It’s no secret to anyone in trucking that highway transportation is one of the heaviest regulated industries in the U.S. The Federal Motor Carrier Safety Administration is the federal agency charged with that regulation. For years, its primary enforcement mechanism for ensuring that regulated carriers comply with the multitude of safety-related regulations has been the compliance review, or safety audit. Because FMCSA is a sub-agency of the Department of Transportation, it’s commonly called a DOT audit.
There are few things more nerve-racking for a motor carrier, and for good reason. For one, the stakes couldn’t be higher. A DOT audit can result in significant fines, a downgraded safety rating, and even a company-wide out-of-service order, depending on the nature and extent of regulatory violations uncovered. For another, when the DOT selects a carrier for an audit, it typically only has 48 hours to prepare.
No motor carrier expects to be audited, and most do little to prepare until it’s too late. But simply understanding the process goes a long way to ensuring a positive outcome should an audit ever come.
1. The FMCSA prioritizes motor carriers for audits
The FMCSA is a relatively small agency, even though it is tasked with regulating nearly 600,000 carriers and millions of commercial drivers across the country. That means the agency lacks the personnel to audit a significant percentage of regulated carriers at any regular interval. Accordingly, it has to prioritize carriers for audit. Understanding what factors the agency uses to prioritize carriers for audit is important for all carriers to understand so they can do their best to keep out of the crosshairs.
Since 2010, the FMCSA has relied primarily on its Compliance, Safety, Accountability (CSA) program, and more specifically, its Safety Measurement System (SMS), to prioritize carriers for audits.
High CSA scores can prompt an audit.
SMS is a system that scores all regulated motor carriers using data gathered through roadside inspections, crashes, and investigations within the past 24 months. Violations discovered through inspections and/or investigations are assigned to one of seven categories known as BASICs, and then weighted, based in part on their severity and how recently they occurred. Each carrier's performance is then evaluated against similarly situated motor carriers in each BASIC, and the carrier is assigned a percentile score in each BASIC.
Ultimately, carriers who perform worse than a certain percentage of their peers and exceed certain “intervention thresholds” in one or more BASICs in a given month will be higher on the agency's list for a potential audit.
Carriers with two or more BASICs in “alert status” are much more likely to be targeted for an audit. In 2021, high CSA scores triggered nearly 7,500 carrier audits, which accounts for nearly 75% of all audits conducted that year. So it's imperative that carriers closely track their scores and take deliberate steps to keep them in check.
Serious accidents can prompt an audit.
If the purpose of federal and state motor carrier safety regulations is to reduce highway accidents and resulting injuries, it should come as no surprise that accidents tend to trigger DOT audits. But not just any accidents. It’s typically the more serious accidents, especially fatalities, that prompt the FMCSA to take a closer look. This is particularly true in areas of the country where DOT auditors have more capacity to conduct audits.
Something to keep in mind with accident-related audits is that they tend to start out more focused in nature. For example, the agency may only request compliance documents for the driver involved in the accident. However, these types of audits quite frequently transform into more comprehensive audits, particularly when the accidents garner publicity.
Safety complaints can trigger an audit.
Yet another common trigger for a DOT audit is a complaint made against the motor carrier. The FMCSA explicitly solicits safety-related complaints on its website, and it tends to take them seriously. It’s not uncommon for disgruntled employees to file these complaints and prompt a DOT audit, even when their complaints have no real basis in fact. Regardless, carriers should take care to thoroughly investigate any internal complaints they receive before they blossom into a full-blown DOT audit.
2. FMCSA audits can take several forms
The FMCSA conducts several types of audits: comprehensive, focused, onsite, offsite, new entrant, etc. Historically, it has favored onsite, comprehensive reviews; however, more recently, the agency has turned to offsite audits to extend its enforcement reach.
The primary benefit of these offsite reviews, of course, is they allow the agency’s investigators to review documents from their own offices, cutting down the time and expense of traveling to and from a carrier’s terminal, and relying, instead, on the electronic transfer of documents from the carrier.
Prior to the COVID-19 pandemic, the agency typically reserved these offsite reviews for less intensive circumstances, such as new entrant safety audits and focused reviews — those involving a lower volume of paperwork. However, as the offsite review process became more streamlined and reliable, the agency slowly began to ramp them up. And then came COVID-19 — a complete game-changer for offsite reviews.
As addressed in a prior article, FMCSA offsite audits are up over 400% over the last couple of years, and they’re not slowing down. In fact, the agency has amended its regulations to authorize the issuance of safety fitness determinations — previously reserved for onsite reviews — following an offsite audit.
Whether onsite or offsite, an audit can be focused on one or a few areas of compliance (such as hours of service) or it can be comprehensive, meaning the agency is looking at all major areas of a carrier’s compliance program. Occasionally, the agency will start an audit as a focused review but subsequently expand the scope based on violations discovered early on. Carriers should not be lured into a false sense of security if they learn their review will be focused in nature.
3. The agency follows a detailed auditing methodology
What many carriers don’t realize is that FMCSA investigators follow a very specific and methodical process when conducting their reviews. What’s more, this methodology — known as the Electronic Field Operations Training Manual or eFOTM — is available for all to access, if you can stomach the 1,082-page read.
The manual details the sample sizes that agency investigators are supposed to follow when selecting records to review. For example, eFOTM prescribes a sample of 80 driver files for a fleet with between 501 and 1,200 drivers. The manual also describes the steps investigators should take to understand the carrier’s safety management program and confirm it’s sufficient under the circumstances.
4. DOT audits can lead to the issuance of a safety rating and/or civil penalties
DOT safety ratings (aka safety fitness determinations) are reflections of a motor carrier's compliance with the Federal Motor Carrier Safety Regulations as of the date of the FMCSA audit that resulted in the rating. There are three possible ratings: Satisfactory, Conditional, and Unsatisfactory. If an audit reveals substantial enough non-compliance, the carrier will receive an Unsatisfactory rating, which will ultimately result in the carrier being shut down.
Aside from the regulatory consequences, safety ratings can also have commercial consequences, given that they are publicly available through the FMCSA's online SAFER database.
The FMCSA determines a carrier's safety rating in accordance with the detailed safety rating methodology contained in Appendix B to 49 C.F.R. Part 385. As a preliminary matter, the FMCSA only issues safety ratings to carriers that have undergone a comprehensive on- or off-site compliance review.
Once a carrier is selected for a comprehensive audit, the investigator evaluates and rates the carrier's compliance in six broad factor areas:
- general compliance (parts 387 and 390 of the FMCSRs);
- driver (parts 382, 383, and 391 of the FMCSRs);
- operational (parts 392 and 395 of the FMCSRs);
- vehicle (parts 393 and 396 of the FMCSRs);
- hazardous materials (part 397 of the FMCSRs and parts 171, 177, and 180 of the HMRs)
- accidents (based on the carrier's calculated accident rate).
Each individual factor rating depends on the number of “acute” and/or “critical” violations the investigator uncovers within those factors.
Once the investigator completes the audit, he or she will tally the number of acute and/or critical violations in each of the six factor areas and assign a safety rating according to a particular formula. Carriers who receive a less-than Satisfactory rating have a couple of options to upgrade that rating, including through an administrative appeal or by taking prompt action to correct admitted deficiencies.
Aside from safety ratings, audits can also lead to civil penalties. The agency routinely assesses penalties following audits, particularly for more serious violations. In 2021, the agency closed 2,771 civil penalty cases for a total of $18.37 million and an average of $6,629 per case.
The consequences of a bad DOT audit are severe, so carriers should take proactive steps to prepare. At minimum, this should include ensuring compliance records are up to date and in order.