Curtis Whalen, Executive Director

October18, 2016

Conference Holds Annual Meeting

The IMCC held its annual conference in conjunction with the ATA-MC&E October 1 in Las Vegas, NV. Over 90 members attended the event which included a chassis-Roadability update given by Jack Van Steenburg, FMCSA’s chief safety officer and assistant administrative, who was accompanied by Administrator Darling. During the business session, board members approved the nominating committee’s recommendations for 2016-2017 conference leadership and board membership which are listed at the end of this newsletter.

During issues discussions, Chairman Randy Guillot and board member Greg Stefflre provided an update on the activities of the ATA Independent Contactor Task Force (ICTF) and particularly conference supported plans to elevate ATA’svisibility and activities to address union and state misclassification abuses. More detail on this topic and other misclassification activities are discussed in the Misclassification section below.

I next summarized recent Federal Maritime Commission (FMC) related activities concerning the Hanjin bankruptcy, and the status of the anticipated petition to be filed by port coalition members including our conference challenging demurrage and per diem assessments levied on shippers and truckers operating during periods of port congestion.

I next discussed the disappointingly slow pace of DOT’s Port Performance Freight Statistics Working Group on which I serve which is supposed to have a report to congress completed by year’s end but is currently mired in union led opposition to developing any meaningful port data operationalmetrics.Recall that this Working Group has been created pursuant to Section 6018 of the Fixing America's Surface Transportation (FAST) Act (P.L. 114-94; Dec. 4, 2015; 129 Stat. 1312). The stated goal of the program was“to provide nationally consistent measures of performance” of the nation’s largest ports, and to report annually to Congress on port capacity and throughput. The working group is required to submit an annual report to the Bureau of Transportation Statistics director identifying the top 25 ports, at minimum, using tonnage, containers and dry bulk as metrics.The director will then submit a report to Congress no later than January 15.

Board member Dave Manning next provided meeting participants with an update on the North American Chassis Pool Cooperative (NACPC) as well as on anticipated changes to the Intermodal Interchange Executive Committee (IIEC) which oversees the administration of the industry interchange agreement (UIIA). Finally, Chairman Guillot and I briefed members on activities involving new increased container charges being levied by ocean carriers andon work being done by the TMC on the UIIA related skid flat issue.

ATA Elects New Leadership

During the recent ATA MC&E, ATA’s board of directors elected Kevin Burch, president of Jet Express Inc. of Dayton, Ohio, as the federation’s 72nd chairman. In addition, ATA Second Vice Chairman Dave Manning, president of TCW Inc. (and an IMCC board member) advanced to the post of first vice chairman. Barry Pottle, CEO of Pottle's Transportation, is now the ATA’s second vice chairman and Sherri Garner Brumbaugh, CEO of Garner Transportation Group also remains a vice chairman. Randy Guillot, president of Triple G Express (and current IMCC chairman), was also selected to be a vice chairman andthe newest member of the ATA leadership team.Intermodal on the move!!

Commerce Department Urged to Resolve Hanjin Shipping Crisis

Our conference and ATA joined the National Retail Federation and 120 other industry trade groups in urging the Commerce Department to work with the South Korean government to resolve the Hanjin Shipping Co. crisis which has stranded an estimated $14 billion of freight at sea and encumbered port operations by stranding thousands of chassis at facilities around the country.

In a letter to Commerce Secretary Penny Pritzker dated September 20signatory groups expressed their concerns that their goods may be seized by Hanjin’s creditors when ships dock. “We strongly encourage you to continue to work with the South Korean government to bring about a swift and economically beneficial resolution that will allow cargo to move through the global supply chain and give certainty to U.S. businesses”. The communique is attached to the newsletter transmittal email.

Misclassification/Independent Contractor Activities

As you know, the independent contractor (IC) driver model is under siege in our industry and our conference has been leading efforts to change the current industry response strategy from what we believe is too defensive and uncoordinated to a much more offensive- proactive attack mode.

New ATA president Chris Spear, during the ATA Independent Contractor Task Force (ICTF) meeting October 1, reiterated the ATA top tier status of the IC issue and committed to fashioning a revised Independent Contractor Task Force structure to better and more proactively engage Teamsters’ inspired state legislative and departments of labor regulatory actions which are unfair, unnecessary, financially burdensome and only serve to assist union efforts to organize port drivers.

A key mission of the anticipated new/revised IC effort will be to establish an information “Clearing House” function so that members can more objectively discuss and formulate individual and industry responses to state and union activities impacting the IC business model. In order to better evaluate and articulate the potential impacts these anti independent contractor activities are generating or could generate to our membership, it is important that we begin gathering and organizing more specific information on what is actually happening around the country.

