ASECTT v. FMCSA – A Win, Lose or Draw?

 “It is time for the industry as a whole to put aside parochial interests and send clear and unified messages to Congress that broad legislation is needed.  Until then, ASECTT v. FMCSA must be seen as an important battle in a longer war, the results of which will have broad implications on competition, carrier choice, federalism and preemption.”

On June 17, 2014, the D.C. Court of Appeals issued its decision in ASECTT v. FMCSA.  At issue was whether the FMCSA’s guidance issued in May of 2012 amounted to a new rule directing shippers and brokers to use SMS methodology in credentialing carriers.  Petitioners’ arguments were supported by declarations showing that SMS methodology does not accurately measure carrier safety performance and that the guidance amounted to a new rule requiring shippers and brokers to use SMS methodology to bar from use thousands of carriers which the agency itself has found are fit to operate on the nation’s roadways.

The court ignored the effect the agency’s website publication and on procedural grounds denied petitioners’ relief finding that the agency’s guidance did not amount to a new rule for which relief could be granted. The press largely covered the court’s decision as a loss.  To be sure, the court which was not “astonished” by the agency’s action and missed an excellent opportunity to rein in a clear bureaucratic overreach of the type that has come to characterize the current administration and its agency.

Yet, was the decision a resounding defeat for petitioners as some pundits have concluded?

A close reading of the decision shows that the agency’s defense was based upon the argument, which the court accepted, that the agency did not intend its guidance as a new rule and the agency argued that its website advice and publication of SMS methodology does not change the agency’s duty to determine carrier safety fitness, nor does it trump the settlement in NASTC et al. v. FMCSA to which the agency agreed when suit was filed after the agency announced SMS scores would be made public.

Thus, in finding that the petitioners lacked the basis to sue because the “guidance” did not constitute a new rule, the court may have allayed petitioners’ and the industry’s worst fears.  That is, the agency through website guidance and a highly orchestrated publicity campaign, could abdicate its responsibility for determining carrier fitness, transferring that duty to shippers and brokers under peril of negligent selection liability.

Clearly, ASECTT v. FMCSA was not a resounding victory, but I believe it was not a defeat.

It drew clearly the battle lines between rulemaking and agency advocacy, forcing the Agency into a “rope-a-dope” posture of defending its website publications as having no legal effect in trumping existing regulations or rules.

In the meantime, after it was sued, the agency has buried the complained of “guidance document” and in shuffling its website, largely refrained from further pronouncements which could provide fodder for an activist plaintiff bar intent on using SMS methodology to sue upstream shippers and brokers for negligent selection in every fatality accident.

Hopefully ASECTT v. FMCSA will be seen in the light of history as just a draw – a necessary battle in a longer war.

In the two years it took to litigate this case, the agency’s industry support for SMS methodology has deteriorated.  In December 2013 the ATA publicly reversed its policy and issued a statement condemning the accuracy of SMS methodology.  It has seen the light and urges that scores be removed from public view.  OOIDA has issued a call for the administrator to step down because the website is being used for lobbying, not carrying out the agency’s existing regulatory duties.  The TIA, whose members are the object of “broker busting” classes by plaintiff’s bar have called for legislation to remove SMS methodology as an issue in tort suits.

Finally, the Inspector General and GAO studies of SMS methodology which were commissioned by House committees at the request of ASECTT and others have been completed. These independent studies confirm the mounting criticism of all who have studied SMS methodology.  It is systemically flawed and lacks sufficient data to statistically measure small carriers which make up the vast majority of carriers the FMCSA regulates.

It now seems doubtful that the agency can deliver a safety fitness determination rulemaking involving SMS methodology any time soon.  As a result of building pressure, the battlefront should move from the agency and the court to congressional oversight and regulation reining in the FMCSA.Congress needs to confirm, once and for all, that the Commerce Clause applies.  The sgency’s ultimate safety fitness determination is the sole standard for determining whether a carrier is fit to use.  The sgency’s finding preempts and trumps the effort by plaintiff’s bar to hold the shipping public liable for the negligent acts or omissions of authorized interstate carriers.

It is time for the industry as a whole to put aside parochial interests and send clear and unified messages to Congress that broad legislation is needed.  Until then, ASECTT v. FMCSA must be seen as an important battle in a longer war, the results of which will have broad implications on competition, carrier choice, federalism and preemption.

I can only hope that the cavalry is on the hill.

