Atlanta Injury Law Blog

As an attorney handling trucking accident cases in Georgia, I've seen a wide variety of violations of trucking safety rules. It's a nationwide problem.  In 60,000 random inspections of tractor trailers in Arizona, 31% yielded safety violations serious enough to take the truck out of service. Fully 86% turned up at least one safety violation. That's according to a report by Joe Ducey at KNVX-TV in Phoenix. The breakdown of violations in the Arizona report is as follows:

Types of Out-Of-Service Violations in Arizona in 2006:
False Report of Driver Record of Duty Status - 2,818
Inspection/Repair & Maintenance - 2,674
Driver Fail to Retain Previous 7 Days Logs - 1,500
No Driver's Record of Duty Status - 1,396
15 Hour Rule Violation - 1,357
Brake Out of Adjustment - 1,194
Inoperative/Defective Brakes - 980
10 Hour Rule Violation - 921
No or Improper Load Securement - 717
Flat Tire or Fabric Exposed - 708
Stop Lamp Violations - 706
No/Improper Breakaway/Emergency Braking - 684
Tire Flat/Audible Air Leak - 590
Brakes-General - 582
Failing to Secure Vehicle Equipment - 546

Companies with Most Out-Of-Service Violations in 2006:
Swift Transportation Company Inc - 148 (out of 611 total violations)
Knight Transportation Inc - 51 (of out 137 total violations)
San Luis International Freight Services LLC - 50 (out of 259 total violations)

As a Georgia lawyer representing people who are hurt in trucking accidents – and the families of those who are killed – I see too many cases where it appeared that a truck driver was deeply fatigued, was over the legal hours of service, and had a paper log that was not accurate.

A study by the Federal Motor Carrier Safety Administration showed 13% of large truck drivers were fatigued at the time of an accident. Of the 141,000 estimated crashes, that's 18,000 fatigued truck drivers causing crashes. According to a report by Brian Shapleigh at KJCT television in Grand Junction, Colorado, the Colorado Motor Carriers Association supports installation of on-board computers to track driving hours. Many in the trucking industry, however, oppose any such requirement. 

The spokesman for the CMCA was quoted as saying truckers "need to go above and beyond actually what most drivers are" because of the size of the vehicle their driving.

As an Atlanta lawyer handling trucking accident cases, I have seen many illustrations of why truck driver logs on paper are often referred to as "comic books."  That's why I was encouraged to see that the Federal Motor Carrier Safety Administration  may expand its proposed requirement for electronic onboard recorders (EOBRs) to include all carriers.

The FMCSA's proposal calls for an EOBRs mandate only for "repeat violators" of hours-of-service rules.  Earlier the National Transportation Safety Board, expressed concern that the rule currently on the table lacks the "resources or processes necessary to identify and discipline all carriers and drivers who are pattern violators." "The only way in which EOBRs can effectively help stem hours-of-service violations, and thereby reduce accidents involving a commercial driver’s reduced alertness or fatigue, is for the FMCSA to mandate EOBR installation and use by all operators," the NTSB said.

A three day joint operation by police officers, motor carrier inspectors and drug recognition evaluators  targeting impaired semi drivers and unsafe commercial vehicles placed 99 vehicles (19 percent), out of service for assorted safety violations including excessive hours, log book deficiencies and driver qualification issues. As an Atlanta attorney handling tractor trailer wreck cases statewide in Georgia, that percentage of trucks and drivers in violation is consistent with what I have seen and wah truck drivers have told me off the record.

According to a report in the East Oregonian, the Oregon enforcement operation had four goals: find equipment violations; determine if drivers are working under the influence of drugs or alcohol; determine if fatigue is impairing drivers; and find any driver engaging in criminal activity in conjunction with operating a commercial vehicle.

.

The Medical Review Board of the Federal Motor Carrier Safety Administration has recommended that CDL holders with a body mass index of 30 or higher be referred for sleep apnea testing. There is no timetable for action on this recommendation.

Sleep apnea is a serious disorder that interrupts a person’s breathing during sleep.  It can cause sleeplessness, fatigue, excessive snoring, acid reflux and other health problems, and can aggravate any existing heart or lung trouble. Certain physical features, such as excessive weight, are common to people with sleep apnea, although people who aren’t obese can suffer it as well. A BMI of 30 or greater – 220 pounds for a 6-foot-tall person – puts people at risk for developing obesity-related medical conditions such as sleep apnea.

