As the compliance program rolls out, complaints about inspections and law enforcement actions emerge, with questions of due process looming large
In early December, the Federal Motor Carrier Safety Administration flipped the switch. The Compliance, Safety, Accountability (CSA) program’s new Safety Measurement System, in which carriers are now ranked in five public and two agency-view-only “BASIC” categories of measurement, replaced SafeStat as the primary statistical window into carrier safety. Combined with changes to the Inspection Selection System scores assigned to carriers and used by roadside inspectors to prioritize inspections, the change wasn’t exactly an immediate revolution in safety enforcement.
Rob Abbott, vice president of safety policy at the American Trucking Associations, says he’s heard far fewer complaints about the system than six to 12 months ago because FMCSA “was very responsive and made many of the changes we called for.”
Schneider National Vice President of Safety Don Osterberg says presentation of the information shows “who the problematic drivers are and where the problematic issues are. Motor carriers and drivers who have been doing the right things right will find CSA to have a negligible impact on their operations.”
“It hasn’t been the great crisis folks were prognosticating,” says Joe Rajkovacz, regulatory affairs specialist at the Owner-Operator Independent Drivers Association, “certainly not 200,000 drivers thrown out of their jobs.”
According to analysis of the new SMS conducted by Truckers News sister fleet publication CCJ, only 12 percent of all carriers even had a rating, much less a safety alert or deficiency, in any of the BASICs in the new system. But as the partially automated inspection and screening technologies highlighted (see “Emerging Inspection Technologies,” p. 24) continue to emerge, those numbers could rise significantly in the future. For detail on the changes to carrier/owner-operator ISS scores, which help law enforcement prioritize inspections, see “New ISS Algorithm” on p. 23.database. I would hate to say that it’s intentionally trying to put the owner-operator out of business, but that’s exactly how it feels. I’ve been scared to drive down the road.” “]
Steve Williams, chairman and CEO of Maverick USA, says he’s appreciated the opportunity to look at scores of competitors in segments where his company runs but expects better information in the future. “If they don’t have complete coverage now, they will,” he says.
Obstacles to gaining the complete coverage Williams references include how CSA works. Carrier percentile rankings in the BASICs are based on roadside inspection and crash data. Each BASIC but the Crash Indicator (whose percentiles are still being withheld from public view) requires a minimum number of inspections to even warrant a numerical ranking. Depending on the category, the number is three or five, except for the Controlled Substances/Alcohol BASIC, which requires just one inspection.
Carriers with rankings above the alert thresholds in one or more of the BASICs will begin receiving CSA interventions, ranging from early warning letters to full-blown compliance reviews, on a phased basis, says FMCSA Spokesman Duane DeBruyne. “This was by design, given how widely different the states are in terms of the number of domiciled carriers, progress in migrating state IT systems to the new CSA data capabilities and the completion of CSA training, particularly by state law enforcement personnel.”
From the beginning, increasing carrier contact has been the stated goal of CSA. As under SafeStat, the more trucks a carrier has on the road, the more likely it will have public BASIC percentile rankings at this point. “Even after CSA is fully implemented in autumn 2011, drivers will experience nothing different during roadside inspections,” Debruyne says. “No new data is being collected. There is no new database. What is new is the clarity provided by CSA that permits law enforcement personnel to more finely pinpoint areas of concern and to share that information and to work with carriers to address issues at the front end, before they potentially may result in a crash.”
As CSA rolls out nationwide, Inspection Selection System changes are throwing a significantly higher number of trucks into the “inspect” category (see “New ISS Algorithm Targets More for Inspections,” p. 23). And despite official word that the aggregate number of inspections nationwide hasn’t increased due to personnel limitations, some drivers report feeling singled out by the U.S. Department of Transportation, alleging nitpicking enforcement.
Independent owner-operator Joe Powell, of Pensacola, Fla., says he averaged one inspection a year on his 1996 Freightliner, running primarily in the Southeast, until recently. In the past year, he’s been stopped or pulled in at a weigh station several times, including twice in one day within minutes of his home, incurring subsequent Level 1 and Level 2 inspections, after the new SMS went live. He incurred bobtail and empty inspections at Florida scales earlier, in addition to other law enforcement encounters. And these inspections have been particularly onerous compared to prior clean inspections.
