It’s been over 3 months since I’ve posted anything here. Basically, over the past 2 months, I haven’t had time to breathe. I finally have surfed to the top of my giant pile of work. It’s not done, but at least I am now on top of it.
What’s new? They are still on track for mandatory electronic logs by December, 2017. Their audits are worse than ever. Your CSA scores are critical, absolutely critical, to keeping DOT away. Make sure your drivers have a bluetooth device. Make sure they are always wearing their seatbelts. Stay in their ear about keeping their speed down, and otherwise obeying the traffic laws. The police love to pull trucks over. Don’t give them an excuse. Make sure your drivers know that any… ANY write-up by a DOT officer is very, very damaging not only to the driver, but you the company.
Many drivers believe that it’s all cool because the police officer just wrote him a warning, and he doesn’t have to pay a fine, or go to court. No. No. Nononononono. That ‘warning’ generates CSA points for the carrier. Those points lead to audits, which are rapidly becoming impassible. Fail a DOT audit, and it can potentially cost you tens of thousands of dollars, all stemming from that ‘warning’. As for the driver, those ‘warnings’ all go on your CSA record. Many motor carriers are now pulling a driver’s CSA record prior to hiring them. If you have ‘warnings’, whether it be for logs, speeding, or whatever, all over your CSA record, you’re not getting hired, at least not for the job you want.
Much of what FMCSA does anymore all revolves around politics. The present leadership of FMCSA has determined the best way to decrease accidents is to regulate the industry is tightly as possible, and then regulate it some more. They have not been successful in reducing accidents, but since regulation is the only tool in their toolbox, as the GEICO people would say, it’s what they do.
One of my customers was speculating about how the November elections will affect FMCSA’s behavior. He was enthusiastic as he believes that once Obama is gone, FMCSA will loosen its grip on the industry. I’m not so sure.
The betting markets right now believe Hillary Clinton has around a 75% chance of winning. Believe it or not, but I think there is a small chance that you may get slightly more sensible leadership out of a Clinton Administration, than the current bunch running FMCSA. I do not think Hillary Clinton wants to simply take over Obama’s government. Make no mistake, she’ll make changes. The good news is, she can be bought. If the industry can come up with her ransom, they might get some breathing room.
If Donald Trump wins? Trump has never been a fan of small business. My guess is, you’ll get more of the same from a Trump Administration.
Someone asks me the other day what happened to my Manifesto? To refresh your memory, I was working on a Manifesto for a More Sensible FMCSA, to be sent to all contending Presidential candidates. I think I got as far as:
1) Fire half of the FMCSA staff, which will be possible once the ELDs are fully implemented.
2) Eliminate non-preventable accidents in any rating considerations.
3) Establish due process in any rating process.
4) Put the hours of service rules back to the 2003 rules, ie, permanently eliminate the 30 minute break, and any changes to the 70 hour rule.
Considering our two choices are Hillary Clinton and Donald Trump, I decided to save my effort. We have managed to nominate two truly terrible people, who will be terrible Presidents. Hooray! USA! USA! USA!
What’s new in the DOT world? DOT continues to move forward with their new rating system. I had dismissed this out of hand, but, unfortunately, I probably need to start taking it seriously.
DOT served notice in January, 2016, that it intended to eliminate the Satisfactory, Conditional, and Unsatisfactory rating hierarchy, and replace it with a Fit/Unit determination, which would be driven, in part, by CSA scores. Since Congress slapped the agency and their unreliable CSA scores down in December, 2015 with the FAST Act, I somewhat ignored this rulemaking.
However, FMCSA, while often wrong, is never in doubt. They are marching merrily along with their rulemaking, undaunted that pretty much everyone else thinks their CSA rating methodology is wrong. Absent more Congressional action, FMCSA will get their way, and the new rating system will be implemented.
My best guess on the timing? The comment period on the rulemaking is closed. So, the agency will now write their rebuttals to all the negative comments they have received. If you think they are considering the merits of the comments, you don’t know how government works. Once they’ve finished their arguments, they’ll publish the final rule. My guess is it will happen at the end of the year, with an implementation date of sometime in the latter part of 2017. They might get it done faster, but I’ll stick with the 2nd half of 2017. The industry will have until that date to gin up some more Congressional intervention to stop them.