My anecdotal observation, as a trial lawyer in Atlanta handling catastrophic tractor trailer accident cases and interviewing a great many truck drivers, is that sleep apnea is a substantial hazard in the trucking industry, that a significant number of drivers are very much at risk, and that many of them may be motivated to avoid the sort of medical consultation that would lead to diagnosis and treatment because of the perceived risk of loss of income.

To require sleep apnea testing for the group of drivers most at risk could be a positive measure for both the safety of the traveling public and the health of the truck drivers.

Part of my routine includes going to truck stops to meet with interstate truck drivers. Some are witnesses in cases, and some are clients injured when another truck hits their truck.  It often occurs to me that truck drivers and trial lawyers have a lot in common. About 95% are pretty good folks who work hard to do a good job under adverse circumstances, while 5% give the rest a bad reputation.

This morning I visited with a truck driver  while he was stopped at a truck stop near Atlanta for his rest break. A graduate of a nationally prestigious university, he illustrates the fact that many truck drivers are intelligent, well-educated people.  He had several insights that confirm what I have heard from others:

• The worst part of the current hours of service rule is that it penalizes napping in the middle of a day's run. Many drivers can operate more safely if they can take a rest stop in the middle of the day, with perhaps take a 30 minute nap. Thus refreshed, they are ready to drive several more hours. However, if that nap counts against the time they can legally drive, thus penalizing them for doing what is safest for them, that is a big problem.
• Shippers insist on delivery schedules without regard for whether the run can be completed safely and legally under that schedule. However, if a crash occurs, it is the driver and carrier who are stuck with responsibility, not the shipper that is calling the shots.
• Shippers weigh loads and know if the truck is overloaded, but if there is a fine or other sanction for being overweight, it is the truck driver and carrier who bear that burden, not the shipper that determined the weight of the load.
• Drivers who refuse loads that cannot be completed without violation of hours of service rules are penalized, even if there is not a formal "forced dispatch" system.
• It is extremely difficult to stay healthy while driving over the road. Truck stops do not have exercise facilities, and the food available at truck stops is almost universally high in calories, fat, cholesterol, salt, etc.  He observed that many truck drivers drive down the road eating high fat chips, etc.  The effects on driver health are predictable, as drivers gain weight and many ultimately develop sleep apnea, which may go undiagnosed because diagnosis would affect their driving status and income. This driver, who was once a professional athlete, says he jogs, walks or does calesthenics when the truck is being loaded and at rest stops, almost never eats truck stop food, and carries healthy groceries in the cab.  I noted that the truck stop cafe menu was heavily laden with unhealthy items; I got oatmeal while my truck friend ordered toast.
• Despite the hardships of truck driving, the lure of the open road still has its allure to people from widely varied educational and career backgrounds. It would be tough on someone raising a family, but I can understand the appeal for a single guy who has grown bored with office jobs.

The news of the entry of Mexican trucking companies and drivers into the US in recent months, despite concerted opposition in Congress, gets more amazing all the time.  Now the Federal Motor Carrier Safety Administration is allowing Mexican drivers in the demonstration project to prove their proficiency in English by responding to the examiner's questions in Spanish.

As an attorney handling trucking accident cases in Atlanta, Georgia, I frequently deal with issues of truck driver fatigue, and the controversy over the change in hours-of-service rules that wears out drivers while enabling shippers and trucking companies to squeeze more work hours out of them. 

Advocates for Highway and Auto Safety, an appropriately named advocacy group,  told the DC Circuit Court of Appeals last week that the Federal Motor Carrier Safety Administration broke the law again when it reinstated an hours-of-service rule for truck drivers that is making highways more dangerous. The FMCSA claims that the rule, which allows driving 11 hours per day and working up to 84 hours per week,  does not lead to dangerous fatigue. 

According to a report by Commerce Clearing House (CCH), a reply brief filed last Thursday refutes FMCSA's argument that the rule has improved highway safety. The National Highway Traffic Safety Administration recently reported that deaths in truck accidents increased in 2004 and 2005, while the percentage of fatal crashes that result from driver fatigue rose 20 percent during the same period.  "Because 2004 was the first year in which the new, longer hours of driving and work were put into effect, the negative impact is obvious," the brief states. In addition, FMCSA has acknowledged in the past that the risk of a crash doubles from the 8th hour to the 9th hour of driving, and doubles again from the 10th to the 11th hour.