“If you get stopped right now you’ll get a ticket, or you’ll get written up,” Powell says. “You’re not going to get any good inspections.
“There was a time long ago when cops and truckers worked together to promote highway safety. Now it’s like playing cowboys and Indians. I’m so sick and tired of getting the shaft and being nitpicked to death by rookie DOT cops who only know what they’ve learned in a book and nothing about the trucks they’re inspecting.”
Colorado State Patrol Major Mark Savage sees CSA’s influence on the driver/officer relationship differently. Savage led his state’s inspectors through the Colorado CSA pilot program and was heavily involved in implementing the new ISS algorithm at the roadside inspector level. In his view, CSA is improving the relationships between law enforcement and trucking by significantly increasing “the discussion among roadside inspectors and state program managers and the industry,” he says, “one-on-one on the roadside and elsewhere.”
Savage gives the example of a carrier asking about a violation on a roadside inspection report for one of its drivers. The carrier noted that “‘the driver told us that the trooper told him the violation wouldn’t count in the SMS’ because it was just a warning,” Savage says, “but we checked it out and it would” count, illustrating to Savage that, “even in a state that’s been doing this for two years, we still have education that we need to do.”
In conjunction with the Commercial Vehicle Safety Alliance, Savage has been involved in the production and distribution of training materials for inspectors emphasizing the importance of their actions on carriers’ ability to operate under the new system. Training is ongoing and has been a major part of Savage’s work implementing the program.
Some industry watchers believe CSA may be having unintended results at the roadside level. “CSA has given law enforcement a lot more tools to work with,” says Rickey Gooch, proprietor of the Legal Benefits Group (http://www.golegalbenefits.com), which offers CSA training programs. Some law officers, he contends, are taking advantage of perceived judge-and-jury powers over carriers in some cases. He’s seen “crazy things all around the country. Their thinking is they can cite drivers for anything that they want. They don’t have to write a ticket for it, they can just write it up, and [carriers and drivers] can’t challenge it.”
Drivers are turning to Gooch for help with failed challenges to inspection information filed through FMCSA’s DataQs system. “On the first DataQ I tried to process,” says Indiana-based four-truck fleet Prime Hauling driver Ed Webb, “the response was basically just ‘screw you, it happened.’” Webb was attempting to remove an “ill/fatigued driver” ticket he received while taking an early evening nap on a ramp exiting a rest area, which was full at the time. He was empty and en route home. Though the ticket had been thrown out by the court, it, along with associated parking and logs-not-current violations, remained on his record in the FMCSA’s Pre-Employment Screening Program.
PSP now provides carriers access to potential employee drivers’ and lessees’ inspection and crash histories, and it preceded CSA in implementation by several months. Though a separate program, its growing importance in carrier hiring decisions has given company drivers, for the first time, a clear reason to be using the DataQs challenge system. As for Webb, he also found other past marks on his record via his PSP.
“There was another situation,” Webb says, “where I was written up for not using a seat belt, which was also dismissed by a judge — that was on there. I’m in the process of DataQ’ing all this stuff.”
Webb alerts drivers that if you get an initial negative response to a DataQs filing, don’t stop there. Webb contacted the FMCSA field office in Indiana, the inspecting jurisdiction and his home state, directly. The staff person he spoke to there initially “made it his point that I was basically guilty,” he says, in spite of the court dismissal. Pressed, though, the staffer did eventually remove two of the three marks on Webb’s record. “The parking charge that wasn’t ticketed was going to stay,” Webb says.
Rajkovacz says OOIDA has been hearing many such stories about the DataQs process, formerly used by mostly larger motor carriers, now that individual drivers are using the system under CSA. “The challenges filed are automatically routed back to the jurisdiction that issued the inspection,” he says. “In many cases, it is the officer who is asked to evaluate his own operation — in the past, nobody ever cared because there wasn’t this [CSA] scoring. However, there is now the PSP.”
He gives the example of several cases of drivers in team operations, “where the lead driver goes through an inspection,” he says. Later, the driver sees associated inspection violations show up on both his and his partner’s PSP reports. “We met with FMCSA on this — part of how the DataQs system works needs to be modernized. There’s a real due process issue there.
