A New Age of Enforcement: Adjusting to Remote and Offsite Investigations & How to Prepare

Presented as part of ABA’s BISC & BusMARC 2021 Virtual Safety & Maintenance Series

The American Bus Association’s Bus Industry Safety Council (BISC) and Bus Maintenance Repair Council’s (BusMARC) 2021 Virtual Safety & Maintenance Series offered a sequence of educational webinars early this year, covering a variety of industry-related topics.

As part of its ongoing webinar series, the ABA hosted a virtual meeting with presenters Catterson Oh and Danielle Smith, transportation specialists with the Federal Motor Carrier Safety Administration’s (FMCSA) Compliance Division.

Oh and Smith focused on COVID-19 national emergency investigative process updates including changes to the FMCSA investigative procedures due to COVID-19, recordkeeping and documentation as the result of COVID-19, and providing accurate documentation for FMCSA investigations.

Changes to Investigative Procedures as a Result of the COVID-19 Health Emergency

In May 2020, the FMCSA released guidance allowing investigators to conduct remote onsite investigations. These remote onsite investigations are intended to follow the same general process as offsite investigations with the exception that most of the investigation is now completed remotely.

According to Oh, May 2020 resulted in a significant expansion to the FMCSA’s remote functionality.

While motorcoach operators may not have seen any investigations in the last year, Oh noted that due to this expanded functionality, companies should expect a considerable increase in the number of investigations moving forward.

“In terms of the offsite investigations with this pandemic, the policy with this particular type of investigation has not changed,” Oh said. “The offsite investigation will still be recommended for carriers that meet the appropriate criteria for this population of carriers.”

Although carriers will not receive a rating from an offsite investigation, offsite investigations may be converted to onsite remote investigations under certain circumstances. Carriers with investigations that are converted onsite may be issued a Safety Fitness Rating.

Overview of Investigation Process  

  1. Safety Investigator (SI) will conduct an initial phone call with the carrier to introduce themselves, and review the reason for the investigation and next steps. 

2. SI will email the carrier an Initial Contact Letter that will go over initial documents being requested. 

3. Carrier will upload the initial documents to the Safety Measurement System (SMS). 

4. After SI receives the initial documents, they may request additional documents via a Document Request Letter. 

5. SI may contact the carrier via phone and email throughout the investigation. 

6. Once SI has completed the investigation, they will request a closeout meeting with the carrier, which can be done via phone, Microsoft Teams, Skype, or other platform. 

7. Carrier may receive a Safety Rating upon completion of the Remote Onsite Investigation.

According to Oh, carriers subject to investigation will receive a phone call, followed by an initial contact letter, from an FMSCA Safety Investigator (SI) introducing themselves, the reason for investigation and next steps.

Once a carrier has received this letter, that carrier’s information will need to be uploaded into the FMCSA Safety Measurement System (SMS).

After receiving the initial documents, an SI will review the content to determine if additional documentation is required. If additional documentation is needed the SI will issue a “document request letter.”

“This is where things start kind of diverting from the normal way of doing things,” Oh explained. “Especially when you have performed onsite investigations.”

An SI will start contacting the carrier via phone and e-mail throughout the investigation. In a normal onsite investigation, the SI would be with the carrier in person to answer questions and provide additional guidance. 

Once the SI has completed their investigation, they will request a close out meeting with the carrier. This can be done over the phone or, more likely, in a video conferencing setting. At this point, the carrier may receive a safety rating upon completion of the remote onsite investigation. 

Once the SMS has processed the information, the carrier will be able to access their dashboard, track investigation progress, check due dates and required documents, view call-to-action reminders, upload documentation, and learn to use data to increase safety performance.

After the SI has reviewed all of the required documents, they will send the carrier a request for a meeting to close out the investigation. Typically, this is done onsite, face-to-face however, since the onset of the pandemic, closeouts are now performed virtually.

