Ask The Trucker

Raising the Standards of the Trucking Industry


Did FMCSA fail to notify Medical Examiners of NPRM- Diabetic Standard?

Jun
29,
2015
1
FMCSA

FMCSA

On May 4th the FMCSA  posted a Notice of Proposed Rulemaking, Qualifications of Drivers; Diabetes Standard, proposing to do away with the Diabetes Exemption Program.


Under the current regulation, a driver with insulin treated diabetes may not operate a CMV in interstate commerce unless he or she obtains an exemption from FMCSA.

When you first look at the proposed rule, it looks like a victory for professional drivers who have their ITDM (insulin treated diabetes mellitus) stable and under control.  As you read the NPRM closer however, it appears that details are missing, or at least vague to some degree, as described in a recent article by Dr Randolph Rosarion, certified medical examiner listed in the US DOT FMCSA National Registry of Certified Medical Examiners….

Dr Randolph Rosarion

Dr. Randolph Rosarion – Certified DOT Medical Examiner National Registry of Certified Medical Examiners

read here FMCSA NPR to amend certification of drivers using insulin: “sketchy” at best

Presently, the Diabetes exemption program requires drivers to wait 6 months after starting insulin before applying for an exemption. It also requires drivers to send in quarterly reports to the FMCSA from an endocrinologist on the status of diabetes management,  and to undergo an annual eye examination for retinopathy (a complication of diabetes). However, without an exemption process, the FMCSA is no longer responsible for monitoring these reports and is depending on the Certified Medical Examiner to “make the call” to issue a medical card. The issue is however, the ME will be depending on the CDL drivers treating clinician to send in the needed “documentation”, which does not clearly defined what those documents are in the NPRM.

Dr Rosarion proceeds to state in the above article,  “The burden will only now be shifted to the medical examiner, and probably will not necessarily be alleviated for the driver either, that is, if the treating clinician properly evaluates and medical examiner certifies accordingly.  Then we need to ask, once certified how do we enforce this entire new process in lieu of the current Diabetes Exemption Program, to ensure that the driver using insulin remains compliant?”

Elaine Papp of Health and Safety Works LLC- Former Division Chief of the Office of Medical Programs at the Federal Motor Carrier Safety Administration (FMCSA)

Elaine Papp- FormerDivision Chief of the Office of Medical Programs at the Federal Motor Carrier Safety Administration (FMCSA)

In another recent article, Elaine Papp, former Division Chief of the Office of Medical Programs at the Federal Motor Carrier Safety Administration (FMCSA), recently stated
“FMCSA is not only proposing to eliminate the diabetes exemption program but is also eliminating all the prevention and safety requirements that accompanied the exemption program.”  Read more

Now, if this isn’t confusing and vague enough, it appears that the Certified Medical Examiners were possibly not notified by the FMCSA of the NPRM, this same rule which would put most of the burden on them( ME’s) when deciding if the driver with ITDM is indeed stable and well controlled enough to be certified.

When we asked Dr Rosarion on this last Saturday evenings AskTheTrucker “Live’ radio show, Pros and Cons of FMCSA Proposed Rule – Drivers with insulin dependent Diabetes, if he had received notice from the FMCSA of the NPRM, he said he had not, and then continued to say he found out about it by checking their website.

I don’t know about you, but I would think that the FMCSA would not only want their ME’s to know about the NPRM, but would want also their valuable input on the NPRM comment section.   Comments are due July 6th

In our opinion, if the Medical Examiners were not notified of the NPRM, a letter should be sent out to them.  Also, there should be an extension for those who want to submit comments to the website.

Listen to the replay as there were many other eye opening facts and questions that came up during the show.

Related Post  FMCSA proposes to do away with driver Diabetes Exemption Program

Check Out Current Events Podcasts at Blog Talk Radio with Aubrey Allen Smith on BlogTalkRadio

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FMCSA proposes to do away with driver Diabetes Exemption Program

Jun
27,
2015
4
Elaine Papp- founder of Health and Safety Works, LLC

Elaine Papp- founder of Health and Safety Works, LLC

The FMCSA has posted a Notice of Proposed Rulemaking, Qualifications of Drivers; Diabetes Standard, proposing to do away with the Diabetes Exemption Program. Although there are many drivers who feel this is a long overdue rule, others are concerned that the rule (the way it is written) would compromise the safety of the driver and the highways.

