Wednesday, March 21, 2018

Be proactive: CSA 2010 here whether we like it or not

Wednesday, May 26, 2010

When CSA 2010 goes live it will incorporate a 24-month, look-back period for calculating the carrier’s SMS score.
When CSA 2010 goes live it will incorporate a 24-month, look-back period for calculating the carrier’s SMS score.

Editor’s note: This is the last installment of a multi-part series on CSA 2010.

Any program you use to help you comply with CSA 2010 should contain a CSA 2010 Scorecard which shows where the carrier stands, percentage wise, in regard to the seven basic categories.  The program will also identify the top five drivers in your company with high BASICs score. Because this information is updated on a daily basis, a carrier will be able to immediately know where they stand and which drivers may need additional training.  Needless to say, the ability to have all this information at your fingertips will go a long way in keeping your company aware of where it stands in regard to CSA 2010 compliance.  It will also allow you to learn of warnings, citation and, heaven forbid, accidents much quicker than you probably do now. 

As I mentioned earlier, using the technology available is one way to paddle efficiently; however, all the information in the world is useless if you do nothing with it.  With that in mind, we come to the second thing you must d be proactive in protecting your SMS score. 

When CSA 2010 goes live it will incorporate a 24-month, look-back period for calculating the carrier’s SMS score.  In real world terms this means that the events that happen now – and even 18 months ago – will have a negative impact on your SMS score.  While it may (or may not) be too late to do anything about events that took place in the distant past, it is imperative that you take steps to challenge unwarranted citations and inspection violations you receive.  The reason for this is twofold:  First, recent CSA 2010 events carry more weight in calculating your SMS score and, second, they are easier to dispute.  In fact it has never been more important for carriers and drivers to legally challenge unwarranted citations and inspections.  However, a word or warning: Because CSA 2010 will impact not only your company’s bottom line but also your driver’s ability to earn a living it is imperative that you use an attorney with experience in CDL defense.  The attorney you used to draft your will or that a friend used to handle his divorce will likely not fully understand CSA 2010 and its ramifications.  Simply stated if your livelihood depends on your CDL then you should use an attorney with lots of experience in CDL defense. 

Maintain a streamlined position

I know you are asking yourself what in the world he means by maintaining a streamlined position.  Imagine you are riding a motorcycle — one of the fast sport bikes with a small fairing.  If you want to reach your maximum speed you hunker down behind the fairing and let the air pass right over you.  If you raise your head or come out of this position at a high speed you create instant drag and you run the risk of losing control or being blown off the back of the bike.  How does this translate into our discussion?  I am glad you asked. 

Assuming you have followed the steps above, you will be presenting the FMCSA with the smallest possible profile on its radar.  By analogy, you are like the rider I mentioned above.   Many of the potential problems associated with CSA 2010 will pass right over or around you.  However, during your ride you may be tempted to lift your head or change your position.  Don’t do it. 

At some point in the future — and despite your best efforts to avoid it — you will likely receive an intervention letter from the FMCSA that begins with something like “[y]our company’s safety data records shows a lack of compliance with motor carrier safety rules and regulations.”  In fact, this language was taken from an intervention letter mailed to a motor carrier in one of the test states in April 2009.  Though the wording has been refined over the past year the message remains the same: your company is not in compliance.  At this point you will be tempted to fire back a response letter to the FMCSA. Though your intentions may be pure when you prepare your letter this is where you can crash or be blown off the back of the bike because your response could cause more harm than good. 

When responding to a warning letter from the FMCSA carriers as well as drivers should be very cautious in the way they respond. It is highly recommended that legal counsel familiar with the trucking industry, and CSA 2010 in particular, be retained to assist in preparing a response letter.  By way of example, in one response letter that the FMCSA received the carrier inadvertently admitted to not having properly trained mechanics.  I am confident that the carrier was trying to be honest in its response to the FMCSA; however, this admission opens the carrier up to future legal liability whether the carrier intended it or not.  In fact, by preparing and sending this response letter this particular carrier lost its “streamlined position” and wasted all the effort it spent in its compliance efforts.  Now they are on FMCSA’s radar screen and more interaction is likely to follow.  In addition, and potentially more problematic, is that the fact that if your company is involved in civil litigation arising from an accident you can count on this letter – with the admission highlighted and the letter projected in the court room on a movie screen – to  be introduced as evidence by a Plaintiff’s attorney.   Don’t let this be you.

I know that no one likes attorneys.  Shoot, I am an attorney and I am not even sure that I like attorneys.  Regardless, the advice noted above is correct.  If you receive an intervention/warning letter from the FMCSA it is in your best interest to have an attorney familiar with the trucking industry and CSA 2010 in particular either prepare the response letter or review the letter before it is sent. 

In closing, please keep in mind that CSA 2010, and all its problems, is coming whether we like it or not.  The best way to deal with it is to decide where you want be when the wave hits the shore and start paddling in that direction.       

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