True New Entrant Horror Story
The following is a true story. The names have been changed to protect the guilty. Yes, I know Drganet said “protect the innocent”, but I like the way I say it better. The story has a set-up, a twist, and a moral. Learn from this story.
The Set-Up. ABC Trucking is a new entrant. This means they have within the past 18 months gotten a DOT number and started into business. ABC has invested thousands of dollars purchasing 7 trucks which it is operating coast to coast. Recently, ABC received a letter from FMCSA in Washington, dated March 6. It said, “Action Required: Demand for Written Response. Planned Revocation Date of April 5, 2013”.
This letter informed ABC they had violated section 385.308(a)(7), one of FMCSA’s thousands of regulations. 385.308(a)(7) says that if a New Entrant motor carrier has a 50 percent or more Out of Service rate based on at least 3 inspections, occuring within a 90 day period, FMCSA may conduct an audit on the New Entrant, or require them to submit corrective action to their office. This letter demanded corrective action be sent to their office by April 5, 2013. If no corrective action was sent, ABC would have their authority revoked.
ABC, like most small carriers, is very busy, mostly just trying to find good-paying freight to keep the lights on. This letter from FMCSA was put aside, with all the other threatening letters businesses get on a regular basis from all forms of government such as the IRS, the State government, the Parking Authority, the local school board, etc. Eventually, about a week before April 5, 2013, ABC did respond to the letter. However, their reponse was brief and did not thoroughly document all the things ABC was doing to comply with the rules, as demanded by the March 6 demand letter. “Well, that should keep them happy,” ABC thought as they dashed off their response letter, “and if they want more information, they will probably call us”.
On April 8, 2013, ABC got another threatening letter from Washington in slightly bigger font, which said, “ORDER TO REVOKE NEW ENTRANT REGISTRATION”. The letter said that ABC’s authority had been revoked, and that ABC could not apply for new authority for at least 30 days. About this same time, ABC was informed by one of their brokers that they could not load them. “What??”, ABC said. “We have authority! We have followed all the rules!” “I’m sorry,” the broker said. “DOT’s website says you have no authority, and we cannot load you.”
ABC, frantically called the number on the letters, which was the FMCSA regional office. Once they got someone to answer the phone, they explained their plight. The FMCSA official told them there was nothing they could do. The corrective action they had submitted was not good enough. They were told they had to stop operating immediately, despite the fact that they had trucks scattered throughout the U.S. They were told their DOT number was no longer valid, and they could not get another one for at least 30 days. “30 days!”, ABC cried. “We will lose all our customers, and won’t be able to make payments on the trucks! We will be out of business! Our 12 drivers and office employees will lose their jobs!” The FMCSA official was unsympathetic. In fact, the official was rude. “Not my problem”, ABC was told. “What about an appeal, can we appeal this?” ABC asked. No, the official told them, there is no appeal.
ABC hung up, very discouraged, and mystified by what exactly had just happened. Their CSA scores were not that bad. They were trying to comply with the rules and stay out of trouble. They had only one accident, and that was not their fault. They had responded to the FMCSA demand letter, and explained how they had fixed the violations. Yet the government was telling them it would not permit them to operate any more. About this time, it went from bad to worse, as one their drivers called them and told them the State of Kentucky had just impounded his truck at a scalehouse because ABC did not have authority.
The Twist. ABC began to frantically make phone calls to other FMCSA officials, their Congressman, their Senators, anyone. Most calls went to voicemail. The calls to FMCSA personnel were not helpful. ABC submitted another package of paperwork to the FMCSA regional office, this time containing very detailed corrective action, to no avail. Sorry, too late, nothing we can do, they were told. Finally, after a week, ABC found me, and I reviewed their case. I noted, almost immediately, that FMCSA’s revocation order was in error.
ABC had had 2 inspections where their trucks were placed Out of Service for vehicle defects, which caused them to meet the definition of 385.308(a)(7). One of these inspections was conducted after ABC’s accident, where a car had crashed into their truck, causing major damage. The state trooper did the inspection, and wrote up all sorts of violations against ABC, despite the fact that all these violations were caused by the crash. There is a box on the inspection form where the trooper is supposed to indicate the violation was caused by the crash, but the trooper did not do this. ABC’s truck should have never been placed Out of Service. However, because it was improperly placed Out of Service, it caused the March 6 demand letter to be sent, and ultimately, led to their authority being revoked.
ABC, armed with this new information, went back to the FMCSA regional office, and managed to speak to an attorney in that office. It submitted its new information, and within a day or two, its authority had magically been restored.
The Moral. Well, there are several morals to this story. First, pay attention to any correspondence from the FMCSA, aka the DOT. They are not playing around. They will have no problem whatsoever putting you out of business. In fact, it seems, they want to put you out of business. If you get a letter demanding a response, you had better respond exactly as they demand immediately. Your response will almost certainly sit on a desk for weeks once FMCSA receives it. If you do not respond immediately, by the time it is finally reviewed, it may already be too late.
Second, if you get wrapped up in one of these disaster jackpots, get help immediately. Call a lawyer. Better yet, call me. I am the A-Team. Many times, FMCSA makes mistakes. Not all the time, but more often than you think. There is no level of review on these cases. You might think that before the government robs a business of its right to operate it would carefully review the matter at multiple levels. Not so! Basically, whether your business lives or dies is controlled by one bureaucrat, without review. In the case of ABC, a simple error was made, in this case by a poorly trained State Trooper, and it traveled unnoticed through the system causing untold damage to ABC’s business.
