By Eric Miller, Staff Reporter, Transport Topics

The trucking industry’s widely held concerns that recent changes to the federal safety-rating program are causing sudden, dramatic shifts in some carriers’ scores is justified, according to an analysis by several companies that help fleets manage their safety programs.

Changes to the Federal Motor Carrier Safety Administration’s new Compliance, Safety, Accountability program included moving cargo securement violations to the vehicle maintenance category and creating a new stand-alone hazardous materials category.

As a result, a trend has emerged: lower hazmat scores for some carriers that haul hazardous materials full time — indicating greater safety — but raised scores for others that do not haul hazmat frequently — indicating less safety, said Tom Bray, editor of transportation management for J.J. Keller & Associates Inc., Neenah, Wis.

“The carriers that are likely to have trouble are the ones that are in an environment where they occasionally haul hazmat but have enough inspections to meet the standard to get a score,” Bray told Transport Topics. “But because their drivers don’t tend to haul it a lot, they get a lot of little violations, and when you compare the number of inspections with the number of violations, they look worse.”

An FMCSA spokeswoman said last week the agency was still reviewing changes to CSA.

“We are in the public preview period for the proposed CSA Safety Measurement System enhancements. The agency encourages the public to submit their comments to the Federal Register official docket. The agency will carefully review all comments as it works to sharpen CSA as an effective safety tool,” the spokeswoman said.

Bray said the analysis also has shown that moving cargo securement violations to the vehicle maintenance category has improved the scores of many flatbed carriers in the revamped vehicle maintenance category. The result could be that some less-safe carriers with cargo securement violations will dodge FMCSA scrutiny, he said.

Bray said he is not convinced that changes in the category will result in accurately measuring how safe a carrier is.

“If the goal is to score a carrier on how good they do at transporting hazmat materials, then the new BASIC [Behavior Analysis and Safety Improvement Category] is going to work the way they want it to,” Bray said. “Whether or not that relates to how safe the carrier is: That’s the issue.”

“I have sympathy for the bias that has been unfairly applied to the flatbed carriers because of the nature of what they do,” Steven Bryan, founder and CEO of Vigillo LLC, a Portland, Ore., company that helps truckers adhere to CSA provisions, told TT. “But what they’ve [FMCSA] done is taken the cargo securement violations and virtually erased them. They’ve dissolved them in this vast ocean of vehicle maintenance, where they will never be seen again.”

An analysis by a third firm, EBE Technologies Inc., East Moline, Ill., also found that “flatbed carriers will clearly benefit from this change,” said Cindy Nelson, a company vice president.

Both Bray and Bryan said they based their conclusions on a crunching of their own databases and an FMCSA information collection on accidents, violations and inspections.

Bryan said that cargo securement violations of his more than 2,000 trucker clients used to be the No. 1 violation in the former cargo-related category, but it has dropped to No. 41 in the revised vehicle maintenance category or BASIC.

As for the new hazmat category, Bryan said FMCSA has created a new BASIC that is “almost entirely based on paperwork and placarding.”

“I don’t lie awake nights worrying about whether anybody has 26 versus the required 28 placards on their truck,” Bryan said. “An unsecured 6-ton roll of steel does keep me awake.”

Bray said that when cargo securement violations were included in the cargo BASIC, they made up 82% of the violations in that segment.

“By moving them into the vehicle maintenance BASIC they’re only 4% of the violations,” Bray said. “So the value of them has been diluted, and the end result of that is, for a flatbed carrier to be in trouble, he has to have some significant problems with securement.”

The CSA process is designed to sort each carrier’s roadside inspection violations and crashes into seven BASICs.

The violations are weighted for severity and how recently they occurred, and they are totaled for driver and carrier safety scores that are used to help FMCSA determine which carriers need agency intervention.

Rob Abbott, vice present of safety policy for American Trucking Associations, said many carriers that have reported scores fluctuations in the hazmat category have otherwise stellar safety scores.

John Conley, president of the National Tank Truck Carriers trade group, said he is hearing similar reports that many of his members are seeing their hazmat scores improve.

By Rob Abbott

Vice President of Safety Policy

American Trucking Associations

Each year, the Department of Transportation undertakes a number of new initiatives to further reduce or eliminate highway crashes. One measure DOT has announced it will undertake this year will have a marked effect on highway safety: mandating that speed limiters on large trucks be set at a reasonable top speed.