 

 

Dr Randolph Rosarion National Registry Certified DOT Medical Examiner-

Dr Randolph Rosarion- National Registry Certified DOT Medical Examiner-

Dr Randolph Rosarion, certified Medical Examiner in the US DOT FMCSA National Registry of Certified Medical Examiners (NRCME) and Elaine Papp, board certified occupational health nurse and founder of Health and Safety Works, LLC, will be our special guests  on AskTheTrucker ‘Live” Saturday 6/27/15  at 6:30 PM ET as they discuss the complex and unseen details of insulin dependent Diabetes mellitus and how it relates to the NPR and the professional driver.

 

FMCSA’s New Proposed Rule, amending insulin treated driver qualification standards, published, May 4th, in the Federal Register.

Qualifications of Drivers; Diabetes Standard Summary –
“FMCSA proposes to permit drivers with stable, well-controlled insulin-treated diabetes mellitus (ITDM) to be qualified to operate commercial motor vehicles (CMVs) in interstate commerce. Currently, drivers with ITDM are prohibited from driving CMVs in interstate commerce unless they obtain an exemption from FMCSA…..”

Dr Rosarion and Ms. Papp have written articles regarding the NPR. A few can be read here:

“FMCSA’s Proposed Rule could Amend Driver Qualification Standards for Insulin Treated Diabetes” by Dr Randolph Rosarion
“Qualifications of Drivers” Diabetes Standard- FMCSA ‘s Notice of Proposed Rule Making” by Elaine Papp
“FMCSA NPR to amend certification of drivers using insulin: “sketchy” at best” by Dr. Randolph Rosarion

Both Dr Rosarion and Elaine Papp are Advisers for North American Trucking Alerts (NATA)

Join the heated discussion!  Saturday June 27th
6:30 PM ET
347-826-9170
Pros and Cons of FMCSA Proposed Rule –
Drivers with insulin dependent Diabetes

Have questions about your Diabetes or the Proposed Rule?
Call in # 347-826-9170  Then click “1” on your keypad to join in the conversation

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Fighting CDL driver harassment, retaliation, and false DAC reporting

Jun
12,
2015
4
Attorney Paul Taylor

Attorney Paul Taylor of TruckerJusticeCenter

Many drivers have experienced, or are at the very least familiar with, employer retaliation via wrongful and often harmful false information reported to authorized agencies. It’s not an exaggeration to say that many a career has been ruined by these antics. The most common of all is the infamous DAC report.

Professional CDL drivers have agreed that even “subtle suggestions” of DAC or other negative reporting  is still used to maintain “control” of their driver employee.  Is there a solution to these behaviors? Can drivers fight back?  Yes they can. Below are just 2 examples of cases that were taken to court and then won. Both cases were won by Paul Taylor of Truckers Justice Center

OSHA FINDS NEW PRIME, INC. PLACED FALSE INFORMATION ON DRIVER’S DAC REPORT

Truck Driver Fights Back Against DAC Awarded $130,000

Not all false DAC reporting makes it to court as in the above two examples. Sometimes all it takes is to dispute or challenge the false allegations via the HireRight website.  As drivers have found out however, sometimes it’s not all that easy to contest false information that is reported.  Jon Stanek of Stanek Law Office, as just one of his trucker related services, assists drivers through his website FixMyDacReport

Attorney Jon Stanek of Stanek Law Office and FixMyDacReport

Attorney Jon Stanek of Stanek Law Office and FixMyDacReport

Both Paul Taylor and Jon Stanek will be our guests on AskTheTrucker “Live” Saturday June 13th 6PM ET to discuss many aspects of driver experienced retaliation, and more importantly, solutions. They will be taking calls and answering questions

Paul and Jon specialize in Trucker cases and have extensive experience in the courtroom and are dedicated to Trucking Employment Law, harassment, discrimination, credit reporting errors, wrongful termination, truck lease disputes,wage disputes…and more

 

 

 

STAA  whistleblower protection – Harmful information on DAC Reports
6PM ET
Listen through the above link, player below, or by phone
347-826-9170

Check Out Legal Podcasts at Blog Talk Radio with Aubrey Allen Smith on BlogTalkRadio

 

Topics to be included in Discussion

  • Using STAA whistleblower protections to remove harmful information from DAC Reports Unauthorized pulls of DAC Reports
  • Abandonment and co. policy violation notations on DAC Reports
  • The Fair Credit Reporting Act (FCRA) Understanding your rights
  • Investigation and Reinvestigation process; The No Parroting Rule
  • Understanding Damages made- The difference between Negligent vs. Willful

Have you had an experience with retaliation? Did it go on your DAC report and cause extensive problems?
Need to ask a question TONIGHT?  Paul and Jon will be taking calls. 347-826-9170

