This year there are four proposals to amend the International Fuel Tax Agreement. Three of them are probably of limited interest to motor carriers, but the other, which has to do with IFTA’s rules for audit and record keeping, should be of great interest to the industry.
That amendment is the third (FTPBP #3-2014 in IFTA’s code for these things). It’s sponsored by IFTA’s Audit Committee, and represents several years of work by representatives of IFTA’s member jurisdictions and of the trucking industry, including this writer. This amendment also represents a more or less complete rewrite and rearrangement of IFTA’s provisions in these two areas.
One of the goals of the project was to make IFTA’s rules in this regard as close as possible to those of the International Registration Plan following that organization’s similar effort, which went into effect last year. Like IRP’s, then, IFTA’s new rules on record keeping are somewhat more flexible for carriers, allowing them to maintain their records in any format that allows an audit to be done, and specifically accommodating records created in part through the use of GPS or some similar vehicle-tracking technology.
Provided a carrier’s records are of the quantity and quality necessary for an audit to be done, the jurisdiction doing the audit may not impose a general penalty for bad records – although of course audit adjustments may still be made that may increase the carrier’s tax liability. In the main, the proposed IFTA rules for auditing distance are to be the same as those in effect on the IRP side. Few changes are proposed with respect to the rules for fuel records, however, as these were on the whole found to be satisfactory as they stand currently.
In addition to these changes, and incidental revisions of IFTA language to make it clearer, the project largely rewrote the IFTA Audit Manual, which provides the states and provinces guidance on audit programs and their auditors with procedures for auditing specific situations. These changes, it is hoped, will make IFTA audits on the whole somewhat more uniform, and prevent some questionable practices by a few states.
This is an amendment industry should strongly support.
The other three ballots are as follows:
FTPBP #1 would change the cycle for IFTA program compliance (peer) reviews of the states and provinces from five years to four. If anything, this is a positive change, since it may help to ensure that instances of noncompliance with IFTA’s rules on the part of a state or province will have less time to become significant.
FTPBP #2, like No. 1, is sponsored by IFTA’s Program Compliance Review Committee. No. 2 would make a state’s noncompliance with (a) IFTA requirements to provide information to carriers or (b) the requirement for IFTA base-state audits even-handed for all jurisdictions grounds to take the offending state to IFTA Dispute Resolution Committee for potential disciplinary measures. Since we believe that all issues of noncompliance ought to be subject to such measures, we’re for this one too.
FTPBP #4, sponsored by IFTA’s Audit Committee, would make a definitional change that affects slightly the scope of an IFTA audit. From industry’s point of view, this seems wholly a technical change.
All these ballots are posted on IFTA’s website, at www.iftach.org, under IFTA Ballot Proposals, and are open for public comment through June 12. After that, they’ll be discussed at IFTA’s annual business meeting in August, and, if they survive that, will go out for a second comment period before being voted on this fall by the IFTA membership. ATA expects to file comments on the ballots during the first and possibly also the second period.
May 1, 2014 Avery Vise
From a controversial proposal to mandate detention pay for truck drivers, the Dept. of Transportation’s (DOT) surface-transportation funding proposal, the Grow America Act, contains little in the way of new policy initiatives or programs specific to trucking that will require major rulemakings. For the trucking industry’s leading policy analyst, that’s a good thing.
The Federal Motor Carrier Safety Administration (FMCSA) is still working through all of the policy changes and rulemakings required by the current transportation reauthorization known as MAP-21, Dave Osiecki, executive vice president of the American Trucking Assns. (ATA), told FleetOwner. So the fact that DOT isn’t pushing a whole new set of major changes is welcome.
“The industry needs to catch its collective breath,” Osiecki said. “This bill would slow down the regulatory pipeline.”
Instead of policy, many of the more than 30 motor carrier provisions in the DOT proposal would increase FMCSA’s power and flexibility in dealing with carriers and drivers in enforcement matters, Osiecki said. “They call it the Grow America Act. I would call it the Grow DOT Authority in Trucking Act.”
