Friday, August 1, 2014



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.

 With respect to SMS methodology, Ms. Ferro made clear that she was just carrying out an initiative begun by former Administrators over 10 years (Julie Cirillo, Annette Sandberg and John Hill) and that the Agency's most recent announced "enhancement" would allow stakeholders to drill down to up-to-the-minute comparative compliance information in making carrier decisions. Ms. Ferro answered several pre-selected questions and then announced she must leave and left at 11:45 a.m. sharp.  Less than an hour later, the exposition hall was abuzz with early news reports that Anne had resigned her post effective August 31. 

The Agency is losing an effective and tireless advocate. Never overtly strident, she was always willing to press the Agency's "safety first agenda" even when speaking to skeptical stakeholders and hostile carriers.  ASECTT's opposition to Anne's touting of SMS methodology was never personal and we wish her well in her new job.

Presumably, Secretary Fox will appoint an interim Administrator from the ranks of the Agency to secede Anne until a new Administrator can be appointed and confirmed.  Whoever the appointee is, he or she should not expect any honeymoon.  The Agency's agenda is set and Anne's resignation will not result in a needed reevaluation of SMS methodology.

The career bureaucrats, the Volpe Center, and the MCSAC will remain in place and the new interim Administrator may well be more of a zealot and less affable than Anne.  When the proposed safety fitness rulemaking will be released is anybody's guess.  The ATA's General Counsel's Conference was told the rule would be public in the next 2 months and the next week the press reported it would be sometime in early 2015.  The date has been moved four or five times in the past 3 years.

In the meantime, expect increased mischief to result from the announced website enhancements as plaintiff's bar exploits the availability of competitive rankings of carriers, arguing that now the customer can always identify and choose a carrier with better percentile rankings.

With Ms. Ferro's departure, ASECTT's issues with the Agency over SMS methodology and its use will remain.  The Agency and the proponents of SMS methodology have repeatedly turned a blind eye to SMS' systemic flaws.  By touting its fitness for use by "stakeholders" the Agency is abdicating its responsibility for certifying carriers as safe to operate and to use by the shipping public.  Any system which, without due process and audit, grades carriers as damaged goods by labeling them as marginal, deficient, or with golden icons, is inherently unfair and prejudicial.

Hopefully there is a building consensus surrounding the need to preempt use of SMS data under state law in vicarious liability suits and the industry will not be too timid or parochial to vigorously challenge harmful agency policies in the future.

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