Waynes World - March 2010
CSA 2010'S IMPENDING INTERVENTION
PROCESS, AND, IN NINE STATES...
THE WARNING LETTERS
HAVE BEEN SENT!!
by Wayne Schooling
As of January 1st of this year, CSA 2010 is being tested in nine states and more than 5,500 warning letters have already been sent out. If you have not heard about CSA 2010, listen up because, in my opinion, it is the biggest change in federal enforcement in the last 30 to 40 years. CSA 2010 is a new initiative to improve truck and bus safety and reduce commercial vehicle related crashes, injuries and fatalities. This system will keep track of each carrier’s and driver’s record and produce a score based on the data.
The Comprehensive Safety Analysis (CSA) 2010 intervention process includes three stages. I guess one could say that CSA 2010 is the FMCSA’s version of three strikes and you’re out. It comes in three parts: early contact, investigation and follow-on.
CSA 2010’s box of tools will enable both federal and state officers to select carriers according to the nature and severity of their safety problems. CSA 2010’s collection of tools starts with the warning letter, which is the earliest contact designed to address the least severe safety problems. The warning letter is designed to make carriers aware of their safety performance issues so they can address them early, before they become habitual and more difficult to correct. These warning letters will not only notify carries of their safety issues, but also provide details on how to view their safety data online, which will give them an opportunity to check their data on record for accuracy and to file any appropriate challenges necessary.
Warning letters are an important part of the CSA 2010 intervention process. They will provide early contact with carriers who have identifiable, but not yet severe, problems. If you receive a warning letter, it is not too late to talk to your staff and drivers and lay down the consequences for poor performance.
Motor carriers that are identified through the new Safety Measurement System (SMS) as requiring this first level of intervention will receive a warning letter. In most states, these warning letters will start being sent out sometime this summer. Presently, only those carriers whose SMS score is deficient in any of the Behavior Analysis Safety Improvement Categories (BASIC) will receive a warning letter. FMCSA does not have plans at this time to directly contact drivers, but don’t hold your breath on that one. For those carriers who have significant safety problems, they can expect to get either an offsite or onsite investigation (they will not necessarily get a warning letter beforehand).
So, the first stage is the warning letter. The warning letter will also trigger targeted roadside inspections, which will allow law enforcement to better monitor the status of the carrier’s effectiveness in correcting the problems identified in the warning letter.
The second stage is the investigation process, which could consist of an offsite investigation, a focused onsite investigation, or a comprehensive onsite investigation. An offsite investigation would involve the carrier providing certain documentation to FMCSA and would be triggered by persistent safety problems. A focused onsite investigation is exactly that - the FMCSA just focuses on the identified safety problem but no other items. A comprehensive onsite investigation, which also takes place at the carrier, will be used when a carrier exhibits broad and complex safety problems, through multiple deficient scores, in several BASIC areas.
The third and final stage, the follow-on process, consists of several parts, beginning with the carrier being required to write up a Cooperative Safety Plan showing how the carrier is planing to address the problems. A Cooperative Safety Plan could be triggered after an investigation reveals safety issues which the carrier expresses a willingness to fix. The FMCSA would monitor the carrier and then increase intervention if their safety performance did not improve. This part of the process is used to help support safety improvements BEFORE a fine is issued.
If the safety issues are still not properly addressed, a Notice of Violation is issued. The purpose of the notice is to officially notify the carrier of specific regulatory violations. The motor carrier would then have to provide evidence that they corrected the problems or successfully challenge the violations. The Notice of Violation is one of the last warnings before a fine is levied. Hopefully, this will motivate the carrier to fix their problems.
The next step in this stage is the Notice of Claim or fine. The purpose of the Notice of Claim is to deter severe or persistent unsafe behavior. It is issued as a formal document and served on the violator to again compel compliance. Then, a Settlement Agreement, which contractually binds the motor carrier to take action to improve safety, is issued to give the carrier one last opportunity to avoid higher fines or suspension of operations.
The Settlement Agreement allows the carrier to possibly avoid significant penalties with the understanding that failure to comply with the terms of the settlement would result in immediate imposition of the maximum penalty that would have otherwise been levied. In other words, the carrier could be fined say $100,000 but agrees to do this or that to improve their safety record. If the carrier agrees, their fine is reduced to $25,000. But if the carrier reverts back to their old ways or reneges on the agreement, the entire $100,000 is then due.
Think about this: if a carrier has a 2% profit margin and has to pay a fine of $5,000, the carrier would have to generate $250,000 in new revenue to cover the loss. A $10,000 fine would require $500,000 extra revenue to recoup the loss. So, it only goes to show, if you do it right from the start, it’s cheaper in the long run. It should not take a carrier any more than $5,000 to setup all the safety management controls needed to ensure that they have an effective safety program. But you must begin to do it NOW!
Finally, if the safety problems continue, the carrier will be deemed as “Unfit” and a suspension will be issued, effectively putting the carrier out of business. Currently, this process is regulated under 49 CFR Part 385. This rule will need to be changed to allow the FMCSA to enforce this new system and declare a carrier “Unfit” under CSA 2010.
~ NTA remains a name you can trust. Our website (www.ntassoc.com) is your official U.S. DOT Internet Training Site and we are administrators of a Nationally Accredited Drug and Alcohol Program. If you have any questions, call me at (562) 279-0557 or send an e-mail to wayne@ntassoc.com. Until next month, “Drive Safe – Drive Smart!”