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Groups sue to block CSA 2010

Three organizations representing motor carriers asked a federal appeals court on Tuesday, Nov. 29, to block implementation of the Comprehensive Safety Analysis 2010 initiative or at least to prohibit the public release of certain CSA data until the Federal Motor Carrier Safety Administration completes a rulemaking on the program that complies with the Administrative Procedures Act. FMCSA plans to release CSA data and metrics as early as Dec. 5. Meanwhile, the largest organization representing trucking companies says it still backs CSA and won’t join the effort.

The groups challenging CSA – National Association of Small Trucking Companies, The Expedite Alliance of North America and the Air & Expedited Motor Carriers Association – filed a motion for emergency stay with the U.S. Court of Appeals for the District of Columbia. In their court filing, the three groups said that FMCSA should disclose fully to the industry and public all aspects of its proposed rule, including:
The algorithms and other formulas the agency plans to use in developing carriers’ Behavior Analysis and Safety Improvement Categories (BASICs) grades and classifications; The sample populations used in developing the percentiles and other criteria the agency will utilize in grading carriers as to safety; and The procedures the agency will use, if any, to determine that alleged violations are reported accurately.
FMCSA should follow the normal rulemaking process by providing an opportunity to comment on its proposal and issuing a decision explaining its final rule, citing to portions of the record that support the rule, the groups said, adding that FMCSA should not be allowed to implement CSA 2010 until it has completed this process.

But if the court believes that any part of CSA is exempt from APA’s notice-and-comment provisions, “then at a minimum it should stay the publication of individual carriers’ BASIC scores and ratings until the agency has complied with APA requirements,” the motion states.

In justifying its request for a stay, the associations said that CSA and, especially, the publication of BASIC ratings “will result in irreparable competitive and economic harm to motor carriers and freight brokers” while a delay will cause no harm to the agency or the public because FMCSA has in place a successful safety monitoring and enforcement program.

“While the public undoubtedly has an interest in safe highways, it also has an interest in a competitive motor carrier industry, especially in these economic times,” the motion states. “A program that decreases competition, reduces jobs, and increases transportation costs, is not in the public interest. Implementation of CSA 2010 in its current form threatens the survival of thousands of carriers, many of which are small companies in rural America.”

The groups charge that FMCSA has not adequately responded to substantial concerns over CSA methodology, including:
Due process concerns. CSA 2010 will assign safety ratings based on citations and warnings that motor carriers have no effective way to challenge, the organizations said.
Peer grouping. Carriers required to maintain paper logs of drivers’ on-duty and driving time are peer grouped with carriers that do not need to do so, resulting in unfair comparisons that prejudice carriers using paper logs, the groups said. A large proportion of logging violations typically involve recordkeeping errors rather than excessive driving hours.
Data inequity. Enforcement officials in some states need “probable cause” for charging a moving violation in order to stop a truck for a safety inspection, escalating the number of warnings received by carriers in those states. Although this is the case under SafeStat as well, the inequity will be compounded when they can influence an actual safety rating under CSA, the associations said. In addition to geographical inequity, under-reporting of satisfactory inspections skews several of the BASIC scores, resulting in faulty statistical data.
Unexplained methodology changes. In August of 2010, after two years of test trials, the agency announced it made 800 technical changes in its methodology, none of which have been released or reviewed by the public, the groups said. “Because neither the science nor the math behind the methodology appears to have been subject to Data Quality Act review by the agency, the data has no proven reliability and is not fit to be published given the substantial adverse consequences.”

Although FMCSA plans a future rulemaking that would allow it to issue formal safety ratings based on CSA data, public release of individual motor carriers’ BASIC scores and grades will have a substantial anticompetitive effect on the motor carrier industry, and on small carriers in particular, the groups charged in the motion. Shippers and brokers will be exposed to the threat of vicarious liability for alleged “negligent selection” of a motor carrier. “This threat will become immediate whenever a carrier used by such customers has an accident while handling their freight, and then turns out to have less than perfect BASIC scores,” the groups said. “The problem of vicarious liability is real. State law has been applied to require a shipper or broker to second guess the agency’s ultimate fitness determination through use of publicly released data, even when the FMCSA has certified that a carrier is licensed and authorized for use.”

Even if the data were accurate, the devastating effects of its release call for use of the notice and comment procedures of the APA, the organizations said. “But the data has not been demonstrated to be reliable.

Concerns over data quality include the difficulty in correcting flawed and misleading data. Although there is a DataQ mechanism for seeking corrections, the process is unsatisfactory and corrections are at the discretion of States where reported violations allegedly occurred.” The petitioners said they were especially concerned about data reliability problems created by the prejudicial effect of reporting anomalies on entities with small samplings.

“Once a carrier has been debarred by shippers or brokers because of a FMCSA safety rating or its reputation has been tarnished, there is no way to undo the harm,” the organizations charged. Despite its website disclaimers, once the data is public, the agency cannot prevent a state or federal court from allowing it into evidence in a civil proceeding, they said. “The agency ignored this economic reality and the devastating effect on tens of thousands of small for-hire carriers.”

In an alert to its members, ATA said that while it continues to have some concerns with the CSA 2010 methodology, it will not joining the other groups in challenging the program. Bob Digges, ATA’s vice president and chief counsel, and outside counsel have evaluated the merits of the legal arguments and believe they have a very limited chance of being successful, ATA said. “Further, ATA believes greater gains can and have been made by working with the agency to make needed improvements to ensure that scores are both fair and accurate,” the association said in its alert.

“In those categories where the accuracy of scores is questionable (the Crash Indicator and Cargo-Related BASIC) scores should appropriately be kept from public view.”

ATA said that FMCSA has demonstrated a willingness to respond to its concerns related to CSA 2010, noting that the agency in August announced that it will incorporate vehicle mileage into its measure of exposure. ATA also had advocated withholding Cargo-Related BASIC scores from public view until the system had been modified to ensure that the scores are more fair and accurate — a move FMCSA announced on Nov. 18.

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