Trucking regulations

Published on: February 4, 2011

Federal trucking safety agency proposes rule on electronic on-board recorders

Because driver fatigue is one of the most pervasive safety issues in interstate trucking, trucking safety regulations for many years have included rules on how many hours a driver may drive and be on duty. In almost every serious trucking accident, the accuracy of paper driver logs becomes an issue. As a trucking safety trial attorney in Georgia, I have exerted a great deal of effort over the years investigating other records to determine the truth which does not always match those logs.

Now, after years of controversy, the Federal Motor Carrier Safety Administration is proposing a new rule requiring Electronic On-Board Recorders (EOBR).

A proposed rule published published Feb. 1 that would require motor carriers that are required to maintain Records of Duty Status for Hours of Service (HOS) recordkeeping would have to use EOBRs to monitor their drivers’ compliance.

FMCSA’s proposal includes supporting documents these carriers would still be required to obtain and keep, as required by section 113(a) of the Hazardous Materials Transportation Authorization Act, but it would remove requirements to retain supporting documents to verify driving time. It would require all carriers to systematically monitor their drivers’ compliance with HOS requirements, with three years from the effective date of the final rule to comply.

The agency is accepting comments until April 4, 2011. FMCSA had issued a rule on April 5, 2010, that mandated EOBR use by June 4, 2012, by motor carriers found during a compliance review to have a 10 percent violation rate for any HOS regulation. This new rule expands that requirement, with three possible options:

Option 1 would require EOBRs for all drivers required to use paper logs.

Option 2 expands Option 1 to include all passenger-carrying commercial motor vehicles subject to the s and Federal Motor Carrier Safety Regulations shipments of bulk hazardous material, regardless whether the drivers use paper logs or are exempted from doing so.

Option 3 would include all commercial motor vehicle operations subject to the hours of service requirements.

While this is generally a step in the right direction, I’m cynical enough to note that even electronic systems are potentially subject to manipulation and cheating, though the human overrides required to cheat will require more sophistication than merely lying on a paper log, often referred to as a “comic book.” If maintenance of supporting documentation is no longer required, it will become vastly more difficult to check the accuracy of electronic records that may be subject to sophisticated cheating.

Those of us who inquire into the truth underlying hours of service reports will also have to become more sophisticated about discovery of electronically stored information in the trucking industry. That will likely require more experts and more expense.
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Published on: December 23, 2010

Hours of service rules changes proposed

By Ken Shigley

Truck driver fatigue is a prime cause of catastrophic commercial trucking crashes that cause serious injuries and deaths. Over recent years in my Atlanta-based law practice, I have seen recurring controversy about the rules designed to combat driver fatigue. Well, here we go again.

This week the Federal Motor Carrier Safety Administration released for comment proposed changes in the Hours of Service rules. FMCSA must publish a final rule by July 26.

“A fatigued driver has no place behind the wheel of a large commercial truck,” said Transportation Secretary Ray LaHood said. “We are committed to an hours-of-service rule that will help create an environment where commercial truck drivers are rested, alert and focused on safety while on the job.”

Some of the highlights are:

– Current maximum driving time per day is 11 hours. FMCSA is considering both 10 and 11 hour limits.

– Current maximum on-duty time per day is 14 hours. FMCSA proposes 13 hours.

– On duty time would exclude any time resting in a parked commercial motor vehicle. Ideally, this would be utilized for “power naps” within the driving time window.

For more detail see the FMCSA summary and Notice of Rulemaking.
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Published on: December 7, 2010

Hours of service rule revisions behind schedule

By Ken Shigley

Interstate trucking accidents keep happening, and as a trucking accident trial attorney in Atlanta, I keep seeing the tragic results. Many of those crashes are due at least in part to driver fatigue.

But in Washington the government is behind schedule for approval of revisions to truck drivers’ hours of service rules, according to a report from Heavy Duty Trucking magazine’s website.

The Federal Motor Carrier Safety Administration originally thought that the White House Office of Management and Budget would clear the proposal by the end of October. Now the FMCSA hopes that OMB and the White House will complete work on the proposal by the end of the year.

