New Entrant Rules to Get Tougher
I haven’t posted anything in awhile. Why? Well, let’s just say, if you’re not backing up your computer files, you should be. One day you’re going to push the “ON” button on your trusty laptop, and it’s just going to sit there. I was 80% ready for that awful day, next time I will be 100% ready.
Anyway, I came across this article on the Net about FMCSA’s New Entrant program. As you may know, I am selling a DVD training package, for $275 plus shipping and handling. It is designed for small companies who don’t know much about the safety regulations, such as logbooks, driver files, or drug testing. One of the main groups I market to are the ‘new entrants’, which are carriers who have just gotten a DOT number. FMCSA audits all new entrants within 18 months. According to this article, FMCSA is going to make the new entrant audit much tougher to pass. If that’s true, then you really should buy my DVD package.
Anyway, here is the article, from Traffic World, dated April 21, 2008:
“Never mind the record high diesel fuel prices, new trucking companies soon will have to face a barrier that until now hasn’t posed much of a problem for new entrants: The Federal Motor Carrier Safety Administration. The agency, under fire at times from critics who say the motor carrier regulator has been too friendly to business, is preparing stringent new requirements for trucking companies entering the marketplace. The FMCSA says it expects the demands, including tighter mandates for training, drug and alcohol testing and insurance, could cause some 30 to 40 percent of new applicants to hit the brakes.
The rules could tighten the lid on capacity as the sagging American economy is pressing larger trucking companies to scale back fleets and pushing many smaller truckers and independent drivers into bankruptcy or out of the industry altogether. “This is a much more thorough program and it’s got some teeth in it,” said Stephen F. Campbell, executive director of the Commercial Vehicle Safety Alliance. “Saying ‘I didn’t know,’ it will not be a defense.”
By the agency’s own admission, its past oversight of new carriers has been less than stringent. Under the current program, new trucking companies could operate without drug and alcohol testing program, although they would have to put one in place within 18 months. “Our entrant program was designed to be more of an educational format,” FMCSA Administrator John Hill said. “Carriers can tell [us] they are doing something and that is all we are required to do … we don’t really do a lot of our verification.”
All that is about to change. The agency is gearing up to complete its New Entrant Motor Carrier Safety Assurance Process in the next few months, the culmination of a process launched by the Motor Carrier Safety Improvement Act in 1999. FMCSA expects to issue final rules shortly that will govern the 18-month provisional period and the accompanying audits of new trucking companies. These rules will replace interim final rules issued in 2003. The new rules represent the biggest change in entrance requirements for new truckers since deregulation stripped many economic regulatory requirements from the books.
At the heart of the rule will be 11 regulations, including stringent requirements for drug and alcohol testing programs, insurance and use of records. Unlike the current system, a single violation would result in automatic failure. The new requirements – which were proposed in December 2006 – would be effective 30 days after the final rule is published. Hill says they will not make the entry process easier.
“We estimate through some early analysis that 30 to 40 percent of the new entrants will have difficulty” meeting the new standards, Hill told the National Industrial Transportation League’s Spring Policy Forum on April 8. Hill noted that safety audits required for Mexican carriers participating in the agency’s crossborder trucking program place stricter requirements on Mexican companies than on American operators. “We really ought to do that with the American companies as well,” Hill said.
The FMCSA’s strict new carrier requirements come in the face of mounting criticism from safety groups and others that the Bush administration has not taken a strong enough regulatory role. This new rule may be part of the agency’s answer. The agency has more than seven rule-makings coming out this year ranging from issues addressing intermodal container chassis to sleep apnea.
Although instigated by a lawsuit, the agency’s recently proposed entry-level driver training rules – which will require 120 hours of classroom training time – are another example of tougher requirements in the pipeline. The agency says its figures show highway safety improving in recent years. The large truck fatality rate has fallen to its lowest level since the Department of Transportation began tracking the figure in 1975, for instance, while traffic on U.S. highways has increased 22 percent over the past 10 years. And the FMCSA says since autumn 2007 it has published several rules and regulations ranging from fire extinguisher requirements to Unified Carrier Registration fees.
