Comprehensive Safety Analysis 2010 (CSA 2010)

A number of employers have raised questions and concerns related to the Federal Motor Carrier Safety Administration’s (FMCSA) Comprehensive Safety Analysis 2010 (CSA 2010) initiative and its impact on the highway industry. A lot of confusion, misinformation, and misconception abounds and is causing anxiety for many employers.

Comprehensive Safety Analysis 2010 is a new FMCSA safety program to improve large truck and bus safety and ultimately reduce crashes. It introduces a new enforcement and compliance model that allows FMCSA and its state partners to contact a larger number of carriers earlier in order to address safety problems before crashes occur.

CSA 2010 replaces SafeStat with a new Safety Measurement System (SMS) that measures the previous two years of roadside violations and crash data. With SMS, every inspection counts, not just out-of-service violations, and both driver and carrier safety performance are monitored.
CSA 2010 is currently being tested in six states. When CSA 2010 is fully implemented by the end of 2010, SMS will replace the Safety Status (SafeStat) measurement system as FMCSA’s tool to identify high-risk motor carriers requiring interventions in order to improve safety on the Nation’s roads. SMS will evaluate the safety of individual motor carriers by considering all safety-based roadside inspection violations, not just out-of service violations, as well as State-reported crashes, using 24 months of performance data. SMS will assess each carrier’s safety performance in each of the Behavior Analysis and Safety Improvement Categories (BASICs): Unsafe Driving, Fatigued Driving (Hours-of-Service), Driver Fitness, Controlled Substances/Alcohol, Vehicle Maintenance, Cargo-Related, and Crash Indicator. SMS calculates a measure for each BASIC by combining the time and severity weighted violations/crashes (more recent violations are weighted more heavily) normalized by exposure (e.g. number of power units or number of relevant inspections). Applying a similar approach to that used in SafeStat, SMS converts each carrier’s BASIC measures into percentiles based on rank relative to peers. SMS will be updated monthly.

There are six important differences between the new Safety Measurement System (SMS) and the current measurement system, SafeStat:
1. SMS is organized by seven specific behaviors (BASICs) while SafeStat is organized into four broad Safety Evaluation Areas (SEAs).
2. SMS identifies safety performance problems to determine the intervention level while SafeStat identifies carriers for a compliance review.
3. SMS emphasizes on-road performance using all safety-based inspection violations while SafeStat uses only out-of-service and selected moving violations.
4. SMS uses risk-based violation weightings while SafeStat does not.
5. SMS will eventually be used to propose adverse safety fitness determination based on a carrier’s own data while SafeStat has no impact on an entity’s safety fitness rating.
6. SMS provides a tool that allows investigators to identify drivers with safety problems during carrier investigations.

A carrier who fails an audit is notified within 45 days and given 60 days to correct the problem or lose its operating authority. Passenger carriers and hazmat haulers are given only 45 days to correct violations.

Under the new rules a carrier automatically fails if an auditor finds a single occurrence of these violations. FMCSA looked back at audits conducted in a recent five year period and estimated that 47.9% would have been failures under the new rules. Since about 40,000 audits are done each year, that means more than 19,000 Motor Carriers could now fail annually. “One would not necessarily expect such a high failure rate to persist after the rule is implemented,” FMCSA noted in a December 2008 Federal Register notice. “Upon implementation of this rule, many carriers will take the appropriate action to pass the stricter new entrant safety audit, and the actual failure rate will be significantly lower.”

Safety regulations that are being called the “15 deadly sins” that will result in failure of a motor carrier entrant audit:
1. Failing to implement an alcohol and/or controlled substances testing program.
2. Using a driver who has refused to submit to an alcohol or controlled substances test required under Part 382.
3. Using a driver known to have tested positive for a controlled substance.
4. Failing to implement a random controlled substances and/or alcohol testing program.
5. Knowingly using a driver who does not possess a valid CDL.
6. Knowingly allowing, requiring, permitting, or authorizing an employee with a commercial driver’s license which is suspended, revoked, or canceled by a state or who is disqualified to operate a commercial motor vehicle.
7. Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a commercial motor vehicle.
8. Operating a motor vehicle without having in effect the required minimum levels of financial responsibility coverage.
9. Operating a passenger carrying vehicle without having in effect the required minimum levels of financial responsibility coverage.
10. Knowingly using a disqualified driver.
11. Knowingly using a physically unqualified driver.
12. Failing to require a driver to make a record of duty status.
13. Requiring or permitting the operation of a commercial motor vehicle declared "out-of-service" before repairs are made.
14. Failing to correct out-of-service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again.
15. Using a commercial motor vehicle not periodically inspected.

