Friday, May 27, 2011

The Role of Government - Impact on Capacity

May 11, 2011 Transplace
VIDEO: The Role of Government - Impact on Capacity

Wednesday, May 25, 2011

Authority to operate is what matters

Authority to operate is what matters
Settlement confirms that FMCSA – not its data – decides
By Henry E. Seaton
May 1, 2011
Reprinted from: www.ccjdigital.com / etrucker.com

Q: I have read the press release concerning alerts in the Safety Measurement System database, and I have been in conversations concerning whether satisfactory safety ratings should trump all other information, including both the Behavior Analysis and Safety Improvement Categories or the former Safety Evaluation Areas. Is there any stale date on satisfactory safety ratings? Would a satisfactory safety rating from 10 to 20 years ago still be evidence that the Federal Motor Carrier Safety Administration considers the trucker safe and fit? As we all know, truckers change employees often, and different managers look at safety either as important or not.

A: Safety ratings do not become stale. Plaintiff’s bar, in an effort to chase after deep pockets, has recognized a satisfactory rating as a bar to suing shippers but has pursued shippers using unrated carriers. In this context, one of the important things accomplished by the recent settlement with FMCSA over public release of SMS rankings and alerts was confirmation that the agency certifies carriers as safe to operate and that only carriers deemed unsatisfactory or placed out of service are not fit to operate on the nation’s roadways.

The reason the suit was brought was to disabuse shippers and brokers of the fear that the Compliance Safety Accountability (CSA) program data was intended for their use in credentialing carriers or somehow was required to escape possible vicarious liability. The case law that so troubles shippers and brokers was in some cases the result of the spurious argument that an unrated carrier was in some sense not fully licensed to operate. As a result of this misconception, many shippers and brokers thought that carriers with a satisfactory rating were in some sense approved, while unrated carriers are not. Nothing could be further from the truth.

In fact, under the current statutes in effect and cited in the agency’s settlement (49 C.F.R. 385), carriers without a safety rating have the equivalent of a satisfactory rating because under any of the agency’s monitoring or scheduling tools, they are within compliance and have not been selected for an audit. Thus, correctly seen, the issue is not whether satisfactory safety ratings should trump all other information, whether BASICs or SEAs.

What the settlement accomplished was to determine that BASICs or SEAs do not establish some standard for shipper or broker use that should trump the agency’s ultimate safety rating. An important key is the fact that the settlement confirms that an unrated carrier – like a carrier with a satisfactory safety rating, issued 20 years ago or just last month – is authorized for use.

In the settlement, FMCSA confirmed that under existing law, the agency determines who is authorized to conduct operations over the nation’s highways. As a major broker, you are charged by regulations with using authorized motor carriers – nothing more, nothing less. (49 C.F.R. 371)

My traditional advice to broker clients has been to hold out to arrange for transportation using carriers who are licensed, authorized and insured and which enjoy a safety rating of satisfactory or equivalent issued by FMCSA. That remains the federal standard. The settlement in NASTC et al. v. FMCSA makes clear that publication of SMS methodology, which has not even been approved for the agency’s own use, has not changed the law or required brokers to require contractually or hold out to provide a different carrier credentialing standard.

Finally, in an important and thorough 35-page document entitled “Carrier Selection Framework,” the Transportation Intermediaries Association released its recommendations for carrier selection on April 8. Therein, it refers to the negotiated disclaimer language and recommends best practices, which includes reliance upon the agency’s ultimate determination under Section 385, eschewing any use of SMS methodology. Taken together, the disclaimer and the TIA’s selection document should end the misconception decisively that CSA/SMS methodology is intended as fit for use in the carrier selection process by shippers and brokers.


Article printed from Commercial Carrier Journal: http://www.ccjdigital.com

info@transportationlaw.net

Friday, May 6, 2011

FMCSA Safety Checklist

Agency advises bus riders to check bus companies’ safety “every trip every time.”



7801 FMC Safety Checklist-05.03.11

Monday, May 2, 2011

FMCSA News Summary 1346

1. TruckingInfo.com; Wednesday, April 20, 2011
HEADLINE: Former FMCSA Chief Speaks out on HOS, EOBRs

2. National Public Radio – Morning Edition; Wednesday, April 20, 2011
HEADLINE: Indie Truckers: Keep Big Brother Out Of My Cab

Photo Captions: Trucker Terry Button is opposed to onboard trucker monitors that would be able to detect when his truck is in motion. "I can't think of anything good that would come from this. If I could, I would tell you honestly, and I can't," he says. Paper log books, like this one used by trucker Terry Button, can be purchased at truck stops for as little as $1.49. Electronic monitors can cost more than $1,500.