P.S. — I am happy to report that the surety involved in the costly California interpleader of a $75,000 broker’s bond has dismissed that action to be re-filed in Federal Court where no filing fee for claimants is required.  Also, a coalition of responsible surety and bond beneficiaries will be pressing the FMCSA to implement the simplified procedures envisioned by the act for distributing future bond payments to claimants.

SeatonHenry E. Seaton, Esq., Seaton & Husk, LP
2240 Gallows Road, Vienna, VA 22182
Tel: 703-573-0700 | Fax: 703-573-9786
heseaton@aol.com
transportationlaw.net

Who is on your train?

“Any culture, whether it is one of innovation or anything else, is driven by senior management.”

Train

With all of the industry alphabet groups advocating for our best interests and best practices, we often forget that the best and most effective advocates are with us right now; in other words, the people in our organization. The people in your organization, through their efforts, demeanor and energy level, are (or at least should be) advancing your organization’s best interest. Of course, best interest is also those things that help contribute to the company’s long-term viability; things like sustainable innovation, etc.

In my work helping companies drive innovation and identify innovators, I am frequently astounded at how many organizations fail to identify innovators already on the team and fail to identify innovators when screening new applicants. Either these organizations do not want innovators or they don’t appreciate the importance of continuous, sustainable innovation.

While I do believe that there a select few organizations that truly don’t want innovation and/or innovators on their team (aka the way we do it now, is the way we did it before and the way that we’re going to continue doing it), I refuse to believe that most companies don’t want innovation and the innovators that drive them. So the first theory is out.

The second theory is also suspect. I believe every company wants to find that next great thing, process or idea and fully exploit it in the marketplace. As such, these companies appreciate the value of innovation but yet, still struggle to consistently and sustainably innovate. Nowhere is this more evident than in the old-line industries (i.e. commodities, logistics [especially trucking], etc.).

The failure in innovation execution is not with intent, rather with culture and the train drivers.

How does your organization stand up? Ask yourself and of your company, the following questions:

Does your organization have and robustly support a culture of innovation? Without it, there is no consistency or sustainability to any innovations that happen to occur.

Does it allow for risk when pursuing initiatives? There is no such thing as an initiative without inherent risk. Where does your company “draw-the-line” when it comes to risk management in new and potential initiatives? Are the only initiatives allowed forward, the ones that have been vetted extensively in an effort to drive out all risk?

Does it punish risk takers when their initiatives fail? This is the Achilles heel for most companies. They are willing to allow people to pursue initiatives, but if it fails, so do the risk takers. Instead of learning from the mistakes and proceeding forward, the risk takers are duly punished and flogged (many times publicly) for daring to take the risk. Are these people or those around them likely to take any future risk?

Does it have senior level support? Any culture, whether it is one of innovation or anything else, is driven by senior management. If they are not buying into it, any innovation that happens will be despite the culture and not because of it. In any event, it will not be consistent and likely not sustainable. As an ancillary point, a culture of innovation driven by senior management also recognizes that the innovation is likely to originate from outside the executive suite. As such, they provide the impetus, framework, support and resources for it to germinate and flourish at all levels.

Does it aggressively identify and pursue innovators? The standard interviewing questions and assessments likely do not reliably identify innovators and those with innovative inclination and potential. And simply asking point-blank about a candidate’s innovative ability will either produce an “I want to appear like one” answer or simply not answer the question in a satisfactory way. If your company wants innovators, it all starts with identification and then aggressive pursuit. How does your company identify innovators?

The most effective advocacy results from engagement. The most effective engagement comes from being part of an organization that is constantly and sustainably innovating. If that’s not your company, then you should be asking: Why aren’t we innovating? What do we need to do to get there? Where do we find and how do we identify the innovators already on our team train and outside candidates?

Author:
Moe Glenner provides corporate entrepreneurial workshops and consulting to companies seeking greater innovation with both their processes and products. He can be reached at Moe@MoeGlenner.com and on Twitter: @MoeGlenner.

MoeGlenner

FTR and Internet Truckstop Partner

FTR and Internet Truckstop Partner to Provide Regional Trucking Data

Company leaders discuss new strategic alliance between FTR and Internet Truckstop at FTR Transportation Conference 2014. Pictured left to right, Eric Starks, President of FTR, Scott Moscrip, Founder & CEO of Internet Truckstop, Brent Hutto, CMO of Internet Truckstop, Larry Gross, Senior Partner with FTR, Noel Perry, Senior Partner with FTR,

Company leaders discuss new strategic alliance between FTR and Internet Truckstop at FTR Transportation Conference 2014. Pictured left to right, Eric Starks, President of FTR, Scott Moscrip, Founder & CEO of Internet Truckstop, Brent Hutto, CMO of Internet Truckstop, Larry Gross, Senior Partner with FTR, Noel Perry, Senior Partner with FTR

Indianapolis, IN (September 9, 2014) This morning, at the opening of FTR’s Annual Transportation Conference in Indianapolis, FTR and Internet Truckstop announced a new strategic industry partnership.

