Articles Posted in Trucking regulations

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NOTE TO TRUCK DRIVERS:
Our law practice focuses on representation of people who are seriously injured, and families of those killed, in crashes with large commercial vehicles. While those are often truck drivers, we do not handle truckers’ employment law matters. For legal advice on issues with your employer, see Truckers Justice Center. 

Trucking companies are required to obtain a medical examination by licensed medical examiner of each truck driver. Here are the physical conditions that disqualify a truck driver from obtaining a CDL (commercial drivers license) and operating a commercial motor vehicle.

1. Loss of use of extremity. Loss of use of a foot, leg or arm, subject to a Skill Performance Evaluation of ability to safety control and operate a commercial motor vehicle even with a prosthetic limb.

2. Diabetes. Medical history of clinical diagnosis of diabetes currently requiring insulin. Diabetics whose condition is controlled with oral medication and diet may qualify.

3. Cardiovascular. Current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive cardiac failure. Coronary artery bypasses are not disqualifying, but implanted pacemakers are disqualifying.

4. Respiratory. Established medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with the ability to control and drive a commercial motor vehicle safely. Examples of disqualifying respiratory conditions are emphysema, chronic asthma, carcinoma, tuberculosis, chronic bronchitis and sleep apnea.

5. Hyptertension. Any detection of hypertension requires frequent rechecks. A blood pressure of 180 (systolic) and 110 (diastolic) or higher is considered Stage 3, at high risk for an acute event such as a stroke. The driver with Stage 3 hypertension may not be qualified, even temporarily, until reduced to equal to or less than 140/90 and treatment is well tolerated, and thereafter rechecked every six months.

6. Other physical limitations. Clinical diagnosis of rheumatic, arthritic, orthopedic or vascular disease which interferes with ability to control and operate a motor vehicle. This would include, for example, known to have acute episodes of transient muscle weakness, poor muscular coordination (ataxia), abnormal sensations (paresthesia), decreased muscle tone (hypotonia), visual disturbances and pain which may be suddenly incapacitating. Medical examiners must evaluate the severity and the likelihood of impairment affecting safe operation.

7. Epilepsy. Established medical history or clinical diagnosis of epilepsy or other condition known to cause loss of consciousness. Single episodes of non-epileptic seizure or loss of consciousness are evaluated regarding likelihood of recurrence, with a six month waiting period highly recommended. Drivers with a history of epilepsy/seizures off antiseizure medication and seizure-free for 10 years may be qualified to operate a CMV in interstate commerce. Interstate drivers with a history of a single unprovoked seizure may be qualified to drive a CMV in interstate commerce if seizure-free and off antiseizure medication for a 5-year period or more.

8. Psychiatric. Mental, nervous or functional disease or psychiatric disorder. This is often a subjective evaluation and easily overlooked by medical examiners.

9. Vision. Must have corrected vision of at least 20/40 in both eyes. One who is blind in one eye cannot qualify. My wife, who is functionally blind in one eye, would not qualify.

10. Hearing. Must be able to perceives a forced whispered voice in the better ear at not less than five feet with or without the use of a hearing aid. If tested by use of an audiometric device, must have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz and 2,000 Hz with or without a hearing aid. I wonder whether my daughter, who is deaf but has an Auditory Brainstem Implant that enables her to hear environmental sounds and understand some speech would qualify.

11. Uses a Schedule I drug or other narcotic, with a narrow exception for prescribed medications.

12. Current diagnosis of alcoholism.

While the Federal Motor Carrier Safety Administration has taken steps to tighten up on medical examinations and certifications, there is still likely to be a problem with drivers avoiding going to doctors and avoid reporting dangerous symptoms to medical examiners. I have taken depositions of truckers who fell asleep while driving, looked like medical textbook illustrations of likely candidates for obstructive sleep apnea, and who had great knowledge of sleep apnea, but who denied ever having consulted a physician regarding any sleep related ailment.

There is also a problem with drivers who do get treatment for their disqualifying conditions but neither comply with their doctors directions nor reported their conditions. In one case, I took the deposition of a truck driver’s personal physician who testified that the driver had confirmed obstructive pulmonary obstructive disorder (COPD), required use of an oxyen tank 24/7, and was unfit to operate a large truck. However, the trucker had never told the medical examiner or his employer of this condition.

The next step in reforming the medical qualification process may be to adjust the incentives. Right now the incentive for truck drivers to to avoid seeking treatment for problems that could be disqualifying, and to conceal insofar as possible any medical problems they may have. How can the rules be modified to to encourage drivers who have problems to seek the medical care they need?

