Industry groups challenge FMCSA statement on SMS

Updated Jul 31, 2012

The Alliance for Safe, Efficient and Competitive Truck Transportation, along with four trade associations and 12 other named plaintiffs, filed suit earlier this week in the U.S. Court of Appeals for the District of Columbia Circuit against the Federal Motor Carrier Safety Administration to seek judicial review of an agency publication.

Petitioners allege FMCSA’s “New Resources Available for Shippers, Brokers, and Insurers,” publication issued May 16 is a bureaucratic overreach without process.

“ASECTT members believe SMS methodology is a work in progress, unapproved for the agency’s own use in making safety fitness determinations,” said Tom Sanderson, president of ASECTT and chief executive of third-party logistics provider Transplace.

“With no concern for the effect of its publication on shippers and brokers or the false branding of carriers and resulting economic consequences on small businesses, the agency has in effect told the shipping community it cannot rely upon the agency to do its statutory job to certify carriers as safe for use and must make an independent safety evaluation of all carriers before use. This amounts to a new rule with significant economic consequences, which must be timely challenged.”

David Owen, president of the National Association of Small Trucking Companies, a lead plaintiff in a former suit against the agency over publication of SMS data, said small carriers are faced with loss of business as a result of the agency’s action.

“We thought in the settlement of NASTC et al. v. FMCSA that the agency recognized and affirmed its statutory duty to make a safety fitness determination upon which shippers and brokers could rely,” Owen said. “The agency’s May 16th publication makes clear that it seeks to abdicate its ultimate safety fitness obligations to the shipper and broker community with no concern for the resulting prejudicial effect on safe carriers arbitrarily branded under SMS methodology.”

Joining in the lawsuit are four other trade organizations, five brokers and seven named carriers. “Over the past 18 months, we have tried repeatedly to explain to the agency that SMS methodology brands perfectly safe carriers as somehow unfit for use,” said Jimmy DeMatteis of Des Moines Truck Brokers. “That premature publication of percentile rankings will create chaos in the marketplace and restricting competition, as the methodology is used as a tool by plaintiff’s bar to increase the shipping public’s liability for truck accidents under state law. The publication on May 16th made it very clear that the agency has not heard industry’s concern and intends to deputize the shipping community to enforce the agency’s statutory responsibilities.”