CSA saga takes unusual twist as industry attacks FMCSA's "guidance" on safety measurement data
Shipper-carrier group warns federal agency has created a "constitutional crisis."
The ongoing battle between the federal government and motor carriers, brokers, and their customers over the government's controversial "Compliance, Safety, and Accountability (CSA) 2010" truck-safety rating program has taken an unusual turn.
On May 16, the Federal Motor Carrier Safety Administration (FMCSA), the sub-agency of the Department of Transportation that oversees truck safety, posted a slide presentation on its website that has generated controversy. The presentation is designed to provide shippers, freight brokers, and insurers with additional resources and guidance on how to use the "Safety Measurement System" (SMS) data embedded in CSA in order to determine a trucker's safety fitness.
Included in the notes accompanying two of the slides was language the program's critics say is a strong sign the agency wants to shed its statutory role as the final arbiter of highway safety and instead put the burden of evaluating a carrier's fitness on shippers and brokers. Such a change would expose both groups to significant liability risk should plaintiffs' lawyers show that their decisions contributed to injuries or fatalities resulting from an accident involving a motor carrier.
Under a 2011 legal settlement, the FMCSA affirmed its statutory obligation to conduct what are known as "Safety Fitness Determinations" of all DOT-licensed truckers. After conducting safety compliance reviews, the agency would rate each carrier as satisfactory, unsatisfactory, or "conditional," the last meaning the carrier would be allowed to operate but would continue to be monitored. Shippers and brokers interpreted the settlement to mean the FMCSA's authority would give them proper liability protection in the event of legal action arising from a truck-related accident.
But in the mid-May presentation notes, the FMCSA said that a "satisfactory or conditional rating does not mean ... that the public should ignore all other reasonably available information about the motor carrier operations." In another slide, the agency said that a "satisfactory" rating issued at the time of a prior compliance review "does not mean (a) carrier is currently in compliance and operating safely. A rating is only a snapshot based on the date of the most recent compliance review."
The Alliance for Safe, Efficient and Competitive Truck Transportation (ASECTT), a group of shippers, carriers, and brokers that is highly critical of the CSA process, said in a Web posting expected to appear today that the FMCSA's disclaimers indicate the agency "has now crossed the line" by stating that its safety ratings were relevant only at the time they were issued, and by advising shippers and brokers on how to use the SMS to make their own fitness determinations.
FMCSA has "abdicated its role as the ultimate judge of highway safety," ASECTT said in a two-page missive entitled "A Call for Action to Shippers and Brokers."
ASECTT also said the FMCSA has created a "constitutional crisis" by waiving the precepts of federal pre-emption "on its own motion in order to pursue the alleged benefits of 'raising the safety bar.' "
FMCSA officials said the information was compiled after meetings with leading industry groups, and that the agency was providing the industry with the tools needed to use the SMS data to help with carrier selection. In a statement, the FMCSA said it is "committed to working with the trucking industry, safety advocates, and other stakeholders to make (CSA) as effective as possible."
The agency recently extended until July 30 a public comment period on potential changes to the program, adding, "we want to take the time to get this right."
Industry groups call CSA flawed
Industry groups are skeptical, to say the least. The Transportation Intermediaries Association (TIA) said in a statement issued May 25 that safety ratings must be "retired" and replaced by what would effectively be considered a "thumbs-up, thumbs-down" determination by the agency.
TIA President Robert Voltmann said his group's biggest concern is that the data built into the SMS "will be misused, misunderstood, and cause a sweep of unnecessary and unfounded litigations against shippers and brokers."
The American Trucking Associations (ATA), which represents large trucking concerns, continues to endorse CSA's objectives but in recent months has grown increasingly concerned about what Rob Abbott, vice president of safety policy, called "numerous flaws" in the program.
"We met with FMCSA in April to present our list of concerns/solutions, but believe FMCSA is unlikely to address most of them," said Abbott in an e-mail.
Perhaps the most glaring flaw, in the ATA's view, is that truckers' scores in several of CSA's measurement components don't bear a strong relationship to future crash risk. In a May 11 letter to House-Senate conferees who are trying to hash out a new surface transportation reauthorization bill, ATA President Bill Graves said Congress should prevent the DOT from assigning safety-fitness determinations based on CSA scores until a proven link can be made between elevated CSA ratings and the carrier's likelihood of being involved in a crash.More articles by Mark B. Solomon
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