 

 

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FMCSA NPR to amend certification of drivers using insulin: “sketchy” at best

Jun
4,
2015
3

 

The FMCSA NPR to amend the certification of drivers using insulin: “sketchy” at best

Dr Randolph Rosarion

Dr. Randolph Rosarion – certified medical examiner listed in the US DOT FMCSA National Registry of Certified Medical Examiners

Originally posted By on ( 1 Comment )

There is a reason why the PDR (Physician Desk Reference) is so bulky, listing every possible side effect for every drug from aspirin to anti-cancer medications.  The rumor is, as I was told in medical school is that the PDR is written by lawyers or “legal” minds, and not by doctors.  Whether true or not the irony is clear, and if true, it seems quite reasonable (to me anyway) why it would be more valuable to have it authored by legal persons rather than medical.

Nonetheless, the PDR is no doubt a valuable reference tool, not unlike FMCSA’s Medical Examiner’s Handbook, which is currently in defunct mode but soon to re-emerge, as we are promised.   If the previous FMCSA memorandum to medical examiners and training organization with regards to the obstructive sleep apnea (OSA) recommendations, and this new proposed rule to amend the regulations regarding insulin treated diabetes are any indications, I can only surmise that the FMCSA like it’s own Handbook is not so much as re-inventing itself but changing it’s look, putting on a new outfit so to speak, but in the process drastically altering the way commercial drivers are evaluated and certified.  Is this FMCSA “new look” just a way to appease lawmakers and stake holders, who no doubt put tremendous pressure on the agency, or a sincere attempt to abridge it’s regulatory machinery and cut through the bureaucratic red tape for the betterment of the driving professional?  In it’s mission statement the FMCSA succinctly and purposefully states:

Our primary mission is to prevent crashes, injuries and fatalities involving large trucks and buses.

Medical professionals who decide to perform commercial driver medical evaluations are required to follow certain qualification standards in the evaluation of commercial drivers to insure public safety, and must now pass an examination to become certified through the recently established National Registry of Certified Medical Examiners (NRCME).  The NRCME was mandated by congress and went into effect last year on May 21, 2014.  The hope with the creation of the NRCME was to further improve the driver certification process by using only trained and certified medical examiners, who apply FMCSA driver medical standards in evaluating commercial drivers to improve public safety and decrease fraud, and directly link the National Registry with state and federal driver databases.

Well then I ask, is the goal of ensuring public safety, still achievable or even palpable with the new proposed rule “as written”?  The fact that the current Diabetes Exemption Program will be dissolved in the process is really not the issue here.  As a lot of us see it, the main setback here is that in it’s current state or language, the proposed rule actually fails to meet the standards already established by the FMCSA itself for the Diabetes Exemption Program.  So doing away with the Diabetes Exemption Program is not the problem here.  We can do away with the exemption program, but with the current proposed rule as written if passed, we will not maintain the same level of safety.

Comment by July 6th 2015 FMCSA NPR  Qualifications of Drivers; Diabetes Standard

In reality, regardless of whether the driver goes through the FMCSA’s current Diabetes Exemption Program, or is evaluated and certified entirely by the medical examiner interacting with the treating clinician or primary care giver as suggested in the new rule, the fact is, it remains an exemption process.  The burden will only now be shifted to the medical examiner, and probably will not necessarily be alleviated for the driver either, that is, if the treating clinician properly evaluates and medical examiner certifies accordingly.  Then we need to ask, once certified how do we enforce this entire new process in lieu of the current Diabetes Exemption Program, to ensure that the driver using insulin remains compliant?

If you remember Johnny Depp’s movie “What’s Eating Gilbert Grape”, I can certainly ask the same of the FMCSA.  What’s Eating the FMCSA?, because a lot seems afoul with the new rule.  But to be fair, the FMCSA does rely on medical expert opinion from the Medical Review Board (MRB), the Medical Expert Panel (MEP), as well as the Office of Medical Programs within the FMCSA itself to help with the interpretation and application of it’s medical regulations and recommendations.  The FMCSA ultimately decides what recommendations made to the agency by it’s medical experts to accept.  It publishes notice of proposed rules such as the current rule at hand and submits it for a period of public comment.  Why does the FMCSA need such a wide body of medical experts to help it understand medical issues like insulin and diabetes and many other medical conditions?  The simple answer is it’s complicated, both understanding the medicine and to properly apply it through the legal system without over burdening drivers, and simultaneously maintaining public safety.

