What to Expect During an FMCSA Compliance Investigation

CMV enforcementIt Starts With a Letter . . .

So said Justin Smoot of Cottingham & Butler in his webinar On Friday, April 15, 2016, What to Expect During an FMCSA Compliance Investigation.

It’s a letter from your friendly Department of Transportation saying they will arrive within a week (generally within 3 days) for a compliance audit.

This is not the same as a new-entrant safety audit, whereas the DOT is checking out your level of safety. A compliance audit is looking for something specific.

That something could be an acute regulation violation — severe enough as to require immediate corrective actions (usually a singularity) — or a critical regulation violation — indicative of breakdowns in a carrier’s management controls (usually a pattern or repeat violation). The audit letter will specify what records will be looked at.

Top Audit Tip: Cull your records— only provide what was asked for.

Typical DOT Audit Items

• The MCS-90

The MCS-90 endorsement is the form that serves as the required proof that the motor carrier is in compliance with the federal regulations to protect the public.

The MCS-90 form applies to both interstate carriers and certain intrastate carriers (based on commodity hauled).

The form could be found within your insurance policy or attached to the policy. Ask your agent about it if you cannot identify the form. This form should be kept at your place of business. Your insurance agent will provide you with a copy of the MCS-90.

Top Audit Tip: Create a MCS 90 File

• The DOT Accident File / Accident Register

Let’s be clear, the DOT Accident File / Accident Register is always a required form (or file), whether or not  your company was involved in a collision. Write “NONE” on the form if you have not had any DOT reportable collisions. At least have a State Police or Highway Patrol accident report in file for each collision. The DOT may check this against your Loss Run record.

Top Audit Tip: Create DOT Accident File / Accident Register

• The Driver Qualification (DQ) File

Each driver (or, really, every CMV driver applicant) needs to have a Driver Qualification (DQ) File.  I find myself blogging more and more on the topic of DQ files and the more I blog, the more seems to be left unsaid.

The driver needs to meet the requirements of the General Qualifications under 391.11.

The DQ File, itself, needs to meet the General requirements for driver qualification files under 391.51.

The Application for Employment needs to meet the elements under 391.21.

Certain background Investigation and Inquiries are required under 391.23.

  • And pay particular attention to the minimum requirements under 391.23 (d.) and the drug and alcohol requirements of 40.25.

The driver needs to meet the physical qualifications under 391.41(a).

  • The driver further needs to certify their medical certificate with the DMV or state licensing agency.
  • The employer (motor carrier) needs to document the driver went to an examiner listed on the National Registry.

Drivers have to certify any violations under 391.25.

There should be a Road Test (or for CDL drivers, an equivalent under 391.33.

Lastly, drivers may need certification of entry-level training under Part 380.

Other DOT Audit Areas . . .

Justin Smoot covered Drug and Alcohol testing requirements, Hours of Service, Driver-Vehicle Inspection Reports (DVIRs), Corrective Safety Plans, and much more. Specific questions were answered by Justin by email.

For future webinars, please visit Cottingham & Butler’s Transportation Safety Webinar Series.

Thank you for reading this and much thanks to Justin Smoot.

 

What is the DOT’s New Entrant Safety Audit?

enforcement

§ 385.311: What will the safety audit consist of?
The safety audit will consist of a review of the new entrant’s safety management systems and a sample of required records to assess compliance with the FMCSRs, applicable HMRs and related record-keeping requirements as specified in appendix A of this part. The areas for review include, but are not limited to, the following:
(a) Driver qualification;
(b) Driver duty status;
(c) Vehicle maintenance;
(d) Accident register; and
(e) Controlled substances and alcohol use and testing requirements. (Part 385.311)

If you have registered for a new DOT Number, depending on your operations, you may be subject to a New Entrant Safety Audit. If so, you will be notified several weeks in advance.

The safety audit is an examination of the new entrant’s safety management systems, including records and documentation to see if your operations are compliant with the Federal Motor Carrier Safety Regulations (FMCSRs), any applicable Hazardous Materials Regulations (HMRs) and related record-keeping requirements as specified in Appendix A of Part 385. The areas for review include, but are not limited to, the following:

(a) Driver qualification – Parts 383 and 391;
(b) Driver duty status – Part 395;
(c) Vehicle maintenance Parts 393 and 396;
(d) Accident register and copies of accident reports Part 390; and
(e) Controlled substances and alcohol use and testing. Part 382

Other areas looked at may include:

• Commercial driver’s license standard violations Part 383;
• Inadequate levels of financial responsibility Part 387;
• The use of unqualified drivers Part 391;
• Improper use and driving of motor vehicles Part 392;
• Unsafe vehicles operating on the highways Part 393;
• The use of fatigued drivers Part 395;
• Transportation of hazardous materials, driving and parking rule violations Part 397;
• Violation of hazardous materials regulations Parts 170 to 177;
• Hazardous materials incidents – Part 171.

Safety audits do not result in safety ratings.

Biggest Problem Areas

It’s no secret how new entrants fail the safety audit. The FMCSA recently reported on a new entrant who admitted he was too busy to concern himself with learning about the federal regulations. This wasn’t what the auditor wanted to hear.

Not responding to a request for an audit, or not having requested records is another way not to pass. Not responding (short of a “life or death” type of circumstance) can result in a cancellation of the DOT number and the need to re-apply in 30 days. In the mean time, you would not be able to operate your DOT regulated vehicle(s) in interstate commerce (and intrastate in some states).

Certain rule violations are considered automatic failures. Drug and alcohol compliance is high on the list. So is having a qualified driver, a vehicle with a periodic inspection and insurance, and adherence to Hours of Service rules.

Failure is Not An Option

A new entrant who fails the safety audit may be allowed to submit a written corrective action, within 45 or 65 days, depending on the type of their operations. Waiting to the last day to submit the documentation is not a good idea, as it needs to be approved.

The good news is that most new entrants will be successful, if they follow the federal regulations and keep good records (if it’s not documented— it’s not done)..

What are Supporting Documents?

 

Toll road

 

 

 

 

 

 

What are supporting Documents?

The purpose of supporting documents are to help verify the accuracy of driver’s HOS and records of duty status (RODS).

