The Federal Motor Carrier Safety Administration (FMCSA) has withdrawn a proposed rule revising its method for determining the safety fitness of motor carriers. The notice of proposed rulemaking, issued on Jan. 21, 2016, set forth a new methodology for evaluating whether a motor carrier is not fit to operate commercial motor vehicles. The new methodology would have determined when a motor carrier is not fit to operate commercial motor vehicles in or affecting interstate commerce based on the carrier’s on-road safety data; an investigation; or a combination of on-road safety data and investigation information.

FMCSA’s proposal sought to replace its current three safety fitness ratings — “satisfactory,” “conditional,” and “unsatisfactory” — with just one rating, “unfit.” However, that idea was challenged by some industry groups, including the National School Transportation Association (NSTA). The NSTA stated that the current safety fitness rating system aligns well with the safety culture within the school transportation industry. NSTA raised concerns that the proposed new system would leave a safe carrier unrated, offering limited guidance on the safety record of the carrier and causing potential confusion among carriers, law enforcement, and the public.

Continue Reading FMCSA Withdraws Proposal on Safety Fitness Determination

The Obama administration today is proposing training standards for entry-level commercial truck and bus operators, as mandated by Congress as part of MAP-21.

In a statement, Transportation Secretary Anthony Foxx called it a “major step towards ensuring that commercial vehicle drivers receive the necessary training required to safely operate a large truck or motorcoach.”

Specifically, those seeking a “Class A” commercial drivers license would have to have no less than 30 hours of training behind the wheel from a program that meets minimum FMCSA standards. This also includes at least 10 hours of practice driving.

For a “Class B” commercial driver’s license, applicants would have to have at least 15 hours of training behind the wheel and seven hours on a practice range.

The new standards would apply to any first-time CDL applicants, those with a current CDL license seeking an upgrade or additional endorsement, and anyone who had previously been disqualified from a CDL again seeking to be licensed. Military drivers, farmers and firefighters would continue to be exempt.

Yesterday, December 2, 2015, Congress released a report detailing the results of the bicameral agreement reached concerning the terms of the surface transportation reauthorization bill commonly known as the “Drive” Act or the “FAST Act” (“Fixing America’s Surface Transportation”). The original House and Senate proposals for the Act included a number of anti-safety provisions which were strenuously objected to by Public Safety Advocates, including Trucking Attorneys like myself. I pointed out some of the key problems with the initial proposal in a prior blog.

Fortunately, the Members of Congress serving on the Conference Committee listened to the facts and to the arguments presented for greater safety, and made a number of positive changes to the final bill.

Examples of these improvements include:

  • Removal of a section which provided exemptions to hours of service requirements for certain classes of truck drivers;
  • Modifications to the “teen drivers provision” such that there will be a limited pilot program and a greatly reduced volume of higher-risk drivers who are permitted to drive large trucks across state lines;
  • Removal of a provision designed to limit the liability of shippers and brokers who negligently hire unsafe trucking companies;
  • Removal of a proposed Amendment which would have prohibited states from providing additional meal and break protections for truck drivers; and,
  • Modifications to the language in the Act that will eliminate some of the hurdles the Federal Motor Carrier Safety Administration (FMCSA) must navigate in making its determination as to whether minimum insurance limits for large trucks should be raised.

Unfortunately, not all of the anti-safety provisions were eliminated from the final bill. The bill still includes:

  • Vehicle weight limit exemptions for the shippers of logging products and milk products, and for large trucks powered by natural gas; and,
  • Provisions restricting public access to certain CSA scoring data, and implementing other procedures which may impact the Safety Management System (“SMS”) ratings maintained by the FMCSA for trucking companies.

While the bill is not entirely free of anti-safety provisions, I would like to extend a thank you to those Members of Congress who listened to the appeals for public safety and worked to improve the final bill.

