Bus Strike Force
I have it on good authority that the FMCSA will very shortly initiate a nationwide strike-force of audits on all bus or motor coach companies. Obviously, FMCSA has not shared the details with me, and I choose not to reveal my source, but I suspect this will include any company that transports passengers of any quantity across state lines. This will include motor coaches, school buses, party buses, even limousines.
I predict these will not be routine audits. These are going to be intensive, microscopic audits. For example, they may very well dig into the maintenance of the buses. Look at their most recent IMMINENT HAZARD Out of Serive Order they just issued to Fung Wah Bus Transportation, Inc. of Massachusetts. They are prohibiting Fung Wah from operating based solely on the maintenance of their buses. Therefore, I would expect that maintenance will be a big issue for FMCSA in their upcoming nationwide assault.
Other issues they may dig into are whether or not bus drivers have multiple jobs. For example, a bus driver may drive for a school district Monday through Friday, and then run charters to the casinos on the weekend for a motor coach company. When you add all that time together, the driver could be violating the hours of service rules, but it is possible the motor coach company does not know (or chooses not to know) the driver has another job. I suspect FMCSA may dig into this.
The fact of the matter is, FMCSA is convinced there is an epidemic of bus crashes happening, and they are going to act on it. Whether there actually is or not is irrelevant. If you are bus company: BEWARE. They are coming for you. Now is the time to get your ducks in a row. If you want some help in this regard, I offer my services. Or, if they’ve already gotten you, I can help you fix your compliance issues, and mitigate the damage FMCSA has done. Good luck.
Beam Brothers Trucking Raided by Feds
Here is a story which should make any trucking company nervous. On February 12, 2013, numerous agents from the IRS, the DOT’s Inspector General’s office, and even the Postal Service invaded Beam Brothers Trucking in Mount Crawford, VA. They seized documents, computers, and files.
According to the search warrant affidavit, the government is investigating whether or not Beam Brothers is exceeding the hours of service limits and falsifying its logbooks to cover it up.
Now those of you who have been around the trucking block a few times are saying, “no really, what was going on there? Drugs? Money Laundering? Phony Licenses? Something bad must have been going down for the government to come down on them like that, not just false logs.” Read the search warrant affidavit. This is all about log falsification, period.
Here is how it happens. Believe it or not, FMCSA actually does have the authority to put people in jail for violating the safety regulations. I believe the law says if you are willfully and knowingly violating a regulation, you can be charged criminally. FMCSA only does this about one time out of 10,000.
For one thing, the standard of proof is much higher. FMCSA must present actual proof, not the pseudo-proof they normally use in their civil cases. Actual proof is a lot of work. Also, they must involve another agency when they initiate these kinds of cases. The criminal arm of the FMCSA is called the DOT’S Office of Inspector General (OIG). They actually carry guns and badges. (FMCSA agents do not). I believe this office was originally created to prosecute waste, fraud, and abuse within the DOT itself. To my knowledge, they do very little of that. Instead, they act as the criminal investigative arm within DOT on the regulated industries. I imagine they would criminally investigate cases involving the FAA, FRA, and the Coast Guard as well.
When the FMCSA discovers that there is possible willful violations going on at a motor carrier, with management’s full knowledge, they can consider starting a criminal investigation, using the OIG office. By far, the most common of these investigations is hours of service and log falsification. Generally, these investigations start by a disgruntled employee tipping off FMCSA to what is happening behind the scenes at a trucking company.
Once FMCSA has some inside knowledge, they try to build on that. They try to get more employees to talk. In this case, according to the affidavit, the OIG actually put an undercover agent inside the company. Apparently, Beam Brothers has been under criminal investigation for 2 years. The DOT is accusing Beam Brothers of knowingly running their drivers in excess of the hours of service limits and then forcing their drivers to falsify their logs to cover it up. The government says they have at least 7 witnesses who will testify to management forcing drivers to falsify their logs and/or run over hours. In one case, they allegedly threatened to withhold pay until a driver submitted false logs to the office.
I actually almost believe the government is lying on that one, just because I find it hard to believe any trucking company would be that stupid. Who knows, maybe they are that stupid.
Finally, after 2 years, on February 12, they finally raided their offices and seized their files. Next, you can expect criminal charges for most of the management in the company. They will probably end up paying a huge fine, maybe $500,000, and get home detention for several months.
I do not know Beam Brothers. Apparently, they are not a small carrier. According to DOT’s CSA website, they have about 400 trucks. It looks like they are primarily a mail hauler. I reviewed their CSA scores, and they all are pretty good. Their accident ratio looks pretty good.
