Updates, updates, updates

So, what’s new? I apologize for not posting sooner. I guess I’ve been pretty busy. First, for those of you who have sent me questions: thank you for your interest in Arnold Safety. If I haven’t responded yet, like I said, I’m pretty busy. Use of the word, “please” also makes it more likely I will respond. Offering to pay makes it much more likely I will respond…. or at least respond more thoroughly.

In the news: there was a giant bus crash in the Bronx, NY where 15 people were killed. In the all the articles I saw, they still haven’t pinned down what happened. The driver may or may not have fallen asleep, or he may or may not have been run off the road by another truck. Then apparently there was another bus crash in New Jersey a few days later, killing a few more people, so right now the DOT has the heat on all the bus companies.

DOT’s hours of service proposal marches merrily along. The comment period is closed; now we wait for the final verdict from DOT. Remember, DOT means FMCSA…. I use the two interchangeably. I will be shocked if it’s anything other than what’s already been announced. Yes, we have a GOP house, but as The Who said, “Meet the new boss, same as the old boss”.

DOT moved back the deadline for commenting on the EOBR mandate to May 23. I thought about commenting, but what’s the point? My comment was going to center around the crash rates for the last 30 years. I poked around the Internet, and found NHTSA’s fatalities for both car and truck accidents littered here, there, and everywhere on the Internet. After some effort, I pieced the number of crashes together. What I found was the number of fatalities caused by truck crashes since 1980 has dropped very slowly until about 2007, then it has dropped much more quickly.

So, I then compared it to the number of fatalities caused by car crashes since 1980. Those fatalities have dropped very slowly until about 2007, then they dropped much more quickly. In fact, the rate of decline in both fataility rates were virtually identical.

So, what conclusion did I draw from this? As we all know, commercial motor vehicles and their drivers are highly regulated, and becoming more so every day. Therefore, the number of deaths from truck crashes should have dropped at a much more dramatic rate than deaths from car accidents, as car drivers are for the most part, unregulated. After all, in car drivers, we have teenagers, 90 year olds, drug addicts, drunks, drag racers, road ragers, and people who don’t speak English. In short, it’s an unregulated free-for-all.

This is not the case, however. The number of deaths in car crashes and truck crashes have moved in tandem. I conclude the extensive efforts of the DOT over the past 30 years to regulate commercial vehicles for safety have largely been for naught. Otherwise, you would see a greater improvement in the number of truck deaths.

I considered creating charts, graphs, writing up my conclusions, and commenting on DOT’s new laws, but then I thought, “why?” There’s a 90% chance they would not even bother to address the comment, and if they did, they would either invent some new statistics showing me how much safer I am because of their rules. I thought about sending it to my GOP Congressman and Senator, but considering these guys can only find $61 billion to cut in a $3.8 trillion budget….. I might as well talk to the wall. Republicans, Democrats: two sides of the same coin. Big government and Much Bigger government.

Back to DOT having nothing to do with safety: what about the Bronx bus crash? 15 people are dead, how can I say DOT is not safety related? Well, from what I have read, they have not found a violation of the safety regulations which led to the crash. That may change. Nevertheless, many crashes… in fact the vast majority of truck crashes do not involve a violation of the safety regulations. They are accidents. Most are the fault of the car who cut off, or otherwise ran into the truck. Many of the rest can be attributed to carelessness, such as a driver dozing off, even though he is well within his duty hours. Sometimes a driver runs off the road, or into another vehicle simply because he’s not paying attention.

If I were King, I’d leave the current rules alone. Just leave it alone. But, since there’s no danger of my becoming King, the regulatory onslaught will continue. You know what’s really funny? Once the economy picks up, maybe in 5 or 6 years, the number of highway fatalities will go up, despite all these draconian safety measures they are now enacting. How do I know this? The number of people killed on the roads is much more a function of how many people are on the roads, rather than the safety regulations. There was a dramatic drop in deaths over the past 2-3 years, not because of anything DOT did, but because we suffered the worst economic downturn since the Depression.

Independent Review Casts Serious Doubt About FMCSA’s HOS Mandate

The American Trucking Association issued a press release today about FMCSA’s new complicated hours of service rules, coming to a highway near you very soon. It says:

“An independent review of the Federal Motor Carrier Safety Administration’s Hours of Service “Regulatory Impact Analysis” has found the Agency wildly overstated the proposal’s benefits. While the agency claims its proposal would result in up to $380 million in annual benefits, an Edgeworth Economics’ independent review finds that proposal would result in net costs, and not benefits, of approximately $320 million a year. The Edgeworth report states “…we find that FMCSA has overstated the net benefits of the proposed rule by about $700 million annually.”

Edgeworth Economics, an internationally renowned consulting firm that’s done work for the Environmental Protection Agency, the Federal Energy Regulatory Commission and the National Football League Players Association, found that FMCSA used questionable logic, inadequate data and sloppy math in attempting to justify its proposed changes to the hours-of-service rules for commercial drivers.