So I ask again, What’s eating Gilbert Grape?  What’s really eating the FMCSA?  Less I feign an answer, I’m afraid that what ever I say now would just be speculation, so your guess is as good as mine.  However, as a medical professional, I and many others see a lot wrong “medically” with the new proposed rule as written, and I hope to have some of those colleagues contribute their thoughts to the next post.

Memorial Day is here.  To be continued…..

Related Post
“Qualifications of Drivers” Diabetes Standard- FMCSA ‘s Notice of Proposed Rule Making

 

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Driver sees wages synonymous with trucking safety

May
30,
2015
1

Truck driver wagesBy Allen Smith

Low wages, driver shortage, high driver turnover, low retention, poor recruiting practices, cheap freight, working without pay, low hiring standards and unskilled labor are just a few of the phrases you will hear included in any discussion regarding professional CDL driver wages.

You will find many articles describing the facts regarding the problems encompassing the causes of stagnant truck driver pay, whether it be the fact that wages have not increased in decades, the unfair pay structure, the classification of drivers, or even the fact drivers work many hours without pay.

There are also those who write and offer suggestions about ways to address and resolve the dormant driver wage situation. Unfortunately, most who feel compelled to write or share their thoughts and ideas about wage solutions, or even mention that there is an unfair balance between drivers wages and industry profits, comes from the driver population itself.

That is not to say that there has not been a recent voice made by carriers claiming they are addressing the wage issue by raising driver pay which in most cases means increasing the cents per mile rate (CPM). Of course this most recent announcement by carriers was actually initiated by the anticipation of a driver shortage as many of the younger generation needed to fill the seats of veterans retiring, do not find the trucking industry an “appealing career” as discussed in a previous post: Truck Driver Retention and the Generation Gap.

But just how significant are these current driver wage increases? Keep in mind, even if a motor carrier claims they are raising their driver pay .03 CPM, that is only an increase of $60.00 per week, based on a 2,000 mile weekly scale.

Pat Hockaday-Truckers United

Veteran truck driver Pat Hockaday introduces an interesting and well-calculated new thought to the ongoing CDL wage discussion. Mr. Hockaday is the founder of TruckersUnited.org and has spent a great deal of time contemplating the best solution for a fair increase of drivers wages, including the most practical method in which they should be designed. The details of his observations and methods can all be found in his writings known as “JoJo’s Paper.”

Below is a post that Pat posted on his FaceBook wall and has allowed us to share it here as well. I believe that this reading, along with JoJo’s paper, should motivate and inspire dialogue between all drivers, not arguing or criticizing one another, but rather sparking thoughts and ideas for real driver solutions:

It’s been a Long Day. Before I go to bed I am very happy to announce that TruckersUnited.org in it’s new and improved format is up and running! Thank’s Danny, I know that You have worked very hard to make it happen!”

“As an individual with an opinion and a possible solution that I believe will solve many problems within this industry, I hope to meet more like minded individuals that are willing to work towards common goals to turn this industry around from the small guys perspective.”

“I believe this can be done only if we are willing to work towards common goals.
SAFETY; Why are we having regulations shoved down our throats in an attempt to force us into compliance? Hasn’t anyone figured out that Drivers are only trying to earn a living and to do so they must bend or twist the law?”

“Safety comes at a price! Drivers are paying that price in lower earnings due to their time needed to earn being regulated. Drivers are paid piece work wages and when their time need to produce pieces is regulated away they earn less and must become creative in order to sustain themselves and their families!”

“Are these regulations creating safer or more dangerous roadways for the public? Is it possible that if the Drivers were paid to be safe instead of being forced to earn less they would have no need to act in ways deemed unsafe?”

CHEAP FREIGHT RELIES ON CHEAP LABOR

“We O/O’s and small carriers have to compete against mega carriers that have, due to their size, set the labor rates for this industry. Intentionally or not, they have influenced freight rates to remain low and to stagnate. One can not raise their rate to pay better because that would give the others a competitive edge! Is it possible that if they all had to pay a salary based on a minimum wage standard they would all save money and maintain their competitive edge and their bottom line?”

“The megas and the FMCSA have been working on their agenda to have it their way without considering Us small Guys! Isn’t it up to us to let it be known what we need?”

“In it’s simplest form it all boils down to money. You and I can do whatever is required, we can break the law in order to earn. Why can’t we influence laws that enable Us to Earn without breaking the law?”

