Nearly three months after the National Transportation Safety Board (NTSB) called for KeepTruckin’s electronic logging technology to be removed from the Federal Motor Carrier Safety Administration’s list of self-certified providers, the San Francisco-based company is fighting to clear its name.
KeepTruckin filed a petition for reconsideration with the NTSB in late January, calling for the independent agency to rescind its recommendation that the FMCSA remove KeepTruckin’s electronic logging devices (ELDs) from its list of ELD vendors.
FMCSA Spokesman Duane DeBruyne told FreightWaves that “no decision had been made,” adding that NTSB’s recommendation was “still under review.”
KeepTruckin claims NTSB investigators didn’t understand the technical and regulatory differences between automatic onboard recording devices (AOBRDs) and ELDs during its extensive investigation into Westfield Transport Inc. of West Springfield, Massachusetts, following a fatal crash involving Westfield driver Volodymyr Zhukovskyy, 24, of West Springfield. Investigators claim Zhukovskyy crossed the centerline, killing seven motorcyclists on June 21, 2019, in Randolph, New Hampshire.
The owners of defunct Westfield Transport Inc. were indicted on federal charges of falsifying driving logs on Friday in the U.S. District Court for the District of Massachusetts.
The indictment alleges that all drivers employed by Westfield Transport “used electronic logbooks and devices provided by KeepTruckin.” KeepTruckin claims the company used its AOBRD technology — a predecessor to ELDs — and is not part of the criminal investigation involving the company’s owners.
Dunyadar “Damien” Gasanov, 36, was indicted on one count of falsification of records, one count of conspiracy to falsify and one count of making a false statement to a federal investigator. He is still wanted by investigators. According to records from the Massachusetts Secretary of State’s Office, he is listed as the supervisor of Westfield Transport.
His brother, Dartanayan Gasanov, 35, who was arrested Friday, was charged with one count of falsification of records. He is listed as the president, treasurer, secretary and director of the shuttered company, according to Westfield Transport’s business filings.
According to the indictment, from May 3 to June 23, 2019, the owners of Westfield Transport falsified driving logs “in order to evade federal regulations designed to ensure the safety of roadways and drivers.”
The indictment further alleges that Dunyadar Gasanov instructed at least one Westfield Transport employee to falsify records to exceed the number of permissible driving hours.
He then “made a false statement to a federal inspector regarding the manipulation of recording devices that track drivers’ on and off duty hours in order to evade regulations,” according to federal prosecutors.
Unsafe carrier ‘tampered with logging devices’
The NTSB points to a constellation of factors that likely contributed to the fiery crash involving Zhukovskyy, who had only been driving for Westfield Transport for two days, when he was involved in the deadly New Hampshire crash.
In its scathing, 86-page report, the NTSB board unanimously approved crash investigators’ findings during its December hearing. Investigators found fault with the carrier, the driver involved in the fatal crash, and state and federal agencies, and found the carrier was able to tamper with KeepTruckin’s devices and allegedly falsify hours-of-service logs.
The NTSB, an independent agency called in to investigate the crash, claims in its report that Westfield Transport’s owners tried to add Zhukovskyy to its insurance policy an hour after the driver was involved in the fatal crash.
NTSB investigators found that managers and drivers of Westfield Transport “routinely tampered with electronic logging devices and falsified hours-of-service logs.”
After the NTSB’s initial interview with Westfield Transport, which found that 23 of 150 driver logs had been falsified, the carrier’s manager later notified the agency that he had lied about some of the logs, including the log of the company’s owner.
During a subsequent interview, the manager, who wasn’t named in the report, showed how he, the owner and the drivers were able to “tamper with the KeepTruckin device, preventing it from accurately recording HOS.”
“The manager demonstrated to NTSB investigators how to disable the device’s transmitter box to prevent it from accessing the global positioning system (GPS), and also how to alter the log records on the KeepTruckin smartphone application so that the ELD would not record a diagnostic event or a malfunction code when it reacquired GPS at a new location,” according to the NTSB report.
During the NTSB hearing about the Westfield Transport crash, Michael Fox, senior highway accident investigator for the NTSB, added that KeepTruckin’s AOBRD device — a predecessor to ELDs — was used in another fatal crash when a tractor-trailer crossed the median and struck a motorcoach, killing eight people, on Aug. 30, 2018, in Thoreau, New Mexico.
That investigation revealed the commercial driver had “falsified the HOS logs” on the day of the crash and had doctored his logs in the days leading up to that fateful day. Although Fox said the NTSB report into the New Mexico crash hasn’t been finalized, investigators discovered other drivers working for the same carrier also falsified their logs to drive longer hours using KeepTruckin technology.
KeepTruckin disputes carrier’s ‘cheating the system claims’ by NTSB
KeepTruckin, which has placed on FreightWaves’ FreightTech 25 list of innovative companies for three straight years, disputes the NTSB findings that its devices are not compliant with federal regulations. Investigators conflated the carrier’s use of KeepTruckin’s AOBRD with KeepTruckin’s ELDs — two different technologies operating under different sets of federal rules, Travis Baskin, head of regulatory affairs of KeepTruckin, told FreightWaves.