Trucking companies are anxious about the possibility that a rule change might significantly change drivers’ work schedules. As readers of this blog know, I think some change of schedules might be a good thing for safety.

There is also concern about FMCSA’s ability to process the voluminous comments it will no doubt receive and come up with a final rule by the court-ordered deadline of July 26, 2011.
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Published on: November 19, 2010

Rainy day brings 3 tractor trailer wrecks on Atlanta expressways

By Ken Shigley

Monday was a rainy day here, and in the rain there were at least three tractor trailer wrecks on the Atlanta expressways. The worst was on I-285 Northbound just above I-20 West, as a tractor trailer overturned after colliding with at least one other vehicle.

One of the basic rules for operation of a large commercial truck is to exercise “extreme caution” when bad weather affects visibility or traction.

The Federal Motor Carrier Safety Regulations §392.14 provides:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. . . .

The Commercial Drivers License Manual says:

It will take longer to stop, and it will be harder to turn without skidding, when the road is slippery. Wet roads can double stopping distance. You must drive slower to be able to stop in the same distance as on a dry road. Reduce speed by about one-third (e.g., slow from 55 to about 35 mph) on a wet road.

Just an educated guess here, but I would bet that at least one of the truck drivers involved in those wrecks on Monday didn’t exercise extreme caution and slow down by one-third.
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Published on: November 18, 2010

Unsafe “chameleon” trucking companies still slip through the cracks at FMCSA

By Ken Shigley

In our trucking accident litigation practice in Georgia, I sometimes run across fly-by-night trucking companies with terrible safety ratings that go out of business but then reopen under another name and DOT number but with the same people and equipment. Sometimes I have a case against the old company with a terrible record. Other times I get the new company with a safety rating wiped clean.

Almost two years ago, the Federal Motor Carrier Safety Administration announced a new rule to stop this “chameleon carrier” shell game. 49 CFR 385.306 provides that if a company provides false or misleading information in the application process, the new applicant registration is subject to revocation. The application requires disclosure of related companies and individuals, and these are supposed to be scrutinized for outstanding orders to cease operations. Any new entrant registration is supposed to be linked to the history of any related old motor carrier in the FMCSA database.

That’s great if it works. However, an article on The Trucker reveals how the FMCSA is so swamped with applications that companies that should have such safety scrutiny can easily slip through the cracks, sometimes with tragic consequences.

Days before Hester Inc. – the motor carrier involved in an 11-fatality, much publicized accident in Kentucky March 26 – was scheduled to be shut down by FMCSA due to an unsatisfactory saffety rating, an existing carrier with brokerage authority, FTS Fleet Services, was granted operating authority to do business from Hester’s Fayette, Ala., facilities using much of the same equipment, the same drivers and some of the same operations personnel.

Scott Hester, president of Hester Inc., listed himself as president of FTS Fleet Services. However, despite the requirements of 49 CFR 385.306, the FMCSA never made the connection between Hester Inc. and FTS Fleet Services until questioned by a reporter. By June 10, five days after Hester Inc. had been ordered closed due to its unsatisfactory safety record, former Hester trucks and drivers were on the road as FTS Fleet Services.

The Trucker reports that where companies about to be shut down file for a new DOT number under a new name, they still can easily go undetected because of the heavy load of applications and because of a lack of information sharing between divisions at the agency.

The last time in our trucking accident practice we had a case against a “chameleon carrier,” as soon as we asked for the background records and made a demand, the insurer tendered its million dollar policy limit. The Hester / FTS example is a reminder that whenever one has a case against a newly authorized trucking company, it is prudent to do discovery about the company owners and officers, and the safety ratings of any prior companies with which they were associated. If the defendant is a chameleon carrier, the unsatisfactory safety rating of the old company should be admissible in evidence in support of a claim for punitive damages or for attorney fees due to bad faith in the transaction.
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Published on: November 2, 2010

Trucking industry backs legislation to hide any truth that hurts them in Electronic On Board Recorders

By Ken Shigley

As a trucking accident trial attorney in Georgia, half of my work seems to be ferreting out the facts that the other side wants to conceal. For years much of the challenge has been in attempting to prove driver fatigue by piercing the fog of deception in paper driver logs that are referred to in the industry as “comic books.” Often we are able to find enough time stamped receipts, loading dock tickets, etc., to prove the truth despite the obfuscation.