“In JoJo’s Paper I have laid out a concept that accomplishes the Goal of Safety by paying the Co OTR Drivers a living wage. I put this concept out for all to consider and discuss. Maybe a better idea will come out of it or maybe it can be improved upon. I only know that We little guys have been fussing and fighting among ourselves while they are deciding how it is going to be. It’s time to start working together like a team so that we can win or lose as a team.”

“It’s up to you what your future will bring, WHY are YOU letting THEM decide for YOU?
Let’s start talking so that we may find solutions where they can’t, right under their noses!”

Recently Mr. Hockaday was a guest on AskTheTrucker “LIVE” and oddly enough, it was a health show about the relationship and affects between CDL wages and truck driver health. You can catch the full broadcast below:

As professional drivers, I believe it is important to be able to open dialogue by sharing all of our experience, knowledge, thoughts, ideas, opinions and so-forth, which can ultimately lead to an agreed upon and in many cases, a final solution to an industry problem.

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Telemedicine offers truckers access to medical care 24/7

May
26,
2015
1
DocOnCall24/7 for Truckers

DocOnCall24/7 for Truckers

For many, the trucking lifestyle is difficult enough, but when a driver is faced with an illness or sickness on the road, the difficulties can become much more serious.

I remember years back when I became extremely ill while miles away from home and my primary doctor’s care. As we often do while living life on the road, I continued to ignore my symptoms, believing that I would just “ride it out” and get well on my own.

As the illness worsened, I was finally forced to pull into a hospital parking lot in Cleveland, Tennessee where I was immediately wheeled into the ER. I would remain there for nearly two weeks as I overcame blood poisoning and discover that I had only been three hours away from becoming a fatality.

Back then, there were no Smartphones, WiFi, laptops or video communications of any kind and when a driver faced unknown medical symptoms while thousands of miles away from home, life on the road could become very unpleasant and dangerous to say the least.

In today’s technological advances, the ability for professional truck drivers to have access to a doctor’s care is available 365 days and 24/7. DocOnCall24/7 is specifically designed with the truckers’ lifestyle in mind, offering immediate access to licensed physicians at anytime via phone, email or video conference.

For only $19.99 per month, truck drivers and their families will receive medical services offering Telehealth, Vision, Dental, Diabetic, Pharmacy, Counseling, Lab Testing, MRI and CT Scans, Medical Health Advisory and more. Services are available to members as often as needed and there are no health restrictions.

Everyone is encouraged to sign up for their Free Prescription card on the website, membership is not required.

DocOnCall24/7 Prescription Discount Cards

DocOnCall24/7 Prescription Discount Cards

There are also FREE Prescription Discount Cards for the iPhone and Android
smartphones. Use the Group NBRx9848A

With this app you can receive discounts at all major pharmacies, check for the lowest
cost for the medication, and find  the nearest pharmacy.

 

 Android App  Download

iPhone App     Download

In her continuing Truck Driver Health series, Donna will discuss the services and benefits further with DocOnCall24/7 on Ask The Trucker “Live”. The broadcast: DocOnCall24/7 offers truckers remote access to certified doctors, will air Thursday, May 28th, 2015 at 6:00 PM Eastern Time.

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Information and Resource Hub now available for Trucking

May
17,
2015
1
Trucking Social Media

TruckingSocialMedia
Trucking Hub for Information and Resources

We are at an age of information overload, we’ve been there for awhile, and it’s getting even greater.  With that said, is it really overload or is it information disorder, leading to confusion? Let’s face it, we can pretty much ask Google ( or other search engine) ANYTHING we want and find an answer. With the click of a mouse, you can search a word or phrase on the internet, and then within seconds, a list of 100+ results and options pop up! Now what?
It’s still up to us to determine the authenticity and credibility of that information, similar to sifting through the sand for the golden nuggets.

Resources on the web include: newspapers, magazines, journals, blogs, organizations, websites, government sites, forum sites and more. Another popular source for information are social media platforms such as FaceBook, Twitter, LinkedIn, Google + , Pinterest, and so many others.

The trucking industry is no different, the information available to us is a tremendous asset.  Along with journals and informational websites, including the option to have up to date news sent directly to your email, there are the increasingly popular Social Media websites sprouting.

Because of the internet and technology, no longer are professional truck drivers isolated as they drive, the only communication being their CB radio.
Facebook, Twitter, Google+ and other social media sites and interactive information site have created a window of opportunity to share information and become interactive to people they would have never been heard from before.

To sum it up, the ability to obtain information and communicate has reached new levels.  Along with that, there is the ability to share information to thousands in an instant “Click”.
To put it simply, the once isolated and voiceless now have  the ability to locate many informative destinations as well as be heard and to share their own vital messages.

