J. J. Keller® Compliance Network

The results

From January 13–15, 2026, Operation SafeDRIVE investigated routes across D.C. and 26 states. These targeted enforcement actions resulted in 8,215 inspections with:

• 1,231 vehicles placed out of service;
• 704 drivers placed out of service; and
• 56 arrests.

The scope

The 26 states covered in addition to Washington D.C. in Operation SafeDRIVE’s scope included Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Illinois, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and West Virginia.

The goal of the operation was to make sure all drivers are properly qualified and that their vehicles meet all the regulations.

1. Rear-impact guard labels

The Federal Motor Carrier Safety Administration (FMCSA) is removing the requirement that rear-impact guards be permanently labeled. Under current rules, trailers are required to have a label certifying that the rear underride guard met federal manufacturing standards at the time it was built.

Though the label is applied by the manufacturer, motor carriers and drivers were expected to ensure it remained in place, a sometimes-frustrating task stretching over the lifetime of the vehicle.

Why the change? The bumper label requirement has been controversial for years. Enforcement agencies and industry groups repeatedly pointed out that the labels frequently fade, wear off, or are removed during repairs, even though the guard itself remains structurally compliant.

Compounding the problem, most manufacturers will not issue replacement certification labels or “re-certify” guards once they leave the factory. As a result, carriers were often cited for a condition they had no practical way to correct.

Although FMCSA previously issued guidance instructing inspectors not to cite missing or illegible labels, confusion persisted at the roadside. Eliminating the requirement altogether resolves that enforcement disconnect without altering the underlying safety standards for rear-impact guards.

What should carriers do?

• Continue inspecting rear-impact guards for structural integrity, mounting, height, and width as required under 49 CFR 393.86 and the annual inspection standards in Appendix A to Part 396.
• Don’t remove existing labels, but understand that their presence (or absence) will no longer determine compliance.
• Update inspection checklists and training materials to remove label verification as a compliance item.

2. Tractor license-plate lamps

Truck tractors will no longer be required to have a functioning rear license-plate lamp while towing a trailer. The lamp will still be required when the tractor is operating without a trailer, however.

Why the change? When a tractor is coupled to a trailer, the rear license plate and its lamp are typically obscured and serve no practical enforcement or safety purpose. The FMCSA concluded that requiring carriers to maintain a lamp that isn’t visible or relevant during normal operations added unnecessary maintenance costs without a safety benefit.

What should carriers do?

• Review maintenance policies to ensure tractors still have operational license-plate lamps when operated bobtail.
• Ensure drivers and maintenance personnel understand when a functioning license-plate lamp is required.

3. Emergency equipment

Drivers will no longer be required to carry spare fuses starting April 20, and they will no longer have the option to use liquid-burning flares as warning devices after March 23. Reflective triangles and/or solid-fuel flares will still be required, as will fire extinguishers.

The rule change for fuses is significant because over 10,000 drivers were cited in 2025 for failing to have them.

Why the change? The spare‑fuse requirement has remained in the regulations for decades, even as vehicle electrical systems have improved. The FMCSA concluded that:

• Blown fuses rarely occur during normal operation and, when they do, the repair is typically handled by maintenance personnel rather than drivers. Nevertheless, spare fuses are widely available at truck stops.
• Other regulations already prohibit operation of a vehicle when required electrical equipment isn’t functioning properly, regardless of whether spare parts are carried.

Similarly, liquid-burning flares are widely considered obsolete and are rarely used in modern fleet operations. Their continued presence in the regulations caused confusion.

What should carriers do?

• Verify that emergency-equipment kits contain at least three compliant reflective triangles or six flares, as appropriate.
• Update driver inspection checklists to remove spare fuses as required items and liquid-burning flares as an option. Motor carriers are free to continue having their drivers carry spare fuses, however.
• Remind drivers that vehicles may not be operated if required electrical systems are inoperative, regardless of whether a spare fuse is available.

What if you’re cited?

Roadside enforcement practices don’t always change overnight. In addition, states that enforce the FMCSA regulations may adopt different effective dates for rule changes. Motor carriers and drivers should be vigilant about reviewing roadside inspection reports and challenging any citations that were issued improperly.

Bearing in mind that state requirements may vary, motor carriers should use the online DataQs system to challenge any erroneous bumper label or license-plate lamp violations cited after March 20, and any spare-fuse violations cited after April 20.