Any document that the driver puts his or her hands on – may become part of the log book. The DOT may ask to see the toll-receipts, fuel receipts, scale tickets, meal receipts, etc.

Fuel receipts are of interest because they can be directly matched against the log book duty status, and show a location and time. The RODS should show an on-duty status when fueling. What can happen is a driver pulls in to a truck stop, goes off duty to start his ten hours and then fuels the truck. This could be considered a false log, if audited.

When a fleet has more than 10% false logs, things can start to get interesting. The motor carrier can get fined. The motor carrier can be ordered by the DOT to start keeping certain supporting documents. Motor carriers have also been ordered to install electronic logging devices (for a “pattern of violations).

Key Elements of Supporting Documentation

A supporting document should contain the following information:
• Date
• Time
• Driver’s full name
• Trip number and power unit number
• Location – City and State

TRIP ENVELOPE – Should have trip number & tractor number listed.

If a lumper is authorized on the load, there should be a lumper receipt with lumper name, social security number, location service occurred, and the amount paid.

For a dropped load, there should be a copy of all of the bill of ladings. On the bill of ladings and trip envelope it should be noted by the driver that the load was dropped. If possible the bill of ladings should be signed by a guard, receiver or consignee and time stamped to verify when the driver was there.

For relayed loads, the trip envelope should note the location, date and time that the relay took place. (Relay load – a driver only takes a load a portion of the way, usually for the
duration of one shift — eight to 10 hours. The driver then turns the truck over to another driver to continue the trip.)

Motors carriers are required to have a system in place to check logs. One tool is supporting documents.

I recommend checking at least 25% of all drivers logs. If a driver is new, perhaps check 100% of his logs for the first six months.

Motor carriers get in trouble assuming drivers know how to properly log. Years ago, one of my first clients hired a driver with five years experience. The problem was he drove mostly local, intrastate and did not know how to log. He could make his grid lines but kept going over 70 hours. Nobody checked the logs until the company was audited by the DOT. The motor carrier ended up up a $10,000 fine for repeated violations (they appealed and paid about $2,000). Another of their drivers was arrested in Georgia for a false log. He didn’t know how to log either.

So check your drivers logs. Verify their hours of service with supporting documents. Have a system in place to keep supporting documents for at least six months and be able to match them to the logs.

If you don’t, things can get real interesting . . .

Many motor carriers have never been audited by the DOT and could be in for a shock when their logs are checked. In fact, the new ELD Rule mandates 8 supporting documents per each 24 hour period. If your motor carrier is not doing anything with supporting documents (a relatively new rule since 2004), then there is no better time than now to start.

Thank you for reading this.

The 8 Biggest Mistakes Made In Dealing With Regulations . . .

1. Ignoring Deadlines

time

 

 

 

 

 

If you get an official notice or a notice from an official, then deal with it. Immediately. Wait until the last day and you are asking for trouble. Once the deadline passes, if you were facing a fine or other sanctions, you may lose your rights to an appeal. Don’t wait until the end of the day: remember the government’s “business day” legally ends at 5 PM not midnight.

Some current problem areas include the Biennial Update or renewal of DOT Number registration or the return of the completed roadside inspection form to the issuing agency (§396.9 Inspection of motor vehicles in operation).

2. Not Filling out Forms — Completely

Mr. Doc

 

 

 

 

 

 

An incomplete form or unsigned form may be taken for a missing form. If the correct response is “NONE” then write “NONE” not “n/a.” And don’t accept “bad paperwork” from employees.

Common errors are found in applications for employment, log books, driver’s vehicle inspection reports (DVIRs), shipping paperwork and supporting documents for logbooks.

3. Not reading, checking or verifying incoming paperwork

why

 

 

 

 

 

When checking documents, ask yourself “Why?” Why does the results of a drug test have a certain box checked off? Why don’t the supporting documents match the logbook? Why didn’t the driver (or mechanic) sign the DVIR?

You are responsible for every piece of paper crossing your desk. So make every day
your why day.

4. Not Reading the Regulations

regs

 

 

 

 

 

“Every employer shall be knowledgeable of and comply with all regulations contained in this subchapter which are applicable to that motor carrier’s operations.” (49 C.F.R. Part 390.3(e) Knowledge of and compliance with the regulations)

Sure it’s dry stuff. But here’s a tip: Start the Federal Motors Carrier Safety Regulations (FMCSRs) at 49 C.F.R. Part 390 — that would be Chapter One of any other book . . .

5. Not Reading Into the Regulations Far Enough

read me

 

 

 

 

 

The same section goes on to say in (2) “Every driver and employee shall be instructed regarding, and comply with, all applicable regulations contained in this subchapter.” If you are the employer and driver, then all the regulations apply.

Don’t stop reading at the point when it seems the regulations meet our predisposed expectations. Keep going . . .

6. Not Setting up a Tickler File

tickler file

 

 

 

 

 

 

 

 

A tickler file is a term used by office professionals to remind themselves and keep track of upcoming events. For example: vehicle maintenance and inspections, annual inspections, driver annual reviews, driver’s license renewals, medical examiner’s renewals, the biennial update, all of these documents and forms have due dates or renew dates. Loss of ability to operate and fines may occur to employer and/or driver, if any actions take place after the due dates.

There are many apps that can help in this area.

7. Not Doing Your Homework . . .

due diligence

 

 

 

 

 

 

 

 

 

In business it’s called “due diligence.” There is no requirement for any government agency to inform you of your legal and regulatory responsibilities. Transportation laws may vary from state to state and even city to city. Bridge laws and seasonal load restrictions may restrict when and how much you may carry.

Know what you are allowed to do or not do. Get any special permits, if necessary. If you are not sure what you need for a trip, then ask a specialist.

8. Falling Short of the Regulations

rAIN

 

 

 

 

 

 

Just as we can’t leap a gap in two jumps, it’s bad policy to ignore regulations or go around them for the sake of expediency. Missing permits, missing paperwork, incomplete files, can lead to trouble, months or years later.

STAR — Stop. Think. Act. Review.

STAR is a safety acronym. In approaching a new work challenge, before rushing in it’s always better to first stop, think it over, before taking action, and then reflect on whether we made the best possible decision.

Many of us make these mistakes due to biases in our thought process.

Availability bias — making a decision based on limited information. “Well, I found it on the Internet, so it must be true . . .”