How will the new rating scheme affect you, should it happen? Most of you carriers with Conditional ratings will be rated ‘Fit’. Hooray! Some of you will be rated ‘Unfit’, which means you’re out of business. A few carriers without ratings, or with Satisfactory ratings will be rated as ‘Unfit’, and they’ll be tossed out, too.
Once the rulemaking is implemented, there will be an initial culling of hundreds of motor carriers, who will be determined to be ‘Unfit’. There is an appeal process, and a corrective process, so a motor carrier may try to save itself. The appeal process is a complete and utter sham. In FMCSA-world, you are guilty until you prove yourself innocent. You will have a very limited amount of time to prove yourself innocent, and then it’s unlikely your case will be heard by FMCSA lawyers anyway. Your only chance is to find the tens of thousands of dollars necessary to take your case to a real court of law, and not FMCSA’s kangaroo court.
As for the corrective action process, this is a legitimate process, where you actually do get fair treatment. It is not timely treatment, though. The agency only has a few people dedicated to reviewing rating upgrade petitions, and once this rulemaking hits, they’ll be swamped with petitions. There’s no way they’ll be able to review them within the time period allowed, with the result being carriers will be irrevocably placed out of business, while their petition sits on somebody’s desk.
Frankly, I think the agency wants to put these carriers out of business, and is not particularly concerned with due process, and other such high-minded nonsense.
This is all speculation at this point, as no one knows, 1) whether this will actually happen, 2) when it will happen, and 3) what the exact nature of the rating system will be if it happens. Nevertheless, I think there’s a better than even chance this happens sometime in 2017.
Eric Arnold is a Very Former Enforcement Manager with the Federal Motor Carrier Safety Administration, and a leading expert on USDOT compliance for small businesses. Do you have a question for Eric Arnold? Email him at firstname.lastname@example.org.
Two weeks ago, I put up a post regarding the highway deaths on May 26, 2014. I wanted to get a closer look at the details of accidents and deaths on our roads, which happens in great numbers, every day. I gathered this information from the NHTSA databases, and the Internet. Here are some more details on the fatal accidents from May 26, 2014.
Some specific cases
The first to die on May 26, 2014, at 8 minutes past midnight, was an unknown 42 year old man, who was a passenger in a Jeep Cherokee in rural Georgia. He had a Blood-Alcohol Concentration (BAC) of .36. To refresh your memory, .08 is legally drunk. His buddy, who was driving, had a BAC of .20. The driver had a revoked license, as well as 2 previous DUIs. The Jeep flipped, the unknown 42 year old was ejected, and killed.
All got all of that from the FARS database. I looked and looked for this one on the Internet, and I couldn’t find it, which I found astonishing. What happened to the driver? He survived the accident, so he definitely should have been arrested, tried, and convicted. Furthermore, and I found this even more shocking, these two powerdrinkers had a 12 year old boy with them in the backseat of the Jeep. Somehow, none of this made news.
The last to die on May 26, 2014, at 5 minutes to midnight, was another unknown, a 38 year old American Indian woman pedestrian, who was hit on an interstate highway in New Mexico. She had a .28 BAC. There was no information on the vehicle which hit her, which likely means it was a hit and run. This was another article on which I could find nothing. No obituary, no articles on the accident, nothing.
The oldest to die was an 89 year old man in Pennsylvania. He was a World War II vet who stormed the beaches at Normandy. He hit a telephone pole.
The youngest to die was just short of her 2nd birthday. She wandered into traffic in Chicago, and was hit by a city bus.
The most to die in one accident was 4. A man, driving a big SUV, was going too fast on a rainy highway in Texas. He lost control, crossed the median, and slammed into oncoming traffic. He killed his in-laws who were in the back seat, and he killed two more people in the oncoming car he hit.
The longest prison sentence handed out from a fatal accident was 16 years. A powerdrinking idiot, with a BAC of .20, hopped into his giant pickup truck in the center of a town in Washington State. The bars were closing. He revved it up, peeled out, lost control, and ran onto the sidewalk, hitting numerous pedestrians. He tried to back up and escape, hitting more pedestrians in the process. One of the pedestrians jumped on the running board and punched him in the face through the open window, until he turned off the engine. One of the pedestrians he ran over was killed. The judge, to his credit, sentenced him to the maximum sentence allowed by law.
