The University of Michigan Transportation Research Institute study of the CSA enforcement system finds that while most elements are effective, improvements are still needed. The UM Transportation Research Institute prepared an in-depth study of the 30-month field test of CSA. The Institute found that the new system worked better than the old SafeStat system, improved carrier behavior and is more effective, as it reached more carriers.
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 Federal Motor Carrier Safety Administration (FMCSA) has revised the DOT regulations to establish new minimum federal standards for States’ issuance of commercial learner’s permits (CLPs). At the same time, it modified some requirements relating to commercial drivers licenses (CDLs). Among the provisions:
• A CLP holder will have to meet virtually the same requirements as those for a CDL holder, and will be subject to the same driver disqualification penalties.
• States will be required to check FMCSA databases and verify driver social security numbers of CLP applicants (most already do the latter), to recognize each others’ CLPs, and to create a CDLIS (Commercial Driver’s License Information System) record for each CLP issued.
• The CLP is to be issued for 180 days after passage of the general and endorsement knowledge test, and may be renewed for another 180 days without retaking the test.
• A CPL holder must wait at least 14 days to take the CDL skills test.
• A CDL may not be issued for more than 8 years (states may lower that period).
• States will be required to use the FMCSA’s endorsement and restriction codes as licenses are next issued or renewed.
• Testing in languages other than English is prohibited.
Rejecting comments that larger carriers could be unfairly penalized on a proportional or violation-per-driver, the FMCSA added a new ‘‘acute violation’’ to the DOT Safety Ratings process-- knowingly allowing operation of a CMV [Commercial Motor Vehicle] by an employee who does not have a current CLP or CDL with the proper class or endorsements, or in violation of any restriction. To comments regarding availability of information about drivers, the agency replied, “Carriers are in the best position to determine that their own drivers are properly licensed. Implementation of a central database for monitoring and notifying carriers of status changes to CDL holders is beyond the scope of this rulemaking.”
The final rule is effective July 11, 2011, but some of the changes have different effective dates. The FMCSA's release is available at 76 Fed. Reg. 26854 (May 9, 2011).
Roadcheck 2011, the Commercial Vehicle Safety Alliance’s ("CVSA") 72-hour safety blitz, is scheduled for June 7-9, 2011. CVSA sponsors Roadcheck with participation by the Federal Motor Carrier Safety Administration, Pipeline and Hazardous Materials Safety Administration, Canadian Council of Motor Transport Administrators, Transport Canada, and the Secretariat of Communications and Transportation (Mexico).
Roadcheck is the largest targeted enforcement program on commercial vehicles in the world, with approximately 14 trucks or buses being inspected, on average, every minute from Canada to Mexico during a 72-hour period.
Each year, approximately 10,000 CVSA-certified local, state, provincial and federal inspectors at 1,500 locations across North America perform the truck and bus inspections.
During the 2010 Roadcheck event, CMV enforcement conducted 65,327 inspections across the U.S. Of those, almost 49,000 were Level 1. Vehicle compliance rates were about 80 percent and drivers had a 95.6 percent pass rate. Driver compliance rates in 2009 set a record at 95.7 percent.
The primary causes for placing vehicles and drivers out of service continue to be brakes and logbooks, respectively.
CVSA is made up of local, state, provincial, territorial and federal motor-carrier safety officials and industry representatives in the U.S., Canada and Mexico.
The Federal Motor Carrier Safety Administration proposed its plan for a three-year pilot program in which Mexican and U.S. carriers can provides long-distance services between 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 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
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.
According to FMCSA Administrator Anne Ferro, Mexican trucks will temporarily be equipped with electronic recorders. Ferro states that this is the only way the FMCSA can ensure that the trucks are monitored.
Ferro, who spoke to trucking executives gathered during the annual meeting of the Truckload Carriers Association, acknowledged that the subject has been a flashpoint among carriers who do not support the idea of the U.S. spending taxpayer money on equipment for Mexican trucks.
She explained that under the North American Free Trade Agreement ("NAFTA"), the U.S. cannot require Mexican carriers to do anything that U.S. carriers are not required to do, but the agency still must provide a way to monitor those carriers for compliance with both the hours of service rules and the cabotage rules that restrict freight hauling between points in the U.S.
That program cost about $250,000 and the budget for the EOBR program is between $500,000 and $700,000, she said.
FMCSA's decision to install the electronic monitors is in light of the agreement to reopen the border to long-distance trucking is key to getting Mexico withdraw the more than $1 billion in tariffs it has levied on U.S. producers in retaliation for shutting down the prior program.
Ferro said the agency will publish its proposal for the border opening in a matter of weeks. At that point the public will have a chance to comment, before the deal is made final.
