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Article Deficiencies for Small Carriers

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Article Deficiencies for Small Carriers

To whom it may concern:

NASTC was asked to chronicle all and any deficiencies that we felt were worrisome for small carriers in the current regulatory environment. This request was made by staffers for Senator Deb Fischer. We passed this request to Henry Seaton, ASECTT, Rick Gobbell, Jeff Davis, Fleet Safety Services LLC, Joe Rajkovacz, Western States Trucking Association, Mark Andrews, and others. The enclosed package is that compilation and taken in its entirety, it would seem that we, as a group, feel as if we’re the smartest people in the room and that FMCSA, the Motor Carrier Safety Advisory Committee, CVSA, and all of the Safety groups (PATT, CRASH, MADD, Public Citizen, etal) haven’t a clue with their faulty rationales reflected in the HOS, CSA, and actions proposed and/or implemented by the agency or mandated by Congress. We appear on the face of this submission to be a total contrarian group opposed to everything. Nothing could be further from the truth.

This package comes across this way because of one simple fact:

99% of the “for-hire” carriers are not in the policy making loop and all policy, regs, and laws are greatly influenced, written, or submitted by the 1% of “for-hire” carriers who have for decades promoted the erroneous factoid that owner-operators and small carriers are unsafe with the corollary that large mega-carriers who spend millions, are inherently safer. This myth has been drummed into the safety establishment for almost 50 years resulting in the huge disconnect between safety and compliance, the inexcusable lacking of CSA and SMS methodology, and the illogical shortcomings of the HOS. All symptomatic of the mind set and faulty premises regarding big trucks and safety.

No longer should we quietly accept Draconian demands that come down from inside the belt-way with regs, guidance, mandates, and laws that reek of regulation without representation. Strictures that are passed primarily to harass the small, weak, and unrepresented at the competitive whim of monopolistic, mega fleets.

  • Take a look at the make-up of the Motor Carrier Safety Advisory Committee. With the exception of Todd Spencer, no one represents small truckers and 6 members come from so-called safety groups (people who have had relatives die in a large truck accident), four or five from enforcement, with the remainder being unions, the insurance community, and big trucking.
  • Where does CVSA get its authority, funding, and unbridled power? It’s an ad-hoc, non-elected, non-appointed entity funded by the tax payers with little or no accountability.
  • When will someone hold the agency, Virginia Tech University, or the so-called Academy of Scientists accountable for their constant rubber-stamping of anything the agency wants to prove from one of its “studies”. Over and over the lack of sound science has been pointed out and results have been predictably unsupportable. Some of the more recent absurdities include the finding that CSA is “salvageable” with a larger and broader set of data, that lacking conclusive cost/benefit analysis a simple contribution of “expert opinion” will suffice, and the absolute refusal to look at Werner’s safety numbers vis-a-vis, the use of ELD’s prior to a mandate, and then, from their own study claiming the mandate would save 17 lives, a number far below any logical statistical standard deviation.

There are many more examples that were fortunately thwarted before passage, such as mandated speed limiters, increased insurance minimums, the sleep apnea debacle, the certified medical examiners registry, the unending attack on the owner/operator business model, and the idea that non-rated carriers should be treated as somehow deficient just because the agency couldn’t get around to rating them. Some really smart guy even made the comment that these “dastardly small carriers just weren’t having enough accidents to be measured.”

All of this said, NASTC would like to be on record (as we’ve stated many times) that we need to seriously consider the desk-top audit biennial rating for all carriers and the fixing of HOS as far as flexibility is concerned, as top priorities, consider driver turn-over as a serious safety issue, and for goodness sake put some equity small vs. large in the entire policy-making and enforcement rationale. Over time, many of the problems cited will be diminished to a workable level.

Sincerely,

david owen
David Owen

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Alice in Wonderland-style Truck “Safety” Regs