3. TruckingInfo.com; Tuesday, April 19, 2011
HEADLINE: NPTC Supports Mandatory EOBR Rule

5. The Trucker; Monday, April 18, 2011
OPINION HEADLINE: DeFazio bill looking into costly detention time: It’s about time


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1. TruckingInfo.com; Wednesday, April 20, 2011
HEADLINE: Former FMCSA Chief Speaks out on HOS, EOBRs
Byline: Deborah Lockridge, Editor in Chief

Former Federal Motor Carrier Safety Administrator John Hill believes it's going to take Congressional action to put an end to the never-ending cycle of hours of service litigation and rewrites.

"Frankly, folks, the hours of service rule is something that is going to be litigated for a long time," said Hill, speaking to the National Private Truck Council Tuesday.

Hill is now consulting with trucking companies as principle of The Hill Group. He was involved in the hours of service saga during the mid-2000s rewrites. Under his watch, he said, the agency could not justify the 10-hour driving time and changes to the 34-hour restart under the cost vs. benefits analysis required by law to be done by the White House Office of Management and Budget for major regulations.

"During my tenure I made several trips over to the White House to talk about hours of service rules because of the significant impact it would have on the economy," Hill said. "So there was tremendous concern about the implications of this rule, even in the midst of a vibrant economy."

So how is the FMCSA justifying the cost vs. benefits today? In January 2009, Hill explained, the value of a human life at the DOT changed from $3 million to $6 million. By doubling that value, the DOT was able to make the cost vs. benefits numbers work.

"If you go through this proposed rule, you will see a lot of the benefits that accrue to this rule are through driver health related issues," Hill said. "And I think there are some driver health issues in that rule. But I will tell you when I was at the agency, there was very little data correlating the cost to those driver health benefits. I'm sure there have been some improvements in terms of quantifying that data, but still, it's very scarce. So if the agency moves ahead with the hours of service rule and people bring suit against it, you can be sure they're going to go after the cost-benefit part of it."

Hill said it's going to take Congressional action to stop the cycle.

His experience with the agency has led Hill to the belief that it's the political powers that be who are pushing the buttons, not the regulatory appointees.

"I can assure you that [current FMCSA administrator] Anne Ferro is getting marching orders," Hill said. "Let me remind you she had been confirmed only one day, when the very next day, the DOT secretary announced an agreement with Public Citizen on a moratorium for the lawsuit and a rewrite of the hours of service rule. She had no input in that. I am sure it is difficult for her to work through this issue because there are people at the White House that are very sympathetic to labor."

"I do not think there will be a resolution to the hours of service rule until the politicians get involved and do something by statute," Hill predicted. "I know right now our representatives and senators are preoccupied with financial decisions and it's going to be difficult for them to even address the highway bill, but I believe it's going to be essential for people in Congress to issue some sort of moratorium."

Hill believes if Congress issued some sort of stay on changing the hours of service rules while the agency went ahead with its proposal for mandatory electronic onboard recorders to track driver hours, data could be collected that would back up the safety of the current hours of service. "Let that become the proving ground for highway safety in terms of HOS compliance."

In fact, Hill said, one of the things he regrets about his time as administrator is that he did not broker some sort of agreement between the trucking industry and Public Citizen and the other safety groups that have challenged the hours of service, which would have left the hours of service rules alone in exchange for mandatory EOBRs.

End.

2. National Public Radio – Morning Edition; Wednesday, April 20, 2011
HEADLINE: Indie Truckers: Keep Big Brother Out Of My Cab
Byline: Nell Greenfieldboyce

Terry Button is a fifth-generation farmer from upstate New York who also works as a long-distance trucker, hauling hay and produce up and down the East Coast.

When I'm away from home, this is my home. Does somebody come in your front door and decide, 'I want to plug into your computer and see where you've been today'? - Terry Button, truck driver

He's proud of his truck and likes it just the way it is. Inside, the cab is homey and low-tech, with a bed behind the two seats and a CB radio. There's no cruise control and no GPS telling him where to go.