There are five important differences between CSA 2010 interventions and FMCSA’s current compliance review (CR):
1. CSA 2010 provides a set of tools to address carriers' safety problems; the CR is a one-size-fits all tool.
2. CSA 2010 interventions provide the ability to focus on specific safety problems while the CR requires a broad examination of the carrier.
3. CSA 2010 interventions focus on improving behaviors that are linked to crash risk; CR is focused on broad compliance based on a set of acute/critical violations.
4. CSA 2010 focused onsite investigations and offsite investigations are less resource intensive and less time consuming for the carrier; CRs are resource intensive.
5. CSA 2010 investigations may take place at a carrier’s place of business or offsite; CRs are generally conducted onsite
Under CSA 2010, all carriers--and eventually all drivers--with sufficient safety data available will receive a safety rating that is periodically updated. CSA 2010 intends to use new data--such as information from police accident reports about driver-related factors contributing to a crash--and improve existing data sources--by, for example, using its database of licensed commercial drivers to identify all drivers with convictions for unsafe driving practices, as well as the carriers they work for--to enable a more precise assessment of safety problems.

Below are three actions that a carrier can do to prepare for CSA 2010:
Check and update your records: Ensure your Motor Carrier Census Form (MCS-150) is up-to-date and accurate. Routinely monitor and review inspection and crash data (http://ai.fmcsa.dot.gov or through FMCSA’s Portal).

Maintain copies of inspection reports and evidence related to any observed violations, identify and address trends or patterns in your company, and challenge any potentially incorrect data using DataQs(https://dataqs.fmcsa.dot.gov/login.asp). FMCSA is currently exploring the option of providing motor carriers the ability to review their own safety performance data by Behavior Analysis and Safety Improvement Category (BASIC) prior to the Safety Management System (SMS) launch; stay tuned for forthcoming information on this topic, www.csa2010.fmcsa.dot.gov.

Visit the CSA 2010 Website: FMCSA regularly updates materials on the CSA 2010 website -www.csa2010.fmcsa.dot.gov. You will find explanations, answers to questions, tips, and guidance. You can sign up for an email subscription or RSS feed to receive the most up-to-date information. You can also submit questions and review a full set of Frequently Asked Questions (FAQs). Be sure to review the materials about SMS and the new BASICs – understanding the new SMS is an important step in preparing for CSA 2010. Carriers will be able to preview their SMS data in the near future and they should take advantage of this opportunity. Monitoring the CSA 2010 Website will alert carriers to when and where the preview will be available.
Ensure compliance: Review your inspection and violation history for the past two years. Identify patterns, trends, and areas needing improvement and begin to address these now. Examine your business processes to determine how they may be contributing to any safety compliance problems. Take steps to increase your drivers’ awareness that inspections are more important than ever, that all violations count, not just Out-of-Service violations, and that their performance directly impacts their driving records and the safety assessment of their employing carrier.

DOT PUBLISHES NOTICE OF PROPOSED RULEMAKING FOR DRUG & ALCOHOL TESTING

Those of you who read the January issue of this publication may remember the comment that the U.S. Department of Transportation (DOT) was going to publish a notice of proposed rulemaking (NPRM) in the near future. Well, here it is; on February 4, 2010, DOT published the NPRM for 49 CFR Part 40. A copy may be obtained from the Federal Register web site at: http://edocket.access.gpo.gov/2010/pdf/2010-2315.pdf

Why is DOT doing this? As mentioned last month, DOT is required by The Omnibus Transportation Employee Testing Act of 1991, to use laboratories certified by, and testing procedures of, the U.S. Department of Health and Human Services (HHS) to ensure ``the complete reliability and accuracy of controlled substances tests.'' Since Congress specifically limited the scientific testing methodology upon which the DOT can base its drug and alcohol testing regulations, the DOT must follow the HHS scientific and technical guidelines. The NPRM is an attempt by the DOT to amend certain provisions of its drug testing program to create consistency with the new technical requirements established by the HHS Mandatory Guidelines.

