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. Continue reading