FMCSA Entrant Program monitors motor carriers' compliance with safety regulations. Are you ready for an audit?

The Federal Motor Carrier Safety Administration (FMCSA) has raised the bar for passing a new carrier safety audit. In December 2008, the agency announced that new carriers will automatically fail an audit if they have committed any of 15 violations.

A carrier who fails an audit is notified within 45 days and given 60 days to correct the problem or lose its operating authority. Passenger carriers and hazmat haulers are given only 45 days to correct violations.

Seeing is Believing

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If your vehicle meets any of the descriptions below, you are a motor carrier and must register with FMCSA.

  • Weighs at least 10,001 pounds, and operates in interstate commerce, or
  • Transports more than 8 passengers (including the driver), for-hire (compensated), o
  • Transports more than 15 passengers (including the driver), private (not for compensation), or
  • Transports amounts of hazardous materials requiring placards (49 CFR, subtitle B, chapter I, subchapter C).

The FMCSA, using the compliance and enforcement program called CSA, monitors the safety performance of each motor carrier from registration throughout the life of its business. During carriers’ first 18 months on the road, they are considered “new entrants” with provisional operating authority, and are also monitored under the New Entrant Program to ensure they have effective safety management controls in place. Upon completing a safety audit and operating safely for 18 months, carriers are granted permanent operating authority and continue to be monitored under CSA.

They check compliance with requirements related to insurance, accident records, equipment and maintenance records, driver qualifications, CDL license standards, driver records of duty status, drug and alcohol testing, and hazardous materials, if applicable. The new entrant audit was originally designed to stress education before enforcement.

In the past it was a pass/fail audit that very few failed. If an auditor found critical safety problems it triggered a formal Safety Compliance Review. A carrier could still pass, for example, even if it did not have a drug and alcohol testing program or had not implemented random testing.

Under the new rules a carrier automatically fails if an auditor finds a single occurrence of these violations. FMCSA looked back at audits conducted in a recent five year period and estimated that 47.9% would have been failures under the new rules. Since about 40,000 audits are done each year, that means more than 19,000 Motor Carriers could now fail annually. “One would not necessarily expect such a high failure rate to persist after the rule is implemented,” FMCSA noted in a December 2008 Federal Register notice. “Upon implementation of this rule, many carriers will take the appropriate action to pass the stricter new entrant safety audit, and the actual failure rate will be significantly lower.”

Safety regulations that are being called the “15 deadly sins” that will result in failure of a motor carrier entrant audit:

  1. Failing to implement an alcohol and/or controlled substances testing program.
  2. Using a driver who has refused to submit to an alcohol or controlled substances test required under Part 382.
  3. Using a driver known to have tested positive for a controlled substance.
  4. Failing to implement a random controlled substances and/or alcohol testing program.
  5. Knowingly using a driver who does not possess a valid CDL.
  6. Knowingly allowing, requiring, permitting, or authorizing an employee with a commercial driver’s license which is suspended, revoked, or canceled by a state or who is disqualified to operate a commercial motor vehicle.
  7. Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a commercial motor vehicle.
  8. Operating a motor vehicle without having in effect the required minimum levels of financial responsibility coverage.
  9. Operating a passenger carrying vehicle without having in effect the required minimum levels of financial responsibility coverage.
  10. Knowingly using a disqualified driver.
  11. Knowingly using a physically unqualified driver.
  12. Failing to require a driver to make a record of duty status.
  13. Requiring or permitting the operation of a commercial motor vehicle declared “out-of-service” before repairs are made.
  14. Failing to correct out-of-service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again.
  15. Using a commercial motor vehicle not periodically inspected.

How does the FMCSA monitor carrier safety compliance?

The FMCSA, together with State Partners, assesses safety performance by collecting data about carriers through safety audits, roadside inspections, investigations, and crash reports.

Safety Audits

Review of carriers’ records to verify that the carrier has basic safety management controls in place. May occur at the carrier’s place of business or offsite.