“FMCSA has made a number of substantial changes to its approach since the previous [regulatory impact analysis] issued in 2007,” the Edgeworth report concluded. “We find that, in every instance, FMCSA’s new methodologies and assumptions increase the apparent net benefits of the proposed rule. However, many of FMCSA’s new approaches rely on misapplication of available data, use outdated information, or lack empirical support entirely.”

In addition to being off base by $700 million annually, other notable findings of the Edgeworth study include:

* FMCSA made unreasonable assumptions about the safety of the trucking industry by sampling only carriers it subjected to a compliance review, generally for not following federal safety rules;

* In formulating its proposal, FMCSA used crash data collected before the current rules went into effect, completely ignoring their positive safety impact on the industry;

“Edgeworth’s analysis pretty clearly shows that FMCSA’s proposal isn’t rooted in sound science, good data or logic, and can’t stand up to scrutiny,” American Trucking Associations President and CEO Bill Graves said. “The findings of this study match what we’ve heard from our members and what ATA has been saying since FMCSA launched this ill-conceived overhaul of these rules: As proposed, the new hours-of-service rules would impose significant costs on the trucking industry without improving safety. These rules are a cure for a disease that we don’t have.”

To see the full report go to here.

So here are a few thoughts on this. First, if you’re trying to establish the credibility of Edgeworth Economics, the author of this report, I don’t think I’d bring up the fact they have done work for EPA, who are the kings of junk science. That being said, I’m sure their findings in this case are 100% right on. The FMCSA used “questionable logic, inadequate data and sloppy math” in reaching its conclusions? ATA, you didn’t need to pay Edgeworth to tell you that, I could have told you that for nothing. I agree with the ATA on this one, these new rules are a travesty, and are unrelated to safety.

We Are Unable to Locate….

So, we refinanced our house a few months ago. Today I get a letter from the previous bank, HSBC, which says, “We are unable to locate your original loan papers. Please accept this letter as a paid in full receipt, blah, blah, blah.”

So a major, major, global corporation has lost our paperwork? Doesn’t that mean I didn’t have to pay the loan at all? Well, too late, we paid it. Well, it’s certainly not just major corporations who are sloppy with their paperwork. In the not too distant past, I got a $12,000 reduction on case from an unnamed DOT regional office, because they could not produce the paperwork from a 5 year old previous action.

I guess my point is, if you’ve just been audited, and the DOT has found this, that, and the other thing missing, and told you how sloppy your paperwork is…. don’t feel too bad. Their paperwork is just as sloppy, except no one audits them.

Logs: Form and Manner

Ok, here is a post on the regulations today, rather than all these posts I’ve been making on the avalanche of coming regulations. In Part 395 of the safety regulations, it describes what information must be on a log. When a log is not filled out correctly, such as omitting the carrier’s address, or forgetting to total your hours in the right-hand side of the log, that is called a form and manner violation. Form and manner violations are cited by the DOT, and the roadside cops, but never really meant anything, as they never issued fines for that sort of thing.

With the advent of CSA 2010, however, it does mean something. Every time one of your drivers gets written up in a DOT inspection for the previously-harmless form and manner violation, it costs you 6 CSA points. 2 for the violation, times 3 for the time weight = 6 points. So, review your drivers’ logs, and make sure they are listing an address for the motor carrier, the number miles for the day, totaling the hours on the right, and most of all, listing some type of bill number, or shipper and commodity in the lower left hand corner. You surely would hate to get audited just because your competitors drivers are listing a shipper and commodity on their logs, but your drivers aren’t.

And if anyone can tell me how filling out the shipper and commodity on the log makes the highways safer, you get a free EOBR……

Initial Thought on EOBR Mandate

I read this rulemaking more carefully, and my first thought is, “It’s a ridiculous, unwarranted intrusion into private business, which has nothing to do with safety”. That was my first thought. Here is the money quote from the rulemaking itself, on page 40:

“The Agency is currently unable to evaluate the extent to which the proposed changes to the supporting documents requirements will lead to reductions in crashes”.

In other words, they have no idea if this will reduce crashes or not. Furthermore, they have no idea if this will increase crashes. Nor do they care. More on this later.

DOT Mandates EOBRs in All Trucks

Their rulemaking can be found here.

In brief, all trucks which require logbooks will have to have EOBRs installed 3 years after the final rulemaking is published, which will probably be in the summer of 2011. So, the summer of 2014, you will have to have an EOBR in all of your trucks, if you operate over the road. DOT is accepting comments on their proposal for 60 days.

At this juncture I have no other comments on this.

CSA 2010 Says Mexican Carriers Unsafe?