But now the question is, ” how do you keep up with it all?”

To aid with that dilemma, Trucking Social Media (TSM) has created a central Hub in attempts to help organize many of the resources available today.

Since the launch of the Trucking Social Media Convention in 2011, it has been our goal to unite with like minded people, sharing our info along with that of others throughout the industry, sharing all knowledge, experiences, and finally our voices.

The Trucking Social Media website is an extension of that original vision and goal.  As we combine the technology,  the internet, and mobile communication, our latest goal is to create a trusted Hub of quality resources and information.

The Resource Page: Informative websites, Social Media Groups, Government Agencies, Blogs, Charities, Advocacy, Health, Cooking, Associations, Directories, etc…  is collected and updated on the website by TSM as well as submitted by those within the industry who would like to offer their resource suggestions and be a part of a trusted community. This vital info can then be shared via Social Media, reaching multitudes of others.

Videos are also a large part of the website as the trucking community shares their voice by sending in their Video URL, such as from YouTube.

Partners Page Our partners are an essential part of the Trucking Social Media Hub.
Our Partners continue to display their commitment toward honesty and integrity by offering the highest quality info, products and services.

SlideShare VIDEO for Truth About Trucking, LLC network

To Learn more about Trucking Social Media and how you can be a part of a trusted community of information, products, and resources, please watch the VIDEO below.
http://truckingsocialmedia.com/620/
contact info- info@truthabouttrucking.com
352-465-7476

Allen Smith shares the purpose and goals for Trucking Social Media

VIDEO LINK Allen Smith shares the purpose and goals for Trucking Social Media

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Dispatch Services: Legit, Misguided or Fraudulent?

May
6,
2015
0

The Federal Motor Carrier Safety Administration (“FMCSA”) recently issued a decision in the matter of an application (Docket Number: FMCSA-2013-0513) for a categorical exemption from the minimum property broker and surface freight forwarder financial security requirements imposed by the Moving Ahead for Progress in the 21st Century Act (“MAP-21”) passed by congress and signed into law by the president in 2012 (P.L. 112-141), which was filed by the Association of Independent Property Brokers & Agents (“AIPBA”), a trade group founded and operated by the author since 2010.

In that decision, in which FMCSA denied AIPBA’s requested blanket exemption, the agency acknowledged that more than 9,000 intermediary businesses spontaneously shut down in December of 2013 when the new $75,000 minimum property broker bond requirement went into effect under amended 49 U.S.C. §13906(b) and was enforced by the agency after a two month grace period.

While some of these brokers gave up their brokerage businesses to join bigger brokerages as agents as part of a concerted effort by some larger brokerages to “consolidate” the freight brokerage industry,
(http://www.dcvelocity.com/articles/20110109thebigbetofbradjacobs/), others have continued to operate without any license or bond with impunity as third-party intermediaries arranging for motor carrier transportation, calling themselves “dispatchers” and “dispatch services” instead of brokers and holding themselves out to the public through social media.

“Property brokers” that operate in interstate commerce are required to be registered under 49 U.S.C. § 13904. Proper registration results in in the issuance of a “license” by FMCSA upon compliance with the financial security requirements prescribed by regulation (49 CFR 387).

“Property broker” is defined by Federal regulation in 49 CFR 371.2(a): “Broker means a person who, for compensation, arranges, or offers to arrange, the transportation of property by an authorized motor carrier.”

However, under said rule, there is an exception: “Motor carriers, or persons who are employees or bona fide agents of carriers, are not brokers within the meaning of this section when they arrange or offer to arrange the transportation of shipments which they are authorized to transport and which they have accepted and legally bound themselves to transport.” That is, an entity is not a broker if it is a “bona fide agent” of a carrier as defined under 49 CFR 371.2(b) as: “…persons who are part of the normal organization of a motor carrier and perform duties under the carrier’s directions pursuant to a preexisting agreement which provides for a continuing relationship, precluding the exercise of discretion on the part of the agent in allocating traffic between the carrier and others.”

Regardless of whether an intermediary works for a shipper or carrier and regardless of whether it touches the shipper’s money, an intermediary is a broker if it is paid by any party in the equation to arrange transportation as per 49 CFR 371.2(c): “Brokerage or brokerage service is the arranging of transportation or the physical movement of a motor vehicle or of property. It can be performed on behalf of a motor carrier, consignor, or consignee.” The term “dispatching” is covered within the official FMCSA definition of “motor carrier” at 49 CFR 390.5:

“Motor carrier means a for-hire motor carrier or a private motor carrier. The term includes a motor carrier’s agents, officers and representatives as well as employees responsible for hiring, supervising, training, assigning, or dispatching of drivers…” Most of these entities operating as dispatch services “dispatch” for more than one carrier under a power of attorney, which declares the dispatcher an agent of the carrier.

