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
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