In recent years we have seen halting progress toward use of Electronic On-Board Recorders in the trucking industry. While still subject to manipulation, EOBR records are at least harder to fake.

Now, however, two Senators backed by giant trucking companies have proposed legislation that would allow use of EOBR information only if it’s good for the trucking company defendant, and keep it hidden if it helps the folks who are injured or killed by the trucking company.

Senators Mark Pryor (D-Ar) and Lamar Alexander (R-Tn) recently introduced the Commercial Driver Compliance Improvement Act (S. 3884), which is an attempt by the trucking industry to hide evidence of fatigue in any truck driver involved in a wreck.

Of course, campaign contributions — and now the unregulated flow of anonymous corporate cash — count for more in Washington that the interests of members of the public who don’t yet know that they will be maimed or killed on the roads.

The bill, if passed, would allow the information contained in Electric On Board Recorders (EOBRS) to be used only by the owner. If the information helped the trucking company, they could use it. If it showed that the truck driver was fatigued, the company would be allowed to conceal its existence. Thus, people injured due to the trucking company’s practice of allowing fatigued drivers on the road would be denied access to the information needed to prove that aspect of the case.

Five giants of the trucking industry — JB Hunt Transportation, Knight Transportation, Maverick Transportation, US Express, and Schneider National — have formed a coalition they’re calling “The Alliance for Driver Safety & Security” to back the bill. They benefit financially from EOBR as a management tool, will benefit financially by revealig the data if it helps them in a case, and will benefit financially by burying the truth if it shows that their fatigued drivers injured or killed another person on the road.

Kudos to my friend, Morgan Adams in Chattanooga, for calling this to my attention.
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Published on: October 31, 2010

Trucking safety impaired by inadequate control of medical certification process

By Ken Shigley

As a trucking accident injury trial attorney in Atlanta, Georgia, I sometimes run across truck drivers about whom I wonder how they ever passed a medical exam. In a case last year, when I dug into records and took depositions, I found that a truck driver with extensive heart disease had open heart surgery. Soon thereafter he returned to work driving an 18 wheeler over the road.

How did he pass his Commercial Drivers License (CDL) medical exam to return to work so soon after open heart surgery? He went to a chiropractor for a CDL medical certificate at 8 AM before reporting for work at 8:30 AM.

In another case, I found that a truck driver’s own physician said he should not have left home without an oxygen tank due to COPD (chronic obstructive pulmonary disesase), and lack of oxygen to the brain made him unfit to drive.

In both cases, the truck drivers’ medical conditions were contributing factors in their poor judgments in operating 80,000 pound big rig vehicles.

Now, a news story on MS-NBC has revealed just how easy it is for a long-haul trucker to renew medical certification. A chiropractor or advance practice nurse at a truck stop medical clinic can renew a trucker’s medical certificate in 20 minutes — even after open heart surgery.

And truck drivers who are denied certification for any reason can simply head down the road and try another “med stop” because data tracking of this issue is nonexistent. Moreover, even when a trucker is caught without proper medical certification, immediate license revocation may not result
While the National Transportation Safety Board in 2002 proposed enhanced medical standards for truckers, the response has been minimal. Over the ensuing six years, over 800 fatal crashes were blamed, at least in part, on medically unqualified drivers.

The Federal Motor Carrier Safety Administration has begun tightening supervision of medical certification, but for those killed or maimed by unfit truck drivers in the meantime, it’s too little and too late.
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Published on: September 23, 2010

Sod truck crash kills one in Canton, brake failure suspected

By Ken Shigley

Last night on I-575 in Cherokee County, an 18 wheeler tractor trailer hauling sod crashed at the bottom of an exit ramp from I-575 to Ga. 140 in Canton. The three-vehicle collision resulted in the death of one person, thus far not identified in the media. The tractor trailer crossed over the intersection and hit another vehicle, according a CBS News report.

According an article by Mike Morris in the Atlanta Journal Constitution, police were investigating whether brakes had failed on the tractor trailer.