Therein lies the problem… Under the theory of “agency”*, it would appear an intermediary cannot be a nonexclusive agent of multiple competing carriers because this violates its “fiduciary duty of agent to principal;” that is, it would appear that an intermediary can’t lawfully help two competing carriers and call itself an agent of both of them as this problem of performing its fiduciary duty comes up when it chooses to load one of its carriers over the other. Contracted brokers don’t have this level of fiduciary responsibility.

In order to be a “bona fide agent,” then, the “agent” must be an exclusive agent for just one carrier. An intermediary calling itself a “dispatch service” when it services multiple carriers instead of a “broker” is like a legal professional saying he is not an “attorney” but a “lawyer” as he then attempts to practice law without being duly admitted to the bar. Shakespeare would say: “A rose by any other name would smell as sweet.

” This matter was settled by the Interstate Commerce Commission (ICC) years ago… In “Practices of Property Brokers” (49 M.C.C. 277, 295-303 (1949)) the ICC considered the distinction between agents of carriers and brokers and concluded that one who is in a position to allocate shipments between competing principals is a broker, who requires a license; an agent who devotes his service exclusively to a single carrier is part of that carrier’s organization and does not require a license.

Many third-party “dispatchers” charge motor carriers a 6% minimum fee but get the loads from brokers who are taking at least 12%. From a business standpoint, inserting a second middle man into the equation can therefore be said to adversely affect carriers’ bottom line. However, from a legal standpoint, these motor carriers need to recognize that “dispatchers” are not licensed under 49 U.S.C. § 13904 and are therefore not bonded by law for carriers’ protection; only licensed property brokers and freight forwarders are.

So, letting a “dispatcher” handle their money in place of a duly licensed broker clearly creates significant risk exposure for carriers. Legal practitioners should therefore warn their motor carrier clients of this pitfall and determine if the mere use of an unlicensed dispatcher by their motor carrier clients could in and of itself entail liability for aiding and abetting unlicensed operations under 49 CFR 390.13.

When it comes to “dispatch services,” the law is clear: it is not what an intermediary calls itself that defines whether it is a broker or not, it is what the intermediary does. Therefore, notwithstanding being a “bona fide agent” of one motor carrier, if an intermediary is an entity that receives compensation in exchange for arranging motor carrier transportation of regulated commodities across state lines, then it is an interstate property broker no matter what its chooses to call itself.

Unlawful brokers that call themselves “dispatchers” unfairly compete with duly-licensed brokers by circumventing the broker licensing and bond requirements. They can operate at less of a cost than law-abiding brokers who pay up to $10,000/year for a $75,000 surety bond or trust fund instrument.

Perhaps it is time for the relevant trade groups to crack down on these unlicensed players through the private cause of action provision established by MAP-21 to challenge the unlicensed dispatcher model in Federal court.

* According to Black’s Law Dictionary, “Agency” is “a relation, created either by express or implied contract or by law, whereby one party (called the principal or constituent) delegates the transaction of some lawful business or the authority to do certain acts for him or in relation to his rights or property, with more or less discretionary power, to another person (called the agent, attorney, proxy, or delegate) who undertakes to manage the affair and render him an account thereof.”

James P. Lamb is a non-attorney transportation practitioner duly admitted to practice before the U.S. Surface Transportation Board and Federal Maritime Commission. He is president of the Association of Independent Property Brokers & Agents (AIPBA) and chairman of the broader Small Business in Transportation Coalition (SBTC). He is based in Fort Lauderdale, Florida.

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Significant increase in truck crashes post July 1, 2013 HOS rule change

Apr
29,
2015
1

Recent study results from ATRI has confirmed what many professional drivers have been adamantly saying, ” 2013 HOS restart provisions have compromised truck safety”
Although there are many issues that drivers and carriers may not agree upon, the Hours-of-Service (HOS) rule change of July 2013 is not one of them.