The new FTR and Internet Truckstop alliance will bring unprecedented market analysis and specificity for both contract and spot freight segments by region and by trailer type. Combining the millions of load transactions gathered by Internet Truckstop with the forecasting and analytical capabilities of FTR, this alliance will offer a unique picture of the current balance of supply and demand between locations. Using these new tools, carrier and shipper planners will be able to base annual forecasts on conditions for all truck types and all regions.

 

Are you the 1%?

Happy Birthday (again) to Internet Truckstop®. For more than 19 years Internet Truckstop has been working to promote, bring greater efficiencies, innovation, and some common sense to the trucking and transportation industries. As we head toward our 20th birthday we are not slowing down. Our new fourth generation technology will be coming on-line before our 20th birthday and it will continue to push the edges of what technology is capable of doing to help promote greater efficiency and better margins within the transportation industry.

In this issue we will focus a lot on advocacy which seems like a strange topic as our real purpose is to help move goods efficiently throughout North America. As I wondered why advocacy would be important in our industry, it struck me that it is important because you are all part of the 1 percent. You should stand up and cheer because being part of the 1 percent makes you rare and special. Of course, because you are rare and special that also makes you an easy target of the 99 percent, which is typically bad news for you.

Because you are rare and special that also makes you an easy target of the 99 percent.

You may be asking yourself, “How am I part of the 1 percent?” The answer is simple. There are 253 million cars, trucks, motorcycles and buses on the road according to the DOT (as of 2012) and there are 2.5 million heavy trucks. That makes you the 1 percent. You are the special folks out there on the road and according to the laws, rules, and regulations that are being passed, you are the cause of most of the problems that exist so you are the ones that need to be watched over and regulated the most.

Consider, for a moment, the difference between how you are treated and how the car next to you is treated. How many car owners are limited to driving 11 hours per day? Or fill out a signed written inspection of their vehicle before they start driving their cars? Or keep a log of every state line that they cross? Or register in and pay each state in which they drive their vehicle? Or take a drug test and a physical to receive their driver’s license? When was the last time you shaved or put on makeup while you were driving your truck? Why does a car need $50,000 in liability insurance but $750,000 isn’t enough for a truck? Why are trucks so regulated but cars not? It is because you are part of the 1 percent.

Having recently traveled the highways of southern California, I promise you that it is not the 270,000 trucks registered in California that are the cause of the congestion on the freeways there. When I visited, I notice the 27 MILLION cars plugging up the roads and common sense told me that they have something to do with the congestion and the poor air quality in California. So why is California passing such strict standards on the 1 percent and not doing anything with the 99 percent?

Industry advocacy is about trying to put things into perspective (common sense) for legislators and regulators on the issues and challenges the industry faces so that they can understand which laws and regulations will have the greatest effects to help them accomplish their goals. The current goal of the DOT is to eliminate truck fatalities and to make roadways safer. Accidents will happen, there is no doubt about that. I have been in three accidents in my life that were just that, accidents. Could they have been prevented? Yes, if one or two factors had been followed they most assuredly could have, but none were intentional and fortunately no one has been seriously injured in any of them. If regulators were to look at rules for the 99 percent to help increase highway safety it may be something like this—“To eliminate truck fatalities and increase safety, no cars will be allowed on state or federal highways between 8 a.m. and 5 p.m. during the week and 9 a.m. to 6 p.m. on the weekends and during those times those roads could only be used by heavy duty truck vehicles.” Think of how much safer the roads would be if the 99 percent aren’t doing their “unregulated” driving. How do you, as the 1 percent, feel about this? Would this help you drive more safely if there were fewer vehicles cutting you off? Fewer distracted 99 percent drivers on the road? If my favorite person with a sandwich in one hand, a drink in the other hand, and their head tilted to hold their phone in place wasn’t on the road driving while you were driving would you have fewer accidents and would you be a safer driver? You know you would! But will it happen? Not a chance! The 99 percent will continue to blame the 1 percent for their problems and because the 1 percent can be regulated, they will be regulated! (As a side note here, the OEM manufacturers should jump all over legislation like this because if people can’t drive their “cars” on the roads at those times, they will all go out and buy heavy trucks and drive them instead of cars so the problem really won’t go away!)

