Another update
Well, as I said, I swore I would keep this site updated, and I guess I’m not doing it. I think I am suffering from general, middle-aged burnout with my job. Besides, probably every topic pertaining to the DOT regulations has probably been addressed somewhere already on this site. Maybe not.
Anyway, what’s new? Well, DOT’s new target was the farmers, but they have backed off on that. They were going to force them to meet all the compliance requirements, and take away all their exemptions, such as licensing. I guess the farmers have more political pull than the small truckers have, because DOT decided not to pull all the exemptions after all, assuring us they never had those intentions in the first place. Yeah right.
I really can’t think of anything else to say at the moment. Writer’s block again.
Update
At some point in the past, I vowed to keep the blog site current, so I guess I’ve been falling down on that, since I haven’t posted anything in 6 weeks. I guess there’s really not much to report. ATA is continuing to fight DOT on their ridiculous new hours of service rules. The results of that war will not be known for many months; possibly not until after the 2012 elections. DOT announced the electronic on-board recorder final rule will not be published until next year, which means it will probably be 2015 until you are forced, at the point of a gun, to get e-logs in all your trucks. All I can say there is, if you don’t want the e-logs, vote against Obama and Ray LaHood in 2012. DOT’s war against Chinese bus companies is winding down, which is bad news for anyone who isn’t a Chinese bus company.
Finally, in Washington, the debt ceiling, kabuki dance nears its conclusion. I see nothing in what is being discussed that will have any impact on trucking and the DOT. In other words, the FMCSA’s budget is not going to be slashed by 50%. For that matter, it’s not going to be cut at all. That’s all I have for now; I have to go buy some more gold, so I have something to barter with, once the dollar becomes worthless.
Upgrading DOT Safety Ratings
Many of you have Conditional DOT safety ratings, and have found that a Conditional rating hurts your business. A for-hire motor carrier is at a significant disadvantage as some brokers and shippers won’t load you, some will load you but pay you less, and insurance companies charge you more in premiums. If you have an Unsatisfactory rating, you only have 60 days to convince DOT to let you continue operating, or they place you Out of Service.
How do you get your rating upgraded to Satisfactory? It’s not easy. Under the current Obama Adminstration, it’s becoming increasingly more difficult every week. DOT used to conduct, at a motor carrier’s request, an audit, to determine a carrier’s safety fitness. If the results of the audit were good, you get the Satisfactory rating. If they were not good, you get to keep your Conditional rating, or move down to Unsatisfactory, and get a giant fine. FMCSA no longer conducts these followup audits for rating purposes. FMCSA has decided they will audit who they want to audit, and if you get a less-than Satisfactory rating in an audit, too bad for you.
So how do you get the rating put back to Satisfactory if they won’t reaudit you? There is a procedure in the rules which allows you to petition them based on corrective action. You send them a letter, with whatever backup documentation you want, and attempt to prove to them you are in compliance with the rules.
What rules must the FMCSA follow in granting or denying these petitions? None. Ok, virtually none. The rules say a motor carrier must have “adequate safety management controls in place, which function effectively to ensure acceptable compliance with applicable safety regulations”. So, what’s that mean? Well for one thing, I guarantee that your idea of ‘acceptable safety management controls’ is different than FMCSA’s. The result of this is, you can petition them and petition them and petition them, and they can just keep saying NO. On one carrier, where we were denied multiple times by the FMCSA for the Satisfactory rating, the petition we submitted where we finally got the rating weighed 25 pounds.
But there must be an appeal process, right? This is America, if FMCSA is unjustly denying me a Satisfactory rating I must be able to appeal, right? Well, yes you can appeal. You can file your appeal, and explain why you should be Satisfactory. It will go to Washington DC, where it will sit. And sit. And sit, for literally years. I am not making that up. It will sit for years. When it is finally ruled upon, you will lose. You will lose, because it is such a nebulous and undefined standard, the decision-maker will take FMCSA’s side. Not to mention the decision-maker is an employee of FMCSA. Therefore, yes, there is an appeal process. It is a useless and meaningless appeal process, and you’ll never win using it, but there is an appeal process.
Don’t get me wrong. Rating upgrades can be accomplished. I have done them. I know what FMCSA wants to see in order to grant the upgrades. If anyone can assist you in getting a rating upgrade, it’s me. Some upgrades are easier than others. I believe they will be more difficult after this Sky Express business. It is easier if you have little or no violations. It is easier if your CSA scores are not high. Most FMCSA personnel are relatively fair-minded, but they want extensive proof you are not violating the rules. Getting a safety rating upgraded is difficult, and takes a lot of time. The days of sending in a letter, and getting the rating are over. It takes time, and I get paid for my time, so don’t fall out of your chair, when I tell you how long I think it could take to get the rating, and how much I’ll charge to help you.