The 2nd longest was only 4 years. A woman had a BAC of .21. She weaved all over the interstate in Florida. She sideswiped another car, and sent it flipping. A woman in the other vehicle was killed. The drunk was not immediately arrested, as the police first needed to conduct their investigation, which took several months. In the meantime, after the first fatal drunken wreck, she demonstrated her remorse by getting stopped again for DUI. This time, she blew a .282. Soon thereafter, she was arrested for the first, fatal accident. The judge sentenced her to all of 4 years in jail. I am not sure why killing someone in a drunk accident is worth 16 years in Washington, but only 4 years in Florida.
3 teenagers riding in a car in New Jersey were killed when their friend drove the car they were riding in head-on into a city bus. Social media speculates the girl driving was playing a game where she would swerve into oncoming traffic before swerving back into her own lane. The government has charged her with 3 counts of vehicular homicide. This case is still pending, 2 years later.
The fastest speed estimated in a fatal accident was 111 mph, driven by a 20 year old girl in Missouri.
The 2nd fastest was 101 mph, driven by 48 year old powerdrinker in Louisiana, who rolled his pickup truck in the middle of the night, with a BAC of .21.
An elderly couple in North Carolina drove their pickup off the road and down into a heavily wooded ravine. They were not found until 2 days later.
An active duty sergeant in the Army survived overseas deployment. He did not survive driving his motorcycle drunk, however.
A man in Wisconsin was killed when his car hit a deer.
A man in South Carolina was killed when his motorcycle hit a turkey.
Driving is a potentially dangerous activity, and requires attention and care at all times. Don’t become a statistic!
Today is the 2 year anniversary of May 26, 2014, on which 76 people died on the U.S. public roadways. I know this, because I went through the National Highway Traffic and Safety Administration (NHTSA) database for 2014, and counted them.
I have been toying with the idea of digging deeper into the who, what, when, where, and how of highway deaths. I believe knowing more about the deaths themselves will enable me to better understand countermeasures to prevent these deaths. This is mostly a mental exercise, as I doubt that even if I knew the exact answer, I’d be able to do all that much about it, all by myself. Nevertheless, I think there is some satisfaction in knowing. Also, I do think that some of the solution to less death on the road is publicity, so this is a very small step in that direction.
NHTSA publishes annual databases from their Fatality Analysis Report System (FARS). These databases identify every fatal accident in the U.S. for that year, plus the vehicles and generic information about the persons involved in said accidents. The various police departments throughout the country submit relatively standardized accident reports to NHTSA, who populate this database. I’m pretty sure that’s how it works. The database is 99.99% complete, or so I think. In other words, if someone got killed in a car wreck in the U.S., that accident is almost certainly in the database.
The databases identify nearly everything about the accident, except the names of the participants themselves. It identifies the exact location, by means of latitude and longitude. That’s where I start. First, I find the location on Google Maps. Then I start googling the date of the accident, and the location, to see if I find any news articles regarding the accident.
This is one of my findings; it’s surprising how many of these accidents draw blanks on the Internet. IE: the accident happened, someone got killed, and it never made any news.
I am looking for the names of the participants in the accident. Once I have that, then I can pretty well find everything that’s been written about the accident. If you google, ‘may 26, 2014 accident, Birdsboro, pa’, you might find it, and you might not. But, if you google, ‘john jacob jingleheimerschmidt may 26 2014 accident’, that’s going to bring it right up.
Of the 76 dead, I was able to specifically identify, by name, 58, which is 76.3%. I think a few of the missing names might be floating around out there somewhere on the Internet, but I couldn’t find them. I’m certain most of the missing 18 names aren’t out there. The government has them on their official accident reports, but they are not on the Internet.
I picked the year 2014, because that’s the most recent year for which FARS has data available. I picked May 26, for no particular reason, other than it was the first day in the week which mirrors the Life magazine article about the Vietnam War dead. It also happens to have been Memorial Day, so there’s that.
There were 32,675 people who died on U.S. roadways in 2014. This works out to an average of 89 deaths per day. 76 died on May 26, 2014, so this was a good day in terms of death. It is probably attributable to the fact it was a holiday, Memorial Day, and less people were driving.
Most people were killed in the afternoon hours of 1:00p – 6:59p. 44 of the 76 were killed in these hours, which is 57.9%. This is predictable; these are the hours when most people are on the road.