To that end, in an email dated October 12 I asked that all members please provide the following:

Motor Carriers

  • Do you have any ongoing audits/claims/litigation concerning Independent Contractor/Employee status;
  • If so, in what state(s) is this occurring; and
  • What state agency, entity or individual is bringing the action?

State Associations

  • Do you have ongoing or anticipated legislative or regulatory activities in your state which are intended to alter/amend independent contractor-employee status treatment?

Specific company information gathered will be kept confidential.

In addition, as part of the clearing house effort, I am also trying to gather information on law firms/attorneys who are working in this IC-employee status area/defending motor carriers against independent contractor violations/employee status etc. so please provide that type of contact info as well.

So, if you have not already responded, please do so now!

Another State Joins DOL Program Urging Action on Driver
On September 13, 2016, Oklahoma became the 35thstate to formally enter into a partnership with the U.S. Department of Labor (DOL) to share information and conduct joint investigations regarding independent contractor misclassification. The DOL program was launched by the Obama administration in 2010 and Oklahoma joinsPennsylvania, Nebraska, and North Carolina that have all entered into such partnerships since August 1st. For a full listing of states in the program, click here:
NLRB Targets Employers Using Independent Contractors
In the Obama administration’s continuing push to end the independent contractor driver model, the General Counsel of the National Labor Relations Board ("NLRB") released (8/26) anAdvice Memorandum outlining his legal theory that the misclassification of employees as independent contractors constitutes a standalone violation of Section 8(a)(1) of the National Labor Relations Act ("NLRA").In his view, driver misclassification interferes with and restrains the exercise of Section 7 rights. (Pac. 9 Transp., Inc., NLRB Div. No. 21-CA-150875).In addition, included in this Advice Memorandum, ( it was stated that: “the Board has never held that an employer’s misclassification of statutory employees as independent contractors in itself violates section 8(a)(1),” but the NLRB unit found “there are several lines of Board decisions that support such a finding.”
This NLRB violations approach is the one most favored by the Teamsters because it allows a direct attackon motor carrier use of the IC driver model.
9th Circuit Ruling/Uber Driver Classification Suits
In a Ninth Circuit ruling issued September 7, the court ruled that ex-Uber drivers suing the company over background checks must bring the challenges through individual arbitration, not in the courts, which is viewed as a setback to several high-profile wage-and-hour class actions where drivers are accusing Uber of misclassifying them as independent contractors. The three-judge panel’s decision largely affirmed the validity of Uber arbitration provisions that were being challenged in a classaction by ex-drivers who claimed that Uber performed background checks without their authorization.
Oregon Court of Appeals Decisions
In what is a notable change in many west coast proceedings, Oregon’s court of appeals issued rulings in 4 cases what are favorable to independent owner operator driver status. In 3 cases, the Court rejected Oregon’s Employment Department’s narrow interpretation of the state’s statutory exemption from unemployment taxation for for-hire motor carriers. That exemption generally excludes owner-operators who lease their equipment and services to motor carriers from coverage under Oregon’s unemployment tax laws.In these three cases the Court held that the agreements in place between the owner-operators and the motor carriers were, in fact, “leases” as that term is used in the statute and, therefore, the exemption applies and precludes the Employment Department from collecting unemployment tax from the carriers.In the forth case, the Court held that the owner-operators who entered into agreements with a motor carrier in Oregon were properly classified as independent contractors under Oregon’s four-part test and, therefore, the Employment Department’s unemployment tax assessment, which had beenbased on the Department’s determination that these owner-operators were employees, was erroneous..
ATA Summary of EPA/NHTSA Phase 2 Fuel Efficiency Rule
In case you missed it, ATA has developed a summary of the recently released EPA/NHTSA Phase 2 Truck Greenhouse Gas and Fuel Efficiency Rule more commonly referred to as Phase 2. The Phase 2 rule builds on the first round of regulation and addresses new medium and heavy-duty trucks and new trailers to reduce GHG emissions and improve fuel efficiency. Targets for engines and trucks must be achieved in MYs 2021, 2024, and 2027 while trailers have an additional target in MY 2018. While fleet acceptance and purchases of fuel-efficient technologies under Phase 2 will directly determine the overall success of the rule, compliance is the responsibility of engine, truck and trailer manufacturers. According to the agencies, the rule will result in a reduction of 1.1 billion metric tons of carbon emissions; reduce oil consumption by up to 2 billion barrels of oil; and save vehicle owners $170 billion in fuel costs over the lifetime of the vehicles subject to the standards. In 2027, when the standards are fully implemented, heavy-duty vehicles across all classes are projected to ultimately achieve carbon emissions and fuel use reductions up to 25% for combination tractors when compared to Phase 1; up to 9% for trailers when compared to an average MY 2017 trailer; and up to 24% for vocational vehicles when compared to Phase 1. In MY 2027, the buyer of a new vehicle is projected to recoup the extra cost of the purchased technologies within 2 years for a tractor/trailer combination and within 4 years for vocational vehicles such as garbage trucks, buses, and on-road construction trucks (e.g., cement mixers, dump trucks, etc.). For the most part, the rule does not mandate specific technologies but rather sets carbon and fuel efficiency performance standards for manufacturers to meet using numerous technology choices.
To view a copy of the summary click here. To view a copy of the rule and supporting documents click here. For more information, contact Glen Kedzie at .

