DOT will start auditing GPS data

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In November, 2008, in a very brief notice in the Federal Register, FMCSA notified the world that it was rescinding its policy on GPS data. In 1997, FMCSA issued a policy to its auditors, stating that they were only to use GPS data as a last resort in auditing logs for accuracy. This was done largely to keep the playing field level. An auditor checking GPS data against a driver’s logs will obviously find a much higher percentage of falsifications, than one who is just using paper documents like fuel statements and toll receipts. The policy was also done to encourage trucking companies to buy the GPS technology.

Now, by eliminating that policy, the FMCSA has signaled very clearly they will start using the GPS data to audit your logs. Any carrier who has GPS satellites could be in jeopardy during an audit. I imagine what will happen is many auditors will just do it the way they’ve always done it, and use the traditional EZPass statements, toll receipts, fuel statements, and scale tickets. However, I’m sure there will be some aggressive field agents who are going to use that mountain of GPS data as a hammer. And guess who is the nail?

This will probably lead to multiple levels of expectations during an audit. If you do not have GPS data, or if you’re lucky enough to get an auditor who is going to leave sleeping dogs lie, nothing will change. BUT, if you get a guy who wants that GPS data, for no reason other than he wants it, you and your drivers will be held to a much stricter compliance standard. In other words, your drivers’ logs will have to be precisely accurate and legal. No fudging an hour here, or an hour there.

If FMCSA wanted everyone to run strictly legal, they would have mandated that all new trucks are equipped with the on-board recorders a few years ago, but they didn’t do that. With the on-board recorders, everyone would have been held to the same standard. Now, a carrier without the GPS can cheat more than carriers with the GPS.

Stay tuned, and be forewarned. If do have GPS, you might investigate how far off your drivers’ logs are compared to your satellite data, especially if you are on FMCSA’s Safestat list.

Fatal Bus Crash in Texas Kills 17

By now, you may have heard about the fatal bus crash, which happened last Friday, August 8 just north of Dallas, TX on US 75. A bus, carrying a tour of Vietnamese Catholics heading for Missouri, blew a tire around 12:45am, careened off the road, onto its side, ultimately killing 17 of the passengers. While the investigation is still on-going, it has been reported that a recapped tire on the steer axle blew, sending the bus out of control. It is illegal to use recapped tires on the steer axle of buses.

Here is an article giving you the basics from last Friday. The operator of the bus, Angel Tours, USDOT #544466, 1505 Telephone Rd., Houston, TX, had been placed Out of Service (OOS) on June 23 due to an Unsatisfactory rating generated from an audit on May 1, 2008. Rather than correct the problems identified in the audit, owner of Angel Tours, Angel De La Torre, simply started a new company called Iguala Busmex, USDOT #1786461, 1504 Telephone Rd., Houston, TX.

At the time of the accident, due to the fact that Iguala Busmex had not filed insurance paperwork with the FMCSA, Iguala Busmex was not qualified to operate outside of Texas. In reality, Iguala Busmex should never have been qualified to operate outside of Texas, because it was really just Angel Tours, which was Out of Service.

Where to start with this one? FMCSA looks very bad here. They placed Angel Tours OOS June 23, and six weeks later one of their buses is upside-down on the side of the road with 17 dead inside it. The fact is, FMCSA is not designed to handle the Angel De La Torre’s of the world. Changing company names goes on all the time. I discovered this while I worked at FMCSA, and I see more of it now that I’m on the other side of the fence. A marginal carrier, with a poor safety history is seeking a fresh start? Start a new company, get a new DOT#, and boom! Pure as the driven snow, operate as before, business as usual.

FMCSA has been historically lax in enforcing its Out of Service orders. Their process is, more or less, send out a certified letter, and deactivate the DOT#. Once in a great while, they might make a personal visit to the OOS carrier, just to make sure they’re not operating. At present, FMCSA does not have the personnel, or the desire to follow-through on the De La Torre-types to make sure they’re not operating.

It takes a staggering amount of work for FMCSA to catch guys like De La Torre who are ignoring their orders. First, the FMCSA division office has to determine how they’re operating, who owns the new company, who owns the equipment, is it substantially the same as the old company? This takes work. Then, if they think it’s the same company, they have to convince their bosses and attorneys in the regional office to follow-through. More work. FMCSA bosses, in general, don’t like work, and they hate losing in court, so they are ultra-conservative when it comes to pursuing scumbags like De La Torre. If FMCSA does decide to pursue action, the FMCSA attorneys have to go to court, usually hand-in-hand with the Department of Justice, seeking an injunction against the scumbag skirting the OOS Order. Much more work. An incredible amount of work.