The longest gap when no one got killed was 2 hours and 8 minutes, which occurred between 3:45a – 5:53a.
There were 29 definite drunk accidents. FARS defines a ‘drunk’ accident as having any measurable amount of alcohol in your system. I would argue with their definition. In other words, a BAC of .02, .03, .04, probably had little or nothing to do with the accident, and was not ‘drunk’. However, for simplicity’s sake, I am using their definition. In my definition, I am also including drugs. I think FARS does something similar. If a driver tested positive for drugs, I am considering that ‘drunk’. So counting the alcohol and the drugs, there were 29 drunk accidents.
There were another 7 possible drunk accidents. I say possible, because the police did not test for alcohol. One of the data fields captured in the database is whether or not an alcohol test was conducted on each driver. On 7 of the dead, the police did not conduct any sort of alcohol tests. I guess it’s not a 100% certainty the police test in every fatality. For example, the police work an accident where someone wraps themselves around a tree. There’s empty beer cans and liquor bottles strewn all over the ground. I guess they simply say, ‘what’s point of testing? It’s obvious the driver was drunk, why bother?’
At any rate, there were 7 accidents where someone was killed, and judging by the other facts surrounding the accident, I think it’s possible, if not probable, the driver was drunk, but no alcohol test was conducted by the police.
Of the 29 drunk accidents, the drunk was killed in 20 of them. This is something many people don’t know. Most drunk drivers usually kill themselves.
Sadly, that doesn’t always happen. In the 29 drunk accidents, the drunks also killed 9 other people.
The average BAC of the drunk in the drunk accidents was .19. .19!! To refresh your memory, the legal limit is .08. The average BAC of our sample of drunk drivers was .19. That’s smashed. That’s a 200 pound man downing 10 pints of light beer in 3 hours. That’s a pint every 18 minutes. Compared to the general population, I’m a pretty heavy drinker, and I can tell you, .19 is extreme. It’s ridiculous, it’s dangerous, and it should not be tolerated, if the car keys are anywhere near the powerdrinker in question.
I found this very significant, and supports what I have always suspected. The national .08 BAC legal limit is way too low. The .01 – .10 drivers aren’t the problem. It’s the alcoholic idiots who just can’t help themselves who are killing people. The police trolling for the .08 – .10 type drunks are just wasting resources, which could be better spent looking for the hardcore morons.
Some more findings
The smallest state with a fatality was North Dakota.
The largest state without one was Arizona.
Of the 76 dead:
46 were men.
10 were pedestrians or bicyclists
19 were motorcyclists
7 of the accidents involved Commercial Motor Vehicles. Of those accidents, in only one was the CMV at fault.
States with the most dead:
Texas and surprisingly, Michigan, tied at 9.
The total dead in cars or trucks was 45.
Of those, 23 of the dead did not have seat belts on.
There were 19 dead motorcyclists.
Of those, 13 did not have helmets on.
The average age of the dead was 45.8. The normal average age of death if 78.7. Those are a lot of years, cut short. Driving is serious business. Do it carefully!
I took a sightseeing trip to Washington DC for a day a month ago. I went to the Newseum, which is basically an American history museum, as viewed through newspapers, radio and TV. One of the exhibits was an expose of the Life magazine edition from 1968, where they printed a picture of every U.S. serviceman killed in Vietnam for a one week period, around Memorial Day, 1968. There were over 200 servicemen killed during this one week period. According to the exhibit, this article in Life helped turn the tide of public opinion against the war. The number ‘200’ is simply a statistic when you say it out loud, but when you count it out, one by one, and actually see the pictures of the young men who were killed, then it becomes real.
I am thinking about doing something similar for highway deaths, if I had enough time. It would basically be like the Vietnam Wall, except for highway deaths. If 200 pictures of U.S. servicemen in a week is enough to get the public’s attention, there are 3 times that many people getting killed every week on the road.
We had an accident here locally in the past 6 weeks. 5 people were killed in one accident. The local newspaper carried it for day or so, and then it was quickly forgotten. They never did bother to identify all the dead. If 5 people got killed in a helicopter accident, it would lead the local news for a week. It would probably even be picked up nationally. On the roads? Not so much.
