DOT IG Begins Audit of CSA

The U.S. Department of Transportation (DOT) Inspector General’s (IG) Office announced today that they have officially begun their audit of FMCSA’s Compliance, Safety, Accountability (CSA) initiative. The initiative, which aims to measure and prioritize safety levels for motor carriers through crash and other data factors, has drawn criticism from Members of Congress and the transportation industry for how it measures and scores truck safety.

On September 13, 2012, the House Transportation and Infrastructure, Subcommittee on Highways and Transit held an oversight hearing entitled: “Evaluating the Effectiveness of DOT’s Truck and Bus Safety Program.” At the hearing TIA Board Member Bruce Johnson, C.H. Robinson Worldwide testified on the adverse effects to the brokerage industry brought about by the CSA initiative.

Following the hearing, Highways and Transit Subcommittee Chairman John Duncan (R-2nd/TN) and Ranking Member Peter DeFazio (D-4th/OR) made an official request for the DOT IG to audit the program and evaluate FMCSA’s implementation of CSA. Specifically, they requested that the audit assess whether FMCSA has (1) established adequate controls to ensure the quality of the data used to evaluate carrier performance and risk, and (2) effectively implemented CSA enforcement interventions.

The audit is scheduled to begin shortly and should take a few months to formally complete.

DOT Reiterates Marijuana Not Authorized

On December 3, 2012, the U.S. Department of Transportation’s (DOT) Office of Drug and Alcohol Policy Compliance issued a Notice to address the recent passage of state initiatives purporting to legalize marijuana use for recreational purposes.

The DOT requires testing of applicants and employees in safety-sensitive transportation positions – such as pilots, truck drivers, train engineers, ship captains, school bus drivers, and pipeline emergency response personnel – for marijuana, cocaine, opiates, amphetamines, and phencyclidine (PCP). Applicants must be drug tested before they begin performing DOT-covered safety-sensitive duties, and employees must be drug tested in certain circumstances, including following an accident, randomly, and when reasonable suspicion of drug use exists. All confirmed positive drug tests are reviewed by a medical review officer (MRO). During that review process, the test subject is permitted to provide the MRO with information that would explain the positive test result, such as a prescription. If the test subject provides a legitimate medical explanation for the confirmed positive test result, then the MRO will report the test result to the (prospective) employer as verified negative. If the test subject does not provide a legitimate medical explanation, he or she must be removed from safety-sensitive duties and referred to a substance abuse professional for evaluation.

After the passage of medical marijuana laws by several states, the DOT took the position that an MRO may not report a confirmed positive test for marijuana as verified negative based on information that a physician recommended that the test subject use marijuana to alleviate the symptoms of a debilitating medical condition. In October 2009, the DOT’s Office of Drug and Alcohol Policy Compliance issued a Notice stating that it “want[ed] to make it perfectly clear” that its drug and alcohol testing regulations “do[] not authorize ‘medical marijuana’ under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.” The DOT emphasized that “marijuana remains a drug listed in Schedule I of the Controlled Substances Act” and that it “remains unacceptable for any safety-sensitive employee subject to drug testing under the [DOT’s] drug testing regulations to use marijuana.”

Not surprisingly, the DOT has responded similarly to the passage by Colorado and Washington of laws purporting to legalize marijuana use for recreational purposes. On December 3, 2012, the DOT’s Office of Drug and Alcohol Policy Compliance issued a Notice stating that it “want[ed] to make it perfectly clear that the state initiatives will have no bearing on the [DOT’s] regulated drug testing program . . . [which] does not authorize the use of Schedule I drugs, including marijuana, for any reason. Therefore, [MROs] will not verify a drug test as negative based upon learning that the employee used ‘recreational marijuana’ when states have passed ‘recreational marijuana’ initiatives.” The DOT also took the opportunity to reiterate its position regarding medical marijuana use.

The bottom line is that applicants for and employees in safety-sensitive transportation positions will not be allowed to explain away a confirmed positive test for marijuana based on recreational or medical use purportedly authorized by state law.