DOT’s reauthorization proposal represents a wish list of additional authorities and powers for FMCSA, Osiecki argued. “It makes it clear that FMCSA is an enforcement agency not a safety agency.”
Rather than focus on the best ways to achieve improved highway safety FMCSA takes a much more limited approach, he said. “What we find with FMCSA is that they are falling more and more into a ‘We’re going enforce the regulations and punish violators’ mindset.”
A number of federal agencies– including the National Highway Traffic Safety Administration (NHTSA)- – take a broader view of their mission and treat their regulated industries as partners rather than targets, remarked Osiecki.
Grow America Act provisions that would increase FMCSA’s authority include those that would:
• Prohibit a vehicle, driver or employer barred from operating in interstate commerce due to an imminent hazard order or failure to pay a civil penalty from operating or being operated “in any manner affecting interstate commerce.” (Sec. 5102)
• Require that requests for administrative review of imminent hazard out-of-service orders be filed by the carrier or driver within 15 days after the order. (Sec. 5106)
• Clarify DOT’s jurisdiction over international transportation while traveling through the United States. (Sec. 5107)
• Prohibit states from issuing commercial driver’s licenses to individuals who would immediately be disqualified from operating a commercial motor vehicle upon the issuance of the license. (Sec. 5201)
• Disqualify an individual from operating a commercial vehicle for 1 year for the first violation or life for committing two or more violations if he is discovered operating a commercial motor vehicle after his commercial driver’s license has been revoked, suspended or canceled based on offenses committed while operating a non-commercial motor vehicle. (Sec. 5202)
• Require states to disqualify drivers that have been federally disqualified for the duration of the federal disqualification and to record the violation in the Commercial Driver’s License Information System. (Sec. 5203)
• Disqualify an individual from operating a commercial motor vehicle when that individual has not paid a civil penalty. (Sec. 5204)
• Provide that an individual who receives a verified positive USDOT drug test is disqualified from operating a commercial motor vehicle and remains disqualified until he completes the return-to-duty process (Sec. 5205)
• Give FMCSA more discretion to impose safety standards that arguably might have a limited negative impact on driver health. (Sec. 5301)
• Allow FMCSA to revoke a carrier’s USDOT number for failing to comply with a subpoena. (Sec. 5304)
• Provide DOT the authority to ensure that federal contractors that exercise operational control over motor carrier operations comply with FMCSA safety regulations. (Sec. 5506)
• Impose criminal penalties for violating an imminent hazard out of service order. (Sec. 5509)
• Clarify that in assessing the maximum penalty for operating in violation of an out-of-service order each day of operation constitutes a separate offense. (Sec. 5510)
• Expand FMCSA’s right to access the motor vehicle driving record of any individual in connection with a safety investigation (Sec. 5514)
• Grant FMCSA the authority to require the recall of electronic logging devices that fail to meet certification requirements. (Sec. 5504)
• Clarify DOT’s authority to enforce commercial regulations under part B of subtitle IV, title 49, through an administrative adjudication process in addition to civil action in federal courts. (Sec. 5513)
• Place requests by DOT for the Attorney General to bring an enforcement case for violations of subchapter III of chapter 311 and chapters 313 and 315 on equal footing with requests to enforce violations of chapter 5. (Sec. 5508)
• Amend the definition of commercial motor vehicle to include vehicles operated by passenger carriers that are subject to FMCSA’s safety jurisdiction but are not covered by the current vehicle definition. (Sec. 5101)
• Give DOT jurisdiction over brokers for motor carriers of passengers. (Sec. 5302)
• Close a loophole in the Secretary’s jurisdiction over certain small bus operations. (Sec. 5103)
Not all the motor carrier provisions in the Grow America Act are aimed at expanding FMCSA’s safety and enforcement powers and authority. However, a number of them appear aimed at freeing up the agency’s resources to focus on other more important issues. Some even provide some relief to motor carriers.
