The Federal Motor Carrier Safety Administration has been on a tear over the last year with the issuance of imminent-hazard out-of-service orders. FMCSA statistics show a nearly fivefold increase – 10 to 48 – in imminent-hazard out-of-service orders issued from fiscal 2011 to fiscal 2012 for bus and truck fleets.
While official numbers from FMCSA show fairly level numbers between fiscal 2011 and 2012, one trucking consultant has seen Unfit/Out-of-Service orders spike for carriers found in serious noncompliance after not following through on corrective action plans – a do-or-die fix-it list.
Interventions: When and why
Interventions can be as intensive as traditional full compliance reviews – called “onsite comprehensive investigations” within Compliance Safety Accountability – or as simple as a warning letter.
For many years, FMCSA officials say, any high-profile crash – something involving multiple fatalities that is the fault of the carrier or a significant event that draws media attention – has triggered an investigation. The MAP-21 highway bill passed last year also has given the agency more firepower in its efforts to be decisive in shutting carriers down.
As FMCSA steps up its enforcement, it’s focusing largely on two areas: the Hours of Service Compliance and, foremost, Vehicle Maintenance Behavioral Analysis Safety Improvement Categories (BASICs), says Richard Wilson, regulatory manager for Trans Products Trans Services, a compliance services provider. According to federal data analyzed by RigDig Business Intelligence and reported by CCJ in March, maintenance infractions make up 71 percent of all violations found during the first two years of the CSA program, with hours 9 percent – the next biggest share among the BASICs. Wilson’s observation is based on his work supporting generally smaller carriers during investigations. Crashes have triggered about 10 percent of the recent interventions in which he’s been a party.
FMCSA public affairs officers Duane Debruyne declined to comment on independent analysis without in-depth further analysis.
Phil McGuire, president of Temple, Texas-based 100-truck fleet McGuire Transportation, had FMCSA in his office in March for a full compliance review after a roadside inspection initiated by a driver’s erratic on-road behavior, a result of overuse of a prescribed medication. “He was put out of service and subsequently terminated,” McGuire says. “That was a year ago, and then basically I received a phone call saying you’re going to go through a compliance review” – his company’s second in as many years.
Aegirson Enterprises owner-operator Scott Lawrence also went through a full audit of his operations the day after Christmas last year. Being his first such audit since he obtained motor carrier authority in 2004, it satisfied the new entrant audit requirement, according to a final report he supplied. For motor carriers obtaining carrier authority today, FMCSA says, what’s more common is an on-time audit, meaning the review occurs within the first year.
Interventions also can occur over actions of a single employed driver, particularly with respect to hours violations, and drivers increasingly are held accountable for their mistakes. In the worst such case he’s seen, a carrier that Wilson declined to name scrambled to put together a plan for their new entrant audit after sitting on six months of logs with no review. To protect itself, the carrier made drivers sign documents saying it had reviewed their logs and warned those drivers in violation. Those who refused to sign left the company or were fired. One driver who stayed ultimately was issued a $4,000 fine after FMCSA’s investigation uncovered patterns of violations. The carrier got a Satisfactory safety rating with no penalties.
The trend in carrier investigations is away from the traditional compliance review and toward the focused investigation, often resulting in no change to a carrier’s safety rating, still part of the older SafeStat system of rating pending a Safety Fitness Determination rulemaking to tie rating to the CSA Safety Measurement System.
An analysis of the top 100 carriers listed in CCJ’s 2012 Top 250 list shows that among the 30 carriers on the list who’ve seen some kind of investigation since the beginning of 2012, 23 of those actions were onsite focused investigations or reviews that resulted in no change to company safety ratings.
Yet Wilson has seen a dynamic time and time again during these so-called “nonratable” reviews – namely, the “creep” of the investigators’ activity from a focused investigation into something that more functionally resembles a full compliance review.
Say FMCSA or state partners come in for a review of a company’s hours-of-service compliance. “An experienced auditor or field agent for FMCSA can very quickly get a feel for the overall compliance program a company has set up,” says Wilson. “We like to say in our business, ‘Organization shows compliance.’ ”
“Focused investigations may result in an adverse rating (Unsatisfactory or Conditional), but not a Satisfactory rating,” says FMCSA spokesman Duane DeBruyne, so it’s a no-win situation for the carrier being investigated. Unless a Safety Fitness Determination rulemaking were to change the status quo, the only way to get a Satisfactory rating today continues to be as a result of the traditional compliance review.
Smaller carriers at risk
Including new entrant audits, FMCSA performed 54,559 carrier reviews/investigations in fiscal 2012. That’s about one-eighth of all active carriers with U.S. Department of Transportation operating authority. While the largest 100 carriers were investigated at a greater rate – almost a third have seen some kind of a review since the beginning of 2012 – most or all such carriers operate with the benefit of dedicated compliance staffers.
Smaller carriers have “more expenses and lower incoming revenue, but we’ve got to place more resources toward safety and compliance,” says Wilson. “There’s just a basic lack of funds to dedicate to it.” Too many, he says, “put it all off until the proverbial you-know-what hits the fan, and then they come to us and say, ‘What can you do for us?’ ”
Many small fleets find it cost-effective to invest in tools such as management software, log-auditing services, electronic logging and/or driver vehicle inspection report systems, prepared drug-and-alcohol policies and administration, driver qualification filing systems and more to help manage compliance proactively.
When compliance efforts fall short and an audit results, there also is help available. McGuire used an outside audit-support specialist during his carrier’s compliance review this year, as have the many carriers Wilson helps.
Owner-operator Lawrence handled his own review, a tactic McGuire says seems appropriate for a one-truck operation. Start adding trucks and drivers, though, and “you’re not quite sure about your records all the time,” he says. “With me, I feel pretty confident about it, but I wanted a second set of experienced eyes on it” to boost that confidence.
If patterns of violations are found, it often results in a corrective action plan. If CAP requirements aren’t met, the next step could be a cease-and-desist-operations order.
Wilson says issuance of those orders has been “double what it was a year ago. … The smaller carrier can’t pay the same money as the top 100, so we find ourselves in the position of trying to help the carrier stay in business and going out of our way to provide them the same services offered to the bigger carriers.”
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