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CSA Whats Law Got to Do WithIt?

Prepared by MARK J. ANDREWS

(mark.andrews@strasburger.com)

For: LOGISTICS MANAGEMENT SERIESJuly 11, 2013

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CSA and SMS in the Courts

SMS = Safety Measurement System

CSA = Compliance, Safety, Accountability

SMS is the centerpiece of CSA WHICH ISWHAT??

Thats the question inASECTT v. Federal MotorCarrier Safety Administration (No. 12-1305)

Will be argued on September 10, 2013 before afederal appeals court in Washington, DC

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CSA and SMS in the Courts

FMCSAs dueling positions on CSA/SMS:

Sometimes calls it only a tool for targetingenforcement efforts

But also tells shippers and brokers that SMS scoresare a better tool than official safety ratings forselecting carriers

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CSA and SMS in the Courts

ASECTTs position is that FMCSA, by publicizing

and promoting SMS scores:

Treats them as much more than enforcement tools

Pressures shippers to use them as de facto safety

ratings for fear of negligent selection lawsuits(where the plaintiffs bar is already trying to use SMS)

Unfairly stigmatizes safe carriers due to SMSstatistical flaws described by other panelists

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CSA and SMS in the Courts

So why should this interest the appeals court?

ASECTT says CSA/SMS should have been consideredin a formal rulemaking process because of its legalconsequences and national scope

A rulemaking under the Administrative Procedure Actwould have required:

advance notice to the general public,

opportunity for general public comment, an agency decision addressing major comments,

and then adoption of a final rule

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CSA and SMS in the Courts

FMCSAs procedure here was very different:

SMS methodology developed behind closed doors

Methodology and carrier scores announced as an

accomplished fact Methodology has been constantly altered since its

announcement in April 2010

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CSA and SMS in the Courts

Relief sought from the appeals court:

Order FMCSA to stop publicizing and promotingmarketplace use of SMS scores for individual carriers

Require FMCSA to go through a full formalrulemaking before using SMS scores in safety fitnessdeterminations.

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