Key to remember: On March 23 and April 20, 2026, three important rule changes go into effect. Be sure your drivers, maintenance personnel, and others know the impact.

Driver OOS Criteria

• ELD tampering: With electronic logging device (ELD) tampering becoming a growing concern, the criteria for placing drivers OOS for log falsification have been clarified to address situations where a record is falsified so much that the officer cannot determine when the driver was driving and/or resting. Drivers will continue to be placed OOS “until such time as eligibility to drive is re-established” if a required log is false due to inaccurate entries and the officer is able to determine when driving and rest breaks occurred. A new criterion was added to place drivers OOS for 10 hours (or 8 hours for passenger carriers) for ELD tampering that makes the entire record suspect and the inspector is unable to verify when driving and resting occurred. Officers will cite 49 CFR 395.8(e)(2) for ELD tampering where the truth cannot be ascertained, and paragraph (e)(1) for false logs when the officer can determine rest periods and drive time.
• ELP violations: A new violation was added to place drivers OOS if the driver cannot satisfy the ELP requirements of 391.11(b)(2), per enforcement guidance issued by the Federal Motor Carrier Safety Administration (FMCSA) in May 2025.
• License-restriction violations: Officers will begin using new citation codes for license-restriction violations, to distinguish them from endorsement-related violations. Drivers without a commercial driver’s license (CDL) will be cited for “392.2NCDLR” (instead of 391.11(b)(5)) if violating a restriction, while CDL holders will be cited for “392.2LCDLR” (instead of 383.23).
• In-state-restricted drivers: The CVSA has clarified the standard for enforcing the “K” (in-state only) restriction, which is intended to keep the driver in their home state. Such drivers will only be placed OOS if they are actually operating in another state at the time of the inspection.
• Alcohol content threshold: The OOS Criteria will now specify the alcohol concentration at which drivers will be placed OOS when in possession of wine or beer, making it easier for officers to apply the existing standard. Drivers will be placed OOS if they possess wine or beer that contains 0.5% or more alcohol by volume or distilled spirits in any dilution.

Vehicle OOS Criteria

• Air connections: The criteria for air-brake hose/tubing were revised to change the term “gladhands” to the more inclusive “service air connections.” In addition, the criteria were changed to clarify the conditions for placing vehicles OOS when the air system is disconnected but still functional.
• Brake pad thickness: The standard for front-axle hydraulic brake pad thickness was updated to say “less than 1/16 inch” instead of “1/16 inch or less” to reflect a thinner measurement than found in 49 CFR 393.47(d)(1).
• Parking brakes: “Parking Brake” was changed to “Parking/Emergency Brake” in the section on parking brake systems due to confusion about whether an automatic transmission placed into Park was considered to have a parking brake control.
• Log securement: New criteria were added to address the use of the “ExTe Com90” hydraulic load securement system for logs.
• Wire rope: A new wire-rope damage chart was added to help inspectors determine when a wire rope is damaged to the point that it’s OOS.
• Upper couplers: A new OOS criterion was added for broken or loose countersunk screws in an upper coupler. Previously, the criteria only addressed bolts, not countersunk screws.
• Rims: A new OOS criterion was added for a broken wheel/rim that has “any missing piece exceeding 3 inches (76.2 mm) in length.”
• Wheel hub lubricant: The criterion for placing vehicles OOS when there is “no visible or measurable amount of lubricant showing in hub” was removed. The CVSA concluded that there is no good way for inspectors to know if there is oil in a hub that requires oil, or grease in hubs requiring grease, due to the many varieties of hubs and hub caps/covers in the marketplace.
• Emergency exit markings: A new criterion was added for emergency exits that are “not properly marked with operating instructions.” The instructions are needed whether the exit is a required exit or a marked exit.
• Placarding: The prior criteria placed vehicles OOS if “50% or more of the required placards for a hazard class are missing.” This was clarified to read “50% or more of the required placards for a category of material (hazard class or division) are missing.”

Key to remember: A variety of changes to the North American Standard Out-of-Service Criteria take effect on April 1, 2026. Reviewing the changes can help avoid being placed out of service.

Be ready, look ready

Looking prepared goes well beyond having a solid lesson plan. It’s about presenting yourself in a way that builds confidence before the session begins.

