EOBRs, ATA, and the Future of DOT Audits
I have bashed the American Trucking Association liberally for their desire to force everyone to have an Electronic On-Board Recorder (EOBR), regardless of whether they want it or not.
I understand their position. Most ATA members have satellite technology in their trucks. Along with this satellite technology, some ATA members voluntarily opted to get the EOBRs. The rest have been forced to get the EOBRs by DOT. How have they been forced? About 3 years ago, DOT, after many years of declaring GPS data off-limits during log audits, announced it was open season on GPS data.
What this means is, when DOT conducts an audit to determine if logs are false, they take a driver’s paper log, and match it to other receipts, such as fuel bills, toll receipts, and bills of lading. The log must match these supporting documents within an hour. For example, if a fuel receipt says Effingham, IL at 11:00, the driver’s log must say “Effingham, IL” somewhere between 10:00 and 12:00.
Naturally, if DOT is using GPS print outs to verify the accuracy of drivers’ paper logs, it makes it much, much more difficult to pass a DOT accuracy audit. GPS printouts often detail when and where a driver is dozens, if not hundreds of times a day. Said another way, human drivers simply do not fill out their logs that exactly over a 24 hour period. They make mistakes, and if those mistakes are greater than an hour, then it is classified as a false log.
Once DOT began auditing using the GPS printouts, many of the ATA members were given little choice but to go to the EOBRs. It was either have the computer fill out the drivers’ logs for them, using the GPS technology, or face crippling fines, and relentless DOT harassment for log falsification.
So, the ATA position is this. We have EOBRs. We have to run strictly legal according to the 11, 14, and 70 hour rules. (Well, mostly strictly legal… there are still ways to slide around the boxes…. ). Carriers who don’t have satellite technology, are at an advantage because their drivers do not have to strictly adhere to the 11, 14, and 70 hour rules. Their drivers can fudge their paper logs, and no one can catch them. Yet we all know they are violating the 11, 14, and 70 hour rules, giving them a competitive advantage. Therefore, we must have a level playing field. All carriers must operate under the same set of rules, so, all carriers must have EOBRs in their trucks.
Like I said, I understand their position, and I sympathize with it. I disagree with it entirely, but I sympathize. I believe if I was the head of ATA, what I would have done is used their political influence, and legal resources to fight DOT from declaring open season on GPS data some 3 years ago. At this point, it’s probably too late to do that, after so many large carriers have spent hundreds of millions of dollars implementing EOBRs.
Nevertheless, I still think ATA is making a big mistake by embracing a universal
mandate for EOBRs. I think many ATA members believe once everyone has EOBRs, the DOT will leave them alone, as there will be no more violations. Nothing could be further from the truth.
What will happen once all carriers have EOBRs is DOT will begin a campaign to eliminate all hours of service violations. All of them. Presently, carriers all have some hours of service violations. There are all sorts of ways and reasons drivers end up violating the hours of service rules. It happens.
In the past, DOT has allowed a certain, low-level amount of violations. A term I learned during my time in the agency was “strict liability”. Agency lawyers taught me DOT did not hold carriers to a strict liability standard in hours of service. In other words, carriers were not liable for something which was not their fault. For example, you hire a new driver. You spend two days training him, teaching him, painstakingly instructing him on the hours of service rules, how to fill out a log, and your company’s “zero tolerance” policy for log violations. And then, on his very first run, he goes out and drives too many hours, and gets placed Out of Service for a logbook violation. When he returns to the terminal, you fire him.
In the past, the agency would probably not penalize the carrier for this driver, as you did everything you could do, to ensure he operated within the rules.
This is changing. DOT is rapidly moving to a strict liability standard, not just for hours of service, but for everything. Some examples? Take the example above. Your new driver who gets put Out of Service on his very first run. You do not condone his activity. You did not require him to do it. In fact, you took the most severe action possible when he returned to the yard; you terminated him. Nevertheless, that inspection is on your CSA record. There it is pumping up your Fatigue score, and as we all know, if that gets too high, it’s hard to get shippers.
The same with drugs and alcohol. Your driver gets popped at a scale for being drunk. You terminate the driver immediately, and send out another driver to drive the truck. Nonetheless, this inspection counts against your Controlled Substances and Alcohol Basic.