"Canada is that way, Boston is that way, California is that way, Florida is that way," Button jokes. "I can figure out how to get there. I don't need a little box on the dash, telling me, 'Turn left, turn right.' "

But if a new rule proposed by the Department of Transportation goes through, Button will be required to have a high-tech little box on his dashboard — one that's hooked up to his engine — to automatically record how many hours he drives.

"I can't think of anything good that would come from this. If I could, I would tell you honestly, and I can't," says Button. He cares a lot about safety but thinks the proposed new rule would be a mistake.

Tracking Truckers

The device would be a new way to track how well truckers stick to the federal limits on driving hours that exist to keep dangerously tired truckers off the road. Such driving restrictions have been around since the 1930s, and truck drivers document all of their working hours in daily log books. Currently, they are supposed to work for no more than a 14-hour stretch, and only 11 of those hours can be driving hours.
But safety advocates have long argued that these handwritten logs are so easy to fake that they're a joke, noting that they're sometimes referred to in CB slang as "comic books," and that drivers can just lie on the logs and work far more hours.

"Tired truckers are a major, major safety problem," says Jackie Gillan of the Advocates for Highway and Auto Safety in Washington, D.C. Her group has been urging the government to require electronic onboard recorders for more than 15 years. "Paper log books are easily manipulated. They are easily falsified."

Concerns Over Monitors

Historically, large trucks have been involved in about 10 percent of highway fatalities. And although it's hard to measure exactly how many crashes are caused by overtiredness, one government study found that in 13 percent of large truck crashes, fatigue was a factor.

We have the technology to solve a problem. Why wouldn't we do it? This rule is way overdue and its time has come, and we have the technology to really address a serious safety problem.

- Jackie Gillan, vice president, Advocates for Highway and Auto Safety

"We have the technology to solve a problem. Why wouldn't we do it? This rule is way overdue and its time has come, and we have the technology to really address a serious safety problem," Gillan says. "There is no question that that is going to advance enforcement, and there is no question that it will also result in safer trucking."

But some people do question that. Todd Spencer is executive vice president of the Owner-Operator Independent Drivers Association, which has around 150,000 members — many of them truckers who own just one truck, like Terry Button. Spencer says this technology cannot detect a trucker who is tired, or catch a cheater who is working too many hours.

"The only thing that it will automatically record is when a truck is moving," Spencer says.
When the truck isn't moving, the device will have no idea whether the trucker is truly off duty and asleep, or awake and doing work like loading or unloading. "It will depend on a driver actually inputting that data," Spencer says. "And that's no different than what you would do with a paper log."

To him, the main difference is cost. He says independent truckers generally do their job for $40,000 or less a year — they can buy a paper log book at truck stops for as little as $1.49. But putting in an electronic monitor can cost from $1,500 to $2,000.

Why so much? The gizmos on the market do a lot of things beyond recording a driver's hours — things like tracking a truck's location and letting a dispatcher communicate with a driver. These multipurpose units were designed to help trucking companies manage big fleets, to help them be more efficient so they can make money.

For that reason, they're becoming increasingly popular — and resistance to the idea of a government mandate is crumbling.

Driven By Safety

This month, an industry group called the American Trucking Associations, which represents thousands of trucking companies, dropped its longstanding opposition to mandatory electronic logging and came out in favor of the idea.

And some big companies are now actively promoting electronic logging, with five major companies coming together to form a group called the Alliance for Driver Safety and Security. It's lobbying Congress to pass a law requiring electronic logging, to make sure the proposed DOT rule goes through.

"These companies wanted some action, and wanted it now, and wanted to push for legislation," says Bill Vickery, spokesman for the alliance. "The best way to get action in Washington is to push for legislation."
Current laws say that truckers are not supposed to work for more than a 14-hour stretch; only 11 of those hours can be driving hours. Advocates of electronic truck monitors say the technology could help reduce highway accidents.

Current laws say that truckers are not supposed to work for more than a 14-hour stretch; only 11 of those hours can be driving hours. Advocates of electronic truck monitors say the technology could help reduce highway accidents.

"We don't want to be defined by the worst in our industry," says Don Osterberg, senior vice president of safety for Schneider National, one of the companies in that alliance. "We just think we need to elevate the expectations and the performance of all motor carriers."