Ray LaHood Throws FMCSA Under the Bus
So, let’s recap the Sky Express saga. They were audited in April, 2011. This was no doubt generated due to the 15 fatality bus crash in the Bronx by another bus company. They were found to have enough violations, which generated a pending Unsatisfactory rating. A passenger carrier with a pending Unsatisfactory rating has 45 days to demonstrate to DOT they have improved their safety operations, so DOT will upgrade their rating to Conditional, allowing them to operate. If a passenger motor carrier is making a good faith effort at complying with the rules, DOT can extend the Out of Service date by up to 10 days. Apparently, Sky Express had submitted enough paperwork which justified the FMCSA extending their Out of Service date.
Last Tuesday, May 31, Sky Express had a four fatality accident, where their driver evidently fell asleep. Sky Express was operating in the 10 day extension window granted by DOT at the time. On Thursday, Ray LaHood, Obama Secretary of Transportation rushed to the microphones to declare how disappointed he was in FMCSA, and that there will never be another extension under his watch. FMCSA, at that point, hurriedly revoked Sky Express’ authority to operate.
So, what do we make of this? First, I haven’t seen anything in news on the Richmond accident showing the driver was in violation of the hours rules when the bus crashed. Just because a driver falls asleep, does not mean he violated the hours of service rules. In fact, he probably was in compliance with the rules, otherwise, you would have heard something by now. Second, issuance of the 10 day extension is common practice within FMCSA. The agency usually leans against placing a motor carrier out of business, and gives them every benefit of the doubt before casually throwing private citizens out of work. I would wager the North Carolina FMCSA office did not casually issue that extension, but instead had proper justification for doing so.
So, what’s the fallout here? Basically, this means it’s going to be that much harder to get safety ratings upgraded. FMCSA personnel operate first and foremost under the rule of Cover Your Ass (CYA). Never do anything that may jeopardize your personal standing or job position. Safety, commonsense, the public good, whatever, all takes a backseat to CYA. With Obama flunkie Ray LaHood running wild, threatening to place any and every small business who has an accident out of business, the rules have changed. FMCSA personnel will now make it very difficult to get safety ratings, particularly Unsatisfactory ratings upgraded, just so they don’t have to face the wrath of politician Ray LaHood.
DOT Re-Opens HOS Rulemaking for Comment
Apparently, FMCSA is re-opening its job-killing, nothing-to-do-with safety rewrite of the hours of service rules to comments. FMCSA is presenting four new studies, and is seeking comments on them. At present, there is no timetable as to when they are going to close the comment window, although the courts have directed FMCSA to have a final rule by July 26.
I have not read the new studies. I am not going to read the new studies. But I know what’s in them. This is simply a very educated guess, but FMCSA’s initial statistics justifying their restrictive rules was so slipshod, they would have been beaten in court. So, voila! 4 new studies, all of which undoubtedly state there’s an epidemic of death on the highways caused by fatigue, and only Obama’s new rules can save us. All patent nonsense, of course. Nevertheless, more junk statistics “justifying” the need for more rules. Maybe they explained how a life went from being worth $3 million to $6 million at the stroke of a pen. At any rate, ATA will turn their statisticians on them and have an answer, at some point.
Obama Administration Plans to Tax Miles Driven
Apparently, in the new highway reauthorization bill slowly being crafted in Congress, Ray LaHood and Obama have inserted language requiring the study and implementation of a plan to tax automobile drivers based on how many miles they drive. More information is found in this blog by “The Hill”.
This is no surprise at all, and will certainly happen if we do nothing and let it happen. It will certainly happen quicker for commercial vehicles, as all will have EOBRs in them within the next 5 years if the Obama Administration and the American Trucking Association get their way. Not a problem to track and tax a truck if it has an EOBR in it.
And now, one of my favorite Beatles tunes, Taxman:
Let me tell you
How it will be.
There’s one for you,
Nineteen for me,
‘Cause I’m the taxman.
Yeah, I’m the taxman.
Should five percent
Appear too small,
Be thankful I don’t
Take it all.
‘Cause I’m the taxman.
Yeah, I’m the taxman.
If you drive a car,
I’ll tax the street.