Anchor bias — making a decision based on an “anchor” fact you have been given. “I won’t vote because the polls show my candidate is down.”

Overconfidence bias — making a decision based on one’s own subject judgement. “I can have it there by tomorrow. No, really . . .”

Confirmation bias — making a decision based on one’s preconceptions, ignoring evidence to the contrary. “The economy will keep growing forever.”

Rush-to-solve bias  — making a decision without considering all of the data. “My intuition tells me it’s a go.”

Summary

Nobody wants to make mistakes. Mistakes cost time and money. Regulatory mistakes often carry a high price tag: audit risk, the potential for unbelievable fines, and even the loss of ability to engage in certain aspects of your business. There is always a lot going on in any successful business or organization, but skipping or going around regulations to save the bother is not one of the options.

A Simple DOT File Organization System

Introducing the Progressive Reporting Agency

Half of any task is planning and organization. Chris Vernon, who recently returned from a deployment to Afghanistan as an Engineer Company Commander, took some of his organizational skills from his business and military experiences to form the Progressive Reporting Agency.

Progressive Reporting Agency is a DOT compliance service bureau based in Midvale, UT, dedicated to helping companies with DOT regulated trucks and drivers.

Organized for Success

One of their products is an Audit Assistance Package consisting of a series of nine folders. Each folder has a checklist printed on the jacket as to what the folder must contain. Additional forms are available for download.

Progressive’s 9 Folder system:
1. General Company Documents
2. Insurance
3. Accident Register
4. Driver Qualification (DQ) File
5. Drug &Alcohol Testing
6. Record of Duty Status-RODS (Log Books)
7. Maintenance – Tractor
8. Maintenance – Trailer
9. Maintenance Plan

General file jacket

“DOT Audit preparation is critical.  We have a proven system that is an easy to follow DOT Audit Checklist that has nine folders, including a folder with everything you need for your driver qualification files, helping ensure you have all the required documentation organized and ready for your DOT Safety Audit.”  Progressive Reporting Agency

Over the years in visiting and talking to transportation business owners or their staff, I have seen literally an “all or nothing” attitude with their DOT paperwork. Getting organized is the first step to getting it done.

It’s not only the DOT that may want to see your files and paperwork. Insurance companies also have a right to inspect your files as well . . .

For more information:

Progressive Reporting Agency
7304 S 300 W, Ste 201
Midvale, UT 84047
Email info@progressivereporting.com
1-866-736-6507

Thank you for reading this.

Disclaimer: Reference to any specific product, process, or service by trade name, trademark, manufacturer, company name or otherwise does not constitute or imply its endorsement, recommendation, or favoring by the author or a guarantee of any specific results. This blog is for informational purposes only. Thank you. 

 

What is a DOT Safety Audit?

safe What is a DOT Safety Audit? Backgrounder . . .

It started with the Motor Carrier Safety Improvement Act (MCSIA) of 1999 (Public Law 106-159) which established the Federal Motor Carrier Safety Administration (FMCSA) as a separate administration within the U.S. Department of Transportation on January 1, 2000.

Section 210(a) of MCSIA, now codified as 49 U.S.C. 31144(f), required regulations specifying minimum requirements for applicant motor carriers seeking federal interstate operating authority, including a requirement that new entrants undergo a safety audit within the first 18 months of operations. These safety audits started January 1, 2003.

Moving Ahead for Progress in the 21st Century (MAP-21) [Pub. L. 112-141, 126 Stat. 405 (July 6, 2012)], requires the FMCSA to complete safety audits within 12 months for property carriers and within 120 days for motorcoach passenger carriers.

FMCSA has started nationwide implementation of the Off-Site Safety Audit Procedures. Beginning in summer 2015, FMCSA will do off-site new entrant safety audits in the following 11 States: Georgia, Maine, Michigan, Minnesota, North Carolina, North Dakota, Oregon, South Carolina, South Dakota, Vermont, Wyoming, and Washington, DC. Passenger and hazmat haulers do not qualify for off-site audits. The remaining states and territories will move to off-site audits over the next 36 months.

audit ahead

Rules and Regulations

49 CFR Part 385 describes Safety Fitness Procedures. New motor carriers need to register for a DOT number and any required authorities (a federal certificate to haul) before beginning interstate operations.

49 CFR 385.5: The Safety Fitness Standard requires carriers have adequate safety management controls in place over the following areas:

(a) Commercial driver’s license standard violations (part 383),

(b) Inadequate levels of financial responsibility (part 387),

(c) The use of unqualified drivers (part 391),

(d) Improper use and driving of motor vehicles (part 392 ),

(e) Unsafe vehicles operating on the highways (part 393),

(f) Failure to maintain accident registers and copies of accident reports (part 390),

(g) The use of fatigued drivers (part 395),

(h) Inadequate inspection, repair, and maintenance of vehicles (part 396),

(i) Transportation of hazardous materials, driving and parking rule violations (part 397),

(j) Violation of hazardous materials regulations (parts 170-177), and

(k) Motor vehicle accidents and hazardous materials incidents.(various parts).

Safety management controls means:

The systems, policies programs, practices, and procedures used by a motor carrier to ensure compliance with applicable safety and hazardous materials regulations which ensure the safe movement of products and passengers through the transportation system, and to reduce the risk of highway accidents and hazardous materials incidents resulting in fatalities, injuries, and property damage

49 CFR 385.321 gives the reasons for audit failure as (a.)  failures of safety management practices (as described in Appendix A), and (b.) a table of violations that lead to automatic failures of the audit (such as not having an approved DOT drug and alcohol testing program in place, using drivers with no CDL or driver’s license or who were disqualified, not having insurance, running out-of-service drivers or equipment or a vehicle without an annual (periodic) inspection).

In Summary . . .

Every motor carrier regulated by the U.S. DOT needs to apply a set of principles, framework, processes and measures to prevent accidents, injuries and other adverse consequences that may be caused by unsafe commercial drivers or unsafe commercial motor vehicles (CMV).

Please see part380.com to learn more.

Thank you for reading this.

