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Mar 6, 2011

RULES & REGULATIONS Opinion * USA - CSA — Problem or Solution?

Mount Pleasant,S.C.,USA -Transport Topics, by James Scapellato -Feb. 28, 2011: -- Some trucking industry executives predicted the Federal Motor Carrier Safety Administration’s Compliance, Safety, Accountability program was going to be a “game changer” for the industry. They were right... The U.S. Department of Transportation’s premature public release of questionable CSA/Safety Measurement System data has caused some of America’s most respected and safe carriers irreparable damage to reputation and productivity — with little recourse... Furthermore, an interstate carrier has no real-time means of challenging and overturning alleged compliance review and roadside violations because they are immediately uploaded into FMCSA’s Motor Carrier Management Information System and released to the public under CSA on a monthly basis. As a result, the affected carrier is deemed guilty with neither adequate notice nor due process. That’s not the American way... The industry has waited 15 years for a supporting documents final rule, despite a specific congressional mandate and a writ of mandamus from the U.S. Court of Appeals compelling it to be done... To kick off the discussion/debate, I suggest the following to the DOT:

• Appoint impartial third-party hearing examiners or arbitrators under federal contract to fast-track resolution of CSA/SMS/ intervention challenges within 30 to 45 days from the date of filing. Require examiners/arbitrators to rule in writing as soon as possible but no later than 45 days from receipt of the record.

• Grant examiners/arbitrators the authority to render binding decisions based on the record and evidence submitted by the parties.

• Where appropriate, grant examiners/arbitrators the authority to enjoin the upload and/or continued disclosure of CSA/SMS calculations and conclusions to the public.

• Allow decisions by examiners or arbitrators to be “final agency action,” which entitles either party (government or carrier) to appeal the decision to the appropriate federal court.

• Require as a prerequisite that enforcement officials submit to the carrier all data, calculations, methodology and rationales to justify the upload of alleged violations into CSA/SMS at least 10 days before disclosure.

• Grant carriers the opportunity to exhaust other administrative challenges on issues such as unreasonable administrative searches, discriminatory enforcement treatment, improper safety rating downgrades, compliance review and Notice of Claims alleged violation and penalties, roadside dataQ issues (short for https://dataqs.fmcsa.dot.gov/login.asp, the website where carriers can contest points on their BASICs) and others before upload and disclosure to the public.  (Photo: On to regulations nightmare)

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