Reinstatement After Voluntary Revocation of
Operating Authority

In March 2020, the FMCSA issued multiple exemptions in response to the national health emergency. One of those exemptions included waiving the $80 reinstatement fee for carriers who opted to voluntarily revoke their Passenger Operating Authority. 

Carriers with a USDOT pin can login into their profile, update their registration information, and complete an MCSA-5889 form, a Motor Carrier Records Change. 

Carriers without a USDOT pin, can register and request a pin number through the FMCSA website.

Before submitting a request, carriers will need to file a BOC-3 (Designation of Process Agent), confirm insurance filings are up to date, and make sure that their USDOT number is reinstated and activated.

Once these items are completed, the reinstatement request is going to be put on hold until the carrier has everything submitted properly.

“If all is submitted and you do have to pay that fee, then you’ll get it reinstated no later than the fourth business day after the payment is processed,” Smith explained. “You can request that the fee is waived, you’re just going to submit it through EMC’s e-mail address rather than doing it through the normal process online.” 

FMCSA Ratings

The FMCSA issues three types of ratings. Satisfactory, conditional, or unsatisfactory. Satisfactory means that there are safety systems in place and they all appear to be working. Conditional means that there are safety systems in place, but there are breakdowns within some of those systems. While carriers are still able to operate with a conditional rating, some choose not to do so and would rather upgrade their score. Unsatisfactory ratings mean a carrier is considered unfit and are not allowed to operate after that time. 

“All of the critical violations are listed within the regulations,” Smith noted. “Our rating methodology is published in the regulations and we do not deviate from that. Anybody and everybody can have a few paperwork violations, but it is those acute violations, critical violations or out of services ranks that will build up in more than just one area and rate you down to an unsatisfactory.”

According to Smith, satisfactory and conditional ratings that are improvements to a prior rating will take effect immediately when issued from FMCSA headquarters. However, Conditional or Unsatisfactory ratings that are a downgrade from a currently held rating will go into effect on day 46 for Passenger or Hazardous Material Carriers and day 61 for all other carriers. This means a Passenger Motor Carrier has only 45 days to improve the UNSAT rating or they must cease operations on day.

“Do not ride those 45 days out because there’s a lot of improvements that will have to be made and you’re going to have to show the improvements that you plan on making and ensure that they are effective so that you can get that rating upgrade,” Smith said.

The FMCSA has two methods to upgrade a rating. The 385.15 is a petition for review sating that a rating was issued in error, the violations do not exist and requesting an upgraded rating. The FMCSA can deny that petition if a carrier does not present compelling enough evidence to be granted a hearing. If a rating is denied, a carrier may then appeal that rating through the court of appeals. 

Carriers may also request a 385.17 process, wherein the motor carrier wishes to correct any violations discovered and continues to operate in a safe manner. 

Any 385.17 requests must be made in writing and submitted to the FMCSA Division office. Within this request, the carrier must submit a Safety Management Plan (SMP) which includes a Corrected Action Plan (CAP). The carrier will then undergo a Pre-Operational Assessment to verify that those corrective actions outlined in the SMP were in fact implemented. The carrier May then undergo investigation within 60 days of upgrade to verify changes made were sufficient for compliance.

“That may seem like it is a lot of work, and it is, but it’s so much better than an unsatisfactory rating, because once that takes effect, it’s a whole new ballgame,” Smith said.

Once an unsatisfactory rating goes into final effect, the carrier will have to reapply for operating authority and attempt to prove that they are fit, willing, and able to operate as a motor carrier. 

Reapplication operating authority must be completed on paper and submitted directly to the Motor Carrier Enforcement Division (MCE) for assessment. Once approved by MCE, the application is sent back to the Registration Division to begin the authority process. It can then post for public comment, etc. 

“It’s a very extensive, very detailed process you do not want to deal with because this process takes months to complete,” Smith said. “It will help tremendously if you get that process done in the first 45 days. Make your life easier and follow the guidelines.”

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