If you drive to city,
I’ll tax your seat.
If you get too cold,
I’ll tax the heat.
If you take a walk,
I’ll tax your feet.
Taxman!
‘Cause I’m the taxman.
Yeah, I’m the taxman.
Don’t ask me what I want it for,
(Uh-uh, Mr. Wilson.)
If you don’t want to pay some more.
(Uh-uh, Mr. Heath.)
‘Cause I’m the taxman.
Yeah, I’m the taxman.
And my advice to
Those who die.
(Taxman!)
Declare the pennies
On your eyes.
(Taxman!)
‘Cause I’m the taxman.
Yeah, I’m the taxman,
And you’re working for no one but me.
(Taxman!)
I just learned something recently about this song…. it’s actually accurate. I just assumed the part about “One for you, nineteen for me” was George Harrison exaggerating. In truth, he was not exaggerating. Apparently, in the 1960′s the British government taxed high wage earners, like the Beatles, at a 95% tax rate. Therefore, one for you, nineteen for me. Well, coming soon to an IRS office near you.
He’s Dead Jim
Numerous sources are reporting Osama Bin Laden is dead, and U.S. officials have the body. The President to speak shortly. Way to go U.S. Military! Send the bastard to hell.
Former FMCSA John Hill Comments on HOS Issues
There was an interesting article published on April 20, 2011 at www.truckinginfo.com. The article is here. It is an interview with the former head of FMCSA, John Hill. His opinion on the new HOS rules is the rules are being pushed by the Obama White House, and the bureaucrats at FMCSA are being told what to do. He doesn’t name names as to who’s calling the shots, whether it be Ray LaHood, Rahm Emanuel, or William Daley, but he makes it clear the Obama Administration are the ones who are pushing these dumb, counter-productive regulations, which have nothing to do with safety. He also points out the agency was able to make the cost-analysis numbers work by doubling how much a human life is worth from $3 million to $6 million.
Right there, that should tell you a lot of what the FMCSA does is justified with junk statistics. What’s a life worth? Uhhhhhhh…. how about $3 million? Sounds good! No, that doesn’t work, we can’t justify all the rules we want. Well….. I know, we’ll double it! Sure, that makes sense. Hey, why not make it $30 million, especially in today’s economy, $6 million doesn’t buy what it used to. As far as I’m concerned, by the agency admitting one of their measures was off by 100% just means all their statistics are junk.
Hill’s conclusion is this back and forth between the regulatory crazies, like Public Citizen and the trucking industry will forever continue going back and forth until Congress passes a law which codifies the hours of service regulations into law, which will hopefully remove the FMCSA and the Courts from making up the rules. I agree, but I highly doubt that’s going to happen, as I think Congress is perfectly happy with the all out regulatory assault which has been going on.
DVD Packages Are Out of Stock
I created a DVD package about 4 years ago, which was a nifty package designed to assist New Entrants in passing their New Entrant audit. Presently, this item is still listed on my home page, but is listed as “out of stock”. Well, it’s not really out of stock. I have a bunch of them sitting here in the office. In fact, the cat is sleeping on one as we speak. I just can’t sell them, because they’re obsolete. Basically, with DOT totally re-writing both the hours of service and supporting documents rules (IE… EOBRs), 30% of the package is out of date information, and I can’t charge you for out of date information.
Nevertheless, if you are facing a New Entrant audit, or you just want to know what you need to do to stay out of trouble, call me. Chances are, I’ll be able to walk you through the rules in 1-2 hours for a reasonable cost.
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Eric Arnold is a 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 eric@arnoldsafety.com.
Learn more about Arnold Safety compliance consulting services at ArnoldSafety.Com.
Dan the Trucker Thinks EOBRs Stink
A man named “Dan the Trucker” stopped by the blog the other day, and posted a rather lengthy comment after one of my EOBR posts. I decided to re-post it in its entirety, because 1) I mostly agree with Dan the Trucker, and 2) it’s an easy way to generate content on the blog. I will briefly summarize Dan’s comments. EOBRs are an infringement on truck drivers’ rights, specifically the right against unreasonable search and seizure. EOBR boxes are nothing more than “spy” boxes, used to monitor truck drivers, for which there is no justification in the Constitution. There is no link between EOBRs and safety. EOBRs should be put on government workers and politicians. My summary does not do Dan’s post justice, I urge you to read it for yourself.