Sometimes fatal car crashes don’t even make the news. If an accident happens in a newspaper dead spot, such as out in the country, desert, or in the middle of the night, it may not be covered at all. If I was a murderer, and I wanted to quietly get rid of 3 people, I’d do it in a car wreck on a rural back road, in the middle of the night. Almost guaranteed to get no press coverage at all. Maybe there’s just so many highway deaths that we’re numb to it. The number of people killed on our roads is appalling, but in reality, we don’t care. Not really.
If it happened all at once, then it might make an impact. For example, if all 32,675 people who were killed on U.S. roads in 2014 died all at once on the last day of the year, then maybe people would sit up and say, ‘hey, what just happened over there?’ To put that in historical perspective, 32,675 Americans have never been killed in one event. I’m pretty sure I’m right on that. I am getting my stats from the Internet, and I’ve never known the Internet to lie to me. Ok, maybe on politics. Anyway, the 1918 Spanish Flu killed approximately 675,000 Americans, but that was stretched out over a several months. The Battle of Normandy killed an estimated 29,204 Americans. Close, but highway deaths are still more. 9/11? Not even close.
They don’t die all at once, of course. Instead, it’s ones and twos, mostly ones; just a sad, depressing, litany of tragedy. I think there are a number of things which could be done to lower the number of dead; most of which having nothing to do with more laws and regulations. Publicity would certainly be one thing, which is why I’m thinking about building my own Vietnam Wall for highway deaths.
So, what’s new in DOT world? Well, DOT’s electronic log rulemaking is still in place. You must have electronic logs in your trucks by December, 2017. The main exception is that drivers who use time cards are probably exempt from getting the electronic logs. If you fill out logs 9 days or more out of 30 days, you must have the electronic logging equipment installed in your truck. OOIDA has sued the FMCSA (aka DOT) on constitutional grounds, but I doubt they’ll get far. The rulemaking is backed up by an act of Congress mandating the black boxes, so I think the courts rule against OOIDA.
DOT has issued a proposed rulemaking which will completely revamp how they determine the fitness of a motor carrier. Presently, they rate the motor carriers as Satisfactory, Conditional, or Unsatisfactory. An Unsatisfactory carrier is given 45 or 60 days (depending on whether they transport passengers or placardable HM) to improve their compliance, or be put out of business.
Under the new rulemaking, it will only have two categories, Fit and Unfit. It will also rely heavily on the CSA scores in making that determination. I have not yet taken this rulemaking seriously, as I don’t think it’s going to happen. It’s reliance on the CSA scores has the industry and Congress up in arms. The industry last winter successfully petitioned Congress to remove the CSA scores from public view, based on concerns about their reliability. It is these same CSA scores, of questionable reliability, which DOT proposes to use as a basis for putting companies out of business. DOT says the scores are 100% reliable. Everyone else says they are not. I think Congress will win out again, and the fitness rulemaking will be delayed or scrapped altogether.
As you probably know by now, FMCSA issued their final rulemaking forcing you to get an Electronic Logging Device (ELD) in your truck. This must be done by December 18, 2017. The ELDs will apply to all commercial vehicles with a GVWR of 10,001 lbs. or more. Drivers are not required to use ELDs if:
1) they are only required to complete a log 8 times or less in 30 days.
2) they have a vehicle manufactured before model year 2000.
The rulemaking is incredibly complex, complete with painstaking technical specifications each ELD unit must meet. Furthermore, DOT has set up an entirely new, detailed process which must be followed to properly document drivers’ hours as recorded by the ELDs. It appears they have tried to account for every last scenario whereby you may try to cheat their ELDs. They have a website, where they have FAQs, list approved vendors of the ELDs, etc. According to this website, manufacturers may begin registering their ELD devices with DOT on February 16, 2016. Probably within a month or two, DOT will then put on their website somewhere which devices are registered, which I guess means ‘approved’.
The main thing to know at this point is, you are going to need these ELDs by December 18, 2017. That date might change, but I would not count on it. If it does, it might only move back a month or two. This rulemaking will almost certainly happen. OOIDA, God bless them, is suing to stop the rulemaking, but I doubt they will get far. As far as the technical specifications, and how to use the ELDs, I would probably wait a few months before digging into the nuts and bolts of that. After all, DOT is not even allowing manufacturers to ‘register’ their ELDs with DOT yet.
