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August 5, 2013 5:00 AM, EDT
Appeals Court Sets Date to Hear CSA Challenge
By Timothy Cama, Staff Reporter

This story appears in the Aug. 5 print edition of Transport Topics.

A federal appeals court will hear arguments next month concerning whether the U.S. government followed the law when it implemented the Compliance, Safety, Accountability ratings program.

The Alliance for Safe, Efficient and Competitive Truck Transportation filed a lawsuit last year because it said the Federal Motor Carrier Safety Administration did not

follow the formal rulemaking process before it publicized CSA scores and instructed shippers and brokers to consider them when hiring carriers.

The Alliance, made up mostly of brokers, shippers and carriers, is asking the court to force FMCSA to hide the Safety Measurement System scores from the public and to submit the shipper and broker guidance for public comment before making it final.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit will hear the case Sept. 10.

“The original intention of CSA . . . was to help FMCSA prioritize its enforcement resources and to provide data back to the carriers to help the carriers improve their safety and operations,” said Tom Sanderson, chairman of the Alliance and CEO of third-party logistics firm Transplace.

“The problem comes with the general publication of the SMS scores, and the commentary that the FMCSA makes about those scores  . . . suggesting that those scores should be used by the shipping public alongside the official safety fitness determination,” he said.

In previously filed briefs, the Alliance and FMCSA argued over whether the shipper and broker guidance, including a May 2012 digital presentation, constituted a regulation from the agency. If considered a regulation, the Alliance contends FMCSA violated the law by failing to study the regulation, propose it and seek comment before finalizing it.

The guidance shifted the burden of safety determinations away from the government and onto shippers and brokers, making them the new arbiters, the Alliance said.

“Instead of being able to rely on a preemptive federal safety credential for a motor carrier, the transportation user is subject to second-guessing of its ‘business judgments’ under state tort-law,” the brief continued.

FMCSA responded that its digital presentation did not change any policy and therefore was not a rule and is not subject to the court’s review.

“The revised system does not affect a carrier’s safety rating,” the agency said of CSA. “Rather, the system is intended to provide a clearer picture of the specific areas in which a carrier has regulatory compliance or safety problems.”

FMCSA said it has held a consistent policy on SMS scores, which represent percentile rankings of carriers’ regulatory violations: The scores do not necessarily constitute determinations of carriers’ safety. Those judgments can only be made after FMCSA conducts an audit of a carrier.

“The documents set no substantive standard, do not purport to constrain the conduct of any regulated party and do not set limits on the manner in which the agency exercises its enforcement discretion,” FMCSA said of the digital presentation. “They thus do not establish a rule, regulation or final order subject to review.”

FMCSA said in its brief that the presentation came as a response to confusion over CSA’s role in representing carriers’ safety.

With a similar goal in mind, FMCSA has said that it will introduce a redesigned public SMS site later this year that will make it clearer to visitors that scores are not safety judgments.

FMCSA does not comment on pending litigation, an agency spokesman said.

David Frulla, an attorney with the firm Kelley Drye & Warren, will argue the case for the Alliance.