The Federal Motor Carrier Safety Regulations govern interstate trucking — between different states. Section 393.40 of the FMCSR defines required brake systems. Section 393.43 sets requirements for breakaway and emergency braking. Section 393.47 covers brake actuators, slack adjusters, linings/pads and drums/rotors. Section 393.52 sets standards for brake performance.

If a truck is operated only intrastate (within Georgia), then it is subject to the Georgia Motor Carrier Safety Regulations. The bulk of the federal rules on equipment required for safe operation, including these rules regarding brakes, are simply incorporated by reference in the Georgia rules.
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Published on: September 14, 2010

Trucking safety reviews may be tough on insurers

By Ken Shigley

As a trucking accident trial attorney in Atlanta, I often see that the trucking companies involved in bad crashes have had terrible safety evaluations for a long time.

Twice in the past few weeks I found in the Federal Motor Carrier Safety Administration safety audits that the companies were cited and fined scores of times for the same rule violations that were involved in the crashes we are addressing.

Now folks in the insurance industry are expressing concern that increased safety monitoring under the FMCSA’s Comprehensive Safety Analysis initiative will result in more warnings and citations about deficient safety practices, which we will in turn use to show the willfulness of unsafe practices.

In some instances, jurors may find that persistence in bad conduct sufficient to award punitive damages or attorney fees in addition to punitive damages. That may be a good thing for promoting safety on the highways, as trucking companies with unsatisfactory safety ratings will face pressure from their insurance companies. Those truckers who don’t care much about safety may care about being able to keep the insurance that is required to operate, and about their paying higher insurance premiums. Thus, the economic impact will give a competitive advantage to safer companies and a competitive disadvantage to unsafe companies.

And trucking trial lawyers like me who know where to obtain those records and how to use them will contribute to a “virtuous cycle” whereby pursuit of our clients’ interests also serves to promote safety for everyone on the highways.
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Published on: May 9, 2010

Trucking safety issues addressed by FMCSA director

By Ken Shigley

As a trucking accident trial attorney based in Atlanta, Georgia, I try to keep up with trucking safety issues at the national level. The latest development was a statement last week by Federal Motor Carrier Safety Administration director Ann Ferro at a U.S. Senate subcommittee. Some of the high points include:

Core priorities of FMCSA are to:
1. Raise the safety bar to enter the industry;
2. Require operators to maintain high safety standards to remain 3. Remove high-risk operators from our roads and highways.

CSA 2010 is to be implemented by end of 2010.
This Comprehensive Safety Analysis program is intended to measure seven key behaviors that are linked to trucking crash risk:
1.Unsafe Driving 2. Fatigued Driving 3. Driver Fitness which includes licensing and medical compliance standards 4. Crash History 5. Vehicle Maintenance 6. Improper Loading and Cargo 7. Controlled Substances – Drugs and Alcohol
New Entrant Safety Assurance Program focuses on 16 safety regulations for which a violation by a new entrant carrier would result in an automatic failure of the safety audit. Any new entrant that fails the safety audit must submit a Corrective Action Plan (CAP) in order to continue to operate in interstate commerce. FMCSA also closely monitors the new entrant during the initial 18-month period of operation and, if certain violations are discovered during a roadside inspection, the new entrant will be subject to an expedited action to correct the identified safety deficiencies.

National Registry of Certified Medical Examiners rules later this year will establish minimum training and testing requirements for all healthcare professionals that issue medical certificates for interstate truck and bus drivers. (I’ve seen drivers who were cleared to return to service in a 10 minute checkup by a chiropractor after open heart surgery.)

Hours of Service. FMCSA is taking another look at the controversial hours of service rule.

Electronic On-Board Recorders will be required of an additional 5,700 motor carriers as a remedial measure. (The days of “comic book” driver logs may be numbered, but making the EOBR systems tamper-proof will be the next challenge.)

Distracted Driving. FMCSA has banned text messaging by drivers while operating a commercial motor vehicle. (It’s a step in the right direction.)

Drug & Alcohol Database. FMCSA is working on a database to keep up with drivers who fail drug and alcohol tests.

There’s more. I commend the entire statement to the interested reader.
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