Insights Offered During TCA Session Intended to Help Drivers Minimize Accidents
Eric Miller
INDIANAPOLIS — Three trucking and insurance executives offered advice on how leaders can adopt technologies and impact their companies’ safety culture from the executive suite during a session at Truckload Carriers Association’s 2024 Safety and Security Meeting.
The discussion also was intended to help truckers gain insight into the steps and strategies involved in achieving minimal accidents within an organization, their key meaningful metrics and the importance of leaders’ roles in fostering a safety-oriented environment.
“One of the things that I look at more frequently is speeding,” Fortune Transportation Co. CEO Perry Olson said June 2. “Not so much as speeding, but where it’s occurring.
“If I’ve got somebody speeding in Montana on an interstate, that’s not where I need to focus. But if I’ve got somebody who’s speeding in a construction or a school zone, that’s more important.”
Olson said he also keeps an eye out for the different problems that individual drivers have beyond the Federal Motor Carrier Safety Administration’s Compliance, Safety, Accountability metrics and operations.
“I think we all understand that safety is not negotiable,” Kriska Transportation CEO Mark Seymour said. “You can save a little money now, but you’re going to pay for it later. It’s tough to restart what you’ve stopped. It needs to be there all the time.”
Asked what tech he deploys, Olson said he sees great value in the use of forward- and driver-facing cameras.
“There’s virtually zero debate about the value of forward-facing cameras,” Olson said. “But we employed driver-facing cameras in the early days. Driver-facing cameras provide data, but then what do you have to do with that data?”
“We don’t deploy driver-facing cameras, but forward-facing cameras are the technology that’s been the biggest differentiator in recent years,” Seymour said. “Not just for coaching, but for accident mitigation, accident responsibility and awareness.”
Mike Miller, general manager for Progressive Insurance Fleet Programs, said insurance companies are using data to create metrics.
“Over time, lots of vendors are working with the data to give you some ideas about behaviors,” Miller said. … “You want to either have the data, or you don’t want to have the data. Understand that insurance companies are going to be looking at that, and it’s going to affect your rates over time.”
Seymour said, “Over the course of my carrier, we have had about 25 acquisitions. But by no means do I want to profess that we’re good at it — but rather we’ve done a lot of it.
“You can’t fix broken. You can’t fix stupid. You can’t fix ignorance. Safety has to be a critical component. As we acquire businesses, we’ve not batted 1.000; we’ve made some mistakes. I’d say now after we have made those mistakes we understand how important it is to ask the right questions.”
Another important issue related to safety is to have your operators under supervision, Seymour added.
“There’s no greater value in your business than having your professional operators report to someone,” he said. “Typically, they’re the only people in your organization who generate revenue. How can they not be important enough to know who they report to?”
PHMSA Requests Comments on Multiple Hazardous Materials ICR
On May 10, the Pipeline and Hazardous Materials Safety Administration (PHMSA) requested comments on multiple hazardous materials information collection requests (ICR), including the Flammable Cryogenic Liquids ICR, the Response Plans for Shipments of Oil ICR and the Requirements for United Nations Cylinders ICR. Comments are due by July 9.
PHMSA Issues Correction to Harmonization with International Standards Final Rule
On May 9, PHMSA issued a correction to the Harmonization with International Standards final rule. The corrections address several errors to the hazardous material entries in the hazardous materials table. This correction is effective May 10.
FMCSA Requests Comments on VBC Petition for Inconsequential Noncompliance
On May 8, the Federal Motor Carrier Safety Administration (FMCSA) requested comments on Volvo Bus Corporation’s (VBC) petition for inconsequential noncompliance and has determined that certain model year 2009-2023 Volvo 9700 buses do not fully comply with Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices and Associated Equipment. Comments are due by June 7.
FMCSA Requests Comments on Licensing Applications for Motor Carrier Operating Authority ICR
On May 7, FMCSA requested comments on the Licensing Applications for Motor Carrier Operating Authority ICR. The ICR applies to: (1) existing registrants (i.e., entities that already have a USDOT number and/or operating authority) that are subject to FMCSA’s licensing, registration and certification regulations that wish to apply for additional authorities; and (2) Mexico-domiciled carriers that wish to operate beyond the U.S. municipalities on the U.S.-Mexico border and their commercial zones. Comments are due by June 6.