“The core issue with NTSB’s report here is that it’s flawed in its investigation, and its findings and recommendations are baseless,” Baskin said.
“The NTSB report suggests that the KeepTruckin ELD didn’t record a malfunction code for the location discrepancy when Westfield Transport disconnected their smartphones from the ELD in an attempt to falsify their logs,” Baskin told FreightWaves. “FMCSA doesn’t require that the ELD record a malfunction event when no mobile device is connected or when a driver is not logged into an ELD.”
The ELD provider also takes issue with the NTSB findings that it’s a violation of the regulation to allow drivers to edit a log or a record-of-duty status.
“It’s a requirement of the regulation that drivers be able to edit their logs, but the key thing is that when they do edit their logs, they have to be able to track the changes that were made and KeepTruckin does that,” Shoaib Makani, co-founder and CEO of KeepTruckin, told FreightWaves.
NTSB investigators claim KeepTruckin failed to cooperate with the agency’s investigation after Fox sent a letter to the ELD provider requesting 30 days of full logs, GPS data, event log reports and edit reports for Westfield Transport in late June 2019.
In a telephone call with Fox, Baskin claims he expressed KeepTruckin’s “willingness to assist, asking only that the NTSB issue a subpoena for any data it wished to review.”
Baskin claims KeepTruckin never received a subpoena for its data and that the NTSB didn’t respond to multiple emails offering to cooperate with the investigation once it received the subpoena.
KeepTruckin called in David J. Osiecki, president of Scopelitis Transportation and Consulting, and former executive vice president of the American Trucking Associations (ATA), to review the NTSB’s findings. After that review, Osiecki asserts that the agency didn’t understand the FMCSA’s ELD technical requirements.
“The findings really are erroneous based on their lack of understanding, and that makes their recommendation baseless,” Osiecki told FreightWaves. “The NTSB just swung and missed — they just didn’t understand the rules that apply here.”
Charity ride turns deadly
Zhukovskyy was driving a 2016 Ram 2500 Tradesman crew-cab, towing an empty trailer after delivering a load of cars in Gorham, New Hampshire, when he collided with a group of motorcyclists who were headed to a charity event at the local American Legion in Gorham on the day of the fatal crash.
Five motorcyclists and two passengers were killed and seven more were injured. The motorcyclists were members of the Jarheads Motorcycle Club made up of active-duty and retired Marines and their spouses. They were riding in a staggered formation at the time of the crash.
However, investigators confirmed that on the day of the fatal crash, Zhukovskyy was using paper logs because the combination vehicle he was driving had a nonfunctional KeepTruckin device in the cab, according to the NTSB.
KeepTruckin told FreightWaves that it didn’t have an account listed for Zhukovskyy, who started driving for Westfield Transport 48 hours prior to the crash.
‘Unsafe carrier’ didn’t check Zhukovskyy’s driving history
Despite multiple traffic and drug arrests, Zhukovskyy was allowed to remain behind the wheel.
Westfield Transport failed to pull Zhukovskyy’s motor vehicle record or check his employment record, prior to hiring him, which investigators state would have shown his history of illicit drug use and arrest records as well as his unsafe driving record.
Three weeks before he was hired at Westfield Transport, he was driving for another carrier, FBI Express, also headquartered in West Springfield, when he was involved in a one-vehicle rollover crash in his tractor-trailer in Baytown, Texas. He wasn’t cited in the June 3, 2019, crash but was later fired by FBI for not submitting to a drug test the carrier requested afterward and waited four days to comply, the NTSB report alleges.
In May 2019, a month before the crash, he was arrested by an officer with the Connecticut State Police after he failed a field sobriety test and refused to submit to a urine drug test. The Connecticut Department of Motor Vehicles forwarded this information to the Massachusetts Registry of Motor Vehicles. However, the Massachusetts agency failed to process the notification about Zhukovskyy, which would have suspended Zhukovskyy’s CDL.
In fact, the former head of the RMV, Erin Deveney, later resigned, admitting the agency had failed to process out-of-state notifications involving Massachusetts drivers dating back to 2008.
Following the crash, the NTSB said the RMV went through the large stack of boxes, which led to more than 5,000 driver’s licenses being suspended in the state.
The rollover crash wasn’t Baytown police’s first run-in with Zhukovskyy, who was arrested in February 2019 after officers found a crack pipe in his pocket at the local Denny’s after receiving customer complaints that he was acting erratically and talking to himself. Baytown police later released body camera footage of Zhukovskyy’s arrest, which was posted on YouTube.
After obtaining his CDL in August 2018, Zhukovskyy went to work for Universe Logistics, but he was terminated in December 2018 after his manager noted “unusual behavior resulting in suspected drug use.”
Lax federal oversight?
