that data are still going to be used in a courtroom to establish broker liability as it relates to negligent hiring, negligent entrustment, and the vicarious liability. Irrespective of whether a stakeholder feels that CSA is worthwhile or not, which we completely understand, do not assume that the data will not be used against someone who looked the other way.”

As mentioned previously, even though the CSA scoring system has its flaws, brokers aren’t entirely released from it now that the scores are hidden from public view. There are still significant risks to putting one’s head in the sand. In the meantime, companies essentially have three choices: do nothing, and face potential legal consequences; invent their own safety metric using CSA building blocks, flooding the market with incompatible and incomparable ratings; or use a standardized comparable percentile score like CSA-e. Resources are available for those who choose to seek them out.