FMCSA Requests Comments on Motor Carrier Records Change Form ICR
On May 7, FMCSA requested comments on the Motor Carrier Records Change Form ICR. The purpose of this ICR is to collect information required by the Office of Registration to process name changes, address changes and reinstatements of operating authority for motor carriers, freight forwarders and brokers. Comments are due by June 6.
FHWA and NHTSA Publish Joint Final Rule on Uniform Procedures for State Highway Safety Grant Programs
On May 6, the Federal Highway Administration (FHWA) and the National Highway Traffic Safety Administration (NHTSA) published a final rule amending the uniform procedures implementing the State Highway Safety Grant Program to waive, for fiscal 2025, the requirement targets for the common performance measures be identical to targets in the State Highway Safety Improvement Program. This final rule makes a corresponding change to a similar requirement in FHWA’s performance management regulation. This final rule is effective May 6.
NHTSA Requests Comments on Examining Distraction and Driver Monitoring Systems to Improve Driver Safety ICR
On May 6, NHTSA requested comments on the Examining Distraction and Driver Monitoring Systems to Improve Driver Safety ICR, which is part of a study to improve NHTSA’s understanding of the differences in approaches to driver state detection and the potential safety impacts of driver monitoring systems. Comments are due by June 5.
FMCSA Requests Comments on Updating Level VI Out-of-Service Criteria Incorporation by Reference
On May 3, FMCSA requested comments on the proposed amendments to the hazardous materials safety permit regulations to update the incorporation by reference of CVSA’s “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as Defined in 49 CFR Part 173.403” to reference the 2024 edition. Comments are due by June 3.
FMCSA Announces Upcoming Registration Modernization Stakeholder Day
On May 1, FMCSA announced a virtual Registration Modernization Stakeholder Day to engage stakeholders to hear more on their perspectives on improving the registration experience with FMCSA. The virtual public meeting will be held on May 29, and advanced registration is required.
Update on Exemptions
FMCSA Grants Gemini’s Intellistop Module Exemption
On May 10, FMCSA granted Gemini Motor Transport LP’s (Gemini) application for an exemption to allow it to operate commercial motor vehicles (CMV) equipped with a module manufactured by Intellistop Inc. (Intellistop), which is designed to pulse the required rear clearance, identification and brake lamps from a lower-level lighting intensity to a higher-level lighting intensity four times in two seconds when the brakes are applied and then return the lights to a steady-burning state while the brakes remain engaged. The agency has granted the exemption to Gemini, determining an individual and easily identifiable motor carrier operating a finite number of CMVs would likely achieve a level of safety equivalent to, or greater than, the level of safety achieved by the regulation. This exemption is effective May 10, 2024, and ends May 12, 2029.
FMCSA Denies Pitt Ohio’s Exemption Request from SDAP Program Requirements
On May 9, FMCSA denied the application from Pitt Ohio Express LLC (Pitt Ohio) to exempt its drivers from one of the requirements in the agency’s Safe Driver Apprenticeship Pilot (SDAP) program. Pitt Ohio requested an exemption allowing it to use drivers under age 21 holding a commercial learner’s permit and operating CMVs in interstate commerce to participate in the SDAP program. FMCSA analyzed the application and determined that there is insufficient basis to conclude that the exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.
