ASECTT and Trade Associations File Lawsuit Against FMCSA

Lawsuit seeks judicial review of FMCSA’s “New Resources Available for Shippers, Brokers and Insurers” publication

July 17, 2012—The Alliance for Safe, Efficient and Competitive Truck Transportation (ASECTT) together with four trade associations and twelve other named plaintiffs filed suit, Case No. 12-1305, in the U.S. Court of Appeals for the District of Columbia Circuit against the Federal Motor Carrier Safety Administration (FMCSA) seeking judicial review of the agency’s “New Resources Available for Shippers, Brokers and Insurers,” publication, issued on May 16, 2012.

Petitioners allege the Agency’s publication 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. “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 (NASTC) is a lead plaintiff in the former suit against the Agency over the issue of publication of SMS data.

“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 explained. “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. Over 1,000 of our small carrier members which the Agency certifies as safe to operate on the nation’s roadways are faced with loss of business as a result of the Agency’s action.”

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, 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. In this context, the May 16th publication 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.”