Ken Siegel, an attorney representing the carriers, said he expects to see a ruling by the end of the week. If the carriers get their way, the court will temporarily enjoin FMCSA from opening the CSA 2010 data to the public.
Siegel, of the Washington, D.C., law firm Strasburger & Price, represents the National Association of Small Trucking Companies, the Expedite Alliance of North America and the Air & Expedited Motor Carriers Association. These groups, which say they have about 2,750 small carriers as members, filed their suit against the agency last week with the U.S. Court of Appeals for the District of Columbia Circuit.
The carriers say that the agency has not followed proper procedures in its plan to publish carriers' scores in CSA 2010's seven Behavior Analysis and Safety Improvement Categories, or BASICs. A change of that magnitude requires a rulemaking procedure that allows public comment, they say.
In its response, filed Monday, the agency said that at this stage of the CSA 2010 process it is not changing any safety rules and therefore does not need to go through a rulemaking. The work it has done so far is procedural, the agency said; it establishes how the agency will concentrate its enforcement resources.
Also, the agency said, the carriers' argument that they will be irreparably harmed by disclosure of their safety data has no merit. "Similar data has been publicly available for more than a decade without producing the ruinous consequences forecast by petitioners, and petitioners' various contentions that the new data is misleading and inaccurate do not withstand scrutiny," the agency says in its brief.
And, the agency concluded, a stay would deprive the industry of better information on safety performance.
In a response filed Tuesday, the carriers argue that CSA 2010 does require a rulemaking because its standards are intended to become the basis of a new safety rating scheme once the agency completes its pending safety fitness rulemaking.
They also say that the "alert" labels that the system will place on carriers that do not meet safety performance thresholds will function as safety ratings and will harm the carriers that get them.
Siegel said the carriers only want to stop the release of the BASICs data to the public, not the CSA 2010 program. The agency can use the BASICs data but should not make it public until it has completed a formal rulemaking, he said.