“Before, if you just got a bad pinch, it basically might have gone into the circular file unless it was an out-of-service violation. Now, people need to monitor these violations and challenge wrongful citations. You can say that until the chickens come home, of course, but if you’ve got jurisdictions that are not able to see the issue responsibly, there are going to be big problems.”
Larger carriers have had DataQs problems themselves. Several states have told companies they won’t be correcting DataQs entries involving speeding citations in which the law enforcement officer copied the wrong CDL number. Osterberg says those mistakes happen frequently. “We have a full-time person who all she does is manage DataQs requests,” he says.
Osterberg adds that a relatively small number of carriers had accessed the DOT website to check CSA scores in late 2010. The more carriers and drivers access it and the PSP site to monitor and manage scores and data, the entire DataQs system could get overwhelmed.
OOIDA assists member owner-operators and drivers in filing DataQs challenges, and Gooch says he’s available to advise on making challenges (his formal service, through which he will handle the challenge himself, is available for $75), just as he did for free with driver Webb.
Gooch considers the due process issues of prime legal importance. “There’s a lot of information being looked at in law firms around the country,” he says, referencing discussions he’s had with several. “They’re looking at it all for class-action lawsuit potential and from the constitutionality side as well.”
For his part, Webb says, he’s only partly vindicated by removal of the two marks on his record. It’s just a small victory in what he sees as a larger war that’s “still raging. If you get wrote up for something and a judge in a court of law says you’re not guilty of it, it doesn’t seem to matter [under CSA]. If it’s on there, it’s going to stay. I do not agree with that.”
Are you getting inspected more or less since CSA’s new Safety Measurement System went live?
Most drivers report inspection levels in equilibrium since SMS results went live and Inspection Selection System changes under CSA significantly increased the number of carriers prioritized for inspections. See “Emerging Inspection Technologies” on p. 24 for the new CSA safety rating system’s potential to gain virtually complete coverage with new technology.
About the same — 64%
More — 28%
Less — 8%
CSA ONLINE SUPPLEMENT
Visit truckersnews.com for a special supplement with additional information on:
• Obtaining information from your PSP report through the Freedom of Information Act
• Making DataQs challenges to your inspection records
• How CSA is affecting roadside service calls
• A new avenue to obtain a CSA driver scorecard and more.
Taking CSA Temperature
How is the CSA safety rating and enforcement program most affecting you?
Increased cooperation from shippers: 1%
Better pay/rates: 2%
Increased highway safety: 3%
Difficulty finding jobs: 5%
More time in the shop: 9%
Hassle from my employer/lessor: 17%
Fewer miles: 17%
I don’t know: 18%
It’s not affecting me: 28%
What do you think of CSA 2010 being renamed Compliance, Safety, Accountability?
Makes no difference — it’s the same program: 43%
Renaming is a waste of federal money: 42%
I didn’t know it had been renamed: 11%
It’s a more precise name for the program: 4%
New ISS Algorithm Targets More for Inspections
Implementation of the new carrier Inspection Selection System scores, already in effect in CSA pilot states, is occurring nationwide on a state-by-state basis.
Major Mark Savage of the Colorado State Patrol says the new ISS will help roadside inspectors better prioritize carriers for inspection. Of particular concern will be carriers with “serious violations” as noted in the CSA Safety Measurement System or with alerts in the Fatigued Driving (hours-of-service) or any two or more other BASICs.
“We also asked ISS to do something new,” Savage says. “We asked it to identify carriers that we don’t have data on.”
Carriers one inspection shy of achieving enough inspections to be ranked in a BASIC will receive an ISS score marking their trucks for inspection, as will those with no inspections or a low inspection rate.
The new ISS algorithm, according to analysis conducted by sources in the PrePass weigh-station preclearance/bypassing network, has resulted in 69 percent of all trucks on the road now falling into the ISS “inspect” category (with a score of 75 or above). PrePass, company officials say, will work with 29 states to find inspection selection criteria that help states effectively manage their commercial vehicle traffic flows.
69 Estimated percentage of trucks on the road operated by a carrier with an ISS score of 75 or higher, the highest priority for inspection. Source: PrePass analysis
Inspecting 69 percent of all trucks is a physical impossibility, given states’ inspection staff and tight budget requirements, and expecting such is unfair to the states as well as most carriers on the road, sources note. PrePass’ bypass technology will continue to work routinely for most carriers employing the technology.