So, I was playing around with DOT’s new CSA 2010 rankings, looking for potential customers. I noticed something interesting. The DOT’s new CSA 2010 website is barely functional. You can search one carrier at a time, but you really cannot pull up entire lists of carriers at the moment. For example, I can’t pull up all carriers from Pennsylvania. You can, however, download the CSA 2010 rankings. However, in the downloaded data, it only identifies the carriers by DOT #. So, you have to look up each DOT #, one by one, to find out who is who. So who’s at the top of the Driver Fitness and Vehicle Maintenance categories? The Mexican carriers.

I don’t mean just one or two, either. I mean dozens upon dozens of them. Here, you try it yourself. Go to their “Carrier Search” page. Click on the “Advanced Search” tab. Select Outside U.S., and then pick “U.S.” from the drop down menu. Then search for “Driver Fitness” = 100. What you are doing is searching for American carriers whose Driver Fitness score equals 100, which means the American carriers who have the most unfit drivers. The query returns you 6 American companies.

Do it again, except this time, instead of picking “United States” on the drop down menu, pick “Mexico”. The query returns you 100 Mexican carriers. Now a few things to keep in mind. For whatever reason, the CSA 2010 caps these searches at 100 carriers. So, who knows how many Mexican carriers have a Driver Fitness score of 100? All we know is it’s at least 100. Also, in the total census of motor carriers, American carriers probably outnumber the Mexican carriers 100 – 1. So, statistically speaking, all things being equal, there should be 100 American carriers at the top of the list, instead of 100 Mexican carriers. That’s not the case though. Also, under this CSA 2010 system, all carriers with a DOT number are compared against each other, including U.S., Canadian, and Mexican carriers. 100 means you are the worst, 1 means you are the best.

We can do this again with Vehicle Maintenance. There are 5 American carriers with a Vehicle Maintenance score of 100. Search by “Mexico”, and you find there are 74 Mexican carriers with a Vehicle Maintenance score of 100. The figures for the other categories are reversed. Unsafe Driving: 13 American carriers with a 100 score, 1 Mexican carrier with a 100 score. Fatigued Driving: 5 American carriers with a 100 score, 0 Mexican carriers with 100 score. Drug/Alcohol: 4 American carriers with a 100 score, 0 Mexican carriers.

Conclusion? What does this tell us about the Mexican carriers and CSA 2010? Well, either the Mexican carriers are unsafe, or CSA 2010 is a completely flawed methodology. I don’t see it any other way. The Mexican carriers dominate the high ranges of Driver Fitness and Vehicle Maintenance. This means their drivers are either unlicensed, physically unqualified or don’t speak English. As for maintenence, compared to American equipment, their trucks are junk. Again, that’s what CSA 2010 says. Is that the truth? I guess it must be, as DOT has sworn up and down that CSA 2010 is the most accurate system to identify underperforming motor carriers ever devised.

I would love to hear DOT’s answer on this one. The President and Ray LaHood are telling me Mexican trucks are safe. Yet their vaunted CSA 2010 methodolgy tells me they are not safe. Well, which is it?

Obama Opens Up Border to Mexican Trucks

Last week, the Obama Administration signaled that it will open up the border to Mexican trucks. There have been countless articles on this, here is one from the Dallas Morning News.

This has been going on for so long, I can’t remember the entire history of the dispute. I will try to recap. The North American Free Trade Agreement (NAFTA), passed I think back in the early 1990′s, said Mexican trucks would be given free run of the United States. Currently, Canadian truckers can deliver and backhaul in and out of the U.S. Mexicans cannot; they must stay within a 25 mile commercial zone of the border. Unless they are going right to Canada, then they can go through the U.S. I think I’m right on that.

The U.S. never has lived up to the NAFTA agreement. There have been pilot projects, concerns about how safe the Mexican trucks are, etc. In 2009, the Congress withdrew the funding for DOT’s pilot project which would allow the Mexican trucks unlimited access to the U.S. President Obama is now reversing that. Who is for it, and who is against it? Well, the Chamber of Commerce is all for it. That is, the large American shippers, as they believe they will be able to ship cheaper due to the increased competition from the Mexicans. Also, many American manufacturers and farmers are for it, not because they want to ship on Mexican trucks, but because their products have been targeted by Mexico with retaliatory tariffs. They hope these tariffs will now be lifted. The American Trucking Association, which mostly represents the mega-carriers, also supports it, although I’m not sure why. Maybe they think it will give them access to Mexican drivers, who will be cheaper than American drivers.

The Teamsters are against it. They believe allowing Mexican trucks and drivers unlimited access to the U.S. will lead to Mexicans taking American jobs. Also, the Owner Operator Independent Driver Association (OOIDA) is against it, largely for the same reasons the Teamsters are. Both groups also, express concerns about the safety of the Mexicans trucks. So, what will happen? Will the Mexicans get to run their trucks all over the U.S.? Well, this has been going on for nearly 20 years, it hasn’t happened yet, so I wouldn’t expect it will happen tomorrow…. if ever.

