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:

Read more

A new piece of legislation, introduced by Representative Reid Ribble (R-WI), appears to ignore the findings of a recent U.S. Department of Transportation (DOT) study and aims to increase the weight limits of large trucks. Opponents of the bill say that it will needlessly endanger the public and further damage our deteriorating transportation infrastructure, an argument that seems to be supported by the DOT study findings.

Representative Ribble’s bill, tagged by opponents as a “profits over people” measure, seeks to increase the federal weight limit for large trucks from 80,000-lbs to 91,000-lbs. In support of the bill, Representative Ribble appears to be relying on trucking industry-funded research that ignores the results of the DOT’s Comprehensive Truck Size and Weight Limits Study (Study), which concluded that there should not be an increase in truck size and weight due to a lack of data.

The Study revealed that there is very little national information on the use of six-axle, 91,000-lb. trucks, since heavier truck configurations are currently only in use in Washington State. In Washington, these heavier trucks experienced a 47% crash rate increase, compared to standard truck weights. Additionally, the Technical Report of the Study showed that trucks in excess of 80,000-lbs had 18% more brake violations and a higher number of brake violations per inspection. Heavier trucks also have longer stopping distances and, when a crash occurs, the forces involved are significantly greater. According to the DOT study, Representative Ripple’s assertion that heavier trucks are just as safe as 80,000-lb trucks is statistically, and logically, false.

Heavier trucks are not only generally unsafe, but can also be damaging to our nation’s deteriorating roadways and bridges. The proposed legislation ignores the fact that 91,000-lb. trucks will violate the 1975 Bridge Formula, which established the maximum weight any set of axles on a motor vehicle may carry on the Interstate highway system. Further, unbiased studies show that increasing the weight of a truck by 10% increases bridge damage by 33%. Representative Ripple’s assertion that increasing truck weight will not increase damage to our transportation infrastructure is not supported by any unbiased research.

Finally, Representative Ripple claims that heavier trucks equal fewer trucks on the roadway, but history would disagree. Increases in truck size and weight over the last 35 years have never resulted in fewer trucks on American roads. There is no scientific or practical reason to believe that this trend will change.

At face value, this piece legislation seems to benefit only the trucking industry and puts the profits of that industry over the safety of the American people, including truckers and innocent motorists. One would hope that Representative Ripple’s colleagues in the House will put the safety interests of their voters first and veto this potentially hazardous bill.

It is expected that the final rule mandating the use of Electronic Logging Devices (“ELDs”) will be published shortly. The rule will take effect two (2) years after it is published in the Federal Register.

Under the proposed new rule, truck drivers who are required to keep duty status records will have to track their hours-of-service (“HOS”) with an ELD, which had previously been referred to as Electronic Onboard Recorders. The ELDs will effectively replace paper logs, which can be easily altered.

The Prohibition of Driver Coercion (“PDC”) rule is also set for publication on September 30, 2015. Although not specifically related to the ELD rule, it was designed to address an issue with the original ELD rule, which had been struck down by the court after its publication. The prior ELD rule, published in 2011, had been struck down after drivers complained that motor carriers and shippers would improperly use the ELDs to harass them and coerce them to violate the Federal Motor Carrier Safety Regulations (“FMCSR”).

Read more

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.

Under the Federal Motor Carrier Safety Administration Regulations, commercial truckers are required to conduct pre- and post-trip inspections of their vehicles in order to identify and document safety defects and maintenance concerns.  Previously, truckers were required to complete Driver Vehicle Inspection Reports (“DVIRs”) documenting the results of their inspections.  Trucking companies were required to retain the DVIRs.

As of December 18, 2014, truckers are no longer required to complete DVIRs, if they do not find any problems with their vehicle.  Although eliminating no-defect DVIRs will reduce paperwork costs for the trucking industry, it will come at the expense of safety.  Both the National Transportation Safety Board and the Advocates for Highway and Auto Safety cautioned that eliminating DVIRs will have a negative impact on public safety.

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.

Despite the American public’s overwhelming opposition to increasing the number of hours that a truck driver can work each week, Senator Susan Collins (R-ME) has introduced legislation that would increase truckers’ weekly hours from 70 to 82.  The “Collins Amendment” is currently before the Appropriations Committee.

In a recent poll conducted by Lake Research Partners, 80% of those surveyed oppose longer work weeks for truck drivers and would feel less safe if truck drivers are allowed to drive 82 hours, as opposed to 70.  The American public has good reason for concern as fatigued driving is one of the leading causes of fatal and catastrophic truck crashes.

Federal Motor Carrier Safety Administration (“FMCSA”) studies have revealed that 65% of truck drivers often or sometimes feel drowsy while driving and nearly 50% of truckers admit that they have actually fallen asleep while driving within the last year.  It is estimated that the current hours-of-service rules will prevent approximately 1,400 truck crashes each year, which will save 19 lives, avoid 560 injuries and save hundreds of millions of dollars from fewer crashes and improved driver health.

As a Personal Injury attorney in New Jersey, I have seen many people suffer from injuries due to a truck accident. We need to make the roads a safer place. The proposed legislation  ignores the voice of her constituents and the American public and makes the roadways significantly less safe for all of us. If you have been injured by a trucking accident in New Jersey, contact Stark & Stark for a free consultation.

 

Data reflecting a motor carrier’s safety history is presently available to the general public by the Federal Motor Carrier Safety Administration (FMCSA).  The FMCSA generates a carrier’s score through this data, compiled in its “Safety Measurement System” (SMS), which incorporates the results of roadside inspections and other safety-based violations – also known as  “Compliance, Safety, Accountability” (CSA) data.  Amongst other things, a motor carrier’s rating is influenced by unsafe driving practices (evidenced by moving violation history), hours of service violations, vehicle maintenance/condition violations, and other issues which pose significant risks to the motoring public.  Access to these data points provides the public with a snapshot of a company’s safety record, thus arming industry watchdog groups and persons/companies seeking to hire a motor carrier with highly valuable information.  This, in turn, applies social & industry pressure to improve the trucking industry’s overall compliance with important safety measures.  By improving one’s ability to identify target disreputable and unsafe motor carriers, access to SMS data serves to reduce the risk presented to everyone using the public highways.  (An overview of the SMS system can be found here:  https://csa.fmcsa.dot.gov/about/basics.aspx )

Access to a carrier’s CSA data through SMS can provide an important and often vital resource to those seeking to improve public safety, hire reputable motor carriers, and to obtain justice.  The data is reliable.  It is generated by the government based upon each carrier’s actual violation history.  All good things.  So why is the “Commercial Vehicle Safety Alliance” (CVSA), a trucking industry group, now seeking to hide CSA data from public view?  That’s right.  Stephen Keppler, CVSA’s Executive Director, has presented U.S. Department of Transportation Secretary, Anthony Foxx, with a written request seeking removal of CSA carrier data from public view.  According to the letter, the CVSA’s “stakeholders” are concerned that “inconsistent enforcement” practices between jurisdictions may affect the “accuracy” of a carrier’s safety rating.  This position is ridiculous.  A carrier’s score is based upon actual violation data.  If a carrier wishes to improve its rating, it need only improve its compliance.

As a trucking lawyer in Lawrenceville, New Jersey and safety advocate, I sincerely hope that Mr. Foxx and the FMCSA see through Mr. Keppler’s ruse and reject this blatant effort to hide this important safety information from the public.