CARB Regulations to Take Effect in One Month

The new California Air Resources Board (CARB) regulations take effect on January 1, 2013. These include the Transport Refrigeration Unit (TRU) Airborne Toxic Control Measure (ATCM) regulation and the Heavy-Duty (Tractor-Trailer) Greenhouse Gas (GHG) regulation.

In summary, the TRU ATCM requires brokers and forwarders to contract with and ensure compliance of all reefer units traveling on California highways and railways. This regulation will affect all brokers and forwarders regardless of where they are domiciled.

The Heavy-Duty (Tractor-Trailer) GHG regulation currently only holds California based brokers (this includes agents and remote offices) responsible for ensuring compliance on all 53ft box-type trailers (including dry-van and reefers) and the heavy-duty tractors that haul them traveling on California highways.

If a motor carrier is found to be non-compliant and operating on a California highway, the broker, the carrier, the driver, the shipper, and the receiver could be subject to a $1,000 fine per incident.

FMCSA Clarified Brokerage Licensing

On July 6, 2012, President Obama signed into law H.R. 4348, the “Moving Ahead for Progress in the 21st Century Act” (MAP-21), the all-encompassing transportation reauthorization bill. The MAP-21 language included the Fighting Fraud in Transportation Act (FFIT), which was the compromised legislative language carefully crafted by the three leading transportation trade associations; the American Trucking Association (ATA), the Owner-Operator Independent Drivers Association (OOIDA), and the Transportation Intermediaries Association (TIA).

Included in the law is clarification language that states that entities providing interstate brokerage services must comply with all licensing and registration requirements. TIA staff was contacted by our counterparts from the Airfreight Forwarders Associations (AfA) and the National Customs Brokers & Forwarders Association of America (NCBFAA), who expressed concerns over this language and felt like they would be “wrongfully” included to the bonding and licensing requirements. TIA and our counterparts were able to work out a compromise to exempt these entities to the extent that these entities are engaging in their normal business activities as defined by their specific statutory language.

Officials from the AfA and NCBFAA recently met with FMCSA staff to ensure proper interpretation of this language by the Agency. FMCSA was able to confirm that customs brokers, NVOCCs, and indirect air carriers who arrange for trucking in order to facilitate or otherwise participate in the through movement of international cargo via ocean or air will not by subject to brokerage licensing and registration requirements. FMCSA officials did make a point to promulgate that if these entities are arranging for trucking in a purely domestic context regardless of having a license and authority from the U.S. Customs and Border Protection (CBP) or the Federal Maritime Commission (FMC) they are subject to FMCSA brokerage licensing and registration requirements.

FMCSA Announces Improvements to the SMS

On August 24, 2012, the Federal Motor Carrier Safety Administration (FMCSA) posted in the Federal Register a final notice a package of improvements to the Carrier Safety Measurement System (SMS) as part of the Agency’s broader Compliance, Safety, and Accountability (CSA) initiative.

The following provisions will take effect in December 2012:
Strengthening the Vehicle Maintenance BASIC by moving cargo/load securement violations from the Cargo-Related BASIC to the Vehicle Maintenance BASIC.Renaming the Cargo-Related BASIC the HM BASIC.

Better Align the SMS with the Intermodal Equipment Provider (IEP) regulations.

Aligning violations that are included in SMS with the Commercial Vehicle Safety Alliance (CVSA) inspection levels by eliminating the vehicle violations derived from driver-only inspections and driver violations from vehicle-only inspections.

Improving the identification of passenger carriers.

Modifying the SMS website display by changing current terminology and make the distinguish between crashes with injuries and crashes with fatalities. For example: “Insufficient Data” and “Inconclusive”, to fact based definitions that clarify the carrier’s status in each BASIC.

Removing 1 to 5 mph speeding violations.

Lowering the severity weight for speeding violations that do not designate the amount above the speed limit the carrier was traveling.

Aligning paper and electronic logbook violations.

Changing the name of the “Fatigued Driving (Hours-of-Service) BASIC” to the “HOS Compliance BASIC.”