Chasing down one of these scumbags can occupy a whole FMCSA office for weeks. It’s not as simple as just breaking out the handcuffs. One of the things FMCSA does not have is law enforcement powers. If you violate one of their Orders, nobody is going to put you in jail the next day. Ultimately, you could end up in jail, but it takes a long, long time, which is the point. FMCSA does not follow-through on their OOS Orders due to lack of manpower.

I would expect some serious fallout from this crash. We’re already starting to see some it. FMCSA has now declared Angel Tours/Iguala Busmex an “imminent hazard”, prohibiting them from operating anywhere. This is slightly different from the previous Order issued which only prohibited Angel Tours from operating outside the State of Texas. Of course, declaring Angel Tours an “imminent hazard” is kind of closing the door after the horse is gone.

I would expect a number of things to happen. It’s going to become much more difficult to get a DOT number. It will probably be harder to get Unsatisfactory ratings upgraded. No FMCSA official wants to be the guy who upgraded a De La Torre, and then find them in a big wreck. Carriers that are placed OOS will be scrutinized heavily to make sure they don’t move across the street and keep operating. FMCSA will probably become more aggressive in issuing Out of Service Orders. Back in the day, the agency used to issue “imminent hazard” Orders routinely. Now it only happens after someone gets killed. I predict the agency will start using these type of Orders again

None of this will happen tomorrow, as government moves very slowly. But as the investigation continues, and NTSB and Congress weigh-in, expect a crackdown from FMCSA.

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.

Crete Driver Gets 7 Years in Jail

Last week, a former driver for Crete Carrier Corp., of Crete, NE was sentenced to 7 years in jail for crashing his tractor-trailer into a car and school bus, killing 7. This wreck occurred on January 25, 2006.

This has been one of the worst truck wrecks in terms of casualties in the past few years. There has been much speculation and rumor about the cause of the crash. It appears somewhat settled now that the driver fell asleep, causing him to rear-end a car at highway speed loaded with children. The driver entered into a plea agreement with prosecutors. As part of that agreement, the driver described to them how he had been awake for 34 hours prior to the accident.

Prosecutors have stated that they are not finished with this case. The implication is that, with the help of the driver, they will attempt to bring actions against the motor carrier, Crete Carrier Corp. This probably won’t happen. Prosecutors always imply that justice will be served before the cameras, but then when their evidence doesn’t take them where they want to go, they quietly drop the case. That will probably happen in this case.

Nevertheless, this incident illustrates why the safety regulations exist. Every safety class I give, I go into my fatigue spiel, and I see eyes roll, and people tune out…. but I’m telling you, driving when you’re sleepy can be worse than driving drunk. You lose control of your truck at highway speeds, and you’ll be lucky to walk away. Of course, if you’re unlucky, and kill somebody else, like this poor guy in handcuffs, you’ll wish you were dead.

I don’t know this driver from Adam, but I would imagine he is just your normal, everyday, good guy truck driver, who used bad judgment, and paid the price. How many of you drivers reading this have done the same thing and gotten away with it? Learn from this guy’s misfortune!

Trucking Company Owner Goes to Jail for Log Falsification

This press release was issued recently by the Department of Justice. It illustrates that the government does take criminal action occasionally for safety violations.

FRESNO, Calif.—United States Attorney McGregor W. Scott announced today that SURINDER SINGH NIJJAR, 42, of Madera, Calif., owner of Nijar Brothers Trucking and NB Trucking, Inc., was sentenced to one year in prison by United States District Judge Anthony Ishii for making false statements to a government agency. He pleaded guilty on September 22, 2006.

This case is the product of an investigation by the U.S. Department of Transportation, Office of Inspector General.

According Assistant United States Attorneys Mark E. Cullers and Marlon Cobar, who prosecuted the case, NIJJAR and other employees of Nijar Brothers Trucking and NB Trucking falsified the Drivers Daily Logs of their truck drivers. These daily logs were supplied to the Federal Motor Carriers Safety Administration, the federal agency authorized to ensure truck drivers do not exceed the daily maximum number of hours driving allowable. By falsifying the logs and allowing the falsification to take place, Judge Ishii found that NIJJAR “created a conscious risk of death or serious bodily injury” to drivers using the roads and put the safety of the public at risk. In addition to serving a year in federal prison, NIJJAR was sentenced to three years of supervised release and ordered to pay a $5,000 fine.

Household Goods Regulations

FMCSA has a whole set of ‘other’ regulations, which really have nothing at all to do with safety. These are holdovers from the defunct Interstate Commerce Commissioin (ICC), and they protect the public from unscrupulous moving companies. The fines attached with these regulations are outrageously high, done so intentionally by the Congress, as they try to get at the moving companies who are nothing more than scam-artist criminals.

