Trucking regulations

Published on: July 6, 2011

US agrees to allow Mexican tractor trailers to operate here

While Georgia is a long way from the Mexican border, as a tractor trailer and big rig accident trial lawyer based in Atlanta, I have for several years followed the controversy over allowing Mexican trucking companies to operate in the United States. Concerns about safety rules and practices in Mexican trucking have simmered since 1995.

Today the U.S. and Mexico signed an agreement to allow Mexican tractor trailers and big rigs to operate in the U.S. and suspend retaliatory Mexican tariffs that added 5 to 25 percent to the cost of U.S. exports sold in Mexico.

This is the latest development in the long-running controversy to concerns about the safety standards of Mexican trucking, which long blocked North American Free Trade Agreement (NAFTA) rules permitting Mexican trucks to cross beyond a 25- mile border zone.

The USDOT justifies today’s action by saying that Mexican trucks must comply with all Federal Motor Vehicle Safety Standards, and will have electronic monitoring systems to track hours on the road, and that Mexican tractor trailer truck drivers must take drug tests that are analyzed in the U.S., hand over complete driving records and prove their English-language skills.

A previous cross-border pilot program for trucking certification program in 2009 included only 157 Mexican trucks.

Reactions from interest groups has varied widely:

• The US Chamber of Commerce supports the agreement as “a vital step toward a more efficient U.S.-Mexico border,” according to a statement from COC president Thomas Donohue. Truckers drop trailers at the border before crossing. Older rigs, often called transfers, pick them up to cross and leave them for a long-haul truck waiting on the other side.

• Regarding safety concerns, the Conservative Daily News blog points out that while USDOT will pay for electronic on-board recorder (EOBR) to monitor hours of service of Mexican tractor trailers, an “EOBR cannot determine if the driver of the commercial vehicle is working other than driving, or if this driver is asleep or awake. It will not ‘automatically’ do anything as the driver still must manually enter whether a change of duty status has occurred or not.” It quotes a report issued from the Congressional Research Service in February of 2010 which stated:

“The rationale of eliminating the truck drayage segment at the border, and of NAFTA in general, is to reduce the cost of trade between the two countries, thus raising each nation’s economic welfare. However the cost to federal taxpayers of ensuring Mexican truck safety, estimated by the U.S. DOT to be over $500 million as of March 2008, appears to be disproportionate to the amount of dollars saved thus far by U.S. importers or exporters that have been able to utilize long-haul trucking authority. . . . Any accumulated savings in trucking costs enjoyed by shippers therefore should be weighed against the public cost of funding the safety inspection regime for Mexican long-haul carriers.”

• The American Association for Justice Interstate Trucking Litigation Group, of which I am a board member, urged USDOT to bring up to date liability insurance coverage requirements, which have been unchanged since 1980, prior to implementing the cross-border program. The $750,000 minimum liability coverage for interstate motor carriers adopted in 1980 would be nearly $2,000,000 today if simply adjusted for inflation. USDOT responded:

“Mexico-domiciled motor carriers must establish financial responsibility, as required by 49 CFR part 387, through an insurance carrier licensed in a State in the United States. Based on the terms provided in the required endorsement, FMCSA Form MCS-90, if there is a final judgment against the motor carrier for loss and damages associated with a crash in the United States, the insurer must pay the claim. The financial responsibility claims would involve legal proceedings in the United States and an insurer based here. There is no reason that a Mexico-domiciled motor carrier, insured by a U.S.-based company, should be required to have a greater level of insurance coverage than a U.S.-based motor carrier. Increasing the minimum levels of financial responsibility for all motor carriers is beyond the scope of this notice and would require a rulemaking. In accordance with section 350(a)(1)(B)(iv), FMCSA must verify participating motor carriers’ proof of insurance through a U.S., State-licensed insurer. As a result, participating motor carriers may not self-insure.”

