Tuesday, September 9, 2014

Fall 2014 Safety Update

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.

            2.         ASECTT v. FMCSA.  The D.C. Court of Appeals issued its decision on June 17, 2014.  While finding that the Agency's "Guidance" to shippers, brokers and carriers was not a rule without process, the Court based its findings on the Agency's representation that the guidance was not intended to alter existing law.  The attached article makes the case that the suit served its intended purpose in restraining the Agency's efforts to tout SMS methodology as fit for use in light of NASTC et al. v. FMCSA.  See Win, Lose or Draw.

            3.         New Website Provisions.  On August 4, 2014, the Agency implemented its expanded website publication of SMS methodology, including ready access to all carriers in each peer group.  For an analysis, see SMS Website Enhancements.

            4.         Imminent Hazard and Out of Service Orders.  The FMCSA is increasingly using its "Imminent Hazard" authority to shut down carriers on short notice with ill-defined carrier recourse and short time limits for administrative or judicial appeal for a short topical commentary see FMCSA and "Due Process".

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