On March 5th, the FMCSA issued an order finding the Alabama Metal Coil Securement Act to be preempted because the act is more stringent than federal law but is not beneficial with respect to safety and imposes an undue burden on interstate commerce. As such, effective April 4, 2013, the state can no longer enforce the law against interstate motor carriers.
Recently, the Federal Motor Carrier Safety Administration ("FMCSA") released its 2012-2016 strategic plan, which lays out the agency's safety-focused initiatives over the next five years. The strategic plan is built around a three-pronged approach to truck and bus safety: raise the barrier to entry to the industry; enforce high safety standards; and eliminate high-risk carriers and drivers.
Among other things, the agency plans to development a smartphone application called the "SaferBus App" in order to assist consumers in selecting a particular carrier. Additionally, the FMCSA hopes to increase accessibility to its data management system. The FMCSA plans to complete rulemaking revisions to the Safety Fitness Procedures, in accordance with the CSA. Through this rulemaking FMCSA would establish safety fitness determinations based on safety data from crashes, inspections, and violation history rather than the old compliance review. The intention is to permit the FMCSA to assess the safety performance of a greater segment of the motor carrier industry with the hope of reducing large truck and bus crashes, injuries, and fatalities. The FMCSA will also work on rulemaking revisions to the Electronic On-Board Recorders for Hours of Service Drivers to require motor carriers to install and operate Electronic On-Board Recorders (EOBRs).
Further, the FMCSA will create a single comprehensive safety ranking system that covers all regulated carriers (ie, passenger, HAZMAT property, and HHG carriers, as well as shippers, including intermodal freight, brokers, drivers, and cargo tank manufacturers or repair facilities.) The Agency hopes to expand CSA and the number of carriers with SMS BASIC scores.
The FMCSA's strategic plan is available at http://www.fmcsa.dot.gov/about/what-we-do/Strategic-Plan/Strategic-Plan.aspx.
Based on analysis provided to congressional leaders, the Government Accountability Office ("GAO") found that while Federal Motor Carrier Safety Administration’s ("FMCSA") resources are limited, it could take steps to identify more "chameleon" carriers that attempt restart business after sanctions for safety violations.
Currently, the process is lengthy and involves screening applicant data against poorly performing carriers dating back to 2003, and reviewing each application. The process can take from a couple of weeks to a couple of months. However, the increased enforcement only affects buses and movers, a mere 2% of the approximately 66,000 carriers that apply for certificates every year.
While GAO acknowledged the FMCSA does not have the staff to conduct investigations on applicants, it does believes the FMCSA could use its current data screening methods more effectively. GAO derived and tested a method that can identify applicants that have chameleon attributes. It wrote an algorithm that searched the data for matching registration information, and for previously registered carriers that had a motive to evade detection, such as a history of safety violations. GAO said it identified 1,136 new applicant carriers in 2010, an increase from 759 in 2005. These carriers were three times more likely than other new carriers to be involved in a severe crash, GAO found.
GAO recommended the FMCSA develop a system to screen applicant data against carriers that have chameleon attributes, and apply it to all applicants. It also recommended that the agency strengthen its new entrant safety assurance program by training auditors to identify chameleon carriers.
FMCSA said it will implement the recommendations, although it is not clear when.
The Federal Motor Carrier Safety Administration ("FMCSA") announced planned improvements to the implemented in December 2010 as part of the agency’s Compliance, Safety, Accountability initiative. A preview is currently available to motor carriers and law enforcement. During this data preview period, FMCSA requests comments on the possible impact of the changes. To comment, go to www.regulations.gov; the docket number is FMCSA 2012-0074. The changes will be available to the public in July 2012.
FMCSA says the SMS improvements are based on ongoing analysis and feedback from enforcement personnel, the motor carrier industry and other stakeholders, and are designed to more effectively identify and prioritize high-risk and other unsafe motor carriers for enforcement interventions designed to reduce commercial motor vehicle crashes and hazardous materials incidents.
FMCSA will provide motor carriers with the ability to preview how the improvements impact their individual safety data in SMS. These improvements include:
• Changes to the SMS methodology that identify higher-risk carriers while addressing industry biases;
• Better applications of SMS results for agency interventions by more accurately identifying safety-sensitive carriers – such as carriers transporting people and carriers hauling hazardous materials – so that such firms can be selected for CSA interventions at more stringent levels; and
• More specific fact-based displays of SMS results on the SMS Website.