“Industry advocacy is about trying to put things into perspective for legislators on the issues and challenges the industry faces.

Now you may feel totally discouraged and wonder what can you do? First, don’t think for a minute that you are alone in this. There are many issues in many industries where these types of problems raise their ugly heads. The problem is that you are part of the 1 percent and you are going to fight for “your side” of the issue which instantly devalues your opinion of the issue in the eyes of the 99 percent. The 99 percent have no desire to be regulated or changed and since the legislators and regulators are almost always part of the 99 percent it makes you an easy target. You can group your opinions together by joining an industry association, most of whom have advocacy groups. Most legislators and regulators will only seriously listen to major associations as they contribute and help raise funds for those friendly to their causes but remember it is the 99 percent that elect them and they will not do anything to upset them.

As I have talked to people I have heard them say things like, “They shouldn’t let trucks on the roads at all. That would take care of the problem.” I always laugh out loud when I hear things like that and I try to explain to them that if trucks weren’t on the road, they would have died hungry, naked, homeless, and “possessionless” a long time ago! We have one of the greatest transportation systems in the world and it is one of the reasons why we have the richest country in the world. Year round we have access to all sorts of foods and goods that never would have been possible without our current transportation systems. We have these things because of you—the 1 percent. Thank you for doing your best to follow and endure the regulations—which are frequently made without a lot of common sense—that are placed on you. But more especially, thank you for all that you do in making this country great! You are the 1 percent!

There have been a lot of changes in the past 19 years. There have been bubbles, tragedies, and a more and more hostile business environment. Yet through all of this we have seen our industry continue to grow and expand.

I have recently traveled to many different parts of the world, and I can honestly say that the North American trucking industry is one of the most advanced, coordinated, and by far the biggest transportation network in the world. We may not be as flashy in some ways but when it comes to moving goods from north to south, east to west we have a really good system.

According to the latest DOT information (2012), there are approximately more than 253 million cars, trucks, buses and motor cycles on the road (http://www.fhwa.dot.gov/policyinformation/statistics/2012/mv1.cfm) of that 253 million, 2.5 million of them are class 8 trucks. That is approximately 1 percent of all the vehicles on the road. When you look at regulations and the cause of all the issues on the roads, it is falling on that 1percent. So congratulations trucking industry, you are now part of the 1 percent that everyone talks about that isn’t paying its fair share. When we talk about congestion on the roads and the poor air quality, trucks are an easy target. Take the California Air Resource Board for example. Do you really think the 270,595 trucks are the cause of the congestion on California roadways? Or do the 4.3 million pickups, 5.7 million SUVs, or the 13.2 million cars plus the 4.3 million miscellaneous other vehicles have something to do with it? How is cleaning up the 1 percent the priority when the 99 percent are the root cause?

The 1 percent are an easy target for the 99 percent and thus a politically good target to attack because what can the 1 percent do when the 99 percent don’t want to change themselves. A recent high profile truck crash has been great political fodder for enhancing safety on public roadways. According to IIHS.org, there were 3,514 fatalities involving trucks in 2012. Way more than there should be, but accidents will happen. More people died from not wearing their seat belts, speeding, or alcohol as a factor than in large truck related accidents.

Driver deaths per million registered passenger vehicles 1-3 years old, 2012

Driver deaths per million registered passenger vehicles 1-3 years old, 2012

So why all the attention on the 1 percent? Have people given a second thought to what the does 1 percent do for them? Practically everything we have in North America moves by truck at some point in its supply chain. From the food we eat, to the fuel that runs our vehicles, to the postal service that collects our taxes for the IRS, almost everything moves by truck. What would happen if the 99 percent had their way? There would be no trucks on the road because that would eliminate all the congestion and pollution? What is the satisfaction point or the balance that can be achieved in the public’s mind? What is the 99 percent willing to do in their driving to help eliminate crashes? I don’t know how many times I have seen a small car pull a stunt to cut in front of a truck .

As you are driving down the road you see a car swaying side to side because the driver has been driving continuously for 24 hours on his way to his home from a long business trip. A policeman notices the erratic behavior of the vehicle and pulls him over. The driver admits to being a little sleepy but assures the officer that he has only been driving for a few hours and was bored but he is wide awake now and will be more careful in his driving. How does that compare to a truck driver in the same situation?