• Dress neatly and professionally to reinforce your credibility and show that the training matters.
• Bring enough handouts for every driver, plus a few extras.
• Arrive early to organize your materials, gather your thoughts, and welcome participants as they arrive.
• Make sure that all your electronic or technical equipment is set up and functions properly.

Start on time

Beginning your session at the scheduled time sends a clear message. It conveys that the training is important, and so are your drivers’ schedules. Starting late can frustrate those who arrived early or on time and can diminish your credibility before the session even begins. A timely start keeps the group focused and ready to learn.

Open with purpose and perspective

Begin each session by helping drivers understand the purpose of the training and why it matters.

To craft an effective introduction, put yourself in your drivers’ place. If you were attending the session, what would you want to know about it before starting? Framing the session from the drivers’ perspective creates early engagement and helps participants see the session’s value.

Set the tone

A lack of enthusiasm can quickly drain energy from a training session, no matter how strong the content. Displaying confidence and passion for the topic demonstrates your belief in its importance. When drivers see that you care, they’re far more likely to stay engaged.

End on time

Running beyond the scheduled end time can make drivers restless and reduce the impact of your session. Plan to finish about 10 minutes early. This gives you flexibility for discussion, clarifications, or final questions, while still honoring everyone’s time. A timely wrap up helps ensure your session ends with clarity and confidence.

Key to remember: Applying these five core practices sets the foundation for efficient training sessions that keep drivers engaged and deliver lasting results.

What’s changing

Motor carriers should review the changes now to determine how they might impact their operations. Except as noted, the new rules take effect on March 23, 2026:

• Bumper labels: Motor carriers will no longer need to ensure that their vehicles’ rear-impact guards have a permanent certification label from the manufacturer. These labels often fall off or become unreadable over time, resulting in citations even when guards meet the safety standard.
• License-plate lamps: Tractors will no longer need a working rear license-plate lamp while pulling a trailer. If there’s no trailer, the light will need to be operational.
• Spare fuses (effective April 20, 2026): Drivers will no longer be required to carry spare fuses for powering required equipment. The FMCSA says today’s vehicles don’t commonly suffer from blown fuses, making the requirement unnecessary.
• eDVIRs: Though already allowed under 49 CFR 390.32, the vehicle inspection rules in Part 396 will explicitly allow drivers and motor carriers to use electronic drivers’ vehicle inspection reports (DVIRs).
• Auxiliary fuel pumps: Motor carriers will be able to use gravity- or siphon-fed auxiliary fuel pumps with tanks up to 5 gallons, mounted on the trailer and used only when the vehicle is not in motion. The rule revises 393.65(d) to reflect modern small-capacity auxiliary systems used for trailer-mounted equipment. capacity auxiliary systems used for trailer-mounted equipment.
• Fuel tank fill limit: It will no longer be a violation to use fuel tanks that can be filled beyond 95 percent of their capacity. Modern liquid-fuel tanks have vented caps that can safely accommodate a 100-percent fill, the FMCSA says.
• Liquid-burning flares: The FMCSA has removed the option to use liquid-burning flares as emergency warning devices. Drivers must use reflective triangles or solid-fuel flares instead.
• CDLs for military techs: Dual-status military technicians (as defined in 10 U.S.C. 10216) are now explicitly included in the commercial driver’s license (CDL) exemption for military vehicle operations. Previously, only National Guard technicians qualified; Air Force Reserve and Army Reserve technicians were excluded.
• Portable conveyors: Portable conveyors used in the aggregate industry and manufactured before 2010 are now exempt from the “brakes on all wheels” requirement, provided certain weight and speed limits are met.
• Tire markings: The FMCSA has clarified that its rules do not require tire load-rating markings on sidewalls. That requirement falls to manufacturers only, not motor carriers.
• Vision waivers: An obsolete grandfathering provision related to an old vision waiver study program has been removed from the regulations (391.64) in favor of today’s alternative vision standard in 391.44.
• Water carriers: The FMCSA has removed outdated references to “water carriers,” updating parts 365, 370, 379, 386, and 390 to reflect the agency’s lack of jurisdiction over maritime carriers.

More rules on the way?

Additional deregulatory actions proposed last May are still in process but are expected to be finalized soon. This includes rules to:

• Remove the need to carry a user manual for electronic logging devices (ELDs).
• Remove the requirement for drivers to self-report moving violations.
• End the requirement that carriers return completed roadside inspection reports unless requested by the issuing agency.
• Exempt certain buses and hazmat drivers from stopping at railroad crossings equipped with active warning devices (unless the devices are activated).
• Record information about accidents where medical treatment consisted only of imaging or a prescription without actual treatment.
• Delete the outdated requirement to retrofit older trailers with retroreflective tape.

