FMCSA Rebukes ATA

July 1, 2010

Requests to Improve CSA 2010

Things are hot and getting hotter between The Honorable Anne Ferro, Administrator of Federal Motor Carrier Safety Administration (FMCSA) and David Osiecki, Sr. Vice President for Policy & Regulatory Affairs of the American Trucking Association (ATA).  Here is the setting, ATA sends letter to FMCSA on February 26, 2010 explaining concerns and offering solutions to 3 specific parts of the new CSA 2010.  FMCSA sends letter back to ATA on April 16, 2010 thanking them for their concerns and solutions BUT reminding them who makes the laws.  Let me put this into the specific ATA requests, proposed ATA solutions and FMCSA responses.

First, ATA’s largest concern is “lack of crash accountability determination prior to the data being entered and used in the program.”  The CSA 2010 considers all DOT-defined crashes, whether at fault or not, which makes the carrier with two crashes determined to be “not their fault” as dangerous as a carrier with two crashes that actually resulted in a crash.

ATA’s recommended solution is a single contractor with a small, well-trained ‘crash evaluation team’ to determine crash accountability and place the proper blame on the carrier causing the crash to determine carriers for DOT intervention.
FMCSA responded with acknowledgement of the concern and notice they are considering several short-term and longer term approaches.  While FMCSA works to improve the CSA 2010, they will exclude the crash assessment from any public Web site that may be viewed by shippers or insurers.  Additionally, FMCSA will continue to consider accountability of crashes before issuing any formal and final adverse safety fitness ratings that follow compliance reviews.  However, until a viable long-term solution can be found, FMCSA will continue to use all crashes to identify motor carriers for intervention.

Second, ATA’s next most significant concern is use of each carrier’s truck count as the measure of risk exposure rather than the total number of Vehicle Miles Traveled (VMT) each year.  The thinking is that carriers with greater number of power units are at a disadvantage because of their increased exposure to adverse safety events.  This focus on total units could hide the higher risk carriers with fewer power units.

ATA’s recommended solution is making the mileage field of the MCS-150 form a mandatory field for updates and suggested that FMCSA consider using an “average annual miles per truck” estimate for those motor carriers which FMCSA currently does not have up-to-date VMT information.

FMCSA responded that the use of power units as the sole measure of exposure can potentially create a disadvantage for carriers with larger power units, but can also be a disadvantage to carriers that operate limited mileage due to the nature of their operations.  Consequently, as suggested by ATA, the FMCSA will make the vehicle mileage field of the MCS-150 a mandatory field for updates.  These efforts will make the CSA 2010 more effective and equitable with the national deployment of the Safety Measurement System in November 2010.

Third, ATA’s concern is that the CSA 2010 CSMS uses all recorded moving violations from roadside inspection without considering whether a citation or “ticket” was issued.  The FMCSA characterizes these recorded moving violations from roadside inspections as “warnings.”  ATA believes it is common practice by law enforcement in States that must have probable cause to conduct an inspection to stop a truck for speeding offense and then record a speeding violation with no citation or “ticket” as justification for the inspection.  Additionally, ATA objects to the lack of a “due process” procedure for drivers to challenge warnings for moving violations.

ATA’s solution is removing all moving violations without issued citations or “tickets” from the consideration in the CSA 2010 CSMS.

FMCSA responded that there is a strong relationship between high scores in the Unsafe Driving BASIC, as derived by including all recorded moving violations, and future crashes.  Also in FMCSA’s view, the use of warning as one factor in selection of an intervention does not constitute deprivation of a property interest for which a “due process” procedure is required. However, FMCSA has reviewed the existing inspection data to determine if it is feasible to exclude recorded moving violations from consideration by the CSA 2010 CSMS when a citation is not issued and has determined it is not feasible at this time to exclude those violations.

However, the FMCSA is considering the addition of a simple Yes/No field to the roadside inspection software to indicate whether a citation was issued in conjunction with the recorded speeding violation.  Furthermore, the FMCSA is implementing modification that will require roadside officers to designate the severity of speeding offense recorded on roadside inspections. This addition will allow FMCSA to assign less weight to the less severe speeding violations such as the 1-5 MPH or the 6-10 MPH over the limit.

Thanks to Mr. Osiecki and Ms. Ferro, carriers and drivers have a much better knowledge of what to expect November 2010 when the new regulations take effect.  I expect there to be further negotiations between ATA and FMCSA even after November 2010 to keep making the CSA 2010 fairer and a better tool for trucking.

One thing I do disagree with is the FMCSA assertion that awarding CSMS points for warnings are not worthy of “due process”.  In the United States, Due process applies to all persons and corporations and refers to how and why laws are enforced.  
How is the procedural due process.   Does the law apply fairly to everyone, is it too vague, is it clearly understood, and does it presume innocence?

The why is the substantive due process. Was an unreasonable law passed and signed into law legally?  If so, substantive due process can make it unconstitutional.  In Roe v. Wade a Texas law was declared a violation of due process and determined that in the first trimester it is unreasonable for a State to interfere with a woman’s right to an abortion; during the second trimester, it is reasonable for a State to regulate abortion in the interest of the health of the mother; and in the third trimester, the State has a reasonable interest in protecting the fetus.

My opinion is that the Fourteenth Amendment to the U.S. Constitution does provide “due process” for loss of property.  The Fourteenth Amendment says in part:  
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Additionally, the Fifth Amendment states in part:
… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Therefore, I believe due process will be granted by the courts when either the State, the insurance supplier or the employer punishes or terminates a driver for any warning given without the opportunity to defend their self in a court of law.

Jim C. Klepper is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation’s commercial drivers.  Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Jim is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates.  Jim, a former prosecutor, is also a registered pharmacist, with considerable experience in alcohol and drug related cases.  He is a lawyer that has focused on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking and life over-the-road and has his Commercial Drivers License.  
800-333-DRIVE (3748) or
www.interstatetrucker.com and
www.driverslegalplan.com