Author: Scott Moscrip, CEO

Football and trucking, not so different

It is no secret that the football season is upon us. Most would argue that baseball is America’s sport, but that just isn’t the case anymore. Football reigns the households (you can read for yourself here or here). The past month I have been focused on GATS (held last week in Dallas) and my fantasy football team. This began the comparison ideas of the trucking industry with football.

As I see it, we have the full field covered.

Brett FavreThe quarter back  is the play-caller and captain, much like the owner of a trucking company or brokerage. They spend hours reading the playbook and watching tape of the upcoming opponents. One of most notable quarter  back is Brett Favre, with 20 years in the NFL with 508 touch downs.

 

 

 

 

 

Beast ModeRunning backs, I would say, are the trucks themselves. In the NFL, many argue that it’s a passing game, but to me, I see it changing to be more of a running game. Running backs take the big hits, they dig deep and try to manage as many yards as possible. Marshawn Lynch is in “beast mode” 100% of the time on the field.

 

 

 

 

 

 

Jerry Rice

Wide receivers would come next and would be truckers as well, but they are the ones already out in the field ready to receive a trip home. These too, take big hits, but their yardage is already gained. Jerry Rice, holds the trophy of being one of the best wide receivers in the NFL.

 

 

 

 

 

 

 

Dermontti DawsonThe center (or hiker for those who don’t follow football), is a dispatcher or back end assistant. They are going to be the ones who help protect the quarterback and give the go-ahead to move. One of the most under-rated positions, but Dermontti Dawson was a Seven Pro Bowl and was inducted to Pro Football Hall of Fame in 2012 … under-rated, my right arm.

 

 

 

 

 

 

 

 

15554972_SAThe place kicker: Who really pays attention to the kicker? For the sake of the game, let’s say this is your marketing team. Dallas Cowboys don’t lose games because of their kicker, Dan Bailey. Bailey connects the goal posts over 90% of attempted field goals.

 

 

 

 

 

new-england-patriots-offensive-lineThe offensive line: This would be the associations like ATA, OOIDA, etc., that fight and push back against the defense. Learning to lean on the associations to help, takes trust. Tom Brady is one of the most over-rated QB’s in the NFL, so we know his linemen have to be the best.

 

 

 

 

Defense: Let’s hope that for everyone’s sake that your team doesn’t have a D-Line like the Dallas Cowboys.

12th-man-seattle-seahawks-noise-record-1Your opposing side is much like the Seattle Seahawk defense (plus the 12th man), running full speed. You won’t be able to hear and they are quick to make the decision. The FMCSA and other government offices are your opposition and are stopping every play you have.

 

 

 

Needless to say, every person in the organization has a place. To make it to the Super Bowl, you will need to utilize every piece of talent, or draft for better ones in the off-season. Just remember, keep your head low and keep pushing, eventually the defense will lose some steam.

Author, Kari Massoth, Digital Marketing Specialist

Get Lost!

Get Lost!

One of the many joys of parenthood is sharing the joys of discovery with your child. With my three older children, I was not as attuned to this discovery phase. Looking back, I find it ironic that discovery and explorer Dad weren’t recognizing the joy of discovery that was present in their everyday lives. Thankfully, with my 2-year old daughter, I am right with her as she discovers the world around her.

To her, the entire world is wide open and just waiting for her to observe and experience. It doesn’t matter if it’s a run in the backyard, down the street, a trip to a farm or even walking around a room in someone else’s house. It is all new and exciting to her and in many ways, I envy her. Of course, when her discovery causes trouble (her “real” middle name) it is difficult for me to be too upset. After all, this is all part of both her discovery and her version of Intelligent Fast Failure. It takes diligent effort to guide her discoveries to accentuate the positives and minimize the negatives. After all, the last thing I would want to do is squelch her discovering.

But somehow as we grow older, the taking on of life’s responsibilities and the better understanding of risks and reciprocal actions, takes us further and further away from those unbridled discovery days. And even though I personally enjoy rafting down an unknown-to-me river, hiking on a new path or even piloting my plane to a new-to-me destination, I feel less likely to go boldly in a new direction than perhaps in years past. Perhaps this is why I relish landing at airports that I haven’t landed at yet. To me, this is discovery and exploration, albeit in a quasi-controlled environment.

