In April, FCC Chairman Tom Wheeler put forth a proposal that would allow Internet Service Providers (ISPs) to allow “fast lane” privileges for those content providers who are willing to pay for it. ISPs have been pushing for these changes for a long time. Consumer groups are largely against these changes. As a compromise, the FCC has allowed limited consumer protections.
For example, an ISP may demand that a video or audio streaming company pay more for a bigger internet pipe. The FCC proposal prohibits these charges from being passed directly to consumers. Nothing prohibits ISPs from indirectly passing these charges on.
One side of the argument says that providers and ISPs should be able to work out any pricing deal they wish. The other side of the argument states that the same rules that apply to telephones and wireless providers. I believe that equal access among all providers is essential to commercial services (such as ELDs and telematics services). Even some of the larger internet firms such as Google and Facebook have come out against this proposal.
In an Aug. 5 speech, President Obama stated:
“One of the issues around net neutrality is whether you are creating different rates or charges for different content providers. That’s the big controversy here. So you have big, wealthy media companies who might be willing to pay more and also charge more for spectrum, more bandwidth on the Internet, so they can stream movies faster. I personally, the position of my administration, as well as a lot of the companies here, is that you don’t want to start getting a differentiation in how accessible the Internet is to different users. You want to leave it open so the next Google and the next Facebook can succeed.”
What can you do? The FCC is taking comments until September 15. You can file a comment or contact the FCC from here.
Need to learn more? We recommend:
Save the Internet Blog
Woody Leonhard’s article: Net Neutrality: What it Is, Why You Should Care
A Neutral Guide to Net Neutrality by Stephanie Cret.
Tom Risen – US News and World Report.
Edward Wyatt – New York Times.
Brian Fung – Washington Post.
With all of the press surrounding the new Electronic Logging Device (ELD) rule – it’s easy to forget that electronic logs have been around since October of 1988. The rules that apply to paperless, electronic recording of commercial drivers Hours of Service are found in 395.15. Until the new rule is published in the Federal Register – we’re all under 395.15. Once published, there is a 2 year grace period for non-AOBRD users, 4 year grace period for AOBRD users.
The AOBRD regulations will be here for at least a couple more years. AOBRDs (Automatic Onboard Recording Devices) is the name given to any device that currently produces compliant, paperless, electronic logs.
If your fleet is equipped with compliant AOBRDs, here are the rules:
1. Drivers do NOT need to provide a hardcopy of their logs – although they may voluntarily do so.
2. If an officer deems it necessary – he/she can require additional information via fax, email, or similar means within 48 hours of the roadside inspection.
A compliant AOBRD has requirements for the information displayed, but not the format in which it is displayed.
The FMCSA has issued guidance here.
In 2010 the Federal Motor Carrier Safety Administration (FMCSA) launched the Pre-Employment Screening Program (PSP). PSP is available online at http://www.psp.fmcsa.dot.gov/Pages/default.aspx. Through PSP, enrolled account holders have the ability to search for drivers’ safety histories from the federal Motor Carrier Management Information System (MCMIS) database. A PSP record includes a driver’s:
– Five year crash history
– Three year roadside inspection history
– Violations noted during roadside inspections
– The name of the motor carrier for whom the driver was operating for at the time of an inspection or crash
PSP is the only service that provides a driver’s complete FMCSA history. The PSP record allows you to get a clear snapshot of a driver’s past behaviors and habits – important predictors of a driver’s future performance.
The driver’s PSP record may only be accessed during the hiring process. Once a driver is employed, the employer may not request that driver’s PSP record for any reason. To protect a driver’s privacy, a driver must provide their consent using FMCSA’s PSP consent form before the PSP record is accessed.
FMCSA takes drivers’ privacy seriously. With that in mind, FMCSA has implemented PSP audits. On a regular basis, PSP account holders are randomly selected for a PSP audit. The audit entails providing driver consent forms that are requested at random. The consent form demonstrates that the driver has permitted a company to request their PSP record once. Review the driver consent compliance suggestions to learn more and adopt the established best practices.
Who may use PSP?
Inter- and intrastate motor carriers may use PSP to review a potential driver’s safety history. Drivers may also access their own PSP record at any time.
In early October, FMCSA announced an expansion to the PSP program. Now, any company that is directly involved in the hiring of commercial drivers may access PSP records. This includes driver screening companies and similar entities working on behalf of a driver or a carrier to access PSP records (with the driver’s consent).
How is PSP data collected?
Enforcement officials collect data during roadside inspections and crashes. This data is added to the FMCSA MCMIS database. The information is different than the driver’s state motor vehicle record because PSP includes violations and other details about the crash or inspection – not just state convictions. PSP offers motor carriers a more comprehensive picture of a potential employee’s past performance and work history.