The Grow America Act would also:
• Allow FMCSA to suspend rather than revoke the authority of a carrier or broker whose financial security has been cancelled (Sec. 5305)
• Give FMCSA discretion in deciding whether new entrant safety audits are necessary (Sec. 5105)
• Revise and streamline FMCSA’s grant programs for state partners (Sec. 5401)
• Repeal the self-insurance option for motor carriers (Sec. 5503)
• Establish the Unified Carrier Registration Plan as a not-for-profit corporation outside the U.S. government (Sec. 5502)
• Repeal the motor carrier financial reporting requirement (Sec. 5505)
• Codify FMCSA’s obligation to maintain the Motor Carrier Safety Advisory Committee (Sec. 5501)
• Continue the requirement that FMCSA conduct safety reviews of motor carriers that pose the highest safety risk while eliminating obsolete terminology (Sec. 5104)
• Make various technical corrections to MAP-21 (Sec. 5511)
• Remove the requirement that audits of Mexico-domiciled carriers be conducted onsite in Mexico (Sec. 5512)
• Eliminate two FMCSA reporting requirements that have become obsolete (Sec. 5515)
By Woody Leonhard
The U.S. Federal Communications Commission has proposed a new set of rules that will change — some say kill — net neutrality.
With regulations coming soon, Congress hunkered down; and with a brawl breaking out on a dozen different fronts, here’s what you need to know about the FCC’s proposal and how it will affect you.
Perceptions of net neutrality differ
In the March 27 Top Story, I talked about how Netflix’s deal to hook directly into Comcast’s network didn’t violate net neutrality. I noted that co-locating Netflix servers in Comcast facilities simply bypassed intermediaries such as Cogent, Level 3, and other Content Delivery Network (CDN) companies. (CDNs typically act as a bridge between content providers such as Netflix and Internet service providers such as Comcast.)
The Netflix/Comcast deal might result in higher Netflix fees, but it doesn’t have any net-neutrality repercussions that I can see. However, other events and trends do have possible ramifications for net neutrality. Since I wrote that March 27 Top Story, the discussions about keeping the Internet on a level playing field have reached new highs and, unfortunately, new lows.
Discussing net neutrality is often difficult because it means very different things to different people — and to different multi-billion-dollar organizations. A SaveTheInternet YouTube video has a layman’s overview. Yes, it’s biased; but it includes humorous scenes from John Hodgman’s July 29, 2006, The Daily Show skit on the topic.
My definition of net neutrality is really quite simple and, I think, reflects the interests of most individuals and businesses that rely on the Internet. In his Feb. 27 Stratechery blog, Ben Thompson said it best: “Net neutrality means non-discrimination against packets from origin to destination. A packet from Netflix or YouTube or PornHub or the New York Times is treated and priced exactly the same from server to client and back again.”
As the blog notes, ISPs and content providers base their definitions of net neutrality mostly on their corporate interests.
Fallout from a questionable FCC decision
Years ago, the U.S. Congress gave the Federal Communications Commission (FCC) permission to regulate the Internet within the U.S. Back in 2002 — centuries on Internet time — FCC chairman Michael Powell decided to classify broadband to the home as an information service rather than a telecommunications service. That fateful — many say flawed — decision set up the net-neutrality fight we have today. The FCC’s rules for telecommunications services (or “common carriers”) are well established and quite extensive. On the other hand, the FCC’s rules for information services have always been squishy — and they’re getting only squishier.
In 2010, then–FCC chairman Julius Genachowski issued a new set of rules for broadband service providers. In an Ars Technica article, Matthew Lasar called it “net neutrality (lite).” Although the rules alienated many net-neutrality proponents, they specifically prevented ISPs from blocking content. But the rules also let ISPs “manage” networks and offer better service to certain kinds of packets.