I also recall a particular trip taken in the pre-GPS days (only 20 years ago) where the only directives were to travel on non-interstate type roads going in either a north or west direction. We had maps with us but they were banished to the glove compartment and not to be consulted until we decided to return home. We (my buddy Jake and I) left Chicago on a fall Monday morning and three days later found ourselves in Miles City, Montana.

Along the way, we discovered fantastic little towns with odd claims to fame (one town claimed on their welcome sign 654 people and 1 old grump), crossed over the majestic Missouri river in South Dakota, enjoyed Mount Rushmore left practically to ourselves, hiked partially up Devils Tower in Wyoming and visited Home on the Range, North Dakota. It was one of the best trips I have ever taken comparing favorably with other more exotic destinations. We never consulted any map and just took whatever road we fashioned, truly exploring and discovering the entire trip.

So here’s the challenge to recreating this discovery, albeit, without the risk of actually getting lost: First, turn off the GPS in your vehicle and don’t consult the GPS on your smart-phone (at any point in the trip you can always turn it back on to navigate home). Then set off on any road in any direction and just keep going. The trip could be an hour, a day or however long you wish to travel. The world outside of your familiarity zone beckons. What will you find and/or discover? What new or creative thoughts might be inspired as a result?

 But getting lost doesn’t have to involve a physical journey. We can get lost in a good book, while listening to music, even while dining on a great meal. All of these serve the purpose of damping the active conscious and with that, accentuating the sudden awareness of everything the subconscious has to offer.

Furthermore, all of these activities, and especially music, is likely to trigger memories and thoughts of people, places and things from the past. All of us can likely listen to a particular song and immediately be reminded of another time. Perhaps it was something or someone present when we first heard the song. Or perhaps there was a special memory of that song. We are especially attached to our songs. Our personal playlists can’t help but conjure up these warm happy memories. The resulting feelings are likely to inspire our subconscious with the resulting idea spigot turned on and running rapidly.

There is more to music than simply getting lost in the songs and memories. I started a personal experiment several years ago regarding personal theme songs. We can all probably hear a theme music/song from a television show and instantly recognize the show. Any further introduction is not necessary as we instantly recall everything we used to know about the show, its premise, actors, etc.

Using this premise, I have asked people I know the following question: If a certain music or song could play prior to your entry into a room and upon hearing the music, everyone in the room would instantly associate it with you, what would that song be? In other words, what is your personal theme song?

This question can provoke considerable thought. First, we need to honestly assess ourselves, our personalities and that special something that uniquely identifies us. Then we need to reframe that in how other people view us. Finally, we need to marry the two and find a song/music that captures that conjoined view. The answer should be obvious enough to both you and your friends/family/acquaintances so that assent is assured and no further explanation is necessary.

In other words, to answer this question, we need to undertake three distinct discoveries. These three are self-discovery, discovery of self as viewed by others, and musical discovery.

For some people, the answer will be quick and obvious. For others, the answer may be quick but not obvious. Remember, if it’s not obvious, then the discovery has not unearthed an optimal answer. The answer should require no further explanation. And for others, the answer will be neither quick nor obvious. In fact, I have still not received an answer from some of those that I have asked (was it something I said?).

In all fairness and in effort to further clarify the concept of personal theme songs, I will reveal my personal theme song. But first, let’s go through the discovery process.

I have always had an affinity to drive much faster than the posted speed limits, primarily on interstates, but sometimes even on surface streets. While I have recently significantly tempered the extent of my speeding, I still have difficulty staying at the speed limit, electing to use the unofficial tolerances (up to 8 miles per hour faster than the speed limit). In fact, in the past, I have had my driving time between Chicago and other points such as New York, Baltimore, Louisville and even San Francisco challenged as not fast enough. Being young and stupid (at the time), I took on the challenges and usually beat the previous times and without a citation.

Many of my friends have traveled with me and personally witnessed my speeding. I think it is safe to say that speeding is part of who I am and is recognized as such by my friends and family. So what song best personifies this trait? The quick and obvious answer: I Can’t Drive 55 by Sammy Hagar (CBS Records, 1983). I have as of yet to find a friend or family member that doesn’t agree that this song is me; in other words, the perfect personal theme song.

Try this one out on yourself and while asking others as well. You will be surprised at what you self-discover and discover of others.

So if you ask me how can and should we self-inspire ideas, my response would be to get lost!

Author: Moe Glenner

Giving the transportation industry a perpetual black eye

Comedian Tracy Morgan continues to be on the mend following a June 7 crash involving a Wal-Mart tractor trailer that claimed the life of one person and severely injured three others, including Morgan.