And how can truck stop chains be encouraged to provide better access to healthy food and exercise facilities in order to help truck drivers maintain healthier lifestyles?
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The health of truck drivers operating 80,000 pound vehicles on the highways for long hours is a matter of great concern for safety of both the truckers and others on the road. The lifestyle of long-haul truckers is hardly conducive to maintaining good habits of diet and exercise. Obesity, sleep apnea, and related ailments are too common, and ultimately affect safety.

The Federal Motor Carrier Safety Administration has taken two new steps toward improving the supervision of medical certifications of drivers.

First, effective 1/30/09, regulations require states to maintain records linking medical certifications, medical examiner certifications, and CDL (commercial drivers license) records. A copy of these documents must be maintained in the motor carrier’s driver qualification file. There will be a three-year phase-in of the new rule until 1/30/12.

Second, the FMCSA has published for comment a proposed rule to establish a national registry of medical examiners, who would be required to complete training about truck driver physical qualification regulations. Only those doctors who complete and maintain their certifications would be allowed to certify the fitness of truck drivers.

These are steps in the right direction. Now I would like to see truck stop chains do their part by installing exercise facilities and offering healthier food options.
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Effective 12/19/08, the Federal Motor Carrier Safety Administration rescinded a 1997 policy in order to permit motor carriers to use electronic systems in lieu of paper logs. The change of policy recognizes the reality that most motor carriers now use some sort of technology to trace, route and manage their business. This is good in that it is difficult to falsify a GPS log and it is difficult for a motor carrier to claim it could not have known of violations of hours of service rules when it is using software designed to automatically check for such problems.

However, discovery of the electronic records may be difficult. Motor carriers are obligated to preserve electronically stored information just like paper records. But they and their lawyers are likely to claim that the information was inadvertent, that no backups exist, and that hard copies that do not include all the information are just as good. For example, software used by the motor carrier may allow for comments to be typed in a pop-up box,, but reports may be printed out without the comments that were entered.

The move toward electronic record keeping is a net positive, but it will require a more sophisticated approach to discovery in the litigation of serious trucking accident cases.

Those of us who handle serious trucking accident cases are gearing up for a much tougher approach to electronic discovery.
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Federal Motor Carrier Safety Administration, at 49 CFR 391.11, requires that in order to get a Commercial Driver’s License, an applicant must be able to “read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.”

A news story from West Virginia tells about a Russian truck driver who wrecked and spilled a truckload of cocoa. He could not speak English, but somehow had obtained a Maryland CDL.

There have been occasional stories about people essentially buying CDL licenses in various states although they did not qualify. I won’t guess what may have happened with this guy.

However, we have seen cases in which immigrant truck drivers who did not speak or read English obtained CDL licenses contrary to the federal rule. In one case a year or so ago, I took the deposition in Kansas City — through an interpreter — of a Croatian truck driver who was taught to drive a tractor trailer by “some Russian guy in North Carolina. He said his study of the CDL manual and rules was accomplished by having his 10-year-old daughter translate it for him.

By the time I took his deposition he had learned enough English to have a little conversation, though we had to work through an interpreter. Can you imagine how hard it is to get a Croatian interpreter at all. Forget about getting one who knows the nuances of court interpreting.

You just can’t make this stuff up.
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Ray LaHood, the new US Secretary of Transportation, is apparently focused on infrastructure and air traffic control, but not so much on trucking safety.

According to an Associated Press article by Michael Tarm, LaHood is preparing to meet with the state DOT chiefs from all 50 states about plans for road and mass transit projects with funds from the economic stimulus legislation. That seems certain to consume most of his energy and attention.

A strong second priority is replacement of the radar-based national air traffic control system with a satellite-based system called NextGen.

I have not yet seen any announcement of who may be the new head of the Federal Motor Carrier Safety Administration. Stay tuned.
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On inauguration day, President Obama’s office issued a directive to agency heads directing a 60 day hold on newly issued regulations that had not yet become final.

Regarding the trucking industry, three new regulations were published in the Federal Register during the last days of the Bush administration but had not yet become final. Those include final rules on responsibility for intermodal chassis, driver medical certification verification and the new entrant safety assurance process.

The new hours of service regulation became final on the day before the inauguration, and was not included in the list of regulations put on hold. It is anyone’s guess what decision might be made on that.
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One of the first official acts of the new Obama administration was to put a hold on newly proposed or recently adopted federal regulations until the new team can review them. However, the Federal Motor Carrier Safety Administration’s controversial hours of service regulations, which became final the day before the inauguration, was not on the list.
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A tractor trailer accident on an icy interstate highway in Indiana underscores the importance of the rule requiring drivers of commercial vehicles to exercise “extreme caution” in hazardous weather conditions.

