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.
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.
More CSA 2010 Thoughts
Well, as we get closer to this thing, I learn more about it. I talked to two DOT people last week. One swears it’s going to revolutionize how the DOT does business. The other says its not much different from the system they’re using now. I sort of agree with the 2nd person. One thing I learned this past week is DOT is focusing even more intensely on the roadside inspections, including citations which were not Out of Service. This is a departure from the current system. For example, even if your logs at the office are in compliance, if you have a bunch of “log not current” cites on your roadside inspections, DOT is going to harass you.
It is important to take every DOT roadside inspection, and address every last citation on every one of them in writing. For example, your driver is written up for not wearing his seatbelt. Make a note that you made the driver watch a video on the importance of seatbelts. Or that you talked to the driver. Or that you pointed him to page 32 of your company manual which says seatbelts must be worn. Or that you fined him $50. Etc.
It might not be a bad idea to come up with a disciplinary policy geared specifically for roadside inspections. Maybe something like for every violation, you get a warning letter…. if you get too many, we suspend you, or fine you. If you pass a roadside inspection, we give you $25 or $50. More on this later….
New Training Requirements for Hauling Metal Coils in Alabama
Well, here’s more regulation, brought to you by the folks in the great state of Alabama. The new law can be found here. Basically, it says, if you load or unload metal coils in Alabama, you must be trained on how to secure your load. This training must consist of an online course found at www.metalcoiltraining.com. No other training will suffice. It must be their training. It costs $15 per driver. The driver must have the certificate in the truck while loading or unloading in Alabama. Failure to do so will result in a minimum fine of $5,000 for motor carriers. This law became effective on June 1, 2009. Yeah, I know, I’m a little behind the curve, but I’m way up here in Pennsylvania, so I don’t hear of every crazy law these %#@# State goverments dream up to balance their budgets. Anyway, enforcement of this will begin August 1.
Somewhere, I hear Bob Seger singing “Shakedown”……
Daily Vehicle Inspections And You
Here is the latest column which I wrote for the Outdoor Amusement Business Association. Lately, it seems like I have been running into numerous horror stories caused by not doing written post-trip inspections. Or at least not doing them they way the DOT wants.
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On of the items DOT inspectors always review during an audit are the driver’s daily vehicle inspection reports. According to 49 CFR 396.11(a), a driver is required to complete a written inspection at the conclusion of each day’s work and submit it to the motor carrier. Often, these inspections are found on the reverse side of the logsheets.
A driver should be completing two inspections daily. A pre-trip inspection, done prior to the day’s work, is required, so the driver may satisfy himself that the truck is in proper working condition. The pre-trip inspection is not required to be in writing. At the conclusion of the day, the driver must conduct another inspection, known as the post-trip inspection. The pre-trip and post-trip inspections, are generally the same inspection. The post-trip must be recorded on a daily vehicle inspection form, which may be a separate sheet of paper, but often is found on the reverse side of the logsheets.
For example, let’s assume a driver is conducting pre-trip inspections, but not post-trip inspections. At the conclusion of his day’s work, he parks the truck, and heads to the motel. Unbeknownst to him, during the day, his brake lights stopped working. The next morning, when he does his inspection, he finds the brake lights won’t work. The driver is now in a dilemma. He should call a mechanic, and get the brake lights working before he moves the truck, as driving without brake lights is dangerous. On the other hand, he needs to be somewhere, and if he is late, his boss is going to be mad. What to do?
In the real world, the driver usually drives the truck with the broken brake lights, and hopes DOT doesn’t catch him, or no one rear-ends him that day. If this driver was doing a post-trip inspection, he would have known his brake lights didn’t work the night before, and could have made some phone calls to get the truck fixed well before he needed to be on the road the next day.
Many drivers complete a logsheet showing their hours of service, but neglect to complete the daily vehicle inspection report on the back. More commonly, are the drivers who do complete the daily vehicle inspection report, but always report the vehicle has no defects, without fail, regardless of the condition of the truck. Often these drivers are not, in fact, doing the post-trip inspection, but are just “pencil-whipping” the piece of paper to keep DOT happy. This is not correct either. If a driver is doing a correct post-trip inspection, he will occasionally find things wrong with the truck, and write them on the inspection.