The hours-of-service rule has twice been thrown out by a court. FMCSA first promulgated the regulation in 2003, increasing the number of hours truckers can drive. The Court of Appeals for the DC Circuit struck down the rule in 2004, but Congress reinstated it as part of the Surface Transportation Extension Act of 2004.

One may marvel at the stubborn resistance to common sense about fatigue hazards at the FMCSA. However, when I see how many former FMCSA officials retire to become shills for the trucking industry that they had been regulating, testifying in court and depositions that hardly anything a trucking company does is unsafe, it fits together.

As a lawyer handling interstate trucking accident cases, I see the results of a variety of safety problems. Now, a Houston TV investigative reporter has revealed one more hazard for us to worry about.  Even when the federal drug testing regulations are followed by the testing labs, it is extremely easy for  a truck driver who is motivated to do so to cheat on the test by using mail order drug-free urine. See this video report from Robert Arnold at KPRC TV in Houston, Texas.

The Federal Motor Carrier Safety Administration has proposed changing Commercial Drivers Licence (CDL) requirements to require actual driver training.  Sure it seems like a radical idea to require drivers of 80,000 pound tractor trailers to have some training behind the wheel before they get on the highway, but the feds are here to help us, right?

For a "Class A" CDL (tractor-trailers), the proposed rule would require at least 76 hours of classroom training and 44 hours of behind-the-wheel training for a total of 120 hours. For "Class B" (large "box" or van trucks) and "Class C" CDLs (hazardous materials or certain passenger-carrying vehicles), the  rule would mandate a minimum of 58 hours of classroom training and 32 hours behind-the-wheel for a total of 90 hours. 

In 2004, FMCSA implemented a training rule that focused on areas unrelated to the hands-on operation of a CMV, relying instead on the CDL knowledge and skills tests to encourage training. These current training regulations cover four areas: Driver qualifications; hours of service limitations; wellness; and whistleblower protection. But in 2005 the DC Circuit held that the Agency was "arbitrary and capricious" in issuing the 2004 rule because it ignored an important conclusion of its own 1995 Adequacy Report, that behind-the-wheel training is essential.

The current FMCSA hours of service rule for truck drivers has been subject to much criticism on multiple grounds.  Now a Minnesota-based motor carrier has applied for an exemption in order to try another method of fatigue management.  Considering the merits of night-time sleep and power naps when fatigued during the day, with electronic monitoring, the company's proposal may have a lot of merit.

Dart Transit Co., based in Eagan, MN, has applied for a two-year exemption from two provisions of the hours-of-service regulations so that 200 of its owner-operators can operate in order to try a fatigue risk management system that would encourage quality nighttime sleep and use electronic onboard recorders to monitor drivers’ rest schedules.

“The purpose of this is to reduce driver fatigue by implementing a scientifically validated, risk-informed, performance-based fatigue risk management system,” says Gary Volkman, Dart’s vice president of safety and compliance. Dart believes the program will increase safety; improve the health, lifestyle and retention of drivers; and improve customer service. “What we want is a rested driver behind the wheel," Volkman says. "But we want a little more flexibility around when he gets that rest.”

Echoing criticisms of the HOS rule that have shown up in litigation and elsewhere, Dart argues that the 14-hour rule often penalizes drivers who stop to take a nap or sleep for less than eight hours – even when this opportunity occurs at night and is sensible for reducing fatigue. The requirement that split rest be taken in blocks of at least eight hours and two hours encourages drivers who have been on duty at night to try to obtain all or most of their sleep during the daytime hours when they are least likely to obtain sleep that is of good quality or long duration, Dart says.

Under Dart’s plan, the 200 owner-operators would be exempt only from the 14-hour clock and the split-rest limits. All other hours-of-service rules – 10 hours minimum daily rest, maximum 14 hours on duty per 24 hours, 11 hours driving per day and 70 hours per 8 days – would still apply.

A big focus of Dart’s plan is nighttime, or nocturnal, sleep, which studies have shown to be preferable. The company would use EOBRs and wireless communications to ensure that each driver’s truck is not moving for a minimum of six consecutive hours sometime during the period of 9 p.m. to 9 a.m. each night. In addition, Dart would use software from Circadian Technologies to analyze driver fatigue risk on a daily basis. Exempt drivers and their fleet managers would get these scores, along with instructions on how to improve them, such as temporary reductions in workload.