Port of Long Beach CEO Resigns

In a surprise to most in the maritime industry, Jon Slangerup, the CEO of the Port of Long Beach announced his resignation, which is effective October 29, 2016.

After two years in his position, he is moving on to accept the role as Chairman and CEO of a leading aviation technology company.

New Orleans Port to Finance Cleaner Trucks

In a press release dated September 13, the Port of New Orleans announced the launching of its Clean Truck Replacement Incentive Program (Clean TRIP), providing financial incentives for local short-haul truck owners to voluntarily replace approximately 20 Class 8 drayage trucks from model years 1993-2006 with trucks from model year 2012 and newer. The cost-share program provides 50 percent of the vehicle sale cost (up to $35,000) and a maximum of two trucks per owner or fleet.

The program is open to truckers who service cargo terminals and warehouses along the Mississippi River and the Industrial Canal. The Clean TRIP program is part of a $727,000 Clean Diesel competitive grant from the U.S. Environmental Protection Agency to the Board of Commissioners of the Port of New Orleans. The grant supports the local port trucking community; helps reduce local air emissions and increases reliability and efficiency of on-road goods movement.

The total Clean TRIP project cost is $1.537 million, with $700,000 coming from mandatory cost share with eligible truck owners and $110,636 coming from the Port for administrative costs.

Coast Guard Issues Final Rule on TWIC Readers

After nearly a decade of waiting and many announced postponements, the US Coast Guardissued its final rulein late August. As detailed on its website ( rule requires owners and operators of certain vessels and facilities regulated by the Coast Guard to conduct electronic inspections of Transportation Worker Identification Credentials (TWICs) as an access control measure.This final rule also implements recordkeeping requirements and security plan amendments that will incorporate these TWIC requirements. Marine terminals deemed “high risk” (525 facilities identified) have two years to install electronic machines that can read TWIC cards used by longshoremen, truckers, port employees and others for authorized, unescorted access to secure areas.Overall, the Coast Guardestimated the rule will cost the industry about $22.5 million per year to implement

Price of New Containers Falls to Record Lows in 2015

As reported in the American Shipper,the price of new containers fell to record lows in 2015 and is forecast to fall further in 2016, according to the London-based shipping and consulting firm Drewry, which indicated thatthe decline was due to cheaper production and material costs as well as weaker demand. Container prices fluctuated during the year, but Drewry indicated that the average price of a 20 foot container in 2015 totaled $1,750, down 15 percent from the average price in 2014. At the end of 2015, the price of a standard 20-foot container stood at $1,450, close to the all-time low of 2001-2002, and down from $1,900 a year earlier.
The global container equipment fleet amounted to 37.6 million TEU at the end of 2015, having increased in size by 3.8 percent, or 1.36 million TEU during 2015.

IMCC Leadership and Board Membership

2016-2017

Executive Committee

Randy Guillot, Triple G Express, Chairman

Randall Clifford, Ventura Transfer Co, First Vice Chairman

Chris Giltz, Evans Delivery, Second Vice Chairman

Mark George, Intermodal Cartage, Conference Secretary

Kevin Lhotak, Reliable Transportation Specialists, Immediate Past Chairman

Board of Directors

Jeff Lang, Eagle Systems

Dave Manning, TCW

Phil Byrd, Bulldog Hiway Express

Ed Meyer, Fundis Company

Tom Heimgartner, Best Transportation Inc.

Fred Huennekens, DDI Transportation

Marcia Faschingbauer, Excargo Services Inc.

Greg Stefflre, Rail Delivery Services, Inc.

Shirley Roebuck, Gilco Trucking

Russ Graef, CPG

Bob Curry Jr., Cal Cartage

Dick Coyle, Devine Intermodal

Clifton Parker, G & P Trucking

Mike Payne, First Coast Logistics, Inc.

David Langrehr, Fox Transportation

Louis Campion, MD Motor Truck Association

Wayne Gaumer, Lightening Transportation (new member)

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