Understanding a FMCSA Compliance Investigation Presented by Chad Hoppenjan April 2015 1
Welcome! Presenter Chad Hoppenjan, CDS Director of Transportation Safety Services Chad.hoppenjan@cb-sisco.com 2
The FMCSA Is Coming! What Do We Do Now? First off, don t panic! Review letter closely, which is usually sent. Specific instructions Call or email investigator for clarification and/or ask questions. 3
What Prompts the FMCSA Investigation? CSA Values Employee Complaints Large Crash (Fatalities/Newsworthy) 4
Offsite Focused OffSite Focused Review Carrier directed to send records Carrier could be subject to onsite investigation if records are not supplied 5
Onsite Focused Onsite Focused Review Investigators come onsite Conducting review of records relating to specific area(s) Generally two BASICs in alert status 6
Onsite Comprehensive Onsite Comprehensive Investigation Onsite comprehensive review Basically the equivalent of previous Compliance Investigations Investigation could include all areas of carrier s operations 7
Opening Conference with Investigator Recommend top management involvement Be organized, interested, and indicate desire to learn from the process Determine where auditor will work Preferably in a quiet area away from other employees. 8
High Risk Carriers Do you know if you are a high risk carrier? High risk carriers have substantially higher crash rates: more than twice the crash rate of the general carrier population. - Crash or HOS Compliance or Unsafe Driving > 85 and one other BASIC at or above the all other motor carrier threshold - Any 4 or more BASICS at or above the all other motor carrier threshold levels Carriers that are High Risk for 2 consecutive months will be prioritized in the Investigative 1 Mandatory SMS investigation listing used by the FMCSA to prioritize which carriers they will conduct an investigation. 9
Prioritization of CI targets Compliance investigation targets are placed in an investigative bucket depending on the time elapsed since the last intervention (CI): Investigative 1- Last primary intervention over 24 months Investigative 2- Last primary intervention over 18 months Investigative 3- Last primary intervention over 12 months 10
On-site Compliance Investigations 1) Comprehensive - 4 or more BASICs above threshold or CSA SMS mandatory 2) Focused - 2 or less BASICs above threshold 3) Carriers with 3 BASICs above threshold may be subject to either CI scope per FMCSA manager discretion. The following carriers will always receive a Comprehensive CI: New Entrant carriers without a Safety Audit. HM Permitted carriers. Passenger carriers without a CI in the past 12 months. 11
Driver Selection Process Although there is a basic sampling criteria, Investigators can deviate per investigation findings. Basic sampling of drivers: Drivers involved in FMCSA recordable crashes Red flag drivers Positive drivers Per Driver CSA/SMS scores Drivers who contributed to the carrier s violation history Drivers employed in the last 365 days 12
Red Flag Drivers 383.21- Driving with more than 1 CDL 382.23(a)(2)- Driving without CDL 383.51(a)- Disqualified (CDL holder) 383.91(a)- No/improper endorsement 391.11- Unqualified driver 391.11(b)(5)- No license for CMV operated 391.11(b)(7)- Disqualified license 391.15(a)- Driving CMV while disqualified 392.4(a)- Use/possession of drugs 392.5(a)- Use/possession/under influence of alcohol within 4 hrs. 395.13(d)- Driving after OOS 396.9(c)(2)- Operating an OOS CMV 13
On-Site Comprehensive Records Records Reviewed Proof of financial responsibility Driver Qualification Files Drug and alcohol testing records Records of duty status and supporting documents Driver vehicle inspection reports and maintenance records FMCSA accident register Hazardous materials records (if applicable) 14
Violations Non-compliance relates to a breakdown in carrier s management controls General pattern = 10% or greater 15
Safety Fitness Determination Satisfactory: Adequate controls to ensure safety compliance are in place Conditional: Adequate controls are not in place and violations could result Unsatisfactory: Adequate controls not in place and violations have occurred 16
General Parts 387 & 390 Part 387 Financial Responsibility Form MCS 90B Proof of financial responsibility Part 390 Accident Reports Maintain copies of all accident reports required by state entities or insurers 17
General Parts 387 & 390 Ensure the Certificate of Insurance is current. Include a covered CMV List. Obtain the loss run report. MCS-90 must include the required amount per 49 CFR Part 387. Leased CMVs- Main insurer must be the operating motor carrier, if operating under the motor carrier s DOT #. 18
Driver Carriers will need to ensure that drivers are: Fully qualified with an up-to-date DQ file Participating in a FMCSA random testing program Properly licensed 19
Driver Qualifications - 391.11 21 years old Read and speak English Can operate type of vehicle assigned Physically qualified Current CDL license Annual certificate of violation Not disqualified 20
