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Understanding a FMCSA Compliance Investigation Presented by | Chad Hoppenjan April 2015

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Welcome!

Presenter Chad Hoppenjan, CDS Director of Transportation Safety Services Chad.hoppenjan@cb-sisco.com

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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.

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What Prompts the FMCSA Investigation?

• CSA Values • Employee Complaints • Large Crash (Fatalities/Newsworthy)

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Offsite Focused

OffSite Focused Review • Carrier directed to send records • Carrier could be subject to onsite investigation if records are not supplied

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Onsite Focused

Onsite Focused Review • Investigators come onsite • Conducting review of records relating to specific area(s) • Generally two BASICs in alert status

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Onsite Comprehensive Onsite Comprehensive Investigation • Onsite comprehensive review • Basically the equivalent of previous Compliance Investigations • Investigation could include all areas of carrier’s operations

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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.

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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.

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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

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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.

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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

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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

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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)

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Violations

Non-compliance relates to a breakdown in carrier’s management controls General pattern = 10% or greater

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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

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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

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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 #.

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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

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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

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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

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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

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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

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Operational

Part 395 - Hours of Service

Part 392 – Driving of CMV

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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

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Vehicle

Part 393 – Equipment

Part 396 – Inspection and Maintenance

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Vehicle

Basic sampling of CMVs: • CMVs involved in crashes

• CMVs that contributed to carrier’s Vehicle Maintenance violations

• Leased CMVs

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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?

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Hazardous Materials • Employee training records 172.704 • Will review a sampling of HM shipping papers • Security Plan - when needed • Registration as needed

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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.)

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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

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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

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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

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Accident

• Fatality • Injury treated immediately away from the scene • One or more vehicles incurring DISABLING DAMAGE

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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

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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

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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

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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.

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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.

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Questions?