Key to remember: The FMCSA has finalized 12 deregulatory actions among 18 proposed in May 2025. The changes could save time and money for both motor carriers and drivers.

To-do before October 1

Get ready for renewal by taking the following steps now:

• File all your highway use tax returns that are due.
• Pay your taxes. The state will not issue a new certificate of registration if you owe back taxes. Before you apply to renew, make sure that you’ve paid all taxes due under any of the programs administered by the New York State Tax Department, including:
  • HUT,
  • personal income tax,
  • International Fuel Tax Agreement (IFTA),
  • sales tax, and
  • withholding tax.
• Create an online account if you do not already have one and you want to renew your credentials and pay online (https://www.oscar.ny.gov/).
• Make sure your vehicle registration information is correct and accurate. Review and update your information as soon as possible. Incorrect information will delay the processing of your certificates and decals.

Beginning October 1

Once the renewal period opens, renew your credentials and pay your renewal fees online with One Stop Credentialing and Registration (OSCAR).

Submit your renewal application by November 30, 2024, to make sure you receive your decals in time to place them on your vehicles before January 1, 2025.

If you are already enrolled in OSCAR, use your current OSCAR password to renew online.

If you are not enrolled, visit OSCAR, and select Enroll Now. You must have a United States Department of Transportation (USDOT) number and an employer identification number (EIN).

To renew your registration:

1. Visit the OSCAR website and select HUT Renewal from the Business Type drop-down.
2. Enter your information in the USDOT#, NYS Tax ID#, and Password fields, then select Log in.
3. If you have 300 or fewer vehicles, choose either:
   1. Renew all HUT/AFC Certificates of Registration to renew all your active current series permits, or
   2. Select HUT/AFC Certificates of Registration to renew specific permits.
4. If you have more than 300 vehicles, choose either:
   1. Renew all to renew all your active current series permits, or
   2. File renewal to renew select permits.

If you are unable to renew electronically, you may file Form TMT-1.2, Renewal Application for Highway Use Tax (HUT) and Automotive Fuel Carrier (AFC) Certificates of Registrations and Decals – 25th Series.

Key to remember: Take steps now to renew your NY HUT and ensure you receive your new decals before the current ones expire.

The story

In response to the COVID-19 pandemic, an employer implemented a company-wide vaccine mandate. It notified employees that they could seek a religious or medical exemption, but that it would terminate those who didn’t comply.

Jennifer and Katherine, two remote employees, requested religious exemptions.

The employer denied both requests and eventually fired them.

Both employees sued, bringing disability discrimination claims under the ADA. They argued that their employer:

• Made unlawful medical examinations or inquiries, and
• Regarded them as having a disability.

The employees stated that their employer had no valid business reason to inquire into their vaccination status, especially because they were remote employees.

The employees also argued that the employer regarded them as disabled because they were unvaccinated and then fired them for that reason.

The ruling

The ADA defines a disability as a “physical or mental impairment that substantially limits one or more of the individual’s major life activities.” The court said that whether a person is vaccinated or not has no bearing on their ability to engage in major life activities.

The court also said that the employees’ medical exam or inquiry argument was also fatally flawed because an employer’s inquiry into an employee’s vaccination status isn’t disability related.

Finally, a person is “regarded as” having a disability if they’re “subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity.”

Once again, being unvaccinated isn’t a physical or mental impairment. Being unvaccinated, therefore, doesn’t support a “regarded as” claim.

The court ruled that the employer didn’t violate the ADA when it asked about the employees’ vaccination status or when it fired them for being unvaccinated.

Finn v. Humane Society of the United States, Fourth Circuit Court of Appeals, No. 4-1416, November 20, 2025.

Key to remember: According to at least one court, employers don’t violate the ADA if they ask employees about their vaccination status.

Evaluate and encourage

Performance evaluations are a valuable tool for managers to both assess and encourage employees, and to address any workplace issues. They should let employees know how they’re doing, what they can improve, and acknowledge superior job performance. They should also allow employees to share their struggles and have input into developing goals.  

The process of conducting performance evaluations varies depending on a company's policy and culture. Some companies have formal performance review programs, while others have a policy of open communication. Both methods should cover any performance-related issues that arise.  