12/3/15 Update: “The FAST Act” Still Contains Anti-Safety Provisions

Members of the United States Congress are currently negotiating the final language of a transportation bill known as “the DRIVE Act.” This legislation will have a major impact on everyone using our nations’ roadways in the years to come.

The terms of the Act have been a subject of debate for some time now, and certain anti-safety provisions (such as the proposed increase in the maximum weight limit for commercial trucking) have been defeated. However, the current legislation still contains numerous provisions that must be removed because they present a threat to the health and safety of the public. Some examples include:

Continue Reading The DRIVE Act Still Contains Multiple Anti-Safety Provisions

On February 18, 2015, I wrote about a New York City-area scheme where three individuals helped as many as 500 people cheat on the Commercial Driver’s License (“CDL”) test. More recently, a multi-agency investigation in Florida has uncovered a similar scheme involving a commercial truck driving school. The Department of Transportation’s Office of the Inspector General, the FBI, Homeland Security and the Florida Highway Patrol joined forces to uncover the plot, which enabled unqualified drivers to receive CDLs. Ellariy Medvednik, Natalia Dontsova, Adrian Salari and Clarence Davis were all charged in connection with the investigation. These people were affiliated with Larex, Inc., a commercial truck driving school that marketed itself to Russian-speakers online. Continue Reading More Unqualified Commercial Drivers Attain CDLs Due to Cheating Scheme

Recently, the Federal Motor Carrier Safety Administration (“FMCSA”) released a crash accountability study that focused on whether incorporating Police Accident Reports (“PARs”) in its crash fault weighting system would improve the Agency’s ability to target carriers most at-risk for crashes.

The report focused on crash accountability in the FMCSA’s Compliance, Safety, Accountability (“CSA”) Program.  CSA safety is analyzed through the Safety Measurement System (“SMS”), which quantifies the safety performance of motor carriers through State-reported crash and inspection data.

After reviewing 10,892 PARs, the FMCSA concluded that PARs are useful for determining fault in fatal crashes.  However, the study determined that PARs are not useful for determining a motor carrier’s future crash risk.

Trucking companies now have access to technologies which can dramatically improve the safety of their operation, safe on fuel costs, and provide accurate feedback concerning the conduct of their drivers.  For example, products like “Smartdrive” utilize a multi-camera computer interface to simultaneously capture video footage of the driver’s actions within the cab of the truck and a driver’s-eye view of the path of travel, and combine it with other computer feeds from the truck itself to produce a real-time record of what is happening with any given truck.  Though such systems, a trucking company’s safety director or fleet manager can track the location of a truck, the g-forces applied on the truck by the driver’s actions, engine and vehicle data (such as vehicle speed, engine RPMs, hard braking events, etc.), active safety system data (such as following distance, lane departures, etc.), and other similar data.

As a trucking lawyer at Stark & Stark, my question to the industry is why aren’t systems such as “Smartdrive” in broader use?  Perhaps the answer lies in the impact the data from these systems can have in litigation.  They have the unique ability to show exactly what was or wasn’t done by the truck driver.  They can allow for a completely accurate reconstruction of a crash – one which eliminates the ability of a driver’s selective memory to create opportunities for the company to defend its wrongful actions.

However, the fact that trucking companies (and the public at large) should be focusing on, is that data from these systems can also be used to improve everyone’s safety.  Companies which employ these systems and utilize technology have the ability to improve driver training and to identify dangerous drivers.  As such, these systems can be used by the trucking industry to help stop crashes before they happen! 

More information on “Smartdrive” can be found here.

Recently, three individuals pled guilty to charges arising out of a scheme to help applicants cheat on the written portion of their commercial driver’s license (“CDL”) examination.  An investigation by the U.S. Transportation Department’s Office of Inspector General, in conjunction with other federal and state law enforcement agencies, revealed fraudulent CDL test-taking activities at five New York State Department of Motor Vehicles test centers in the New York City area.