• The Owner-Operator Independent Drivers Association (OOIDA) is bitterly critical of the action, and is challenging it in court in Washington. OOIDA asserts that Mexico has failed to institute regulations and enforcement programs that are even remotely similar to those in the United States, and there would be no relevant corresponding reciprocity for U.S. truckers. According to OOIDA, “This program will jeopardize the livelihoods of tens of thousands of U.S.-based small business truckers and professional truck drivers and undermine the standard of living for the rest of the driver community.”

• Teamsters Union president Jim Hoffa also questioned legality of the program because it grants permanent operating authority to Mexican trucks after 18 months in the “pilot program” without Congressional authorization, and because DOT would use money from the Highway Trust Fund to pay for electronic on-board recorders for Mexican trucks. He said, “opening the border to dangerous trucks at a time of high unemployment and rampant drug violence is a shameful abandonment of the DOT’s duty to protect American citizens from harm and to spend American tax dollars responsibly.”

• Industry groups that export to Mexico, and are impacted by retaliatory Mexican tariffs, support the decision. They include the National Cattlemen’s Beef Association (NCBA) , California grape growers , and Washington State apple growers.

This Georgia truck wreck lawyer may run down to the mall to buy a Rosetta Stone home study course on Spanish.
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Published on: May 11, 2011

Safe Roads Act would require trucker drug test database

By Ken Shigley

The Safe Roads Act, proposed bipartisan legislation sponsored by Senators Mark Pryor and John Boozman, both of Arkansas, would tighten the handling of truckers‘ drug and alcohol tests. If passed into law, this bill would require medical review officers, employers, and service agents to report to the Federal Motor Carrier Safety Administration (FMCSA) any positive drug or alcohol test results
The bill would also establish a drug test database for commercial drivers and require employers to check it prior to hiring a truck driver. The database is the recommendation of the Government Accountability Office (GAO).

Currently, some big rig commercial truckers keep driving tractor trailers Drug and alcohol testing requirements do exist, but some truckers keep driving big rigs even after they test positive. Not all job applicants report their drug test history when seeking a job, not all carriers do full background checks, and some self-employed drivers just ignore the rules. In recent studies, about 68,000 commercial drivers tested positive for drug use, out of a total of 3.4 million.

In my Georgia trucking accident trial practice, I have sued trucking companies that show a nearly total disregard for rules requiring drug tests and truck driver background checks. In one recent case, a trucking company had been cited for dozens of violations of drug test and background checking rules within three years before a crash involving a newly hired driver. The new driver, as you might suspect, had not been subjected to a drug test and his background had not been checked before he crashed into a lady in rush hour traffic.

Unfortunately, such scofflaw conduct is all too common among some trucking companies. The Safe Roads Act, if passed, would help, though I have no delusion that it would stop the cheating.

The process of investigation and discovery to uncover such a record of violations requires an attorney experienced in trucking litigation and who knows how to dig out hidden information, and then get it into evidence at trial.
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Published on: May 10, 2011

Feds propose ban on handheld cellphone use by Hazmat truck drivers

By Ken Shigley

Federal trucking safety rules continue to expand on commercial truck drivers’ texting or calling while they drive As a trial attorney handling tractor trailer and big rig crash cases throughout Georgia, I see how important this can be in trucking accident cases.

The latest Notice of Proposed Rulemaking was published April 29 by the Pipeline and Hazardous Materials Safety Administration, part of DOT, would prohibit use of a handheld cell phone by drivers moving a quantity of hazardous materials that must be placarded under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR Part 73 in intrastate commerce.

This would expand upon rules already proposed by the Federal Motor Carrier Safety Administration (also part of DOT). FMCSA barred texting by commercial motor vehicle drivers in a September 2010 final rule. It proposed to restrict the use of hand-held mobile phones in a Dec. 21, 2010,

PHMSA estimates that there are approximately 1,490 intrastate motor carriers that could be affected by this rulemaking.
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Published on: May 9, 2011

Man killed crashing into unmarked tractor trailer on shoulder of Atlanta freeway ramp

By Ken Shigley

Monday morning, an unidentified man died when he drove his Honda into the rear of an unoccupied tractor-trailer truck parked on the shoulder of a southbound ramp on to Interstate 85 in DeKalb County., according to a report by Rhonda Cash of the Atlanta Journal Constitution.