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I am alarmed and deeply angered at the recent proposal and remarks of Ray LaHood, Secretary of Transportation. In defending his proposal to require approximately 500,000 carriers install Electronic On-Board Recorders (EOBRs) on nearly all trucks, he said, “We cannot protect our roadways when commercial truck and bus companies exceed hours-of-service rules. This proposal would make our roads safer by ensuring that carriers traveling across state lines are using EOBRs to track the hours their drivers spend behind the wheel.”
Here’s a proposal for Mr. LaHood. Let’s put Internet-trackable GPS Electronic Tethers (IGETs) on him and each of the 55,000 people under his command at Transportation. We citizens cannot protect our freedoms when commercial politicians like him exceed the constitution’s rules. This proposal would make our nation safer by ensuring that politicians who rule across state lines are using IGETs so we can track the hours they and their staffs are spending.
After Mr. LaHood has developed this IGET system with a very small part of his $70 billion taxpayer-paid-for annual budget, prototyped it on himself and his 55,000 employees for, say, three years, he can expand his program to include all elected politicians and their staff members in the federal government. After that, he should come back to us lowly truck drivers and we’ll discuss together the installation of his EOBR spy boxes in our trucks. Then we can all spy on each other and be one big happy community together. It’ll be great! It’ll make our roads safer, right?
The EOBR spy box defenders say these are not spy boxes, but only monitoring devices that record a limited number of functions (e.g., when the truck is running, the duty status of the driver, etc.). This is the third biggest lie ever told by a politician, right after “the income tax we are creating will never exceed three per cent” and “the social security number will never be used for purposes of identification.” Today’s EOBR spy boxes are a Model T; tomorrow’s will be a 2025 government BMW with metallic paint and the ability to cruise at 35,000 feet. Today, the government will require carriers run the spy boxes and dictate to those carriers how and when they show government their every record, but tomorrow the government will control or own the carriers and their boxes, just as they now control or own car companies, student loans, mortgages, and health care. Remember how employer-provided health care was designed to eventually become government-run health care? Same song, another verse. Government-run trucking. Enjoy.
As Mr. LaHood voluntarily took office on Jan. 23, 2009, he accepted the responsibility to defend the constitution. Its 4th Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” He has not only failed in this task, but he is abusing the legitimate power of his good office to illegitimately attack the rights he is sworn to uphold. Understand what Mr. LaHood is doing: he is not simply failing to protect our 4th Amendment right with Carter-level incompetance or malfeasance, he has joined (and is leading!) the attack against it!
Mr. LaHood’s stated reason for his perpetration of the EOBR spy boxes on us is to “make our roads safer.” He is not telling the truth. Where’s his proof? Where are the longitudinal studies that support his claim? Who comprised the control group? Where is the statisticians’ report showing a proper interpretation of the raw data? How much “safer” will our roads be if we give up our right to be free from this type of government’s search of us and our things? Where is the ratified constitutional amendment by which we citizens gave up our 4th Amendment right to be free from government searches without a specific, limited warrant?
If a judge were to demonstrate a bias against an innocent defendant as Mr. LaHood’s above remark demonstrates against truck drivers, the outraged defense lawyer would rightly demand the judge’s removal from the case (perhaps from the bench!), but Mr. LaHood continues to sit in judgmental judgment of us. The government’s subjection of certain convicted criminals to its surveillance is appropriate; subjecting law-abiding citizens to this treatment is itself criminal. We are individual citizens who are not only unconvicted, but unaccused, and against whom the only evidence is Mr. LaHood’s prejudice. Mr. LaHood’s remark shows he has neither the temperament nor the judgment to be a public servant. He needs to be removed from office.
Companies have every right to know (therefore, to track) the whereabouts and use of any equipments which belong to them (consistent with employees’ rights), but government has no such right. The government has no right to track innocent citizens where the only evidence of wrongdoing is the prejudice of government leaders. Use of EOBRs is an issue between a carrier and its insurance company, and between a carrier and its employees, and it’s none of the federal government’s stinking business. Butt out, Mr. LaHood: find your new home in the unemployment line.
I favor increasing traffic safety and preserving our constitutional rights. Mr. LaHood favors using traffic safety as an excuse to violate those same rights. We do not need government-required tracking devices around us. As Mr. LaHood is unfit for public office at any level, he needs to find a new job, preferably one in the private sector where his remuneration is based on productivity instead of political connections.
The misdeeds of some is never justification for violating the rights of all. Our constitution and Bill of Rights must stand, and Mr. LaHood must stand down.
Dan the Trucker
truckdrivingdan@yahoo.com