I guess there could be two ways to look at that. One, this criminal investigation could be completely overblown, and the level of non-compliance and unsafe activity happening really isn’t that much. Or two, it may just support what many DOT people believe. If your CSA score is high, it’s because you are an unsafe, dangerous motor carrier. If your CSA is not high, you are still an unsafe, dangerous motor carrier. I would probably lean a little more towards #1.
The key point which must be present for a criminal investigation to be launched is active participation by management. As we all know, log falsification and hours of service violations happen all the time. However, if management is knowingly and willfully operating drivers in excess of the hours rules, and then forcing them to cover it up….. this is the type of situation which could generate a criminal investigation. It probably won’t, but it could.
FMCSA and the Sequester
In the coming days, you will hear increasingly more hysterical cries from the media and the government about the pending $85 billion worth of spending cuts scheduled to go into effect on March 1. Please note, the entire 2012 Federal budget is roughly $3.8 trillion, so this is approximately 2.5% of the entire budget. Also, keep in mind, the 2012 defecit in the budget is about $1.3 trillion, so $85 billion divided by $1.3 trillion is about 6.5% of the amount we owe. I took my numbers from Wikipedia, which seems to be as good a place as any for this sort of thing.
Put in terms we understand, we make $24,690 a year. We are spending $37,960 a year. We are borrowing $13,270 a year, to make up the difference. If you add in all the other years, where we borrowed money to cover our extra spending, and our credit card debt is $166,122. In a not-so-desperate effort to pay our debts, we have decided to cut our spending by $850 this year. We are eliminating one night out a month, and dropping the premium channels from our cable package. This will save us roughly $850. Mind you, we will still be in debt by $12,420 this year, but hey, it’s a start, right?
But the government cannot do that. They cannot give up their premium channels. They cannot give up eating out at Olive Garden every night. To hear them tell it, if this $85 billion is taken from them, there will be chaos and devastation in the streets. Actually do you know what will happen when the $85 billion is cut from the government?
Nothing. Absolutely nothing. The sun will rise, you will go to work, and everything will go on, just as normal. That’s the real reason the government is desperate to keep these cuts from happening. They are afraid if you find out that the sky really does not fall when you cut the government, you may want to do more of it.
Now as for our friends at FMCSA, weep not for them. Apparently, they will be almost entirely unaffected from the budget cuts, as almost all of their funding comes from the Highway Trust Fund, which is for some reason, is immune to these budget cuts.
One final point on the immense size of the government. I found a snippet of testimony before the House from one of DOT’s budget people in 1999. The DOT man testifying said FMCSA (it was called the Office of Motor Carriers back then) had an operating budget of $48.9 million in 1995, and employed 659 people. In 2012, their operating budget was $239.8 million, and they employed 1,179 people. Even if you account for inflation, in the past 18 years, the FMCSA has tripled in size.
Tripled! Are there 3 times less accidents happening? Are there 3 times less truck drivers being killed? I doubt it. You could very easily reduce the FMCSA’s budget by at least 20%, and the motoring public would not know the difference.
Question on Commercial Activity
I was emailed this question, which I thought I would share with everyone:
“I have a question about the occasional personal property transportation log-exemption [390.3(f)(3)]. My wife and I live in NC, but have some land 640-miles away in TN. A few times a year, I drive out there with my 11k pickup & 10k trailer hauling my tractor and other land-tending equipment to maintain the property. All equipment is personal property. Sometimes, I cut trees, the logs from which are sold to mills in TN within 50mi of the the land. Does this fall within 49CFR Section 390.3(f)(3) Personal Property Transportation rule?”
JP from North Carolina
The section the questioner is referring to, states that the DOT safety rules do not apply if personal property is being transported, and that activity is not in commerce. For example, my friend and I rented a truck to go pick up some pieces of antique furniture he had purchased in New Jersey. While this is an interstate movement (I live in Pennsylvania), and the truck we rented was over 10,001 lbs. GVWR, we were not subject to the safety regulations, as he placed the furniture in his house.
However, had he been refurbishing the furniture to sell, I believe the DOT would have termed that commercial activity, and would have tried to apply the DOT rules to us.
In this case, if you were just using your tractor, chain-saw, and other equipment to chop down trees for your own firewood, or because the wife was simply tired of the ugly dead trees blocking her view, then the safety rules do not apply, as there is no commerce. However, if you are chopping them down to sell….. DOT will probably say that is commerce, and the DOT rules will apply. I will let the questioner figure out what answer he wants to give if he is stopped by DOT.