Third, you may not be getting accurate information from FMCSA. Again, competent assistance is a must. You cannot rely on FMCSA personnel to help you. Some of these personnel are good people, and some may even feel sorry for you. However, they have been directed by their masters in Washington to aggressively enforce the regulations to a T, and if that means tossing dozens of businesses onto the scrap heap, so be it. Also, they are handling many other cases, just like yours, so they may not have time to review your case, or otherwise help you. Furthermore, many FMCSA personnel are unfamiliar with their own regulations. In ABC’s case, the regional office apparatchik told them there is no appeal process, which is not true. 385.327 provides a motor carrier the appeal process.
Fourth, you must respond to FMCSA immediately. Yes, I know I said that already, but it bears repeating. I can help you, but we are much more likely to be successful if you call me when you initially get whatever demand letter you have gotten from FMCSA. Nearly every demand letter from FMCSA has some kind of deadline attached to it. If I had a nickel for every potential customer who called me wanting help, only for me to find out the time to respond had expired… well I wouldn’t have enough to retire, but I would have a big pile of nickels.
Learn from this story.
New Secretary of DOT Has Been Named
Finally, a replacement for the odious Ray LaHood has been named. It is Charlote Mayor Anthony Foxx. I have never heard of Anthony Foxx. He will probably be better than LaHood, simply because the Internet tells me he is only 41 years old, so he probably hasn’t become a complete and total statist yet, like LaHood. As far as the day to day activites at DOT and the FMCSA, I expect these to continue exactly as they have been under LaHood. FMCSA will continue forward with their stupid hours of service rule, which will be law on July 1.
In reality, nothing will probably change at all. Nevertheless, it is an excuse to post some content on the blog…..
Personal Conveyance
I received a question from “Wayne”, regarding personal conveyance. Here is the question:
“I did my post-trip safety inspection and went to off duty personal conveyance at our gathering terminal on the US side of the border. On my way home DOT pulled me over said I cant do that. He took my log book drew a line in drivin 4 1/2 hrs then a line down in that town. He gave me a over 11 and over 14, both OOS. I had driven 2.75 hrs and 160 miles and was 1 hr from home unladen and was not over my 11. Does he have the authority to falsify my logbook in order to incriminate me?”
ANSWER: Personal conveyance is found in Question 26 of the interpretations to 49 CFR 395.8, which states:
Question 26: If a driver is permitted to use a Commercial Motor Vehicle (CMV) for personal reasons, how must the driving time be recorded?
Guidance: “When a driver is relieved from work and all responsibility for performing work, time spent traveling from a driver’s home to his/her terminal (normal work reporting location), or from a driver’s terminal to his/her home, may be considered off-duty time. Similarly, time spent traveling short distances from a driver’s en route lodgings (such as en route terminals or motels) to restaurants in the vicinity of such lodgings may be considered off-duty time. The type of conveyance used from the terminal to the driver’s home, from the driver’s home to the terminal, or to restaurants in the vicinity of en route lodgings would not alter the situation unless the vehicle is laden. A driver may not operate a laden CMV as a personal conveyance. The driver who uses a motor carrier’s Commercial Motor Vehicle (CMV) for transportation home, and is subsequently called by the employing carrier and is then dispatched from home, would be on-duty from the time the driver leaves home.
A driver placed out of service for exceeding the requirements of the hours of service regulations may not drive a Commercial Motor Vehicle (CMV) to any location to obtain rest.”
So, let’s assume Wayne was bobtailing back to Canada. According to Question 26, the police officer is wrong. Wayne is off-duty, despite the fact he is driving down the road in a tractor. There is no commerce, as Wayne is going home. It seems as if it is a little different, when he leaves home, according to Question 26. The interpretation specifically says Wayne would be on-duty from when he leaves home, if the employing motor carrier calls Wayne at home, and directs him to drive to the terminal to pickup his load. So, I would say, Wayne going home, he is definitely off-duty. Wayne coming back to work, it all depends on when and how he’s dispatched whether his 4 hour trip back to the terminal is on-duty or off-duty.
Massive $58.5 Million Judgment In Truck Accident Lawsuit
This comes to us from New Mexico. On March 21, 2013, a jury in Santa Fe, NM awarded $58.5 million in damages to the family of a crash victim who was killed in March, 2010. The accident occurred when a tractor trailer made a left turn in front of the victim’s pickup truck who was traveling towards the tractor-trailer in the opposite direction. The pickup truck then crashed into the tractor-trailer, killing the driver, one Kevin Udy.
According to the story, the plaintiff’s attorney presented evidence that the driver of the truck was not properly trained to operate the tanker truck. Also, he showed the company’s drivers had numerous speeding tickets, and alleged the truck driver was fatigued at the time of the accident.
It is difficult to completely ascertain the facts from this story. It appears that the truck driver was probably within his legal hours of service at the time of the accident. It is hard to say if the driver was properly licensed. It seems like he must have been, otherwise the article would explicitly say that, but $58.5 million? There seems like there must be more to this than just a simple fatality crash.
I looked up Standard E&S, LLC, USDOT# 1966149 on DOT’s CSA website. They have a very high “Driver Fitness” score of 93.3, with numerous citations for drivers not having the license necessary for the type of equipment being driven. One factor that may have pissed off the jury is that all of these violations which generated the high 93.3 CSA score happened after the March, 2010 accident. In other words, apparently this big wreck didn’t make anyone at Standard E&S say, “hey, maybe we’d better figure out why our drivers keep getting tickets from the cops….”
Whatever the specific details of this case may be, the fact remains, the trucking company, and nearly everyone associated with the truck have been socked with an absolutely giant monetary penalty. Take heed!