But Spencer, from the independent owner-operator drivers' group, dismisses that argument. "When they talk about leveling the playing field, what they are really saying is we need to get behind efforts that will increase costs of our competitors," Spencer says. "We don't find that to be an especially noble effort."
The costs will hit independent truckers like Button the hardest. And Button says they have objections beyond just the increased cost, saying it's like having Big Brother come into their cabs to monitor their behavior.

"When I'm away from home, this is my home," Button says. "Does somebody come in your front door and decide, 'I want to plug into your computer and see where you've been today'?"

Button says he personally can't see how it will improve safety — as far as he's concerned, that's controlled by the person behind the wheel.

End.

3. TruckingInfo.com; Tuesday, April 19, 2011
HEADLINE: NPTC Supports Mandatory EOBR Rule
Byline: Deborah Lockridge, Editor in Chief

The National Private Truck Council has followed the lead of the American Trucking Associations and the Truckload Carriers Association, coming out with a policy endorsing the federal government's proposal to mandate electronic onboard recorders to track driver hours of service for nearly all carriers.

The NPTC board of directors adopted the new policy during its meeting at the group's annual convention in Cincinnati over the weekend. Rick Schweitzer, the group's counsel, recommended the policy change and announced it to the general membership in attendance Monday.

The group had three conditions for its support:

1. The technology must be cost effective and accurate.

2. It must protect data ownership and access for carriers and drivers. "It's unnerving for defense attorneys to know there's going to be an EOBR with information on the driver's operations and probably a lot of other data, like truck braking speed is available, and we want to protect to the extent we can access to that data," he said.

3. Eliminate all supporting document requirements. "It makes no sense to have a 21st century electronic system and still have this requirement that you have to have all your fuel receipts and dispatch orders and 32 other documents to check against the electronic logs," Schweitzer said.

He noted that most private carriers of any size have already adopted some sort of electronic onboard recorders, so it's not a huge leap for this segment of the industry.

"It's going to happen," he said. "This is one time we can be on the side of the angels, we can be the good guys saying we support technology to help us comply with HOS rules.

Probably the most important reason to adopt EOBRs, Schweitzer said, is the Federal Motor Carrier Safety Administration's new CSA enforcement program.

"One of the BASIC areas where carriers are scored is in driver fatigue, and most of the violations for driver fatigue have nothing to do with fatigue or drivers exceeding their hours -- they're paperwork violations," he said. "If you go to a complete EOBR system, I think it will eliminate a lot of those violations."

In March, TCA adopted a new policy in favor of electronic logging and will support the Federal Motor Carrier Safety Administration's proposed near-universal mandate for electronic onboard recorders (EOBRs) to track driver hours of service.

ATA followed suit earlier this month, announcing that its membership endorsed a policy supporting federal laws and regulations that would require trucking companies to use electronic logging devices to monitor driver hours-of-service.

ATA had the same concerns about the law as NPTC when it came to affordability/accuracy, protection of privacy and supporting documents.

The current FMCSA rule, which will go into effect June 4, 2012, says that carriers that violate hours of service rules 10 percent of the time, based on single compliance review, must use electronic onboard recorders to track driver hours. It will affect only 5,700 interstate carriers.

The rule the agency is now proposing, which will go into effect three years after it is made final, will cover all of the approximately 500,000 carriers now required to maintain driver logs. It will create a market for at least 2 million recorders by one estimate, although other estimates go as high as 3.4 million. It also covers requirements for documentation to prove compliance with the hours of service rule, and it would require carriers to monitor driver compliance with the rule.

Under the proposal, violators of the recorder requirement would face civil penalties of up to $11,000 for each offense. Noncompliance would also negatively impact a carrier's safety fitness rating and DOT operating authority, the agency said.

The proposal will not apply to short-haul interstate carriers that use timecards to document hours of service.

In addition, two senators have restarted last year's effort to pass a bill that would mandate electronic onboard recorders on most trucks.

End.


5. The Trucker; Monday, April 18, 2011
OPINION HEADLINE: DeFazio bill looking into costly detention time: It’s about time
Byline: DOROTHY COX

And now for the first annual, “It’s About Time, Long Overdue Award”: It goes to Rep. Peter DeFazio, D-Ore., who recently introduced a bill requiring the Department of Transportation to study the amount of time truckers spend at loading docks and use what they find to draft a rule setting a maximum number of hours drivers can be detained.