But many fear the new requirement on new carriers could end up harming the trucking industry and its shipper customers just as the freight downturn is expected to subside. “It’s becoming more and more onerous on small operators,” said Brigham McCown, an attorney and former general counsel at the FMCSA. “More and more regulations at some point starts to push the little guy out of business. … At some point you just say ‘To hell with it, it’s not worth it.’”
Small carriers make up approximately 90 percent of trucking companies, accounting for roughly 50 percent of capacity in the market, according to David Ross, a transportation analyst for investment firm Stifel Nicolaus. “These increased regulations will make capacity tighter in the upturn and will favor the large trucking companies already out there,” Ross said. Many large truckload carriers have parked hundreds of trucks over the past year in response to waning demand, but broad figures on trucking activity in recent months belie the negative reports about the larger economy and may even suggest an upturn is on the way. The American Trucking Associations reported increases in its trucking tonnage index in the first two months of 2008, including a 3.5 percent increase in February over the same month last year.
“You’ll get back into the tight demand environment; when that happens the pricing power goes back into the hands of the carriers rather than the hands of the shippers, where it is now,” he said.
“The agency has to balance the realities,” said Donald Schaefer, executive vice president of the Mid-West Truckers Association. “You can put regulations on the industry, but if you put half of them out of business then you’ve created an all-new set of problems.”
Not everyone thinks there will be a problem. The American Trucking Associations supports the new-entrant rule. “It does make sense from our standpoint to make this process tougher,” said Dave Osiecki, the ATA’s vice president of safety, security and operations. “What I hope it does is ensure a more safe company coming into the industry.”
And the Owner-Operator Independent Drivers Association, whose smaller companies would most likely be the ones affected by the rules, supports the new regulations as well. “Generally, we don’t have a lot of problems with it,” said Rick Craig, OOIDA’s director of regulatory affairs. He said new trucking companies that fail one of the requirements can always reapply. “I don’t think they are going to give up,” Craig said.
But Craig, and Todd Spencer, OOIDA’s executive vice president, also have their concerns, questioning the accident data used to develop the rule and whether the rule emphasizes paperwork over safety operations. “While most of the new carriers have shortcomings,” Spencer said, “they weren’t crashing trucks.”
Airlines Ground Thousands of Flights Due to Maintenance Issues
This week, airlines, led by American Airlines, have grounded over 1,000 flights due to airliners not meeting FAA inspection standards. See article here. Apparently, the FAA issued a directive some time ago that a wiring bundle at the fuel pump must be secured in such a way that the wires don’t move, and therefore can’t rub through, causing an electrical short or fire. Not unlike airhoses on a truck rubbing together, causing an airleak. This has to be costing these airlines tens of millions of dollars, but they only have themselves to blame. When money is tight, one of the first things to go is safety. Right after paying your creditors, but that’s the topic of another rant.
I note that my favorite airline, Southwest, is not being forced to cancel flights. I don’t know what goes on behind the scenes at Southwest, and for all I know, their planes are held together with duct tape, and the only reason they got by the FAA is because they paid them off, but I love that airline. They charge a rate usually cheaper than the American United, Delta, etc. They’re on time. Their employees are not surly and unpleasant. In short, they do what they say they will do. Every time I fly with one of the other airlines, without fail, I regret it. They’re late, they cancel flights (see above), they lose luggage, they suck.
I strive to be the Southwest in my little business corner of the world. As I am discovering with all the various vendors I deal with, finding somebody to give you reliable service is hit-or-miss at best. People promise, but don’t deliver, don’t answer the phone, don’t return phone calls, don’t stand behind their work, you name it. All this, I take for granted, because I do it, without fail. Maybe I’ll start selling that part of my service a little harder, sounds stupid, but God knows, nobody else does it seemingly, ‘ARNOLD SAFETY CONSULTING…. WE RETURN PHONE CALLS!”
Truck Going Wrong Way Crashes, Explodes
This happened Monday, March 31, 2008, in Edmonton, AB. A tractor-trailer ended up on the wrong side of the highway for about 15 miles, before finally driving off an overpass and exploding.