If FMCSA authorizes the exemption, Dart would take applications from owner-operators and conduct health screenings on applicants to exclude those at risk of untreated sleep disorders. The company also would provide education and training on fatigue and sleep to the participants and their fleet managers.

U.S. Sen. Diane Feinstein, D-Calif., has asked the Federal Motor Carrier Safety Administration to reconsider electronic on-board recorders, citing recent high-profile truck accidents in her state.  Feinstein cited the Insurance Institute for Highway Safety, which claims that a third of drivers omit hours from log books and that the percentage of truckers asleep at the wheel at least once in the past month increased from 13 percent in 2003 to 21 percent in 2005. European trucks already have non-electronic tachographs, and two years ago, the European Union began requiring new trucks to have electronic recorders, Feinstein said.  In January 2007, the FMCSA proposed a rule to establish performance standards for recorders and incentives to encourage their voluntary installation. The proposed rule would mandate the recorders, however, only for carriers that have serious and continued violations of the hours rule twice within a two-year period.

This week in several states, the Commercial Vehicle Safety Alliance (CVSA) and the Federal Motor Carrier Safety Administration (FMCSA) are sponsoring “Operation Safe Driver.” This involves increased enforcement roadside enforcement on commercial motor vehicle rules, including fatigued drivers, seatbelts, etc., and educate non-commercial drivers about sharing the road with trucks.

Unfortunately, there can never be enough enforcement officers to effectively deter safety violations by trucking companies and drivers who have powerful economic incentives to break the rules.  A requirement of electronic monitoring devices on trucks would help, but the industry strongly resists that.  Lawyers like me provide after-the-tragedy enforcement, but it would be far better if the trucking industry and the FMCSA would embrace the technology that is now available to deter safety rule violations.

Trucking safety experts estimate that about 30 percent of tractor-trailers and dump trucks are overweight.  Studies show that overweight trucks are more likely to be in accidents. They also roll over more easily and need more time and distance to stop. A truck weighing 120,000 pounds needs 50 percent more space and time to stop than a truck weighing the legal 80,000 pounds.

The Georgia DOT is holding public hearings on the proposal to build truck-only  lanes on interstate highways in congested areas throughout the state.  I can see merit in the concept of separating truck traffic from passenger car traffic.  The devil, of course, is in the details.

We are seeing more concerns raised about safety of Mexican trucks coming into the US. Among the points raised recently are:

•  Full access has not been granted to the Mexican license record database.  Border facilities have this access, but more than 15% of the time the records are missing entirely.

•  The Department of Transportation (DOT) just assumes all trucks used by Mexico-based companies built after 1996 are up to U.S. standards, even though data reveal that 1/5 of such vehicles do not meet minimum safety standards

•  The DOT says it will just rely on statements from Mexico-based carriers that their vehicles comply with U.S. safety standards, even though federal law clearly states that such certification can be made only by the vehicle manufacturer.

The US Court of Appeals for the District of Columbia has stayed until the end of the year enforcement of its July order striking down the current FMCSR  hours of service rule.  This has been a point of controversy for years.

 In 2003, the FMSCA first released a set of rules that would allow truck drivers to work 11 hours during a single shift and then rest for 10 hours. The previous rules set work shifts for truck drivers at 10 hours with eight-hour rest breaks. The DC Circuit Court of Appeals struck down the 2003 regulations, and the FMCSA responded by reissuing a similar set of rules in 2005. A coalition of safety and truck driver organizations sued to challenge the new rules, asserting that they jeopardized the health and safety of truck drivers.Even though the newer rules required longer rest breaks of 10 hours, the regulations did allow truckers to work more hours during the week. According to the original set of rules, truck drivers could only work 70 hours over an eight-day period.The newer rules issued in 2005 allowed drivers to work 70 hours during a week and to restart their workweek after resting for 34 hours straight. The Truck Safety Coalition  claimed that the 34-hour restart rule meant that truckers were required to work more hours every week and therefore would be much more susceptible to fatigue.

My bet is that the FMCSA will get with the American Trucking Association and reissue virtually the same rules with a doctored-up administrative record, the Truck Safety Coalition will file suit again for round 3 or whatever it is.

