On December 4, 2015 President Obama signed into law the latest highway bill, Fixing America's Surface Transportation Act, or FAST Act. Later that same day, the U.S. Department of Transportation's FMCSA released the following statement:
"As of December 4, 2015, pursuant to the FAST Act of 2015, much of the information previously available on the FMCSA website related to property carriers' compliance and safety performance will no longer be displayed publicly."
What has changed?
The CSA Safety Measurement System (SMS) uses carrier performance data collected from roadside inspections and crash investigations to score carriers in various categories, known as BASICs. The FAST Act removes the percentile rankings in the seven BASICs from public view. It does not, however, prohibit the agency from displaying inspection and violation data, as well as certain data related to the percentile rankings. But for the time being, "no information will be available for property carriers while appropriate changes are made" to the website and the QCMobile app.
This was considered a blow to the CSA's SMS, but to trucking groups it came as a relief. While proponents think the CSA scores offer reliable crash-preventing information, the trucking industry argued that CSA data paints an inaccurate picture of carrier safety records. What's more, a Government Accountability Office (GAO) report had criticized its methodology.
The FAST Act requires the FMCSA and the GAO to identify the program's faults and then develop and implement a plan to fix them. Until that time, the scores will remain out of public view.
What is the impact?
While trucking groups were lobbying for the changes to the program, the removal of CSA scores from public view opens a whole new can of worms.
Private access to the percentile rankings is still available for motor carriers and law enforcement. Will this facilitate the continued use of the scores as due diligence by shippers, brokers and insurance companies? These entities had already habitually relied on the scores as a condition of doing business with a carrier. So can the genie be put back in the bottle, or will we continue the status quo?
Unfortunately there are not a lot of solid answers to most of the questions being asked. Will the CSA scores be phased out entirely over time? If not, will they still be used as a factor for distributing freight or determining who will be eligible to haul freight for insurance purposes? What's more, simply having the scores out of public view does not relieve certain legal issues such as vicarious liability and negligent agency. In these cases, perhaps the focus will now be on whether or not a party had the ability to know the carrier's safety record.
Many shippers and brokers are already making clear that they are going to require carriers to provide their CSA scores on a regular basis, perhaps annually or biannually, with agreement that they be notified within a specific time period (e.g., 30 days) whenever a category goes on alert. Carriers are likely to continue to provide their scores proactively in order to show that they are not on alert in any categories, and could continue to use good scores as selling tool.
Insurance carriers may require CSA scores as part of their quoting and renewal process, just as they use financials.