DOT Bans Cellphones
Sometimes I go months without anything to say on this blog. Then, there are times like now, when I can’t find the time to say everything I have to say on the blog. At any rate, let’s start with DOT’s cellphone ban. You knew it was coming, and now it’s here. It’s important, because it very well may affect you, the average driver, so you need to know it’s there. It becomes effective on January 3, 2012.
Using a hand-held cellphone is no longer allowed, if you are driving a truck with a Gross Vehicle Weight Rating of 10,001 lbs. in interstate commerce. You may not answer a phone call, unless you can do it by pressing only one button. You may not hold a cellphone to your ear and talk. You may not initiate a phone call, unless you can do it by pressing only one button.
Let’s stop there. I think it’s clear these are now prohibited actions. If you do want to use a cellphone while driving, you need hands-free technology, and it must be operable by only one button. I know there are headsets out there which allow you to talk without holding the phone to your ear. I’m also pretty sure there are devices, which enable you to dial the phone strictly by using your voice. I’m less sure about that, but my wife tells me there are, so there must be, because she’s always right.
It’s a little less clear what else might be prohibited. The rule seems to have allow activities on the smartphone which do not involve communication. For example, under the new definition of “texting”, it says “Texting does not include using a device capable of performing multiple functions (e.g., fleet management systems, dispatching devices, smart phones, citizens band radios, music players, etc.) for a purpose that is not otherwise prohibited in this part.”
Therefore, if I use my smartphone, while driving, to find my favorite Eric Clapton album, which I have hooked up through my speaker system, I believe that would be legal, if no other reason, it specifically says the words, “music players”.
If I use the phone to enter in an odometer reading, that is illegal. I know this, as the preamble of this rule says it is. However, if you reach into the glove box, and pull out a piece of paper, and physically write down your odometer reading, that is legal.
Using CB’s is still legal. However, using push-to-talk cellphones are not. I am not sure what the difference is, other than it was easy to define cellphones using a previous definition from the FCC regulations.
I think the real world answer is if a police officer sees you fiddling with your Iphone, or Droid while you’re driving, he’s going to write you a giant ticket and ask questions later.
Presently, this rule only applies if you are operating in interstate commerce. However, the Federal government forces the States to adopt similar, if not identical rules, by threatening to withhold Highway monies. Therefore, both the texting and the cellphone ban will apply nearly everywhere within a year or two, as the States adopt the new Federal rules.
This means it will apply to all of the various shapes and forms of commercial motor vehicles. Landscapers, dump trucks, utility vehicles, three quarter ton pickups pulling small trailers….. all will be prohibited from using a hand-held cellphone, regardless of whether their State has passed that kind of law or not.
In the News
Well, I vowed I would keep this blog current, but I guess I haven’t been doing a very good job. Well, I did run a marathon two weeks ago, so that sort of thing, along with doing your normal 60 – 70 hours a week job keeps you busy. So what has been happening? Well, Anne Ferro, head of FMCSA, said they will not miss a beat in pursuing their EOBR dictum. Or miss a step. Or something like that. Anyway, they are pressing forward as if nothing happened. No surprise there. It will take them a good amount of time to bulletproof their next rulemaking, so it will be next year before anything new is issued on the EOBR front. They might not even get it out then, but I am certain they want it published before the 2012 elections.
On the hours of service front, FMCSA is probably within a month of announcing what the new hours of service rules will be. The ATA has pulled out all the stops to stop the new rules, but presently, it looks like the Obama Administration will dance with who brung them, that being the Teamsters. The FMCSA has signaled it IS going to issue these new rules, and they will be more restrictive. Chairman of the House Transportation and Infrastructure Committee John Mica has threatened to “aggressively oversee” any attempted changes to the hours of service rules. I hold out no hope he’s going to do anything. The only thing Congress does aggressively is spend taxpayers money. The fact that Mica is a Republican is irrelevant. In fact, before becoming Obama’s regulatory point-man, Ray LaHood was a Congressman. Do you know which party he belonged to? Wait for it………… the Republican party. Mica will do nothing.
The ATA has promised an immediate lawsuit when FMCSA finally makes its move. I think there is a better than even chance ATA will achieve some kind of standoff in court which will force FMCSA to keep using the old rules, at least for awhile. The bottomline is, no one knows what rules will be in effect 6 months from now.
One other thought: I have been watching these Republican debates. I’m deciding who to support in the GOP primary. I did hear one candidate say something which I’ve been waiting to hear. This candidate said he would halt all of Obama’s rulemakings, which I think would be absolutely fantastic, and help get the economy moving again. Unfortunately, the candidate who said it was Mitt Romney, who takes both sides of every issue. Romney is no way, shape or form will stop the government takoever of the private sector now underway. In fact, I have decided if Romney is the nominee I will vote for myself. While I don’t like my chances on winning, at least I won’t be a Big Government socialist like Obama or Romney.
