Cover Story
FMCSA takes enforcement to the digital age in 2010

By Jami Jones
Senior editor

 

With technology morphing the way we live our lives at warp speed, it’s no big surprise that the Federal Motor Carrier Safety Administration has decided to go high-tech with its compliance enforcement.

Currently, the odds of being hit with any substantive on-site compliance review are somewhere between slim and none. Because of the lack of staffing and the cumbersome nature of plowing through mountains of paperwork, each year FMCSA officials are able to conduct compliance reviews on fewer than 2 percent of the motor carriers in the U.S.

Enter the technology knight on a white horse – CSA 2010 – short for Comprehensive Safety Analysis 2010.

Back in 2004, FMCSA officials started developing a data-driven system of analyzing all inspection reports on motor carriers and drivers to identify trends of non-compliance.

The mega database system, with all of its algorithms and programs, will spit out monthly safety ratings for companies and drivers. Those who crop up with numerous violations – ranging from the not-so-serious to out-of-service – will pop up on FMCSA’s compliance radar.

That doesn’t necessarily mean you’ll get a full-blown on-site compliance review. Depending on the severity of the rating, you could get anything from a letter telling you to straighten up your act to the dreaded on-site review that likens to an IRS audit.

Companies will have a chance to get it together and report back to FMCSA to keep a good safety fitness rating. There are three proposed fitness ratings in the 2010 program: “unfit,” “marginal” and “continue to operate.”

The overall concept is simple enough but, as with anything, the devil is in the details – and with CSA 2010, there are a ton of details.

The program can be broken down into the data, the math behind the number, enforcement, safety fitness determinations, and the possible hiccups that motor carriers and truckers could encounter along the way.

The following is the first in a series of articles that will explain the ins and outs of the new enforcement program bearing down on the trucking industry. 

The data

It seems like nowadays everywhere you turn, some group, business or government entity is collecting data on you.

Credit agencies record your every financial move. Grocery stores track your every purchase with their “shopper cards.” And now FMCSA is going to collect every single mark made on your inspection reports – for both the company and the driver – and from crash reports.

FMCSA will calculate the safety performance of motor carriers – which includes owner-operators running under their own authority – based on seven Behavioral Analysis and Safety Improvement Categories. Those seven categories, dubbed BASICs, and the federal regulations they relate to are:

Unsafe driving (Parts 392 and 397);
Fatigued driving (Parts 392 and 395);
Driver fitness (Parts 383 and 391);
Controlled substances/alcohol
(Parts 382 and 392);
Vehicle maintenance (Parts 393
and 396);
Cargo related (Parts 392, 393, 397
and hazmat); and
Crash indicator.

Data from those seven areas will be collected from inspections and crash reports.

Things will change dramatically in how information from inspection reports is handled. While the current system only calculates a compliance rating based on “out-of-service” and moving violations, that won’t be the case with CSA 2010. All violations included on inspections will be entered and considered– no matter whether it was an out-of-service violation or not.

Another significant change from the current enforcement system is that FMCSA is aiming to hold companies and drivers equally accountable for their roles in safety and performance. So CSA 2010 will also be collecting data on individual drivers.

Records on individual drivers will contain data gleaned from inspection and incident reports. The data will follow the driver no matter how many companies he or she works for.

Access to a driver’s profile will not be restricted to safety inspectors, who will have roadside access to those records. Motor carriers are also going to be allowed to review a driver’s record in the pre-employment screening process. That access will start in December.

FMCSA’s goal with the new driver data collection is to target enforcement on individual drivers with serious violations, such as driving while disqualified, driving without a CDL, making a false entry on a medical certificate, and chronic hours-of-service violations.

The system will hold 24 months of citation and violation data on motor carriers and 36 months for drivers.

All of this data will be housed and maintained by a third-party vendor, not FMCSA. NIC Technologies based in Olathe, KS, was awarded the contract in mid-October.

According to FMCSA, if a motor carrier wants to review a driver profile, they must obtain a privacy release from the driver. Drivers who want to review their own profile must contact the third party vendor or file a Freedom of Information Act request with FMCSA.

NIC’s press release announcing the awarding of the contract stated that the company anticipates charging motor carriers a subscription fee of $100 per year for access to driver profiles and a $10 transaction fee for each record pulled. Drivers will not be charged the annual subscription fee; however, additional fees will be charged for fax or mail requests.