On I-74 in Indiana, a firefighter was suffered a crushed pelvis, broken leg, and multiple internal injuries when he was struck and pinned under the rear drive axle of a tractor trailer as it came to a rest in the soggy ditch of the icy interstate. Police said the accident happened while I-74 was covered with ice after freezing rain fell. Sheriff Ken Campbell added: “Emergency responders are put at an unnecessary risk by motorists who insist on driving too fast in these road conditions.”

49 CFR 392.14 requires:

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. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.

As a truck driver client recently told me, it’s better to pull over in bad weather than to unnecesarily risk injury or death to himself or others.
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Truck driver fatigue as a cause of major tractor trailer accidents is an old story. As a trucking trial lawyer in Atlanta, Georgia, I have seen it too many times.

In today’s Baltimore Sun, there is an editorial, “Yawning Danger,” urging the incoming Obama administration to overturn the hours of service rule that is set to become permanent on the last day of the Bush administration. The old rule limited truck drivers to 10 hours of driving in one day. The current temporary rule, which will become “permanent” on January 19th, allows driving 11 hours during 14 hours on duty.

The editorial points out:

Has the 11th hour made the roads more dangerous? Are 11th-hour drivers more likely to be involved in crashes? Some research suggests no, and that’s the evidence sited by the Federal Motor Carrier Safety Administration when it granted the rule change in November. But advocates say the government’s analysis relies heavily on one study from the Virginia Tech Transportation Institute that is deeply flawed (depending, for instance, on truckers being videotaped; the presence of a camera onboard likely affected their performance).

The bulk of 35 years of research, the petitioners point out, shows that the performance of long-haul truck drivers diminishes even before the 10-hour limit is reached. And while the number of highway fatalities was down the last two years, it went up the first year the new rules were in place. Recent safety improvements to roads and vehicles as well as lower average highway speeds may be masking the effect of the longer hours.

It seems like common sense that fatigue is progressive, and that one is more fatigued and more accident prone in the 11th hour of driving than in the 10th hour.
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Trucking safety lawyers as well as everyone else concerned about transportation issues needs to pay attention to personnel choices in the US Department of Transportation. You remember the old cliche that “personnel is policy.” Even an humble personal injury trial attorney handling trucking accident cases in Atlanta should be attentive.

President-elect Obama has picked Ray LaHood, a retiring Republican congressman from rural Illinois as his Secretary of Transportation. Here’s what some of the commentators around the country are saying:

* John Hughes and Julianna Goldman at Bloomberg.com write:

Even with firm Democratic majorities in the House and Senate, Obama will need help across the aisle. Legislation to upgrade the nation’s air-traffic control system has been stuck in Congress for more than a year and the Bush administration has been fighting airlines over flight rights in New York. Meanwhile, Obama is planning to give states an infusion of funds to create jobs by improving the nation’s infrastructure. . . .
In an attempt to cut through partisan rancor in the late 1990’s, LaHood organized a series of annual retreats — at resorts a short train or car ride outside of Washington — to bring together lawmakers and their families.

* In The New Republic, John B. Judis writes “LaHood and Solis: Second Round Picks”:

Bush’s administration. But they should be important in Obama’s administration. Transportation has a stake in America’s two biggest manufacturing industries, planes and auto. Much of the $900 billion and rising in infrastructure funding is going to go through the Transportation Department. The secretary is not just going to be responsible for shepherding this spending through Congress, but also for shaping what kind of spending occurs. What gets funded–highways, airports, rail, mass transit–and in what proportion will determine what the country looks like well into the next decades. LaHood is being touted as being pro-rail because he didn’t vote against AMTRAK, but I have heard little to convince me that he will bring any kind of vision to the job or that he will able to sell controversial provisions in the Senate.

* National Journal’s Expert Blog on transportation issues includes a collection of comments from figures in aviation, highway construction, etc. There is no end to lobbyists.

* John O’Dell at Green Car Advisor on Edmunds.com writes:

LaHood has little transportation record beyond his support for Amtrak, the national passenger train program, and his apparently friendly relationship with the Teamsters Union and other transportation unions, which endorsed and financially supported him during his congressional career. The national Teamseters Union also has endorsed his nomination as Transportation Secretary.

* American Traffic Safety Services Association (ATSSA) is the industry organization of companies providing pavement markings, road signs, work zone traffic control devices, guardrail, and other roadside safety features. It issued a statement that it was “is enthused by the selection and recommends prompt confirmation from the Senate.”

* Oliver Patton at TruckingInfo.com wrote that LaHood will “have to hit the ground running: Obama has called for massive public works investments, in the short term for economic stimulus and in the longer term for rebuilding and modernizing transportation infrastructure.”
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