You in Line for a Safety Audit?
Henry E. Seaton
Reprinted from etrucker.com
Small carriers, simply
because of their size, are likely targets for audit under the Federal
Motor Carrier Safety Administration's SafeStat system. In an effort
to concentrate its efforts on unsafe carriers, the agency ranks carriers
and relies heavily on the number of recordable accidents reported on
its system to target enforcement. The number of accidents a carrier
has as compared to its size as reported on Form MCS-150 is a critical
selection factor. One or two recordable accidents can send a small carrier's
rating through the roof, although the same number would have little
effect on its larger competitor.
The FMCSA has no system to determine whether the recordable accident
was preventable. If studies used in the hours-of-service debate are
correct, more than half of the serious car/truck accidents are caused
by four-wheelers. But the SafeStat system does not make this assumption.
As a result, a small carrier may be a target for audit because of one
or two accidents, which were not its fault.
The Transportation Lawyers Association, supported by the American Trucking
Associations and the National Association of Small Trucking Companies,
has petitioned the Department of Transportation to provide a process
for allowing carriers to contest erroneous SafeStat information. That
petition gathers dust at the FMCSA.
You can determine your SafeStat score and obtain a detailed carrier
profile from the Web (http://ai.volpe.dot.gov). Particularly helpful
is a carrier selection list by state that ranks carriers by number and
category, starting with the carrier identified with the worst safety
performance and, therefore, most likely to draw an audit.
If you are listed as category A, B or C -- considered by FMCSA to be
the highest risk -- and you have not been audited, expect a visit. The
good news is that the DOT website shows your greatest areas of weakness
in the "eyes" of the SafeStat system, so you can address them
proactively before you draw an audit.
If you are not on your state's SafeStat list for an audit, and you are
notified that one is about to occur, ask whether the audit is in response
to a complaint. Specific complaints and follow-ups to previous enforcement
action are generally the only reasons other than your SafeStat category
for an audit.
An unsuccessful audit can produce two adverse consequences - a less
than satisfactory safety rating or a substantial fine. Under a recent
FMCSA regulation, an unsatisfactory safety rating can put you out of
business. And a conditional rating can cause you to lose customers and
drive up your insurance costs. It's crucial, therefore, that you fight
hard to win and keep a satisfactory rating.
The stakes have never been higher with fines as well. FMCSA recently
enacted new policies that will yield far larger fines than ever before.
In recent announcements of fines totaling $368,000 and $150,000, FMCSA
has shown that it has every intention of following through on the threat.
If you are fined and are not a repeat offender, the Small Business Regulatory
Enforcement Fairness Act may help. Under this law, which the FMCSA acknowledges
is applicable, the severity of a fine on a small carrier may be mitigated
by its inability to pay and the adverse consequences that would result
from a full assessment. The agency has an internal document called a
uniform fine assessment decision, which can provide guidance for determining
whether any fine assessed is overly harsh under the circumstances.
FMCSA's enforcement probably will remain aggressive. Analyze your safety
profile, and address areas of concern. Make sure that preventable accidents
do not count against you. Be prepared to appeal adverse decisions that
are based on inaccurate and incomplete information supplied to SafeStat
and relied upon by the auditors. Don't let an auditor unjustifiably
conclude that the trucking industry is safer without you -- at least
not without a fight.
Copyright© 2006 Law Office of Seaton & Husk, LP. All rights