Trucking Groups Plan Suit to Stop CSA Data Release

This story appears in the Nov. 29 print edition of Transport Topics.

Three trucking trade groups plan to file a lawsuit to block the release of trucking companies’ CSA safety performance data to the public this week, claiming that the action violates regulatory procedure, parties to the action said.

The groups planning the lawsuit includes the National Association of Small Trucking Companies, the Air & Expedited Motor Carriers Association and the Expedite Alliance of North America, said Ken Siegel, one of the lawyers developing the case.

“I am trying to stop the publication of the numbers before we have a chance to comment,” David Owen, president of NASTC, told Transport Topics on Nov. 22. “All we want the Federal Motor Carrier Safety Administration to do is to go through the proper procedure.”

Siegel, who represents carriers and logistics companies that he declined to name, plans to argue that the agency violated the federal law requiring a formal review process with a public comment period before setting final standards such as the CSA scores.

FMCSA declined to comment. Its renamed Compliance, Safety and Accountability program focuses on carrier scores in seven Behavioral Analysis Safety Improvement Categories.

Until the data are made public, only carriers can see their own scores, known as BASICs, which rate fleets for driver fitness, fatigued and unsafe driving, maintenance, crashes, drug/alcohol infractions and cargo securement.

The groups are concerned that some shippers and brokers plan to use the information to disqualify carriers unfairly and that the data could be used against carriers in court, Siegel and Owen said.

The lawsuit is expected to be filed before FMCSA’s scheduled public release of carrier data as early as Dec. 1, Siegel said.

“It makes sense to me to create a rating system to use for the purpose for which it was designed — for FMCSA to identify unsafe carriers and intervene — and not to put them out of business,” Owen said. “They are going to put a lot of small, safe carriers out of business.”

Owen and Siegel emphasized that the legal action isn’t meant to stop the agency from doing its own safety assessment under the CSA program.

In a petition filed Sept. 24 with the agency, lawyer Henry Seaton, who represents the trade groups, said that “unfortunately, FMCSA has not fully comprehended the effect which release of CSA in its current format to the public will have on small carriers.”

His petition included examples that he said were shipper contracts that would disqualify fleets with poor CSA safety ratings.

FMCSA wants “to shift their burden for policing the safety of the industries from them to the shipping public,” Siegel said.

“We would be better off,” he said, “if they put this out to public comment, give it adequate justification and make the needed corrections to the data.”

The Oklahoma Trucking Association may join the lawsuit, Executive Director Dan Case said. Its board has passed a motion saying that the association favors following the federal procedures law and the rulemaking process. Case said that OTA probably will meet in the next two weeks to decide whether to join the lawsuit.

FMCSA said Nov. 18 it was modifying parts of the program to prevent some information from being misconstrued. The agency changed the description of poorly performing carriers from “deficient” to “alert.”

It also decided not to use the cargo BASIC because of questions about the accuracy of its scoring system for cargo securement. Crash data, whose scoring accuracy is under review, also are being recalculated.

American Trucking Associations supported the latest change, as well the broad goals of the CSA initiative, which is replacing the agency’s SafeStat system. SafeStat is based on less data and doesn’t evaluate all U.S. motor carriers.

The effects of blemishes on a carrier’s scoring record go far beyond the CSA score itself, Owen said, explaining that a carrier with just one deficient score on a BASIC could find itself shut out of the insurance and financing markets.

Staff reporter Michele Fuetsch contributed to this report.