While strange to the uninitiated, this sort of event is common enough that the Federal Motor Carrier Safety Regulations include the following rule:

49 CFR 392.22 Emergency signals; stopped commercial motor vehicles.

(a) Hazard warning signal flashers. Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section. The flashing signals shall be used during the time the warning devices are picked up for storage before movement of the commercial motor vehicle. The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices required by paragraph (b) of this section.

(b) Placement of warning devices–

(b)(1) General rule. Except as provided in paragraph (b)(2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by Sec. 393.95 of this subchapter, in the following manner:

(b)(1)(i) One on the traffic side of and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial motor vehicle in the direction of approaching traffic;

(b)(1)(ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and
(b)(1)(iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.

(b)(2) Special rules–(i) Fusees and liquid-burning flares. The driver of a commercial motor vehicle equipped with only fusees or liquid- burning flares shall place a lighted fusee or liquid-burning flare at each of the locations specified in paragraph (b)(1) of this section. There shall be at least one lighted fusee or liquid-burning flare at each of the prescribed locations, as long as the commercial motor vehicle is stopped. Before the stopped commercial motor vehicle is moved, the driver shall extinguish and remove each fusee or liquid- burning flare.

(b)(2)(ii) Daylight hours. Except as provided in paragraph (b)(2)(iii) of this section, during the period lighted lamps are not required, three bidirectional reflective triangles, or three lighted fusees or liquid- burning flares shall be placed as specified in paragraph (b)(1) of this section within a time of 10 minutes. In the event the driver elects to use only fusees or liquid-burning flares in lieu of bidirectional reflective triangles or red flags, the driver must ensure that at least one fusee or liquid-burning flare remains lighted at each of the prescribed locations as long as the commercial motor vehicle is stopped or parked.

(b)(2)(iii) Business or residential districts. The placement of warning devices is not required within the business or residential district of a municipality, except during the time lighted lamps are required and when street or highway lighting is insufficient to make a commercial motor vehicle clearly discernible at a distance of 500 feet to persons on the highway.

(b)(2)(iv) Hills, curves, and obstructions. If a commercial motor vehicle is stopped within 500 feet of a curve, crest of a hill, or other obstruction to view, the driver shall place the warning signal required by paragraph (b)(1) of this section in the direction of the obstruction to view a distance of 100 feet to 500 feet from the stopped commercial motor vehicle so as to afford ample warning to other users of the highway.

(b)(2)(v) Divided or one-way roads. If a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a divided or one-way highway, the driver shall place the warning devices required by paragraph (b)(1) of this section, one warning device at a distance of 200 feet and one warning device at a distance of 100 feet in a direction toward approaching traffic in the center of the lane or shoulder occupied by the commercial motor vehicle. He/she shall place one warning device at the traffic side of the commercial motor vehicle within 10 feet of the rear of the commercial motor vehicle.

The reason for such a rule is that drivers approaching at the speed limit often do not perceive that a tractor trailer is sitting still until too late to stop, and then impact with an 80,000 vehicle is much like impact with a cement barrier. Moreover, impact with the side or rear of a stopped tractor trailer with typically weak under-ride bars can easily lead to decapitation of occupants of the striking passenger vehicle.

When such incidents get into litigation, the challenge is to prove whether an unmarked tractor trailer or big rig had been sitting on the shoulder more than ten minutes. Often this requires an immediate demand for preservation of electronic data from electronic data recorders and satellite communications systems that many trucking companies employ.

In making such demands, one must anticipate that a trucking company will also demand an opportunity to download data from the electronic control module of the striking vehicle This may require an immediate investment of several thousand dollars in accident reconstruction costs.

One must also anticipate disclosure of cell phone billing records to determine whether the driver was distracted by a cell phone when he collided with the stopped big rig.