Verizon sued, claiming that the FCC had overstepped its authority. (Ever think about what your Verizon bills — and fees to other service providers — subsidize?) This past January, the U.S. Court of Appeals for the District of Columbia Circuit agreed. As reported in a Jan. 14 New York Times Bits column:
“[The court ruled that] the FCC cannot subject companies that provide Internet service to the same type of regulation that the agency imposes on phone companies. It cited the FCC’s own decision in 2002 that Internet service was not a telecommunications service — like telephone or telegraph — but an information service, a classification that limits the FCC’s authority.
“[The FCC can regulate the Internet], just not in the manner that it sought to do so. The appeals court said telecommunications laws give the FCC broad power to make rules governing the treatment of Internet traffic by broadband providers, because Congress has directed the agency to promote innovation and the growth of the Internet.”
Translation: If the FCC wanted more regulation of ISPs, it should have classified them as — more regulated — telecommunications services. The ruling left the FCC with judicial directions clear as mud — and no firm directions from a well-greased Congress. (A March Politico column reported that “even before announcing its plans for Time Warner Cable, Comcast had donated to almost every member of Congress who has a hand in regulating it.”)
The court’s decision left current FCC chairman Tom Wheeler a whole lot of nothing to work with — and much speculation from everyone else, given Wheeler’s background. A former president of the National Cable Television Association, he’s spent decades working as a lobbyist for the cable and wireless industry. Few doubt his experience; many worry about his allegiances.
A proposal with few merits — and big liabilities
To replace the rules shot down in flames by the Appellate Court, Wheeler’s FCC is floating a new proposal, detailed in an April 29 Official FCC Blog post. The proposal is an opening salvo — a request for comments from interested parties (essentially everyone). In the post, Wheeler states:
“First, this is not a final decision by the Commission but rather a formal request for input on a proposal as well as a set of related questions. Second, as the Notice makes clear, all options for protecting and promoting an Open Internet are on the table.”
Many observers view Wheeler’s “fast track” proposal as cable-industry same-old, same-old — quite possibly the antithesis of net neutrality. But Wheeler does have a good point. Whatever rules the FCC promulgates will undoubtedly be taken to court (there goes some chunk of your Verizon fees again). The FCC has to find some sort of middle ground that will pass judicial muster and not paralyze the Internet indefinitely. (Whatever FCC rules eventually stick, the service providers will still make billions.)
Wheeler’s proposal, in broad terms, allows “fast lanes.” Any content provider willing to pay for preferential treatment gets shunted to the faster connections.
But if there are fast lanes for those who can afford it, there obviously must be slow lanes for everyone else. Can’t or won’t pony up the extra bucks? You’re relegated to a slower connection, possibly putting you at a distinct competitive disadvantage.
But how slow is slow? That’s the vexing question. Will it be equivalent to what we now have coming into our homes? Or will sites such as WindowsSecrets.com suddenly slow to a snail’s pace? Will the next Facebook-competitor wannabe get outbid by Facebook for speedy access?
It gets even more complex and confusing. If Netflix ups its prices to recoup the added cost of fast-lane access, the price of a broadband provider’s own services (movies and TV shows, for example) will look more attractive.
Unfortunately, Wheeler’s proposal has an Achille’s heel: the FCC will have to make judgment calls on whether any restrictions an ISP places on its fast and slow lanes are “commercially reasonable.” The FCC presumably would monitor all Internet service in the U.S. and rule on whether a specific broadband provider, in a specific instance, is using unreasonable restrictions to improve profits.
Wheeler’s current guidelines seem reasonable: “Something that harms consumers is not commercially reasonable. … Something that harms competition is not commercially reasonable. … Providing exclusive, prioritized service to an affiliate is not commercially reasonable. … Something that curbs the free exercise of speech and civic engagement is not commercially reasonable.”