The major changes that the DOT is proposing are as follows:

1. The DOT proposes changing some of the definitions and adding a few new ones to make them consistent with the HHS definitions.

2. The DOT proposes to allow employers to have the option to choose between using a full service drug testing laboratory and an Instrumented Initial Test Facility (IITF).

3. The DOT wants to add IITF’s to the laboratory section of their regulation and spell-out how an IITF should perform urine drug testing.

4. The DOT is proposing to adopt the following additional HHS laboratory testing requirements:

- Conduct initial testing for methylenedioxymethamphetamine (MDMA) commonly known as ``ecstasy,''
- Conduct confirmatory testing for methylenedioxyamphetamine (MDA), and methylenedioxyethylamphetamine (MDEA), which are close chemical analogues of MDMA,
- Conduct initial testing for 6-Acetylmorphines (Heroin),
- Lower the initial test and confirmatory test cutoff concentrations for Amphetamines; and
- Lower the initial test and confirmatory test cutoff concentrations for Cocaine.

5. The DOT is also proposing to amend Appendix B so that IITF’s will be required to report semi-annual test results to employers and Appendix C so that IITF’s would report semi-annual test data to the DOT.

6. The HHS Mandatory Guidelines will require that nationally recognized Medical Review Officer (MRO) certification entities or subspecialty boards for medical practitioners must have their qualifications, training programs, and examinations approve by the HHS on an annual basis. The DOT is seeking comments on whether Part 40 should also require these groups to be approved.

There are a number of other issues that the DOT also addresses in the NPRM. Many of these are related to the HHS procedural requirements, some of which the DOT does not want to adopt. For example, the DOT does not propose to require observers to receive advanced formalized training to learn about the steps necessary to perform a direct observation collection. The DOT does not propose to change their current requirement that a collector need not obtain prior approval from a collection site supervisor before performing a directly observed collection. Also, the DOT will continue to require collection sites to keep Copy 3 of the Custody and Control Form for only 30 days versus the new HHS requirement to keep the form for two years.

Other issues are related to the HHS requirement to audit 5 percent or a maximum of 50 collection sites; a 3 percent level of blind specimen testing versus current DOT 1 percent requirement; MRO record retention time frame and type of records that MROs maintain; and limits on IITF and MRO relationships.

A few of the issues may be of interest to employers. For example, what exactly is an Instrumented Initial Test Facility (IITF)? It is a mouthful, but the answer is relatively simple. The HHS published Proposed Revisions to their Mandatory Guidelines in the Federal Register on April 13, 2004. At that time, they proposed establishing permanent locations where initial testing, reporting of results, and record keeping were to be performed under the supervision of a responsible technician. These facilities would be certified by the HHS, but would not have the full capabilities to conduct confirmation testing. Any non-negative results would have to be forwarded to one of the current certified laboratories. The assumption was that some laboratories might want to establish IITFs to be closer to their customers and provide faster negative results to employers.

At this point, there are no IITFs established, so it is difficult to state how effective and how widely they will be used. As mentioned, the DOT will give an employer the option to use an IITF or a “regular” laboratory. One scenario, which may require watching, is whether or not use of IITFs will increase the lag time for reports related to non-negative results. In other words, if an IITF comes up with a non-negative result, they must package the specimens and forward them to the laboratory that can conduct confirmation testing. Will this increase the length of time for reporting non-negative results remains to be seen?

Although not clearly stated, another issue of interest is that the HHS will require initial testing for 6-Acetylmorphines without waiting for the MRO to request this test. The presence of this metabolite is proof of heroin use and the MRO does not have to find clinical evidence of illegal drug use. Of importance to employers is the fact that most of these changes – which may change again after comments from the public – will need to be added to their current drug and alcohol policies.

The DOT is requesting comments to their NPRM by April 5, 2010. Although the proposed changes do not seem to be dramatic or extensive, nevertheless, it behooves employers to read the NPRM and provide input to the DOT. Procedures on how to provide comments are listed in the NPRM.

DOT Drug and Alcohol Testing - Past, Present and Future

Well, this is the start of a new year and a time to reassess where we have been, where we are, and where we are going. Last year, 2009, was a year that concentrated primarily on one item in the DOT drug-testing program – direct observation testing for return-to-duty and follow-up testing. All the energies and efforts of the DOT were spent defending their decision – and they were ultimately successful in the courts.

