Friday, August 1, 2014
Critics of SMS Methodology and its publication for use by "stakeholders" have reason to be concerned about the Agency's recently announced "enhancements." The public, shippers and brokers including plaintiff's bar, with a click of the mouse will be able to see a listing of all carriers with better percentile rankings than their preferred carrier vendor in each of the BASICs. In furthermore of Plaintiff's Bar's argument that the consumer must second guess the Agency's ultimate safety fitness determination, this enhancement will make it all the easier for Plaintiff's Bar to argue that a shipper or broker was negligent in not selecting the safest carrier available based upon the Agency's readily available listing of all competitors by percentile rankings and peer groups.
Last Friday morning, a crowd of several hundred truck drivers gathered behind a straight truck at the Wilmington, Ohio convention center. At 11 a.m. sharp, Anne Ferro delivered her standard informative stump speech on the state of FMCSA regulations to the Expediters' Expo. The Agency wants further study on the hours of service. It supports increasing the liability insurance requirements. It believes all drivers should be compensated for on-duty not driving time.
Congress passed a Bill directing the FMCSA not to proceed with publishing sleep apnea rules which would disqualify drivers. Yet in May, the Agency issued its new certified doctor requirements notwithstanding the woefully inadequate number of doctors which signed up. In publishing guidance to qualified doctors, the Agency recommends that doctors use the so-called STOP-Bang test to determine driver qualifications. STOP-Bang is an acronym for 8 criteria intended to identify drivers with sleep apnea. Fail any three, and a driver can be required to take a $4,000 sleep apnea test.
Thursday, July 3, 2014
ASECTT v. FMCSA – A Win, Lose or Draw?
Henry E. Seaton
On June 17, 2014 The D.C. Court of Appeals issued its decision in ASECTT v. FMCSA. At issue was whether the FMCSA's guidance issued in May of 2012 amounted to a new rule directing shippers and brokers to use SMS methodology in credentialing carriers. Petitioners' arguments were supported by Declarations showing that SMS methodology does not accurately measure carrier safety performance and that the guidance amounted to a new rule requiring shippers and brokers to use SMS methodology to bar from use thousands of carriers which the Agency itself has found are fit to operate on the nation's roadways.