The FMCSA's "5-Year Strategic Plan" - New Regulations?

By George Carl Pezold

The FMCSA's "DRAFT -2011-2016 Strategic Plan", released on June 29th, has stirred up reactions and concerns among a number of shipper, carrier and intermediary organizations. The Plan does not contain any specific proposals for new legislation or regulations, but does contain statements as to policies that might lead to laws or regulations that would create legal duties and obligations for the users of for-hire motor carriers.

For example, the Strategic Plan describes the "CMV transportation life cycle":

The CMV transportation life-cycle concept encompasses the whole CMV transportation system, including all the entities that control or influence the operation of CMVs, and focuses on the specific responsibilities that all parties involved in the transport and logistics supply chain have for making improvements in any number of safety factors.

The Strategic Plan states a Goal to "Develop and deliver programs focused on identifying and addressing CMV safety deficiencies and assigning management or operational accountability and responsibility", and proposed this "strategy":

Strategy 1.1. Identify gaps in current legislative and regulatory authorities that prevent FMCSA from reaching certain elements of the CMV transportation life-cycle (e.g., entities touching roadway movement of passengers and freight; shippers, receivers, brokers, freight forwarders) who may have a deleterious effect on safety through their action.

In discussing the establishment of "strong enforcement strategies and sanctions that achieve effective safety-management practices and systems...", the Strategic Plan proposes this "strategy":

Strategy 2.3. Create a comprehensive prioritization system based upon safety and risk analysis to drive FMCSA intervention efforts – a single, unified system based upon algorithms that cover each segment of our regulated industry (e.g., passenger, property, Hazmat, and HHG carriers, as well as, shippers, drivers, cargo tank manufacturers or repair facilities, intermodal equipment providers (IEP), and brokers).

Another Goal is to "Establish new partnerships and enhance collaboration with existing partners as a force-multiplier supporting FMCSA's regulatory compliance focus", with this statement of its "strategy":

Strategy 4.4. Promote increased outreach, public information campaign, targeted education initiatives, and compliance incentives to a broader array of partners (e.g., judicial, shipper, broker, insurance, medical, and education communities) to expand the reach and impact of FMCSA's safety and other messages.

The references throughout the Strategic Plan to "shippers", "receivers", "brokers", "freight forwarders", "customers", "partners" and "stakeholders" are what is causing alarm and fear that the FMCSA will attempt to expand its regulatory control over the users of for-hire motor carrier services.

At this point it is only speculation as to what form of regulation might be imposed on shippers, receivers and intermediaries. Some of the possible areas of intervention that have been suggested are:

• detention charges to deter shipper delays in loading or unloading
• maximum times for loading and unloading of vehicles
• shipper liability for unreasonable delivery demands that induce violations of hours-of-service (HOS) or other safety regulations
• shipper liability for inadequate blocking, bracing and securement of loads, or for overloading

The FMCSA's Strategic Plan comes on the heels of its "CSA 2010" program that was initiated in December 2010. That program established a new "Safety Management System" in which safety-related data in seven categories called "BASICS" were posted on the FMCSA website (see TransDigest No. 161, July 2010).

Shippers and intermediaries were concerned about possible vicarious liability for "negligent hiring" if they were to use the services of a carrier that had a high score in one or more of the "BASICS). Carriers were worried that shippers would avoid using their services if they had any high SMS scores, and that they could be forced out of business based on inaccurate or misleading data.

This issue was partly ameliorated by the publication of a disclaimer on the FMCSA website that clarified the use and intent of the SMS data:

*USE OF SMS DATA/INFORMATION


The data in the Safety Measurement System (SMS) is performance data used by the Agency and Enforcement Community. A    symbol, based on that data, indicates that FMCSA may prioritize a motor carrier for further monitoring.
The symbol is not intended to imply any federal safety rating of the carrier pursuant to 49 USC 31144. Readers should not draw conclusions about a carrier's overall safety condition simply based on the data displayed in this system. Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 CFR Part 385, or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation's roadways.

Notwithstanding this disclaimer, many shippers and intermediaries remain concerned about exposure to vicarious liability if they were to ignore the SMS scores.

The FMCSA's Strategic Plan was announced in the Federal Register on June 29th at 76 Fed.Reg. 38267, and public comments were invited. Some 38 comments were filed by individuals and organizations including the Alliance for Safe, Efficient, Competitive Truck Transportation (ASECTT), the National Shippers Strategic Transportation Council (NASSTRAC) and the Health & Personal Care Logistics Conference (H&PCLC). Copies of the FMCSA Strategic Plan and these comments are available on the Council's website, www.tlcouncil.org. Comments were due by July 29th, but comments received after the comment closing date will be considered and incorporated as appropriate.