Interestingly enough, although this seemed a controversial subject, there really was little fallout from this policy decision – collection sites seemed to accept the fact that they now had to do direct observation collections in these situations (something that employers had an option to do anyway under the previous policy) and employers seemed to accept this change as the price of doing business. Other then that and the fact that the economy was taking a hit, 2009 was a dull year.

Current status? Employers must continue to meet the Federal regulatory requirements for conducting drug and alcohol testing; the program is not going away. As the economy improves, employers must not forget that drug testing is one of those operational necessities that must be in place – no different than other personnel and operational policies and procedures that they have to have in place to meet Federal and other legislative requirements to stay in business. As employers return to a hiring posture, more pre-employment drug and alcohol testing will have to take place and employers need to plan for this added cost increase.

The future – since no one can predict it – is a lot more fun! What will happen is any ones guess. However, there are a few indicators that the program will get a little more complicated and require more diligence to implement. Two things will be happening within the next few months. On November 25, 2008, the Department of Health and Human Services (HHS) published a revision of their Mandatory Guidelines for Federal Drug Testing Programs, which will become effective May 1, 2010. This Final Notice addresses collection and testing of urine specimens, the requirements for the certification of Instrumented Initial Test Facilities (IITFs), the role of and standards for collectors and Medical Review Officers (MROs), and adds additional drugs to those currently being tested. A copy of the revised guidelines is available at: http://workplace.samhsa.gov/DrugTesting/Files_Drug_Testing/Federal/frmanguide2008.pdf.

Proposed Revisions to the Mandatory Guidelines addressing the use of point of collection testing (POCT), oral fluid testing, sweat patch testing, hair testing, and associated issues will be published at a later date. According to the HHS, with regard to the use of alternative specimens including hair, oral fluid, and sweat patch specimens in Federal Workplace Drug Testing Programs, significant issues have been raised by Federal agencies during the review process, which require further examination, and may require additional study and analysis. When and if HHS approves use of alternative specimens, then the whole landscape of Federal drug testing will change. Employers will have major changes to contend with and a staggering amount of new procedures to implement.

The second item of interest is that HHS published a Notice of Proposed Revisions to the Federal Custody and Control Form (CCF), revising the form to conform to the revised Mandatory Guidelines, which will expand the drug testing profile to include new drug analytes:

• methylenedioxymethamphetamine (MDMA) commonly known as ``ecstasy,''
• methylenedioxyamphetamine (MDA), and methylenedioxyethylamphetamine (MDEA) which are close chemical analogues of MDMA.
  
  

A major change is to discontinue recording split specimen test results on Copy 1 of the Federal CCF. Instead, Step 5b of Copy 1 will be used to identify the split testing laboratory (i.e., laboratory name, city, and State), to indicate that the split specimen was tested, and to refer to a separate laboratory report for the split specimen test results. These new regulatory actions will require that the Federal CCF be modified to accommodate the new rule changes. Employers, and especially collection sites and MROs are encouraged to review this document and provide their input to HHS by January 19, 2010. (A copy of the Notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-27371.pdf.)

So, what does all this have to do with the DOT drug testing requirements? Good question and here is the final answer – everything. The Omnibus Transportation Employee Testing Act of 1991, requires the DOT to use the laboratories certified by, and testing procedures of, the U.S. Department of Health and Human Services to ensure ``the complete reliability and accuracy of controlled substances tests.'' Since Congress specifically limited the scientific testing methodology upon which the DOT can rely in making its drug and alcohol testing regulations, The DOT must follow the HHS scientific and technical guidelines, including the amendments to their Mandatory Guidelines. However, the DOT has some options on procedural aspects of the program and these may, in fact, be different from those published by the HHS.

What does this mean in the long run? Well, the DOT will have to publish interim guidelines or interim rule making, give the public time for comments, and then publish a final rule. All of this will take time and the DOT will probably set up reasonable time frames to accomplish these changes. Forewarned is forearmed; employers will have to be aware of these upcoming changes and in some cases, like the additional drugs for testing, will have to add these changes to their current policies.

Bottom line: stay tuned to this publication and we will keep you up to date. Lets hope that 2010 will be a more productive year for everyone.