For example, a common scam is a mover sets up a website. You get a free quote on your move, based on where you’re going, how much stuff you have, etc. The scammer purposely gives you a lowball estimate. The naive customer says, “wow, that’s half of what everyone else is charging me, what a deal, aren’t I clever?” Then the mover comes along, packs up the mark’s things, and down the road he goes. When it comes time to deliver the furniture, the mover tells the mark there’s been an unexpected snag, and it will now cost 3-4 times as much to complete the move, and he won’t get his stuff back until he comes up with the cash. The mark is now stuck, basically ransoming his own stuff which is being held hostage.

FMCSA has all sorts of rules prohibiting this. Unfortunately, FMCSA’s main remedy in these situations is a monetary fine, which is almost 100% useless against hardened criminals. A true scammer will simply throw DOT’s fine in the trash can, and by the time the government gets ready to take real action against the scammer, he’s already moved across town, is calling himself something else, and the scam continues.

The problem is, there are legitimate Mom-and-Pop moving companies out there who are honest businessmen, who simply are not all that well versed on the household goods regulations. As I said, the penalties associated with these regulations are exorbitant, whether you are a criminal or an honest man who’s paperwork wasn’t exactly right. I was contacted a few weeks ago by an attorney who represents a small 2-3 truck operation. His client took a shipment from PA to NJ, something he normally doesn’t do, as a favor to a customer. Somehow, FMCSA found out about it, and discovered he is not registered as an interstate household goods mover. The fine? $25,000!!!! And FMCSA tells him there’s nothing he can do about it, as that’s the statutory minimum set by Congress. So now this poor guy is out of business, simply because he failed to file some paperwork with DOT.

While most of us are not household goods movers, probably at some point you, or someone you know will hire a mover. NEVER do business with a fly-by-night company you find on the Internet. Myself, I’m happy to pay the extra money for a reputable company who actually has an office with people in it, so if there’s a problem I’ve got somewhere to go, not just a cellphone number. Do some research on who you’re giving all your lifetime possessions to…. it could save you some real headaches.

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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.

Swift Transportation Takes $36.5 M Hit From Crash

In summary, Swift Transportation Co., probably the largest truckload company in the country, was involved in a fatal accident in Kansas in 2004, where their driver ran a stop sign, hit another vehicle, killing the driver. The jury returned a $36.5 million judgement this week against Swift.

$36.5 million! Why so much? Well, the article is posted below, but I’m reading between the lines. Apparently, Swift could (would not?) produce the logs from the accident, which may have shown whether or not the driver was over hours, or fatigued at the time of the accident. Since they did not produce these required documents, the jury punished them.

Huh. My attorney keeps telling me that if documents disappear following a crash, judges and juries just assume the worst, so apparently that is true. Especially in this case, as no doubt Swift had all kinds of documents other than the logs which would have shown how many hours their driver worked prior to the crash, such as GPS documentation. Was that provided? Probably not. I guess the moral of this story is retain all documents following a big accident, don’t get cute and start “disappearing” things.

It also shows what can happen if you have a fatal wreck, and your driver is violating the rules at the time of the crash. From the Arizona Star:

“Swift Transportation Co., a Phoenix-based trucking giant, has been slapped for $36.5 million in damages in a lawsuit over a fatal traffic crash in Kansas. The verdict, which included more than $13.5 million in punitive damages, was returned Friday after a nearly four-week trial in Maricopa County Superior Court.

Steven Copple, a Phoenix lawyer for the winning side in the court battle, argued that significant monetary damages were warranted in the case because Swift failed to cough up driver logs the company was required to keep under federal regulations. The logs, which Swift claimed it was unable to produce, may have shed light on whether the Swift driver at fault in the crash may have been cruising down a roadway in a fatigued physical state, Copple said. “We were hampered in our efforts to determine if he was, in fact, fatigued,” Copple said Monday. The hefty verdict clearly represents the significance placed by jurors over the loss of a Kansas man who left behind a widow and eight children, ages 13 to 26, at the time of the crash, Copple said.

Robert Greer, a Phoenix attorney for Swift, said the verdict will be carefully reviewed and legal remedies for the trucking company will be sought in the trial court and, if necessary, in the appellate courts. The lawsuit was filed in July 2004 by the survivors of Thomas Steven, 57, of Wichita, the owner of a plumbing-supply business who was killed in a crash near Hutchinson, Kan. The crash occurred in April 2004 when the driver of a Swift rig failed to slow down while motoring at 65 mph on Kansas 61 on a sweeping, flat curve leading to the intersection with U.S. 50, according to court documents filed by Copple. Kevin Jones, the driver, cruised over three sets of rumble strips that are designed to warn motorists of an approaching stop-sign controlled intersection, according to the documents. The driver then ran a stop sign and crashed into a Chevrolet Suburban, killing Steven and seriously injuring two passengers in the vehicle, according to the documents.

“Mr. Jones never did more than apply light to moderate pressure on the brakes,” Copple argued in the court papers. “He never thought about stopping.” Following the crash, Jones was unable to offer an explanation why he failed to stop, Copple argued.”