The fact the Morgan is on the mend, however, is not the news, following an Aug. 11 interview on NBC’s “Today” show with Morgan’s lawyer, Benedict P. Morelli. Morgan, along with other crash survivors Ardia Fuqua and Jeffrey Millea, filed a lawsuit in July in U.S. District Court and naming Wal-Mart as the defendant in the case, according to Morelli.  In the interview, Morelli claims Wal-Mart should have known that truck driver Kevin Roper had been away for more than 24 hours when the crash occurred.  Furthermore, Morelli claims trucks are to blame for more than 27,000 deaths each year.

“You have to understand what happens here,” Morelli said. “They know. … There are 75 deaths a day from big rigs,” he said, citing statistics from 2012.

There are two things in that statement with which I have a problem.

First, trucks are not responsible for 75 deaths each and every day in the United States.  I cannot accurately state how many people are killed in the world each day, but to say that 27,375 people die on U.S. roads each year because of a truck is ludicrous.  According to the National Highway Traffic Safety Administration, there were 3,921 deaths in 2012 that involved a truck (the most recent year that statistics are available).  That comes out to just under 11 people per day killed in an accident that involved a truck.  Let me be very clear that I believe that is too many.  Any loss of life is tragic and for someone to be killed in an accident of any kind is senseless.

But let me get to the second point that irritates me: It is very simple to step in front of a camera and spew inaccurate information and know that a majority of the people listening will accept what you are saying.  Let me present this question:  Of the accidents in 2012 that killed 3,921 people, how many were the fault of the truck and/or truck driver?

In 2013, the American Trucking Associations looked at extensive studies done by the Federal Motor Carrier Safety Administration, the National Highway Traffic Safety Administration and the University of Michigan’s Transportation Research Institute.  In studying more than 8,000 fatal truck crashes between 2007 and 2009 to determine fault, UMTRI found that cars (including cars, vans, SUVs and pickup trucks) were at fault 81 percent of the time.  FMCSA had a similar outcome to its study with 85 percent of cars being responsible for a fatal crash in 2007 and 2008, while 81 percent of cars were at fault in 2009.

The NHTSA study showed that cars were responsible for 91 percent of head-on crashes, 91 percent of opposite direction sideswipes, 71 percent of rear-end crashes and 77 percent of same direction sideswipes.

It is truly unfortunate that it is now “big news” when a truck is involved in an accident that claims the life of the truck driver, someone in another vehicle involved in the accident, a pedestrian or another innocent bystander.  But let’s be clear and accurate when reporting it.  Who was at fault?

In the accident involving Morgan, indicators show the truck driver may have been at fault.  That is, however, the statistical minority.  Studies over the past decade have shown that while fatal accidents involving trucks and cars have dramatically declined, even in the event of a fatality involving a big rig, the majority of the time, the truck driver is not at fault.

This happens mostly because drivers of smaller vehicles do not respect, nor do they understand that trucks have much less maneuverability and, because trucks generally weigh more than 20,000 pounds, they cannot stop or slow down as quickly as the smaller vehicles.

As a general rule, trucks are at fault less than 23 percent of the time.  That means about 3 out of 4 crashes are the fault of the smaller vehicle.  Instead of sensationalizing a tragic event, maybe we should report on what really happens on America’s roads instead of giving the transportation industry and perpetual black eye.

Author: Larry Hurrle, Editor IT Magazine

Trucking Capacity is Holding Higher

In line with seasonality for late July, the MDI this week halted the downward trend exhibited since early June. Trucking capacity in the market is holding much higher than in earlier months this year, and it is unlikely that the MDI will hit much above 20 during the next few months.

The ITS Market Demand Index (MDI) increased 11% to 21.12 from 19.09 the previous week.

The overall average equipment rate decreased 1% to $2.32 from $2.33 the previous week.

Fuel prices decreased slightly to $3.84 from $3.85 per gallon the previous week.

Inbound rates decreased slightly to $2.35 from $2.36 per mile the previous week. Outbound rates increased slightly to $2.27 from $2.26 per mile the previous week.

Load turnaround decreased 7% to 331 from 355 minutes the previous week.  Truck turnaround decreased 8% to 327 from 356 minutes the previous week.

 

No good deed goes unpunished

Increasing the broker’s bond to $75,000 seemed like a good idea. For too long, crooked middlemen have stolen carriers’ money and the existing broker regulations have not been enforced to require brokers to receive funds in trust and pay carriers upon receipt, so increasing the bond to $75,000 seemed like some remedial response.

