UPCOMING: MOTOR CARRIER / Does FMCSA’s CSA 2010 program and related Safety Measurement System methodology amount to a “new de facto procedure for rating the safety of motor carriers” but not lawfully adopted by FMCSA in accordance with the governing statute relating to “safety fitness” of motor carrier owners and operators (49 U.S.C. § 31144)?

Before the U.S. Court of Appeals for the D.C. Circuit

Alliance for Safe, Efficient and Competitive Truck Transporation v. FMCSA, 2012 WL 6040412, December 4, 2010.

12-1305

Pending Appeal:

On Petition for Review from the Federal Motor Carrier Safety Administration.  

How Petitioners for Review Describe the Case:

“II. STATEMENT OF THE ISSUES

“1. Whether the Compliance, Safety, Accountability (“CSA”) program and related Safety Measurement System (“SMS”) methodology as implemented and applied in the FMCSA Release -

(a) are unlawful under 49 U.S.C. § 31144 as a new de facto procedure for rating the safety of motor carriers inasmuch as they are not the product of a properly-adopted “regulation,” and

(b) constitute a new legislative rule issued not in accordance with law and without observance of procedure required by the APA, among other laws.

“2. Whether, because the FMCSA Release is a legislative rule subject to notice and comment requirements, and affects numerous small entities, the Agency –

(a) violated the Regulatory Flexibility Act (“RFA”) by not publishing a Final Regulatory Flexibility Analysis or certifying the rule under 5 U.S.C. § 605(b), and

(b) acted inconsistently with National Transportation Policy directives concerning “competitive and efficient services” (49 U.S.C. § 13101(a)(2)) because the SMS methodology inflicts disproportionate harm on small carriers.

“3. Whether the FMCSA Release constitutes final agency action for which there is no adequate remedy; which is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law; is contrary to constitutional right, power, privilege, or immunity; is in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and which constitutes prejudicial error within the meaning of APA section 706(2), because, among other things -

(a) it officially sanctions the CSA program and related SMS methodology containing numerous logical and statistical flaws that misrepresent the safety performance of motor carriers;

(b) it portrays the flawed SMS methodology as a new and co-equal element of a carrier safety fitness determination, thereby causing harm to Petitioners and others similarly situated;

(c) it represents an unexplained departure from the Agency’s established policy that SMS scores are not safety ratings, as well as from the Agency’s legally binding commitments under the settlement agreement it executed in National Association of Small Trucking Companies et al. v. FMCSA, No. 10-1402, 2011 U.S. App. LEXIS 7403 (D.C. Cir. March 10, 2011) (“ NASTC”); and

(d) the Agency abdicated its statutory and constitutional obligation to provide uniform national safety fitness standards for motor carriers operating in interstate commerce, thereby exposing shippers to a patchwork of state tort-law standards for assessing the safety of carriers without definitive Agency guidance.

Core of Appellant-Wrongful Death Plaintiff’s Argument Here:

“The subject matter of the FMCSA Release relates to the process for assessing whether motor carriers (trucking and bus companies) are fit – in terms of safety management practices and performance – to operate on the Nation’s highways. The law imposes on the Agency the sole responsibility to make such safety fitness determinations (“SFDs”) according to standards that must be developed through full notice-and-comment rulemaking procedures. As will be seen, Petitioners challenge the FMCSA Release as unlawfully introducing new substantive rules and a new ultimate arbiter for determining the safety fitness of such carriers, which number in the hundreds of thousands across this country, and as doing so without adhering to required procedures.

“The new rules implement and sanction the CSA program and the SMS methodology for the unlawful purpose of summarily changing established rules for making SFDs. Both CSA and SMS were created without rulemaking under the APA, but now exist in a universe parallel to the Agency’s published, APA-compliant regulations for making SFDs under its “safety rating” rules at 49 C.F.R. Part 385. Taking the parallelism one step further, the FMCSA Release advises the public that SMS methodology is equal, if not superior, to the “official” safety ratings (the Agency’s own terminology) as an effective indicator of a carrier’s fitness.

“The new arbiter for fitness is not the Agency with its statutory powers to credential a carrier as safe, but rather the transportation user (such as a bus passenger, a freight shipper, a freight forwarder or a transportation broker). Instead of being able to rely on FMCSA safety ratings under Part 385 as the operative SFDs, the user is now advised by the FMCSA Release to consider SMS scores at least co-equally with safety ratings in making its own “business judgments” about which carriers to utilize. 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 concepts such as negligent selection and vicarious liability.

Comment:

This is a substantial legal undertaking relating to a vexing problem for those who arrange transportation by motor carrier as brokers or freight forwarders.

At the core of this Petition for Review is the question of whether it is the FMCSA that is responsible for safety credentialing of motor carriers under 49 C.F.R. Part 385, and if the FMCSA is acting consistently with, “the federal responsibility to issue SFDs [“safety fitness determinations”] is currently codified in 49 U.S.C. § 31144, which requires FMCSA to determine fitness under a uniform set of criteria applicable to all operators of commercial motor vehicles in all States.”

Petitioners argue that FMCSA’s conduct with respect to the “Compliance, Safety, Accountability (“CSA”) program and related Safety Measurement System (“SMS”) methodology as implemented and applied in the FMCSA Release” reflects that FMCSA’s view is to the contrary.

In any event, the current situation leaves the legal and regulatory burdens of those who arrange transport through motor carriers with starkly mixed guidance, and the petitioners ask the court to correct what they regard as FMCSA rule making – in function if not in formal description – and require adherence to the Administrative Procedure Act and other applicable requirements.