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.
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.
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.
More Thoughts on GPS audits
A man from a Midwestern carrier posted about his experience with the GPS audit. It pretty much backs up what I said in November of last year…. they are happening, if it happens to you, you probably won’t pass, and it won’t be pretty.
DOT is pushing for the on-board recorders. That is, technology which completes the driver’s log for him, and fills in the locations by the use of GPS satellites. I have two customers which have made the switch to the on-board recorders. I think it’s safe to say in both cases, their decision was influenced heavily by DOT’s heavy hand. In both cases, the number speeding violations their drivers are receiving has skyrocketed. Yes, they hardly ever get put Out of Service any more for logbooks, but instead their drivers are now being stopped for traffic violations. So which is more unsafe? A driver taking his own leisurely time to make a run in 15-16 hours, or a guy pushing like a madman to squeeze it into 14? I’ve said from the outset, I do not believe these GPS audits enhance safety, and this just proves my point.
More on Mandatory EOBRs
I know, I’m still wound up about this mandatory EOBR rule, which won’t be effective for another 2 years. Nevertheless, here is an article from a website called Purchasing.com.
In it, the OOIDA estimates the EOBRs will cost $2,000 annually. Annually? I’m not sure of that, I’m sure there will be some type of subscription fees per unit, but $2,000? Then further down the article, the transportation manager at True Value states installing and maintaining the EOBRs for his over 300 unit fleet cost, over 5 years, $1.5 million. So, that’s around $5,000 per truck, over 5 years. The True Value manager does say he thinks the investment is well worth it.
FMCSA Will Mandate EOBRs for Log Violators
The FMCSA issued a rulemaking last week which will force motor carriers accused of violating the hours of service regulations to install electronic on-board recorders (EOBR) in all of their trucks. Here is the Federal Register. It’s 46 pages long, so I’m not going to regurgitate it all here.
An EOBR is a computer-GPS type device which tracks where the driver and the truck are at. Basically, it takes the place of a logbook. It shows everywhere the driver has been, and the times he was at those locations. It is extremely difficult to falsify your hours of service, if an EOBR is recording where you are.
FMCSA’s regulations state that if a motor carrier is alleged to have 10% of more violations in a “critical” hours of service regulation, that motor carrier will be forced to install the EOBRs within 60 days. The motor carrier will be required to keep the EOBRs in the trucks for 2 years. These regulations will be effective on June 4, 2012.
This is a big deal. As far as the hours of service regulations go, I have always used the speed limit analogy. The limit might be 55 miles per hour, but no one actually drives 55, and it’s not enforced at 55. It’s enforced more like 10 miles over. It’s the same with the logbooks. If you do not have an EOBR, then your logs must match whatever timed documents you have, such as tolls, fuel statement, scale tickets. This enables drivers to cheat an hour or two here and there. Not so with an EOBR. Every last thing the driver does, is visible to DOT.
For the over-the-road, for-hire type carriers, if you don’t want to be forced to install black boxes in the trucks, and be forced to run strictly legal, then you cannot fail the hours of service part of a DOT audit. If you are forced to install the EOBRs, you’ll lose drivers, operational flexibility, and probably customers too, as your competitors won’t be subject to limitations of running strictly legal. Then there’s the cost of buying the equipment. These units are probably going to cost between $1,000 and $3,000 to install per unit. Then you have the cost to train the drivers, that’s another several thousands of dollars in lost time. Basically, if you have 10 trucks, you could be looking at $20,000 – 30,000 worth of equipment and training. If you don’t have the cash flow to make that kind of outlay, you’ll be done.
If you are not an over-the-road guy, say you’re a landscaper or construction outfit, this rule applies to you as well. Maybe your drivers only work 8 hours a day, but you’re sloppy on your paperwork, and they don’t fill out time records every day, like they should. If DOT finds more than 10% of your time records missing, you have to get the EOBRs. At least for the over-the-road drivers, the EOBRs do provide some benefit, such as tracking your vehicles, and eliminating that 5 minutes a day a driver fills out his logs, but if you’re a landscaper, you just bought a very expensive technology you don’t need.
The good news is this won’t happen for another 2 years, so I will revisit the topic before then. My recommendation is that you thoroughly audit your logs on a monthly basis…. or hire someone like me to do it for you. If you are getting audited, you’d better have me there, because if they write you up for log violations, you’d better get a loan to buy all the EOBRs the government demands you have.
New Entrant Audit Is Now More Difficult
On December 16, 2009, FMCSA changed their procedures regarding the “New Entrant” audits. Here is the Final Rule, complete with all the legalese. A “New Entrant” is a person or a business who starts in business, and wants to operate trucks on the road across state lines. The regulations calls that person or business a “motor carrier”. A motor carrier must undergo a safety audit by the FMCSA within 18 months of beginning operations. During this audit, FMCSA will determine whether or not this New Entrant motor carrier is complying with the safety regulations. If they pass the audit, they get a letter in the mail blessing you, and they continue to operate.
Prior to December 16, 2009, it was relatively easy to pass the audit. Too easy, according to Congress, who demanded the audit become more difficult to pass. So, voila, FMCSA has made the audit more difficult. What will cause you to fail an audit? Well, for example, not doing random drug and alcohol testing. Not making records of duty status. Not having annual vehicle inspections. All of these will cause you to fail the audit. What happens then? At that point, you enter into Bureaucratic Mumbo-Jumbo Land, and believe me that’s a place you don’t want to be. You will have to demonstrate to them you have fixed your problems, and then they might bless you to operate. Once you enter Bureaucratic Mumbo-Jumbo Land, things happen on FMCSA’s timetable, not yours. If you cannot navigate your way out of Bureaucratic Mumbo-Jumbo Land, they take away your right to operate.