A quick review of available safety data confirms that the single greatest contributor to highway crashes is vehicle speed. According to the Federal Motor Carrier Safety Administration’s Large Truck and Bus Crash Facts 2009, for instance, driving too fast for conditions or in excess of posted speed limits by the truck driver were factors in 13.9% of single-vehicle crashes and 5.9% of multiple-vehicle crashes that resulted in a fatality — more than any other factor.

Also, according to the University of Michigan’s Trucks Involved in Fatal Accidents data, speeding on the part of the truck driver was the most prevalent driver-related factor cited in fatal accidents involving a large truck.

In addition, the FMCSA Large Truck Crash Causation Study found that “traveling too fast for conditions” was cited as the critical pre-crash event in 18% (weighted estimate) of crashes where the truck was assigned the critical reason for the crash. This was the single most frequently cited factor in crashes where trucks were assigned a critical reason for the event.

Naturally, speed limiters won’t prevent all of these crashes — especially those involving drivers exceeding lower speed limits (e.g., 45 mph) or those involving drivers operating below the posted limit, but too fast for current conditions.

However, there is no question that the limiters will help to eliminate a great many crashes that occur at higher speeds. Preventing these crashes should be a priority because high-speed crashes tend to be more severe.

The fact that speed plays such a prominent role in highway crashes simply makes sense. Faster speeds lengthen stopping distances and limit a driver’s time to react to unforeseen circumstances and take evasive maneuvers to avoid a crash.

When a crash does occur, speed increases the severity of the event dramatically. For instance, a 30% increase in speed results in a 69% increase in the kinetic energy of the vehicle. That’s because kinetic energy is determined by the square of the vehicle’s speed, rather than by speed alone. In other words, as speed increases, energy increases at a much faster rate. For these reasons, new research on speed limiters recently released by FMCSA found that, “Multiple analyses indicated a profound safety benefit for trucks equipped with an active speed limiter.”

Lower speeds make economic and environmental sense as well. Fleets that voluntarily limit their speeds have seen cost savings not only from crash reductions, but from reduced vehicle maintenance, fuel use and other operating costs. If all fleets were to limit their speed, society would realize these benefits as well as reduced emissions and other positive environmental effects.

For these reasons, both American Trucking Associations and Roadsafe America petitioned the National Highway Traffic Safety Administration and FMCSA in 2006 to require that speed limiters be set on all commercial motor vehicles weighing more than 26,000 pounds. Fortunately, NHTSA granted the petitions in late 2010 and agreed to conduct a rulemaking, which is due to begin later this year.

The costs to impose such a mandate would be small. All heavy trucks manufactured since 1992 have speed limiter capabilities within their electronic control modules (ECM). A mandate would require simply that the devices be set — and new ones made tamper-resistant.

Those opposed to mandated speed limiters struggle to argue with the certain benefits they provide. For instance, opponents claim a mandate is inappropriate because there is no guarantee that drivers and motor carriers will not tamper with or otherwise disable them. But this argument follows the “let perfect be the enemy of good” approach. Had DOT used that logic in the past, we would not have benefited from the many safety systems in place today (e.g., seat belts) that have saved hundreds of thousands of lives.

It is indisputable that the vast majority of drivers and carriers would be compliant with a speed-limiter requirement and that it would generate substantial benefits, even if a small percentage of drivers and carriers did not comply.

Opponents also claim that speed limiters promote unsafe speed differentials between cars and trucks, and that requiring them will offset any safety benefits. However, the aforementioned FMCSA research refuted this assertion soundly by noting that domain research on the potential downside of speed deviations among vehicles that could occur because of the interaction of vehicles equipped with speed limiters and those without them seemed far outweighed by the significant safety benefits associated with the reduction in absolute speed afforded by speed limiters.

Given the certain benefits of speed limiters and the minimal cost of setting them, DOT should make this initiative a top priority. Speeding is a more significant factor in truck crashes than any other. As such, it deserves a corresponding degree of attention and certainly more than other DOT initiatives with benefits that are less certain or substantial.

American Trucking Associations, the largest national trade federation for the trucking industry, has headquarters in Arlington, Va., and affiliated associations in every state. ATA owns Transport Topics Publishing Group.

The Federal Motor Carrier Safety Administration will delay its plans to implement a much-anticipated Compliance, Safety, Accountability program process that would have allowed carriers to seek an accountability review of crashes that went on their safety records, a top American Trucking Associations safety executive said.

