December 13, 2010 2:15 AM, EST

Court Has Yet to Make a Ruling On Publishing of CSA Scores

Dec. 13 update: A federal appeals court has denied the groups’ request to delay CSA implementation. Also, carriers’ CSA scores are now publicly available via FMCSA.

By Rip Watson, Senior Reporter

This story appears in the Dec. 13 print edition of Transport Topics.

The status of the Federal Motor Carrier Safety Administration’s plan to release carrier safety information through the Compliance Safety and Accountability program remained uncertain at press time because an appeals court had not ruled on a motion to halt the move.

The U.S. Court of Appeals for the District of Columbia Circuit has been evaluating the case brought by the National Association of Small Trucking Companies and two other groups since Nov. 29. The information could be issued as early as Dec. 12.

The Expedite Alliance of North America and the Air and Expedited Motor Carriers Association were the other groups.

FMCSA urged the court not to block its plan to give shippers access to data for any fleet calculated under the CSA system of BASICs, or Behavior Analysis Safety Improvement Categories.

The agency’s BASICs provide more safety performance detail than FMCSA’s current SafeStat system. The assessments include driver fitness, unsafe driving, fatigue and maintenance and give the user a tool to rank each fleet’s relative safety.

The groups claim that releasing the information violated the Administrative Procedures Act that mandates a formal rulemaking process and public-comment period to assess the program.

In its court filing, FMCSA challenged the groups’ assertion that a formal rulemaking process was required, arguing that the BASICs scores through CSA “does not establish or amend any law, standard or rule.”

“The revised system will merely guide the Secretary [of Transportation]’s allocation of the agency’s limited enforcement resources” and “guide the agency’s enforcement discretion,” FMCSA stated.

The agency also argued that the SafeStat carrier evaluation system CSA is designed to replace has been in operation “without ruinous consequences” for a decade.

“The CSA standards here are intended to do much more than target motor carriers” for investigation or enforcement, the plaintiffs responded.

The groups argued that brokers and shippers would not use fleets with poor BASICs scores because of potential accident liability, a move that effectively takes over enforcement responsibility from FMCSA.

“By releasing the BASICs data to the public and urging shippers and brokers to consider such data in making marketplace decisions, the agency here ensures that CSA will have a substantial impact on motor carriers,” the plaintiffs argued.

The groups did not ask that CSA be halted. Instead, their motion for a stay sought to keep the scores private except for motor carriers, which have been able to see their own performance since August.

FMCSA used 1984 and 1987 Appeals Court decisions to back its case that its action did not require a rulemaking procedure at this time.

The plaintiffs cited a 1980 case, arguing that other court rulings limited the agency’s ability to disseminate carrier safety information that represents “a substantive value judgment or puts a stamp of approval or disapproval on a given type of behavior.”

The agency has said that it will do a formal rulemaking next year to assess the effect of changing its three carrier safety performance classifications.

Under SafeStat, the classifications are “satisfactory,” “conditionally satisfactory” and “unfit.” FMCSA has said possible new designations would be “continue to operate,” “marginal” and “unfit.”