Go here for the live, dramatic video of the wreck.
The brother of the deceased driver speculates he was in a state of diabetic shock when the accident occurred, explaining why he was on the wrong side of the highway. I admit, I am not totally versed on what the physical qualifications are to be a truck driver in Canada. Here in the States, there are rules on being a diabetic. Once upon a time, if you were an insulin-injecting diabetic, you were strictly prohibited from operating a truck. Now, with the Americans with Disabilities Act, diabetics are allowed to drive, although they have to jump through numerous regulatory hoops first.
Ultimately, the responsibility for this type of crash rests with the driver, not the government. If you have a medical condition which causes you to lose consciousness, black out, pass out, lose time, whatever….. what the hell are you doing driving an 80,000 lb. truck?
What Do I Do With a Positive Driver?
From a DOT regulatory standpoint, positive drivers are not something to take lightly. DOT takes these rules very seriously, and will fine a company several thousands of dollars if every ‘I’ is not dotted, and ‘T’ crossed. While they may take it a little too far, from a safety standpoint, you want ensure your employees are not using. If they are, it’s just a matter of time before they hurt themselves, or worse, somebody else.
You have five types of DOT drug tests: pre-employment, random, post-accident, reasonable suspicion, and return-to-duty. The most common test a driver fails is the pre-employment test. You may think, ‘why on earth would a driver apply for a job if he’s on drugs, and he knows he’s going to be drug tested?” The real question is, “why wouldn’t he??” After all, it costs him nothing. It may have been two weeks since he smoked his last joint, so he thinks he might pass. If he fails, oh well, on to the next job.
This type of positive is easy to handle, simply do not hire the driver. This is why you never, ever, put a new driver behind the wheel until you get his pre-employment drug test results back; in case he tests positive.
The more complicated scenario is when a driver fails a random test. If a driver flunks a random test, the Medical Review Officer (MRO) will notify you, probably with the telephone call, a week or so after the original test was taken. A phone call is not guaranteed, however, sometimes they send the results via fax or email. Once you receive the results, you are responsible for immediately removing that driver from all ‘safety-sensitive’ functions. The definition of ‘safety-sensitive functions’ includes driving the truck, fixing the truck, loading the truck, or even riding in the truck.
DOT expects you to act immediately. When they are conducting their audits, they will find out if you had any positive tests, determine the time you were notified, and then search your time records, dispatch sheets, and logbooks to determine how long a driver drove after you were notified. If it is more than an hour or two, they will likely nail you for using a positive driver.
You must use your cellphone and get the driver in question out of the truck immediately. You need to have that driver park his vehicle, then get another driver to take the truck. Do not let the positive driver ride in the truck.
Do not ignore a positive test result! I have seen this happen time and time again, a driver fails a test, and the carrier just keeps on dispatching him. Drivers aren’t that hard to find, get a positive driver out of the truck now!
Now that you have removed a positive driver from duty, what do you? The simple answer is, ‘fire him’, but things are not always that simple. Perhaps he is a long-time, loyal employee, and you want to give him a second chance. When making the decision on whether or not to keep a positive driver, some questions which should influence your decision are: What type of drug did he test positive? Was he using it on the job or while off-duty? Was it occasional or regular usage? How valuable is this employee?
Should you determine that you want to keep the driver, he must go through the Substance Abuse Professional (SAP) process to re-qualify as a legal, CDL driver. He must complete the SAP process exactly and completely, otherwise he will still be viewed as a positive driver by DOT.
When this rare circumstance does happen, if you don’t remember exactly what to do, call an expert, like Arnold Safety Consulting, for help!
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Eric Arnold is a Former Enforcement Agent 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 eric@arnoldsafety.com.
Arnold Safety simplifies D.O.T. Compliance for commercial vehicle operators. Get Eric Arnold’s USDOT Compliance Guide, DVD, & Regulations at ArnoldSafety.Com.
Learn more about Arnold Safety compliance consulting services at ArnoldSafety.Com.