J Taratuta

 John Taratuta is an independent Risk Engineer (989) 474-9599)

Essential Driver Application Requirements

Driver application

One of the most problematic areas of DOT compliance, next to hours of service and drug and alcohol testing, are driver applications (Part 391.21). Driver applications may be audited by state and federal agencies and surveyed by insurance companies. Missing information, missing pages, or blank lines can lead to DOT write-ups, fines, and a request (more like an order) from the DOT to fix the mess. Here are some common DOT “application for employment” error areas to avoid.

Driver Application— Common Error Checklist

• Has the applicant listed his/her address for at least the last three years?
• Does it show an out-of-state address? If yes— then this means that the carrier needs to get the out-of-state Motor Vehicle Record (MVR), for each state listed.

• Has the applicant listed at least 3 years of past employment, if new to driving as a job, or if the driver has obtained a recent CDL?

• Has the applicant listed at least 10 years of employment if he or she had a CDL over 3 years ago?

Has the applicant explained any gaps in employment in excess of one month?

• Has the applicant answered YES or NO to each question for every job:
» Was this job subject to Federal Motor Carrier Safety Regulations?
» Were you subject to drug and alcohol testing under DOT rules?

Note: These questions apply to both interstate and intrastate drivers.

(It may help to ask the applicant if they even understand and know what these questions mean. In many instances the applicant does not know if they were subject to DOT regulations in their previous job(s) and will check off they were, when in reality were not or were DOT exempt.)

• Has the applicant listed a date of birth?

• Has the applicant answered BOTH of the following questions:
» Have you ever been denied a license, permit or privilege to operate a motor vehicle?
» Has any license, permit or privilege ever been suspended or revoked?
If the answer to either of the above questions is yes, has the applicant given details?

The applicant needs to fully answer each section:
• DRIVING EXPERIENCE
• ACCIDENT RECORD
• TRAFFIC VIOLATION RECORD

• Are there any “blank” answers?. If an answer is “none,” then the applicant must write “NONE.” (Not leave it blank or NA)

Top Tip: Have a statement on the application: “Every question must be answered. If the answer is “none,” then write “None,” not N/A.”

Has the applicant SIGNED and DATED the application?

Was the application completed by the applicant? The applicant, not a friend or family member, must fill out the application— in his own handwriting.

Are the Organization’s/Company’s Name and Address on the application??

The DOT driver application is an important document that forms the basis of the background investigation of the driver. Check your driver applications for these common errors. Don’t accept improperly filled out applications.

Applicants should be aware that improperly filled out applications potentially can lead to federal charges.

Thank you for reading this. Have a safe day. If you find this helpful, please pass this along.

J Taratuta

John Taratuta is an independent Risk Engineer. (989) 474-9599 Twitter @part380com

Keys to DOT Audit Success: the Mindset

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You Get the Notice

Somebody, usually from a state DOT agency, or occasionally from the U.S. DOT wants to look at some or all of your records. In fact, there are over 60 (sixty) regulating U.S. government agencies that issue compliance regulations. Insurance companies also may review your policies, procedures, and work-safety files.

Don’t panic. The best way to approach any audit is by having the proper mindset.

Mindset has been defined as:

The established set of attitudes held by someone.

 

A fixed mental attitude or disposition that predetermines a person’s responses to and interpretations of situations.

 

The thought processes characteristic of an individual or group: ethos, mentality, mind, psyche, psychology.

What are a few things that should be kept in mind during a DOT audit? Here are a few suggestions.

The Audit Mindset

1.) Even the best get audited.

2.) Keep everyone informed of the upcoming audit. If not informed, staff might assume something is wrong.

3.) The auditor is there to do his or her job; help them to help you.

4.) The key to audit success is preparation.

5.) Prepare on a daily basis, not the day before the audit.

6.) If you are not prepared, things start to happen: control of the situation rapidly shifts to the auditor, turning the audit into an emotional event.

7.) If you are not prepared, you may not have necessary documents ready, or are ready to supply unnecessary documents, overloading the auditor.

a. Examples of “information overload” include:

• An accident register recording all accidents and incidents, including non-DOT incidents.
• Providing three months of records, when only one month was asked for.
• Accident files with too much paperwork or details.
• Driver qualification files with other paperwork of a personal nature or documentation not required by the auditor.

b. Tip: Hand over only what was asked for: nothing more, nothing less.

8.) Conduct a “re-audit” as you are audited: keep a list of all documentation provided.

9.) A key component of DOT audit preparation is to know the Federal Motor Carrier Safety Regulations (including Hazardous Materials Regulations, if applicable). Know your rights. Know your duties and responsibilities.

10.) Nobody is perfect. Nobody is expected to be perfect.

(Source: DOT Safety Audit Guide management program)

Top Tip: You are never required to sign an “admissions statement” that reads, “This statement is being made of my own free will . . .”

Thank you for reading this.

J Taratuta

John Taratuta is an independent Risk Engineer. (989) 474-9599 Twitter @part380com

How do I get my CSA scores down?

CSA

On December 10, 2010, a pilot enforcement program known as Comprehensive Safety Analysis 2010 (CSA 2010) was relaunched nationally and became Compliance, Safety, Accountability or more commonly, CSA.

The heart of CSA is the Carrier Safety Measurement System (CSMS). Another part is   the Driver Safety Measurement System (DSMS), which measures the safety of individual commercial motor vehicle (CMV) drivers.

The Driver Safety Measurement System is designed to identify drivers with a history of safety violations. The information is used to target enforcement when an investigator visits a motor carrier during a compliance review or other intervention. This information is not provided to the public.

The SMS is based on available roadside safety performance data. This roadside data is used to rank operational safety in six Behavior Analysis and Safety Improvement Categories (BASICs) and a crash involvement (Crash Indicator). Law enforcement may use rankings within these BASICs and the Crash Indicator to select organizations for further investigation or selection for additional roadside inspections. As this information is public (except for the Crash indication), anyone including shippers, insurance carriers, job candidates, etc., can look at the BASICs as well.

csa

If a certain score (or threshold) is passed, the basic may be flagged.

alerts

Flagged BASICs can result in DOT Audits or investigations that can last from several hours to several days, or even weeks, depending on the size of the fleet and the scope of the investigation. If any regulatory discrepancies are discovered during an audit or investigation, the DOT can respond in a number of ways ranging from fines, to issuing a downgraded safety rating, or “orders” to comply or to develop a safety plan.