Border Program Concept
The concept for the border opening envisions a reciprocal, phased-in program, in which Mexico initially will reduces its tariffs by half. The rest of the tariffs would be suspended when the first Mexican carrier is granted operating authority.
The concept contains three elements: pre-operations vetting, monitoring of operations and communications to the public and Congress. Neither hazmat carriers nor buses would be permitted.
Pre-operations vetting would include an application process in which the number of participants in the first phase of the program would be limited to ensure oversight, subject to agreement with Mexico.
Included in the vetting would be are a pre-authority safety audit in which the agency would review the Mexican carrier's safety management program and the records of drivers who would be crossing the border, including their Mexican federal and state records. The drivers would be tested for English proficiency and knowledge of U.S. traffic laws. Mexican carriers' safety performance in Mexico would be reviewed, and the audit would include inspections of the trucks for U.S. safety and emissions compliance.
The "operations" component of the Border Program Concept provides for inspections - including inspections every time a truck crosses the border, for a period of time to be negotiated - and reviews to follow up on the initial screening review. A Mexican carrier would need to clear a Compliance Review and earn a Satisfactory Safety Rating in order to get full operating authority. Also, the FMCSA could conduct compliance reviews of Mexican drug and alcohol testing facilities.
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/.
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.
The Fifth Circut Court of Appeals held a staff leasing company who hires truck drivers and assigns them to work for motor carrier clients is subject to the Motor Carrier Act exemption to the Fair Labor Standards Act ("FLSA") and, therefore, is not required to pay drivers' overtime. The FLSA requires employers to compensate employees engaged in commerce for all hours worked overt forty each week at the rate of one and one-half times their regular rate. The statute also exempts certain employers from its overtime requirements.
In
Songer v. Dillon Resources, Inc., No. 09-10803 (5th Cir. Sept. 3, 2010) the Fifth Circuit determined that the Motor Carrier Act exemption to the FLSA applied to the staff leasing company by virtue of (1) the Secretary of Transportation having jurisidction over the company and (2) the plaintiffs engaging in activities that directly affect the operational safety of motor vehicles transporting property in interstate commerce. Despite plaintiffs assertion that the staff leasing company is not a motor carrier under the jurisdiction of the Secretary of Transportation, the court held the staff leasing company, as joint employer with the motor carrier, is subject to the Secretary's jurisdiction. The fact certain plaintiffs did not travel interstate was inconsequential according to the court since the staff leasing company was engaged in interstate commerce and the drivers could reasonably have been expected to make an interstate run for the company.
A hearing was held yesterday on the Federal Motor Carrier Safety Administration's ("FMCSA") new enforcement program, CSA 2010. While there is general support for the program, some of the concerns deal with timing, data quality and funding. For example, one concern voiced by Keith Klein, executive vice president and chief operating officer of Transport Corporation of America, who spoke on behalf of the American Trucking Associations, was that under the FMCSA's current CSA 2010 system, accidents enter the system without the recognition of fault. In other words, there is no way to recognize the difference between preventable and non-preventable accidents. In response, Ann Ferro, the agency's chief, emphasized that crash data are a legitimate indicator of a motor carrier's safety performance regardless of fault. She went on to say, however, that the agency recognizes the problem of crash accountability and will analyze the data if the carrier's safety fitness rating comes into question.
Consistent with press reports, the FMCSA formally announced the revised implementation date for the CSMS portion of CSA 2010 in today’s (4/9/10) Federal Register. The highlights:
· On November 30, 2010, the FMCSA plans to replace SafeStat with the new CSMS.
· Beginning this Monday, April 12, individual motor carriers will be able to preview their performance data at http://csa2010.fmcsa.dot.gov.
· On November 30, 2010, the FMCSA is planning on: (1) Replacing its current measurement system, SafeStat, with CSMS, (2) sending warning letters nationwide, and (3) implementing a revised nationwide Inspection Selection System for roadside inspectors that will be based on CSMS rather than SafeStat.
· The nine states currently operating in the operational model test - Colorado, Delaware, Georgia, Kansas, Maryland, Minnesota, Missouri, Montana, and New Jersey - will carry out the full array of CSA 2010 interventions after the test concludes in June 2010.
· For the remaining 41 States, the new CSA 2010 interventions will be phased in during 2011.
This announcement does not affect the safety fitness determination (SFD) methodology. Changing the SFD requires rulemaking, and the FMCSA stated it will be the subject of a Notice of Proposed Rulemaking to be published for comment at a later date during 2010. While the rulemaking is in process, the FMCSA will continue to issue safety ratings in accordance with the existing rules at 49 CFR part 385 - Safety Fitness Procedures.
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