FMCSA = DOT
For you people who do not eat, drink and breath this stuff like I do; I would like to clarify what “DOT” and “FMCSA” means. DOT means the US Department of Transportation. It is a Cabinet level agency which reports to the President. Under its umbrella are all the various government agencies which regulate the modes of transportation, such as the Federal Aviation Administration, the Federal Rail Administration and the Federal Motor Carrier Safety Administration (FMCSA). FMCSA is the organization which writes and enforces the truck safety rules. They are the ones who audit you, they are the ones who fine you, and they are the ones who tell you what the rules are. The Administrator of FMCSA is Anne Ferro. She reports to her boss, Ray LaHood, who is the head of the Department of Transportation. LaHood is appointed by the President, and approved by Congress, just like the Secretary of State or Defense.
So, FMCSA is a subdivision of DOT. When I write my articles, I use the two interchangeably. Why? Early in my work-life, I learned no one in the trucking industry recognizes the term “FMCSA”. Or back in the day when I learned this, they were called the Office of Motor Carriers. However, all truckers recognize “DOT”. So, I will liberally refer to DOT when I am referring to FMCSA. For my purposes, they are the same thing.
Back to the 21st Century
Well, my office is finally back to normal, I think. We lost power over the weekend due to this tropical storm Irene. I refuse to call it a hurricane, because it wasn’t a hurricane here, despite what Met-Ed says. So, today I think everything is back working… if you’ve tried to call in the past few days and couldn’t get through… that’s why.
Rule of Thumb
One explosives customer told me one time about the “rule of thumb”. He said, if your truck ever catches on fire, to run far enough away from it, so you can stick your arm out and cover it entirely with your thumb. This probably applies to buses, as well. In this case, apparently this driver does not have a big enough thumb, and is retreating to safety. This photo is courtesy of one of the passengers, Simon Fitzgerald. This accident occurred Saturday, August 20, 2011 on the New Jersey Turnpike. The driver tried to make it to an exit on a blown out tire, which caused the fire. No one was injured.
Another update
Well, as I said, I swore I would keep this site updated, and I guess I’m not doing it. I think I am suffering from general, middle-aged burnout with my job. Besides, probably every topic pertaining to the DOT regulations has probably been addressed somewhere already on this site. Maybe not.
Anyway, what’s new? Well, DOT’s new target was the farmers, but they have backed off on that. They were going to force them to meet all the compliance requirements, and take away all their exemptions, such as licensing. I guess the farmers have more political pull than the small truckers have, because DOT decided not to pull all the exemptions after all, assuring us they never had those intentions in the first place. Yeah right.
I really can’t think of anything else to say at the moment. Writer’s block again.
Update
At some point in the past, I vowed to keep the blog site current, so I guess I’ve been falling down on that, since I haven’t posted anything in 6 weeks. I guess there’s really not much to report. ATA is continuing to fight DOT on their ridiculous new hours of service rules. The results of that war will not be known for many months; possibly not until after the 2012 elections. DOT announced the electronic on-board recorder final rule will not be published until next year, which means it will probably be 2015 until you are forced, at the point of a gun, to get e-logs in all your trucks. All I can say there is, if you don’t want the e-logs, vote against Obama and Ray LaHood in 2012. DOT’s war against Chinese bus companies is winding down, which is bad news for anyone who isn’t a Chinese bus company.
Finally, in Washington, the debt ceiling, kabuki dance nears its conclusion. I see nothing in what is being discussed that will have any impact on trucking and the DOT. In other words, the FMCSA’s budget is not going to be slashed by 50%. For that matter, it’s not going to be cut at all. That’s all I have for now; I have to go buy some more gold, so I have something to barter with, once the dollar becomes worthless.
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.
DVD Packages Are Out of Stock
I created a DVD package about 4 years ago, which was a nifty package designed to assist New Entrants in passing their New Entrant audit. Presently, this item is still listed on my home page, but is listed as “out of stock”. Well, it’s not really out of stock. I have a bunch of them sitting here in the office. In fact, the cat is sleeping on one as we speak. I just can’t sell them, because they’re obsolete. Basically, with DOT totally re-writing both the hours of service and supporting documents rules (IE… EOBRs), 30% of the package is out of date information, and I can’t charge you for out of date information.
Nevertheless, if you are facing a New Entrant audit, or you just want to know what you need to do to stay out of trouble, call me. Chances are, I’ll be able to walk you through the rules in 1-2 hours for a reasonable cost.
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Eric Arnold is a Former Enforcement Manager 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.
Learn more about Arnold Safety compliance consulting services at ArnoldSafety.Com.
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.