In the recently released notice of proposed rulemaking, the FMCSA proposed changing its procedures in several areas affecting truck lines, intermodal equipment providers, brokers, freight forwards and hazmat proceedings. The proposed rule would clarify that paying the full civil penalty in an enforcement proceeding would not give the entity the ability to avoid admitting liability.
Additionally, the FMCSA proposes the ability to review out-of-service orders before they go into effect on reincarnated operations that have a history of rule violations, along with consolidating the records of reincarnated entities together with that of the predecessors'.
The notice was posted in the Federal Register on December 13th. Comments are due by Jan. 12, 2012.
Generally, the MCSAC will provide counsel on 16 separate issues, ranging from a mechanism for showing the log to the inspecting officer to data security and certification of the recording devices.
The committee, a panel of 19 officials from the industry, the enforcement community and labor and safety advocacy groups, has been working on the issue for months at the FMCSA's request. The FMCSA is not bound by the committee's recommendations, but is closely involved in the deliberations among the members.
The EOBR rule is for the time being in legal limbo. FMCSA has decided it will not appeal the decision handed down by the U.S. Court of Appeals for the 7th Circuit which vacated the rule that was schedule to take effect next June. Instead, it will address the court's concerns about driver harassment in a final rule.
The rule would affect some 5,700 interstate carriers, the agency has estimated. It is the precursor to a much broader mandate that will cover practically all carriers, probably several years from now.
Carriers should be aware that their drivers will continue to be required to keep a copy of their medical certificate with them for at least another year (in addition, carriers are required to keep a copy in their file and submit a third copy to the applicable state licensing agency). The medical certificate possession requirement was due to end on January 30, 2012, but the Federal Motor Carrier Safety Administration (“FMCSA”) says it must give states additional time to get an automated electronic tracking system in place. The planned system will be designed so that drivers can submit their certificate to a state licensing bureau, which will then add the applicable medical data to the Commercial Driver Licensing Information System database. Roadside enforcement officials will then have direct access to this database. Unfortunately, it seems many states will be unable to get their data together in time to meet the original 2012 deadline so the FMCSA has extended it until January 30, 2014.
An analysis of the CSA enforcement system found that it needs improvement but that most elements are working well. The University of Michigan Transportation Research Institute conducted a 30-month field test of CSA, concluding that the system worked better than SafeStat, improved carrier behavior, and reached more carriers.
However, the study indicated that the FMCSA needs to make adjustments to two of the seven Behavior Analysis and Safety Improvement Categories (BASICs), the Cargo-Related and Driver Fitness BASICs, which show a weaker relationship to crash risk than do other BASICs. The institute also found that there was a lag time in measureable safety performance improvement after investigations.
However, the Federal Motor Carrier Safety Administration ("FMCSA") needs to make change in two of the seven Behavior Analysis and Safety Improvement Categories ("BASICs"). according to the report, both the Cargo-Related and the Driver Fitness BASICs do not have as strong of a correlation to crash risk as the other BASICs. The study notes that the agency has a study under way that could lead to improvements.
The Institute's report also indicated that there is a delay between measureable safety performance improvement after investigations, and that carriers with serious safety problems showed improvement rates similar to those in the control group.
The FMCSA expects to address these issues in its upcoming proposal to establish safety fitness determinations based on CSA data, rather than on Compliance Reviews. The proposal is scheduled to be published in February.
The draft safety title of pending legislation to reauthorize the federal highway program lays out a broad agenda for the Federal Motor Carrier Safety Administration ("FMCSA"). Many of the dozens of provisions already are in development, but the draft does give the agency additional authority in a number of areas.
It would strengthen FMCSA's ability to revoke the registration of a carrier, forwarder or broker that has reincarnated itself under a different identity after having been sanctioned for safety violations. Carriers and managers found to have repeatedly avoid compliance requirements also would be subject to sanctions.
It would toughen barriers to entry by requiring potential carriers to submit a comprehensive safety management plan and pass a written exam covering safety regulations. And it would require the agency to conduct a safety review of a new entrant within a year of registration.
The draft also calls for a study of how detention time affects hours of service violations and driver fatigue. The study would be conducted by the Motor Carrier Safety Advisory Committee, the enforcement community and labor and safety advocacy groups to which the agency turns for feedback and ideas on industry issues., a panel of officials from the industry.