R.I.P. Donald Gwarjanski aka Dan Jetski

We are mourning the tragic loss of our Intern, Donald Gwarjanski. He passed away on August 18, 2012. Don will be dearly missed by everyone at C. L. Services, Inc. He was a treasure to have on our team — we are better people for having known Don.

Employee of the 2nd Quarter 2012 Brian Boston

C. L. Services, Inc. is proud to announce Brian Boston as Employee of the 2nd Quarter 2012. Brian is a relative newcomer to our company however, since day one he has demonstrated a strong commitment and professionalism to his customers and to his position in the sales department, as part of the new business development team. Everyone at the company has great respect for Brian. We are truly proud that he works at C. L. Services, Inc. Congratulations to Brian Boston!!

FMCSA Announces new CSA Crash Weight Research Plan

The following was released today by the FMCSA, in regards to their new CSA crash weighting research plan.

“FMCSA’s top priority is safety. Over the past two years, the agency’s Compliance, Safety, Accountability (CSA) program has been working successfully to make the Nation’s roads safer. CSA aims to identify motor carrier safety problems earlier through better use of data, with the end goal of reducing crashes, injuries, and fatalities.”

“As part of this commitment to safety, FMCSA continually identifies ways to advance the efficiency and effectiveness of its safety programs, including CSA. In this spirit FMCSA is announcing a focused initiative to analyze a process for updating the 100,000 annual State-reported crash records to include a determination of a motor carrier’s role in a crash.”

“Today, the crash reports submitted by the States do not include a determination of whether the motor carrier is responsible for causing the crash. Analysis shows that the current process of including all crashes a motor carrier is involved in is a good predictor of future crash risk.”

“That said, the agency recognizes that additional crash data might further sharpen the ability of the SMS to identify carriers that pose the highest risk. Therefore the agency is conducting a comprehensive analysis which includes the below key steps:

  • A broad study of PARs across the Nation will attempt to determine whether they provide sufficient, consistent, and reliable information that can be used to determine the carrier’s role in a given crash and what other information, including input from other entities in the outcome of a crash determination, should be used to supplement PARs for maximum reliability.
  • FMCSA will conduct analysis to determine if the carrier’s role in a given crash is a better indicator of future crash risk. If so, the analysis will determine the impact of weighting crashes differently in SMS.
  • Throughout this analysis, research will also be reviewed from similar programs in other countries (e.g., Canada) to understand their analysis, processes, and applicability to SMS.”

“The executive summary of FMCSA’s Crash Weighting Research Plan is posted on the CSA website (http://csa.fmcsa.dot.gov/documents/CrashWeightingResearchPlan_7-2012.pdf).”

“The results of this study will be available in the summer of 2013. Based on the results, FMCSA will develop the Agency’s plan forward for determining a carrier’s role in a crash and the potential use of this new information in the Agency’s safety programs– including SMS.”

“FMCSA is committed to continually improving SMS, in a thoughtful, methodical and transparent manner, to ensure that it continues to aid in carrying out FMCSA’s critical safety mission.”

Senate Passes MAP-21

The House and Senate passed the Highway Bill, which they are calling the “Moving Ahead for Progress in the 21st Century” Act, or “MAP-21.” In addition to highway construction and maintenance, and last-minute sections that preserve current interest rates on student loans and other unrelated items, the bill includes a number of provisions that directly affect interstate trucking companies and intermediaries.

You can read the entire 599-page text of the new legislation here — but if you’re interested only in trucking, skip directly to page 380. The new rules for brokers and freight forwarders start on page 422. For a good summary, see this article in DC Velocity.

Here are the highlights that apply to interstate transportation:

1. Disclose family ownership of multiple transportation companies: Carriers, brokers and freight forwarders must disclose any familial relationships with owners of other transportation companies.

2. Ban on “reincarnated” carriers. DOT can revoke registration or authority of a “reincarnated” carrier or levy a fine. This also applies to failure to disclose important facts. (Note: You can use the Alias Search feature of DAT CarrierWatch to help you detect “reincarnated” or “chameleon” carriers.)