Or, take Unsafe Driving. You dutifully run your drivers’ MVRs once a year, as prescribed by the rules. Yet, drivers still get stopped for suspended licenses. You ran the MVR, the license was good. However, at some point after that, your driver did not pay a ticket, did not tell you about it, and now he does not have a license. The carrier has no fault here, yet is being held responsible as their Unsafe Driving Basic goes up, up, up, causing loss of shippers and DOT audits.
Here is the future of DOT audits, once everyone has EOBRs. DOT is simply going to demand a fleet-wide printout of all your EOBR data, summarizing all your violations for all your drivers. You can’t argue anymore about how intrusive this is, as it only takes a handful of keystrokes on a computer. You have the data, DOT knows you have the data, and they demand to inspect the data.
Presently, 10% of the records DOT checks must be in violation before they downgrade your safety rating. This will change. No violations will be tolerated. None. You will be held strictly accountable for all violations. I know, you think I’m crazy. I am not. Don’t doubt me on this. I worked there, and I know how these people think. All you have to do is listen to their rhetoric. “One accident is too many”. “Raising the bar for safety”. “Zero tolerance”. It’s right there, all you have to do is see it. DOT will never stop, until they have eliminated all violations, or driven everyone out of business, whichever comes first.
A carrier with paper logs cannot tell when his driver is going over the hours of service limit. He is not riding in the truck with his driver. However, carriers with EOBRs can, in a real-time fashion, tell when drivers are violating the hours of service rules. The technology is such that an EOBR system can notify a carrier when a driver is violating the rules, as the driver is doing it.
In the not-too-distant future, DOT will demand that carriers immediately shut down drivers who violate the hours of service rules. DOT already does this with drivers who test positive for drugs. If one of your drivers fails a random drug test, they demand you shut that driver down immediately once you are notified of the positive test. The same goes for suspended drivers. Once a carrier learns its driver does not have a valid license, DOT demands a carrier shut that driver down at once, and it doesn’t matter if he’s in Timbuktu. Failure to do so leads to severe fines. This is the future of hours of service violations.
DOT will not even need to come into your offices. They can simply demand your reports, and you will email them. DOT will be able to audit 10 times as many carriers as they do now. Furthermore, they will almost certainly audit ATA members, as well as the Mom and Pop carriers who they almost exclusively audit now. After all, if you have zero tolerance for violations, why would you focus on Mom and Pop who might have twenty violations, when you can go after Giant Trucking who has 1,000 violations? They will go where the violations are.
Now, maybe all the ATA carriers have already thought of this. Perhaps they figure that after they’ve driven all the Mom and Pops out of business, they’ll be able to raise rates so high, they’ll be able to absorb any amount of government interference, and still make a fortune. Maybe so, they know their business models better than me.
However, if they think they are going to purchase peace with DOT through the EOBR mandate, think again. Zero tolerance is the future for hours of service violations, and the EOBRs will make it all possible.
Unsatisfactory Ratings
I have been hearing some disturbing things about how the FMCSA is reviewing its upgrade petitions. Back in the day, when a motor carrier failed an audit, and received an Unsatisfactory rating, it was a relatively routine matter for the motor carrier to demonstrate it had fixed its problems, and be placed back into the pool of normal motor carriers. No longer. The FMCSA appears to be committed to making the upgrade process as lengthy and difficult as possible.
Again, back in the day when I worked there, the absolute last thing we wanted to do was place a motor carrier Out of Service. That means, the carrier has not demonstrated to the government’s satisfaction they are complying with the rules, and thereby, they cannot operate until do demonstrate compliance. Our leadership and attorneys always seemed troubled about depriving private business of their property, and ability to do business, to say nothing of throwing employees out of work. No longer.
If you receive an Unsatisfactory rating, you need to begin working on getting your rating upgraded IMMEDIATELY. Not tomorrow, not next week, and certainly not in a month. The only requirement FMCSA has on reviewing your upgrade petition is found in 49 CFR 385.17(e), where it says they must review your petition within 45 days, or 30 days if you handle passengers or placardable hazmat. That’s it. Apparently, the FMCSA is starting to take that literally, as I am hearing of horror stories where carriers have filed their petitions one or two weeks before they are placed Out of Service, and the agency ignores their petition, thereby placing the carrier Out of Service. “Hey, man, we have 45 days. You should have filed sooner, we’re busy, we can only do so much in a 40 hour work week! What do you expect, us to drop everything, just so your employees can get a paycheck? Tough, you should have planned ahead.”
