It is no secret that CSA has impacted many carriers and drivers in the industry. Since 2010 when the CSA Phase One rollout began, the industry has struggled to understand the ever evolving CSA system. Even after 4 years, CSA is a mystery to many and appears to have a few flaws that bring even more change to the system.
As Phase One comes to a close, many wonder what will Phase Two will look like for CSA? Phase Two is the actual purpose why CSA came into being – Interventions!
According to the Program, the FMCSA doesn’t want to merely identify the drivers and carriers who are performing unsafely – they want to try and persuade them to improve their performance, hopefully before a crash occurs. That is where the intervention fits into the puzzle. The interventions will take several approaches:
Warning Letter – Correspondence sent to a carrier’s place of business that specifically identifies an alerted Behavior Analysis and Safety Improvement Category (BASIC) and outlines possible consequences of continued safety problems. The warning letter provides instructions for accessing carrier safety data and measurement as well as a point-of-contact.
Targeted Roadside Inspection – CSA provides roadside inspectors with data that identifies a carrier’s specific safety problems, by BASIC, based on the new measurement system. Targeted roadside inspections occur at permanent and temporary roadside inspection locations where connectivity to the SMS information is available. As Commercial Vehicle Information Systems and Networks (CVISN) technologies evolve, they will be incorporated into the roadside inspections.
Offsite Investigation – A carrier is required to submit documents to FMCSA or a State Partner. These documents are used to evaluate the safety problems identified through the SMS and to determine their root causes. Types of documents requested may include third-party documents such as toll receipts, border crossing records, or drug testing records. The goal is to identify issues responsible for may be subject to an onsite investigation or to subpoena records (see below).
Onsite Focused Investigation – The purpose of this intervention is to evaluate the safety problems identified through the SMS and their root causes. An onsite focused investigation may be selected when alerts in one or two BASICs exist. Onsite “focused” investigations target specific problem areas (for example, maintenance records), while onsite “comprehensive” investigations address all aspects of the carrier’s operation.
Onsite Comprehensive Investigation – This intervention is similar to a CR and takes place at the carrier’s place of business. It is used when the carrier exhibits broad and complex safety problems through continually alerted BASICs, worsening multiple BASICs (three or more), or a fatal crash or complaint.
Cooperative Safety Plan (CSP) – Implemented by the carrier, this safety improvement plan is voluntary. The carrier and FMCSA collaboratively create a plan based on a standard template to address the underlying problems resulting from the carrier’s substandard safety performance.
Notice of Violation (NOV) – The NOV is a formal notice of safety alerts that requires a response from the carrier. It is used when the regulatory violations discovered are severe enough to warrant formal action but not a civil penalty (i.e., a fine). It is also used in cases where the violation is immediately correctable and the level of, or desire for, cooperation is high. To avoid further intervention, including fines, the carrier must provide evidence of corrective action or initiate a successful challenge to the violation.
Notice of Claim (NOC) – An NOC is issued in cases where the regulatory violations are severe enough to warrant assessment and issuance of civil penalties.
Operations Out-of-Service Order (OOS) – An OOS order is an order requiring the carrier to cease all motor vehicle operations.
So, how ready is your company? Could you stand up to the intervention process, are your records, driver qualification files, vehicle maintenance, policies and procedures up to date and in compliance? Are you following the policies your company has put it place? How can you be ready for the next audit or worse yet, lawsuit?
Here is some advice from John E Harrison, his comments are aimed at lawsuits, but the first step is also going to protect you in a dreaded audit or as they are called now, “Intervention”.
I encourage you as a motor carrier to immediately implement several proactive measures to reduce your liability:
- Hire a reputable outside regulatory compliance firm to assess your level of compliance and to conduct periodic mock audits;
- If your company is in an accident, immediately have an accident reconstruction firm that has motor carrier safety experience go to the scene and document all physical evidence, conduct a level 1 inspection of your vehicle and inspect the other vehicles involved, including performing a download of the electronic control modules (ECM) for your truck and (with permission) the other vehicles involved; and
- Following an accident, preserve all documents, electronic files, etc. regarding your vehicle, driver, and the load. I say this because in most states a plaintiff has up to two years to file a lawsuit. If you preserve all potential evidence it will be available to help defend your position and it reduces your chances of being accused of trying to cover-up the truth. This holds true for both evidence that may help you or hurt you. It has been my experience that those motor carriers that conveniently loose or fail to preserve evidence detrimental to them come out far worse in the end if the matter goes to a jury.
About the Author
John E. Harrison is a Past-President of CVSA and retired from the Georgia Department of Public Safety at the rank of Captain after 31 years of honored service.