As a motor carrier, if a driver notes a defect on the inspection report, it is your responsibility to review the report, and the defect prior to operating the truck again. You do not always have to repair an item reported by the driver immediately, but you do need to determine if it will affect the safe operation of the vehicle. For example, a driver reports one of his tires is low on tread. You check the tire, and while it’s not new, it has enough tread to be legal. You must note this on the daily vehicle inspection report and sign it. On the other hand, if a driver notes his low-air warning light isn’t working, you must fix it before the truck is used again, and note that on the inspection report.
DOT looks for daily vehicle inspection reports with defects noted repeatedly, day after day, with no action taken by management with respect to that defect. In a true horror story, a motor carrier recently had a driver who identified on multiple days that his low air warning light was defective. The motor carrier was not reading the inspection reports; they were just filing them. DOT did an audit, and levied a $40,000 fine on the motor carrier for failing to fix the low air warning light. While it is true that $40,000 is a ridiculous and totally unreasonable penalty for this type of violation, this situation could have been avoided had the motor carrier simply been reviewing the inspection reports.
In conclusion, make sure your drivers are turning in daily vehicle inspection reports for each day your trucks are driven. Make sure they are complete, and make sure that any defects identified are fixed. This could save you some major headaches in a DOT audit.
Two West Virginia Drivers Sue Trucking Companies
Two drivers filed suit in the State of West Virginia this week over alleged improper firings which took place in January, 2009. The drivers allege that they were identifying defects on their post trip inspection reports, and the two motor carriers, Mate Creek Trucking, and Titan Transport, did not fix the defects. They also allege that the motor carriers fired the drivers, because of their complaints regarding the condition of the trucks.
The DOT regulations require drivers to complete a written post-trip inspection report at the conclusion of each day’s work. The motor carrier must make repairs on items which affect the safety of the truck. Many drivers either 1) don’t fill out the report, or 2) do fill it out, but list no violations, regardless of the condition of the truck. If you are in management, you must be reviewing these reports, to make sure there are not any defects identified on the report. If there are, you must address them, either by fixing the truck, or determining the defect doesn’t exist, or will not affect the safe operation of the vehicle.
Truck Driver Forgets Parking Brake
Whoops. I knew I forgot something. This happened Tuesday August 26, 2008 at 5pm in Grand Prairie, TX.
The truck was at a truck-stop which is adjacent to (and uphill from, apparently) the McDonald’s. Next thing you know, the truck, without the driver, is inside the McDonald’s.
The driver says he did set the parking brake. Uh-huh. The police says the brakes were working correctly….. if they were set, that is.
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.
Truck Crash in Chinatown
This happened Monday, June 23, 2008 in the Chinatown section of Manhattan.
A dump truck coming down the off-ramp from the Manhattan Bridge lost control, and slammed into the back of a parked bus, which was loading passengers at the time. The truck driver said the brakes failed. One person was killed, and 3 injured.
The truck was operated by CPQ Freight Systems from South Kearny, NJ. A look at their Safestat records shows they have had 6 trucks placed Out of Service (OOS) for maintenance defects out of 12 checked in the past 30 months. That is a 50% OOS rate, which is pretty poor. In addition to the brakes failing, investigators observed that the truck may have been over-loaded.
That’s the thing about heavy truck brakes which are not properly adjusted. The truck may stop just fine while its empty. It may even stop while loaded. But you couple an overloaded truck, going too fast, with brakes in less-satisfactory condition…. well, it’s not going to stop. Not in time, anyway. It is important that motor carriers make sure the brakes on their trucks are adjusted on a regular basis. If the truck undergoes heavy loads, with lots of stop-start driving, that means once a week, or even more often. The fact is, trucks are required to be in proper working condition at all times, to prevent this type of wreck.