But obviously, the devil is firmly in the details. Squishy guidelines like these should make us all feel queasy. To me, they sound like a feeding frenzy for corporate lawyers. The FCC will have to spend millions or billions playing judicial roulette.
Those opposed are looking for a better way
Unlike some, I don’t think of Wheeler as a cable-company shill leading a mostly blind and well-greased congress to an end that’s not in consumers’ best interests. That said, I don’t agree with his proposal — on almost any point.
In a May 2 Slate story, Marvin Ammori takes Wheeler to task:
“Let’s get one thing straight: [Wheeler] is not backing off his plan to hand the keys to the Internet over to the cable and phone industries. The chairman told the cable industry to ‘put away the party hats’ because he’s not actually going to kill network neutrality. But his proposal is the same plan offered by the largest cable and phone companies, which have tried to kill network neutrality for almost a decade.
“Since 2006, the phone and cable industries have proposed a world where they won’t ‘block’ any websites, but they will simply create a lane for all websites and then charge anyone who wants better service for a fast lane. They have fought a nondiscrimination rule for at least eight years, using tens of millions of dollars. The tolls for the fast lane may be tied to bandwidth or a company’s revenue.
“Finally, the cable and phone giants want this world to have no clear rules — just vague principles about what might be ‘commercially reasonable,’ which is an invitation for small companies to sue the giants if they’re unhappy. Since the cable and telephone companies have more FCC lawyers than most companies have employees, they will scare off most potential companies suing and then beat the rest in ‘FCC court.'”
In my opinion — and others’ — that description hits the nail squarely on its head. Senator Al Franken fired off a two-page memo (PDF) that also takes exception to the FCC’s proposal:
“Struggling to craft a ‘commercially reasonable’ standard misses the point: Pay-to-play arrangements are inherently discriminatory and anticompetitive, and therefore should be prohibited as a matter of public policy. They increase costs for consumers and give ISPs a disincentive to improve their broadband networks — undermining the FCC’s mission to protect the public interest and strengthen the nation’s broadband infrastructure.”
Though it’s still too early to predict the end of the Internet as we know it, plenty of individuals, consumer groups, and analysts are ready to run Wheeler out town on a rail. See, for example, the May 5 InfoWorld story, “Thanks to Tom Wheeler, the end of the open Internet is nigh.”
The time to discuss net neutrality is now
There’s a growing resistance to the FCC proposal, and that resistance will undoubtedly swell during the FCC’s official public-comment phase. Organizations such as the Electronic Frontier Foundation (EFF) are launching public-awareness campaigns. An EFF post puts it this way:
“The problem is that most people don’t know about this extremely opaque process, and so they don’t participate. Let’s change that. Stay tuned. We’ll let you know when it’s time to raise your voice and add your testimony during the FCC’s public comment window when the new proposed rules are announced.”
If you believe net neutrality is threatened, you can help others understand the facts. Talk to your friends, even if they don’t know a URL from a 404. This is a thorny, multifaceted issue with no simple solution. (For more, see the May 6 InfoWorld story, “Level 3 accuses Comcast, other ISPs of ‘deliberately harming’ broadband service.” There needs to be an open, public debate about what we want the Internet to be. And you can be sure that an enormous amount of money will be spent attempting to obfuscate that debate. Best to get the facts straight now, so you can speak out knowledgeably when the time comes.
If you want to follow this issue — or even participate in the fight for net neutrality — drop by the Save The Internet blog. It provides links to more information, a petition, and other ways you can help out.
May 9, 2014 Avery Vise Fleet Owner
Carrier Safety Administration is clarifying the display requirements for automatic onboard recording devices (AOBRDs) that have electronic displays and is reminding motor carriers and law enforcement officials that the devices are not required to be able to print out a hard copy. In guidance to be published in the May 12 Federal Register, the agency also said that an enforcement official may request that additional information be provided following the roadside inspection.
