Court Asked to Overturn CSA by Group of Shippers, Fleets
This story appears in the Jan. 14 print edition of Transport Topics.
A group of shippers, brokers and small motor carriers told a federal court that the Federal Motor Carrier Safety Administration’s new carrier safety ratings are “confusing, ever-changing, mercurial and capricious in their effects on carriers.”
The group, which filed a lawsuit against FMCSA in July, said in a legal brief filed with an appeals court last month that the agency should have implemented its Compliance, Safety, Accountability program through a rulemaking, rather than by posting a “series of PowerPoint presentations and other advisories” without an opportunity for public comment.
CSA is “causing economic harm and tectonic changes in the huge national marketplace for motor carrier services,” the legal brief said.
The group of 17 litigants, led by the Alliance for Safe, Efficient and Competitive Truck Transportation, is seeking to require FMCSA to remove carrier safety scores from public view, block the agency from advising the public to rely on the scores to hire carriers and reintroduce the CSA program through the slower-moving and more thorough regulatory process (7-30, p. 26).
Duane DeBruyne, an FMCSA spokesman, said the agency does not comment on pending litigation.
However, the appeals court has given FMCSA until Jan. 14 to respond to the plaintiffs’ allegations. The case has not yet been set for oral arguments.
Those filing the lawsuit include such trade groups as the National Association of Small Trucking Companies and Air & Expedited Motor Carriers Association, as well as companies including Forward Air Inc. and Carrier Services of Tennessee.
The lawsuit said CSA’s Safety Measurement System data already are having a broad effect in “private litigation matters,” because of confusion among shippers and brokers in how to use the data to determine which carriers are safe.
A recent Morgan Stanley study concluded that 55% of shippers reported they would not use carriers with even one over-threshold rating in the seven safety rating categories known as Behavior Analysis and Safety Improvement Categories, or BASICs.
“Vicarious liability claims based on CSA/SMS data already are making their way through the courts, with disparate results from state to state,” the group’s brief said.
“Instead of being able to rely on a preemptive federal safety credential for a motor carrier, the transportation user is subject to second-guessing of its business judgments under state tort-law concepts such a negligent selection and vicarious liability,” the brief said.
However, in past statements FMCSA officials have said the CSA data are intended to target specific problems for agency intervention and are not specifically designed to rate a carrier as safe or unsafe. At present, the agency is still using the old SafeStat system that deems a carrier satisfactory or unsatisfactory based on a compliance audit.
The old system is expected to be replaced in upcoming months since FMCSA plans to issue a proposed safety fitness determination rule in late November that will explain in detail how the CSA data will be used to rate a carrier as satisfactory or unsatisfactory.
But already, the industry plaintiffs said, motor carriers are reporting problems with “constantly shifting scores and with flawed SMS methodology that misrepresents their actual safety performance.”
“Among the broker and forwarder declarants, the most widely reported problem is the cost and administrative burden of tracking customer demands for non-use of particular carriers based on SMS scores perceived by the customer as too high,” the brief said.
Other CSA problems cited by the group included coverage of only a fraction of the nation’s active commercial truck fleets; geographical anomalies resulting from “almost complete reliance” on disparate state enforcement systems and priorities; and the agency’s limited accident data, which fails to “exclude accidents that were not the carrier’s fault.”
