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.
Major train crash in Los Angeles, 25 dead
Another story from last week: on Friday, September 12 in Chatsworth, CA, just west of Los Angeles, a commuter train ran head-on into a freight train. At least 25 were killed.
What does this tragedy have to do with trucking? The evidence is pointing towards an error by the engineer of the commuter train. It appears that he missed a red signal, which told him to stop short, and wait for the freight train to take a siding, and then pass it. It also shows that he was sending and receiving text messages on his cellphone while driving the train, around the time of the accident. The evidence hasn’t proven that the text messages were what made him miss the red signal, but right now, that seems like the most likely explanation.
Let me tell you where this could be going. If it’s shown that the cellphone probably caused this accident, the DOT might just ban cellphones from use while driving CMVs, as well as trains. It has happened before, where a train crash caused major new regulations across all modes of transportation. 21 years ago, a set of Conrail engines ran onto the mainline north of Baltimore, where they were hit by an Amtrak train going 130 mph. The two idiots in the Conrail train were smoking weed at the time. This accident was the impetus behind DOT drug and alcohol testing regulations.
At any rate, this sort of thing could certainly happen at any time in a truck. Those cellphones, while sometimes necessary, are also a big distraction. Do your best not to use them while driving, and if you must, a hands-free device should be used.
Interesting Accident Case Study
Here’s a fatal crash that escaped my attention until now. This happened on April 11, 2003 in Glen Rock, PA, York County. That’s just down the road from me. A 21 year old driver of a 26,000 GVWR dump truck (non-CDL) lost his brakes on a steep hill, crashed into several cars and killed two people.
Here is the NTSB report on the crash. Very interesting. The owner of the truck was Blossom Valley Farms. The local district attorney decided to press charges against those responsible. The driver, Jaysen Newton, nursery manager, Jerry Snedden, and owner of Blossom Valley Farms, Todd Sachs were all convicted of charges stemming from the crash. Newton was sentenced to 9 months in jail, Snedden got probation, and Sachs was sentenced to 2 years in jail.
Summarizing the NTSB report: the truck was slightly overloaded, but they felt that was not a factor in the accident. The truck was on a road which heavy trucks are not supposed to use, because of the steep grade. The signs say no vehicles over 3/4 tons, except for local deliveries. The driver, who had only been working for Blossom Valley for 10 days, had not delivered to this receiver before, and thought he was making a local delivery. He was also following the directions printed for him by Blossom Valley.
The major factor in the accident was the air brakes on the truck were way out of adjustment. Following the crash, the NTSB applied the parking brakes on the truck. They were able to move the truck backwards and forwards easily, even with the parking brakes applied, showing there was virtually no braking force being applied to the wheels.
The truck was equipped with automatic slack adjusters (ASAs). The truck had its Pennsylvania State inspection 3 months before the accident, at which time the mechanic adjusted the brakes. Additionally the NTSB was able to uncover an instance in 2003 when the brakes were adjusted manually. Upon thorough inspection of the brakes, it was found that the clevis pins holding the ASAs on had warped and worn. Once they were replaced, the ASAs worked normally.
The lesson taken from the ASAs is they should work automatically, hence the name. If they are out of adjustment, manually adjusting them will only work temporarily. They will quickly be out of adjustment again. Mechanics should look for other causes and defects, if ASAs are out of adjustment.
The other factor in the accident was the driver. The driver tested positive following the accident for cocaine and marijuana, although the NTSB did not believe that drugs influenced the crash. However, the driver had never driven an air brake vehicle before working for Blossom Valley. When he crested the top of the steep hill, as he went down the hill, he pumped the brakes, which dissipated his air pressure. The driver did not realize that, unlike hydraulic brakes, pumping air brakes makes them stop working faster.
One question I get asked over and over again, and have never really know the answer to, is: do I need an air brake endorsement if I drive a non-CDL air brake vehicle? My answer has always been, call your State DMV, as these non-CDL vehicles are not covered by the licensing regulations in 49 CFR Part 383. I assumed the answer was “yes”, the State would make you pass some type of test to drive air brakes vehicles. After reading the NTSB report, I now know the answer is NO, there is no endorsement or training required to drive non-CDL air brake vehicles.
As for the accident aftermath, the local prosecutor decided the owner of the company was to blame and prosecuted him. It took 4.5 years, but he finally obtained a conviction in October, 2007. At least one employee of Blossom Valley Farms rolled on Sachs, the owner, telling the court he had previously advised Sachs the brakes were bad on the truck.
Other factors which may have played into the conviction: the driver was on drugs, and Sachs didn’t drug test him prior to employment. The truck should never have been on that road to begin with. Following the accident, the next year a Blossom Valley truck was again on that same road and ticketed. That’s really all I need to know about Todd Sachs. Here one of his trucks kills someone because they’re using a shortcut they’re not supposed to use, and he keeps using it! Sure looks to me as if he doesn’t give a damn.
Finally, despite the fact that the truck passed a Pennsylvania State inspection 3 months earlier, which is the equivalent to the Federal annual inspection, Sachs was still responsible for making sure his trucks were in properly operating condition. He was advised by one of his employees the brakes were bad. He should have investigated further as to what was wrong. But he didn’t, probably because it just wasn’t important enough to him.
Lastly, we have the local prosecutor. Well it took him forever and a day to prosecute the case, but in the end, he got the job done. As a consultant, you may think I should be against the Man ruining small businessmen only trying to make a living. That’s not the case here. I do not approve of regulatory agents run amuck strictly enforcing paperwork violations, which have no safety application. However, individuals who are reckess and negligent, like in this case, deserve everything they’ve got coming to them. Guys like Sachs make everyone who operate trucks look bad. Accidents like this happen all the time, and very rarely do the prosecutors actually do anything about it, largely because they don’t know much about the safety laws.
