Previously in the CSA’s Data Trail “Crashes and interventions” installment: “Wreck frequency varies widely by state”
Most have been for bus companies, but search “imminent hazard” at OverdriveOnline.com, and you’ll return notices of more than 10 trucking companies – and three drivers – shut down by the agency in the last year or so. 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. (Most activity has been on the bus side of the motor carrier world — for more about FMCSA’s “Operation Quick Strike” and how its “blitzkrieg probes” of high-risk bus companies will ultimately come to the trucking world, read this story.)
While official numbers from FMCSA show fairly level numbers between fiscal 2011 and 2012, one trucking consultant has seen Unfit ratings and Out-of-Service orders spike for carriers found in serious noncompliance after not following through on a cooperative safety plan — a kind of do-or-die fix-it list — worked out with the agency during interventions.
Under Administrator Anne Ferro’s leadership, it’s clear the agency is taking a tougher hand with what it considers “high risk” carriers.
Why interventions occur
Interventions are initiated at federal and state levels. They can be as intensive as traditional full compliance reviews – called “onsite comprehensive investigations” under the Compliance, Safety, Accountability system – with potential to impact a company’s safety rating. They can be as simple as a letter warning you of a CSA Behavioral Analysis and Safety Improvement Category (BASIC) percentile ranking approaching the threshold at which FMCSA may prioritize you for investigation.
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, two areas stand out as intervention triggers: the Hours of Service Compliance and, foremost, Vehicle Maintenance 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 Overdrive 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.
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. “They look at it this way – if you’re lacking in one area, you’re going to be lacking over here in another. They say, ‘While we’re here, why don’t you pull me a couple of qualification files on these particular drivers here?’ and they review them. They’ll look for the basics. Are medical cards up to date? Did you do an annual review of the driver’s MVR and annual summary to see they’re still qualified? 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 number represents 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 if not 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. Some of those tools are available from entities such as Texas-based Compliance Safety Systems, the National Association of Small Trucking Companies, J.J. Keller & Associates and others, including Wilson’s firm.
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.
Owner-operator Lawrence handled his own himself, a tactic McGuire says seems appropriate for a one-truck operation. “As one person, you can probably keep up with your records well enough, and you know where you’re at,” he says. Start adding trucks and drivers, though, and “you’re not quite sure about your records all the time. With me, I feel pretty confident about it, but I wanted a second set of experienced eyes on it” to boost that confidence.
“If you have an intervention, take it seriously,” Wilson says. If you can afford the help, get a compliance specialist to “give you directions and guidance.”
If patterns of violations are found, it often results in a cooperative safety plan, says Wilson. “If you don’t meet the requirements of those CSPs and they come back in, the next step could be a cease-and-desist-operations order.”
Wilson says issuance of those orders he’s seen 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.”
Following find our video interview with Wilson, in which he describes how hairy things can get following a focused hours or maintenance intervention from the FMCSA or one of its state partners.