Driver Qualification Be able to articulate a comprehensive hiring process Paperwork is not enough, how did you use the records to determine qualifications? Be aware if any driver has a chronic medical condition that may be a factor in their qualification Be aware of incomplete documentation (incomplete application, etc.). It can be an indicator of concealment of negative information 21
Driver Qualification File Contents Application for employment Copy of Initial MVR Copy of CDL or certificate of road test Annual MVR Annual review of moving violations Annual certificate of violations Medical Examiners Certificate Medical Examiner s National Registry Verification 22
Drugs and Alcohol Have you asked all perspective employees if they have ever tested positive? Have all consortium or third party administrator documentation for the past year available (pre-employment; random; etc.) Always present the CCF form and test results together Have key personnel received reasonable suspicion training? Have post accident testing procedures in place to include documentation as to why a test was not performed. NOTE: Critical violation 23
Operational Part 395 - Hours of Service Part 392 Driving of CMV 24
Hours-of-Service Records of Duty Status (RODS) must be maintained for 6 months All supporting evidence must be available during CI. This includes all business records that can help corroborate the accuracy of RODS Be able to articulate the company s RODS review program A disciplinary policy is not required in the FMCSRs but are a valuable tool to determining compliance. Meaningful enforcement of the policy is imperative Any driver s logs within the past 6 months is fair game for review, whether or not driver is employed 25
Vehicle Part 393 Equipment Part 396 Inspection and Maintenance 26
Vehicle Basic sampling of CMVs: CMVs involved in crashes CMVs that contributed to carrier s Vehicle Maintenance violations Leased CMVs 27
Vehicle Ensure all personnel, to include outside sources, are qualified to perform vehicle maintenance and are knowledgeable of the FMCSRs Document their qualifications Preventive maintenance vs. repairs; there is a difference Carrier is ultimately responsible for the maintenance of all leased equipment Paperwork is not enough; is the maintenance program effective? 28
Hazardous Materials Employee training records 172.704 Will review a sampling of HM shipping papers Security Plan - when needed Registration as needed 29
Hazardous Materials Ensure all HM employees receive initial and re-occurring training Shipping papers- Identify the source (carrier vs. shippers) Cargo tanks- Identify testing facilities and forms Manufacturer s certificate or equivalent documents Document who is responsible for ensuring cargo meets all requirements (markings, placarding, etc.) 30
Accidents Accident history of the company Recordable accident rate for prior 365 days Investigator may ask to review insurance loss runs Accident register must be maintained 31
Accidents Present a completed accident register and copies of crash reports Accident countermeasures are not required by the FMCSRs but is a major factor for determining compliance. - Present any countermeasures implemented during the CI 32
Accident Register -390.15(b) Keep for 3 years after accident Corporate Office keeps official Accident Register List of Accidents Date City, ST Driver # Injuries # Fatalities HM spilled DATE CITY, ST DRIVER # INJURIES? FATALITIES? HM 33
Accident Fatality Injury treated immediately away from the scene One or more vehicles incurring DISABLING DAMAGE 34
Accident DISABLING DAMAGE Damage to a motor vehicle which prohibits the vehicle from leaving the scene in its usual manner during daylight hours after simple repairs Damage to a motor vehicle that could have been driven, but would have been further damaged if driven 35
Accident Frequency Factor Frequency of DOT recordable accidents Satisfactory = 1.5 accidents per million miles or fewer Unsatisfactory = Greater than 1.5 accidents per million miles Accident Rate = Accidents X 1,000,000 Past 12 Month Mileage 36
Corrective Action Plans and/or Safety Management Plans SMPs are required for all carriers who receive a proposed Unsatisfactory safety rating May be submitted by carriers who receive a proposed rating less than Satisfactory Focused CIs- Only carriers with a previous Satisfactory rating can be upgraded as a result of Focused CI. Otherwise the proposed rating will be vacated Must be submitted to the corresponding Division Office and Service Center 37
Corrective Action Plans and/or Safety Management Plans SMPs are not just about corrections; they must include an effective plan that will prevent future violations from occurring. Must address all violations; SMP for all acute/critical/serious violations. How can FMCSA help? See the recommendations section of your CI as well as CSA Outreach page. An upgrade request and guidance document is given to all carriers during closeout sessions. 38
Corrective Action Plans and/or Safety Management Plans Common Errors Submissions with additional FMCSR violations. Incomplete documentation. Relying on a plan not yet implemented. Ineffective solutions (firing of drivers). Timeliness (60 days for property; 45 days for passengers and HM). Not asking for an upgrade. 39
Questions? 40