It is important you have a preventive maintenance schedule for your vehicles, and that your drivers are doing complete and thorough pre and post-trip inspections every day. If Blossom Valley had been even remotely taking care of its vehicles, this crash probably wouldn’t have happened.
New Rulemaking on Drug and Alcohol Testing
The DOT has issued a rulemaking, which affects the way drug and alcohol testing is conducted. Go here to review the changes.
Most of it is inside baseball, which has no bearing on motor carriers or nearly all drivers. However, there is one significant change. Starting 8/25/08, all return-to-duty tests and follow-up tests must be done under direct observation. Return-to-duty tests, and follow-up tests must be done after a driver fails a drug test. If a driver has to do these tests, the collector will now stand in the bathroom with him, and watch him urinate. Directly.
Direct observation used to be required only if there had been evidence of an alterated sample, but this ups the ante. This confirms what I’ve thought about the SAP procedure and return to duty process for some time now. The process is less about education, and more about punishment. Basically, DOT is going to make it so painful for a driver if he flunks a drug test, that he’ll think twice about doing it again. Not totally unlike the DUI procedures in this country. Casual drug users may change their behavior, largely because the process to get back in the good graces of the government is such a giant pain in the rear.
DOT makes you take a number of weeks off while you go to treatment. They make you take numerous follow-up tests, all of which the driver is probably paying for. Now, they are going to humiliate and embarrass the driver, as well. Bottomline is, if you’re a CDL driver, just say no. Or DOT is going to make it hurt.
More Positive Driver Information
Did I mention you have to shut down a positive driver immediately? It seems like I just said that, but I recently ran into another instance where this has happened. When one of your drivers flunks a random test, you must immediately find him after being notified by the MRO of the failure. It doesn’t matter if he’s across town, or across the country, you must make that driver park the truck. You can’t let him drive back to yard, you need to take all practical steps to relieve that driver from duty.
When an audit takes place, you can’t hide the positive test, either. DOT will go to your MRO, and get a list of all test results in the past 12-18 months. They will investigate all positives which took place on a random test. They will determine the exact time the MRO notified you of the positive test. If the driver drove beyond that time, you are liable for a penalty of several thousands of dollars.
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.”
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.
Reasonable Suspicion Drug Testing
If you see a driver falling down drunk, about to get into one of your vehicles, what should you do? The DOT regulations state that an employer must conduct reasonable suspicion drug and alcohol testing on employees who appear to be impaired. They also state that whoever is conducting the testing must be trained on how to spot impairment. DOT really doesn’t enforce the reasonable suspicion testing regulations, namely because it’s almost impossible to prove. How are they going to prove that you knew a driver was impaired, but let him drive anyway? This is a rule that you should apply yourselves, using common sense. I had a customer ask me, “I’ve got a driver who I’m pretty sure is on drugs (the driver was acting funny, plus he had observed drug paraphernaila in the driver’s car). But I don’t have that training. What should I do?”
What he should do is, test the driver. I’d rather order a test of a hot driver, and worry about the consequences of not having the training later. The flip side is, you allow a driver who you’re pretty sure is using illegal drugs to drive your truck, all because you don’t have the proper training to spot the violation? What if the guy gets in a wreck, one which you should have prevented? The main reason you want to do the training is not because of DOT (who really doesn’t enforce that violation), but because it will protect you in case the driver decides you are unfairly targeting him for a test, and sues you.
Drivers Failing Drug Tests
There is nothing DOT takes more seriously than drug and alcohol testing. This is largely because it’s easy for them to enforce, and there’s nothing a government official loves more than easy. Nevertheless, the most serious violation you can commit is using a driver who has failed a drug test. If a driver fails a random drug test, you must stop using him. NOW! Not a week from now, or at the end of the day. NOW! That means calling him on the cellphone, getting him to park the truck, and getting another driver out there to take the vehicle. Do not let the failed driver ride in the truck. Have him ride in a non-CMV back to the yard. This driver cannot drive for you again, until he goes through the SAP process. It is important that you take this information seriously, as 1) DOT levies several thousands of dollars in fines if they catch you using a positive driver, and 2) I don’t want a driver who in the recent past has been smoking wacky weed, or snorting blow riding next to me in an 80,000 pound truck. No thank you.
Drivers who fail drug tests
When you are drug testing your drivers, occasionally a driver will fail the test, also known as testing positive. While this may seem like common-sense to some, if a driver tests positive, you must remove him from duty. Immediately. No ifs, ands, or buts. That means getting on the two-way radio, cellphone, or whatever, and shutting him down right then and there. You will have to get another driver to go get his truck. Do not even let the positive driver ride in a commerical motor vehicle after testing positive.
After a driver fails a drug test, if you want to use that driver again, he must go through the Substance Abuse Professional (SAP) process. This is a somewhat complex procedure where the driver must be evaluated by an addiction specialist, go through treatment, be evaluated again, and then come back to duty with a follow-up testing schedule. You must adhere to the SAP guidelines exactly, as DOT has little patience for motor carriers that allow a driver to fail a test on Monday, but is back on the road Tuesday after passing a test.
Furthermore, DOT has absolutely no patience for motor carriers who use drivers who have tested positive. The fines for using a positive driver, or not following the SAP procedures are generally several thousand dollars. If a driver tests positive, it is a big deal. Take it seriously, ask questions.
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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.
