FMCSA Head Spurns National Truck Hiring Standard

The head of the Federal Motor Carrier Safety Administration (FMCSA), throwing cold water on any agency support to legislate a national hiring standard for motor carriers, said it is FMCSA's goal to improve its safety scorecard known as "CSA" and let shippers, brokers and third-party logistics providers (3PL) make their own decisions on which truckers they use.

Raymond P. Martinez said that FMCSA, a Department of Transportation sub-agency that regulates truck, bus and freight forwarder safety, will work toward "refining the data" available to truck users under CSA, and then tell stakeholders that "this is what the data says. You make the determination" on selecting the carrier.

Martinez's comments, made on June 26 at the SMC3 annual summer conference in Colorado Springs, Colorado, mean that groups that have long lobbied for uniform standards to guide them in weighing the safety performance of motor carriers before they engage them cannot count on backing from the Trump administration. The Transportation Intermediaries Association (TIA), the nation's leading broker trade group and the most active supporter of national guidelines, is working on having Congressional legislation introduced on a bipartisan basis by the end of July, according to Chris Burroughs, TIA's vice president of government affairs.

Under past legislative language, a motor carrier would be deemed to be safe if it was properly licensed, had adequate insurance, and held a better than "unsatisfactory" rating from FMCSA. Burroughs said the proposal now being crafted will follow the same test, albeit with minor tweaks that he wasn't at liberty to discuss. Attempts to enact a national hiring standard were defeated in 2015 and 2018.

The fight over the issue has been going on for years. Supporters contend that it is the FMCSA's responsibility, as the federal overseer of motor carrier safety, to establish uniform guidelines that the industry can follow without fear of liability in the event of an accident. Shippers and intermediaries should not be left to determine which carriers are safe to use and which are not, they argue.

"No other federal safety agency puts this burden on consumers of the regulated service," TIA said in a statement to FreightWaves June 28.

A federal standard would end the current patchwork of state and local standards that unfairly exposes freight brokers and shippers to potential liability after an accident, supporters said. In recent years, trial lawyers have successfully sued brokers in state court over their roles in selecting carriers involved in accidents while hauling the plaintiffs' freight. The plaintiffs bar has been able to persuade juries that carriers or drivers were either in a broker's employ at the time of an accident or that brokers were negligent in vetting the carrier's safety record. There has been concern voiced by industry groups and defense attorneys that liability could extend to the shipper.

Not surprisingly, trial lawyers oppose any agenda with the national hiring standard. So do safety groups that warn that it absolves the industry of the obligation to properly vet a carrier before tendering its customer's freight. 

For nearly a decade, shippers and brokers have been warring with FMCSA over the criteria used by the agency to gauge the safety of motor carriers. Critics of the controversial initiative, known as "Compliance, Safety and Accountability,' or "CSA," have said the FMCSA uses outdated and unreliable methods and data sets, leaving shippers, brokers and 3PLs exposed to potential liability in the event a carrier they have selected is involved in an accident. According to TIA, FMCSA continues to rely on cumbersome physical audits rather than on data, which leads to 85 percent of the motor carrier population not having a safety rating. Under FMCSA rules, an unrated motor carrier is still considered safe in the eyes of the agency, creating a legal loophole that trial lawyers have been able to exploit, TIA said.

The TIA has recommended that the agency craft a new "Safety Fitness Determination" process, and that it remove CSA data forever from public view so it cannot be manipulated. CSA data is " for internal enforcement prioritization only," and is "not a tool for motor carrier selection," TIA said.

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