There has been some push-back by the Senate regarding the Mexico Pilot Program, proposed by the Federal Motor Carrier Safety Administration ("FMCSA") . In a letter to DOT Secretary Ray LaHood, U.S. Trade Representative Ron Kirk said the administration's pilot program will endanger U.S. companies' competitiveness.
Senator Rockefeller, who chairs the Senate Commerce Committee, also said he's not convinced that the plan will ensure safety, and he objects to having the FMCSA sponsor electronic onboard recorders for Mexican carriers.
FMCSA recently spelled out the details for three-year pilot program in which Mexican and U.S. carriers could offer long-distance service into each country. The pilot sets up a vetting and enforcement program to ensure the safety of Mexican trucks, with the goal of evaluating their safety performance, based on inspections at the roadside, ports of entry and weigh stations, and on traffic enforcement. Hazardous materials and passenger carriers will not be included in the program.
The program is the result of an agreement between President Obama and President Calderon of Mexico to resolve the long-standing dispute over cross-border trucking. Once the program is in place, Mexico will start to suspend the tariffs it levied when the Congress killed an earlier version of the pilot.
Rob Abbott, vice president of safety policy at American Trucking Associations, applauded the move stating that there is confusion in the medical community about sleep apnea because the Medical Review Board made recommendations several years ago and the agency has not yet acted on them.
The Medical Review Board's recommendations on several driver health concerns can be found at www.fmcsa.dot.gov.
The pilot sets up a vetting and enforcement program to ensure the safety of Mexican trucks, with the goal of evaluating their safety performance, based on inspections at the roadside, ports of entry and weigh stations, and on traffic enforcement. Hazardous materials and passenger carriers will not be included in the program.
The program is the result of an agreement between President Obama and President Calderón of Mexico to resolve the long-standing dispute over cross-border trucking. FMCSA will publish the details of the program in the Federal Register on Thursday and will take comments for 30 days.
Once the program is in place, Mexico will suspend the tariffs it levied when the Congress killed the earlier version of the pilot. In 2009 Mexico imposed import tariffs on about 89 U.S. agricultural and industrial products, and in 2010 it revised and expanded the list to 99 products.
In general, the program will set up a three-stage process for Mexican carriers that wish to participate. FMCSA said it does not know how many Mexican carriers will join. The last program attracted 775 applications, but only 29 of those carriers completed the paperwork and were vetted.
The process will start with the Mexican carrier filling out a 28-page application covering details of its operations, including affiliations, insurance, safety program and compliance with U.S. laws.
The application will be followed by a pre-authorization safety audit, in which FMCSA reviews the carrier's safety management system and inspects the specific trucks that will cross the border.
The safety management system would have to include such elements as a drug and alcohol testing program and a way to verify hours of service, insurance and driver qualifications, among numerous other requirements. Trucks that pass the inspection will get a CVSA decal.
If the carrier passes the audit, it would receive provisional operating authority and could commence cross-border operations. Provisional authority will last for 18 months. After that period, if the carrier has no pending enforcement or safety improvement actions and has cleared a compliance review, it is eligible for permanent authority in the pilot program.
Mexican carriers that have permanent authority in the pilot program would be eligible to convert that to standard permanent authority after the three-year pilot program is done.
For the first three months of the provisional authority stage, Mexican trucks and drivers will be inspected each time they enter the U.S. That period will be extended if the carrier does not get at least three inspections.
After three months and clearing the audit, the carrier will get the same inspection rate as the rest of the trucks now engaged in cross-border, commercial zone trucking. To be eligible for this status, the carrier must have an out-of-service rate at or below the U.S. average and its Safety Management System scores must be below the FMCSA threshold.
If instituted, the pilot program would run for three years from the first grant of provisional authority, unless FMCSA gathers enough data to make a decision about the program before that time. The agency said it could stop the program earlier if continuation is not consistent with the pilot's goals.
FMCSA will publish on its website and in the Federal Register comprehensive data on the Mexican carriers in the program, including their names, their audit performance, the trucks that have been cleared, the results of roadside inspections and the number of trips. The agency will track each carrier's data to gauge compliance.
The U.S. and Mexican departments of transportation will establish a monitoring group to supervise the administration of the program. In addition, FMCSA is establishing its own advisory committee, a subcommittee of the Motor Carrier Safety Advisory Committee, for suggestions. And the agency will make annual reports to Congress.
The FMCSA will enforce the current rule taking effect on June 4, 2012 from that date until the compliance date of the new rule. Motor carriers are being encouraged to submit comments to the proposed rule on or before April 1, 2011.
