Articles Posted in Trucking regulations

As a trucking safety trial lawyer, I’ve been bemused at the reluctance to fully utilize widely available GPS technology for trucking regulatory enforcement. Under a policy issued in 1997, the Federal Motor Carrier Safety Administration limited the use of technology data and electronically produced records, such as GPS, during reviews and for regulatory enforcement purposes.

Now, effective 12/19/08,according to a report by Barb Kampbell at TheTrucker.com the FMCSA will use GPS and other advanced technology for regulatory enforcement and safety reviews.
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In my trucking litigation practice, I have found that one of the weak links in truck transportation is the quality of equipment used in transporting freight containers from ports to ultimate destinations. Too many of the truck chassis used are apparently old trailers spray painted to look sharp but with inadequate mechanical and safety features, and too many of the key players in the system were not subject to safety regulations.

Now the Federal Motor Carrier Safety Administration has issued proposed rules to augment safety requirements for intermodal container chassis-the trailers that transport cargo containers when they are transferred from ship or rail to truck for final delivery. The new regulations for the first time make intermodal equipment providers subject to the Federal Motor Carrier Safety Regulations (FMCSRs), and define shared safety responsibility among intermodal equipment providers, motor carriers, and drivers.

A spokesman for the American Trucking Association noted that this will mark the first time that intermodal equipment providers have been required to maintain their equipment and be responsible for it, as motor carriers are required to maintain their equipment.

The Intermodal Association of America expressed reservations. The organization said it is disappointed that the rules failed:

* to recognize existing industry standards and processes that could have been utilized to facilitate the objectives of the regulations;

* to clarify what party would be considered the “IEP” for purposes of regulatory compliance and in fact might have “muddied the water”;

* to accept the existing alpha/numeric equipment identification number; and
* to definitively accept the industry solution of a Web-based intermodal equipment registry as an alternative to physically marking/labeling equipment with a new DOT number.

IANA said it will consider filing a petition for reconsideration upon completion of a thorough review of all provisions of the rules and the projected impact on intermodal industry participants.
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As a trucking accident trial lawyer in Atlanta, I am no longer surprised at the failure of some trucking companies to do pretty basic stuff related to safety. Of course, I am looking at those companies whose drivers get into serious crashes.

Now the Federal Motor Carrier Safety Administration has published a new proposed rule on safety audits for new entrants in the motor carrier business. The FMCSA identified 11 regulatory violations which “reflect a clear lack of basic safety management controls” and which under the proposed rule would result in an automatic failure of the safety audit.

It is interesting to compare this list with the issues in recent cases, includingClarendon v. Johnson in which one judge of the Georgia Court of Appeals wrote an opinion concluding, in effect, that interstate motor carriers can exempt themselves from all safety and financial responsibility requirements of the Federal Motor Carrier Safety Regulations through their own violation (by way of the carrier’s designated agent) of the regulation requiring execution of truck leases when they hire owner-operators to haul freight under the carrier’s authority.

It was the first case in the United States in more than 50 years that gives motor carriers such free rein to disregard the rules and hide behind an “independent contractor” arrangement with an informally hired driver. An untold number of innocent people on the highways will be killed or maimed due to the Georgia Court of Appeals ruling, and will have no remedy.

The 11 deadly sins for trucking companies under the FMCSA proposal are:

1. Sec. 382.115(a)/Sec. 382.115(b)–Failing to implement an alcohol and/or controlled substances testing program (domestic and foreign motor carriers, respectively).

[Just a couple of days ago I took the deposition of a trucking company owner who never, ever required any drug testing of any driver — preemployment, random or post-accident.]

2. Sec. 382.211–Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382.

3. Sec. 382.215–Using a driver known to have tested positive for a controlled substance.

[Last week I took the deposition of a bus company that avoided getting a post-accident drug test of its driver, even though a professional psychologist who was an eyewitness immediately reported to police that the bus driver — who had felony drug convictions and had just completed a residential drug treatment program as a condition of sentencing in another state — was driving erratically, had a wild look in the eyes, and appeared to be on drugs.]

4. Sec. 383.37(a)–Knowingly allowing, requiring, permitting, or authorizing an employee with a commercial driver’s license which is suspended, revoked, or canceled by a State or who is disqualified to operate a commercial motor vehicle.

[In Johnson v. Clarendon, an interstate motor carrier, through its designated agent, hired a driver who never even had a CDL because he was permanently disqualified, but the Georgia Court of Appeals thought that was just fine, so long as the motor carrier also violates the regulation that requires that it execute a truck lease when it hires a non-owned truck. In Georgia, violation of the lease requirement now gives a scofflaw carrier a free pass to ignore all the rest of the Federal Motor Carrier Safety Regulations with regard to informally hired trucks and drivers.]