Alice in Wonderland-style Truck “Safety” Regs

An interesting Blog from James Edwards, NASTC's Washington Contact.   A Line of Sight - Sunday, March 04, 2012 By James R. Edwards Jr., Contributing Editor             The so-called Compliance Safety Accountability program out of the U.S. Department of Transportation makes Alice’s experiences in Wonderland look reasonable.  CSA amounts to a bureaucratic end run around the legally required rulemaking requirements, an arbitrary and subjective way to re-regulate a deregulated industry, and a disruption to the supply chain in ways that will have substantial effects on consumers and the shipping public.             A little background:  CSA uses roadside inspection data to rank commercial motor carriers in seven “BASIC” safety categories.  BASICs include things like “vehicle maintenance,” “driver fitness,” and “unsafe driving.”  A creation of the Federal Motor Carrier Safety Administration, CSA ranks the truck companies against each other in each of the BASICs (five of which are publicized on the Internet).             CSA’s Safety Measurement System assigns scores in each BASIC to a carrier.  Rated carriers are then compared against their “peers” within each BASIC.  A percentile ranking in a category supposedly shows where a carrier stacks up against other motor carriers.  But it’s an ever-changing set of peers. FMCSA sets an arbitrary percentile level for each BASIC that some refer to as “limbo bars.”  Carriers whose BASIC score crosses the limbo bar gets branded on the CSA website with an “alert” — a golden triangle with an exclamation mark. The agency created CSA to replace its precursor, SafeStat.  No doubt SafeStat wasn’t perfect.  But SafeStat scores remained unpublicized.  They gave agency officers an internal tool for determining what interventions were appropriate for certain carriers that might have some challenging safety area.  If CSA were only a newer, internal tool for the agency to do its job, that would be tolerable.  But the FMCSA has put CSA scores out there in public.  The agency has even been pushing shippers and brokers to rely on CSA scores in choosing freight haulers. But CSA has real problems.  And it’s causing turmoil in the industry.  Perfectly safe carriers are losing business with established clients because of CSA-spurred fears.  How CSA got here reveals a lot about this imperfect system and its harmful consequences. First, CSA was rolled out never having followed legal requirements designed to protect against rogue rulemaking.  FMCSA developed CSA itself, without any clear statutory authority from Congress to do so.  The agency claims it can do this under its general authority.  CSA was field-tested in a handful of states, where indications were that it improved upon SafeStat, but had problems.  The University of Michigan produced a study at FMCSA’s request assessing CSA.  The study apparently never underwent any kind of peer review and was never published in any reputable academic journal.  Instead, FMCSA kept the UM study secret until just a few months ago — releasing it only after CSA had been made public and in use.  The study essentially concluded that CSA was better than SafeStat. In December 2010, FMCSA moved forward with what was then called Comprehensive Safety Analysis 2010, putting CSA ratings on the Internet and promoting them as new and improved and ready for the shipping public’s usage. FMCSA never afforded industry or the public the due process required by the Administrative Procedure Act.  In order to make such a substantial change in regulation, the APA lays out requirements, such as giving notice of proposed rulemaking, seeking public comment, etc.  Federal laws, including the Paperwork Reduction Act and the Regulatory Flexibility Act, require agencies to take into account the regulatory impact of its proposed rules on private industry, especially small businesses (which make up most of the trucking sector).  The Data Quality Act requires peer review, which CSA lacks.  In FMCSA’s case, the agency is constrained to follow the National Transportation Policy, which is set in law.  NTP requires the agencies of DOT to ensure that every rule and regulation balances safety, efficiency and competition.  In CSA’s case, none of this ever occurred. Second, CSA’s arbitrary nature and foundation of sand really appear when you look into the facts.  The agency only has enough roadside inspection data to rate 92,000 of the 770,000 federally regulated motor carriers in even one BASIC.  More than half of the 12 percent of the industry that’s rated is over the agency’s arbitrary trigger level that saddles a carrier with an “alert” in at least one CSA BASIC. In many instances, what data CSA uses has little, if anything, to do with actual safety.  For example, the “driver fitness” BASIC only rates 3.5 percent of the industry.  Most points in this category are assigned for drivers not having their medical cards on them at an inspection, not for driving with some disqualifying medical condition.  One carrier crossed the limbo bar because of a driver operating his vehicle with a suspended driver’s license.  His license was suspended for failure to pay child support. In the “vehicle maintenance” BASIC, more than half of the CSA points come from trailer lights burning out, brake adjustments and tire tread depth.  None of these factors has a proven correlation with safe vehicle operation.  In the “unsafe driver” BASIC, most CSA points accrue from truck drivers getting speed warnings and tickets.  Geographic bias tilts the playing field, though, because about half of such speed-related citations are issued in just five Midwestern states.  Their “probable cause” state laws mean police there must issue some citation in order to conduct roadside inspections.  Thus, Indiana wrote more than 53 percent of all the speed warnings truckers received in 2011 for allegedly driving 1-5 miles per hour over the speed limit.  