“This is not the first time we have had to work with our states to help them adjust inspection algorithms as a result of changes in federal safety measurement systems,” says president and CEO Dick Landis. “This is a continuation of that process, and it will require a willingness on the part of the ISS administrators to learn from the many millions of clearance events as a result of the PrePass system.”
While owner-operators and other small fleets with few inspections on file may have seen their ISS scores jump when the new system went public in December, others with good ratings appear to be benefiting from the change. Ronnie Adams, of 30-truck Adams Motor Express, based in Georgia, says inspectors were “hot and heavy trying to get information for the system” on his company’s trucks throughout 2010. He estimates five times as many inspections last year compared with the number the company received in 2009.
Since December, when CSA revealed data from enough inspections to provide low, safe scores in three of the five public BASICs, Adams says, “It’s cooled off a little now. We’re not seeing near as many inspections.”
Emerging Inspection Technologies to Sharpen CSA teeth
FMCSA personnel in October last year showcased new-to-market and emerging roadside inspection technologies at the Greene County, Tenn., scales, where Lieutenant James A. McKenzie of the Tennessee Highway Patrol demonstrated them to us just as this issue was going to press. These technologies already in some instances partially automate screening processes, and Wireless Roadside Inspection (WRI) technology in particular could boost the number of inspections nationwide by up to 25 times fully deployed in future, particularly if FMCSA’s recent proposal to mandate electronic on-board recorders goes through, paving the way for WRI operability.
• Wireless Roadside Inspection is designed to allow as much as 25 times more vehicle inspections than the current inspection process. In real time, an inspector can obtain driver and carrier identity, vehicle condition and hours-of-service violations.
• Smart Infrared Inspection System detects brake, wheel and tire problems by comparing infrared thermal images of wheels as the vehicle enters a weigh station, in use in Greene County and in some other areas.
• Performance-Based Brake Tester provides a safe, accurate and objective assessment of a vehicle’s brake force and overall performance and is partially deployed in several states.
CSA Accountability Problems
Dealing with crash accountability in the CSA ranking system, which still doesn’t reflect whether a crash is preventable, among other problems, remains a large concern for many carriers.
“[When] a drunk auto driver driving the wrong way down an interstate at three in morning hits our truck and kills himself, both our driver and we as a carrier get hit with the full weight of a fatality crash,” Schneider National’s Don Osterberg says. “That is fundamentally unfair.”
The American Trucking Associations has proposed creating a team to review law enforcement reports to determine accountability in accidents. ATA’s Rob Abbott says FMCSA has tested the proposal, labeling the results “promising.” The agency wants to open the proposal to public comment as part of its rulemaking process. “In effect, the change probably wouldn’t be made for two years or more,” he says.
Osterberg says such a review board is an “over-engineered solution” to the problem. Instead, he recommends assigning CSA points against the truck driver and carrier only if law enforcement formally cited the driver, which he calls a “proxy for preventability.”
Further adjustment in severity weights in some instances also appears necessary. Osterberg cites tire-related violations, finding fault with the issuance of a severity score of 8 on a scale of 1 to 10 for most tire-related problems. He says his company has challenged the correlation of that severity rating to crash causation in all situations. He says he accepts a severity rating of 8 for steer tires, but would assign a 5 rating for drive tires and 2 for trailer tires.
Another industry concern is with cargo securement and how to deal with sealed, shipper-loaded trailers. Osterberg says CSA regulations provide the driver won’t be held accountable for securement of a pre-loaded trailer, but the same relief isn’t provided to carriers. “Security issues, particularly with food and pharmaceuticals, make it impractical for a carrier to break seals to inspect loads,” he says.
Save $10 on PSP Report Request
Working through the official contractor, NIC Technology, the fee to obtain a copy of your Federal Motor Carrier Safety Administration Pre-Employment Screening Program report to guarantee quality of the information is $10, but some drivers have successfully avoided the fee by making Freedom of Information Act requests to obtain the same information without charge.
Your PSP report should contain from month to month a three-year history of your inspection activity and a five-year history of any crashes you’ve been involved in (the crash data will not address who was at fault — for more on that problem, see “CSA Accountability Problems” on p. 24 of the magazine.