Random Photo
My webmaster said I should use pictures in the blog, to keep it lively and entertaining. And, so, I now bring you the Flying Goat. I have no knowledge of whether this goat can actually fly, whether it was thrown off a cliff, or landed safely. We at Arnold Safety Consulting do not condone the throwing of goats, or any other animal.
Time Card Drivers Going Outside 100 Air Miles
Someone recently asked me numerous questions regarding time cards, which I think would benefit everyone. The jist of the questions was this: If I stay within the 100 air miles normally, and keep my time on time cards, showing the time started, time finished, and the total number of hours that day, what happens if I have to go outside the 100 air miles?
According to Question 21 of the interpretations of 49 CFR 395.1, you do not need to have logs showing your previous 7 days worth of work on that day when you drive outside the 100 air miles.
For example, you normally work in a 100 air mile radius around Philadelphia, PA. One day a month, you have to drive to Columbus, OH, where you stay overnight. What happens if you get pulled in at the scale in Cambridge, OH, and the cop sees you are from Philadelphia? What do you say when he says, “where’s the previous 7 days for your logbook?” The answer is, I am a time card driver, and my time sheets are on file back in the office for the previous 7 days. Question 21 tells us this is acceptable.
If you are paranoid, and believe the police will not accept this answer, you can have copies of the time sheets for the previous 7 days with you. Or at least of copy of Question 21. Or both. I would probably have both, since I am paranoid.
Update
Well, I said I would keep the blog current, but I haven’t been doing a very good job of that. I just can’t seem to find anything to say that’s not controversial or crazy. Nevertheless, I need to post something so everyone knows I am still in business. Yes, I am still in business, and I expect to be in business, well for a very long time. I had written something controversial to go with that, but deleted it.
What is new with FMCSA, aka the DOT? Well, their leader, Ray LaHood is stepping down as promised. Good, but nothing will change. I heard they are looking at Oberstar who is a former Democratic Congressman who served on the House Transportation Committee for many years. Oberstar, LaHood, all the same. With Obama’s successful re-election, it virtually guarantees the new hours of service rules will go into effect at some point. Right now, they are slated for July. ATA is trying to get them delayed while they sue to have them thrown out altogether. Good luck with that.
If I remember, the new rules were crazy, which I guess makes them par-for-the-course right now. A friend of mine said about the new rules, “I have a law degree. I had to read the rule 5 times to figure it out. If a highly-educated person has to read something 5 times to understand it, then something is wrong”. Welcome to America.
The new 34 hour reset must now encompass two breaks from 1am – 5am in order to count. So, if your 34 hour reset begins at 2am, it’s going to be much longer than a “34 hour reset”. They are making you take a 30 minute off-duty break in the middle of the day, which of course, counts against your 14 hour clock. Frankly, I don’t remember all the other things that changed, but I think those are the major ones. Here is a link to DOT’s website where the new rules are described. There are all sorts of examples at the link, so it is rather helpful.
They (DOT) have been relatively quiet about the sleep apnea thing lately, but I am sure they are still working on that behind the scenes. At some point, I imagine, they will put forth ‘guidelines’, which basically mandate that any DOT physician must order expensive sleep tests for any driver who is 1) fat, 2) snores, 3) has a big neck, 4) has trouble sleeping or 5) admits to any of the above. Maybe they haven’t come out with anything yet because of all the bus crashes are keeping them busy.
The line to get Conditional ratings upgraded (or voided) continues to get longer. If a carrier wants to get out of that Conditional status which causes insurance companies to charge more, and brokers to ship less, then call me, and I can do it for you. It just takes longer than it used to, as more carriers are petitioning DOT for upgrades, and DOT really doesn’t care that much if you get upgraded or not.
I use the word “voided” because DOT has a new thing going. If you get audited, and DOT only reviews certain parts of your files, such as logs, and drug testing, but not everything else, they call it a “focused” audit. When you want to get the Conditional rating upgraded which was caused by this “focused” audit, they won’t give you the Satisfactory rating back. The best they will do is remove the Conditional rating, and give you no rating. When you look on their website, instead of it saying Satisfactory, or Conditional, it will say “None”.
According to my customers, ‘no rating’ is sort of the equivalent of Satisfactory in the eyes of brokers and shippers. Still, many carriers like that word, Satisfactory. Well, as DOT does more of these focused audits, just be happy you are not Conditional.