On a monthly basis, the PSP database is populated with the latest MCMIS snapshot. The data snapshot includes the most recent data updates for drivers’ crash and inspection histories.
Why use PSP?
Thousands of motor carriers are using PSP to ensure they are only hiring the safest drivers. Motor carriers use PSP for a variety of reasons. Some motor carriers use the PSP data to develop a personalized training plan for each driver that addresses the areas that demand extra attention. A personalized training approach ensures that a driver’s time is well spent and keeps training costs to an effective minimum. Carriers also check the PSP report to see what carrier the driver was operating for at the time of a crash or inspection. Prospective employers can cross reference the carrier names that appear on the PSP report with the list of previous employers supplied by the driver.
The PSP report is different than a state motor vehicle record. Using the reports together shows a clear picture of a driver’s activities. For more details review the PSP and MVR comparison.
How do I use PSP?
PSP is entirely web‐based, available 24 hours a day, and returns drivers’ PSP records instantly.
First, a company must enroll in the program to receive PSP access credentials. To start, download the enrollment packet. The enrollment process typically takes two to three business days. Once enrolled, simply search for a driver’s record by entering the driver’s name, date of birth, license number(s) and license state(s). PSP records are returned instantly in PDF format, and can be saved or printed for the driver’s qualification file. In addition to the web site, the PSP application is available via iTunes for the iPhone and iPad. The PSP app is free and makes it easier to review drivers’ histories on the go.
There is a fee to use PSP. Most PSP account holders pay an annual subscription fee of $100. Smaller carriers, with fewer than 100 power units, qualify for a discounted subscription fee of $25. Each PSP record transaction costs $10. A single monthly invoice is provided to carriers for convenience.
Information on enrollment and questions about the PSP service can be found on the PSP FAQ page. The customer support team is ready to answer questions. Simply email PSPhelp@egov.com or call toll‐free 1‐877‐642‐9499 between 8 AM and 6 PM ET, Monday ‐ Friday. You can access PSP updates by subscribing to the PSP Twitter feed by following @PSP_help.
Legal Defense and Other Hot Button Issues for the Trucking Industry
Well, by now we are pretty much well versed on the long battle over the new Hours of Service regulation and the fact that it has been implemented and binds us going forward. So what are we going to do about it and what can we expect? Much has been said about the reg lately and, frankly, I don’t think the conflict has ended. But until then…I wanted to provide my own take and throw some thoughts out there to be considered.
How Did We Get Here?
FMCSA proposed a Final Rule changing the Hours of Service regulation on December 27, 2011. After much fighting, the reg became effective on July 1, 2013. Initially, FMCSA pushed to cut the maximum driving time from 11 to 10 hours, but eventually backed off when it couldn’t come up with the data to support a benefit. However, FMCSA did continue to push for a modified 34 hour restart (to be used only once every 168 hours and include 2 periods of 1 a.m. and 5 a.m.), and for a 30 minute break to be taken within an 8 hour driving time.
As early as December 2011, before the Final Rule was published, the industry has been warning everyone that will listen of the costly effects that the new reg could have on companies and the economy. One trucking company told Congress back then that the reg would cut revenues by 17%, while a shipper stated that it would end up paying 3% more for shipping, which ultimately would be passed on to customers (i.e. Joe Public). However, FMCSA continued to tout that the new reg would cut fatigue-related crashes by requiring drivers to get more rest than they did under the previous reg.
Fast forward slightly to June of 2013 when Steve Williams, CEO of Maverick USA, told Congress that the motivation of FMCSA to change the reg was not based on sound evidence. Or as one Congressional representative put it, “it’s a solution in search of a problem.” Williams pointed out that the reg could result in a 1.5-4% reduction in productivity, or in dollars, between $500 million to $1.4 billion lost.
Williams’ testimony before Congress was not just a talking head either. Just before the testimony, ATRI released a study showing FMCSA “greatly overestimates the benefits…[while] ignoring the productivity losses that all driver-types will experience under the new HOS rules.” While FMCSA has projected a benefit of $133 million from the restart provision, ATRI estimates a loss between $95-376 million. ATRI attributed the difference to the fact that FMCSA ignores costs related to increased congestion on the roadways and increased restart times for a larger percentage of the driver population (FMCSA data only focuses on the 15% of drivers with the most intense driving schedule as having fatigue-related issues, leaving of course 85% of the drivers without issues to be penalized under the reg). Finally, ATRI predicted that the reg could affect shipper costs, scheduling issues and a driver shortage (there’s those words again!).