The Federal Motor Carrier Safety Administration ("FMCSA") released the Carrier Safety Management System (“SMS”) over the weekend meaning that CSA safety information is now available to the general public. The following disclaimer pops up when you search for carrier safety information on the website (http://ai.fmcsa.dot.gov/SMS):
USE OF SMS DATA/INFORMATION
The Federal Motor Carrier Safety Administration’s (FMCSA) Safety Management System (SMS) is an automated data system used by FMCSA to monitor motor carrier on-road safety performance. FMCSA analyzes safety performance by grouping carrier data in the SMS into seven Behavioral Analysis and Safety Improvement Categories (BASICs) which are, in turn, used to identify potential safety problems with individual carriers and determine when an enforcement intervention might be appropriate.
The data and BASICs are used by the enforcement community to prioritize investigations and roadside inspections. The SMS data system is not a Safety Fitness Determination (SFD), is not a Safety Rating pursuant to 49 C.F.R. Part 385, and does not represent FMCSA’s final determination regarding the accuracy of the data contained in the SMS.
Use of the SMS data system for purposes other than those identified above may produce unintended results and inaccurate conclusions. FMCSA highly recommends that all motor carriers periodically review the SMS data system and when necessary verify the accuracy of their SMS data through DataQs, an electronic data correcting system in which carriers can request a data review. The DataQ system is available online at http://dataqs.fmcsa.dot.gov/.
Officials surmise that the reason so few carriers have researched the program is because some percentage of the active carriers simply are not in the information loop, or are too focused on their daily affairs to take note of a deadline that, until now, has been many months away.
FMCSA Administrator Anne Ferro noted that even though CSA 2010 will start in December, the roll-out will take place gradually over the next year as the states get their enforcement people trained in the new system. At some point during the first half of the year the agency will publish a proposal in order to determine safety fitness under CSA.
When the program is rolled out in December, the FMCSA will start sending warning letters to carriers whose data does not meet standards and the agency will start determining which deficient carriers will get field interventions.
Despite some misunderstadning, the agency is not generating a public driver scorecard, rating or ranking. Also, CSA will not lead to mass CDL suspensions, and the agency has no plans to restrict the ability to drive based on physical characteristics such as weight, body mass index or neck size.
We reported last month that the FMCSA was about to open a web site allowing motor carriers to obtain a preview of their performance in the Behavior Analysis and Safety Improvement Categories ("BASICS") of the new CSA 2010 (now simply "CSA") FMCSA enforcement initiative.
The site is now open and every motor carrier should take advantage of the opportunity to check the information before it becomes available to the public. To do so, carriers will need an FMCSA-issued “U.S. DOT Number Personal Identification Number (PIN).” A PIN number can be obtained from the FMCSA’s Safety and Fitness Electronic Records (SAFER) System web site at http://safer.fmcsa.dot.gov. Click on the link in the text “Click here to request your Docket Number PIN and/or USDOT Number PIN” and follow the instructions to obtain a USDOT Number PIN. There is no charge but a valid credit card is required as verification of the carrier's electronic signature. Further information on the web site is available from the FMCSA at http://csa2010.fmcsa.dot.gov/Documents/Data_Preview_Guidance.pdf .
Public availability (for all except the Crash Indicator) is scheduled for December 2010. Motor carriers should be sure to check the site to be aware of, and take steps as needed to deal with, their motor carrier safety ratings before then.
Ultimately, the FMCSA determined that the registrant-only USDOT numbers were having an adverse affect on its ability to track motor carriers' safety violations. In too many cases, law enforcement personnel were being presented with registrant-only USDOT numbers during inspections and crash investigations. As a result, the data that should have been assigned to the record of the offending motor carrier operating the CMV was being erroneously assigned to the registrant-only USDOT number - a number that should have no safety events assigned to it.
The Federal Motor Carrier Safety Administration (“FMCSA”) is now providing motor carrier companies with access to its safety database, which can be used to screen applicants for driving positions. The pre-employment screening program gives employers five years of an applicant's crash history and three years of inspection history. Note that a company must receive the permission of the applicable driver before gaining access to the crash and inspection history database. The information found on the database will be compiled from the Motor Carrier Management Information System and will include the same information currently used by FMCSA staff and state police for enforcement purposes. Drivers will have access to the information as well. While the program is voluntary, trucking insiders believe that use of the FMCSA’s driver database could become a standard industry practice in short order.