Given widespread furor over “chameleon carriers” of late, let’s take a moment to breathe a bit, to think, and make sure we as an industry don’t add ammunition to what seems like a rhetorical "circular firing squad" forming around the current Federal Motor Carrier Safety Administration.
Looking back over history, both FMCSA and the broader Department of Transportation deserve some of the blame for all the current mess in credentialing (both for registered carriers as well as CDL holders), yet we need to make sure the large majority of that blame is directed at the real culprits -- the networks perpetrating frauds on trucking companies and drivers.
That is, not the members of the National Association of Small Trucking Companies that I represent -- legitimate small, full-truckload carriers and owner-operators.
I’ve seen it before, over time as the blame game is played by all the groups competing for attention: small trucking takes regulatory and rhetorical fire for problems caused by a relative few, by true bad actors.
The key to failure is to try to please everybody. I’m not sure to whom credit is due for this saying, but I’ve used it more than a few times over the years.
I recall feeling real empathy with former FMCSA Administrator Anne Ferro (2009-’14) in her failing efforts to satisfy the dozen or so factions firing at her back then, all of whom held greatly differing opinions concerning the hours of service and then-proposed mandate for electronic logging devices, knowing pleasing all was impossible.
Congress got involved at the time and did what influential lobbies among big trucking and enforcement seemed to want, the proverbial “path of least resistance” -- they didn’t give FMCSA much leeway to do anything other than mandate ELDs for most all trucking companies.
Along the way, small fleets and owner-operators caught fire across the circle, labeled as unsafe hours cheats.
We’ve had 15 years of angst surrounding the ELD mandate as a result.
The current debacle of backend ELD manipulation and cheating, pressuring drivers to run over hours was foreseeable, and should have never happened -- the mandate itself was unnecessary and costly, without safety benefit. The agency’s writing of the ELD rules a decade ago proceeded with no real thought as to the wisdom (lack thereof, really) in allowing manufacturers to self-certify their various and sundry devices.
What the current FMCSA has done to bolster ELD vetting is certainly laudable.
Some would argue the past lack of oversight has not only not saved lives, but cost them.
[Related: Prime Route, a Super Ego chameleon fleet, accused of ELD cheating with video evidence]
For all our past mistakes and the problems of the present, I for one remain hopeful and optimistic, truly encouraged, for I think our current FMCSA Administrator might be the first in some time that to a large degree truly understands, at the very least appreciates, what it is we do for the country.
There's plenty blame to throw around for setting the stage for the current mess of chameleon networks, freight bad actors, and the proliferation over years of poor CDL training and non-domiciled CDL issuance to non-citizens:
- The abject failure of city, state and federal law enforcement to reel in freight fraud of all kinds. Until there are real consequences for bad actors, the many problems in that huge bucket will just persist.
- Too-common lack of input from industry (company owners and drivers) in regulatory processes. Our association certainly takes opportunity to make our concerns heard, but more could be done so that the public is engaged out in the open. Efforts of the current FMCSA have been encouraging so far. For many years, though, policy felt farmed out to usual suspects like the American Trucking Associations and Commercial Vehicle Safety Alliance (CVSA), among other groups with big pockets and close government ties. Think, for instance, about the CSA scoring system and how it came to be -- it was instituted outside of formal rulemaking, nearly entirely away from the public eye, in my view with disregard for the Administrative Procedure Act’s requirement for public deliberation on rules of significance.
- The failure of our elected leaders to address tort reform, but also the industry’s insurance providers falling down on their job to defend fraudulent claims directed at trucking companies, big or small, and court cases that result all too often in unjustified “nuclear verdicts.”
[Related: Super Ego 'chameleon' network includes some of the most dangerous fleets]
Add in lax border enforcement, disregard of the Supremacy Clause in the U.S. Constitution and deterioration of the rule of law in general, particularly in so-called “sanctuary” cities and states, and, though there’s a whole lot more to it, we get the mess we’re in.
FMCSA’s administrator position has been used as a political football over the years, nearly always featuring a rep from enforcement or the regulatory side of trucking, adversarial toward industry naturally, their careers built policing it.
Our current administrator would seem not much different in that respect: he's a former trooper. Yet, again, I’m truly heartened by what I’ve seen, from all the agency’s done to limit and strengthen vetting of non-citizen CDL credentials to cleanups in that self-certified ELD registry and the one for CDL schools themselves.
Derek Barrs has promised to address more, too, that is festering in the mess we find ourselves in. A new registration system is right around the corner, long overdue, that stands to keep more of the foxes out of henhouse.
Maybe we’re on the verge of making an actual, positive difference.
The author of this commentary is the President of the National Association of Small Trucking Companies, David Owen. Read more from Owen via this link.