New Hours of Service Rules

Again, here are the new rules. So what have they done? Well, to somewhat restate their summary in the proposed rulemaking, they have made 9…. yes count them… 9 changes.

First, they are considering changing the 11 hour driving rule to 10 hours, but they have not committed totally to that. They state they think that’s the way to go, but will “carefully consider” all comments to the contrary. Ok, so it will be a 10 hour driving rule, let’s not fool ourselves.

Second, they are allowing you to be on-duty 16 hours twice a week. Everyone gets to be on-duty 16 hours twice a week. Well, right there, that will get them sued by the safety crazies. Of course, it really doesn’t matter what FMCSA publishes, they will be sued by the safety crazies. Ok, moving on…

Third, actual duty time while in your “driving window” (it seems “driving window” is a new term), is limited to 13 hours. In other words, I can drive 10 hours, be on-duty for another 3 hours, and then I must have at least an hour of off-duty time mixed in there. So, if I’m using the 16 hour window, I still can only be on-duty for 13 hours.

Fourth, I am only allowed to drive 7 consecutive hours, and then I must take at least a 30 minute off-duty or sleeper berth break.

Fifth, the 34 hour reset is still available, however, it must emcompass two consecutive periods from midnight to 6am. So, if I get back to the yard on Friday night at 8pm, my 34 hour break would last until 6am Sunday morning. My two midnight-6am periods would be Saturday and Sunday morning, so at 6am Sunday morning, I’d be good to go, just like I am under the current rules. However, if I didn’t make it back to the yard until 1am Saturday morning, I’d lose a whole day. I would have to be off until 6am Monday morning, in order to get my two consecutive midnight to 6am breaks. I guess there will be a mad rush for the regional drivers to get home by midnight, or they’ll turn into pumpkins.

Sixth: You can only use the 34 hour reset once a week…. or as the rule says, once every 168 hours. So, if you use the 34 hour reset on the weekend, you can’t restart your clock until next weekend, even if you take Tuesday and half of Wednesday off.

Seventh: on-duty time is being revised to allow a driver resting in a parked vehicle or a sleeper berth to record that time as off-duty. Also, they are now allowing a team driver to sit up front for 2 hours following an 8 hour sleeper break, and log that time as off-duty.

Eighth: Some type of changes in the oilfield exceptions, which frankly I didn’t read. If my oilfield customers call me, I’ll dig into that further.

Ninth: They are declaring violations in excess of 3 hours driving over the 10 hour driving limit to be “egregious”, which will allow them to assess the maximum penalty allowable by law. That would be $11,000 per violation.

So, what happens next? I believe FMCSA will allow comments for the next 60 days. So, if you want to vent….. go for it. It won’t change anything, but by all means let them know what you think of them. Then, at some point in the spring, they’ll come out with the ‘final rules’, which I suppose will be fairly close to these proposed rules. The new rules will be effective by July, I think, and they’ll probably start enforcing them by October. That’s my best guess of the timetable we’re looking at, I have no special knowledge in that area; it could end up being something totally different.

What do we think of all this? This is not nearly as bad as I thought it would be 6 months ago. I suspected they might tone down the changes due to the outcome of the election. I don’t know if they did or not, but this is somewhat manageable. The biggest loss is the 11th hour of driving. The 13 hour rule…. most regional carriers have plenty of sit-and-wait time during the day, so some of that on-duty time waiting to be loaded or unloaded will now become off-duty time, so nothing will change there, I predict. The changes to the 34 hour reset rules will make it tougher to properly utilize the reset, but maybe not that much tougher. The allowance of two 16 hour “windows” a week is an unexpected bonus, which I assume will draw yet another lawsuit from the safety crazies.

I see two worrisome items in these rules. First, the possibility of an $11,000 fine for a driving violation in excess of 3 hours. I see all kinds of trouble with that. If I short my 10 hour break by 15 minutes, that could easily put me way over on hours the next day. Am I now subject to an $11,000 penalty because I looked at my watch wrong? Who is going to make that decision? The auditors, and the auditors’ bosses. Will there be any uniformity or fairness attached to how they use this new club, or will it be used to grind out huge penalties? This may be clarified in the final rule. Second, they seem to now regulate when you must be off-duty. In other words, the rules say I must be off-duty by my 13th hour, I can no longer be on-duty. If I do not drive beyond this 13th hour, where is the harm? I’m not in a truck, I’m not on the public highway, if I decide I want to work in the office, or the yard beyond my 13th hour, where is the violation? Where is the FMCSA jurisdicition? I suspect this may be an oversight in the proposed rules, which will be corrected in the final rule.

This isn’t over yet, but this gives us some idea of what could be coming in the next year.