Update on court-mandated Hours of Service change

On July 24, 2007, a US Court of Appeals vacated the FMCSA’s 11 hour rule, and the 34 hour reset provision of the 70 hour rule. In the interim, the FMCSA has issued the following guidance on what to do now:

“We are analyzing the decision issued today to understand the court’s findings as well as determine the agency’s next steps to prevent driver fatigue, ensure safe and efficient motor carrier operations and save lives. This decision does not go into effect until September 14, unless the court orders otherwise.”

There, doesn’t that make you feel better? Well, if nothing else, it clarifies that nothing changes until September 14, 2007. What will the rules be on September 15? No one knows exactly, but there is a very good chance it will be a 1) 10 hour driving limit, with a mandated 10 hour break, 2) the current 14 hour rule, and 3) no more than 70 hours on-duty in any consecutive 8 day period, no reset provision.

The over-the-road truckers realize that this will be a huge setback, in that they will not be able to work as many hours, or drive as many miles. It will dramatically effect the non-trucking operations as well. Whereas many of the local, non-trucking type companies never drive 11 or even 10 hours in one day, the elimination of the 70 hour reset provision will hurt everyone. What this means is that you must track how many hours your drivers get every day. On any given day, that driver cannot have more than 70 hours on-duty in the past seven days, plus today.

For example, let’s say a construction company normally works Monday through Friday, with a few hours on Saturday. A driver (who primarily works on jobsites operating equipment, but still drives a few hours each day) works 12 hours a day Monday – Friday. He works another 10 hours on Saturday. He is off on Sunday. Under the current rules, this driver may work a normal shift on the following Monday, with no restrictions, as he obtained 34 consecutive hours off-duty from when he stopped work on Saturday afternoon to early Monday morning. This resets his running 70 hour clock to zero. HOWEVER, under the rules without a reset provision, this driver will be unable to drive on Monday. Without a reset provision, you must always keep a running total of how many on-duty hours a driver has in the previous 7 days. In this case, he has 70 hours on duty in the previous 7 days. He has no hours to drive on Monday, or he will be over hours.

Under the current rules, most local, non-trucking companies, such as construction, landscapers, pavers, or local delivery companies never have to worry about 70 hour violations, as their drivers always get the weekends off, and they do not operate 70 hours during the week. That will all change with the elimination of the reset provision.

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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.

MAJOR HOURS OF SERVICE RULES CHANGE!!!!!

Yesterday, the U.S. Court of Appeals struck down the Federal Motor Carrier Safety Administration’s hours of service rules, and imposed rules of their own. These changes, I believe, will become effective no sooner than September 14, 2007, but stay tuned, as that too may change.

Drivers may no longer drive 11 hours, they may now only drive 10 hours. Drivers must continue to use the 14 hour rule. Drivers may not reset their 70 hour clocks with a 34 hour reset period.

How did all of this happen? When the FMCSA made it first changes some years ago, as they were directed to by Congress, they moved to the 11, 14, and 70 hour rules, with the reset provisions. They were sued by the public advocacy groups. These are people who hate trucks, and believe that if there is one truck accident, it’s one accident too many, consequences be damned. The US Court of Appeals found that the FMCSA did not follow the law in implementing the new rules, and directed them to make changes. The FMCSA announced that there would be, in effect, no more split sleeper berth provision. The advocacy crazies were not satisfied with this, and sued again. The same US Court of Appeals has now ruled again, and found that again, the FMCSA did not follow the law in implementing the new rules, and has imposed its own rules.

Who is to blame for this fiasco? As much as I like to bash the FMCSA, it probably isn’t their fault, even though the court says it is. This is just a leftist court, which sees this as a naked attempt by the industry to lessen the safety standards which will kill more innocent women and children for profit. No matter what the agency would have done in promulgating these new rules, the court would have found fault. Also to blame are the Republicans in Congress. They had an opportunity to short-circuit this insanity by passing a law which would have established the new rules as the law of the land, thereby cutting off the courts, but they failed. You can’t expect the Democrats in Congress to pass such a bill, as they favor more restrictive hours of service rules.

So, once again, everyone has to go back to the drawing board, and try to make sense of the new rules. Carefully set up routes and contracts laid out with the hours rules in mind will have to be scrapped. Carriers have built new terminals in locations picked specifically with the 11 hour rule in mind. Those will have to be moved or closed. The bottom line is the new, more restrictive laws will not make the roads any safer. In fact, if you look at the documentation in the FMCSA rulemaking, it will make the roads more dangerous.

Stay tuned, this may not be the last word on this issue. There may be an appeal, but I am not optimistic about its chances. I strongly suspect that the FMCSA will just give up at this point and go with the new rules imposed by the courts.

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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.