And as we all know, on August 2, 2013, a federal appeals court upheld the 34 hour restart and 30 minute break provision. While the FMCSA hailed the victory as recognizing “the sensible data-driven approach that was taken in crafting this important regulation to increase safety and reduce driver fatigue”, I would contend that the Court viewed the win a little differently than FMCSA when it stated “though the FMCSA won the day not on the strengths of its rulemaking prowess but through an artless war of attrition, the controversies of this round are ended.”
So Is That It?
Following the Court of Appeals decision upholding most of the new reg, many felt the “decision has put the issue to bed for now.” But…
As part of MAP-21, Congress directed FMCSA to conduct a field study on the 34 hour restart to back up its supposed lab data on the benefits for fatigue. However, FMCSA is woefully behind schedule on providing that field study and now certain members of Congress are introducing legislation to pull funding for enforcement of the reg without the study. Let’s stay tuned to this.
So What Are We Seeing?
One company recently stated that the new HOS reg. has cut productivity by 2-3% overall, and 6% for its drivers. Drivers are working longer hours in order to make the same money, but more importantly, drivers are more frustrated and stressed trying to abide by the new reg. And as a result, some experienced drivers are just calling it quits.
Other companies are experiencing scheduling difficulties. If a driver runs out of hours on a Wednesday, the truck sits on Thursday and Friday, and most customers don’t ship on Saturday or Sunday. Now companies and drivers are working in a 3 day work week.
And ATRI has backed this up as well. On November 18, 2013, ATRI released a comprehensive survey on the effect of the HOS reg since July finding that 80% of carriers suffered a loss in productivity. Most importantly, for my purposes on liability at least, ATRI found that drivers were actually experiencing HIGHER FATIGUE LEVELS! 82% of drivers surveyed stated that the new reg has had “negative impact on their quality of life, with more than 66% indicating increased levels of fatigue.” (I’m not the sharpest knife in the drawer, but it doesn’t seem to me that the FMCSA got this one right!)
So What’s My Take?
In addition to the lost productivity and cuts to revenues that the new HOS reg creates, I also see some increased liabilities on the roadway. I believe they look something like this:
1. Attacks on driver training. A savvy plaintiff’s attorney will likely go straight to the driver training that was given on the new HOS reg, particularly when a HOS violation exists for that driver, however irrelevant to an accident. Companies need to begin providing detailed training, and testing to determine comprehension, on the new reg. This includes training for dispatchers as well. The last thing you want is a dispatcher sending a driver out mistakenly believing he had remaining hours to drive.
2. Policies and procedures. A favorite of plaintiff’s attorneys is to depose a corporate representative and ask if a driver has adhered to all the company policy and procedures. Plaintiff’s attorneys use this information, and any policy violations, to establish an unsafe company. It is imperative that all company policies reflect the new HOS requirements; otherwise you risk being painted as a rule-breaking company.
3. Fatigue is actually increased. As stated above, one of the biggest repercussions that ATRI identified is increased fatigue since the new reg went into effect. And this is easy to understand when you know what fatigue is and why it happens. Because of difficulty complying with the regs, meeting increased demands and worrying about a loss of pay, drivers are experiencing increased stress. And what is the symptom of long-term stress? You guessed it…fatigue. When you are fatigued, you experience a dulling of your senses, which then increases your inattention to detail. While adequate sleep may have a nominal effect on fatigue, if you don’t address the core problem causing fatigue (i.e. increased stress from horrible regulations), it will never resolve but instead result in chronic fatigue. Rip Van Winkle doesn’t stand a chance in this environment. So it’s a catch 22. You abide by the rules, you risk having the new research like ATRI’s used against you for increased fatigue. Yet you break the rules and, well, you know what happens.
4. Inexperienced drivers. Without opening up the driver shortage debate, to the extent that the new reg is causing some experienced drivers to choose a different profession, or retire, new drivers will have to be found. And the best training program in the world can’t replace miles traveled. I am fearful that the more inexperienced drivers that have to be hired, without the benefit of experienced mentors, could lead to more accidents. I made mistakes as a young attorney, and only time taught me how to avoid some of them. Biggest difference…my mistakes weren’t behind the wheel of 80,000-pound missile!
5. 5 A.M. start times. Because of the restart provision, it naturally lends itself to more trucks being placed on the road around 5 a.m., the start of the most congested time of the day. Drivers may experience increased stress being forced onto the highways at heavily congested times, possibly becoming more accident-prone. Statistics exist for a reason…the more times you do something, the more likely over time that you will begin to see a pattern. Our drivers are very safe in their trucks, but accidents happen. The more trucks and more passenger cars that are forced onto the road during morning hours because of the reg, the more accidents are going to occur. Its just statistics!
6. Increased cargo claims. Shippers have reported that the combination of the new HOS reg and CSA has reduced on-time deliveries by 4-5%. With on-time deliveries negatively effected, its logical to expect that time-sensitive cargo and business delays may increase, resulting in more claims between carriers and shippers.
