Wednesday, August 31, 2011

Recent Examples of FMCSA Safety Audits with Due Process concerns

The following are recent examples of FMCSA safety audits with Due Process concerns:

Example 1.
A carrier in a northern state was cited for several violations during an audit.
But the issue that pushed the carrier into a Un-Satisfactory rating was an accident where one of its vehicle’s struck a deer at night. The deer’s antler punching a hole in the truck’s radiator. The carrier elected to have the vehicle towed to avoid engine damage resulting in a recordable accident.

FMCSA refused to rule this incident as a non-preventable crash even though the procedures it should have follow in evaluation such instances clearly indicates that animal strikes are generally non-preventable accidents.

The carrier was rule Un-Satisfactory and shut down for 16 days. There is no appeal of a 385.17 (Request for Rating Upgrade Based on Corrective Action Taken) decision. Finally after 17 days of an out of service declaration and FMCSA deciding to upgrade the carrier to Conditional on a Friday afternoon around 4:00 pm, FMCSA told the carrier at that time that it could not re-start its operations until it reinstated it’s MC Number. The problem was that FMCSA could not re-instate its MC number until the following Tuesday because of the weekend and a Monday Holiday. So an additional 4 days was added to the original Out of Service Order.

Example 2.
A small motor carrier located in the south was issued a conditional safety rating based on three crashes it has had in the last 12 months. No other critical or acute violations were discovered that contributed to the Conditional Safety Rating. .

So the carrier implemented an extensive Defensive Driving Training Program and Accident Countermeasures Program in an effort to get its Safety Rating upgraded to Satisfactory. One of the crashes has now fell out of the 12 month evaluation period and that carrier now has a satisfactory safety rating in the Accident Factory. If the same audit was conducted today, this carrier would receive a Satisfactory Safety Rating.

So it submitted a 385.17 (Request for Rating Upgrade based on Corrective Action Taken) to FMCSA. FMCSA denied it request saying that it has not improved its SMS Fatigued Driving Score enough to justify the rating upgrade at this time.

It is interesting that the FMCSA found no critical or acute violations during the audit relating to hours of service violations.

It has expanded its rating evaluation into SMS scores now, which have no effect on a rating at the time of a Compliance Review.

One third of this carrier’s business is dependent upon a Satisfactory Safety Rating through contractual agreements. This carrier is located in a rural area that has an unemployment rate of over 14% at this time.

This was discussed with FMCSA. The carrier was advised by FMCSA that loss of business and loss of employment was not an area it could consider in rendering its decision.

There is no appeal of a 385.17 request.

A small western private motor carrier was cited for a driver having a suspended license during a roadside inspection. The carrier was unaware that the driver’s license was suspended for child support violations.

This carrier had recently successfully passed it New Entrant Audit. The carrier was notified in writing that it had 30 days to respond to the violation.

The carrier claims that it both mailed and faxed a letter to FMCSA stating the facts relating to this instance.

FMCSA claimed that it never received the Fax or letter.

The motor carrier was shut down for 30 days. No appeal to this decision.

Although SMS Methodology has not been approved for its use, both the regional offices and the state directors have advised carriers seeking upgrade of conditional safety ratings that until their SMS scores fall to an acceptable level no upgrade will be considered. Use of SMS Methodology is not approved under section 386 as a basis for considering 385.15 and 385.17 request.

1 comment:

  1. They are just making sure that every transaction are being handled properly which make sense. Hope that it will continue even if these carriers are already following the rules.


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