Essentially, the results of every Roadside Inspection (RI) are important because the safety performance data from the inspection can affect the BASIC or CSA score.

How do I get my CSA scores down?

Says Eric Arnold of Arnold Safety Consulting:

“I am asked over and over again, ‘how do I get my CSA scores down?’ Generally speaking, you have to control your drivers. You can’t just turn them loose and let them do whatever they want to do. Every time they get written up by the police at a scalehouse, or on the side of the road, your score goes up. You need to be in your drivers’ ears all the time. It’s not too much more complicated than that.”

In addition, I recommend that you—

1. Become aware of your CSA scores. The CSA scores can be checked at:

2. Have a process in place for immediate repair of any vehicle safety defects or faults. A successful maintenance program should be 80% proactive or preventative, and 20% reactive. Catch problems when they are small and manageable.

3. Make sure your driver(s) understand Hours of Service rules and regulations (Part 395).

4. Make sure drivers are well-rested and alert when they drive.

5. Hire well. Do good background investigations and drug and alcohol testing, if required. Road test drivers before hire and do driver check rides at least annually.

6. Have a set of written standards for your fleet. Document driver and vehicle expectations. Provide drivers with safety training, manuals, guides and training. Monitor driving performance and give feedback when necessary.

7. Learn and know the DOT regulations. Know what the regulations expect of you and your team. Then communicate your expectations, on a daily basis.

Organizations with low CSA scores do all of the above and more.

J Taratuta

John Taratuta is an independent Risk Engineer. (989) 474-9599

Crunch Time: Accident Documentation

Low bridge accident

The Federal Motor Carrier Safety Regulation 49 Part 390.15 requires that all motor carriers maintain an accident register and accident files (copies of the crash reports) on all “DOT reportable” accidents, for a period of three years from the date of each accident.

An “accident” is defined in Part 390.5 as:

1. A fatality;
2. Bodily injury to a person who, as a result of the
injury, immediately receives medical treatment
away from the scene of the accident; or
3. One or more motor vehicles incurring *disabling
damage as a result of the accident, requiring the
motor vehicle(s) to be transported away from the
scene by a tow truck or other motor vehicle.

* Damage to a motor vehicle which prohibits the vehicle from leaving the scene in its usual manner during daylight hours after simple repairs; or
Damage to a motor vehicle that could have been driven, but would have been further damaged if driven

The term “accident” for DOT purposes does not include:
1. An occurrence involving only boarding and alighting from a stationary motor vehicle; or
2. An occurrence involving only the loading or unloading of cargo.

Required information on the register:
Date of accident
City or town, or most near, where the accident occurred and the State where the accident occurred
Driver Name
Number of injuries
Number of fatalities
Whether hazardous materials, other than fuel spilled from the fuel tanks of motor vehicle involved in the accident were released.

Best Practices Tip

I recommended that motor carriers maintain two accident registers (for the calendar year):

1. a DOT recordable accidents only register;
2. a Non-DOT recordable accidents register.

This will limit information in an audit situation, yet still provide the big picture to effectively analyze all incidents and accidents.

Accident registers may be kept electronically— if you can print a hard copy for the FMCSA upon request.

Click here for sample Accident Register in .pdf format.

Response:

Q. We are a small operation and, knock on wood, have never had an accident. Do we need an accident register?

A. Yes. If you have not had a reportable accident, then create the accident register form and write “None” on the form.

 

 

Driver Qualification (DQ) File – Webcast Highlights

yes-no

Here are some highlights of today’s JJ Keller webcast on Driver Qualification (DQ) Files, in case you missed it.

The DQ file assists in vetting drivers. It is legal proof of compliance.

An incomplete DQ file is a DOT violation and that file will always be in violation if it is missing required documents or information.

If the DQ file is incomplete, then one may do a “corrective action.”
For example, if the original MVR is missing, then one could substitute the next oldest MVR, and document that by putting a note in the file: “DID THIS IN LIEU OF ORIGINAL MVR.”

Never backdate documents.
The corrective action should show meaningful action to offer a solution by showing safety management controls are now in place to avoid the same mistake.

All CMV drivers in interstate commerce are subject to having DQ Files.
Drivers in intrastate commerce must follow their state rules, which vary from state to state.

Keep DQ files at your primary place of business.
Records must be made available with in 48 hours of DOT request.
Records can be off-site, but you must be able to access them.
DQ file can combined with the personnel file, but you need to be able to separate the documents.

The DOT Drug and Alcohol file must be secured in a controlled access location.

Copies and scans are okay, but must be clear and readable when printed out.

Keep files until end of employment plus at least 3 years.

Avoid an Inactive DOT Number Status or DOT Fine

Inactive DOT Number

An alert in red on the SAFER Safety and Fitness Electronic Records (SAFER) System

Don’t Get Deactivated

If you or your company have a U.S. DOT Number, your Operating Status will be classified in one of five categories:

  • OUT-OF-SERVICE
  • Inactive USDOT Number
  • AUTHORIZED FOR { Passenger, Property, HHG }:
  • NOT AUTHORIZED
  • ACTIVE

Out-Of-Service or OOS means the operation has no standing to operate due to bad safety performance or a failure to pay a fine. Continued operation is not permitted.

An Inactive USDOT Number status means the number has been suspended or deactivated. Continued operation is permitted, but you can be cited and fined. A deactivated USDOT number occurs when the underlying registration information has not been updated within a two-year period (called the Biennial Update requirement, under 49 CFR 390.19(b)(2) and (4)) or not updated in the correct update period/month per according to the schedule set forth in 49 CFR 390.19(b). See the following chart:

Chart per 49 CFR 390.19(b).

(See our earlier blog on this.)

Under § 392.9b Prohibited transportation. (a) USDOT Registration required. A commercial motor vehicle providing transportation in interstate commerce must not be operated without a USDOT Registration and an active USDOT Number.

(b) Penalties. If it is determined that the motor carrier responsible for the operation of such a vehicle is operating in violation of paragraph (a) of this section, it may be subject to penalties in accordance with 49 U.S.C. 521.  (Effective November 1, 2013)

A deactivated USDOT number, for those in interstate commerce, can result in roadside citations and fines, but not (at this time), being put Out Of Service (OOS).

