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Todd Dills

Roundup: A source of supposed DOT ‘bot attack’; The ‘fatbergs’ clogging the regs swamp

| November 21, 2017

Transportation attorney Henry Seaton, last Thursday at the annual meeting of the National Association of Small Trucking Companies here in Nashville, said that though much of the regulatory attention of late has been on the impending electronic logging device mandate, a broad reform agenda instituted by the Trump administration offers opportunity. Drivers and carriers would do well to engage on a myriad of regs issues clogging the transportation system like the massive “fatberg” recently ID’ed in the London sewer.

It’s an apt metaphor, no doubt. And in addition to ongoing angst over the ELD rule, as Seaton and members of the broad ASECTT coalition have hammered on for years, chief among problems might well be what he views as the Federal Motor Carrier Safety Administration’s abdication of responsibility to determine carriers’ fitness to operate. ASECTT and partner carrier, shipper and broker groups have recommended a Third Way toward safety ratings for all carriers — the notion of an every-two-years “desktop audit” for every carrier in the nation in place of the current and costly focus on the CSA Safety Measurement System.

“FMCSA has tried to dodge its responsibility to determine which carriers are fit to use or not” with the CSA SMS, Seaton contended, by saying “‘We’ll be like Yelp … and leave it up to the shippers to put [unsafe carriers] out of business.” A “toxic stew of plaintiff’s bar, insurance companies, competitive advantage and bureaucratic over-reach” has been the norm for carriers when it comes to safety ratings — or lack thereof — and their effect on success in the marketplace.

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The current climate around burdensome regulatory schemes, however, presents opportunity, Seaton reiterated. “All the stars are aligning to reverse these trendlines … and right the ship.”

Seaton noted a new Motor Carriers for Regulatory Reform coalition is looking to make it easier for carriers to contact their elected representatives and file comments with the agency aimed at improving the operating environment for small carriers to encourage more balanced enforcement and “the idea that small [carriers] deserve a chance and that shippers and brokers aren’t going to be in the hot box every time they move a box.”

Getting the shipper community on board with such regs reform remains a goal of NASTC, noted association head David Owen.

MCRR plans to also push for:

  1. Administrative due process. “What it doesn’t meant is that if you get an order in the mail that you have 60 days to prove that you can stay in business,” Seaton said. The coalition is urging the adoption of an independent arbiter for carrier appeals outside the DOT for adverse administration actions against carriers — “someone who hasn’t bought into the guilty-until-proven-innocent aspect” of the current process.
  2. Dialing back the “political” nature of the agency’s website. “At some point,” Seaton said, “the agency should assert itself to stop the confusion and madness around commercial issues” rather than arguing safety cases.
  3. Rethinking the hours of service. Seaton looked back to 2003 and the arguments for the rigid 14-hour clock in the duty day maximum. The arguments relied on science that said that adhering to natural circadian rhythms and getting plenty restorative sleep were key in managing fatigue. More recent science has also shown the restorative value of a good nap. “What wasn’t accommodated for” in the 2003 hours revision, Seaton noted, “was any kind of consideration of the driver, any way you could get an extra 50 miles to be home with family, any way you could make that delivery” when hours ran out 20 miles from the destination. The 14-hour rule: “Let’s face it, ever since that went it, drivers have made some allowances” for themselves “because the rule is so rigid.” ELDs are “going to make it count, and it’s going to result in a productivity hit.”

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Seaton went on to bring up the FMCSA’s study around more flexible sleeper-berth-period splits, which would enable a select group of drivers to split off-duty periods to extend the 14-hour clock in ways other than the currently allowed 8 and 2 split, with an aim of studying the safety implications. “While you’re doing pilot programs,” Seaton said, “maybe it’s time to actually measure fatigue” instead of imposing one-size-fits-all arbitrary limits. Such an idea has been explored in Overdrive feature reporting this past week or in the third installment in our Fatigue’s Fast Track series about the quickly-growing sophistication and interest in fatigue-detection/measurement technology. The piece of that last installment that ran here yesterday (also in the November print issue), discussed FMCSA’s efforts in developing what it calls a “fatigue meter” that includes a variety of technologies, from a “wrist-worn device that tracks body movement to measure quality and quantity of sleep” to “head-worn devices designed to detect fatigue and distraction by measuring head movements.”

Find more via this link to the final three-part feature in the months-long Fatigue’s Fast Track feature:

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Seaton noted that the new coalition website at MCRR.net is designed to allow easier self-service advocacy, making it simple to look up your Congressional contacts, or comment to the DOT on regulatory issues.

And as my colleague Wendy Parker noted last week, the DOT extended its comment period on regulatory-review efforts to the end of this month. You can view the federal register notice that asked for comments, and file your own in response, at this link.

There’s “strength in numbers,” Seaton notes, and he’s hopeful the tide continues to turn on regulatory common sense — or the late lack thereof, as it’s been.

And a-‘bot’ that regs-review comment period — or not-a-‘bot’, as it were …
Most comments there have been focused on the ELD mandate, whether in support of it or against it. Before and since the grassroots ELD protests in October, the pro-mandate American Trucking Associations and other groups have turned up the heat around their efforts at preserving the mandate, as efforts to chip away at the enforcement deadline have borne some fruit little by little (the latest: a 90-day deadline extension for livestock and other ag haulers).

There had been so many identical comments in response to the regs-reform notice in support of the ELD mandate that the Fleet Owner publication recently announced in a much-talked-about headline that the Regulations.gov site had suffered a “‘bot’ attack over ELDs.” The tagline of the story: “Internet robots or ‘bots’ inundate transportation department’s website in support of electronic logging device (ELD) mandate.”

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However, once you got into the story, it was at least somewhat clear that the reality might well have been a little more complicated than that. DOT did not exactly confirm any such “robot attack,” nor did anyone else quoted in the story. What’s more, the particular comment that the publication singled out (which had been submitted several times over the course of weeks and in some cases with variations in wording) did in fact come with particular names associated as the commenter — a simple internet search showed many of those names aligning with a single source company: Neb.-based Werner Enterprises, the large fleet that’s been utilizing e-logs perhaps longer than any other out there.

I counted several apparent Werner employees as having made that same comment before I reached out to company Director of Corporate Communications Fred Thayer about the supposed “bot attack.” Thayer confirmed that, as I suspected, there “was no automation of responding from Werner,” he said, and the company was in fact the source of the language. “We reached out to let associates know the issue, we asked if they are in agreement to submit comments, and provided example wording that they could formulate as their own or use something like the statement you referenced.”

Thayer noted, “I believe you will also find with the Werner submissions that there were also a number that used their own wording. We believe in keeping our associates informed and of course encourage them to respond when they feel strongly about an issue.”

Other repetitive commentary on this particular docket seemed to me to be generated in much the same way, with several names and their particular association with trucking relatively easy to identify as associated with other large-carrier interests.

Case closed? …

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