CVSA Updates Three Inspection Bulletins
At the CVSA Workshop last month, the following inspection bulletins were updated:
- 2021-05 – Acceptance of Electronic Documents | (French) (Spanish)
- 2017-02 – Securement of an Intermodal Container on a Container Chassis Vehicle | (French) (Spanish)
- 2012-04 – Hydraulic/Electric/Surge Brake System and Light-Duty Trailer Inspection Procedure | (French) (Spanish)
The United States Department of Transportation (DOT) proposes a new system of records titled ‘‘DOT/FMCSA 014 Electronic Logging Device (ELD) Records’’. This system of records is used to facilitate the retrieval, transfer, and collection of hours-of-service (HOS) data from electronic ELD files submitted by motor carriers and the review of HOS data by authorized safety officials. The system retrieves data recorded by a motor carrier’s ELD via an ELD output file. Upon receipt of this ELD output file, the system analyzes the data, identifies instances of potential noncompliance, and notifies the authorized safety official of these instances. FMCSA maintains ELD data for use in investigations and enforcement actions and to determine compliance with HOS requirements. The primary purpose of the ELD system is to allow authorized safety officials to assess electronic ELD files rapidly and accurately at roadside and during reviews and safety audits to determine whether the driver is in compliance with the HOS regulations. The ELD system will also be used to assess whether ELDs meet certain technical specifications that are set forth in the HOS regulations. Additionally, the Agency may use ELD data internally to inform research efforts related to enforcement of safety regulations, including driving hours, as such research may ultimately improve compliance with HOS requirements.
Read more here.
Mark Schremmer
A large-scale AT&T outage on Thursday, Feb. 22 raised questions about how truck drivers can remain compliant if their electronic logging device stops working.
The short answer is that truckers may have to turn to paper logs to track hours of service, which was the norm before ELDs became federally mandated in 2017.
“If the ELD goes down and they can’t transfer the information … the safety official will use the ELD display or the printout to verify compliance,” said Tom Crowley, a compliance and regulatory expert for the Owner-Operator Independent Drivers Association. “The issue becomes if your ELD doesn’t retain that last seven days of information, you’d have to go back and recreate those seven days.”
According to reports, tens of thousands of AT&T customers lost cell service on Thursday. AT&T said that service was restored by Thursday afternoon and that it did not believe the outage to be caused by a cyberattack.
“Based on our initial review, we believe that today’s outage was caused by the application and execution of an incorrect process used as we were expanding our network, not a cyberattack,” the company wrote Thursday evening. “We are continuing our assessment of today’s outage to ensure we keep delivering the service that our customers deserve.”
A cell service outage can be extremely problematic for truck drivers, as the technology can be needed for a wide array of reasons including ELDs, dispatch, mapping, weather forecasts and engine control module updates.
This was the first large-scale outage since ELDs became mandated in 2017.
For truckers who started after the mandate, Crowley voiced concerns about how many know how to fill out a paper log.
“You have a lot of drivers out there who have only used ELDs,” Crowley said. “You hand them a paper log, and they’re going to get lost. People are so reliant on the ELD now to keep track of their time. The ELD tells them if they’re getting close to their hour limitations. Back in the day, that was up to the driver to keep track of their hours. I bet there are a lot of drivers out there who don’t have a clue on how to do a recap.”
OOIDA Executive Vice President Lew Pugh stressed the importance of truck drivers making notations for why they had to move to paper logs.
“Notate why you’re doing what you’re doing,” Pugh said. “Because five months from now and you get audited, we’ve all forgotten.”
Crowley noted that the U.S. Department of Transportation can request logs from up to six months ago.
Pugh said the concerns over a technology outage are amplified “a million times” when we’re discussing autonomous vehicles.
“If an ELD screws up, it doesn’t kill anybody. If an AV screws up, it’s a family of five,” he said.
Arguments at Texas Supreme Court recap liability and blame apportionment in fatal 2014 accident
John Kingston
Deadlines are looming for all briefs to be filed with the Texas Supreme Court as it decides whether to review the enormous verdict against Werner Enterprises growing out of a 2014 fatal wreck. With interest, the sum now stands above $100 million.
A primary brief was filed in October by attorneys for the Blake family, which suffered one death, one catastrophic brain injury and other injuries in the Dec. 30, 2014, West Texas crash.
On Feb. 15, attorneys for Werner (NASDAQ: WERN) filed a brief for the company, and earlier this month the Texas Trucking Association filed a friend-of-the-court brief.
The Supreme Court’s page dedicated to the case lists March 6 as the final date for any respondents to file with the court.