Roadside Inspections

Examinations of commercial motor vehicles and/or drivers to ensure compliance with regulations, carried out by certified inspectors. May be conducted a weigh stations, border checkpoints, or if a CMV is pulled over by a law enforcement official.

Investigations

Examinations of carrier’s operation to help identify why safety problems are occurring and recommend corrective action. May occur at the carrier’s place of business or offsite.

Crash reports

Reports usually completed by State or local law enforcement following a crash. FMCSA uses data from State-reported crashes over the past 24 months.

CSA will provide safety benefits by enabling the agency to

  1. Increase its reach by assessing whether most motor carriers and drivers are safe and holding them accountable by regularly determining their safety fitness;
  2. Enhance its investigative and enforcement actions through the greater use of less resource-intensive interventions; and improve its ability to identify safety deficiencies through better use of data.

Under CSA, all carriers (and eventually all drivers) with sufficient safety data available will receive a safety rating that is periodically updated. Currently, FMCSA is able to provide safety ratings for relatively few carriers and for no drivers. As described earlier, CSA will employ a progressive array of interventions that can be tailored to match the severity of the safety problems they are intended to correct.

CSA intends to use new data–such as information from police accident reports about driver-related factors contributing to a crash–and improve existing data sources–by, for example, using its database of licensed commercial drivers to identify all drivers with convictions for unsafe driving practices, as well as the carriers they work for–to enable a more precise assessment of safety problems.

CSA will support evolving and new enforcement and compliance efforts. For example, (1) carriers from Canada and Mexico that operate in the United States under open border agreements will be rated under CSA in the same way as U.S. carriers; (2) violations found through audits of new entrants–a program that FMCSA is working to strengthen–will be used in the CSA safety measurement system; and (3) data sources related to 7 Core Behavioral Areas of CSA or BASIC (drivers’ health) will be developed to focus attention on drivers qualifications, a key FMCSA policy area.

How does FMCSA address carriers that pose a safety risk?

The FMCSA’s interventions process, which includes warning letters and investigations, evaluates why safety problems occur, recommends remedies, and when necessary, invokes strong penalties for carriers failing to comply.

There are three categories of intervention: Early Contact, Investigation, and Follow-On.

Early Contact

Warning letters notify motor carriers early on about their safety performance and compliance problems, and the consequences of not improving, which may include either Onsite or Offsite investigations. Targeted Roadside Inspections, conducted at permanent or temporary locations, are prompted by data that identify a carrier’s specific safety problems.

Investigation

Safety Investigators (SIs) conduct three types of investigations, which can take place at a carrier’s place of business or remotely. During the investigation, SIs use FMCSA’s Safety Management Cycle to diagnose safety performance and compliance problems to identify actions a carrier can take to improve.

  • At an Offsite Investigation, an SI requests copies of documents from a carrier and reviews the documents remotely, to identify specific safety performance and compliance problems.
  • If the SI chooses an Onsite Focused Investigation, the focus will be on specific safety performance and compliance problems at the carrier’s place of business. The SI may interview employees and perform vehicle inspections.
  • In an Onsite Comprehensive Investigation, an SI reviews the entire safety operation at a carrier’s business and may interview employees and perform vehicle inspections.

Follow-On

A Cooperative Safety Plan (CSP) is a voluntary plan a carrier may implement with the help of SIs to address safety problems. This plan may be used alone or with a Notice of Violation, but it cannot replace a Notice of Claim. A Notice of Violation (NOV) is a formal notice that a carrier’s violations are severe enough to warrant formal action, but not civil penalties.

To avoid further intervention from FMCSA, the carrier must take corrective action and provide evidence of it or contest the violations. A Notice of Claim (NOC) is a formal notice that violations are severe enough to warrant assessment and civil penalties. An Operation Out of Service Order (OOSO) is an order requiring the carrier to immediately cease all motor vehicle operations.

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