Not only that, DeFazio had the Government Accountability Office (GAO) do its own study on the age-old problem.

The GAO interviewed more than 300 drivers and — surprise, surprise — 68 percent said they had been detained during the past month. We bet it would have been a much greater percentage if more drivers had been interviewed.

Commendably, the GAO started out its report by saying “more could be done to determine [the] impact of excessive loading and unloading wait times on Hours of Service violations.”

The report went on to say that “about 59 percent of interviewed drivers reported experiencing detention time in the past two weeks and over two-thirds reported experiencing detention time within the last month.”

“Drivers cited several factors that contribute to detention time,” the report said, adding that “About 43 percent of drivers identified limitations in facilities, such as the lack of sufficient loading and unloading equipment or staff. These limitations can occur when facilities over schedule appointments, creating a backlog of vehicles.”

In its interviews the GAO said about 39 percent of drivers reported their long wait time was because a product wasn’t ready for shipment. Other factors included “poor service provided by facility staff, facility scheduling practices that may encourage drivers to line up hours before the facility opens and factors not under the control of the facility, such as drivers filing paperwork incorrectly.”

It said “some facilities are taking steps to address these factors, such as using appointment times.”
No reader will be surprised that about 80 percent of the drivers experiencing detention reported that the waits limited their ability to meet federal HOS safety requirements by reducing their available driving time.
In another non shocker, about 65 percent of drivers “reported lost revenue as a result of detention time from either missing an opportunity to secure another load or paying late fees to the shipper.”

GAO said that the federal Motor Carrier Safety Administration doesn’t collect — and is not required to collect — information to assess the extent to which detention time contributes to HOS violations.

“To date,” the report said, “FMCSA research has focused on an overview of freight movement, but not the extent to which detention time occurs or how it may impact HOS violations.”

FMCSA said it will conduct a 2012 study to determine the extent to which detention time occurs.
The GAO said this could help FMCSA “determine whether additional federal action might be warranted.”

“However,” they added in the report, “any additional federal actions to address issues associated with detention time beyond HOS would require careful consideration to determine if any unintended consequences may flow from federal action to regulate detention time.”

Hmmmmmm … did FMCSA carefully consider how its proposed HOS might result in any “unintended consequences”? How about the effects of its proposal mandating black boxes for all?

Enough with the studies, already. It doesn’t take a brain surgeon or a rocket scientist to know that this is not a new problem or that waiting at the loading docks is costing drivers and carriers big time.
At least DeFazio has been listening. He said he’d heard a lot of stories from truckers over the years about the problem of detention time and how much it hurts supply chain productivity.

He appears to finally get it. Will anybody else?

End.

TIA Carrier Selection Framework Drops Use of SMS Methodology - Relies on Settlement

On April 8, 2011, the Transportation Intermediaries Association in a 35 page report dropped use of CSA 2010/SMS methodology as a credentialing criteria for carrier selection. Citing our settlement and the disclaimer language, the TIA endorsed our argument that the Agency is the sole party responsible for certifying safety.

Clearly, the settlement in NASTC et al. v. FMCSA was timely in that it afforded a skeptical broker industry the impetus it needed to reject the insidious advice that shippers and brokers are somehow required to second guess the Federal Government’s ultimate safety fitness determination in order to avoid potential vicarious liability for the acts of the carriers they hire.

Although the University of Michigan study commissioned by the Agency has not been released much less subjected to public comment and review, the Agency has indicated to OMB that it plans to go ahead with rulemaking in late summer or early Fall.

In data mining SMS methodology, the relationship between percentile rankings and national crash predictability appears even more remote. Unsafe driving points seem to be more affected by the vicissitudes of state enforcement than in an actual carrier-to-carrier comparison of speeding violations. “Fatigued Driving” appears more dependent on whether the driver maintains a paper log and accrues form and manner violations than whether his employer actually requires or permits him to exceed the hours of service.

Excessive vehicle maintenance points are accumulated for running lights on trailers and issues which have little or no safety impact and finally the higher percentiles of the driver qualification BASIC are populated by carriers whose drivers simply could not find their medical card at the time of the roadside inspection.

Attached is an important report from Wells Fargo which highlights and confirms our arguments about the flaws in SMS methodology.

Wells Fargo-Equity Research-Regulatory Roulette


Hank Seaton