According to reports, the scheme involved the use of pencils encoded with test answers, the use of Bluetooth headsets to communicate test answers and the use of an external test-taker positioned nearby to take the exams.

As a result of the scheme, as many as 500 unqualified CDL applicants passed the examination and, presumably, are now on our roadways.

On December 16, 2014, President Obama signed Congress’ $1.1 trillion spending bill for the 2015 fiscal year.  The spending bill included the “Collins Amendment,” which was introduced by Maine Senator Susan Collins, and seeks to repeal two key provisions of the Federal Motor Carrier Safety Administration’s (“FMCSA”) 2013 hours of service rules.

Under the 2013 hours of service rule changes, truck drivers must take a 34-hour “restart” period once every seven days.  The 34-hour rest period must include two consecutive overnights between 1:00 a.m. and 5:00 a.m.

The “Collins Amendment” seeks to remove the requirement that the 34-hour rest period include two overnights.  In addition, the “Collins Amendment” would allow drivers to take more than one “restart” in a seven day period.

As a result of the passage of the spending bill, with the “Collins Amendment” attached, the “two overnights” rule and the “restart” rule are suspended.  The suspension will last until the FMCSA finishes a study on the rules or until the spending bill expires on September 30, 2015, whichever date is later.  For now, we can all thank Sen. Collins for endangering the lives of innocent truckers who are forced to work longer hours and innocent motorists who are forced to share the roadways with fatigued truckers.

The trucking industry is heavily regulated.  Unfortunately, those very regulations, which exist to insure the safety of the motoring public (that’s you, me and everyone else on the road), are frequently ignored by trucking companies, large and small, often with devastating results.  When a person is injured in a crash with a tractor trailer, the qualifications of the driver to operate the vehicle, and the steps taken by the motor carrier to qualify him/her, should be a primary area of inquiry by any trucking attorney.  And the best evidence of this is frequently found in the driver qualification file.

Motor Carriers are obligated to explore the background and training of any person hired to operate their trucks.  And, they are required to maintain a record of the results for duration of the driver’s tenure of employment.  This is known in the industry as a “driver qualification file”.  Given that these documents are required by law, and are spelled out in great detail by the regulations the trucking industry is acutely familiar with, one would presume that every company would have a complete file for each driver, right?  Unfortunately, in my experience, this rarely proves true.  I am frequently astonished by the important documentation which is missing from driver’s files, and this often serves as a marker for the care and attention a trucking company takes toward cultivating competent drivers.

The following documents should exist in every driver’s qualification file:

  • Driver-specific application for employment (§391.21);
  • An original motor vehicle record requested within 30 days of hire (§391.23);
  • Documentation proving the driver’s qualifications to operate [this may be in the form of a road test (company road, (§391.31(g)), or a road test certificate conducted by another motor carrier within the past 3 years (§391.33(a)(2)), or a photocopy of a CDL accepted in lieu of road test (unless the person is hired to operate doubles, triples, or tankers)]
  • Results of the background investigation on the driver (§391.23 & §391.53 ) including:
  • For drivers hired before October 30, 2004: Employment verifications sent to all former employers for the 3 years prior to the application date or a record of a good faith effort;
  • For drivers hired on or after October 30, 2004: Safety Performance History data from all former DOT-regulated employers for the 3 year period preceding the application or a record of a good faith effort.
    • If applicable, copies of any driver rebuttals to the Safety Performance History data and responses to the rebuttals from the former DOT-regulated employers.
  • The driver’s medical certificate (§391.43(g) (or equivalent)
  • A waiver of a physical disqualification, if applicable (§391.49(j)
  • The driver’s annual motor vehicle record (§391.25);
  • A record of the driver’s annual review of his/her driving record (§391.25);
  • A list of the driver’s moving violations on an annual basis (§391.27).
  • Combination vehicle training certificate, if applicable (§380.401);
  • Entry-level driver training certificate, if applicable (§380.509(b)).

In certain situations, additional or differing documentation may be required and/or may exist.