Strong performance evaluations:

• Define job-related expectations;
• Assess performance against expectations using observable behaviors or outcomes; and 
• Provide written documentation that supports the conclusions reached.   

Evaluations should be conducted by individuals who are knowledgeable about the role and able to make informed assessments based on real work conditions, rather than assumptions or isolated incidents. That means supervisors should base evaluations on regular interaction and documented feedback gathered throughout the review period.   

A living document

One common challenge with performance reviews is that they’re completed and then forgotten. To avoid this, evaluations should be positioned as a reference point for ongoing coaching; not the end of the conversation.

Evaluations may be used to decide whether training or corrective action has been effective and whether more support is needed. Similarly, managers should revisit performance goals during check-ins, tie them to development conversations, and use the evaluation as a living document that spells out? future expectations.   

To make sure evaluations are constructive, it’s important to pair clear expectations with a support plan. This includes showing specific areas for improvement, explaining why those expectations matter, and outlining what resources, training, or coaching will be provided.   

Evaluations should do more than find gaps; they should help determine what comes next and how the organization will support improvement. In practice, this means documenting next steps, timelines, and follow-up discussions, so employees understand both what’s expected and how they will be supported in meeting those expectations.  

Ask the right questions

While the specifics depend on position and job duties, here are 10 questions that can be used to get the ball rolling in a performance evaluation:   

1. What accomplishments in this review period are you most proud of?
2. What tasks or responsibilities have been most challenging for you?
3. Can you share examples of situations where you felt you performed particularly well?
4. Are there areas where you believe your performance could have been stronger?
5. Have expectations been clear, and where could they be clearer?
6. Were there times when you felt unprepared to perform a task? If so, why?
7. What additional training or resources would help you perform your job more effectively?
8. What specific goals should we set for the next review period?
9. What support, training, or tools will help you achieve those goals?
10. How will we measure progress and success?  

Key to remember: Performance evaluations should clearly set expectations, use documented, observable feedback, and serve as a foundation for ongoing coaching, goal setting, and support. They should be more than a one-time conversation.

Reassess the need for accommodation

After employers grant an accommodation, they may assess whether there continues to be a need for the accommodation based on individualized circumstances, including whether alternative accommodations might meet the employee’s needs.

Employers have the discretion to choose between effective accommodations. This means employees aren’t necessarily entitled to their preferred accommodation forever. Employers may, therefore, reevaluate a previously granted remote work accommodation and replace it with an effective, reasonable one. When there are several reasonable and effective options, employers may choose an accommodation other than remote work.

Don’t hide under a blanket

Employers shouldn’t take a blanket approach to rescind and deny all remote work accommodations. In some cases, employees will continue to need remote work as an accommodation. Employers need to look at each situation individually, based on its own merits.

When to reassess the type of accommodation

Employers should occasionally reevaluate accommodations in response to changes, such as changes to:

• An employee’s condition,
• Job requirements,
• Operational needs, and
• A related law.

Employers might also, for example, find it helpful to reevaluate a remote work accommodation once a year to confirm the accommodation remains effective and manageable.

After reassessment

If supported by an individualized assessment, employers may allow the employee to continue to work remotely if doing so is necessary to ensure continued compliance with the ADA.

If, however, reevaluation and individualized assessment demonstrate that an employee no longer needs remote work as an accommodation, employers may replace it with a reasonable and effective in-office option (or combination of options). This can include, but isn’t limited to, assistive devices, modified equipment, environmental modifications (sound, smell, light, etc.), job restructuring, modified or flexible work scheduling, etc. It can also include reducing remote work, combined with in-office accommodations, provided the result is still reasonable and effective.

Key to remember: Employers may review whether employees continue to need remote work accommodations. Employers may rescind remote work accommodations if they no longer suit employee or company needs, but they might have to provide an alternative solution.

Look for systemic patterns

A pattern of incidents at one battery construction site is a great example of how individual decisions and company safety systems intertwine to determine the outcome of daily events. OSHA’s report on the March 2025 death of a company CEO showed that while individual decisions played a role, the fatality occurred within a broader pattern of systemic safety failures at the construction site.

According to Agency findings, the employee chose to cross a roadway while wearing a black vest instead of the required high visibility vest, which drastically reduced the employee’s visibility. At the same time, a site forklift driver was reportedly talking on the phone while operating the vehicle which also contributed to the result of the incident.