According to the FMCSA database, Westfield Transport was cited for more than 60 safety violations in the 24 months leading up to the crash but was never issued an imminent hazard order that would have permanently barred the company from operating.
Even after the crash, NTSB investigators said FMCSA did not issue an imminent hazard order for the carrier or the driver.
The Westfield Transport owner tried to open a new carrier, East Transport, soon after the previous company was forced to shutter operations following the crash. The NTSB investigation found the owners had ties to 21 affiliated companies, including East Transport, that were using Westfield’s equipment and drivers.
About one in five inspections of Westfield’s vehicles ended with federal investigators issuing out-of-service orders. The company’s out-of-service rate for its drivers was 20.8% over a 24-month period — nearly four times greater than the national average of around 5.5%.
Federal records show the company had nine violations for unsafe driving, which includes speeding in March 2019, as well as two violations of drivers in possession of a narcotic drug or amphetamine in Massachusetts and Vermont
The company also received 11 other violations related to the fitness of its drivers. Vehicle violations included inoperable headlamps in April and defective brakes in March 2019.
The NTSB is calling for the FMCSA to add another layer of oversight for its new entrant program. Westfield Transport, which started out with one truck and one driver, started ramping up its operations after graduating from the FMCSA new entrant program. The carrier had seven drivers and eight power units at the time of the crash, racking up nearly 70 safety violations, but a safety audit of the carrier was never conducted by FMCSA until after the crash.
Status of Zhukovskyy’s case
The former Westfield driver is charged with seven counts of negligent homicide, seven counts of negligent homicide-DUI, seven counts of manslaughter, one count of aggravated DUI and one count of reckless conduct. Zhukovskyy, who was not injured in the crash, has pleaded not guilty. He remains in jail, awaiting trial, which was postponed in November because of the COVID-19 pandemic.
Jay Duguay, Zhukovskyy’s defense lawyer, did not return FreightWaves request for comment about the case.
Following the crash, Zhukovskyy voluntarily provided a blood sample for toxicological testing, which was taken about two hours later, according to Dennis Collins, a senior accident investigator for the NTSB.
Collins claims the driver told police at the scene that he was using heroin and cocaine and had been doing so for years, according to Collins.
“He used heroin and cocaine the morning of the crash, and he was feeling the effects of the drugs leading up to the crash and was drinking a caffeinated beverage to take the edge off,” Collins said during the NTSB hearing.
Analysis of Zhukovskyy’s blood sample showed fentanyl and metabolites of fentanyl, heroin and cocaine, indicating he had used drugs within 12 hours of the crash, according to Collins.
Flawed self-certification system?
Nearly 630 ELD vendors have self-certified their devices with FMCSA.
The NTSB is recommending FMCSA remove KeepTruckin devices from its self-certified vendor list. However, the federal agency that regulates the trucking industry has never revoked a provider from its vendor list because ELD providers are responsible for self-certifying that their devices meet the agency’s technical requirements.
The vendors on FMCSA’s revoked list removed their own devices from the agency’s ELD vendor list.
Michael Graham, NTSB board member, said during the Westfield Transport hearing that FMCSA’s review process for ELDs was “perilously close to very little or no certification” at all.
“It works, and it works because I say it works,” Graham said. “That’s not a very robust system.”
Canada is implementing its ELD mandate in June. However, instead of having providers self-certify their devices, all vendors wanting to run ELDs in Canada must pay a third-party tester, vetted by the Canadian government, to ensure the devices meet the country’s technical requirements.
“We definitely learned from the U.S. about self-certification going through this process and decided to go in a little different direction,” Kerri Wirachowsky, director of roadside inspection for the Commercial Vehicle Safety Alliance, told FreightWaves.
So far, she said no ELD vendors have signed up for third-party testing in Canada.
“Some of the vendors have eight or nine devices,” Wirachowsky said. “Every one of their devices is going to have to go through third-party certification.”
KeepTruckin told FreightWaves it is “poised to submit the KeepTruckin ELD for Canadian certification imminently.”
“We are confident that carriers will be able to use the KeepTruckin ELD to meet their compliance obligations in Canada when the Canadian ELD Mandate goes into effect in June,” Kelly Hanson, director of product marketing for KeepTruckin, told FreightWaves.
UPDATE
On March 16, 2021, Meera Joshi, acting administrator of the Federal Motor Carrier Safety Administration, sent a response to the NTSB stating that the FMCSA has reviewed its investigation records regarding Westfield Transport and that the motor carrier was using KeepTruckin devices as AOBRDs rather than ELDs.
The response concluded that, “FMCSA’s regulations provide a process to remove an ELD Model or version from the list of ELDs on the FMCSA website. FMCSA is not able to initiate a proceeding to remove an ELD from FMCSA’s list based only on evidence that the device, when used as an AOBRD, did not meet the requirements for an ELD. FMCSA requests that NTSB close safety recommendation H-20-035.”
Click for more FreightWaves articles by Clarissa Hawes.
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