My long-held belief is this rulemaking is going to dramatically force many, many small carriers out of business. If you manage to be one of the carriers who can both afford to install the units, and make a profit by operating strictly legally, then there should be a world of freight available to you.
A friend of mine is a wheel in the logistics department of a Fortune 500 company. He disagrees. He doesn’t think this rulemaking will make much of a difference at all because he thinks the small carriers will just ignore or cheat it, and that DOT doesn’t have enough resources to catch all the guys who will be cheating the rule. Maybe, but I doubt it. This rulemaking has rules, on top of new rules in it. My guess is they have built an electronic cage, from which escape is impossible. Time will tell.
In a surprisingly good move, the FMCSA, for the first ever to my recollection, announced last month that motor carriers may drug test at a 25% rate in 2016, instead of the 50% we have always used. This provision has always been in the rule, except it has never been used. If the positive rate for the industry is below a certain level, then the FMCSA may allow the industry to test at the reduced rate. Apparently, the ATA convinced the FMCSA there really aren’t that many drivers testing positive for drugs.
Basically, what this means is you only have to do half as many drug tests as have been done previously. I have always thought that truck drivers are drug tested as much as, if not more, than any other profession, including airline pilots, baseball players, astronauts, and politicians. It is about time the FMCSA reduced the frequency of these tests.
It has always been critical that you conduct enough random drug and alcohol tests. If you are short on your random testing, the penalties often run between $10,000 and $20,000, for a few missed tests. It’s crazy. I have always argued when defending clients in this situation that testing at a 40% rate is a perfectly safe and prudent testing rate, which does not compromise highway safety in the least. After 13 years, the FMCSA finally agreed.
I spent a few hours reading DOT’s new rulemaking on coercion. It goes into effect at the end of January, 2016. This rule is required by Congress’ MAP-21 law of 2012. DOT is required to implement a rule, which will forbid anyone from coercing drivers to break the safety rules. Presumably, they are talking about the hours of service rules, but coercion could apply to anything, like maintenance. For those not up on ‘government-speak’, coercion means forcing you to do something you don’t want to do. For example, the IRS coerces me to pay a significant percentage of my earnings to them. I suppose another word which somewhat equates to ‘coercion’ is ‘blackmail’.
Here is what I learned after reading this rule:
1) DOT admits their regulations are complex.
2) Other government entities, like the Department of Defense, are exempt from coercing drivers to break the rules. The government can coerce you all day long, and it’s perfectly legal, but we already knew that.
3) DOT states the burden of proof is on DOT in these enforcement cases.
4) DOT admits it has no proof that coercion is causing crashes.
5) Names of complaining drivers will be available to the accused motor carriers and/or shippers.
6) Shippers who force drivers off their property, after they make them wait for hours to be unloaded, even though they are now out of hours, are not coercing the driver to violate the hours of service.
I doubt this rule will have much impact. It will certainly not lessen accidents. I doubt many drivers will complain. DOT is limited in its ability to protect a complaining driver from retaliation. Of the complaints DOT does receive, many will be ignored. DOT has wide discretion to determine which are valid complaints and which are not. Complaints will be judged not just on the allegations themselves, but by the nature of the accused. For example, if driver Smith complains that ABC Trucking Company, with their 20 trucks, made him violate the 14 hour rule on December 1, 2015 by threatening to fire him, there is a decent chance DOT might investigate ABC Trucking Company. If driver Smith alleges FedEx or Swift did the same thing…. Not so much.
This rule will not be used by DOT against shippers. For one thing, many shippers are huge, with lots and lots of lawyers. DOT hates lawyers, and will usually avoid any action against any entity which has lots of lawyers. DOT will justify their inaction by correctly pointing out that it will be difficult to prove coercion, especially against shippers.
One thing did strike me, as I spent a few hours reading this rule. Countless numbers of man-hours have been spent creating this rule. DOT spent months creating this rule, and then the regulated industry spent a huge amount of time commenting on the rule. Yet this rule will do absolutely nothing to improve safety. Coercion is already illegal. This does nothing more than add another bureaucratic layer of regulations on top of what was already an illegal activity. Does coercion go on in the industry? Absolutely. Every day. Is it causing crashes? I doubt it. I don’t have any proof of that, but then neither does DOT, as they admitted in their rulemaking. This is simply another massive solution in search of a problem.