OSHA’s conclusions made clear that organizational systems and controls, not just the individuals’ choices, were the primary shortcomings. Multiple companies on site failed to enforce safety rules, maintain traffic controls, or ensure proper operator behavior. For example, the forklift driver’s employer received the largest fine for exposing workers to struck-by hazards and failing to ensure operators followed basic safety practices such as speed limits, phone use, use of spotters, and horn use when visibility was obstructed.

The report reflected an even larger pattern, finding that the employee’s death was one of many safety incidents at the construction mega site, which had recorded dozens of previous traumatic injuries, multiple fatalities, and at least 15 OSHA investigations. Previous incidents included falls, other forklift injuries, a conveyor entrapment, a pipe explosion, and a fatal crushing incident earlier in 2025. This track record should have been an early warning that system-level safety gaps and inconsistent safety management were key contributors, far outweighing any single person’s decisions.

Stomp out systemic failures

While individual decisions like walking into a traffic zone or operating equipment while distracted may influence an incident, they rarely tell the whole story. Root causes usually reflect deeper underlying weaknesses in the organization’s safety systems, such as:

• Fragmented safety oversight that leads to inconsistent enforcement of safety rules, policies, PPE requirements, and behavioral expectations;
• Inadequate traffic and equipment controls that invite a mingling of vehicles with pedestrians or dangerous forklift operational habits;
• Breakdowns in communication between workers including unreported injuries, language barriers, or inadequate signage that results in workers missing warnings or misunderstanding proper procedures; and
• Normalized incidents or near misses, which eventually become serious incidents and fatalities and result in a reactive rather than proactive safety culture.

These conditions can quickly create an environment where ordinary human mistakes are far more likely to lead to severe or fatal outcomes. Employers need to look beyond the individual employee decisions and investigate which systemic failures allowed the decision to become deadly. This is where OSHA regulations help.

Leverage OSHA regulations

You’ve likely heard the saying, “OSHA regulations have been written in blood” meaning someone (or many someones) have been seriously injured in the workplace which resulted in regulations aimed at protecting others from a repeat of similar situations.

Since OSHA was established nearly 55 years ago, its standards and enforcement efforts have helped save more than 712,000 workers’ lives. Even so, employers must continue to identify and strengthen gaps in their safety programs and systems to shield workers from the consequences of inevitable human decisions.

Employers shouldn’t just use OSHA regulations as a means for compliance but to actively protect workers by controlling hazards and setting clear expectations for safe work. Standards such as 1910.147 (Lockout/Tagout), 1910.1200 (Hazard Communication), 1926.501 (Fall Protection), and 1910.178 (Powered Industrial Trucks) give employers concrete requirements for preventing injuries and keeping employees safe on the job. Filling systemic safety gaps by using these standards can prevent thousands of serious injuries and fatalities every year. As demonstrated with this forklift struck-by fatality, most workplace deaths stem from hazards that OSHA rules are designed to control.

Key to remember: Serious incidents and fatalities are rarely caused by individual decisions but by broader system failures like insufficient safety oversight, inconsistent rule enforcement, and poor worksite communication. Employers can prevent these incidents by leveraging regulatory compliance to identify and correct weaknesses in their safety systems.

Choose interviewers

Conduct interviews privately with no more than two interviewers present. By keeping the interviews small and away from others, you have a much better chance of having a factual and productive conversation. The person conducting the interview should be neutral and trusted by employees.

It may be tempting to let management sit in, but a supervisor’s presence may cause an employee to clam up. Keeping this conversation informal can help employees relax and talk more freely. Simply ask what happened and let the witnesses tell the story in their own words. Remind them that the goal of this conversation is to identify hazards, not to get anyone in trouble.

Asking questions

Ask open-ended questions like “describe what happened leading up to the incident” and “what happened next?” Avoid leading questions that might cause someone to make things up in an attempt to answer. Along the same lines, avoid questions that suggest an accusation, such as “do you think he wasn't paying attention?”

Witnesses might give their opinions, and you can make notes, but distinguish between the facts and their opinions. Repeat their conclusions back to them to confirm your understanding.

Keep in mind that memories or viewpoints might differ. Statements from multiple witnesses might be contradictory such that both statements cannot possibly be factual. This doesn't mean either worker is lying. It could just be how they remember the events, or they saw things from a different angle. Of course, some witnesses might describe an incident with the goal of avoiding blame.

