A new safety compliance program for the Nation’s trucking and busing employers, and the drivers they employ, will result in far more inspections — and likely more violations and penalties — than ever before, when the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration implements its “Comprehensive Safety Analysis 2010” (CSA 2010) in July 2010. FMCSA touts CSA 2010 as a “new national safety initiative to more effectively identify and quickly intervene with large truck and bus drivers and carriers who are not complying with safety rules.” The new program will result in more “interventions,” i.e., more warning letters, roadside inspections, on-site inspections at a carrier’s place of business, as well as more serious actions, such as notices of violations, notices of claims (penalties) and operations out-of-service orders.
The DOT Agency overhauled its current compliance review program because it believed that the program failed to focus sufficient attention on individual problem drivers, and allowed them to elude safety rules by “jumping” from one employer to another, leaving subsequent employers unaware of the drivers’ poor safety records. The CSA 2010 approach will hold both motor carriers and their drivers responsible for safety and performance, but will directly monitor the safety and performance of individual drivers and address problem drivers based on their records across multiple employers. FMCSA states that the goal of CSA 2010 is to achieve a greater reduction in large truck and bus crashes, injuries and fatalities.
CSA 2010 consists of three key elements: Measurement, Safety Evaluation and Intervention.
The CSA 2010 Safety Measurement System (SMS) is more comprehensive than the current system and is better able to pinpoint safety problems and improve identification of high-risk behavior, FMCSA claims. SMS will focus on seven key categories, known as Behavioral Area Safety Improvement Categories (BASICs), to quantify performance and to target particular employers and problem drivers for investigation. The BASICs, and the corresponding FMCSA regulatory parts of Title 49, Code of Federal Regulations, include:
- Unsafe driving (Parts 392 and 397) – drivers’ dangerous or careless operation of commercial motor vehicles (CMVs).
- Fatigued driving (Hours-of-Service) (Parts 392 and 395) – operation of CMVs by drivers who are ill, fatigued, or in non-compliance with the hours-of-service regulations, including violations of log book regulations.
- Driver fitness (Parts 383 and 391) – operation of CMVs by drivers who are unfit to operate a CMV due to lack of training, experience, or medical qualifications.
- Controlled substances/alcohol (Parts 382 and 392) – operation of CMVs by drivers who are impaired due to alcohol, illegal drugs, and misuse of prescription or over-the-counter medications.
- Vehicle maintenance (Parts 393 and 396) – CMV failure due to improper or inadequate maintenance.
- Cargo related (Parts 392, 393, 397 and hazardous materials) – CMV incident resulting from shifting loads, spilled or dropped cargo, and unsafe handling of hazardous materials.
- Crash indicator – histories or patterns of high crash involvement, including frequency and severity, based on information from state-reported crashes.
A carrier’s score for each BASIC component will depend on the number of adverse safety events (violations related to that BASIC or crashes), the severity of violations or crashes, and when the adverse safety events occurred (more recent events are weighted more heavily). After a score is determined, the carrier is placed in a peer group with carriers of similar size or number of inspections. Percentiles from 0 to 100 will be determined by comparing the BASIC scores of the carrier to the scores of others in the peer group, with 100 indicating the worst performance.
A Driver Safety Measurement System will quantify CMV driver performance in terms of each of the BASICs, using available roadside performance data, thus allowing FMCSA safety investigators to see an individual driver’s safety record across employers. It also will allow investigators to examine drivers who have been cited for severe driver violations in conjunction with interventions involving carriers and may result in Notices of Violations and Notices of Claims based on driver violation histories across present and past employers.
Carriers will have access to driver data for purposes of making employment decisions. FMCSA’s Driver Information Resource will correlate roadside inspection and crash data with individual drivers. Resulting “Driver Profiles” are scheduled to be made available to carriers (and drivers) through the Agency’s “Commercial Driver Pre-Employment Screening Program” by the end of 2009.
Carrier SMS data will become generally available to carriers in the summer of 2010. As of now, only carriers in states where the program is being tested — Colorado, Georgia, Missouri and New Jersey, joined this year by Minnesota, Montana, Kansas and Maryland — have access to the data.
The SMS will enable FMCSA to evaluate the safety performance of motor carriers, resulting in “Safety Fitness Determinations,” such as “Unfit”, “Marginal” or “Continue Operations.” The ratings would be based on carriers’ on-road safety performance data, as well as major safety violations found as part of an investigation. The ratings would be updated on a monthly basis. The agency says that these determinations will maximize the use of data collected during approximately 3 million roadside inspections performed annually, create carrier accountability for sustained unsafe operations and performance, and assess carriers based on current safety performance.
Thresholds will be established for intervention purposes. If one or more of a carrier’s BASIC percentiles exceeds a threshold, the carrier will become a candidate for intervention.
Investigative interventions include targeted roadside inspections, off-site investigations, focused on-site investigations (on one or more BASIC), and comprehensive on-site investigations. In test states, FMCSA reports that approximately 30 percent of investigations are off-site, 45 percent are focused on-site, and 25 percent are comprehensive on-site.
Corrective interventions may commence with a warning letter for carriers with “emerging problems”, giving a carrier the opportunity to review its performance and take corrective steps without further agency intervention. Four thousand letters have been sent in test states; they have recipients’ attention, FMCSA reports.
“Follow-on corrective actions” include a cooperative safety plan, a notice of violation, a notice of claim, or an operations out-of-service order. FMCSA expects these varied intervention tools to reach more carriers and influence safety compliance earlier. It reports that investigations per investigator have met or exceeded planned increases in test states.
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In addition to discovering violations and defining problems, FMCSA expects the new SMS interventions will help motor carriers understand the root causes of their safety problems and show how to fix or prevent those issues from arising again. FMCSA hopes interventions will yield a more efficient and effective enforcement and compliance process, influence compliance sooner through more flexible tools, and match intervention with the carrier’s level of safety performance.
What should employers do now? FMCSA suggests several things: learn more about CSA 2010, understand the BASICs and review the applicable regulations, such as drug and alcohol testing requirements, check the implementation schedule and keep abreast of the latest agency news. Also, check and update carrier records and conduct a self-audit. Review inspections and violations histories for the past two years, correct outstanding safety problems immediately, and educate drivers on how their performance affects their own driving record and the safety assessment of the carrier.
In addition to these agency recommendations, carriers should review safety programs, as well as the effectiveness of their hiring procedures and employee policies and practices in obtaining and retaining safe drivers. Jackson Lewis attorneys are available to assist.