3. EOBRs required on all interstate CMVs within two years: DOT will issue rules within a year, so that by 2014, CMVs will install an “electronic logging device” to “improve compliance” with HOS.

4. Establish a national driver registry: There will be a national registry of drivers with CDLs, including driving history and drug and alcohol test results.

5. Minimum driver training standards: Within one year, the DOT will establish national driver training standards for a commercial driver’s license.

6. Unified registration: All motor carriers, brokers and freight forwarders must register, and carriers and brokers must register with separate authority for each function.

7. Broker bond raised to $75,000: (page 426) Brokers are required to post a bond or other financial security of at least $75,000, starting July 1, 2013. The original version had a $100,000 minimum.

8. Stricter regulation of bond and trust companies: More transparency and fairness are required in the payment of clalms by bond and trust companies.

9. CSA and SFD language omitted: The final bill does not include language from the Senate version that referred to the Compliance Safety Accountability (CSA) program and its Safety Fitness Determination (SFD.)

TIA’s Strategy Voice for Washington, D.C.

As TIA Members, C. L. Services, Inc. is in support of the TIA strategy.

As the voice of the third-party logistics industry, TIA will remain the strong, clear voice in Washington, D.C. seeking a comprehensive solution to the issues of negligent hiring and vicarious liability guided by the following tenants:

1. TIA seeks to promote improved standards of safety for motor carriers on American highways.
2. TIA will work with its members to understand and minimize their risks through analyses of court proceedings, the establishment of carrier selection procedures based on current law and interpretation of that law.
3. TIA will work with FMCSA to make CSA the best possible tool to meet its statutory obligation as the sole Agency empowered to determine which carriers are UNSAFE.
4. TIA will work with FMCSA to create a rating system through which ALL carriers are rated either SAFE TO USE (green light) or UNSAFE TO USE (red light), thereby eliminating the traps that exist in the four part rating system,: satisfactory, unsatisfactory, conditional, and unrated.
5. TIA will pursue legislation to protect 3PLs and shippers that utilize the services of carriers rated SAFE TO USE by FMCSA from liability associated with carrier selection.
6. TIA will assist in cases where appropriate to protect the interests of the industry.


TIA’s Desired Outcome

The Department of Transportation is the single government department responsible for building roads, issuing licenses to motor carriers to operate on those roads, and determining the safety fitness of those carriers. Hundreds of thousands of 3PLs and shippers depend on the FMCSA to tell them which carriers should and should not be used. These entities make goods, or arrange transport of goods by FMCSA licensed motor carriers. They should not be placed in the untenable current position to second guess FMCSA decisions, analyze subsets of partially hidden FMSCA data for which they are not qualified to do; or become their own safety audit agency.</br

It should be enough to rely on the Agency’s safety fitness determination, and from that determination, the Agency should determine whether EVERY for-hire carrier is either SAFE TO USE (green light) or UNSAFE TO USE (red light). Shippers and 3PLs should be able to rely on a carrier as being found by FMCSA to be SAFE TO USE as meeting the competence and reasonable care criteria in the selection of an independent motor carrier. To get to this point, however, will take a multi-layered approach: CSA needs to be improved, the Agency needs to finalize its safety fitness determination rulemaking, and the standard for hiring independent contractors (carriers) as interpreted by courts needs to be re-set.

Getting to TIA’s Desired Outcome
Working Within the System: TIA is the voice of the third-party logistics industry. TIA has chosen to work within the system to create an on-going dialogue with FMCSA and leading carrier organizations. TIA’s approach to all issues is to find practical solutions to industry issues. By maintaining good relations with FMCSA and leading carrier organizations, TIA is able to talk informally with FMSCA and the other associations about CSA concerns. TIA will file comments when the Safety Fitness Determination rulemaking is released by FMCSA. TIA talks with and coordinates with other associations, but like other leading industry associations, TIA must maintain its strong, independent voice.