The process would have permitted carriers to request a review that a crash be removed from their safety records if the carrier “could not have prevented the crash,” a higher standard than whether the carrier was at fault, said Rob Abbott, ATA’s vice president of safety policy.

FMCSA Administrator Anne Ferro informed a group of bus and truck trade group executives that the change would be delayed “until further notice” in a meeting at the agency’s headquarters on March 8, Abbott said.

An agency spokeswoman did not respond to a request for comment by press time.

Originally, the agency had planned to begin the process in late February or early March. However, Ferro told the group, the agency and the secretary of transportation have received feedback from a few public interest groups raising questions about the “reliability of police accident reports” that FMCSA was planning to use as part of the crash accountability determination process.

“It’s very disappointing — and in our view illogical,” Abbott said of the delay. “In certain crashes, it’s unquestionable that those crashes should not be used to prioritize carriers for intervention.”

“It’s poor public policy to do so and results in the agency being less effective in properly prioritizing and identifying carriers that they should take intervention action against,” Abbott said.

By Transport Topics

By Rip Watson, Senior Reporter

In the latest case of a freight broker being found liable for the acts of a third party, Heyl Logistics Inc. has been found guilty of negligence in a 2008 fatal accident.

An Oregon jury on March 5 awarded about $5.1 million in punitive damages, including $1.68 million against Heyl and the rest against truck driver Daniel Clarey.

The case arose from a load Heyl brokered to trucker Forrest Rangeloff, who in turn brokered the load to Clarey.

Clarey was operating for a company called Washington Transportation, which lacked insurance and operating authority. His truck struck a trailer attached to fellow driver Kelly Linhart’s tractor while he was inspecting the brakes, killing him.

Clarey, who was cited for driving under the influence and reckless driving, served a prison term.

The plaintiff, Danielle Linhart, wife of the slain trucker, argued that Heyl was negligent by failing to check Washington Transportation’s credentials before arranging the load.

After the verdict, attorneys for Linhart began talks with Heyl before the jury award could be challenged, defense attorney Graham Sweitzer said, resulting in a confidential settlement and dismissal of the punitive damages award.

Heyl Logistics, Akron, Iowa, is a division of Heyl Trucking Inc. Rangeloff and Washington Transportation were severed from the case as defendants before it was decided by the jury, according to court documents.

“This wasn’t just about money, it was about sending a message,” plaintiff’s lawyer Rena Samole said. “If the federal government had better regulations for brokers, perhaps this case wouldn’t have happened at all.”

She also said there was no way to know how many brokers arrange loads without taking steps such as determining whether the carrier’s operating authority and insurance coverage are current.

“We don’t need better regulation of brokers,” Robert Voltmann, president of the Transportation Intermediaries Association, said. “We need the Federal Motor Carrier Safety Administration to develop a clear carrier safety determination for all carriers.”

“It is FMCSA’s obligation to determine carrier safety, not brokers or shippers,” he said. “The agency needs to move on creating a green-light/red-light system for all carriers so that shippers and [third-party logistics providers] can see which carriers are safe. Shippers and 3PLs have an obligation to check this rating.”

Alan Heyl, CEO of Heyl Logistics, said the company “regrets the loss of Mr. Linhart’s life, while disputing the jury’s verdict for an award of punitive damages.”

In a statement sent to Transport Topics, Heyl said, “Heyl Logistics remains an active participant in the brokerage business, even while implementing modest changes in methods and scope of applied internal processes prior to the tender of traffic to contracted motor carriers.”

The plaintiffs, in a statement, said the case “appears to be the first punitive damages verdict against a transportation broker in a case involving a negligent hiring claim.”

Samole noted that the jury determined there was negligence on the part of Clarey and Heyl, which was more serious than a finding of vicarious liability.

In vicarious liability cases, parties such as brokers can be held responsible for the acts of a third party, like a driver.

The issue of vicarious liability has been raised in multiple past cases, including one against largest broker C.H. Robinson Worldwide. In that 2004 case, plaintiffs were awarded nearly $24 million in damages.

Samole also said that the case could lead in the future to negligence cases brought against shippers.

In this case, she said, the plaintiff withdrew its negligence claim against the shipper before the jury could rule on it.

Bob Barton, an Oregon attorney who represented the shipper, Nestlé Waters North America, declined to comment on the case.

By Jonathan S. Reiskin and Eric Miller, Transport Topics

The Federal Motor Carrier Safety Administration has decided to raise the importance of hazmat handling under its new safety rating program, while it will reduce the emphasis on load securement.