 

ATRI- The American Transportation Research Institute

ATRI-
The American Transportation Research Institute

FOR IMMEDIATE RELEASE

Contact:  Dan Murray  

(651) 641-6162

April 29, 2015

 

 

 

Arlington, VA – The American Transportation Research Institute (ATRI) today released the results of a new analysis of the safety and operational impacts from the 34-hour restart provisions.  In this latest of an ongoing series of Research Tech Memos, ATRI analyzed an extensive truck GPS database to identify changes in truck travel by time-of-day and day of the week that may have occurred after the July 1, 2013 change to the Hours-of-Service (HOS) restart provisions.  ATRI also examined several years or pre- and post-July 1 federal truck crash data to quantify safety impacts resulting from the HOS rules change implemented by the Federal Motor Carrier Safety Administration.

The truck GPS data analysis identified a shift of truck traffic from nighttime to daytime and a shift of truck traffic away from the weekends to more congested weekdays, with the biggest decreases in truck activity occurring on Sunday nights.

The crash data analysis showed a statistically significant increase in truck crashes after the July 1, 2013 rule change, specifically with injury and towaway crashes.  In particular, the increase in injury and towaway crashes would be expected based on the shifting of trucks to more congested weekday travel due to increased traffic exposure.

The crash increases and operational shifts would ostensibly be independent of overall economic improvement since the statistical tool utilizes percentage change, and tonnage growth percentages over the 2-year period were relatively constant.  In addition, truck unit position points are a better indicator of physical truck movements than freight volumes.

ATRI’s report features some possible explanations for the GPS and crash data findings as a result of operational changes the industry had to make post-July 1, 2013.  Among these are:

  • Drivers abandoning use of the more restrictive 34-hour restart in favor of the rolling recap.
  • Expanded use of weekend productivity by drivers, particularly Friday into early Saturday driving.
  • Earlier weekend dispatches for drivers to avoid disruptions to early week (Monday-Tuesday) operations.

“After many years of crash decreases, everyone knows our industry has experienced an uptick in crashes,” said Dean Newell, Vice President, Safety of Maverick USA, Inc. and a member of ATRI’s Research Advisory Committee.  “This latest analysis from ATRI validates both changes in operations and crash risk that seem to be associated with the restart rule.  Regulations should serve to improve safety, not create additional safety risks.”

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.

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TruckerToTrucker.com Launches Scholarship Resource -Over 18k in Annual Awards

Apr
26,
2015
0
TruckerToTrucker.com today launches a scholarship resource to inform transportation workers and their families about the scholarship opportunities available in this industry

TruckerToTrucker.com today launches a scholarship resource to inform transportation workers and their families about the scholarship opportunities available in this industry

 

 

 

 

Culver, IN, April 25, 2015 –(PR.com)-– TruckerToTrucker.com today launches a scholarship resource to inform transportation workers and their families about the scholarship opportunities available in this industry.

There are eight different scholarship programs totaling $18,000+ in annual award opportunities on the Trucker to Trucker resource page with more to be added in the coming months. Awards can be used to pay for college and graduate school, as well as commercial truck driving schools.

The scholarship resource consolidates various programs and grants offered by companies, non-profits, and state and national transportation organizations across the US to provide a single source of information for trucking and transportation industry specific scholarship opportunities.

“There are dozens of generous scholarships available to the members of our industry and their families, but few people know about them,” said Jimmy Steele, communications coordinator for TruckerToTrucker.com. “We wanted to make it easy for people to find a program that will help make their education more affordable.”

Each program has unique requirements and eligibility guidelines. The resource page is located at http://www.truckertotrucker.com/trucking-scholarship-resource.cfm, and provides links to the full details of each scholarship to help students find current information on the awards.

“In 2013, we started to offer a scholarship for students to attend a commercial driving program. Even after reaching out to schools and organizations to spread the word, it was almost impossible to give the money away,” said Steele. “After talking with other groups who had the same issue, we realized that the industry needed a single resource that students can visit to understand all their opportunities.”

Announcement can be found here

TruckerToTrucker.com offers two types of award each year. A $1000 college scholarship for the children or grandchildren of those working in the transportation industry. And, a $500 truck driving school scholarship for those who wish to start a career as a professional driver.

About Trucker to Trucker:

TruckertoTrucker.com launched in 2003 with the purpose of making it easy for owner operators, dealers, and fleet owners to sell their commercial trucks, trailers, and equipment online. With thousands of daily visitors, TruckertoTrucker.com has become a leading online marketplace for all brands of trucks and trailers. Trucker to Trucker also provides digital marketing services like website design, promotion, and inventory management for dealers and other high volume sellers. For more information, visit http://www.truckertotrucker.com

Contact Information
Trucker To Trucker
Jim McCormack
800-240-5811

Contact
www.truckertotrucker.com

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