Friday, September 19, 2014
Tuesday, September 9, 2014
Fall 2014 Safety Update
1. Safety Fitness Determination. The FMCSA has scheduled for release in the next several months its safety fitness determination rulemaking. Release of this water shed rulemaking has been delayed numerous times over the past 4 years and release cannot be predicted. The Agency has said that the ultimate safety fitness determination will be based upon objective criteria, not the grade on the curve SMS percentile basis. Yet, to the extent the safety fitness determination is based upon flawed SMS data and ratings are assigned without due process or audit, the systemic flaws (inadequate data, inaccurate data, enforcement anomalies, the law of large numbers, etc.) will remain. The industry must be prepared to analyze and comment on any new rule, particularly if carriers are branded as "marginal" without due process and the negligent selection threat is not addressed.
FMCSA AND “DUE PROCESS”
The Fourteenth Amendment to the United States Constitution guarantees that no persons property shall be taken without due process of law. 5 U.S.C. §702 et seq (The Administrative Procedures Act) states that: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”