At a later DOT audit or investigation, your company can be fined $1,000 per day, up to $10,000.

Tip: Check your status at the DOT’s SAFER Safety and Fitness Electronic Records (SAFER) System webpage: www.safersys.org (click on Snapshot and put in your DOT number). Update the registration information (at the same link), if your DOT Number is Inactive or deactivated, by clicking on: FMCSA Registration & Updates).

You may call the DOT toll-free for help at 1-800-832-5660.

 

Eric Arnold Sets the Record Straight on More & More DOT Regulations

Arnold

Eric Arnold, of Arnold Safety Consulting, is one of the top independent DOT consultants in the U.S., the go-to-guy if your company receives a notice from the U.S. Department of Transportation.

Mr. Arnold responded to an editorial in the Reading Eagle on the recent Tracy Morgan accident and the call for another round of regulatory oversight:

“Starting in 2009, truck-crash fatalities and injuries have risen every year. During the same time, the Department of Transportation has been the most aggressive, hyper-regulatory regime. With this level of overregulation, accidents should be plunging. They are not. They are going up.

You argue it is because there are not enough rules. Hogwash. This blizzard of rules is having the opposite of its intended effect.”

The Federal Motor Carrier Safety Administration (FMCSA), the regulatory arm for motor carriers of the DOT, is a descendant of the former Interstate Commerce Commission (ICC), which got it’s start in regulating the once-mighty U.S. railway system. Although the economic dynamics of rail changed, the ICC would not let up and hastened the demise of this once great transportation system.

Likewise, the economic dynamics of trucking have changed, but the FMCSA shows no sign of letting up on its regulatory blitzkrieg. New administrative rules (and behind-the-scene guidance) are driving tens of thousands of experienced truck drivers out of the industry and has contributed to a driver shortage. This has had a direct affect on safety, as in some instances, new drivers with as little as six months experience are training other new drivers.

The economic dynamics of trucking (growth slashed nearly in half over the past two years) have resulted in some of the oldest equipment on the road since the Great Depression. Put new drivers in older trucks and what do you get? There are certain nuances in any industry that can only be learned through a long period of apprenticeship. Trucking is no different. More regulations never make anyone smarter.

 

 

Carriers Identified and Prioritized for CSA Interventions by BASIC

 

Will you “qualify” for a DOT Audit?

Here’s the scoop: a bad collision or crash can trigger a DOT Audit. But so can a series of crashes. How many? Says the DOT:

“These crash rates were calculated by the FMCSA on a national scale and do not indicate or predict a crash rate for an individual carrier. The crash rate is the number of crashes per 100 vehicles. The national average for all carriers is 3.43 crashes/ 100 vehicles.”

Example:

Carriers targeted for enforcement, due to their Vehicle Maintenance BASIC, the fourth bar in the graph, had a average of 5.65 crashes per 100 trucks and/or buses.

Crash Rates per BASIC:

  • Driver Fitness 3.11
  • HAZMAT 4.49
  • Drug/Alcohol 4.61
  • Maintenance 5.56
  • Hours of Service 6.26
  • Accidents 6.34
  • Unsafe Driving 6.61

If your BASIC is flagged and your company has had a higher than average crash rate, then expect some sort of response from the DOT, up to and including an audit. Audits may be unannounced.

Note: most fleets don’t have hundreds of vehicles. One or two crashes may be enough to trigger a DOT intervention for a smaller fleet.

Source: From The Carrier Safety Measurement System (CSMS)Effectiveness Test by Behavior Analysis and Safety Improvement Categories (BASICs) report, dated January 2014.

 

Surprise, Surprise, Surprise!

Surprise, Surprise, Surprise.

Surprise, Surprise, Surprise. Someone from the DOT is at your office door looking for a manager. DOT audits may be unannounced. A recent DOT publication said, “As planned, the safety inspection caught the owner . . . off guard.”

Requested records need to be produced upon DOT request. Willfully obstructing FMSCA’s access to records needed to determine the company’s safety compliance is illegal. Making any intentional false statements to the DOT is illegal, too.

The DOT regulations “prohibit a motor carrier, its agents, officers, represen­tatives, or employees from making, or causing to be made, a fraudulent or inten­tionally false statement on any required document or record, to include driver’s records of duty status.” There are serious implications for not following the DOT rules.

What’s the best approach? There is simply no right way to do the wrong thing. Make a good faith attempt at limiting risk through compliance. Maintain a system of checks and balances. The wrong steps early-on can lead to later difficulties.

Finally, if audited by the DOT, don’t sign anything that you doesn’t seem right.

Black Flag Bandits

If you are just starting up, beware of phone calls from unethical false flag or black flag telemarketers who claim to represent the US DOT or the Federal Motor Carrier Safety Administration (FMCSA) or claim to have a “special in” with the DOT. One firm says, “We are a full service operation for the Federal Motor Carrier Safety Administration,” implying that one is talking directly with the DOT.

Others may claim they can “design bold strategies to defeat federal safety inspections,” or that their specialty is “polishing” or sanitizing documents and records to avoid DOT “red flags.”

As the old saying goes, trust but verify. Make an effort to identify and know who you are telephonically discussing your critical business matters with.

 

 

Getting Ready for 2013

New DOT registrants or “carriers” — short for ‘motor carriers’ can expect (currently within 18 months, but under MAP-21 — within 12 months for new property carriers and 120 days for new passenger carriers after July 9, 2013) a “Safety Audit.” Carriers already in the system do not get a DOT Audit, but instead, if flagged, would receive a “compliance review” (CR). Depending on the intensity, the DOT also calls this review or audit an:

– Offsite Investigation;
– Onsite Focused Investigation; or
– OnSite Comprehensive Investigation.

These investigations are known as “interventions”. This is part of CSA — short for the DOT’s enforcement program called Compliance, Accountability, Safety.

How should one prepare for the a Safety Audit, Compliance Review or other Intervention?

(1) Know your state’s law.

Some of the DOT required records may also be required by your state, whether or not your vehicle or fleet leaves the state. Most states have adopted the federal regulations, and may have their own safety review or procedures. Find your state’s most recent “Motor-Carrier Guide” on the Internet.

(2) Obtain a copy of the federal regulations.

