DC Velocity - July 2014

120 DC VELOCITY JULY 2014 www.dcvelocity.com THE RULEMAKING FLEW UNDER THE PUBLIC RADAR. YET it could turn out to be the most emblematic of Anne S. Ferro’s nearly five-year run as head of the Federal Motor Carrier Safety Administration (FMCSA).

Effective Feb. 21, FMCSA gave itself the right to suspend or revoke operating authority of truckers that, in the agency’s words, “show egregious disregard for safety compliance,” among other things. Under a two-step framework, FMCSA first gauges if a trucker has failed to comply with agency regulations or has tried to conceal noncompliance. The second step determines if there is a pattern of safety violations. If a trucker meets both thresholds, it could be immediately shut down as an imminent safety hazard.

On April 1, FMCSA tested its power by shuttering DND International, an Illinois-based flatbed carrier involved in a Jan. 27 fatal crash. By mid-month, however, a Department of Transportation (DOT) administrative law judge had reversed the out-of-service order both on procedural grounds and on the merits. Judge Richard Goodwin ruled the agency failed to show DND posed such an imminent danger as to justify its being shut down. Judge Goodwin found no evidence showing DND management was asleep at the safety switch or that drivers were falsifying paperwork in violation of safety statutes. FMCSA has appealed the ruling, saying a dangerous and deliberate pattern of safety concealment exists at DND.

So it goes in the “Reign of Ferro.” As with the rules that have come before it, it’s impossible to question the intent. No one wants a driver on the road or a company in business that deliberately hides safety violations. But it’s the “judge-jury-executioner” approach used by FMCSA that angers folks. And that mindset starts at the top.

Steve Bryan, president of Vigillo, a Portland, Ore.-based consultancy, has carved out a sweet niche helping carriers comply with the CSA 2010 safety fitness initiative, another well-intentioned FMCSA conundrum. Yet Bryan has no problem lambasting the FMCSA’s tactics, saying they are heavy-handed, short-circuit due process, don’t advance the cause of safety, and in some cases, threaten to retard it.

Some have had enough. The Owner-Operator Independent Drivers Association (OOIDA), which represents about 135,000

owner-operators who are the backbone of the country’s truck fleet, sent a letter to DOT Secretary Anthony Foxx asking him to request Ferro’s resignation. OOIDA said the rules promulgated on her watch threaten the livelihoods of its members and she has failed to be impartial in her dealings with the people she regulates.

DOT told us the OOIDA request doesn’t deserve a comment, an odd reaction given that the letter was hardly a rant. It noted the group and FMCSA It’s not getting friendlier on Capitol Hill, either. The Democrat-controlled Senate Appropriations Committee passed a fiscal 2015 DOT funding bill that includes an amendment suspending for one year the FMCSA’s controversial “restart”

language embedded in its driver hours-of-service rule. It appears Congress is puzzled as to why drivers are ordered to rest during pre-dawn hours when roads aren’t congested and instead are forced to drive during rush hours, when highways are clogged with stressed-out motorists. The language directs FMCSA to use the year to study the logic of the issue.

For those keeping calendar score, July 1 marked the first anniversary of hours of service enforcement. Another well-intentioned concept that has sown angst and confusion, and placed another boulder on an already-overburdened industry? Just par for the course in the “Reign of Ferro.”