Tuesday, February 15, 2011

Wall Street's Recognition of CSA's Effect on Competition and Efficiency

Morgan Stanley - "CSA is a Major Factor in Negotiations: Will CSA and carrier safety scores be a large factor in your upcoming rate negotiations and contract strategy?" (2/4/11)

Stephens Research - "On the Verge of Change: How CSA Could Impact Shipping Trends", (2/10/11)

Tuesday, February 8, 2011



Henry E. Seaton, Esq.

The FMCSA knows full well that labeling a carrier as under “Alert” adversely affects a carrier’s ability to operate, as shippers and brokers are forced to bar using carriers so labeled for fear of vicarious liability.

The FMCSA, and only the FMCSA, is charged with the duty of determining fitness to operate and this arbitrary profiling of carriers has been roundly criticized by shippers, brokers and carriers alike. Yet the Agency has continued to profile carriers and make the safety data publicly available, reasoning that doing so allows “… the FMCSA to leverage the support of shippers, insurers, and other interested stakeholders to ensure that motor carriers remain accountable for sustaining safety operations over time.”[1]

Clearly, the FMCSA does not genuinely believe that 57% of the carriers it ranks to operate should be placed out of service or receive an unsatisfactory safety rating and its own data shows that on audit this is not the case. Yet, labeling over half of the effective for-hire motor carriers as under investigation or “Alert” has that unintended consequence as shippers and brokers to protect their own liability interest are now forced to use these artificially constructed thresholds in carrier selection.

Forcing shippers and brokers to second guess the Agency and reduce competition is not what CSA 2010 was intended to do. “CSA 2010 is designed to improve upon FMCSA’s current system used to monitor the safety of carriers … and to take follow-up actions where necessary.”[2]

While responsible motor carriers generally support a progressive intervention system and recognize the need for data accumulation in beginning this process, the Agency should affirmatively disavow CSA (now SMS) scores and percentiles as a proper basis for broker or shipper inquiry. The labeling of a carrier under “Alert” is simply an artificial construct for which there is no scientific or legal authority.

Here are 10 of the numerous reasons why:

1. Highway crashes are down 32% over the past decade and labeling 25% of the industry by category and peer group as marginal or deficient is without scientific or legal warrant.

2. The fact that the FMCSA each year finds less than 5,000 carriers are unfit to operate after audit belies any argument that 175,000 carriers are statistically deficient or that under CSA 2010 that over 400,000 carriers are marginal.

3. Carrier at fault crash data is the gold standard for measuring carrier performance and neither SafeStat nor CSA 2010 measures this matrix. (Recordable accidents are tracked regardless of who caused them.)

4. CSA 2010 data is based on unscrubbed data including citations and warnings which the carrier has little or no chance of correcting.

5. Data collected incorporates inconsistent state enforcement practices – statistics are compiled comparing out of service violations against number of audits and many inspectors fail to log good audits in the system – state enforcement and scale house anomalies can affect carrier violations by a multiple of four.[3]

6. Publication of ISP values results in profiling and more violations for carriers with high scores.

7. The weighted system of assigning greater points to securement and paperwork violations skews safety performance standard.

8. CSA 2010 data considers driver experience as a safety performance factor.

9. The key “Fatigued Driving” BASIC is biased to over-the-road carrier who must complete paper log to benefit of local “100 mile exemption” or EOBR equipped drivers and results in rating carriers as “marginal” or “deficient” based on paperwork which has no nexus to fatigue.

10. The law of large numbers. Small carriers are more susceptible to statistical anomalies as percentage deviations can fluctuate widely based upon random instances. (For instance, in a peer group of 1 to 10 trucks, one or two bad inspections over the norm in any basic area can result in a high percentile ranking.)

In sum, CSA 2010 is not fit for use as a stand alone measure of carrier safety and the FMCSA’s decision to publish the data branding a majority of ranked carriers as under “Alert” has a substantial adverse affect on the efficient and competitive transportation system the Agency is required to foster. See 49 U.S.C. '13101. It exacerbates the vicarious liability concerns of the broker and shipper community and threatens small carriers.

For the reasons stated above, the FMCSA should affirm its non-delegable safety duty and acknowledge that publication of SMS data is not consistent with the Office of Management and Budget’s “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility and Integrity of Information Disseminated by Federal Agencies; Republication,” 67 FR 8452 (February 22, 2002).

The Agency should make clear that its final determination of carrier fitness has a preemptive effect. Commercial shippers and brokers, like any other user of a federally regulated mode of transportation – bus, plane or train included - should be allowed to rely upon the regulatory agency’s ultimate determination of safety fitness without fear of vicarious liability.


February 8, 2011

[1] Letter from FMCSA Administrator Ferro to President, Minnesota Trucking Association, June 8, 2010.

[2] “Improving Commercial Vehicle Safety,” UMTRI Research Review, p. 1.

[3] ATA Testimony to House Committee, June 23, 2010.

Statistical Anomalies in SMS/Fatigued Driving

by Henry E. Seaton

Fatigued driving (HOS) is highlighted by the FMCSA as a stand alone BASIC and the threshold for being labeled as deficient is the 65 percentile. In other words, if a carrier is in the bottom 35% of its peer group based upon a weighted points scheme, the carrier will be labeled as deficient in this area and if CSA 2010 data is prematurely released to the public, that carrier will be barred from use by steamship lines, shippers and brokers who feel compelled to use CSA 2010 data for fear of vicarious liability.

In an excellent article entitled, “Trust but Verify” Aaron Huff in the September issue of CCJ opined that the on-board recording device represents a technological gain for the industry. Included was the conclusion that carriers who convert to electronic logs before CSA 2010 goes live have the rare opportunity to reduce their total violations in the fatigued category BASIC by 50%.

An examination of the attached chart demonstrates how this is possible and how little a 50 percentile drop may actually have to do with fatigued driving. Clearly, the biggest source of violations classified as “fatigue related” are actually paperwork violations pertaining to general form and manner of logs and failure of a driver to record current duty status. When coupled with failure to maintain a log, these 3 paperwork violations account for 71% of the total violations in the fatigue BASIC area.

This means that drivers who fill out paper logs based on the numbers are susceptible to receive over three times more fatigued driving violations than those who log electronically.

This obvious discrepancy does not disappear when the CSA 2010 point valuation criteria is applied. For rating purposes, each violation in a category is weighted, points are assigned and total points accumulated are compared based upon the number of inspections conducted with all peer grouped carriers including both those who log manually and electronically. Based upon the number of violations times the severity rating, paperwork violations account for 122.98 points, far more than are assigned to carriers found guilty of exceeding the hours of service under the 11 and 14 hour rules combined (76.65).

The 50 point differential in percentile ranking enjoyed by carriers with electronic logs may have some correlation to safety but the frequency and severity attached to paperwork violations severely skews the percentile ranking as to make any peer group including both paper and electronic loggers statistically invalid as a measure of fatigue.

In sum, the electronic logging system is certainly to be encouraged for a whole lot of reasons but any system which assigns more total points to paperwork violations (which only paper loggers incur) than it does to actual violations of the hours of service regulations cannot compare apples to oranges and conclude that one is deficient, marginal or not safe to eat.