Former owner-operator/current company driver Paul Todorovich, of Mt. Pleasant, S.C., conducted his own trial run through the FOIA process. He and a fellow hauler both put in requests for their PSP crash and inspection information Nov. 9, 2010, receiving replies on the 12th with forms indicated to download to fill out. After a fax back of the forms and subsequent series of email exchanges, the fellow hauler received final word from FMCSA on the 29th, a near three-week turnaround.
Todorovich, however, a week later was still writing back and forth with the wrong agency. He received his response from, not FMCSA, but the National Highway Traffic Safety Administration, due to an apparent filing error, officially on Dec. 10 in a mailed letter.
Todorovich wasn’t worried about what he’d find, though, in the end. “I haven’t had any violations in 30 years,” he says, the situation of many owner-operators and drivers.
But if you’ve had contact with law enforcement in the last five years, a double-check may well be in order, particularly if you’re thinking about changing carriers or are looking for a job. PSP reports are increasingly being used to screen potential hires at carriers around the nation. Access further information about the program in our CSA Driver’s Handbook: http://csadrivershandbook.com.
How to make a Freedom of Information Act request for pre-employment screening data
• Visit http://www.fmcsa.dot.gov/foia.
• Make your request in writing and include your name, address, and a telephone number via the mailing address noted on the above web page or via fax at (202) 385-2335 or email at email@example.com.
Be certain to …
1. Specify that you are looking for data contained within the FMCSA Pre-Employment Screening Program that is linked to your CDL, and include the number and licensing state.
2. Make explicit that you are requesting the information under the Freedom of Information Act/Privacy Act. FMCSA officials note that this request, as a matter of technicality, is a Privacy Act request, but it’s handled by the FMCSA FOIA office. Officials also note that the office has seen many such requests since news of PSP information availability via FOIA has been in recent circulation.
Company Offering Driver Scorecards
The company launched its service Jan. 24 via www.roadsideresume.com, says Vigillo President Steven Bryan, offering all drivers in its system access to their own scorecard free of charge. CSA, after field testing for months in certain states, went into effect nationwide in December.
Though FMCSA decided it would not release driver rating information to the public, third-party firm Vigillo says the “Roadside Résumé uses FMCSA’s published Driver Safety Measurement System methodology, which the agency now uses to target problem drivers during carrier interventions.
Vigillo has long offered carriers the ability to rate their current drivers using FMCSA’s DSMS methodology. Likewise, Vigillo has provided its own version of FMCSA’s Pre-Employment Screening Program reports on prospective hires in their system to subscriber carriers.
Driver scorecards will be available through Vigillo to prospective employers with driver consent, making the company for the first time a “specialty credit reporting agency,” Bryan says.
Just as with DAC reports and with the PSP, drivers will have an opportunity to contest erroneous information. The résumé and attendant scoring will be limited to data reported by participating carriers, Bryan says.
FMCSA will provide a PSP report to a driver for $10, and the information contained on a driver’s PSP report is accessible by the driver free of charge via Freedom of Information Act request (see “Save $10 …” in this supplement). The report contains inspection and crash data (looking back three and five years, respectively), but no scoring.
How to challenge inspection/crash information
Few individual drivers and owner-operators have had much cause until now to use the Federal Motor Carrier Safety Administration’s DataQs system. Now that CSA is live and even minor inspection violations have the potential to affect owner-operator and larger carrier safety rankings and company drivers’ employability, drivers are learning the system quickly.
After filing the request, persistent communication with FMCSA personnel in the state where the violation took place may be necessary to have it successfully removed from the Motor Carrier Management Information System database and your record.
• Visit FMCSA’s DataQs page (dataqs.fmcsa.dot.gov) and register for access.
• Click ADD A CHALLENGE and enter a challenge for each incorrect piece of data.
• Select the appropriate reason for why the crash or inspection should be corrected and click CONTINUE. For instance, if you’re challenging inspection information assigned wrongly to you, select INSPECTION — COMMERCIAL DRIVER DATA. There is a help file on the site for determining which challenge type to select.
• As you list reasons for challenging the data, include as many details as possible.
• Submit the challenge. Your entry should now appear on your list of challenges on your main DataQs page. You can view the information by clicking on the challenge ID.
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