As necessary, go back to previously interviewed witnesses for additional information or clarification.

Example situation

Suppose a near-miss incident involved a forklift operator who stopped suddenly, causing the load he was carrying to slide off the tines, nearly striking a pedestrian. You might hear statements like, “I didn't see the forklift” or “the pedestrian came out of nowhere.” Now, that may be how witnesses remember things. But there's probably something else going on.

Follow-up questions might be along the lines of, “what were you focused on at the time of the accident?” Maybe the pedestrian was reading a document or computer pad and didn't see or hear the forklift approaching. Or perhaps the forklift operator was going too fast or failed to stop and sound the horn at an intersection. There could be several contributing factors, and you'll want to identify all of them.

Witness interviews provide valuable information in determining what happened before, during, and after an incident. As an interviewer, your goal is to gather key information while keeping the witnesses comfortable. Remind them the goal of investigating is to help prevent future incidents and injuries, not to blame employees.

Key to remember: Conducting effective interviews requires skill and consideration that goes beyond simply asking, “Tell me what happened.”

Covered establishments

Certain types of food processors and establishments must have a HACCP plan. They're required by the:

• Food and Drug Administration (FDA) for seafood (21 CFR 123) and juice processors (21 CFR 120), and
• U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) for meat, poultry, and processed egg product establishments (9 CFR 417).

Getting started

HACCP plans can only be developed by individuals who have completed standardized HACCP training. Before developing and implementing a written HACCP plan, you must:

• Conduct a hazard analysis to identify and evaluate all of the potential biological, chemical, and physical food safety hazards associated with each step in your production process for each product made. Steps include receiving, storage, mixing, cooking, cooling, etc.
• Determine which hazards are likely to cause illness or injury if they’re not properly controlled.

FSIS-covered operations (meat, poultry, and processed egg products) also must create a flow chart that shows each step in how your product moves through the facility, from raw materials to the finished item. This helps everyone see the full process in order. Be sure to describe in the flow chart how the final product will be used and who the intended consumers are.

Drafting the HACCP plan

You could say the HACCP plan, itself, is the “meat and potatoes” of your food safety efforts. Certain plan elements must be included though. At a minimum, your HACCP plan must:

• List the food safety hazards (identified in the hazard analysis) that must be controlled for each process;
• List the CCPs for each of the identified food safety hazards, including, as appropriate, CCPs designed to control food safety hazards that:
  • Could be introduced inside your establishment; and
  • Are introduced outside your establishment, including those that occur before, during, and after entry into your establishment;
• List the critical limits that must be met at each of the CCPs. At the very least, critical limits must be designed to ensure that applicable targets or performance standards are met;
• List the procedures that will be used to monitor each of the CCPs to ensure compliance with the critical limits, and include the frequency you will perform those procedures;
• Include all corrective actions you’ll follow in response to any deviation from a critical limit at a CCP;
• Provide for a recordkeeping system that documents actual values and observations found during CCP monitoring; and
• List the verification procedures that your establishment will use and the frequency you will perform those procedures.

Your written HACCP plan is not complete unless it’s signed and dated. For FSIS-covered facilities this must be done by a “responsible establishment official.” This is defined under 9 CFR 417 as “the individual with overall authority on-site or a higher level official of the establishment.” The signature indicates that your establishment accepts and will implement the HACCP plan. The plan must be dated and signed:

• Upon initial acceptance,
• Upon any modification, and
• At least annually upon reassessment.

HACCP plans for seafood and juice processors must be signed and dated by "the most responsible individual onsite at the processing facility or by a higher level official of the processor." The plan must be dated and signed:

• Upon initial acceptance,
• Upon any modification, and
• Upon verification and validation in accordance with 21 CFR 120.11.21 (juice processors) and 21 CFR 123.8(a)(1) (seafood processors).

Key to remember: HACCP plans are required for certain food processors. By identifying food safety hazards, controlling them at the right points, and maintaining clear monitoring, corrective action, and verification practices, your food establishment can consistently protect consumers and meet regulatory expectations.

Choosing a NAICS code

OSHA does not assign NAICS codes. Employers know their operations best and must select the most applicable code. For example, suppose a company engages in both plastics manufacturing and chemical manufacturing. The plastics division has the most employees, but the chemical division generates the most revenue. Which NAICS code should the company use? The company could use either, but might consider the electronic filing obligations.