The math

Truckers know that getting cited for having improper window tint isn’t nearly as serious as falsifying logbooks and violating hours of service.

Fortunately, the Federal Motor Carrier Safety Administration officials claim they understand that, and all inspection violations will not be treated as equal in the new CSA 2010 enforcement program.

Without getting into a bunch of computer or mathematical jargon, simply put, some violations will do more damage to a motor carrier’s or driver’s profile than others.

For example, old violations will not hurt your record as bad as newer ones. Violations shown to create a bigger risk of crash involvement will count heavier.

FMCSA also recognizes that even good drivers or good companies may have a bad day with a horrible inspection. The data will be limited as to how much damage one poor inspection can do to a company’s or driver’s record.

The agency is also mindful of an inspection with a bunch of minor violations – like getting four window tint violations on one inspection, one for each window.

In cases like that, FMCSA officials have put a limit on the number of violations from the cited reg that will be counted against the company or driver.

Owner-operators running under their own authority know that by nature they have fewer inspections every year than a mega carrier. And simple percentage math tells you that one marginal inspection out of a dozen is going to hurt a lot more than one marginal inspection out of a hundred.

That’s another thing that FMCSA officials recognize. So, once all of the violations are weighted for severity and time, limited on repetitive violations and all of that, the end result for a motor carrier will be compared against motor carriers that are about the same size with the same number of inspections.

For the owner-operator, that means your level of compliance will be compared to other one-guy, one-truck or relatively smaller outfits that get inspected about as often as you do.

In the end, FMCSA officials set up the system so it will give a good snapshot of overall compliance when compared to similar motor carriers.

The enforcement

You could probably flip a coin to decide which scares a trucker more – a full-blown, on-site compliance review or an IRS audit.

Neither one is a pleasant experience. They are both lengthy, burdensome processes.

The on-site compliance review – currently pretty much FMCSA’s only tool in its enforcement arsenal – is such an involved process that, with current staffing levels, fewer than 2 percent of the motor carriers in the country are audited each year.

That too will change with the launch of CSA 2010.

After all of the violations are entered, chewed up and spit out of the CSA 2010 Safety Management System, motor carriers will be rated in all of the BASIC compliance areas. The higher the ranking percentile, the more noncompliant the motor carrier or driver. These rankings will be updated on a continual basis.

Those rankings will help FMCSA enforcement personnel determine what method of enforcement – now called interventions – to pick. Enforcement will no longer be a one-size-fits-all scenario.

Enforcement can be triggered by:

  • One or more deficient BASICs,
  • A high crash indicator, or
  • A complaint or fatal crash.

Intervention selection is influenced by safety performance, hazardous material or passenger carrier status, intervention history and investigator discretion.

Interventions include early contact in the form of a warning letter; carrier access to safety data and measurement information (where you can see your own rating increasing, making it easier to get ahead of the problem); and targeted roadside inspections. Enforcement steps up from there with investigations, which include off-site investigations, on-site focused investigations, and on site-comprehensive investigations.

Finally, to make sure compliance is achieved and maintained, FMCSA officials implemented “follow-on” interventions. These include the following:

  • A cooperative safety plan – implemented by the carrier and voluntary. The carrier and FMCSA work together to create a plan, based on a standard template, to address the underlying problems that cause the motor carrier’s substandard compliance.
  • Notice of violation – a formal notice of safety deficiencies that requires a response. It’s a stopgap measure of sorts. The violations are bad enough for enforcement, just not bad enough for a fine. FMCSA will also use it when violations can be immediately corrected and the motor carriers are in full cooperation to fix the problems.
  • Notice of claim. This is where fines are assessed.
  • And, finally, a settlement agreement. This is a contract negotiated with the carrier that addresses the safety problem, defers or reduces penalties, or terminates enforcement proceedings.

The trick to the interventions is that FMCSA enforcement personnel can start the enforcement process anywhere along that ladder of enforcement. It does not necessarily start with a letter and progress through the steps.

The higher the risk posed by the motor carriers’ lack of compliance, the more likely they are to face stiff enforcement in lieu of a warning letter. On the flip side, if the non-compliance is not as severe, the warning letter may be all that’s needed to let the motor carriers know there is an issue, giving them the chance to fix it.

