The ATA is scheduled to defend one of its member fleets this month before the U.S. Court of Appeals. At first glance, the case appears to address an important precedent in determining how far FMCSA may extend its power to use supporting documents, defined as time-and-date-stamped receipts, to verify the accuracy of driver logs.
But some broader issues lie just beneath the surface. First, does the carrier's on-road safety performance merit a deficient safety rating? Second, why is the industry willing to risk its reputation to perpetuate the game of shuffling time/date information to hide hours-of-service violations?
In its court brief, ATA describes the fleet as: “…a motor carrier whose satisfactory safety rating was downgraded to Conditional solely because the carrier did not maintain toll receipts — documents the carrier did not use to verify driver logs — along with the driver logs and indexed to each driver by name. Instead, the carrier maintained the toll receipts for other business reasons in files that were organized by month, instead of by driver.”
To determine whether such onerous actions were warranted, I decided to analyze the carrier's safety history using information provided by FMCSA. Here's what I found.
The firm is a small 20-truck fleet that operates primarily in the Middle Atlantic and Northeastern states.
During a November 2000 Compliance Review, it received a rating of “unsatisfactory” on two of five factors: hours of service and crash rate.
The fleet's recordable crash rate of 1.66 per million VMT is twice the national average. Two of the seven crashes noted in the profile include “ran off road” or “overturn” in the description.
Driver out-of-service rate is 14%, nearly twice the national average.
In the 28 inspections since the compliance review, drivers were placed out of service on 3 occasions and cited on 6 other occasions for log or hours-of-service violations.
Eight driver inspections were initiated by, or included, traffic enforcement violations; in seven of these instances, the violation was speeding.
Given this history, it's understandable why the carrier has a SafeStat score of 321.92 and is currently assigned the highest possible ISS value of 100, placing it in the “inspect” category and rightly ensuring closer scrutiny.
ATA's position is that FMCSA's decision to downgrade the fleet's safety rating is “…inconsistent with FMCSA and predecessor policy statements, regulatory guidance and other recent regulatory publications, which have confirmed that carriers need not retain all of the business records that could possibly be used to verify drivers' logs.”
The court brief indicates that the carrier produced the toll receipts in question during the November 2000 compliance review. The FMCSA enforcement officer apparently cited the carrier for failing to retain all supporting documents with each driver's log.
While ATA's position may have merit, it's disconcerting that it has chosen to put the spotlight on a fleet with such a poor safety rating to make its point.
Both sides are using this case to draw a line in the sand re: the use of time/date information to verify log accuracy. In the absence of onboard recorders, such legal maneuvering is necessary by both sides to reinforce their respective cat-and-mouse strategies. Should FMCSA prevail, they will be emboldened to require cross-matching of all time/date information to the appropriate driver log. Should ATA prevail, the agency would be powerless to ding hours-of-service violators who cover their tracks by keeping non-indexed time/date information in one big pile.
One remedy is to have our industry lead hours-of-service reform, endorse onboard recorders and eliminate the need to cross-match supporting documents. We should adopt the kind of best-practice standards that ensure absolute compliance and promote fatigue management.
Jim York is the manager of Zurich North America's Risk Engineering Team, based in Schaumburg, IL.