Administrator Anne Ferro also told Transport Topics last week that the agency soon will reveal what it will do about criticism of its crash accountability standards and said she is likely to make future alterations in the program — called Compliance, Safety, Accountability — as necessary.

Speaking here during the Mid-America Trucking Show, Ferro said on March 22 she was making the change because hazmat accidents “can be so severe” when they occur. “If there’s not compliance [by carriers], it’s important to know.”

CSA, FMCSA’s primary safety enforcement program, includes seven Behavior Analysis and Safety Improvement Categories, or BASICs, under which motor carriers are judged.

The agency will elevate hazardous materials issues to its own category under CSA. Up to now, hazmat has fit under the cargo securement BASIC. The agency will move the other portions involving load securement to the vehicle maintenance BASIC.

During an interview here, Ferro said the change will be announced formally in the Federal Register during the week of March 26, and immediately afterward, FMCSA will post revised CSA scores.

Meanwhile, American Trucking Associations said last week that, despite recent improvements, trucking has concerns that the federal government’s CSA scoring system is not accurately predicting some carriers’ crash risk.

In a letter to Ferro last week, ATA President Bill Graves called on the agency to make changes to the program based on its “list of flaws.”

Graves said ATA “continues to be concerned with limitations in both the underlying data and methodology used to develop motor carriers’ CSA scores.”

ATA based its comments on advice from its CSA working group and a summary of an evaluation of FMCSA’s 2008-2010 operational model test of CSA in nine states, said Rob Abbott, ATA’s vice president of safety policy.

The CSA program, which went live in December 2010, was designed as a tool to help the agency and industry become more effective in reducing crashes. One of ATA’s biggest concerns has been the lack of a process that would accurately eliminate from a carrier and driver’s record a crash that could not be avoided or was not the driver’s fault.

Although CSA crash indicator scores are not publicly available, details of carrier-involved crashes are shown on a website, ATA said.

At MATS, Ferro advised carrier managers to inspect the revised BASIC scores immediately, during the preview stage, before the numbers go public.

Ferro said the scoring enhancements will not be infrequent and possibly could be made every six to 12 months.

On accountability, Ferro said she was close to releasing a proposal in the Federal Register until she read an advisory committee report in February that raised a number of questions. “Does this change end in a result that makes for a sharper tool? We have to test that premise,” she said.

Police accident reports are primary sources of data, but Ferro said she would like to find out how uniform they are across the nation.

With more than 100,000 crash reports per year, it will be a challenge to manage the reports and use them fairly. Using the reports for basic information is one thing, Ferro said, “but industry is asking for a different process. Making a determination based on the reports is very different.”

FMCSA is studying the issue internally and with help from the National Highway Traffic Safety Administration. Right now, Ferro said, she does not know how long the process will take.

“Shippers/brokers often require carriers to reveal their private crash indicator scores as a condition of doing business and use them as a factor in selecting carriers,” ATA said.

Earlier this month, the agency said it had delayed its plans for the crash accountability process because several critical areas needed further review and study — including concerns expressed by some public interest groups over the reliability of police accident reports.

ATA also said FMCSA should erase from a carrier’s safety record a violation that was dismissed in court.

Similarly, CSA methodology applies the same severity weight to moving violations that result in warnings as those that result in citations, ATA said.

Although motor carriers can obtain a driver applicant’s history of roadside inspections and violations, they cannot obtain the scores that show how a driver performs in relation to the entire driving population, ATA said.

ATA also said many of the violation severity weights are inappropriate, given their relative relationship to crash risk.

For instance, within the placarding group are violations for “failing to placard” and “placard not mounted horizontally.” Violations in both categories carry the same penalty — 5 points.

“Naturally, if the regulations have little or no documented relationship to crash risk, the value of placing such emphasis on them is highly questionable,” ATA said.

ATA also said FMCSA should:

• Rename the CSA Fatigued Driving BASIC to the Hours of Service BASIC because most violations are for logbook “paperwork.”

• Redefine a hazardous materials carrier to one that has hauled placarded quantities in the prior 12 months.

• Develop a process to normalize violation data for states that issue a substantially disproportionate number of violations of a particular type, such as speeding.

• Revise severity weights to better reflect the relative risk of load securement violations to open deck vehicles.

• Mask the Driver Fitness BASIC from public view because scores in the category have a negative statistical correlation with crash rates.

• Improve the agency’s ineffective and slow DataQs process designed to help carriers correct erroneous data.