My DVD training package is designed to get you past the New Entrant audit. It teachs you what safety rules you must comply with. It’s $275 plus shipping and handling. Also, with the purchase price, you can call me on the phone with questions. Buy it, watch it, learn it…….. you’ll have no problems. I am also available to help you out of Bureaucratic Mumbo-Jumbo Land, if you are unfortunate enough to end up there.
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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.
Open Season on GPS Records
In December, 2008, the FMCSA quietly issued a rulemaking in which it served notice that it could check GPS records during an audit without restrictions. In 1997, the FMCSA had set its previous policy on GPS, which was that they were off limits, except in certain limited circumstances. The present policy says investigators can check those records, if they wish.
The Midwestern Service Center for FMCSA, which covers from Ohio to Nebraska, is checking these records in every audit they conduct, no questions asked. For example, if you are a carrier in Iowa, and you get audited, the inspector is going to ask for your satellite records. If you use Qualcomm, Peoplenet, or any other type of satellite tracking for your trucks, you will have to turn over those records, and they will be compared against the logs.
This is a major deal. I’m sure many of you over-the-road carriers have been audited previously, and have passed. It is very likely if you get audited again, you will not pass. GPS records have dozens of timed locations of each truck per day. The chances of the driver matching all of those locations to his logs exactly are not good.
The rules are these: If a record is generated, you must retain it for six months. In other words, if your GPS is set up to ping the truck once an hour, you will have to produce for DOT during an audit 24 timed locations per day, for six months. If your GPS is set up to ping the truck once a day, you need to produce 1 timed location per day, for six months.
There is no requirement to utilize GPS. If you decide to turn off your GPS, no records are generated, therefore, you do not have to turn over any GPS records during an audit. If the record is created, you must give it to the auditors. All motor carriers who use GPS should prepare themselves for this type of audit, especially if you are in the Midwest. Your Satisfactory rating depends on it.
Safety Ratings
One of the things DOT does is it rates all motor carriers at the conclusion of all its audits. It gives out 3 different ratings. Satisfactory, is the best rating, which means you are mostly in compliance. Conditional, means there are some major rules you are violating. Also, a Conditional rating means you almost certainly were fined as a result of the audit. Finally, there is Unsatisfactory. This means you’re so screwed up, they only give you 60 days…. less if you handle hazardous materials, to clean up your act, or they put you out of business. If you’ve never been audited, you have NO rating.
Ideally, you want to have a Satisfactory rating, or no rating. You can operate indefinitely with a Conditional rating, but it’s hard, especially if you are a for-hire motor carrier. Shippers, brokers, and insurance companies can and do view these ratings on the Internet. It varies by shipper, as to whether or not they’ll load a Conditional carrier. Some don’t care. Others want CYA documentation from you about how you really are a safe carrier. Then others won’t load a Conditional carrier, no ifs ands or buts. I had heard CH Robinson is one of those, for example, but I’m not 100% sure if that’s true.
Furthermore, your insurance carrier may jack up your rates, strictly based on the Conditional rating. I once asked a larger customer of mine, who had just gotten out of the Conditional status how much extra he was paying in insurance due to the Conditional. He guessed he was paying $200 – 300 more per truck. Your mileage may vary.
The thing many motor carriers don’t understand is that once you have the Conditional rating, it’s not easy to get the Satisfactory rating. First you have to comply with the rules. Second, you have to get the DOT to upgrade your rating. This can be very hard. It used to be you could call your local DOT office, and they would send out an agent to conduct a reaudit. They would satisfy themselves you’re on the straight and narrow, your rating gets upgraded to Satsifactory, and everybody is happy.
DOT doesn’t do this anymore. They have decided they don’t want to waste resources on motor carriers who probably are in compliance. If you get a Conditional, that’s your problem, they reason. Your crisis is not their crisis, so they very rarely conduct re-audits. You can sit with a Conditional rating for a year or two before they do a re-audit.
They do provide you an avenue in order to regain the Satisfactory rating. You must petition their office, providing reams of documentation about how you have corrected the violations, and will sin no more. This is not an easy process. First, when dealing with government workers, you must remember their primary focus is CYA. In other words, if they upgrade you to Satisfactory based on a few pieces of paper, they want to make 100% you’ve earned it. If they upgrade you on Monday, and Tuesday, you slide into a family of six, they know that on Wednesday the media will be asking questions. No DOT official wants to be on the news.
Therefore, they go over these petitions with a fine-toothed comb. They nit. They pick. God forbid if you need guidance. Getting a DOT guy on the phone is usually difficult, sometimes impossible, and if you do get to the right person on the phone, getting any legitimate help is a crapshoot. Many of the DOT guys are just not that interested in helping the motor carriers. Some are, but like I said, it’s six of one, half dozen of another whether you get the helpful guy on the phone. You are just as likely to get somebody who not only will not help you, they’ll be downright rude in doing it. After all, it’s not their Conditional rating, it’s yours, so kiss off motor carriers.
Oh well, rude DOT officials just creates more demand and work for me. They answer the phone 25% of the time. I answer it 70% of the time, and the other 30%, I return messages almost always that same day. Anyway, the best way get out of a Conditional status is to avoid getting placed there in the first place.
