Upgrading DOT Safety Ratings
Many of you have Conditional DOT safety ratings, and have found that a Conditional rating hurts your business. A for-hire motor carrier is at a significant disadvantage as some brokers and shippers won’t load you, some will load you but pay you less, and insurance companies charge you more in premiums. If you have an Unsatisfactory rating, you only have 60 days to convince DOT to let you continue operating, or they place you Out of Service.
How do you get your rating upgraded to Satisfactory? It’s not easy. Under the current Obama Adminstration, it’s becoming increasingly more difficult every week. DOT used to conduct, at a motor carrier’s request, an audit, to determine a carrier’s safety fitness. If the results of the audit were good, you get the Satisfactory rating. If they were not good, you get to keep your Conditional rating, or move down to Unsatisfactory, and get a giant fine. FMCSA no longer conducts these followup audits for rating purposes. FMCSA has decided they will audit who they want to audit, and if you get a less-than Satisfactory rating in an audit, too bad for you.
So how do you get the rating put back to Satisfactory if they won’t reaudit you? There is a procedure in the rules which allows you to petition them based on corrective action. You send them a letter, with whatever backup documentation you want, and attempt to prove to them you are in compliance with the rules.
What rules must the FMCSA follow in granting or denying these petitions? None. Ok, virtually none. The rules say a motor carrier must have “adequate safety management controls in place, which function effectively to ensure acceptable compliance with applicable safety regulations”. So, what’s that mean? Well for one thing, I guarantee that your idea of ‘acceptable safety management controls’ is different than FMCSA’s. The result of this is, you can petition them and petition them and petition them, and they can just keep saying NO. On one carrier, where we were denied multiple times by the FMCSA for the Satisfactory rating, the petition we submitted where we finally got the rating weighed 25 pounds.
But there must be an appeal process, right? This is America, if FMCSA is unjustly denying me a Satisfactory rating I must be able to appeal, right? Well, yes you can appeal. You can file your appeal, and explain why you should be Satisfactory. It will go to Washington DC, where it will sit. And sit. And sit, for literally years. I am not making that up. It will sit for years. When it is finally ruled upon, you will lose. You will lose, because it is such a nebulous and undefined standard, the decision-maker will take FMCSA’s side. Not to mention the decision-maker is an employee of FMCSA. Therefore, yes, there is an appeal process. It is a useless and meaningless appeal process, and you’ll never win using it, but there is an appeal process.
Don’t get me wrong. Rating upgrades can be accomplished. I have done them. I know what FMCSA wants to see in order to grant the upgrades. If anyone can assist you in getting a rating upgrade, it’s me. Some upgrades are easier than others. I believe they will be more difficult after this Sky Express business. It is easier if you have little or no violations. It is easier if your CSA scores are not high. Most FMCSA personnel are relatively fair-minded, but they want extensive proof you are not violating the rules. Getting a safety rating upgraded is difficult, and takes a lot of time. The days of sending in a letter, and getting the rating are over. It takes time, and I get paid for my time, so don’t fall out of your chair, when I tell you how long I think it could take to get the rating, and how much I’ll charge to help you.
Ray LaHood Throws FMCSA Under the Bus
So, let’s recap the Sky Express saga. They were audited in April, 2011. This was no doubt generated due to the 15 fatality bus crash in the Bronx by another bus company. They were found to have enough violations, which generated a pending Unsatisfactory rating. A passenger carrier with a pending Unsatisfactory rating has 45 days to demonstrate to DOT they have improved their safety operations, so DOT will upgrade their rating to Conditional, allowing them to operate. If a passenger motor carrier is making a good faith effort at complying with the rules, DOT can extend the Out of Service date by up to 10 days. Apparently, Sky Express had submitted enough paperwork which justified the FMCSA extending their Out of Service date.
Last Tuesday, May 31, Sky Express had a four fatality accident, where their driver evidently fell asleep. Sky Express was operating in the 10 day extension window granted by DOT at the time. On Thursday, Ray LaHood, Obama Secretary of Transportation rushed to the microphones to declare how disappointed he was in FMCSA, and that there will never be another extension under his watch. FMCSA, at that point, hurriedly revoked Sky Express’ authority to operate.
So, what do we make of this? First, I haven’t seen anything in news on the Richmond accident showing the driver was in violation of the hours rules when the bus crashed. Just because a driver falls asleep, does not mean he violated the hours of service rules. In fact, he probably was in compliance with the rules, otherwise, you would have heard something by now. Second, issuance of the 10 day extension is common practice within FMCSA. The agency usually leans against placing a motor carrier out of business, and gives them every benefit of the doubt before casually throwing private citizens out of work. I would wager the North Carolina FMCSA office did not casually issue that extension, but instead had proper justification for doing so.
So, what’s the fallout here? Basically, this means it’s going to be that much harder to get safety ratings upgraded. FMCSA personnel operate first and foremost under the rule of Cover Your Ass (CYA). Never do anything that may jeopardize your personal standing or job position. Safety, commonsense, the public good, whatever, all takes a backseat to CYA. With Obama flunkie Ray LaHood running wild, threatening to place any and every small business who has an accident out of business, the rules have changed. FMCSA personnel will now make it very difficult to get safety ratings, particularly Unsatisfactory ratings upgraded, just so they don’t have to face the wrath of politician Ray LaHood.