FMCSA’s new guidance was prompted by reports that inspectors sometimes ask drivers to provide printouts from AOBRDs or to e-mail or fax records of duty status (RODS) to an enforcement official. The agency also has learned that on occasion inspection officials have issued citations to commercial motor vehicle drivers because their AOBRDs did not display certain information.
AOBRDs are not required to be capable of providing printed records at the roadside, although a driver may voluntarily provide it if his AOBRD has the capability. Printed information must meet the display requirements of Sec. 395.15.
Requirements for recording, but not displaying, information reflects the technology in place in the mid-1980s when the regulations were adopted, FMCSA said. Small electronic displays were rare and expensive, and they could display only limited information. So the regulations call for “time and sequence of duty status” rather than the Part 395.8 graph grid.
FMCSA is adding two new questions to Part 395 guidance adopted on April 4, 1997. The first states that AOBRDs with electronic displays must be capable of displaying:
• Driver’s total hours of driving today
• The total hours on duty today
• Total miles driving today
• Total hours on duty for the 7 consecutive day period, including today
• Total hours on duty for the prior 8 consecutive day period, including the present day
• The sequential changes in duty status and the times the changes occurred for each driver using the device
Part 395.15 requires the recording of additional info, but only the items listed above must be displayed because of the data display limitations of a minimally compliant AOBRD, FMCSA.
FMCSA’s guidance also confirms that the regulations don’t require AOBRDs to provide a hardcopy printouts for an enforcement official. “As long as the information made available for display on the AOBRD meets the requirements of § 395.15(i)(5), the driver and motor carrier are not required to provide additional RODS documentation to an enforcement official at the roadside,” FMCSA said.
“However, an enforcement official may request that additional information be provided by email, fax, or similar means within 48 hours for follow-up after the conclusion of the roadside inspection.”
Carriers and law enforcement officials welcomed FMCSA’s clarification.
“ATA is grateful that FMCSA issued this guidance clarifying the long-standing AOBRD requirements,” Rob Abbott, vice president-safety policy for the American Trucking Assns., told Fleet Owner. “The confusion on the part of several enforcement officers had resulted in erroneous enforcement action and disparate enforcement from jurisdiction to jurisdiction. ATA is hopeful that the guidance will resolve these problems.”
“We are glad FMCSA has finally put this guidance out,” Stephen Keppler, executive director of the Commercial Vehicle Safety Alliance, told Fleet Owner. “We and others have been asking for this guidance for more than a year, and there have been inconsistent views on this particular issue. This will help to clarify the regulation so it can be more consistently enforced and the industry knows what is expected of them.”
FMCSA’s proposed rule on electronic logging devices reflects huge technology changes since the AOBRD rules were adopted in 1988, but they still would not require that devices print log information.
The American Transportation Research Institute (ATRI) today announced the appointment of Annette M. Sandberg to its Board of Directors. Ms. Sandberg, CEO of TransSafe Consulting, previously served as Administrator of the Federal Motor Carrier Safety Administration (FMCSA) following her nomination by President George W. Bush and confirmation by the Senate. In addition to serving as FMCSA Administrator, Ms. Sandberg also served as Deputy Administrator of the National Highway Traffic Safety Administration (NHTSA) and as Chief of the Washington State Patrol, where she was the first woman to lead a state police agency.
In announcing her ATRI Board appointment, ATRI Chairman Steve Williams, CEO of Maverick Transportation, commented, “Annette’s extensive experience and leadership in advancing the trucking industry’s safety agenda is a perfect complement to ATRI’s mission of improved industry safety and productivity. We are fortunate to have her join our Board of industry CEOs and know that the trucking industry will benefit from her involvement in ATRI’s research.
A complete listing of the ATRI Board of Directors is available at www.atri-online.org.
ATRI is the trucking industry’s 501(c)(3) not-for-profit research organization. It is engaged in critical research relating to freight transportation’s essential role in maintaining a safe, secure and efficient transportation system.
