The Federal Motor Carrier Safety Administration (FMCSA) announced 11 changes to its Safety Measurement System (SMS) that it hopes will help it “identify carriers for intervention that pose a higher safety risk both in terms of future crash involvement and the potential for increased consequences resulting from the presence of [hazardous materials].”
The SMS is part of the agency’s Compliance, Safety, Accountability program. It “quantifies the on-road safety performance and compliance history of motor carriers, to prioritize enforcement resources, determine the safety and compliance problems that a motor carrier may exhibit, and track each motor carrier’s safety.” In March, the FMCSA issued a proposed set of seven modifications for public comment and released a preview that allowed motor carriers to see how the changes would affect them. The final modifications include the original seven proposed modifications and four more suggested during that comment period.
The SMS relies on data from roadside inspections, including safety-based violations and crashes, and separates it into categories known as Behavior Analysis and Safety Improvement Categories (BASICs). There are BASICs for unsafe driving, hours of service, driver fitness, controlled substances, vehicle maintenance, cargo-related issues, and crash indicators. A carrier’s measurement for each BASIC depends on its number of adverse safety events, the severity of its violations or crashes, and when the events occurred, with more recent events weighted more heavily. The measurements go from 0 to 100 percent, with 100 percent being the worst performance. Each category has its own threshold for when a carrier is identified as in need of “intervention” by the agency to make it safer. Carriers are deemed high-risk when they are above the threshold in more than one BASIC.
One change is to move the requirement that loads be properly secured from the cargo-related BASIC to the vehicle-maintenance BASIC. In the past, there was a “flatbed bias” because load-security violations are obvious on open trailers like flatbeds but often invisible when the load is in a closed trailer. Thus, carriers that had extensive flatbed operations frequently rose above the 80 percent threshold for the cargo-related BASIC, even if they were not unsafe carriers. Under the revised vehicle-maintenance BASIC, load-security violations will be a smaller piece of the puzzle, and only significant violations will increase the percentile enough to identify the carrier for intervention.
Some changes address hazardous materials (HM) because they can “greatly increase the consequences of crashes.” The agency’s regulations are aimed at preventing spills and increasing the ability of emergency responders to mitigate the consequences of any spills that occur. HM violations used to be grouped in the cargo-related BASIC, but it wasn’t effective at predicting carriers with a high risk of HM safety compliance problems. Now, the FMCSA has created an HM-compliance BASIC to track a carrier’s ability to properly package and transport the materials and to accurately identify and communicate the problems when a spill occurs.
The FMCSA will also make the motor carrier responsible for inadequate pre-trip inspections of intermodal equipment—cargo that is transported in trailers from ships to trains or trucks without being unloaded and reloaded. The carrier must ensure the trailers are in a safe condition before transporting them. When the agency applied that rule to the past 24 months of roadside inspections, it determined there would have been an extra 22,000 violations.
One change of concern to trial lawyers is the agency’s decision to stop counting speeding violations in the unsafe-driving BASIC if they are only for 1 to 5 mph over the speed limit. The agency says this is because speedometer regulations require accuracy within 5 mph. But Indianapolis attorney Daniel Buba, who has handled many trucking cases, said the change is more significant than it appears.
“[A]nything that improves our roadways is positive, and that is the FMCSA’s stated purpose, but this change does not appear to mesh with that goal,” he said. “I think it ignores the reality of how a ticket is issued in the proverbial ‘real world.’ Are officers really pulling truckers over when they are driving 1 to 5 mph over the limit, or are these de minimus tickets the result of a plea bargain or an officer reducing the ‘mph over’ to cut the driver a break?”
Another seemingly minor modification has also troubled some trial attorneys: The agency is changing the name of the fatigued-driving BASIC to the hours-of-service BASIC to reflect that it includes record-keeping violations that don’t necessarily mean a driver was fatigued. In his blog, Steve Gursten of Farmington Hills, Mich., said the name change is a “cop-out” by the FMCSA.
“This proposal has nothing to do with preventing truck accidents or increasing safety. It actually does the exact opposite,” he said. “What’s really at play is that the trucking industry doesn’t like the negative word choice of ‘fatigued driving’ and complained. But this is a good word. It accurately describes the problem and the cause of these truck accidents.”
The full list of modifications can be found here.