I.
Current Rules
Under the current rules, a new
entrant will have a visit from the Federal Motor Carrier Safety Administration
(FMCSA) within 18 months of beginning operation. This visit is called a “safety
audit.” The purpose of a safety audit is to provide educational and technical
assistance to the new entrant and gather safety data needed to make an
assessment of the new entrant’s safety performance and adequacy of its basic
safety management controls.
Safety management controls means
the systems, policies, programs, practices, and procedures used by a motor
carrier to ensure compliance with the applicable safety and hazardous materials
regulations, which ensure the safe movement of products and passengers through
the transportation system, and to reduce the risk of highway accidents and
hazardous materials incidents resulting in fatalities, injuries, and property
damage.
A safety audit will not result in
a safety fitness determination. Safety fitness determinations follow completion
of a compliance review. The safety audit will consist of a review of the new
entrant’s safety management systems and a sample of required records to access
compliance with the Federal Motor Carrier Safety Regulations (FMCSAs),
applicable Hazardous Materials Regulations (HMR), and related Recordkeeping
requirements as Specified in Appendix A of Part 385. The areas for review
include, but are not limited to, the following: driver qualification, driver
duty status, vehicle maintenance, accident register; and controlled substances
and alcohol use and testing requirements.
This safety audit will result in
either a determination of adequate or inadequate basic safety management
controls.
- If
adequate, after careful monitoring for the remainder of the 18 months, the
carrier is removed from the new entrant designation thusly making its
registration permanent.
- If
inadequate, the carrier will be given written notification that it must fix the
deficiencies identified within a specified time frame or have its new entrant
registration revoked and its operations placed out of service.
A
compliance review differs from a safety audit in that it scores a
carrier’s performance and may result in enforcement action. The FMCSA
posts this rating of the motor carrier on its SafeStat website for the
general public to see, including competition, insurance carriers, and
your customers. A compliance review is triggered
by a number of factors (e.g., roadside inspections, accidents, complaints,
etc), all of which point to potential safety violations. A new entrant is not
exempt from a compliance review. If the motor carrier receives a compliance
review before a safety audit, it satisfies the safety audit requirements.
II.
Future NEW Requirements
In an attempt to recognize at-risk
new entrant carriers, sixteen (16) regulations have been identified as
essential elements of basic safety management controls necessary to operate in interstate
commerce. These recent, more stringent standards are the result of a final rule
entitled “New Entrant Safety Assurance Process” appearing in the Federal
Register in late 2008. The rule is effective February 17, 2009. According
to the new regulations, a new entrant motor carrier will be held more
accountable for its actions. If found to have failed to comply with any
one of the 16 regulations, the motor carrier will fail the audit and
will receive notice that its US DOT new entrant registration will be
revoked. Even though the 16 regulations are examined more closely if
they happened since February 2009, any of these violations occurring
prior will still be reviewed, even though they are not weighted as
heavily.
Among other changes, the rules also: includes
penalties for existing carriers that attempt to register as new
entrants in order to evade enforcement action and or out-of-service
orders issued by the FMCSA
III.
Preparation
Motor carrier employees must KNOW
and APPLY the safety regulations. There are no excuses. This involves
training drivers, supervisors, and anyone else who aids in and/or is
responsible for a portion of a motor carrier’s safety compliance efforts.
Having a knowledgeable staff is more than just a great best practice, it is actually
required in 49 CFR 390.3 (e) and should be apart of your safety management
controls. The regulations and official interpretations repeatedly show that the
motor carrier is responsible for the actions of its employees. You must have
systems in place to ensure al parties responsible for compliance understand and
are consistently following the rules, policies, and procedures.
The fleet safety software that NTA
offers is your “Passbook” to a Satisfactory Rating. The program meets all the
requirements needed. In fact, this software was actually developed by a former Nevada law enforcement
officer and endorsed by a former Nevada US DOT Special Agent.
Not only will this program keep
track of your drivers and vehicle maintenance program but you will mostly not
have to buy another form. It contains all the forms you need for your driver
qualification files, vehicle forms, and several log forms.
Some of the custom forms are;
brake inspector qualifications, Inspector qualifications, Drug and alcohol
supervisor training log, hazmat employees training log and training records,
accident file checklist as well as your accident register just to name a few.
The program gives you access to
all FMCSA safety regulations, FMCSA vehicle standards & Regulations. Safer
Systems, SafeStat and all DMVs throughout the nation.
Compare prices from: J J Keller: Driver File Software runs $699, a
Fleet Safety Manual is $229 and a Hazmat Manual is another $229 for $1157.00
The NTA Passbook Safety Compliance
contains all the above and is only $595.00
The Federal Motor Carrier Safety
Administration (FMCSA) has identified the following 16 regulations. A failure
to pass just one of these violations is an AUTOMATIC FAILURE of a safety Audit.
1. Not implementing a drug and/or alcohol program
(§382.115(a) & §382.115(b)).
2. Using a driver known to have an alcohol content of
0.04 or greater to perform a safety sensitive function (§382.201).
3. Using a driver who has refused to submit to an
alcohol or controlled substances test required under Part 382 (§382.211).
4. Using a driver known to have tested positive for a
controlled substance (§382.215).
5. Failing to implement a random controlled substances
and/or alcohol testing program (§382.305).
6. Using a driver who does not posses a commercial
driver’s license (§383.3(a) & §383.23(a)).
