I urge you to write to Anne Ferro, the Administrator of the Federal Motor Carrier Safety Administration, regarding critical shortcomings with the new CSA 2010 program. It is essential that shippers speak out to avoid needless potential liability under the new regulations. Carriers are making their voices heard but their interests are not always perfectly aligned with shipper and 3PL interests. I have attached the letter I sent to Ms. Ferro. Please feel free to copy it in whole or edit the content to personalize it to your company.
It is not too late to turn CSA 2010 into a positive force for truck safety without simultaneously opening the floodgates of vicarious liability lawsuits. Vicarious liability as it applies to interstate trucking is the argument that pursuant to state law the users of a motor carrier licensed and authorized and insured pursuant to federal regulation should nonetheless be liable for the carrier's negligence in a highway accident for negligent selection or use of the carrier.
Equally important, I advise that you not develop your own methodology to evaluate whether a carrier is fit for service based on the CSA scores. As a shipper, you are entitled to rely on the FMCSA to certify carriers as safe for use. The Agency has a statutory duty to determine the fitness of motor carriers to operate safely on the public highways. The FMCSA has not followed the legally required process for changing its current system of rating carriers as unsatisfactory, conditional, or satisfactory and unrated (which is the equivalent of satisfactory). If the Agency, in doing its duty, certifies a carrier as safe to operate and an insurance company, after investigating it, provides evidence of adequate coverage, is the shipping community well served to second guess those decisions? The case law clearly suggests that you lose your statutory protection of reliance on the regulator's ultimate decision when you use flawed data like CSA 2010 to credential carriers. You only open Pandora's Box by deciding, for example, that one "Alert" is OK but not two, or by establishing your own minimum percentiles. You are needlessly exposing yourself to vicarious liability claims where your chosen credentialing criteria are challenged.
Before you use CSA 2010 methodology, consider this. The FMCSA, in discharging its duty, places approximately 1% of the carriers it certifies out of service each year. Yet under CSA 2010, 57% of the carriers that the system measures will be over a specified threshold and hence subject to being blackballed if the 5 reported BASICs are used as credentialing criteria.
Anne S. Ferro, Administrator
Federal Motor Carrier Safety Administration
United States Department of Transportation
1200 New Jersey Avenue SE
Washington, DC 20590
Dear Ms. Ferro,
I am writing to express my concerns about certain aspects of the new CSA 2010 program. While I applaud the Agency's efforts to make our highways safer for all, the CSA program is needlessly subjecting manufacturers, retailers, and logistics management companies (Shippers) to legal claims of vicarious liability and negligent entrustment when they are using carriers that the FMCSA has deemed as fit for service.
Shippers and brokers are now being bombarded by consultants offering to help them develop their own methodology for credentialing carriers using the SMS scores for the five reported BASICs. Shippers are entitled to rely on the FMCSA to certify carriers as safe for use. The Agency cannot change its statutory duty to determine the fitness of motor carriers to operate safely on the public highways. The FMCSA has not followed the legally required process for changing its current system of rating carriers as unsatisfactory, conditional, or satisfactory and unrated (which is the equivalent of satisfactory). If the Agency, in doing its duty, certifies a carrier as safe to operate and an insurance company, after investigating it, provides evidence of adequate coverage, is the shipping community well served to second guess those decisions? The case law clearly suggests that shippers lose their statutory protection of reliance on the regulator's ultimate decision when they use data like CSA 2010 to credential the carriers they use.
Furthermore, some large carriers are asking shippers to adopt a carrier credentialing methodology based on the CSA data. With 57% of all carriers having at least one Alert, the large carriers are trying to scare shippers into abandoning the smaller carriers that are the lifeblood of the trucking industry. The self interest in reducing competition is obvious.
I am requesting that Agency publish a clear disclaimer and warning regarding the CSA data; specifically: "Data accumulated for use by the Agency in prioritizing carriers for further safety monitoring is intended solely for the use of the Agency and is not intended for use by the shipping and receiving public to establish criteria for use of carriers. In addition, it is improper to use such data for any purpose in court or other legal proceedings, except for use by the Agency in fulfilling its obligation to ultimately determine which carriers are authorized to conduct interstate operations. Until addressed in rulemaking, the Agency's determination of carriers shall be reflected as "unsatisfactory," "conditional," "satisfactory," and "unrated." Unrated carriers are fully licensed, authorized and insured in accordance with FMCSA regulations."
Thank you for your consideration,
Thomas K. Sanderson
President and CEO
Transplace