Tuesday, January 25, 2011

What Truck Safety Is Not About / What Truck Safety Should Be About

Henry E. Seaton, Esq.
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

Just the Facts

eTrucker.com; Tuesday, January 18, 2011
HEADLINE: Most carriers unranked under CSA
Byline: Avery Vise

Barely 12 percent of active motor carriers are ranked in any of the five safety categories within the new Safety Measurement System that the Federal Motor Carrier Safety Administration made public for the first time on Sunday, Dec. 12, according to an analysis by Commercial Carrier Journal.

The SMS, which replaced SafeStat, is a key component of what FMCSA now formally calls Compliance, Safety, Accountability (CSA) — not Comprehensive Safety Analysis 2010. The agency published SMS data and metrics after a federal appeals court turned down an emergency request for a stay.

CCJ’s analysis of data published at FMCSA’s Analysis & Information website shows that only 92,184 of the 758,682 active motor carriers in the agency’s database are ranked in any of the five publicly available Behavior Analysis and Safety Improvement Categories (BASICs) — Unsafe Driving, Fatigued Driving, Driver Fitness, Controlled Substances and Vehicle Maintenance. The Cargo-Related and Crash Indicator BASICs are, for now, withheld from the public due to agency concerns that the data could be misleading.

Of the 92,184 carriers that are ranked in at least one BASIC, 52,967 carriers have at least one alert, meaning they exceeded the threshold for intervention. The greatest number of alerts, 29,207, are in the Fatigued Driving BASIC, followed by the Vehicle Maintenance BASIC at 21,791. The Controlled Substances BASIC had the fewest alerts at 3,605.

The majority of carriers are unranked because FMCSA set minimum thresholds of inspections to be considered within BASIC safety event groups. Those floors vary, but generally carriers must have three to five inspections in the past 24 months to be ranked in a BASIC. FMCSA plans to use those rankings to target interventions under its new graduated process, which starts with warning letters and escalates potentially to full-blown compliance reviews.


Friday, January 14, 2011

CSA 2010 scores are now available to the public, but are we any safer?

Tom Sanderson
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[1]

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 http://www.tlpsa.org/open/CSA_2010_Legal_Action.pdf ). ***

No one in the transportation industry disagrees with a program to promote safety. In fact, last year was the safest year for trucks since record keeping was initiated without CSA 2010. There is no reason to believe next year will not follow suit with or without CSA 2010. TLP&SA does not disagree with the concept of CSA 2010. We only ask for a fair and equitable system that has been subjected to formal rulemaking so that the important issues raised above can be addressed and resolve.

Double, double toil and troubleFire burn, and cauldron bubble

As things stand right now there are some foul ingredients in the stew called CSA 2010.

****Since the writing of this article and partially in response to the lawsuit, FMCSA has made additional changes to CSA 2010. They have added luke warm warning language concerning the use of CSA 2010 numbers and made some additional minor changes to their computations. While the court did not stop the publishing of CSA 2010 numbers, it did order briefing of the issues raised and will eventually render an opinion.

Reprinted from TLP&SA In Transit Newsletter Autumn 2010 Issue

[1] Macbeth Act 4, scene 1, 10–11, etc.