In my view, the law went too far in requiring every carrier who used convenience interlining to become a broker or forwarder. Proper exceptions were created for air freight forwarders, ocean intermediaries and customs brokers when they were arranging for transportation for compensation as part of their ordinary course of business. But many do not understand the purpose and limits of those exceptions.

The Agency provided a soft landing for compliance and the cost of the bond fell well below the initial estimates, but the chaos is far from over.

The Agency has not promulgated implementing regulations for the new statute. Some people are suggesting red tape that will stifle competition and create a bureaucratic nightmare for both the Agency and the industry. Some believe new applicants should have 30 to 80 hours of training based on ill-defined “best practices” – you have got to be kidding! The law requires that at some future time every new applicant will have to have an officer with three years of experience and will be required to renew its application every three to four years. Isn’t that enough?

Now listen to this. The law sets forth a process for distributing bond proceeds. It requires the bank trustor or the surety to immediately cancel the bond, publish a notice and 60 days later distribute the entire $75,000 penal sum to valid claimants on a pro rata basis.

Yet, here comes the first one out of the box. A sizable insurance carrier in the trucking industry who should know better, files an interpleader in California state court, serves up over 75 known claimants, and requires them to show up in California to validate their claims. What is worse, the notice says every claimant has to pay a $438 filing fee to the court just to validate its claim and the surety wants its costs and attorney’s fees out of the bond proceeds!

This is not what MAP-21 intended. The burden is supposed to be on the surety or bank trustor to distribute the full bond proceeds and no carrier should have to go to California and “pay to play” to get some pennies on the dollar return. Hopefully by the time this article appears, somebody will have challenged use of this practice in light of the law and rectified this obvious abuse.

One thing is for sure – MAP-21 and the $75,000 bond is no panacea for guaranteeing that motor carriers will receive payment of their freight charges on brokered loads. Issues involving payment of freight charges and use of brokers and other intermediaries are far from settled.

 

Author: Henry Seaton

Ferro to resign from FMCSA

Federal Motor Carrier Safety Administration Chairwomen Anne Ferro announced today that she will resign her position effective Aug. 25 and will take the lead at the American Association of Motor Vehicle Administrators as president and CEO.

U.S. Transportation Secretary Anthony Foxx announced Ferro’s resignation today and expressed his appreciation for Ferro’s leadership of the FMCSA.

“Anne has been a true leader in safety throughout her time at DOT  and has become a trusted advisor and friend to me during my time as secretary,” Foxx said in a prepared statement. “Under Anne’s leadership, FMCSA has ushered in a new culture of safety into the commercial bus and trucking industries. She has made it more difficult for companies that jeopardize the public’s well-being to stay in business and easier for consumers to make informed choices when choosing a shipper or buying a bus ticket.”

During Ferro’s tenure, the FMCSA adopted the new Hours of Service rule that took effect in 2013 and mandate truckers who reach a maximum of 70 hours of driving in a week to shut down for 34 consecutive hours, including two consecutive periods of 1 a.m. to 5 a.m. The rule was largely opposed by the trucking industry.

In fact, just weeks ago, the Owner-Operator Independent Drivers Association (OOIDA) called for Ferro’s resignation, stating Ferro had a genuine bias against truckers and the trucking industry as a whole. The call for her resignation stemmed from a blog in which OOIDA said Ferro showed she had no interest in the future of the trucking industry. OOIDA represents the interests of professional truck drivers and small trucking companies.

Ferro was appointed to lead the FMCSA in 2009 by President Barack Obama. She became the longest serving administrator of FMCSA and only the fourth to lead the agency since its formation in 1999.

In her letter of resignation, Ferro said it had been a privilege to work with colleagues to advance FMCSA’s life saving mission.

“While the opportunity to assume this position at AAMVA is another personal dream come true, no job can match the immense honor I have had serving President Obama and Secretaries Foxx and LaHood with you — the dedicated individual who persevere every day to make safe transportation a reality for all of us,” Ferro said.

Prior to her position with FMCSA, Ferro was president at CEO of the Maryland Motor Truck Association and Maryland’s Motor Vehicle Administrator before that. She has earned degrees at St. John’s College in Maryland and from the University of Maryland.

“On behalf of the entire Department and Administration, I want to thank Anne for her extraordinary tenure and service and wish her and her family well as she embarks on the next chapter of her career,” Foxx said.