Plastics manufacturers must file the 300A, 300 Log, and 301 Forms if the establishment has 100 or more employees. However, chemical manufacturers file only the 300A regardless of employee count. This company might choose the NAICS code for chemical manufacturing since that generates the most revenue and would only have to file the 300A.

One location, two establishments?

Normally, a single physical location counts as one “establishment” for injury recordkeeping. In rare cases, a single location with more than one business operation might be divided into more than one establishment. If this happens, each establishment (operation) would maintain a separate 300 Log and could even have different electronic reporting obligations.

The previous example of a chemical and plastics manufacturer probably doesn’t qualify as two separate establishments. OSHA offers an example where two separate business establishments operate from the same physical address. The agency noted, “if an employer operates a construction company at the same location as a lumber yard, the employer may consider each business to be a separate establishment.”

According to the regulation at 1904.46, an employer might consider two or more separate businesses that share a single location to be separate establishments only when:

• Each of the establishments represents a distinctly separate business;
• Each business is engaged in a different economic activity;
• No single NAICS code applies to the joint activities; and
• Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information.

If these criteria do not apply, the employer must choose one NAICS code for the entire operation.

Employer Identification Number (EIN)

When preparing for electronic submission of injury records, employers also need to include their Employer Identification Number, or EIN. This is a tax identification number for a company, similar to a Social Security Number, but for a business.

Some locations might have more than one EIN. That does not automatically mean the location constitutes two or more “establishments” for OSHA recordkeeping and reporting. However, if each operation meets the criteria for separate businesses, the employer might maintain separate 300 Logs (and potentially have different e-reporting obligations) for each business operation.

Key to remember: If more than one NAICS could apply, the employer chooses which code to use for electronic filing of injury data. Though unusual, a single location might be divided into separate business operations and treated as two establishments.

Letters of Interpretation

As clarified in an OSHA Letter of Interpretation (LOI) dated October 18, 1995, “When any part of the body of an entrant breaks the plane of the opening of a PRCS large enough to allow full entry, entry is considered to have occurred and a permit is required, regardless of whether there is an intent to fully enter the space.”

This definition of “entry” might seem to be too strict. Still, OSHA’s letter clarifies that there are situations where a partial entry would be hazardous: “Examples of situations where entry by only part of the body into a PRCS can expose an entrant to the possibility of injury or illness are as follows:

1. An entrant can possibly suffer a burn while reaching into a PRCS, which is so classified because it contains a thermal hazard.
2. An entrant can possibly fall into a below-grade PRCS while standing on a vertical ladder in the opening of the space, which is so classified because it contains an oxygen-deficient atmosphere.
3. An entrant can possibly become unconscious as result of his head accidentally entering a PRCS while they are reaching into a PRCS, which is so classified because it contains an oxygen deficient atmosphere.”

As another example, if the space contains a flammable or oxygen-enriched atmosphere, and if the activities during a partial entry could produce a spark or other ignition source, then a fire in the space could flash out of the opening and cause serious injuries to the employee.

OSHA’s guidance continues

This doesn’t necessarily mean you’d be fined if a permit wasn’t followed when someone reached a tank. OSHA’s guidance continues: “However, if entry by only part of the body does not expose the entrant to the possibility of injury or illness, then the violation may be considered a ‘de minimis’ violation.”

A de minimis violation is one in which a standard is violated, but the violation has no direct or immediate relationship to employee safety or health. These violations are documented but no citations are issued.

OSHA says examples of situations where entry by only part of the body into a PRCS would not expose an entrant to the possibility of injury or illness are as follows:

1. An entrant reaches through the opening of a horizontal PRCS, which is so classified only because it contains exposed live electrical parts ten feet from the opening.
2. An entrant puts his head through the opening of an overhead PRCS, which is so classified only because it contains unguarded rotating parts ten feet from the opening.

Also, consider a situation such as a worker reaching through a small grate to take a sample from a permitted space. The LOI further states, “If a part of the body were placed in an opening through which the worker could not pass into the permit-required confined space, no PRCS entry will have occurred.”

Keep in mind, however, that the employee would still need protection from any hazards involved in the task, but a permit would not be needed.

Key to remember

When any part of the body of an entrant breaks the plane of the opening of a PRCS large enough to allow full entry, entry is considered to have occurred, and a permit is required.