By Jonathan S. Reiskin, Associate News Editor
This story appears in the Sept. 16 print edition of Transport Topics.
WASHINGTON — Lawyers representing some shippers and brokers told a federal appeals court that the government’s Safety Measurement System is an improperly enacted rule that should be vacated.
However, an attorney for the Federal Motor Carrier Safety Administration said a PowerPoint presentation that some industry groups call a federal regulation is just a support document offering an explanation of the Compliance, Safety, Accountability program.
As the U.S. Court of Appeals for the District of Columbia Circuit heard arguments in this case last week, an FMCSA subcommittee heard differing opinions about the use of police accident reports as part of CSA, while Administrator Anne Ferro told truckers that vehicle maintenance is the key to maintaining good scores.
Meanwhile, David Frulla, attorney for the Alliance for Safe, Efficient and Competitive Truck Transportation, told the three-judge panel, “the release of this document changed the world for millions of businesses” involved in freight transportation.
Publication of the May 2012 PowerPoint on Safety Resources for Stakeholders was called a “watershed event” by Frulla. It transformed the data from an “enforcement triage tool” for FMCSA to a policy with major effects on shippers, logistics companies, insurance carriers and trucking companies.
Frulla said that FMCSA is using the SMS data as a “leverage point” to scare shippers and brokers into dropping trucking companies with less- than-perfect scores in CSA’s seven safety areas, known as BASICs.
“The worst nightmare for a shipper or brokers is to get dragged into a state tort case,” Frulla said, adding that FMCSA is using this pressure to regulate safety the best it can when it does not have the resources to do full safety evaluations of every carrier annually.
“FMCSA is using tools of suasion to drive public behavior,” Frulla said.
Conversely, a Justice Department attorney representing FMCSA said that since CSA became effective in 2010, it is now too late to argue the system’s propriety before the court.
FMCSA’s attorney, Jeffrey Clair, added, “The idea that the PowerPoint document is a radical departure from prior practices simply isn’t borne out by the record.”
Clair said FMCSA simply suggests that shippers and brokers should consider “the totality of information available” on a carrier’s safety performance, but the agency gives no orders on how the data must be used by shippers and their agents.
SMS organizes data from truck safety inspections and presents them as part of CSA, which started in December 2010. In addition to this lawsuit, trucking groups have challenged the data over how current they are and whether the resulting scores correlate well with actual safety trends.
The basic safety ruling on a carrier is satisfactory, conditional or unsatisfactory, and either of the first two allows a carrier’s operating authority to remain in force. SMS readings, however, are like golf scores, with lower being better.
Chief Judge Merrick Garland, Judge Judith Rogers and Senior Judge Stephen Williams peppered the attorneys with questions. Garland focused on the narrow issues brought up by Clair, asking about proper jurisdiction and whether the PowerPoint was properly considered a rule because the main task for the D.C. Circuit is to review rules.
“Who does this bind?” Garland asked Frulla about the PowerPoint, in analyzing if it should be considered a rule.
At the end of the argument, Garland said he and his colleagues would take the case under advisement. Frulla said that meant there probably would be a decision coming in several months.
Asked for further comment, FMCSA spokeswoman Marissa Padilla said, “The agency does not comment on pending litigation.”