5. Sec. 383.51(a)–Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a commercial motor vehicle.

[See 8, below.]

6. Sec. 387.7(a)–Operating a motor vehicle without having in effect the required minimum levels of financial responsibility coverage.

[See 4 & 5, above. No problem according to one judge on the Georgia Court of Appeals.]

7. Sec. 391.15(a)–Using a disqualified driver.

[See 8, below.]

8. Sec. 391.11(b)(4)–Using a physically unqualified driver.

[See 4 above. A three-judge panel on the Georgia Court of Appeals had no problem with an interstate motor carrier, through an agent who was deemed under the FMCSR to be part of the motor carrier, casually hiring a driver to haul freight for the carrier who was permanently disqualified from driving a commercial motor vehicle due to being blind in one eye. That is just fine, under this ruling, so long as the motor carrier also avoids executing the required written lease and avoids using the word “lease” in its informal arrangement to hire the truck and driver.]

9. Sec. 395.8(a)–Failing to require a driver to make a record of duty status.

[Earlier this week I took the deposition of a trucking company owner who had never looked at the logs of the driver of a leased truck, dispatched by the company owner and operating with the carrier’s logo and DOT number on the truck. The company owner was either too careless or too clueless to require or audit driver logs.]

10. Sec. 396.9(c)(2)–Requiring or permitting the operation of a commercial motor vehicle declared “out-of-service” before repairs are made.

11. Sec. 396.17(a)–Using a commercial motor vehicle not periodically inspected.

[We often find in depositions that motor carriers fail to require drivers to inspect trucks and fail to ever check to determine whether they performed inspections. Under the Johnson v. Clarendon ruling, the Georgia Court of Appeals would say that the motor carrier has no duty to assure compliance with truck inspection rules so long as it also omits a lease and use of the word “lease” in its informal arrangement.]

Don’t get me wrong. I also represent some very fine, professional truck drivers who are conscientious about following the rules, and who work for companies that follow the rules. Truckers are generally no better or worse than lawyers or judges. A few bad ones made the rest look bad.
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Setting the direction of trucking safety will be a small part of the job of the new Secretary of Transportation, Ray LaHood, named yesterday by President-elect Obama. He was not on the short list of candidates about whom there had been a lot of speculation. John McCain has praised the choice.

After reading about Lahood, I don’t agree with those who speculate that this indicates low priority for transportation in the new administration. My hunch is that he was chosen to drum up bipartisan Congressional support for funding of major transportation infrastructure projects that Obama plans to help jumpstart the economy.

There are a few clues to how people associated with trucking view him. Land Line quotes Rod Nofziger, Director of Government Affairs for the Owner Operator Independent Drivers Association, as saying, “Mr. LaHood would be an excellent pick by the Obama administration. It’s very encouraging and would be a great thing for small-business truckers.” He got some campaign contributions from the American Trucking Association, and got a 100% rating for voting with the ATA.

LaHood is an Arab-American Republican Congressman who for 14 years has represented the area around Springfield and Peoria, Illinois. He did not run for another term in 2008. According to Jeff Zeleny at the New York Times, LaHood has experience on the House Appropriations Committee relevant to oversight of the sort of large-scale public spending on infrastructure projects. He also has close bipartisan relationships with President-elect Obama and Chief of Staff Designate Rahm Emanual..

Mike Dorning at The Swamp blog quotes Emanue’s recent comments on the House floor about LaHood:

If you look back and I think if you ask all our colleagues, somebody when our framers thought of a member of Congress what they had in their mind’s eye, that person would be Ray LaHood, whose decency, his sense of what it is that he was doing here on behalf of who he was doing it for never changed in his 30 years. He is an individual who, while firm in his principles, was very flexible about his opinions.

LaHood also has long been a favorite of reporters covering the Capitol for his willingness to say on-the-record what other members of Congress will only whisper anonymously.

A story on ABC News lists some of the priorities facting the US DOT, and does not list anything at the Federal Motor Carrier Safety Administration. It includes:

– Upgrading the nation’s transportation infrastructure – roads, bridges, etc. — even though the Highway Trust Fund is running on fumes. The gas tax has become a less viable way of funding highways, so increased use of tolls with an EZ-Pass system may be considered.

– Upgrading Amtrak rail system.

– Upgrade the Federal Aviation Administrations’ air traffic control system, relief of air traffic congestion, and aircraft inspection.

– Promotion of more fuel efficient vehicles, in conjunction with the proposed bailout of the auto industry.

Evan Sparks at Aviation Blog predicts that the appointment of LaHood may mean that Obama does not plan to devote a great deal of attention to transportation issues – much like our current president, whose cabinet’s token Democrat was also at DOT.