The Federal Motor Carrier Safety Regulations are found in most truckstops or available for purchase on-line. This is an audit item.

(3) Organize

Make sure your records are organized, a safety management system is in place (organize your paperwork into files or binders), and records are updated, be it daily or some other timely manner as required by law.

Know what records are important, what records are essential, and what records are critical. A lot of DOT required forms need to be signed, be it by drivers, supervisors, mechanics or whomever. Dates and times are very important. Doing paperwork later or when you get ’round to it just won’t make the cut.

(4) Check things out

Is your vehicle or fleet roadworthy? According to some experts, over 40% of commercial motor vehicles should not go out on the road. Some of the oldest truck fleets since World War II are now running US highways. Older trucks need more maintenance; newer trucks have more systems and need more upkeep.

(5) Prepare

Is your driver prepared? Is the driver familiar with the federal regulations? Required paperwork?  Are you? Has the driver been trained on what forms he/she needs, how to fill them out and how the paperwork flow needs to go?

Over forty percent of DOT audits end in failure and over half of audits result in some violations (requiring corrections or even a re-audit). Only you can improve your odds.

Please let us know if we can assist in making 2013 your best year ever. Please visit: http://part380.com/

NEW: FMCSA Policy on the Timeliness of New Entrant Corrective Action Submissions

This new policy concerns New Entrants who have failed their Safety Audit.

Policy

FMCSA must receive a new entrant motor carrier’s corrective action plan within 15 days of the date of a new entrant safety audit failure notice or within 10 days of the date of an expedited action notice, in order to ensure adequate time for review. Otherwise, the motor carrier risks having its registration* revoked and being placed out of service.** FMCSA has observed that a number of new entrant carriers have waited until the end of the corrective action periods established in 49 CFR 385.308(b) and 385.319(c) to submit evidence of corrective action, leaving Agency officials little to no time for review. However, § 385.308 requires the carrier to submit evidence demonstrating corrective action within 30 days. Similarly, § 385.325(a) requires the new entrant to submit evidence that is acceptable to FMCSA within the specified corrective action period. If Agency officials do not have sufficient time for review, the Agency cannot make a determination within the appropriate time period as to whether evidence of corrective action has been properly demonstrated, as required by § 385.308, or is acceptable, as required by § 385.325(a).

If FMCSA receives evidence of corrective action within 15 days of the date of the new
entrant safety audit failure notice or within 10 days of the date of the expedited action notice, Agency officials will either review and make a decision on whether it is acceptable before the end of the corrective action period or, in the case of new entrant safety audit failures, grant an extension of time to complete the review if the Agency determines that the motor carrier is making a good faith effort to remedy deficiencies. The Agency will not grant an extension in the case of an expedited action notice or for motor carriers that transport passengers or hazardous materials, as defined in 49 CFR 390.5

If FMCSA receives evidence of corrective action more than 15 days after the date of the new entrant safety audit failure notice or more than 10 days after the date of the expedited action notice, the Agency will not guarantee that the evidence will be considered prior to the expiration of the corrective action period. If the corrective action period expires before the Agency makes a determination, the carrier’s registration* will be revoked. If the Agency subsequently determines that the corrective action plan is acceptable, the carrier’s registration will be immediately reinstated. However, if the Agency subsequently determines that the corrective action plan is not acceptable, the carrier will be required to wait the requisite 30 days before reapplying for new entrant registration in accordance with 49 CFR 385.329.

Issued on: August 8, 2012
Anne S. Ferro
Administrator
[FR Doc. 2012-20233 Filed 08/15/2012; Publication Date: 08/16/2012]

Commentary:

*registration – refers to the U.S. DOT Number.

**out of service (OOS) – refers to being prohibited from operating by the U.S. DOT.

As noted in our July 22, 2012 blog: “To remedy the downgrade resulting in an OOS:

(1) take action to correct the deficiencies which led to the downgraded safety rating, then (2) make a request in writing (petition) for a review of rating to the FMCSA Service Center for the geographic area where the carrier maintains its principal place of business. Because there is a deadline, these actions need to be done immediately.

This new policy simply reinforces the need to immediately respond in a timely manner to any DOT requests.

Burning Question: When is the DOT Safety Audit?

burning question
                            When is the audit?

Daily we are asked by someone who wants to know, When is the Safety Audit? Let’s look at what the regulations say. Title 49 CFR, Part 385.307 tells us that,

“After a new entrant satisfies all applicable pre-operational requirements, it will be subject to the new entrant safety monitoring procedures for a period of 18 months. During this 18-month period:

(a) The new entrant’s roadside safety performance will be closely monitored to ensure the new entrant has basic safety management controls that are operating effectively.

“(b) A safety audit will be conducted on the new entrant, once it has been in operation for enough time to have sufficient records to allow the agency to evaluate the adequacy of its basic safety management controls. This period will generally be at least 3 months.”

The purpose of the three month period is a period of time to establish (1) a “track record” and (2) document that your compliance is satisfactory and controls are in place. The DOT is looking for any tickets, collisions, roadside inspection data and the like. Since the start of the CSA enforcement program, DOT auditors look especially closely at roadside inspection data. During this pre-audit period your operations are also generating documents by the driver, human resources and driver qualification, inspections and maintenance., etc., and you have instituted best practices and training, policies and procedures for your particular operations.

Sometimes your actual operations may be postponed or delayed for various reasons. If operations have not yet started, then be sure to indicate that to the auditor before the audit, as there would not be any documentation and paperwork to audit for DOT compliance purposes.

Typically you can expect notification of audit, generally by letter, anywhere from three to six months after issuance of the DOT Number (occasionally a year and sometimes as long as 18 months later). Actual procedures may vary by state. For example, Wisconsin requires the motor carrier contact the audit section after the 90 days or they will cancel the DOT number.

In rare instances, for example, after a bad collision, the DOT can just show up at your door and demand to see your files. There is no “grace period” to marshal your resources as the next section of Part 385.307 says:

“(c) All records and documents required for the safety audit shall be made available for inspection upon request by an individual certified under FMCSA regulations to perform safety audits.”

The key words here are “upon request;” not later, not next week or next month.

Will you be ready? Please don’t delay preparation for another day.

Taking a wait-and-see attitude about DOT Compliance?

