The Non-Rated Problem: Small Carriers, CSA, and the Supreme Court

Dear Member,

In the recent U.S. Supreme Court Decision Montgomery V-Caribe Transport II, LLC, the Court ruled unanimously that negligent-hiring claims against freight brokers are no longer automatically blocked by federal pre-emption under The Federal Aviation Administration Authorization Act, better known as the FAAAA. This Act generally pre-empts state rules related to broker prices, routes, or services but it does not wipe out state authority over motor vehicle safety. It does not imply automatic liability when an accident occurs, but it does mean that a very uncomfortable question can be posed: did the broker use reasonable care when choosing the carrier? Going forward this ruling states, when you pick a carrier to load, you now must be prepared to explain how and why you picked them. The ruling doesn’t imply a new responsibility, but it clarifies that brokers can be held accountable. And, that the absence of a thorough in place carrier vetting process could result in either a vicarious liability or negligent hiring lawsuit against the broker or shipper in question.

The good news is that safe, properly insured, well-run carriers should benefit and carriers with questionable safety, questionable authority, sketchy insurance, fraud or compliance gaps, will be passed over by reputable brokers.

All of the above brings to the surface a problem that’s plagued the FMCSA and our NASTC member-companies for decades – the abject failure of CSA and SMS to accurately rate the safety performances of small or new carriers or owner-operators who obtain authority to run a one-truck, one-driver company. Besides that, the agency has proven it cannot audit and/or rate carriers as charged by Congress to do so. Close to 50% of NASTC members regardless of safety have never been rated and are not in the CSA database because of lack of data. In other words, they are not rated or scored because they are too SAFE or too NEW or too SMALL to qualify for scrutiny.The below letter is being sent to ranking members of The Transportation Committees in the House and the Senate and to the Secretary of Transportation, Sean Duffy, on your behalf.

May 11, 2026

Sen. Ted Cruz                                                             Sen. Maria Cantwell

Chairman                                                                    Ranking Member

Commerce, Science and Transportation Committee        Commerce, Science and Transportation Cmte.

U.S. Senate                                                                U.S. Senate

554 Dirksen Senate Office Building                           554 Dirksen Senate Office Building

Washington, D.C. 20510                                            Washington, D.C. 20510

Rep. Sam Graves                                                       Rep. Rick Larsen

Chairman                                                                    Ranking Member

Transportation and Infrastructure Committee                   Transportation and Infrastructure Committee

U.S. House of Representatives                                  U.S. House of Representatives

2165 Rayburn House Office Building                         2165 Rayburn House Office Building

Washington, D.C. 20515                                            Washington, D.C. 20515

Dear Chairmen Cruz and Graves, Ranking Members Cantwell and Larsen:

The National Association of Small Trucking Companies (NASTC) writes to direct the Senate and House transportation committees’ attention to a matter that has remained unmitigated by the Federal Motor Carrier Safety Administration (FMCSA) for more than a decade and a half. The situation regarding the Compliance Safety Accountability (CSA) system has resulted in a variety of adverse consequences for commercial motor carriers and thus those they serve.

NASTC is a member-based organization whose members range from the single power unit owner-operator to small motor carriers with more than 100 power units, averaging 12 power units. These carriers largely operate in the long-haul, over-the-road, full-truckload, for-hire sector of interstate trucking.

On March 9, 2011, over fifteen years ago, NASTC and two other associations, The Expedite Alliance of North America (TEANA) and the Air & Expedited Motor Carriers Association (AEMCA), were awarded an arbitration settlement of their lawsuit, NASTC v. FMCSA.

In part, the arbitration court ordered FMCSA to revise the disclaimer language on the Safety Measurement System website to read:

“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.” (emphasis added)

On December 13, 2010, FMCSA launched its CSA enforcement program. The above action came in response to the “Scarlet Letter” CSA and its badly flawed, underlying SMS have imposed on perfectly safe small carriers who, to quote one author of CSA, “just aren’t having enough accidents for us to effectively measure.”

The above ruling indicated to us that brokers and shippers may not use CSA data to refuse freight to unrated carriers or carriers that were rated “satisfactory” but had not had the four “events” in thirty months required to satisfy the SMS protocol. Further, the legal settlement’s amended disclaimer reiterated that it was FMCSA and FMCSA alone that has the right to determine whether a carrier is fit to haul freight in the USA.

Over the last fifteen-plus years FMCSA has tweaked CSA over 1,000 times, changed its name, and totally ignored the proven facts NASTC and others have provided, showing that SMS is defective, is especially unfair to small, perfectly safe carriers and, as such, has in effect put many safe small carriers out of business.¹

Despite the court’s ruling and despite our substantial recommendations and comments urging the agency to carry out its mandate of providing new entrant safety audits and rating all carriers, the agency only inspects annually about 5% of carriers. FMCSA continues to use CSA and SMS to discriminate unfairly against all small carriers, labeling the 95% who are among our safest carriers as bad actors, based on the absence of data. As a result, the over-the-road misbehaviors of the 5% who have gamed the rating system and gamed the mandated use of ELDs have irreparably damaged our industry’s ability to move freight legally and safely.

NASTC has commented on this numerous times over the past fifteen years, with little response. We have urged the agency to admit that CSA is hopelessly broken. We have urged the agency to refute the driver shortage myth and to acknowledge and address driver turnover as the number one safety issue. We have offered hundreds of pages and comments oftentimes offering suggested remedies. And yet, out of our more than 10,000 member companies, I dare say at least 40% have never been rated. Therefore, many in the broker and shipper communities use SMS data inappropriately and conclude that these carriers are not qualified to haul their freight safely.

At the Mid-America Truck Show, the new administrator commented that FMCSA is a very small agency –- it only employees 1,000 people. What, pray tell, are they all doing? Not rating motor carriers at any appreciable level pursuant to 49 CFR Part 385.

____________________________

¹ NASTC and others provided FMCSA and Congress empirical studies by Wells Fargo, “CSA: Another Look With Similar Conclusions” (July 2012); Inam Iyoob, “BASIC Scores are Not Valid Predictors of Crash Frequency”; and James Gimpel, “Statistical Issues in the Safety Measurement and Inspection of Motor Carriers.” The House Small Business Committee held an oversight hearing on the CSA program on July 11, 2012; the House Transportation and Infrastructure Committee held an oversight hearing on CSA on September 28, 2012. The Government Accountability Office and the DOT Inspector General also investigated CSA and FMCSA’s misuse of faulty data rating carriers on a relative, rather than an absolute scale, finding adverse treatment of small and safe carriers.  In 2015, Congress in the FAST Act directed FMCSA to remove its CSA scores from public view and ordered that SMS undergo a 22-month study and corrective action plan. The attempt to improve CSA and SMS eventually fell apart.