April 1, 2015 – Safety & Compliance

FMCSA Issues Guidance on Employer Notification Systems for Driver Record Inquiries

The Federal Motor Carrier Safety Administration has issued revised guidance on using state-operated employer notification systems (ENS) for the annual inquiry and review of driving records required by 49 CFR 391.25. 80 Fed. Reg. 13069 (March 12, 2015). The guidance explains the use of state-operated ENS that provide motor carriers with a department of motor vehicle report for every State in which the driver held either an operator’s license, a commercial driver’s license, or permit when a driver is enrolled in the system. Many state driver-licensing agencies provide ENS that either automatically update requestors (push-system) on license status, crashes and convictions of laws or regulations governing the operation of motor vehicles, or allow the requestor to regularly query the record (pull-system) for this information. The guidance provides that use of these systems to check the driving record, at least annually, satisfies the requirement for an annual review of each driver’s record. This includes when a third-party is used to accumulate the records for a motor carrier.

CSA Program Challenged at Senate Hearing

At a hearing on March 4, 2015, in the Senate Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security, the Federal Motor Carrier Safety Administration’s CSA program came under criticism for lack of transparency and shortcomings in its methodology. Chairman Deb Fisher (R-NE) noted that FMCSA had issued the final 34-hour restart rule in 2013 with “complete disregard for congressionally-mandated requirements for an efficacy study on the rule’s impact.” When the study was eventually issued several months late, the chairman said the sample size was not representative of this diverse industry. In addition, she stated that serious concerns were raised about the rule’s perverse impact on safety because it pushed drivers onto the roads during morning commutes.

Chairman Fisher also stated, “In 2014, the GAO investigated the methodology behind FMCSA’s Compliance, Safety, and Accountability Program. Inaccurate CSA scores, publically available online, have cost companies contracts and raised insurance rates – all of this has occurred without a clear correlation to increasing highway safety. When confronted with these findings, FMCSA completely disregarded GAO’s recommendations. To address flaws in CSA implementation, major stakeholders, including law enforcement, requested that FMCSA remove CSA scores from public view.”

Chairman Fisher also said that she intends to author a bill to reform the FMCSA and ensure that the CSA process is more inclusive of Congress and stakeholders. The legislation will include two major principles:

  1. Guidance Review: FMCSA should complete a periodic review of its current technical and programmatic guidance and provide transparency to the public on its review.
  2. Regulatory Framework Going Forward: FMCSA must conduct a more robust cost-benefit analysis that represents carriers from a wide variety of business models. If necessary, the agency should also conduct a real-world study of the proposed regulation.

In addition, at the hearing the witness from the Government Accountability Office said the agency identified in 2014 two major challenges in the CSA program methodology. First, the Safety Management System uses violations of safety-related regulations to calculate a score, but GAO found that most of these regulations were violated too infrequently to determine whether they were accurate predictors of crash risk.

Second, most carriers lacked sufficient data from inspections and violations to ensure that a carrier’s SMS score could be reliably compared with scores for other carriers. GAO concluded that these challenges raise questions about whether FMCSA is able to identify and target the carriers at highest risk for crashing in the future. To address these challenges, GAO recommended, among other things, that FMCSA revise the SMS methodology to better account for limitations in available information when drawing comparisons of safety performance across carriers.

The FMCSA did not concur with GAO’s recommendation to revise the SMS methodology, however, because it believed that SMS sufficiently prioritized carriers for intervention. Therefore, GAO testified that the FMCSA has not taken any actions based on these recommendations.

Finally, the witness from the DOT Inspector General’s Office said that the FMCSA had taken several actions that the IG’s Office had recommended to improve CSA data quality and system development controls, but noted that “nationwide implementation of enforcement interventions remains a challenge, largely due to delays in updating software for collecting documentation and monitoring interventions.”

CVSA Publishes New Edition of Inspection Handbook

The Commercial Vehicle Safety Alliance has published a new edition of its North American Standard Out-of-Service Criteria Handbook. The April 1, 2015, edition replaces and supersedes all previous editions.
  • Part I of the handbook details violations which would place a driver out-of-service.
  • Part II identifies Critical Vehicle Inspection Items and provides direction on identifying the point at which a CMV can no longer be safety operated due to the risk of causing an accident or breakdown.
  • Part III of the handbook provides guidance for unsafe hazardous materials transportation, including conditions which fail to communicate a hazard and those which are themselves hazards.
  • Part IV establishes criteria for placing a motor carrier out of service.