If the driver who struck the stopped truck was speeding or distracted, then rules of comparative negligence, contributory negligence and failure to avoid consequences of another’s negligence would reduce or bar tort recovery.

Thus, the starting point for survivors in such a situation may be to immediately check cell phone records and download electronic data from the car, and then make a decision about requesting data from the trucking company.
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Published on: May 8, 2011

Trucking safety practices changing under Comprehensive Safety Analysis (CSA)

By Ken Shigley

Trucking safety practices over the past year and a half have been impacted by adoption of the Comprehensive Safety Analysis (CSA) program.

The CSA has three components that measure safety performance, evaluating high-risk behaviors and crafting appropriate interventions.

For commercial motor carriers, the standards significantly alter how truckers and companies operate and maintain their vehicles and deal with federal compliance. Some of the changes include:

– CSA replaces the old SafeStat system with the Safety Measurement System (SMS). Under the SMS, safety fitness determinations are issued monthly; factors such as driver fitness, unsafe driving practices, vehicle maintenance, crash history and cargo loading or securing impact this monthly evaluation.

– Companies are required to modify their “on-duty” hours and maintain comprehensive electronic travel logs.

– Trucking companies that do not pass monthly safety evaluations are subject to earlier safety interventions, including:

– Early warning letters

– Targeted roadside inspections

– Focused compliance reviews Continue reading →

Published on: April 26, 2011

Hours of service battles go on … and on and on

By Ken Shigley

For nearly as long as I’ve been an attorney representing people hurt in tractor trailer accidents in Georgia, we have seen a running battle over the hours of service rules that are supposed to protect people from the dangers of truck driver fatigue.

Without reviewing the whole history (see this, this, this, this, this, this , this and this), let’s just say it hasn’t stopped.

Trucking industry organizations now say that the current rule — 11 hours driving / 14 hours on duty per day — has improved safety. For 2009, the National Highway Traffic Safety Administration (NHTSA) recorded 3,380 fatalities in 2,987 truck-involved crashes, down from 4,245 fatalities and 3,754 truck-involved crashes reported in 2008. At the same time, the Federal Highway Administration (FHWA) has reported that trucks traveled more than 288 billion miles in 2009, down from 310.7 billion in 2008. Industry advocates say that means the rate of truck-involved fatalities on U.S. highways fell to 1.17 per 100 million miles– down from a rate of 1.37 in 2008 for a 14% drop.

We all know that figures don’t lie, but they can be subject to manipulation. Before concluding that the current hours of service rule has actually caused an improvement in safety, it would be good to see a study that adequately takes into account multiple factors in addition to the rules change — changes in overall motor vehicle traffic in the economic slump, trucking miles, weather and road condition variables, etc.

Of course, in handling individual truck crash cases, and the resulting mayhem, we work with the rules as they are and don’t worry too much about what they ought to be.
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Published on: April 25, 2011

Electronic truck driver logs slowly making headway

By Ken Shigley

For many years, interstate truck drivers have referred to the driver logs required by federal law as “comic books.” Falsification of logs has been so common that many drivers kept two sets of logs, one for their own use and another to show to inspectors. As a trucking accident trial attorney, I have spent many hours ferreting out the misrepresentations, using loading dock tickets, fuel receipts, etc., to recreate an honest timeline. Once, when I established in deposition that a log was a complete bundle of lies, and that the trucker had been driving 20 of the previous 24 hours before he ran over a family and killed their son, the truck driver broke down and cried.

Though the technology has long been available, the trucking industry has been slow to accept a requirement of electronic on board recorders, replacing easily falsified paper logs with electronic ones. The current FMCSA rule, which will go into effect June 4, 2012, says that carriers that violate hours of service rules 10 percent of the time, based on single compliance review, must use electronic onboard recorders to track driver hours. It will affect only 5,700 of 500,000 interstate carriers.

