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Considering the Scaly Side of “Beyond Compliance”

Round and round.

September 26, 2016 Photo

The Federal Motor Carrier Safety Administration (FMCSA) is proposing to add another behavior analysis and safety improvement category (BASIC), known as “Beyond Compliance,” to its Compliance, Safety, and Accountability (CSA) program. The existing BASIC system measures a motor carrier’s safety and compliance in the following seven categories: unsafe driving, hours-of-service compliance, driver fitness, controlled substances and alcohol, vehicle maintenance, hazardous materials compliance, and crash indicator. The data pertaining to motor carriers’ compliance records and CSA scores are made publicly available through the safety measurement system (SMS).

Beyond Compliance, the proposed eighth BASIC, would be a voluntary program that would require motor carriers to apply to the FMCSA for involvement and, upon admission, would credit motor carriers for deploying operators and vehicles with safety-enhancing technology or programs. Specifically, eligible motor carriers should install advanced safety equipment; use enhanced driver fitness measures; adopt fleet safety management tools, technologies, and programs; and satisfy other standards determined appropriate by the FMCSA.

Beyond Compliance is to be a two-stage program, with the first stage being “deployed.” It recognizes the motor carrier’s implementation of safety-enhancing equipment or programs. The second stage is “improved,” which is designed to appreciate cognizable improvement in the motor carrier’s safe operations based on the safety-enhancing programs and technology. A motor carrier’s participation in Beyond Compliance is to be recognized in SMS. The FMCSA’s stated purpose for creating the Beyond Compliance BASIC in the proposed format and publicly identifying participants is that it has found that public recognition of a motor carrier’s participation in the voluntary program provides value by allowing the motor carrier to distinguish itself from other companies.

Not all motor carriers will be permitted entry into the Beyond Compliance program. The FMCSA has proposed that only those motor carriers that meet certain expressly identified criteria will be eligible to participate. Additionally, there is concern in the industry that Beyond Compliance will disadvantage small carriers and owner-operators that do not have the funds to invest in “voluntary” equipment upgrades or any costs associated with participating in the program itself.

Specifically, in order to apply, motor carriers:

 

  • Must not have a conditional or unsatisfactory safety rating.
  • Must not have any BASICs over intervention thresholds at the time of the application.
  • Must have applied proposed technology or programs to the carrier’s population of vehicles or drivers to adequately achieve the performance goal and improve safety.
  • Must be an interstate carrier.
  • Must have graduated from the new entrant monitoring period.

 

Beyond the immediate impact on the motor carriers, if the Beyond Compliance program is adopted as proposed, it will most certainly create new questions for insurance carriers, claims professionals, and litigators to consider. Namely, will this eighth BASIC raise the minimum standard of compliance for carriers that either fail to meet the eligibility criteria or fail to meet the program’s qualifications after entry and are subsequently removed?

Claims professionals and defense counsel should be aware that wily plaintiff’s counsel will pounce on Beyond Compliance as a newly-established floor for motor carrier compliance. Plaintiff’s counsel who are competent in trucking law—and specifically those who implement the tenants of the Reptile Theory—propagate the Federal Motor Carrier Safety Regulations (FMCSR) as a rigid rulebook and, thus, any deviation from it needlessly endangers the public. And while Beyond Compliance is well-intentioned to credit those carriers that go above and beyond, it may have the adverse effect of creating an opportunity for juries to punish those that do not participate in the program. Plaintiff’s counsel can be expected to argue that, while the FMCSR was the old “floor” for compliance, the FMCSA is attempting to raise the floor with what is presently a voluntary program in Beyond Compliance and motor carriers that do not participate in the program are not actively engaged in making roadways safer for the public.

It is not atypical for plaintiff’s counsel, in the course of trucking litigation, to attempt to create a higher standard or degree of care for motor carriers and commercial drivers, if not under the law, then at least as it pertains to the operation of a commercial vehicle that is larger, heavier, and more unwieldy than the other vehicles on the roadway. Such arguments are designed to create questions in the minds of jurors regarding what conduct or omission arises to negligence. Beyond Compliance may unwittingly create another foothold for plaintiff’s counsel to use in gaining leverage and creating questions in the minds of jurors by itself creating a “higher standard” for motor carriers to aspire to, and even be incentivized to reach.

Despite the FMCSA’s best intentions in its proposed integration of the Beyond Compliance program into the existing CSA framework, in an effort to credit motor carriers for voluntarily incorporating safer equipment and programs, the program’s most significant, unintended consequence may be to adversely affect motor carriers that are unable to participate and, secondarily, to create a heightened floor for compliance that hinders insurance providers and litigators in defending motor carriers and commercial drivers.

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About The Authors
Jeremy W. Richter

Jeremy W. Richter is an associate with CLM Member Firm Webster, Henry, Lyons, Bradwell, Cohan & Black PC. He can be reached at (205) 380-3480,  jrichter@websterhenry.com

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