Court rejects challenge to FMCSA’s CSA-related guidance

The U.S. Court of Appeals for the District of Columbia Circuit on June 17 rejected a challenge to the Federal Motor Carrier Safety Administration’s Safety Measurement System methodology on the grounds that the group’s challenge came well beyond the 60-day deadline for doing so.

The Alliance for Safe, Efficient and Competitive Truck Transportation (ASECTT) – a group of shippers, carriers and brokers formed to highlight the Compliance, Safety, Accountability (CSA) program’s effect on capacity, competition and liability – had challenged specific PowerPoint presentations regarding shipper and broker use of safety data that FMCSA had uploaded in May 2012 – about 18 months after SMS and the CSA program took effect.

ASECTT had argued that the presentations represented a major shift in policy in that it suggested that shippers and brokers should consider SMS data in selecting carriers contrary to past policy and contradicting its disclaimer otherwise.

Although ASECTT’s July 2012 lawsuit came within the 60-day deadline, the appeals court ruled that the PowerPoint did not constitute a substantial reconsideration of or change to SMS methodology. “Rather, as we have concluded above, the PowerPoint presentations merely summarize and explain information” concerning SMS, which was adopted in 2010, it said.

In a letter to its members, the ASECTT board said that the appeals court took FMCSA’s word that the guidance was not intended to transform SMS scores into a new safety rating system or promote SMS as a better carrier-selection tool than safety ratings. “Unfortunately, the practical result of the court’s decision is to provide no guidance to the shipping public concerning the agency’s ultimate duty as the arbiter of highway safety or the standard for the public to use in selecting carriers,” the board said.

ASECTT recently endorsed the concept behind proposed legislation (H.R. 4727) that would shield shippers and brokers from liability provided they take steps to insure the carriers they select have operating authority and insurance and don’t have an unsatisfactory safety rating. ASECTT has proposed changes to that bill in order to protect a broader group of businesses and to expand protections against a broader set of potential claims.

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