7. Using an employee with a CDL, which is suspended,
revoked, or canceled by a state (§383.37(a)).
8. Using a disqualified CDL driver (§383.51(a)).
9. Not having proper financial responsibility coverage
(§387.7(a)).
10. Not having
proper financial responsibility coverage (passenger-carrying vehicle)
(§387.31(a)).
11. Using a
disqualified driver (CDL or non-CDL) (§391.15(a)).
12. Using a
physically unqualified driver (§391.11(b)(4)).
13. Failing to
require a driver to make a record of duty status (§395.8(a)).
14. Using a
commercial motor vehicle declared “out of service” or using it before the
repairs are made (§396.9(c)(2)).
15. Failing to
correct out-of-service defects listed by the driver during the daily vehicle
inspection reports (§396.11(c)).
16. Using a
commercial motor vehicle not periodically inspected (§396.17(a)).
A good indicator as to whether or not a motor carrier is
following the safety requirements of its performance is during a
roadside inspection. If certain violations are discovered during a
roadside inspection, the new entrant motor carrier may be subjected to
an expedited safety audit or compliance review or may be required to
submit a written response to FMCSA demonstration corrective
action.
The new entrant is basically “on probation” for
the first 18 months and will be closely monitored to ensure the new
entrant has all the safety management controls and is using them
effectively.
IV.
Driver’s Qualification File
The trucking company is required
to maintain a driver’s qualification file on each driver. The driver’s
qualification file must contain:
1. The driver’s application for employment;
2. A written record of inquires to prior employers and
any responses received from them;
3. The pre-employment driving record (MVR) on the
driver;
4. The results of any road test or a copy of the drivers
CDL;
5. The driver’s annual review;
6. The MVR on the driver related to the annual review;
7. The driver’s certified list of moving violations and
accidents provided in conjunction with the annual review; and
8. The medical examiner’s certificate of physical
qualification.
The documents in the driver’s
qualification file must be kept by the company for as long as the driver is
employed by the company and for an additional three-year period, except that
documents related to the annual review may be discarded following a subsequent
annual review and the medical examiner’s certificate may be discarded every two
years following the replacement with a new certificate.
V.
Minimum Standards for Driver Qualifications
The federal regulations provide a
minimum standard for determining the qualifications of a driver. According to
these regulations, a driver is qualified to operate a commercial vehicle if he:
1. Is at least 21 years old;
2. Can read and understand the English language
sufficient to complete necessary reports, converse with the public and
understand traffic signs;
3. Can by reason of experience and/or training operate
safely a commercial vehicle;
4. Is physically qualified to operate a commercial
vehicle;
5. Has a valid CDL;
6. Has completed the driver’s application for employment
and has provided the company with the required list of prior moving violations
and accidents;
7. Is not disqualified under any federal regulation;
8. Has successfully completed a road test or has a CDL
from a jurisdiction that requires the driver to pass a road test as part of its
licensing procedure.
The only disqualifying offenses contained in the federal
regulations are certain crimes committed while driving a commercial
vehicle and violations of out-of-service orders. A driver is
disqualified for at least a year if he drives a commercial vehicle
while under the influence of alcohol or drugs, transports controlled
substances in a commercial vehicle, leaves the scene of an accident
while operating a commercial vehicle or commits a felony involving the
use of a commercial vehicle. A driver is also disqualified for at least
90 days if he violates an out-of-service order.
VIII Criminal Background Checks
While a trucking company clearly
has a duty to investigate the driving experience and qualifications of a
driver, most jurisdictions, since the 911 incident, have held that the company
does have a duty to investigate the driver’s criminal background. Because
drivers are hired to transport freight and periodically have to interact with
the public as the company’s representative, a trucking company should perform
an independent investigation into a driver’s criminal past to determine if he
is a violent individual who may attack or sexually assault a person.
It is not as cost-prohibitive as
one may think for a trucking company to conduct a criminal search on each
driver. The NorthAmerican Transportation Association has a special background
check, which consists of five different backgrounds checks for less than
$15.00. The backgrounds checks are:
1. Social Security Verification with Address History
2. Criminal Super Search (USA)
3. Sex Offender Registry of all 50 States
4. Terrorist Search
5. Single County
Criminal Search
Since the company has the driver’s
application where he has listed his last ten years of employment, the social
security verification with address history comes in handy to partially verify
where he lived and worked. The criminal super search searches the entire USA while the
single county search search locally, which saves time and money. Otherwise, the
trucking company would have to review court records from every jurisdiction
with which the driver had any significant contacts to complete the search.
IX Use an Accredited Drug and Alcohol Program
There are tens of thousands of
company’s that can do drug and alcohol testing throughout the US but only 38
are accredited by the Drug and Alcohol Testing Industry Association (DATIA).
Accreditation standards are the foundations upon which established industry
professions have built their reputation and garnered the esteem of the American
public. Being accredited assures motor carriers and other potential members
that NTA meets nationally accepted standards for the drug and alcohol testing
industry.
NTA’s participation in voluntary
accreditation shows the general public that the drug and alcohol testing
industry, and NTA in particular, has a genuine interest in continuous
self-evaluation and self-improvement. Accreditation shows our colleagues and,
in turn, the transportation industry NTA’s commitment to NTA’s success and
NTA’s ability to outperform others and to set the standards.
X Conclusion Don’t cut corners when you are
setting up your new company. You can’t afford to use anything but proven
programs and resources.
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