Now, however, there is growing acceptance among trucking industry groups of the idea of electronic driver logs. The Truckload Carriers Association, American Trucking Associations, National Private Truck Council, and . National Tank Truck Carriers, and all recently announced support for federal laws and regulations that would require trucking companies to use electronic logging devices to monitor driver hours-of-service. The Owner Operator Independent Drivers Association still opposes mandatory electronic logs.

Of course, the devil is often in the details. As long as there is an economic motivation to cheat, there will be those who find a way to do so. As electronic logging systems become more common, those of us whose job it is to look behind the surface to determine the truth will be required to become more sophisticated about detection of falsified electronic records.
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Published on: February 10, 2011

Federal court clears publication of trucking safety data

By Ken Shigley

In truck crash litigation in Georgia, I often find that smaller trucking companies have the least focus on enforcing safety rules. For example, we are now preparing for trial a case in which the trucking company repeatedly had been fined for scores of violations of the same basic safety management rules over a three year period prior to the crash in question. That is not unusual.

Starting last year, the Federal Motor Carrier Safety Administration launched a new safety drive called Compliance, Safety, Accountability 2010 (CSA 2010). In an effort to reduce truck accident fatalities, the program is designed to identify dangerous truck drivers, companies with records of negligence and tractor-trailers and other trucks that have unsafe records.

The National Association of Small Trucking Companies sued to block public release of truck safety data online in CSA 2010, claiming that the data is not an accurate reflection of their safety performance and would put them at a competitive disadvantage. The small trucking companies also claimed that federal regulators had failed to follow proper procedures and never put a proper notice in the Federal Register, denying the companies a chance to comment. They also alleged that the agency failed to issue a proper final rule.

Last week, however, the U.S. Court of Appeals for the District of Columbia rejected those objections, so that all the detailed trucking safety data may be released online to the public.

In 2006, there were more than 385,000 tractor trailer accidents throughout the United States. They accounted for about 4% of all vehicles involved in a traffic injury and were linked to 8% of all fatal accidents, resulting in at least 4,732 deaths. Federal safety regulators say those numbers, while declining are out of proportion with the number of trucks on the road.
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Published on: February 9, 2011

Federal Motor Carrier Safety Administration sets listening sessions on proposed hours of service rule change

By Ken Shigley

The Federal Motor Carrier Safety Administration (FMCSA) has scheduled a public listening session on its proposal to revise hours-of-service (HOS) rules for commercial truck drivers on February 17, 2011 in Arlington, Virginia.

The agency will also webcast the session live with a forum on its website for comments and questions in order to maximize public participation.

The proposed rule change, which I discussed in this blog about six weeks ago, defines a fault line between the trucking industry, which generally claims asserts the proposed changes would excessively restrict the trucking business in already economically difficult time, and safety advocates who say the changes don’t go far enough in reducing driver fatigue.

According to Transportation Department records, driver fatigue accounts for up to 40 percent of all commercial vehicle crashes.

The hearing will be held at the Crowne Plaza Washington National Airport hotel at 1480 Crystal Drive, Arlington, Virginia 22202. The live webcast may be viewed by going to www.fmcsa.dot.gov. The session will last from 12 noon until 12 midnight EST.

If you or a loved one have been injured by negligence in operation of a large commercial truck in or from Georgia, contact us today to determine whether you have a claim.
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Published on: February 7, 2011

Truck Safety Coaliation works for safer highways

By Ken Shigley

As a trucking safety trial attorney in Georgia, I find that one of the most valuable sources of information about accident prevention in the trucking industry is the Truck Safety Coalition. It is a partnership between The Citizens for Reliable and Safe Highways (CRASH) Foundation, and Parents Against Tired Truckers (P.A.T.T).

The Truck Safety Coalition is dedicated to reducing the number of deaths and injuries caused by truck-related crashes, providing compassionate support to truck crash survivors and families of truck crash victims, and educating the public, policy-makers and media about truck safety issues.

If you or a loved one have been injured by negligence in operation of a large commercial truck in or from Georgia, contact us today to determine whether you have a claim.
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