Wrinkles aplenty keep forming on the face hit by the one-two-three-punch of ELDs, the Safety Fitness Determination rulemaking and (coming, if Congress and regulators have their way) speed limiters.
Following publication of James Jaillet’s dissection of privacy issues relative to the mandate published yesterday, Agri-Empresa truck manager/sometime owner-operator Gary Carlisle turned the discussion back to what commentators quoted seem not to understand — the 14-hour rule itself has limited drivers’ options in exercising “judgment as to what his level of fatigue is.”
Here’s the meat of his argument:
The whole issue is aimed at increasing safety, but that can never be achieved without the human element taking the risk and responsibility of managing his own driving time and relative fatigue he experiences. With all the hell they raise about firmly enforcing the redundant HOS regulation, it always will fall short on that issue, because they never consider the professional driver’s own judgment as to what his level of fatigue is. Only when they allow the driver to judge his fatigue and take action without penalty of loss of time to work will that have a chance to truly improve safety. Everything else they try will only increase regulation, fines, and funding to make them believe they are doing so much good.
You can read what Carlisle’s written about the subject in the past in this story:
And more to the point of the analogy in this post’s title, this morning I had a conversation with a former colleague, Avery Vise of the TransComply outfit, about something he pointed out to me a couple days back. Namely, it’s the “SBA Roundtable” Q&A you’ll find at this link, where FMCSA posted an exchange about how it plans to treat the determination of critical violations during compliance-review-type investigations under the new Safety Fitness Determination process as proposed:
Question 6: What constitutes a “record” that would be examined? For example, would a single driver’s inspection history be a “record”? Presumably an inspection cannot be a record because there is no such thing as a clean Unsafe Driving inspection.
Response 6: Investigations into Unsafe Driving may involve several regulatory areas and records to be review[ed]. For example, specifically relating to speeding, the most common record would be a driver’s record of duty status [in other words, the driver’s logs –ed.]. Other parts of the investigation may include a review of inspections reports, or driver qualification files.
Question 7: Would the presence of Unsafe Driving violations in “at least 10% of records examined” in an investigation be determined on the basis of a randomly selected sample of records? If not, how would the 10% violation rate be calculated?
Response 7: FMCSA has discretion in how to sample drivers based on available carrier data.
View the full back-and-forth, FMCSA’s responses (posted May 23, the final day of the first comment period on the SFD) to written questions entered into the record during a roundtable on the SFD rule proposal hosted by the Small Business Administration, at this link.
In compliance reviews or other on-site investigations today, Vise says, “moving violations don’t count” in spite of the fact that, from a perspective of the regulations, some are included in the “critical” violation definitions. But what the SFD does is tie the new, single “Unfit” determination to the structure of the BASIC categories of measurement in the CSA Safety Measurement System. In order to be declared Unfit, under the proposed regulation, a carrier would have to fail two of the BASICs.
One of those BASICs is the Unsafe Driving category — moving violations are what contribute to carriers’ scores there, by and large.
The path to the Unfit determination that’s been getting the most attention from watchers and the trucking media thus far is the failure of two BASICs solely as a result of roadside inspection results. Carrier X accumulates a boatload of hours violations at roadside and a bunch of speeding tickets and fails both Hours and Unsafe Driving BASICs, say. Despite the fact that FMCSA estimates that many more Unfit determinations will result from the investigations side of failure of a BASIC, that side’s gotten less attention, Vise believes, because “on it’s face it doesn’t look any different” from the review process today. “But the reality is that, today, moving violations don’t count.”
While an auditor may “note that there’s X number of speeding tickets or violations of 392.2 – the catch-all for every state and local rule,” most often speeding infractions, Vise says, when it comes to scoring for a rating, they really don’t come into play in the end.
“Because these have never factored into a compliance review before, it wasn’t 100 percent clear how it would factor into an investigation” under the SFD. “It looks the same, but it really isn’t, and the reason is that they are going to count moving violations.”
In the language of the SFD proposed rule, “Only one violation of a critical regulation, at a 10 percent or higher violation rate, would be required to fail a BASIC, whereas, in the current process, two violations of critical regulations are generally required to fail a Factor” (a reference to the six areas assessed to determine the safety rating during compliance reviews today).
Which takes us back to the Q&A above. Vise believes it signals a new way of thinking about moving violations in the audit process for FMCSA. If the driver’s logs are records related to speeding violations, and the driver’s logs are coming from ELDs — under the mandate, GPS pings are required at least on the hour — the ELD, ultimately, could be the auditor’s radar gun. Just as GPS tracking systems make it simple for auditors to uncover and declare hours violations, uncovering a speeding violation without the obvious evidence of a ticket will be that much easier, no doubt. (Using paper logs to uncover a speeding violation might catch only the most egregious of speeders, as Vise notes in a blog post on his site published after we spoke this morning.) And under the new SFD, they’ll count, Vise says. If the SFD process as proposed becomes regulation, and the ELD mandate isn’t struck down by the federal courts or otherwise derailed, on-site auditors may garner an extra-effective tool in their arsenal for declaring a carrier Unfit, given added evidence to prove critical violations in two BASICs.
All of it represents a shift in the philosophy around assessing management control of safety during on-site reviews, Vise says. As he wrote:
Except in the case, arguably, of a one-truck owner-operator, assessing a carrier’s safety management on the basis of moving violations represents a shift in philosophy away from focusing squarely on the actions management can take to ensure compliance. Even with HOS and logging violations a carrier at least has the opportunity to audit logs and address issues through training, discipline and, ultimately, termination.
Monitoring moving violations in real time, however (except for a one-truck independent), requires investment in systems that are expensive for small fleets, for sure. “Realistically,” Vise says, “there’s only so much you can do to monitor moving violations in real time.” Speed limiters, for instance, don’t solve the problem of, say, 55 in a 45. “Anecdotally, we hear that most speeding violations are in work zones, or other areas where drivers are not driving at top speed.
“Yes, you can install a lot of technology to monitor some of the speeding, and you could install cameras on the trucks and determine improper lane changes and following too close, and the like. You could spend all this money, but a small guy can’t afford it – it’s not so much of an issue for a one-truck owner-operator.”
In any case, things to think about — and comment on, surely — as the reply-comment period continues for FMCSA’s SFD rule proposal.