Tuesday, January 25, 2011
Seaton & Husk, LP
What Truck Safety Is Not About
1. Truck safety is not about shippers and brokers having to credential carriers under fear of vicarious liability.
2. Truck safety is not about competition or competitive advantage.
3. Truck safety is not about a comparative safety regime in which your compliance scores must be less than half of your peer grouped carriers to stay in business.
What Truck Safety Should Be About
1. Truck safety should be about federal government certifying carriers as safe to operate and placing out of service carriers which cannot comply with federal standards.
2. Truck safety should be about a free and competitive industry in which carriers are allowed to operate and are only placed out of service after an opportunity to improve compliance and due process.
Tuesday, January 18, 2011
Friday, January 14, 2011
President and CEO
The answer is no and furthermore we risk opening a quagmire of legal actions while also inflicting significant damage in the trucking industry and for the freight shipping public. Federal law requires that the Federal Motor Carrier Safety Administration (FMCSA) determine whether a trucking company is fit for service. Carriers must also maintain adequate insurance. In all modes of transportation, we rely on federal agencies to be the watchdogs of safety telling us that the airlines we fly and the trains we board are safe. With CSA 2010 various groups are trying to blur the definition and shift the burden of evaluating carrier safety to manufacturers, retailers, and logistics management companies. The concept of Federal Preemption is critical to a smooth-running national transportation system. The trial lawyers are licking their chops at the prospects of suing Fortune 500 companies in state courts for using carriers that the federal government has deemed are fit for service, but whose CSA 2010 scores fall below some arbitrary percentile. Safety must be an absolute, not a relative measure. Fully 57% of all trucking companies are under "Alert" for at least one of the new laws' measures. Some of the largest truckers are advocating the new rules because it will be harder for smaller carriers to survive, thus increasing the pricing power of the survivors. If the FMCSA wants to utilize a new measurement system to determine which carriers are fit for duty, we are all for it, but they should not abdicate their obligations and simultaneously open the floodgates of uncertainty and litigation.
Wednesday, January 5, 2011
By: William D. Bierman, Esq.
Executive Director, TLP&SA
Double, double toil and trouble
Fire burn, and cauldron bubble
It seems like every day for the past year or so there has been some article; seminar; webinar or discussion on CSA 2010. One would think the industry knows all there is to know about this sweeping new program. One would be wrong! Our informal polling indicates few small carriers have even heard of CSA 2010 and most shippers and brokers are not aware of the potential catastrophic consequences vicarious liability may visit upon them.
My colleague Hank Seaton and I together with some interested industry folks recently sat down with Administrator Anne Ferro of the FMCSA and a group of her minions to express our deep concern regarding the problems and unintended consequences of CSA 2010. We were grateful for the meeting since we had been writing to the agency for some time setting forth substantial problems with the proposed Program.
We posed the following questions:
1. Why would the Agency rush ahead with implementation of CSA 2010 before subjecting it the formal rule making process as required by the Administrative Procedure Act wherein the industry would get full disclosure of all aspects of the proposed rule, including the algorithms and formulas the agency intends to utilize in determining grades and classifications?
2. Is the Agency aware shippers, brokers, factors and others in the industry will rely on the CSA 2010 numbers and may refuse to deal with carriers even though the FMCSA may eventually declare the carrier satisfactory thus putting a carrier out of business before the final rating is determined?
3. Why has the Agency not revealed its formulas and algorithms so the industry can test them for accuracy?
4. Why does CSA 2010 assign safety ratings based on citations and warnings which a motor carrier has no effective way to challenge?
5. Does the Agency realize public release of these preliminary and flawed numbers will create fertile ground for vicarious liability lawsuits against shippers and brokers based on alleged negligent selection of carriers?
Unfortunately, we did not receive answers to these questions.
Based on the industry’s growing understanding of these problems and a host of others, the FMCSA has now grudgingly started to make minor changes to CSA 2010. They have dropped the word “deficient” from their vocabulary and replaced it with “alert”. They have changed the color used to highlight carrier “alerts” from red to orange. They have “recalibrated” one of the BASIC categories.
Nevertheless, the Agency has refused to discontinue the publishing of all questionable preliminary data to the public or to include a strong WARNING with the effect of law advising the public and the courts that these numbers are preliminary and cannot be used to either disqualify a carrier or in any court or legal proceeding.
Based on the position of the Agency, trucking groups have sued to delay implementation of CSA 2010. The carriers, represented by three industry groups, filed suit at the U.S. Court of Appeals in Washington, D.C. to block the release of carrier safety data proposed to start on December 5, 2010. (See copy of carrier lawsuit at
Reprinted from TLP&SA In Transit Newsletter Autumn 2010 Issue