My advice is, don’t allow the FMCSA to do you that way. If you are Unsatisfactory, take it seriously, and take it seriously right now. Get that corrective action petition to them as fast as possible. Make it extensive, and make it fast. If you don’t know what you’re doing, call an expert, call me. Under this current FMCSA, they simply don’t care if you have to shut down for a few days or weeks. Get some professional help.
FMCSA’s Strategic Plan
The FMCSA released its five year strategic plan this week. In it, they reiterated their goal to achieve zero CMV accidents at some point in the future.
I have said again and again, the elimination of all CMV accidents is not only an unrealistic goal, it is an extremely undesirable one as well. If I took over the country, I could do it tomorrow. I would outlaw all private cars. Furthermore, I would design all CMV’s to be heavily armored, and only go 15 mph. Furthermore, they would all have a force-field around them, which would repel contact with all objects. Naturally, my system would be extraordinarily expensive, especially that force-field part, which I would have to invent. You would all ultimately die from starvation, but you would not die in a CMV accident. Clearly, this is not a desirable system, although I admit, I would like to make some FMCSA bureaucrats live under it for a few days. Not long enough to actually starve to death, but definitely long enough to miss a few meals.
I have been trying to imagine any system where all motor vehicle accidents have been eliminated, and I have yet to come up with one under which I want to live. I suppose the one which seems most likely is one where the computers drive the vehicles for you, and they are all linked together, so the computers will prevent your vehicle from running into walls or other vehicles. Of course, whoever controls the computers, controls your car. In such a complex system, almost certainly a central agency will control the computers, not you. So, if they decide the computers need maintenance, or the computer does not have enough memory today, you have to stay home. You will not be allowed to drive on your own. That’s dangerous… you might hurt yourself or others! We can’t have that.
This system was on display in the movie “I, Robot”, with Will Smith. Although in that movie, Will Smith did have the option to drive his vehicle manually, which I predict will never actually happen under such a system. If the government goes through all the trouble to design such a system, they’re not going to let you screw it up by driving your car yourself, and possibly getting in a accident thereby wrecking their perfect accident-free statistics. In fact, in the movie, Will Smith did drive his vehicle, and he did get in a terrible wreck with a CMV. Of course, the wreck was caused by the computer going beserk, but details, details.
The reason I predict the “I, Robot” system will not have the option to drive the car yourself, is because the system is not designed for accident prevention. It is designed for control. They don’t want to save your life. They want to control you. If the State ever becomes powerful enough to design a system like “I, Robot”, where the computers can drive the cars, the State will mandate the computers drive the cars. You will not be allowed to drive, for your own safety. As Anne Ferro says, “even one fatality is too many”. So, the State will tell you it’s for your own good, and it’s all about safety, but in reality it’s about control.
I challenge the FMCSA to describe to me how they intend to eliminate all CMV accidents without eliminating all my freedom of movement, and/or starving me to death, as well. It’s that last part they never, ever think about. Ever. No one in that agency ever says, by continuing to push more and more draconian regulations, perhaps we are actually making things worse. Stripping Americans of their rights and liberties never enters the bureaucrats’ thinking. To them, it is simply irrelevant.
Furthermore, they always assume that more regulations mean less highway deaths. In reality, stricter regulations often cause more deaths. For example, take their new sleep apnea regulations, coming to a doctor near you in the very near future. I have seen no evidence that sleep apnea is some sort of horrific safety hazard, killing thousands of people on the roadways a year. Nevertheless, we are preparing to disqualify tens of thousands of fat, older, experienced, safe truck drivers. In exchange, these spots will be filled with skinny, inexperienced truck drivers, who will not be as safe.
Then, as the years pass, these skinny, inexperienced truck drivers will get experience, and become safe truck drivers. Unfortunately, as the years pass, they will become fatter, as older people get fat. So, at a certain point, many of the new drivers, will also become fat, sleep apnea risks, and they too will be forced out of the industry. The cycle will repeat itself.
Every time I hear an FMCSA bureaucrat say, “our goal is to eliminate CMV accidents”, what they are really saying is, “our goal is to control you as much as we possibly can”. That’s not a good thing. Just in case you have never heard this, Benjamin Frankin said, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety”. Smart man, that Franklin.
