In the last installment of PARCEL Counsel, we discussed the dilemma for shippers created by the FMCSA’s policy to publish a motor carrier’s Safety Measurement System (SMS) data and carrier rankings called BASICs (Behavior Analysis and Safety Improvement Categories scores) on the FMCSA website. Even for shippers who are very familiar with the CSA system and at least some of what has been written about it, they are left in limbo as to what to do with the information published on the FMCSA’s website.
If a carrier has one yellow triangle, should it be used? What about a carrier with two, three, or even four yellow triangles who nevertheless has a “satisfactory” safety fitness rating?
And what about the occasional shipper who ships a trailer load or two a month, does not read PARCEL, and who has never even heard of the FMCSA, let alone SMS and BASIC scores? Is it fair to impose upon them the responsibility to screen unsafe carriers from operating on the national’s highways?
There has been much discussion about this situation in recent months amongst people involved in transportation. Some are advocating that the best way to resolve the current situation would be for the FMCSA to restrict access to the SMS data to persons such as the motor carriers themselves, law enforcement, motor carrier insurers, and others with a similar interest… but not the general public. While this would indeed solve the problem, I believe that the FMCSA would strenuously resist such a proposal and any legislation that might be introduced to accomplish it.
The Transportation Intermediaries Association (TIA) has taken a different approach. At its recent Annual Convention, held this past April, it released a 16 page “white paper” entitled “TIA Strategy to Reduce 3PL Liability.” One of the tenets of the TIA’s strategy is that “TIA will work with FMCSA to create a rating system through which ALL carriers are rated either SAFE TO USE (green light) or UNSAFE TO USE (red light), thereby eliminating the traps that exist in the four part rating system: satisfactory, unsatisfactory, conditional, and unrated.”
Implicit in this is that the SMS data would only be relevant to the CSA’s determination of a carrier’s rating. Once established, a person hiring a carrier, whether they are a broker or a shipper or anyone else, would no longer be in the position that they currently are now…forced to determine whether to use a motor carrier with no criteria upon which to base such a decision. The “green light, red light” approach of the TIA is certainly a sound one. Unfortunately, even if the FMCSA were to agree to such an approach, it would take years of hearings and rule making procedures before it would be finally adopted.
I would also like to propose another solution that I believe would be a very effective way to solve this problem — the enactment of a law that says: “No part of the FMCSA’s Safety Measurement System data may be admitted into evidence or used in a civil action for damages relating to a highway accident.”
Such legislation is not as extreme as it may first appear. It is based upon a current statute with regard to the National Transportation Safety Board (NTSB) --- 49 USC 1154(b).
This statute recognizes that the purpose of a NTSB investigation is to further safety and, in particular, to avoid a similar accident in the future — not to provide ammunition for a lawsuit. Similarly, the stated purpose of CSA is to be a means by which the FMCSA can prioritize its inspections — not a way to announce to the public that a carrier should or should not be used.
To conclude, while I refer to these solutions as being simple, they are simple only in the sense that that are easy to state. To have a law passed by Congress or a regulation implemented by the FMCSA is not a simple proposition at all. While parcel shippers and the carriers they use will always have differences of opinion regarding rates and charges or the handling of claims for loss and damage, this is one issue where their interests are the same. Only by joining forces will they be able to get Congress and the FMCSA to act.
All for now!
Brent Wm. Primus, J.D., is the CEO of Primus Law Office, P.A. and the Senior Editor of transportlawtexts, inc. Previous columns, including those of William J. Augello, may be found in the “Content Library” on the PARCEL website (www.PARCELindustry.com). Your questions are welcome at brent@primuslawoffice.com.
If a carrier has one yellow triangle, should it be used? What about a carrier with two, three, or even four yellow triangles who nevertheless has a “satisfactory” safety fitness rating?
And what about the occasional shipper who ships a trailer load or two a month, does not read PARCEL, and who has never even heard of the FMCSA, let alone SMS and BASIC scores? Is it fair to impose upon them the responsibility to screen unsafe carriers from operating on the national’s highways?
There has been much discussion about this situation in recent months amongst people involved in transportation. Some are advocating that the best way to resolve the current situation would be for the FMCSA to restrict access to the SMS data to persons such as the motor carriers themselves, law enforcement, motor carrier insurers, and others with a similar interest… but not the general public. While this would indeed solve the problem, I believe that the FMCSA would strenuously resist such a proposal and any legislation that might be introduced to accomplish it.
The Transportation Intermediaries Association (TIA) has taken a different approach. At its recent Annual Convention, held this past April, it released a 16 page “white paper” entitled “TIA Strategy to Reduce 3PL Liability.” One of the tenets of the TIA’s strategy is that “TIA will work with FMCSA to create a rating system through which ALL carriers are rated either SAFE TO USE (green light) or UNSAFE TO USE (red light), thereby eliminating the traps that exist in the four part rating system: satisfactory, unsatisfactory, conditional, and unrated.”
Implicit in this is that the SMS data would only be relevant to the CSA’s determination of a carrier’s rating. Once established, a person hiring a carrier, whether they are a broker or a shipper or anyone else, would no longer be in the position that they currently are now…forced to determine whether to use a motor carrier with no criteria upon which to base such a decision. The “green light, red light” approach of the TIA is certainly a sound one. Unfortunately, even if the FMCSA were to agree to such an approach, it would take years of hearings and rule making procedures before it would be finally adopted.
I would also like to propose another solution that I believe would be a very effective way to solve this problem — the enactment of a law that says: “No part of the FMCSA’s Safety Measurement System data may be admitted into evidence or used in a civil action for damages relating to a highway accident.”
Such legislation is not as extreme as it may first appear. It is based upon a current statute with regard to the National Transportation Safety Board (NTSB) --- 49 USC 1154(b).
This statute recognizes that the purpose of a NTSB investigation is to further safety and, in particular, to avoid a similar accident in the future — not to provide ammunition for a lawsuit. Similarly, the stated purpose of CSA is to be a means by which the FMCSA can prioritize its inspections — not a way to announce to the public that a carrier should or should not be used.
To conclude, while I refer to these solutions as being simple, they are simple only in the sense that that are easy to state. To have a law passed by Congress or a regulation implemented by the FMCSA is not a simple proposition at all. While parcel shippers and the carriers they use will always have differences of opinion regarding rates and charges or the handling of claims for loss and damage, this is one issue where their interests are the same. Only by joining forces will they be able to get Congress and the FMCSA to act.
All for now!
Brent Wm. Primus, J.D., is the CEO of Primus Law Office, P.A. and the Senior Editor of transportlawtexts, inc. Previous columns, including those of William J. Augello, may be found in the “Content Library” on the PARCEL website (www.PARCELindustry.com). Your questions are welcome at brent@primuslawoffice.com.