On the driver’s side of CSA 2010, FMCSA enforcement officials will be able to review a driver’s record across multiple employers. They will also be able to see drivers with severe violations when they are in the process of conducting intervention enforcement on the motor carriers the driver works for or is leased to.

If the violations and level of non-compliance are bad enough, individual drivers will face the notice of violation or notice of claim – which is the fine – just like motor carriers.

The labels

Motor carriers know the value of the current “satisfactory” safety rating. Customers get itchy when they see a “conditional” or “unsatisfactory” rating.

While the names will change, the meaning will pretty much remain the same. Under CSA 2010, motor carriers will be ranked by “continue to operate,” “marginal” and “unfit.”

The big change on this from the current enforcement scheme is that right now safety fitness determination is assigned following compliance reviews. FMCSA is planning to issue a rulemaking that will change all of that.

Where the current method relies heavily on critical and acute violations and required deficiencies in multiple areas, the new method will arrive at a safety fitness determination using all the data collected – including from roadside inspections.

It’s FMCSA’s intent for the new process to be a reflection of the motor carrier’s current compliance, and not how the motor carrier fared in compliance reviews months or even years before. LL

The rub

The new compliance enforcement program put together by FMCSA is clever in its concept that enforcement will be triggered by performance.

The way data is handled and considered, it weights behaviors that pose the greatest risks to truckers and highway safety. Ultimately, it’s about reducing the number of big truck-related injuries and fatalities even more.

The linchpin of the entire system is the data. And that is the one area raising the most concern at the Owner-Operator Independent Drivers Association.

The data is going to include all violations noted on inspection reports and crash reports.

The information entered is not limited to just convictions. Citations, warnings and inspection violations will all be included in the database and calculated to figure your safety rating.

“The fact that all violations, rather than convictions, are being entered into this system sets drivers up to be accused, tried and convicted on the roadside by enforcement personnel,” said OOIDA Director of Regulatory Affairs Rick Craig.

Craig said FMCSA officials have repeatedly been questioned about their insistence on including citations that have not been proven through some sort of legal process.

“The lack of due process for drivers to challenge the legitimacy of violations is completely irrational,” Craig said. “It flies in the face of the premise of innocent until proven guilty.”

In addition to the presumption of guilt, OOIDA is concerned about the quality of the data being entered into the system. And rightfully so.

 It is a lot of data. The carrier portion of the database will carry 24 months of inspections and crash reports. The driver profiles will contain 36 months of data.

By FMCSA’s math, the two databases contain 690,000 motor carrier profiles and 3.6 million driver profiles with data from approximately 26.2 million inspections and 730,000 crash records.

Factor in the fact that all of that data is coming in from law enforcement agencies from all around the country in states with different reporting procedures and one can’t help but wonder how accurate all of that data can be.

FMCSA has been working closely with states since 2004 to shore up reporting of violations. In 2004, less than half of the states and DC were classified as being “good” or a “green” state. A total of 14 states were rated “poor” or “red” states.

In five years, 32 states are now classified as good. But 14 remain in the fair category with five still languishing in the poor category.

Drawing from an old computer adage – garbage in, garbage out. If the data is not entered properly or not at all, it seems inevitable that motor carrier and driver compliance records may not be completely accurate.

Currently, motor carriers can challenge information contained in their safety profiles through a system called Data Qs. Craig said that most of the time, carriers find that challenging data rarely results in the error being corrected.

“FMCSA will reach out to the state that entered the information, and all it takes is for the state to reject the claim of inaccuracy. Case closed,” Craig said.

It also seems, without easy logic, that motor carriers and drivers are being treated significantly different. For starters, motor carriers only have to worry about two years worth of data. Drivers will lug around three years of inspection violations and crash reports in their records.

The enforcement and intervention process has multiple options for motor carriers. Drivers, it appears, will be limited to a notice of violation or a notice of claim (i.e., a fine).

“There has to be a simple, effective process for drivers and motor carriers to challenge erroneous information,” Craig said. “We know from years of experience that law enforcement doesn’t always get it right. Without accurate data and due process, it sets up the system to fail miserably.” LL

March/April
Digital Edition