Final Rule is a beginning

A s you read this column, a significant amendment to the Federal Motor Carrier Safety Administration's (FMCSA) New Entrant Safety Assurance Program will have become final law. This program affects new to the industry motor carriers, requiring them to undergo a safety audit within 18 months after receipt of their U.S. DOT number. According to the late December 2008 Federal Register notice, the amendment

A s you read this column, a significant amendment to the Federal Motor Carrier Safety Administration's (FMCSA) New Entrant Safety Assurance Program will have become final law. This program affects “new to the industry” motor carriers, requiring them to undergo a safety audit within 18 months after receipt of their U.S. DOT number.

According to the late December 2008 Federal Register notice, the amendment (which can be found at www.fmcsa.dot.gov) raises the standard for passing the new entrant safety audit and creates an “expedited” safety audit action if certain violations are found during a roadside inspection.

FMCSA will also check compliance with the Americans with Disabilities Act and certain household goods-related requirements in the new entrant safety audit, if they apply to the new entrant's operation. The temptation is to view this latest FMCSA effort as just an enhancement of the new entrant program, which began with the Jan. 1, 2003, “Interim Final Rule.”

However, I believe this rule sets a precedent, since FMCSA has defined a set of management controls it views as a minimum for permitting operations. This rule also marks another progressive step in the move from prescriptive to performance-based safety enforcement.

Management controls seen as a minimum for permitting continued operations are defined in Section 385.321 of this Final Rule, which specifies 16 regulations that mandate “automatic failure.” Fourteen of those items have a “Single Occurrence” failure threshold. The management controls covered by these 14 items include drug and alcohol testing, commercial driver licensing, minimum levels of financial responsibility, physical qualification of drivers, and out-of-service orders. An example is “Knowingly using a driver who does not possess a valid CDL.”

The Final Rule specifies that two regulations, “Failure to require driver logbooks” and “Using vehicles not periodically inspected,” merit automatic failure if 51% or more of the records are found to be noncompliant.

The shift from prescriptive to performance-based regulation is evident in Section 385.308 of the rule, which defines seven violations meriting an expedited safety audit. First, the Section specifies roadside inspections as the point where these violations would be discovered. Second, a review of these criteria indicates some of these conditions are expressed in terms of roadside safety performance criteria. For example, item 7 of that Section specifies that a new carrier may undergo an expedited audit or full on-site compliance review if the carrier is found to have “…a driver or vehicle out-of-service rate of 50% or more based upon at least three inspections occurring within a consecutive 90-day period.”

Seasoned industry veterans understand the regulations covered in this Final Rule have been around for quite some time. That being said, I believe FMCSA is breaking new ground with this Final Rule because the agency has specified that single violations of certain standards or abhorrent roadside safety inspection performance may affect a carrier's ability to operate.

You should regard the safety parameters, as defined in this rule, as the bedrock for safety performance. With that in mind, the opportunity is there for you to take a 360-degree review of your operation to ensure systems are in place to meet these minimum standards.


Jim York is the ass't. vice president of technical services for Risk Engineering at Zurich Services Corp. in Schaumburg, IL. The views expressed herein are solely those of Mr. York and not those of Zurich Services Corp.

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