 

DOT Compliance with the Federal Motor Carrier Safety Regulations (FMCSRs), found in Title 49 of the Code of Federal Regulations(49 CFR), is not rocket science. It’s actually much harder because:

– compliance initiatives are competing with all the other things going on in the organization: customer demands, emergencies, weather changes, supplier failures and many more daily business challenges;

– the general complexity of the DOT laws, rules and regulations that seem overwhelming at first start;

–  some businesses simply will not comply until compliance enforcement actions are taken, according to several studies;

– time is lacking and resources are scarce or misappropriated for non-critical areas at the expense of critical areas.

The Cost

In the long-run taking the wait-and-see approach can be costly:

– Roadside fines can range from $100 to several thousand dollars, up to and including towing of the vehicle. In some instances the vehicle could remain impounded for a period of time;

– The driver may be personally ticketed, or even arrested;

– The DOT or State’s Motor Carrier Enforcement Division may conduct a what is called an “intervention” ranging from a phone call to a full-blown audit.

– Violations found during an audit may result in fines ranging from $1,000 for paperwork and documentation errors up to $11,000 or more for “egregious” (major) violations;

– Violations found lead to more inspections and inspections lead to audits;

– Your organization may be given a negative “CSA Score.”

Take Action

There’s an old saying, if you are not going anywhere, then any path will take you there. But that is not a very good business-like approach.

The DOT always checks critical areas in both roadside inspections and audits. Some areas are so critical to the DOT that they will result in an automatic Out-of-Service Order (OOS) or audit failure. I prefer to call these the Critical Success Factors (CSFs) and helping you succeed is what we are all about.

Don’t put the DOT off. Delay is a decision – for the wrong way. Avoid common mistakes and errors and the risk of citations and/or fines. Best of all, by taking action, by being proactive, you can avoid that feeling of panic and can remain in control and in change of the situation.

“Can the DOT shut me down?” and other recent questions

Out of Service Order

Out of Service Order

“Can the DOT shut me down?”

There are various circumstances that lead to the issuance of an “Out of Service” (OOS) order by the DOT.

“New Applicants” must undergo a “DOT Safety Audit.” One client, a small contractor, missed his audit appointment because of an emergency. He was told by his auditor that he could reapply for a new number in 30 days. He was fortunate in that his truck was already parked on-site and he didn’t need to drive it for a month or so. In the first three months of 2010 over 44% of New Entrants failed their Safety Audit, said Anne Ferro, FMCSA Administrator, when she testified on April 28, 2010 to the Senate Subcommittee on Surface Transportation.

Since the introduction of the new CSA enforcement program, the DOT now conducts a streamlined audit called a ‘focused review’ and this modified audit may reduce a satisfactory rating to a conditional or an unsatisfactory rating. A motor carrier rated “unsatisfactory” is prohibited from operating a Commercial Motor Vehicle. This applies to (interstate) passenger carriers (16 passengers+driver), carriers of hazardous materials (HM) in quantities requiring placarding that operate in interstate commerce, and all other motor carriers operating in interstate commerce.

Under § 385.13(d)(2)— If a motor carrier’s intrastate operations are declared out of service by a State, the FMCSA must issue an order placing out of service the carrier’s operations in interstate commerce. Likewise, some states apply a DOT’s interstate OOS order to intrastate operations.

To remedy the downgrade resulting in an OOS:

(1) take action to correct the deficiencies which led to the downgraded safety rating, then (2) make a request in writing (petition) for a review of rating to the FMCSA Service Center for the geographic area where the carrier maintains its principal place of business. Because there is a deadline, these actions need to be done immediately.

How do I display my US DOT Number on the Vehicle?

US DOT Number

49 CFR, § 390.21— Marking of self-propelled CMVs (the “Marking Rule“) says:

(b) Nature of marking. The marking must display the following information:
(1) The legal name or a single trade name of the motor carrier operating the self-propelled CMV, as listed on the motor carrier identification report (Form MCS-150 – [when you applied for the DOT number]).
(2) The identification number issued by FMCSA to the motor carrier or intermodal equipment provider, preceded by the letters “USDOT.”
(3) If the name of any person other than the operating carrier appears on the CMV, the name of the operating carrier must be followed by the information required by paragraphs (b)(1), and (2) of this section, and be preceded by the words “operated by.”
(c) Size, shape, location, and color of marking. The marking must—
(1) Appear on both sides of the self-propelled CMV;
(2) Be in letters that contrast sharply in color with the background on which the letters are placed;
(3) Be readily legible, during daylight hours, from a distance of 50 feet (15.24 meters) while the CMV is stationary.
The actual lettering may vary in size from 2 1/2 inch to 4 inches high, depending on the color of the lettering and the color of the vehicle. As long as you can read it from 50 feet, it will meet the standard. The U.S. DOT Number is generally placed near the bottom of the door and the company name in the middle. Check if your state has other ‘marking requirements.’

A set of magnetic signs may be used in lieu of permanent lettering.

Is Reasonable Suspicion Training for Supervisors required?

We received an “urgent compliance notice” from Supervisor  Compliance Training Department stating that it is mandatory to take a course in Drug & Alcohol Awareness Training … as a tiny little footnote at the bottom of the letter it states: If you are a single owner operator or you have had this training before, then  you are not required to take the training.

From what I have seen so far in your book I do not think we have to do this as we do not have drivers with commercial drivers licenses, we only have one vehicle, only transport our own equipment, etc.

Can you confirm for me if this is something we need to get certified in or not? Thanks,

Organizations having no Commercial Driver License (CDL) drivers are not required to have the Supervisor’s Reasonable Suspicion Training.

A single owner operator of a CDL type vehicle (not employing another driver), is not required to have this training as he or she would be aware of his/her own drug/alcohol use.

A person who has had this training previously in their career is not required to have this training.

A person may not actually have the “job title” of Supervisor to be required to have this training. Training is required for at least one person in the organization who has the role of a supervisor, manager, etc., of a CDL type driver or drivers.

If you are enrolled in a DOT drug/alcohol testing program, your program provider may offer this training. Some professional or trade associations also offer this training. To learn more, please visit: http://www.part380.com/supervisorstraining.html

Your questions are most welcome and help us create a Learning Culture that reinforces learning.