The Federal Motor Carrier Safety Administration's safety review activity -- most owner-operators refer to federal/state reviews of carrier operations as audits -- has for the second year in a row maintained what has been a huge uptick in purely off-site-conducted audits. The agency had been moving toward more off-site audits prior to 2020, but with the pandemic and the desire to limit person-to-person contact between trucking company personnel and federal and state investigators, off-site audits' share of all investigatory activity ballooned in 2020, and has continued high into 2021.
Yet that explosion in off-site activity coincided with general decline in the number of overall reviews/investigations conducted by the FMCSA and its state law enforcement partners. Compared to 2018, total audits conducted in 2021, with data current as of this week in the federal Analysis and Information system, were down by a measure of 17%. And despite a policy shift early in the pandemic to allow safety ratings to be issued as a result of what the agency calls "remote on-site" audits, conducted largely away from a carrier's place of business, the decline in those safety ratings issued is even more stark. Most reviews, in contrast with prior years, had a negative outcome, too. A majority of all audits in 2021 that concluded with a safety rating ended with a carrier getting a Conditional rating.
There was a whopping 49% decline in audits that resulted in a rating – whether Satisfactory, Conditional or Unsatisfactory – between 2018 and 2021, with much of that decline occurring in the first three years of that period. Measured from 2017, when almost 6,000 audits resulted in a rating or rating change, it's a 54% drop-off in safety rating activity from an agency that has never been shy about stressing its safety-first mission. FMCSA says what it characterizes as "off-site" audits cannot result in a safety rating change -- given the well-documented shift to more purely off-site investigations in its numbers, that could well account for the marked decline in safety ratings issued.
For owner-operators and small fleets, achieving a Satisfactory rating can be the difference between doing direct business with some customers and not. A California small fleet recently shared a document with Overdrive detailing an apparent policy of an ocean-shipping giant that required any carrier hauling under its intermodal-interchange agreement to have a Satisfactory rating, for instance. That carrier, Maersk Line Ltd., did not respond to Overdrive's question about whether that requirement was a new addendum or not.
In a time when intermodal truckers' services are in very high demand, it would at least seem counterintuitive to newly limit the number of carriers who could do business with a ship line simply by virtue of being unrated in a federal/state rating program that's never come close to rating the entire universe of trucking businesses.
Adam Wingfield, former owner-operator and president of the Innovative Logistics Group consultancy, reported other apparent impacts of lack of a safety rating -- and of having an adverse Conditional rating -- down to the roadside level, where inspectors are more likely to scrutinize such carriers. If a carrier is unlucky enough to get a Conditional rating, furthermore, "the upgrade process to go from a Conditional to a Satisfactory" of late "has been so nitpicky," he said. "When you see folks get hit with a Conditional" and then go through the process to get an upgrade with a corrective action plan, "9 times out of 10, the auditor isn’t going to bring you back to Satisfactory." Rather, "they’ll give you no rating" at all, and you're back where you started.
FMCSA notes that policy limits auditors' discretion in issuing Satisfactory safety ratings. "Satisfactory ratings can only be issued as the result of a comprehensive investigation," whether "remote on-site" or fully on-site, said a spokesperson. Most remote investigations, however, are more focused, which can "only result in an adverse rating," if any rating at all. "FMCSA has increased its use of focused investigations ... to utilize available resources more efficiently."
Clawing back from a Conditional rating to Satisfactory, thus, requires a more comprehensive look at a carrier than may be in the cards for most. And it's a process that is no simple matter itself. "When you submit an action plan" to get out of Conditional-rated status, "you can’t just throw something together," Wingfield said. A carrier must "make sure there are specific measurables, and that it’s attainable."
In 2020, as Overdrive reported at the time, auditors seemed somewhat reticent to issue ratings as the result of functionally off-site ("remote on-site") audits. To an extent, given aggregate rating numbers were flat to slightly down for 2021 compared to the previous year, that phenomenon continues. Yet compliance consultant Jeff Davis of Fleet Safety Services noted he's seen some increased comfort on the part of auditors when it comes to issuing adverse ratings from off-site.
"I can point to what the [electronic logging device] has caused, and the use of eRODS" by auditors, who Davis said he is seeing getting quite comfortable with that digital analysis tool to scrutinize logs for violations, discrepancies in comparison with supporting documents such as fuel receipts, and the like. "If a motor carrier is not managing that, they just get murdered."
In some instances for functionally off-site auditors, it can take but a single critical hours violation in the safety rating methodology, Davis said, for a carrier to get popped with a Conditional rating. The two most common critical violations issued with carrier audits in 2021? According to FMCSA data:
1) Not using the appropriate method to record hours of service
2) False reports of records of duty status
Conditional ratings in 2021 accounted for the majority of all ratings issued to carriers that year, according to federal data.
Wingfield, too, noted off-site or on-site scrutiny of electronic records is getting more and more "fine-tooth comb" in nature, with the advent of e-logs and the eRODS analysis tool enforcement uses to partially automate the flagging of potential violations. "These safety reviews are super-intense in how they go into validating information," he said. "They might pull the [logs] and ask you for supporting documents." A fuel receipt might show you fueling in a certain place but your ELD has you off-duty. That could net you No. 2 in the critical violations list mentioned above -- false logs. "It’s a very intense and in-depth review process, and very time-consuming."
Another example: A carrier's record shows an inspection with an out-of-service brake violation for a particular date in the federal system. If the auditor "doesn't see that show up on your [driver's] log, on your Vehicle Inspection Report, they'll ding you for that, too," Wingfield said. "I saw that happen recently."
Failing to keep minimum records of inspection and maintenance was the No. 4 most-prevalent critical violation in 2021.
"When I say that it's a fine-tooth-comb approach," Wingfield said, carriers might think of it this way: "A roadside inspection is a cakewalk compared to a safety review. You should be auditing yourself in terms of e-logs and doing it regularly. Too many just don’t take the time out."
Davis concurs 100%, but also faults the FMCSA for not revising its own safety rating methodology with respect to hours of service violations, where those critical hours-related violations he feels assume way too much importance in the man v. machine era of e-logs-enabled enforcement. With the big jump in Conditional ratings in 2021, the dynamics described by Davis last year are even more apparent today, he said this week. From Overdrive's 2021 reporting:
"This rating methodology hasn’t been changed" much for decades, Davis said. FMCSA's pursuit of a Safety Fitness Determination rating methodology reliant in part on CSA's BASIC categories of measurement was famously scrapped during the Trump administration after complaints about those categories' problematic nature. Likewise, efforts to reform CSA, furthermore, seem mostly stalled or non-existent, despite efforts made by Congress to force FMCSA's hand in overhauling the system.
Davis believes regulators ought to at least make the hours of service "not as severe" in the rating methodology's computation, given the existence of electronic logging devices and the eRODS system for analyzing log data. "It's now man against machine in that audit," he added, a battle carriers without rigorous logs management are bound to lose.