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.

This website, at present, will cost $10 per inquiry to access. Companies can buy a $100 annual subscription, although carriers with less than 100 power units can buy an annual subscription for $25. An employer must provide authorization from the prospective employee in order to access his information.

While it is not required to use this database, it can be very useful for motor carriers. Violations found in the database will be things like, hours of service violations, failing to secure a load, operating with a suspended license, or even having alcohol or drugs in the truck. In addition, it will also identify things like following too closely and speeding.

A word of caution: DOT’s database is notorious for not being 100% accurate, so I wouldn’t trust the information in there with absolute certainty. However, as an employer, going this extra step in screening your employees could save you major dollars. I have always believed that 80% of a company’s problems on the road are caused by 20% of their drivers. If you can weed out some of that problem 20%, a good chunk of your problems will disappear.

Finally, if one of your drivers is involved in a big crash, is discovered to have an unsafe driving history, and it turns out you did not utilize this available tool, the plaintiff’s attorney is going to have a field day with you. DOT expects to have it fully functional by late summer.

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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.

It is unknown how the FMCSA will regulate the sleep apnea condition, but it seems like something is coming. For those of you unfamiliar with the rulemaking process, first there is a “Notice of Proposed Rulemaking”. FMCSA lays out its proposed changes to the regulations, and gives everyone a number of months to comment on the rule. It then issues a Final Rule some time shortly thereafter. What happens to the comments? Usually nothing. FMCSA will read them, but ultimately, they do whatever they want to do in issuing the Final Rule. Generally, the comments have more to do with political considerations than anything else. For example, if Billy Big Rigger from Kankakee writes in stating he thinks the rule is a bad idea, no matter how well written and sourced his comment is, it’s going in the trash can. If the insurance lobby, or the American Trucking Association writes in, FMCSA might take that seriously.

My gut instinct on this is that yet another regulation which is not necessary. Total truck related fatalities have been dropping over the past several years. I am not convinced that sleep apnea is a dangerous epidemic requiring government intervention. For that matter, how is sleep apnea defined, exactly? I have a 17.5 neck, a BMI of 29, and I snore. So does that mean I have sleep apnea? I don’t fall asleep behind the wheel, but it sounds like if I went for a CDL, I’d end up wearing an expensive CPAP mask. That would probably make my wife happy, but I highly doubt it would make me a safer driver.

Well, there’s nothing in writing yet, no proposed rulemaking has been made yet, but it’s probably coming. Stay tuned.

You should ask whether your doctor is familiar with the DOT physical procedures before you make the appointment. DOT has been making noise about setting up yet another regulatory-bureaucracy which will qualify doctors to conduct the exams. For now, though, any doctor can do the exam, provided they follow the guidelines found on the examination form.

This is an idle threat, designed to score political points. Oberstar isn’t going to propose legislation, and even if he does, it will almost certainly not become law, if for no other reason, it’s nearly impossible to pass a law. Remember “I’m Just a Bill” from Schoolhouse Rock? As I discussed earlier, there is no need for more medical regulations. In my opinion, more regulations will have unintended consequences, and make us all worse off than we are right now.

For example, from the article, “George Albright Jr., 61, smashed his 70,000-pound tractor-trailer into congested traffic on Interstate 70 in June 2006, killing four women in a Ford sedan about 30 miles east of Columbia, Mo. Albright’s employer agreed earlier this year to pay $18 million in a settlement. A Missouri jury acquitted Albright this month on four counts of second-degree involuntary manslaughter, after his lawyers argued in court that a diabetic episode “put him in an altered state of consciousness.” Albright wasn’t injured.”

The AP then quote a senior research director for the Advocates for Highway and Auto Safety (AHOS), who states that, “we have a major public safety problem, and we haven’t corrected it”.

Wow! That sounds bad. But here’s the thing. We don’t have a major safety problem. Not at all. No one likes to bash the FMCSA more than I do. But they are not at fault on this issue. The fact is, the regulations as they exist now are perfectly adequate in providing a reasonable safeguard that drivers will not black out or otherwise lose control of their vehicles due to health reasons.

In nearly all of the examples cited by the AP, there is no proof that the accident was caused at all by a medical condition. Only, it ‘could have been caused’, or ‘might have been caused’. The fact is, the vast majority of accidents are caused by perfectly healthy drivers who screw up. Or perfectly healthy drivers who don’t get adequate rest, and fall asleep. That has nothing to do with the medical requirements.

Another thing the article references is a driver with a prosthetic device. FMCSA is stuck. On the one hand, the advocacy groups cry about drivers who may not be in top physical shape. On the other, we have the Americans with Disabilities Act, which says these same individuals must be treated the same as everyone else. So how can you deny the one-armed driver a living, when ADA says he has the right to a job?

FMCSA could certainly address these issues with more and more extensive regulations, adding 100 pages to the regulations, which is already over 600 pages long. The number of accidents caused by medically unqualified driver is statistically very small. The safety benefit provided by creating more regulations is not worth the extra burden.

At a certain point, you have to say ENOUGH when it comes to new regulations. There is a flip-side to new regulations. For example, by implementing an extensive new licensing program for DOT physicals, there will be consequences. Yes, it will probably eliminate a few accidents per year. And by few, I mean few, like less than 10. However, many drivers will probably be disqualified from driving, most of which are perfectly able and capable of driving. Doctors will simply err on the side of caution, and disqualify drivers who cough at the wrong time during the examiniation. Drivers will be forced to go to even more doctors and specialists to prove they are healthy enough to drive a truck. Drivers will be forced to hire lawyers, just so they can keep their jobs.

This is America, which used to be the Land of the Free and Home of the Brave. In a free society, it is inherent that its citizens must accept some risk. That is what makes us free. If Congress and FMCSA truly wanted to eliminate all highway accidents, it could be done tomorrow. All vehicles would be governed at 15 MPH, and be required to have 2 feet of protective foam surrounding the vehicle. Boom, no more accidents. Of course, nothing would ever get done in this country, the price of everything would go up 10 times, we’d all lose our jobs, and a bunch of us would either starve or freeze to death, but at least there would be no more senseless deaths on the highways.

Bottomline: groups like AHOS and the Associated Press exist to drum up paranoia and fear. Just say NO!

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.”

About ten days ago, on July 20, 2007, a truck driver, who couldn’t speak English, got confused at a railroad crossing, and stopped his truck across the railroad tracks, where it was split open by an oncoming train. The crossing had signs, in English of course, which directs traffic to pull up past a second set of tracks when at the crossing. The driver could not read the signs, stopped in the tracks, and POWEEEE!!!! Luckily no one was hurt.

Using a driver who does not speak English is illegal. If the driver is pulled over by DOT, and he cannot converse in English sufficiently to satisfy the officer, he will be placed Out of Service. The driver will remain Out of Service, until he either learns English, or you get someone else out there to take his load. Naturally, there are going to be varying standards as to what is acceptable, as it will vary by each individual inspecting officer. Nevertheless, if you want to hire a driver, and you can’t converse normally with him, you are running the risk of having him placed OOS each and every time he crosses a scale. Press 1 for English!!!!!

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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.