Much of what comprises the “fatigued driver” BASIC is really logbook, paperwork violations — “form and manner” errors — where drivers didn’t strictly comply with the hours-of-service diktats that only a bureaucrat could love. And consider that when inspectors find nothing to mark down a driver or truck for, most inspectors refuse to issue a clean report.  Thus, the data that constitute CSA scores are virtually always negative with little positive data to give balance.  Further, because CSA ratings use subjective, faulty methods and incomplete, biased data, carriers that pass FMCSA’s safety fitness audits, which are objective, with flying colors may well have BASICs in which they are under “alert.”  And the subjective nature of the system makes it where carrier BASIC scores can swing wildly.  One carrier reportedly saw its “unsafe driving” BASIC whipsaw from 47 percent to 89 percent the same day.  Also, even if a carrier fires a driver who’s a safety risk, such actions won’t reflect in its CSA scores for many months. In other words, fit and safe carriers don’t control their own destiny under CSA.  They can watch their BASICs flitter all over the place but have no effective or fair recourse to get their scores settled in the safe zone.  That’s because CSA grades carrier safety like Dancing With the Stars grades dancers.  No matter how well everyone may dance, at the end of the night, somebody’s going home.  Only in the case of misbranded motor carriers, it means the arbitrary destruction of businesses, jobs, and freight capacity. Salt in the wounds that CSA is inflicting comes from reality checks that the FMCSA ignores.  On the objective criteria of accidents per million miles and accidents per power unit (tractor that pulls the trailer), Wells Fargo scrutinized CSA.  This objective assessor found little or no connection between a carrier’s CSA BASICs for “unsafe driving,” “fatigued driving” or “driver fitness” and accidents per million miles driven or accidents per power unit.  Wells Fargo concluded that CSA scores are “misleading.”   More salt-grinding comes from the absolute fact that accidents and deaths involving commercial motor vehicles keep falling to historic lows.  DOT’s own data show that, objectively looking at safety, the number of accidents and fatalities per million miles driven have steadily dipped to record levels. Also, FMCSA’s advisory committee found fault with CSA.  Its members couldn’t say with any confidence that CSA scores relate to carrier crash probability.  This group determined that the agency needs more data to make sure SMS methodology employs science instead of intuition or experts’ opinions. Third, CSA is hurting the industry.  Trucking companies are getting tarred by an unproven, subjective system at a time the industry has achieved some of the safest records ever.  Ultimately, what hurts trucking and shipping hurts consumers, because so much of our economy relies on the distribution system of shippers, brokers, carriers, logistics partners, expediters, and truckers.  Trucks play a central role in getting groceries to your local grocery shelves, medicine to your pharmacy, furniture to your department store, etc. A survey of shippers by Morgan Stanley found 55 percent of shippers saying they won’t use a carrier with even one CSA “alert.”  The FMCSA website now states that carriers not rated or with an “alert” might be considered a safety risk.  This despite the fact the agency is well aware of CSA’s shortcomings and the concerns industry has raised. The Department of Defense has begun relying on CSA, and long-time, safe carriers are losing business hauling goods for DOD.  As a number of shippers and brokers, including large retailers, factor CSA into their carrier selection, they are opening themselves up to legal liability.  Shippers and brokers that use CSA as part of their own, ad hoc selection criteria now face vicarious liability and negligent selection lawsuits.  In other words, rather than keeping the onus on the agency to be the sole determiner of carrier fitness, the shipping public exposes itself to liability lawsuits under state law.  It should be enough for the shipping public to compete carriers on rates, routes and services.  Safety should not become a competitive matter in this picture.  It becoming such subjects the shipping public to liability. This scenario with CSA is much like consumers being forced to do their own inspections of jet airplanes, pilots and air carriers to determine if they are safe enough to fly on, rather than have confidence in the Federal Aviation Administration’s determination that an airline is a fit air carrier. In conclusion, as CSA blackballs perfectly safe and fit motor carriers, thousands of companies, especially small businesses, lose business from a frightened shipping public.  This risks loss of jobs at trucking companies and brokerages.  The loss of capacity will lead to higher freight rates.  Competition suffers.  All this pushes consumer prices higher.  It could force a tenth of all truck drivers out of the driver pool, at a time when the trucking industry is hiring.  Meanwhile, plaintiffs’ lawyers smell blood and launch new rounds of liability suits.             This isn’t a situation that ends pretty.  While Congress looks at transportation reauthorization, it should block FMCSA from publicizing CSA scores.  It should require FMCSA to fulfill its legal requirements of putting CSA through the complete rulemaking process.  Further, Congress should require the agency to use only objective measures to assess carrier safety, making absolutely demonstrable correlation of any safety measurement with carrier accidents and fatalities per million miles driven the only acceptable standard.  It should force FMCSA to own up to its responsibility as the sole determiner of carrier safety fitness.  And Congress should give federal preemption to protect anyone in the industry who relies on the agency’s carrier fitness determination for carrier selection.  That would save jobs, promote the economy and restore certainty to the shipping and trucking community.