Werner’s legal brief reviews well-trod ground on the accident and what happened in a lower court in 2018, when the decision against Werner was first handed down.
But it and the Blake brief also weigh in on the issue of extending liability out to Werner, as it appears clear that the trucking industry is concerned that precedents set in the case could impact future verdicts against carriers.
The facts of the accident are not in dispute. A pickup truck heading east on Interstate 20 in West Texas driven by Trey Salinas and ferrying members of the Blake family hit a black ice patch, streaked across a more than 10-yard-wide median and crashed into a westbound Werner truck driven by Shiraz Ali. Winter storm watches were in effect. One of the Blake children died, and a second was severely injured. Other passengers had less serious injuries.
The Blakes’ core argument is that Ali had not sufficiently slowed his truck to compensate for the weather. If he had, the Werner truck would not have been where it was when the pickup driven by Salinas crossed the median.
In its brief, Werner’s attorneys summed up the trial court’s ruling as saying that Ali “owed a duty to reasonably foresee that the Blakes’ vehicle might careen into his path.”
In apportioning blame, the lower court jury assigned 70% to Werner on one of the key questions of liability and 30% on another liability issue. On the former question, Salinas’ blame was assessed at 16%.
The arguments leveled against Werner by attorneys for the Blakes in their attempt to put blame on the carrier involved such disparate issues as driver training (along with a borderline personal attack on the person who filled the company’s role as head of training), the demand for on-time delivery, and the lack of a control system that could have instructed Ali to get off the road.
Appeals court upholds lower court ruling
The lower court award of just under $90 million was appealed, and ultimately the full Court of Appeals for the 14th District of Texas grabbed the case before a three-judge appellate court panel could issue its ruling. In a 5-4 decision, the justices ruled in favor of the Blakes. (Interest fees on the initial award resulted in the case being worth more at every stop through the judicial system).
The briefs filed by attorneys for the Blakes and for Werner both provide significant discussion of the “Admission Rule.” Attorneys for the Blakes describe the rule as “[barring] derivative-liability claims like negligent training and supervision when the employer concedes vicarious liability.”
They said the rule was “once the majority rule [but] the modern trend is to reject the rule.”
The Admission Rule is a “relic” of a period before juries could hand down very specific proportionate blame for an accident, according to the Blakes’ attorneys, and “conceals all the ways the employer contributed to the harm except its driver’s conduct, resulting in a fictional apportionment where much of the employer’s responsibility is redistributed among other parties.”
Dissent cited by Werner on issue of Admission Rule
Justice Randy Wilson, in a dissent to the 5-4 vote, wrote that the Admission Rule holds that if an employer acknowledges one of its employees “was acting in the course and scope of his employment when the employee allegedly engaged in negligent conduct (that) bars a party allegedly injured by the employee’s negligence from pursuing derivative theories of negligence against the employer.” His minority argument was that the Admission Rule should have barred the enormous liability claim against Werner, which employed Ali.
Attorneys for Werner concur and say the issues in the case could be precedent-setting. The brief says the “question [has] never [been] definitely resolved by this Court: whether a claimant injured by a person acting in the course and scope of employment may pursue derivative negligence theories against an employer” if the employer concedes the worker was performing duties for the employer.
Werner’s brief called Wilson’s dissent “powerful” but conceded that while courts recognize the Admission Rule, they aren’t in agreement on what its impact can be.
By not limiting liability down the line, the Werner attorneys argue, it effectively defined a driver’s duty as “one owed to the whole world.” “If affirmed, the trial court’s judgment will establish that a driver and his or her employer may be held liable for injuries to other motorists no matter how improbable, fantastic, or farfetched,” Werner said in its brief. “Because that result has no basis in Texas law, reversal of the trial court’s judgment is necessary.”
In its amicus brief, the Texas Trucking Association says the Admissions Rule helps provide “appropriate boundaries for argumentation on employer liability and reduce the likelihood of error.”
