Like Dancing With The Stars, the Agency’s May 16th guidance requires the public to grade on a curve. Regardless of how well contestants perform, the rules of the game are half the contestants must go home because they will be deemed “high safety risks” by plaintiff’s bar in any accident suit.
When the FMCSA becomes a game master rather than a regulator, free enterprise and marketplace competition is the victim. Shippers and brokers, who formerly depended upon the Federal Government to certify carriers as safe for use, must assume radical new duties under unclear state law standards. As consumers of transportation services, they are no longer free to choose from the full range of carriers the Agency is forced to acknowledge under existing law are “safe to operate on the nation’s roadways.”
How did such a radical change in the role of the Federal Government as a regulator of a free and open market happen, you ask? For far too long, the industry unquestionably accepted the false premise that publication of SMS scores was not intended to change the Agency’s safety certification duties. The Agency did not play it straight when they signed a settlement affirming their statutory duty and expressly stating that “Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 CFR Part 385, or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation's roadways.”
On May 16, 2012, without rulemaking or an opportunity for notice and comment, and in the face of open and persistent criticism of SMS methodology it used the internet to radically change the face of trucking. (See the attached article, “A Call for Action to Shipper and Brokers”)
It is for this reason that ASECTT, four trade associations and 12 named plaintiffs filed suit against the Agency in ASECTT et al. v. FMCSA. For information about ASECTT and its efforts to protect safe, efficient and competitive truck transportation please visit www.asectt.blogspot.com.