EOBR’s: THE END OF BIPARTISAN REGULATIONS

EOBR’s: THE END OF BIPARTISAN REGULATIONS

Electronic onboard recording devices are an expensive, intrusive, and mostly unnecessary regulatory device that FMCSA wants to mandate on all commercial vehicles. Their argument is that this mandate will somehow improve SAFETY, i.e., a reduction of crashes, injuries, and fatalities in large truck crashes in the U. S. This argument continues in the face of the decade-long Werner experiment with EOBR’s that seemed to have a negative impact on crashes, injuries, and fatalities, rather than a positive one. EOBR’s started out in Western Europe years ago as a simple tachograph that helped government collect road taxes from truckers. Its original idea certainly had nothing to do with SAFETY, but much to do with money. That hasn’t changed much on this side of the Atlantic with this mandate. Money is the ultimate motivator behind mandated EOBR’s. Where is the money? Global Position Satellites (GPS) entered the trucking industry some twenty five years ago with Qualcomm leading the parade. The boxes were around $3,300.00 per unit and the monthly fee ran around $60.00 to $90.00 per power unit per month. Larger companies flocked to this technology primarily to mitigate the logistical nightmare created by extremely high driver turnover rates and the fact that a certain percentage of their drivers could not be trusted to tell the truth about their respective locations. There were certainly other benefits for GPS tracking that included ease of communication between driver and dispatch, fewer check calls, the ability for one dispatcher to handle more trucks, loads, and drivers, fuel tax calculations, asset management, and to use as a valuable marketing tool to sophisticated shippers who wanted to track their shipments. The down-side to this technology was that good drivers resented the implication that they could not be trusted and that “Big Brother” was always tracking their movements.   In the early years, I think it’s fair to say that GPS technology had a negative effect on many companies’ already huge driver turnover problems. Besides that, for small companies and independent owner-operators, it was too expensive and thus, not an option. Regulators and auditors love GPS because it saves them time and money at audits. Technology has since advanced the practicality for GPS usage and pricing is now available for less than half of the early Qualcomm pricing. Turning existing GPS systems into EOBR’s will once again increase drastically the cost per truck to include electronic logs. And basically, mandated EOBR’s will not be a major additional financial cost for the mega-fleets but for small fleets and independent contractors, it will be a significant burden and in most cases, with little or no return on investment. Speaking of money, how will the states, counties, and municipalities finance the cost of equipping all of their cruisers with the capability of pulling log data from trucks into the appropriate government system and transmitting that from the roadside? Speaking of money, if the EOBR becomes dysfunctional, is the truck then “out-of-service” on the side of the road? Speaking of money, how does FMCSA intend to train sheriff deputies, highway patrolmen, and any others who are being asked to make determinations and interpretations of federal regulations on the side of the road? Is there to be any standardization of procedures or interpretations or will we continue to see widespread confusion on inspections that lead to hundreds of mistakes made road side that immediately affect the safety status of companies and drivers without due process, probable cause, or any functioning appeal process? The cry for mandated EOBR’s is based on a false premise that all trucking companies and all drivers push the hours of service rules and cheat on their logs. If this premise were true, why are only 2.9% of companies audited given an UNSATISFACTORY rating? In 2011 there were 10,964 audits and 323 unsatisfactory ratings issued. FMCSA’s original plan was to mandate EOBR’s for only companies with extreme and chronic log falsification tendencies, the so called “BAD ACTORS.” This was however, devised prior to CSA which brands 35% of all carriers in the database as having “Driver Fatigue” issues and/or “unsafe driving issues” all of the time. The true figure is closer to 3-4% which would identify mandated EOBR’s as an over kill solution to a negligible problem. This is in fact the case. Mandated EOBR’s is merely a compliance tool that will have little positive effect on safety numbers at a huge cost to everyone from the driver down to the consumer. Who benefits from mandated EOBR’s? The mega fleets will benefit most. Since most of them already have the technology in their trucks, the cost for EOBR’s will be minimal. Once EOBR’s are mandated for everyone, they’ll be able to retain more drivers because leaving one company with EOBR’s for another company without them, will not be an option any longer. The brunt of the added costs will fall on their competitors, the small companies and independent contractors. This is the sole reason why The American Trucking Association who is politically and financially dominated by the mega-fleets, supports a proposal that is ultimately detrimental to competition and detrimental to 95% of the trucking companies in America, the small fleets and independent contractors. This also is the primary reason why OOIDA, NASTC, and The National Federation of Independent Businesses are the only three organizations that have publically opposed mandated EOBR’s. OOIDA is to be applauded for bringing FMCSA to court challenging the mandated use of EOBR’s. Though there were many logical disqualifying reasons, the court did not look past the driver harassment issue and set aside FMCSA’s attempt to mandate. The agency has promised to address the court’s issue with driver harassment with a re-worded mandate. I just don’t see how they can legitimately satisfy this one issue without a bureaucratic and litigious nightmare and, speaking of money, do we form a “driver harassment board” within the agency to determine whose harassment to kick? In many respects, this ends up being an additional, disingenuous tax on American consumers, much like cap and trade. Worse than that, it is the bunny hill to the slippery slope that will allow our central government to track, tax, and control all motor vehicles in the country. This issue is much larger than anyone at present believes. I’m still convinced that the only way to eliminate all truck-related fatalities is to eliminate trucks. NOTE of CLARIFICATION: Nothing in the above should be construed as an argument against the implementation of EOBR’s in a fleet of trucks as a management tool. Our entire argument is against mandated EOBR’s for all companies. This is not an appropriate function of government or the agency nor will it positively impact safety numbers. This is one of those issues that is best left to the market place for implementation as a means to compete, not an expensive fiat misplaced on the vast majority of carriers who have no business use for the technology. David Owen President, NASTC This email address is being protected from spambots. You need JavaScript enabled to view it. 800.264.8580 615.451.0042 Fax