Andy Birkey at the Minnesota Independent gives some hometown insight on LaHood due to having grown up in Peoria. He reports that LaHood is of Lebanese Christian family background. He refused to sign Newt Gingrich’s “Contract with America” in ’94, supported the impeachment of President Clinton, is a close friend of Rahm Emanuel (Obama’s chief of staff), supported subsidies for Amtrak, and voted for recent legislation to promote public transit.

Some bloggers have been critical of the appointment. Robert Cruikshank at California High Speed Rail Blog observed that “LaHood doesn’t appear to have much of a record as a transportation expert.”

Marcus Sanford at Austin Bike Blog noted that LaHood is a member of the Congressional Bike Caucus and has voted in favor of higher fuel standards, Amtrak funding, and renewable energy.

As for LaHood’s campaign contributions from special interests of the years, you can figure that out for yourself.

As a “redneck lawyer” from Georgia, I know that leaders can transcend their backgrounds when promoted to new positions. Ray Lahood has been a congressman from a rural and small town district in downstate Illinois, where Caterpillar is the main industry. While big national issues such as urban transit, air travel safety and for that matter motor carrier safety have not been big vote getters in his district, he has shown interest in upgrading transportation. Obama and Emanuel know him well and apparently think he has capacity for growth and effectiveness.

We just need to make sure he is educated about trucking safety issues.
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As a trucking accident attorney representing people seriously injured by large trucks, and the families of people who are killed, I work almost every day with the Federal Motor Carrier Safety Regulations, and try to keep up with trucking safety regulation.

Looking forward to transition at the Federal Motor Carrier Safety Administration, it is interesting to look back at what the U.S. Senate Appropriations Committee said in a report on the FMCSA last July. Here are a few excerpts:

The FMCSA has shown a pattern of undermining its safety mission by proposing weak regulations and failing to provide adequate oversight and enforcement of existing regulations.

The rules that FMCSA has proposed fail to achieve maximum safety benefits, and in some instances may undermine safety.

While marginal gains were made in 2007 compared to 2006, the charts show that over two-thirds of inspections continue to uncover violations, and one in five trucks or drivers inspected have violations so severe that they are immediately placed out of service. FMCSA has a great deal of work to do to compel industry compliance.

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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. 

In my truck and bus accident law practice in Atlanta, Georgia, I often find truck drivers who were not medically qualified to drive large commercial trucks.

We had one recent case where the driver who caused a crash was blind in one eye, a condition which disqualifies him from even obtaining a Commercial Driver’s License in any state. His lack of depth perception combined with excessive speed led to a head-on collision when he swerved around a vehicle that slowed to turn.

In another case the truck driver had COPD (chronic obstructive pulmonary disorder), which also is a disqualifying condition. I took the deposition of his personal physician who testified that he had told the truck driver to use supplemental oxygen at all times, 24/7, and that it was unsafe for him to drive a truck.

We also see truckers whose medical conditions require them to take medications with side effects that make it dangerous for them to drive.

Now the Federal Motor Carrier Safety Administration is taking a step in the right direction. It will require states to merge commerical truck and bus drivers licenses and drivers’ medical examination certificates into a single electronic record. Linking the two will enable states to check whether drivers have met medical requirements to operate commercial vehicles. The FMCSA also proposed creating a list of medical examiners qualified to award certificates to drivers.

A study released earlier this year found hundreds of thousands of drivers operating trucks and buses even though they had qualified for Social Security medical disability payments.

As I said earlier, this is a step in the right direction. However, it apparently will not require the examiners to look at the drivers’ personal medical records. Thus, there is little protection against drivers concealing a history of disqualifying conditions that may not be immediately apparent in an exam.

There is also no requirement to screen for chronic obstructive sleep apnea, which is common among truck drivers and contributes to an untold number of fatigue-related crashes. However, we often see truckers who resist even going to a doctor for evaluation because they known diagnosis could endanger their driving jobs. I can certainly understand the fears of such drivers, but any disqualifying condition that is left untreated can pose a lethal risk to other motorists on the highway.
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This morning I monitored a telephone conference meeting of the Federal Motor Carrier Safety Administration’s Motor Carrier Safety Advisory Committee (MCSAC).

They will have a two day meeting in Washington on December 9th and 10th to work on a letter report to the Administrator outlining
– innovative safety initiatives and programs that have the potential to reduce the number of truck and bus fatalities,
– research and development activiites to assess the potential for new safety technologies, and
– enhanced driver qualification standards and driver safey fitness ratings.

Much of the discussion was about semantics — use of the term “public-private partnerships.” They finally agreed to tweak the language to make it clear that they were not talking only about public-private partnerships.

There are two openings on the committee for law enforcement representatives. Nominations are due by this Thursday, December 4th.
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