“Had Ali been driving outside the course and scope of his employment, [the Blakes] may have been able to use derivative liability theories like negligent hiring, training, entrustment, or supervision to find Werner responsible for Ali’s actions,” the association writes. “But when an employer stipulates to course and scope — as Werner did here — the employer’s negligence is no longer in doubt, so long as the employee is found to have been negligent.”
Werner attorneys also are raising the issue of the charge to the lower court jury, saying it improperly mixed issues that they believe should have remained separate, affecting the final verdict.
FMCSA Requests Comments on Application for Certificate of Registration for Foreign Motor Carriers and Foreign Motor Private Carriers ICR
On Feb. 16, the Federal Motor Carrier Safety Administration (FMCSA) requested comments on the Application for Certificate of Registration for Foreign Motor Carriers and Foreign Motor Private Carriers information collection request (ICR). Foreign for-hire and private motor carriers are required to file an application if they wish to register to transport property within municipalities in the United States on the U.S.-Mexico international border or within the commercial zones of such municipalities. Comments are due by April 16.
FMCSA Requests Comments on Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ICR
On Feb. 16, FMCSA requested comments on the Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ICR, which allows for ongoing, collaborative and actionable communication between FMCSA and its customers and stakeholders. Feedback may also contribute directly to the improvement of program management. Comments are due by April 16.
FMCSA Requests Comments on Impact of Driver Detention Time on Safety and Operations ICR
On Feb. 16, FMCSA requested comments on the Impact of Driver Detention Time on Safety and Operations ICR. This research study will collect data on commercial motor vehicle (CMV) driver detention time representative of the major segments of the motor carrier industry, analyze that data to determine the frequency and severity of detention time, and assess the utility of existing intelligent transportation systems solutions to measure detention time. Comments are due by March 18.
FMCSA Requests Comments on Truck Leasing Terms and Conditions
On Feb. 16, FMCSA requested comments and information to assist the agency’s Truck Leasing Task Force (TLTF) in reviewing such leases to identify terms and conditions that may be unfair to drivers. The TLTF is tasked with examining the terms, conditions and equitability of common truck leasing arrangements, particularly as they impact owner-operators and trucking businesses subject to such agreements. Comments are due by March 18.
U.S. DOT Announces Upcoming DOT Advisory Committee on Human Trafficking Meeting
On Feb. 13, the U.S. Department of Transportation (DOT) announced a virtual meeting of the U.S. DOT Advisory Committee on Human Trafficking which will be held March 13. Pre-registration is required, and those interested in attending should email their name and affiliation to trafficking@dot.gov by March 5.
U.S. DOT Requests Comments on Updates to Department-wide Learning Agenda
On Feb. 13, the U.S. DOT requested comments on the Department-wide Learning Agenda for Fiscal Years 2022-2026 (Learning Agenda). The U.S. DOT seeks public input regarding potential updates to the published Learning Agenda. Comments are requested by April 9.
FHWA Requests Comments on Truck Parking Facilities ICR
On Feb. 12, the Federal Highway Administration (FHWA) requested comments on the U.S. DOT Survey and Comparative Assessment of Truck Parking Facilities. The goal of the survey is to evaluate the capability of the states to provide adequate parking and rest facilities for CMVs engaged in interstate transportation. Comments are due by April 12.
U.S. DOT Publishes Unified Agenda of Federal Regulatory and Deregulatory Actions
On Feb. 9, the U.S. DOT published the Unified Agenda of Federal Regulatory and Deregulatory Actions (Regulatory Agenda). The Regulatory Agenda is a semiannual summary of all current and projected rulemakings, reviews of existing regulations, and completed rulemaking actions of the U.S. DOT. The Regulatory Agenda provides information about the agency’s planned regulatory activity for the next 12 months.
FMCSA Requests Information on Efforts to Study Sexual Assault and Harassment in the CMV Industry
On Feb. 8, FMCSA requested information on efforts to study and quantify the prevalence and severity of sexual assault and sexual harassment experienced across the CMV industry. FMCSA specifically seeks information on how to best approach this study holistically in terms of statistical sampling, study design and administering the appropriate data collection efforts. Comments are due by March 11.