The Best Americans I Know

The Best Americans I Know!

The following letter was widely published in the days following 9/11. We’ve had many requests for copies of this letter over the years so we thought we’d share it with you again. In many ways, our world will never be the same since the shocking attack by terrorists on our people on September 11th.  At first we watched with disbelief as the events of the day unfolded, horrified by what we saw but still somewhat detached, as if somehow it were not quite real.  It just couldn’t be real; this couldn’t be happening to us.  As the brutal reality of the day began to settle upon us, the weight was overwhelming.  How could we bear this?  We prayed.  We cried.  We became angry.  We were overcome by a collective sadness that I have never seen in my lifetime and hope to never see again.  We listened to our leaders and waited for action.  Our nation prepares for war while we prepare our souls to endure the pain of war.  We try to carry on with our lives.  It is not easy but we must do it.  We must not give up.  Our leaders have asked us to go back to work and work hard, for it is hard work that made us the great nation we are.  Back to work we go, continuing to build the strongest nation in the history of mankind into a better, stronger nation still. If hard work is the measure of a good American then I would like to salute the best Americans I know, the American Trucker.  While many of us tried to make sense of the terrible events of September 11th, the trucks kept rolling.  Delivering the things we need to continue with our lives, our food and clothing, the raw materials to keep our factories working, and the building materials we need to continue to build our nation.  Let’s don’t forget the medical supplies and emergency relief supplies that had to be delivered to the affected areas by trucks or the gasoline that we just can’t seem to live without.  Ask yourself this one question, “What kind of shape would this country be in if the trucks took a week off?” Thankfully they did not stop.  Because even though the vast majority of the country doesn’t seem to think highly of trucks or truckers, the truckers know how important the job they do is to America.  Can you imagine what life without them would be like? So while many of us gathered with our families and co-workers to watch endless hours of news and try to figure out what to do next, the trucks kept rolling.  Dealing with the same emotions with which we all struggled, drivers set it aside, climbed back up into their trucks and kept America moving.  They know how important it is.  I know how important it is.  I wish all Americans realized how important it is.  Atlas may hold up the world, but America rests on eighteen wheels and the square shoulders of the Best Americans I know, America’s Truckers. I salute you all, Buster Anderson Vice President, NASTC P.S.   Thanks for doing your part to keep America moving.

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joey harter   Joey Harter
Junior Programmer
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gabe castro   Gabe Castro
Director Programming & Development
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varun sharma   Varun Sharma
Senior Programmer
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