A gridlocked U.S. Congress can be good news for those in the trucking industry who prefer less regulatory guidance from lawmakers. But a do-nothing House and Senate doesn’t prevent the federal bureaucracy from fiddling with laws already on the books. So regulatory efforts in 2023 make for a running start on the New Year.
“2023 was a pretty busy year for the Federal Motor Carrier Safety Administration in terms of proposing a lot of things, but what we don’t have is a lot of final dates of when these things are expected to take effect,” Brandon Wiseman, a lawyer and the owner and president of Trucksafe Consulting, told FleetOwner. “It seems like we should see them take effect in 2024, but we just don’t know.”
SMS, CSA, Safety changes
FMCSA proposed changes to its Safety Measurement System, the methodology used to measure carrier Compliance, Safety, and Accountability scores.
One of the significant differences is that the categories used to determine CSA scores would change. SMS currently uses seven Behavior Analysis and Safety Improvement Categories, or BASICs. Though the proposal would still use seven BASICs, two changes are more significant than all the others, according to Wiseman. The Controlled Substances and Alcohol BASIC would be combined with the existing Unsafe Driving category, so all drug and alcohol violations discovered during roadside inspections would impact motor carriers’ Unsafe Driving BASIC.
“Maybe the biggest change of all,” Wiseman said, “is that we are going to split the Vehicle Maintenance category into two separate categories. One will continue to be called Vehicle Maintenance, and then the new one will be called Vehicle Maintenance: Driver Observed.”
Wiseman said that the Vehicle Maintenance category is currently the largest BASIC with the most data, making it difficult for carriers and FMCSA to determine what behaviors are causing high scores in the category. By breaking the BASIC into two subcategories, it would be easier to parse the information.
“The Driver Observed category is going to be maintenance issues that the FMCSA thinks should have been caught by the driver had they done a thorough pre-trip inspection,” Wiseman said. “So things like lights, burned-out light bulbs, tire issues, those types of things that should be obvious in a pre-trip inspection and that just weren’t caught. So, if I’m a motor carrier that has a high’ Driver Observed’ BASIC, then I know that the root cause of my problems is most likely going to be drivers just not doing thorough enough pre-trip inspections.”
By streamlining SMS, the hope is fleets could interpret CSA scores more easily. If a score in a particular category is high, carriers could address issues “before it balloons into a huge systemic problem,” he said.
Though the changes will likely occur in 2024, they won’t necessarily change how fleets operate daily, Wiseman said. However, FMCSA has a preview website where carriers can log into their existing accounts and see how the proposed changes impact their CSA scores. If a carrier sees that its safety scores will worsen under the new methodology, Wiseman recommends that they work ahead of time to improve safety.
“It’s not just the Department of Transportation that’s looking at your CSA scores,” Wiseman emphasized, noting that shippers and brokers check scores before doing business with fleets, plaintiff’s attorneys check scores after crashes, and commercial insurers use scores to set rates.
See also: Using safety technology to achieve operational excellence
Crash Preventability Determination Program
Last year, FMCSA announced it plans to expand the crash types considered not preventable in the Crash Preventability Determination Program, which would allow carriers to have a broader range of non-preventable accidents, leaving CSA scores unaffected.
Since May 2020, the CPDP allowed carriers or drivers involved in specific crash types to submit Requests for Data Review through FMCSA’s DataQs system. FMCSA reviews the RDRs and police reports to determine if a crash was preventable or not, determining whether the event affects a carrier’s CSA score.
The CPDP currently accepts 16 specific crash types as eligible for preventability consideration. FMCSA proposed adding the following four crash types to the list:
- A motorist operating in the same direction struck the commercial motor vehicle (CMV) on the side. Currently, the crash type is limited to side strikes at the very rear of the vehicle.
- The CMV was struck because another motorist entered the roadway from a private driveway or parking lot.
- The CMV was struck because another motorist lost control of their vehicle.
- Any other type of crash outside the CPDP categories if there is video depicting the sequence of events.
“The expansion of the Crash Preventability Determination Program, I think, will be a good development for motor carriers,” Wiseman said. “That program has suffered over the last few years from being too narrow in scope, in my opinion, and in the opinions of many motor carriers we work with.”
DataQs changes
FMCSA also proposed creating an independent appeals board for its DataQs system, the only way carriers can challenge safety violations on their SMS accounts. Wiseman said that if a driver gets written up for an hours-of-service violation—but that driver’s carrier believes that the driver was compliant, and the law enforcement agency was mistaken—it sends an appeal through the DataQs system.
“The problem historically with the DataQs system is the lack of due process,” Wiseman said. “It’s typically the very same agency that wrote up the violation that is reviewing my appeal. And you can imagine they’re not inclined to change their minds.”
FMCSA has proposed creating an independent appeals board to sit above those initial levels of appeal, meaning fleets could challenge decisions made at the lower levels.
Safety fitness determinations
FMCSA proposed changing how it conducts safety fitness determinations, which use existing motor carrier data and information collected during in-person compliance reviews to form a three-tiered rating system of satisfactory, conditional, or unsatisfactory. This rating is generated if a carrier undergoes a DOT audit. In 2019, FMCSA and its state partners conducted 11,671 compliance reviews of more than 567,000 active interstate motor carriers—about 2% of all carriers.
Though FMCSA did not detail how it plans to change the process, Wiseman suspects that in 2024, the agency could propose “something entirely different” than the three-tier system, perhaps incorporating CSA scores into conducting safety fitness determinations.
“They previously tried to do this in 2016,” Wiseman said. “They had issued a notice of proposed rulemaking back then where they had proposed tying the motor carriers’ safety rating to its CSA scores."
“They were trying to push this through at the same time that everybody was up in arms about the reliability of the SMS data,” he continued. “And then the Congress at the same time told FMCSA you cannot tie a carrier safety rating to the scores until you make changes to the scoring system.”
He said there are still questions about whether FMCSA made the right changes to SMS.
New Entrant Safety Assurance Process
Another FMCSA proposal considered adding a “proficiency examination” to new applicant carriers as part of a revised New Entrant Safety Assurance Process. According to Wiseman, this means new carriers must take a knowledge test to receive a DOT number.