7/28/2014, Joey Slaughter
Transport Topics just released their list of the top 100 for-hire carriers. There was nothing really surprising to me on the list, but some people may be surprised to see who’s on there and who’s not. Due to the nature of a blog, I can’t go over the entire list, but here is the top 10 and their revenue:
1. UPS, Inc.($55.4 Billion)
2. FedEx Corp.($45.1 Billion)
3. J.B. Hunt Transport Services($5.6 Billion)
4. Con-Way, Inc.($5.5 Billion)
5. YRC Worldwide($4.9 Billion)
6. Swift Transportation($4.1 Billion)
7. Schneider($3.6 Billion)
8. Hub Group($3.4 Billion)
9. TransForce, Inc.($3 Billion)
10. Landstar System($2.6 Billion)
Here are some interesting points that put these numbers into context.
• UPS and FedEx’s combined revenue of 100 billion exceeds companies 3-100 combined (98 billion) Knowing how large a billion is, there’s a good chance that the big 2 has revenue that would exceed companies 3-500 if such things were measured.
• Out of the top 10, only 3 companies are primarily long haul, U.S. OTR operations; Swift, Schneider and Landstar. TransForce is a Canadian powerhouse with OTR companies within, but I’m not sure of their primary segment.
• J.B. Hunt and Hub Group earn their revenues primarily through the intermodal/drayage sector, not trucking.
• UPS and FedEx are primarily package couriers with their LTL and logistic operations rounding out the massive behemoths. There are many other companies under their umbrella, but the package courier, LTL and logistic operations are the dominant companies within.
The following statistics (from OOIDA) add even more context to the industry as a whole:
• 97% of all fleets are 20 trucks or less
• 90% of all fleets are 6 trucks or less
If you are an owner-operator leased to a carrier, you are counted with their numbers. Even though, my little one truck, trucking company is but a grain of sand on the beach of large carriers, I stand with the majority of small trucking companies that are moving the bulk of our nation’s freight.
FOR IMMEDIATE RELEASE
Contact: Dan Murray
(651) 641-6162
July 31, 2014
The American Transportation Research Institute (ATRI), the trucking industry’s not-for-profit research organization, today released its newest study, Evaluating the Impact of Commercial Motor Vehicle Enforcement Disparities on Carrier Safety Performance. According to Steve Niswander, Vice President, Safety Policy & Regulatory Relations of Groendyke Transportation and ATRI Research Advisory Committee (RAC) Chairman, “This assessment was ranked as the number one research issue for the industry during our annual RAC meeting in 2013 and its impact on the industry should be significant.”
This landmark analysis documents the necessity for some flexibility in developing enforcement strategies specific to a state’s needs, but also confirms that state enforcement disparities create uneven safety playing fields for carriers that have different operating patterns and mileage exposure in the lower 48 states.
Furthermore, the different priorities and violation issuance rates across states dramatically undermine the uniformity of CSA – a supposedly standardized safety assessment program. By simply crossing into an adjoining state, carrier BASIC scores can change markedly. For example, ATRI’s model calculated one carrier’s Hours-of-Service percentile decreasing by 4.2 points, but their Vehicle Maintenance percentile increasing by 12.2 points if state violation rates were normalized. Finally, based on two nationally recognized violation lists most closely associated with future crash risk, ATRI’s research documents considerable variability in state emphasis on those violations that generate the greatest safety benefit.
ATRI’s research findings generate from four specific tasks:
State Data Metrics Compendium which compares and contrasts several dozen safety and operational metrics for the lower 48 states.
Relating Violations to Crash Risk Analysis reveals that while certain violations have a stronger relationship to crash risk, these violations may not be equitably emphasized across states.
State Enforcement Objective Case Studies evaluate the impact of six specific state enforcement priorities on actual safety outcomes.
Carrier Case Studies quantify the impact of state enforcement disparities on specific motor carrier safety measures within the Safety Measurement System (SMS), based on an ATRI-developed model that assesses the impact that standardizing state enforcement activities would have on SMS scores across seven carriers.
“ATRI’s study unequivocally quantifies what we know is a serious defect in the CSA scoring system – that carrier safety performance as represented by BASIC scores can be dramatically impacted by the states in which a carrier operates based on nothing more than the states’ varying enforcement priorities. Until these disparities are rectified, peer-based comparisons within CSA’s scoring system will continue to be flawed and of little value as a tool for monitoring carrier and driver safety performance unless accounted for properly,” commented Brett Sant, Knight Transportation’s Vice President of Safety and Risk Management and a member of ATRI’s Research Advisory Committee.
A copy of the study results is available here.
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.
