DOT Update and Imminent Hazards

Posted on September 27, 2012 
Filed Under GENERAL

Well, I vowed to keep this blog current, and again I have not done it. Usually I simply run short of time. Or I have something I really want to say, or want you to know, but it’s simply not politically correct, so I keep it to myself. I guess once the government puts actual robots in all the cars and trucks, then I can say whatever I want. See the article below…. apparently an ex-Big Wheel with GM thinks all vehicles will be driverless in 20 years.

At any rate, what’s new in the world of DOT? Well, the awful MAP-21 passed the Congress, was signed by the President, and is now law. EOBRs are now law. Oh yes, there was some desperate maneuvering by some heroic Tea-Party Congressmen to not fund the implementation of the EOBRs, but that won’t go anywhere. I predict within 4 years, you will be forced to get EOBRs. It will take DOT another year to produce the rulemaking, it will be tied up in litigation for another year or two, and then they will give you a year to go get the EOBRs.

DOT continues to get more, and more aggressive. They are simply running wild. One thing they are doing is utilizing Imminent Hazard Out of Service Orders. This is when DOT walks into your office, and prohibits you from operating. At all. You must park your trucks, and layoff your drivers, until whatever time you are able to convince DOT you are complying with the rules.

DOT first used this tactic back in the mid-nineties. It was relatively commonplace for DOT to pick out a carrier who they thought was a terrible, non-complying motor carrier, and make them park their trucks for a week or two, if not permanently. I am going by memory, but I think they used to serve 3-5 of these things a year. The practice stopped when one motor carrier took them to Federal Court and won. The case was called Aulenback, I believe.

The Federal judge said, ‘hey wait a minute’, you can’t just deprive an American citizen of his property and livelihood, unless you have a really good argument explaining how he is going to imminently kill someone on the road. Furthermore, you have to have standards as to what constitutes an “imminent hazard”. You can’t just make it up for one carrier, but not for another. Again, I am going from my memory. The upshot of it was, the agency stopped doing Imminent Hazard OOS Orders, because the agency could not meet the requirements laid out by the judge in the Aulenback case.

Apparently, under the Ray LaHood, anything-goes, kill small business regime, DOT has brought back the Imminent Hazard Order. They first few times they used it, the instances seemed focused on carriers that were really, truly terrible. Carriers who were doing absolutely nothing to comply with the rules, such as using drivers without licenses, medicals, and drug testing. Or drivers not filling out logs, and vehicles without inspections.

For example, here is an OOS Order on a carrier called Reliable Transportation Services, Inc., from Utah. It looks like these guys had 10-20 trucks. According to the Order, they were doing no drug testing, had used drivers with suspended licenses, had no maintenance records, did not have logs for their drivers, and had passed a hazardous materials load off as a non-HM load without placards. Also, importantly, they were involved in six recordable crashes in the three months leading up to the audit in March, 2012 which led to the OOS Order. From reading the Reliable Transportation Order, I would concur that Reliable probably was an Imminent Hazard.

This most recent OOS Order is on a carrier called HP Distribution, LLC from Kansas City, KS. I do not know HP Distribution. I know nothing about this case, except from what I read in DOT’s OOS Order, linked above.

Apparently, HP Distribution allows its drivers to routinely falsify their logs. They have done this in the past. In 2009, HP was fined $63,000 for log falsification. In this most recent audit of August, 2012, DOT determined through GPS records, and HP’s internal RapidLog audits, that HP was still falsifying its logs. DOT determined through the GPS records that there actually numerous 14 hour violations occurring.

That’s it, that’s the basis of their OOS Order. The only time their Order mentions accidents, is to point out their Crash BASIC is 82.8. Of course, that does not take into account preventability. Their Fatigue score was 87.8, their Unsafe Driving score was 73.1, and their Maintenance was 81.2. Yes, that’s bad, but there numerous carriers out there with worse scores.

Their Order does not specify or describe the “egregious” 14 hour violations they found. For example, are drivers driving 20 straight hours with no significant breaks? Or are they taking 8 hours breaks, instead of the government mandated 10 hour breaks? I would wager it is latter. From reading the HP Order, it does not seem to me that HP is an Imminent Hazard.

My point here is not to be HP Distribution’s defense attorney. I don’t know them, and perhaps there is more evidence of how dangerous HP is, which is not in the above-referenced Order. My point is, this case appears to be precisely the type of case DOT routinely engaged in 15-20 years ago, before the courts made them stop. It seems they have either found a way around their previous legal hurdles, or simply don’t care. Maybe both.

The takeaway is this: if you have numerous CSA BASICS above the alert level, and you have numerous log falsifications, you’re asking for trouble. Serious, business-altering trouble. They can walk in and shut you down. They can do it, just like that.

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