We've seen a lot of controversy lately about the on again - off again commencement of the FMCSA program to allow Mexican trucking companies to operate nationwide in the U.S. under the terms of the NAFTA treaty.  Now,  according to a recent Federal Motor Carrier Safety Administration enforcement memo, the FMCSA may actually start to enforce the rule that requires truck drivers to be able to function in English.

FMCSR Section 391.11(b)(2) says that all drivers must "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." In the past, each employer and law enforcement personnel interpreted the rule subjectively and, therefore, differently. Even though the rule has been in effect since 1970, no one had been placed out-of-service because it.

In 2004, Commercial Vehicle Safety Alliance revised its Out of Service Criteria to reflect a need to communicate sufficiently in the language of the country in which the driver is operating so he or she can understand and respond to officials. This could affect drivers in French-speaking Quebec who speak English, and English-speaking drivers entering Spanish-speaking Mexico. Similarly, drivers entering the United States would have to speak English fluently enough to perform their tasks as drivers and communicate with inspectors and other law enforcement officials. Even though the OOS Criteria included the new language proficiency requirement, citations were mostly the extent of the violations until this enforcement memo.

Now, the memo instructs inspectors to converse in English with drivers, at minimum, about their origin and destination; record of duty status, on-duty time, and driving time; driver's license; and vehicle components and systems regulated by FMCSA. Mexico-domiciled carriers that operate exclusively in border commercial zones are exempt from the OOS order. The driver would be cited only, and not put out of service. Inspectors are told that they must conduct a portion of the road inspection in English, specifically the driver interview. Drivers must respond appropriately in English to demonstrate proficiency. Failure to respond appropriately to basic questions will result in an OOS violation. Inspectors are instructed to speak slowly, but naturally. They are not to rush through questions and may paraphrase in English the sample driver interview questions included in the enforcement memo.

An article in Saturday's Milwaukee Journal Sentinel newspaper highlights some of the systemic problems with hours of service and driver fatigue in over the road trucking.  A few of the key points:

• According to Gerald A. Donaldson, senior research director of Advocates for Highway and Auto Safety, more ingenious drivers routinely flout the regulations and know how to get away with it."I do not believe that most logbook violations are detectable."

• Trucking safety advocates want the government to move away from paper logbooks and require big trucks to be fitted with electronic devices that automatically record driving hours. Some companies already use such recorders, and similar equipment is required on new trucks in Europe.

• Those efforts face structural obstacles in the way business gets done in the crucial "truckload" sector, the growing long-haul wing of the industry. Truckload drivers are almost universally paid by the mile or the load rather than by the hour. That system, say experts - including safety administration chief John H. Hill - contains built-in financial incentives to break the rules.

• "Non-union drivers, who make up the great majority of the truckload sector, don't have to be paid overtime. The result: Trucking companies - which operate in an intensely competitive, low-margin business and often serve customers who have come to rely on prompt delivery - pay no wage premium should they want drivers to pile on the miles."

• "Five years ago, a pair of consulting firms analyzing proposed regulatory changes for the federal safety administration framed the situation in the dry but precise language of economics: 'The marginal cost to the firm of an additional hour of driver labor diminishes constantly as the hours of work increase,'  the firms' report said. In other words, the longer a driver stays on the road, the less those additional hours cost his employer."

• "Off-duty time spent at truck stops and rest areas offers few recreational alternatives to the additional pay generated by keeping the wheels rolling. As the safety administration consultants put it: 'They are willing to work an extra hour for a lower marginal wage (and cost to the firm), to maximize their earnings potential, in part because the value of leisure time out on the road is low.'"

• Shippers' requirements create great incentives for truckers and trucking companies to break the rules.  "There is pressure in the auto industry.  . . . It's one of the cheapest freights people can haul, and it's on-time delivery. (If) they say you've got to be there by 0600, you'd better be there by 0600."

The American Trucking Associations is asking Congress to authorize and fund a centralized clearinghouse for positive drug and alcohol testing results of commercial motor vehicle drivers to ensure that motor carrier employers are aware of previous positive test results during the hiring process. The ATA notes that with between 2 percent and 2.5 percent of the truck driver population testing positive, that’s perhaps 68,000 drivers with some type of substance abuse problem,

Usually reader comments appear in a blog just as an attachment to the blogger's post, and sort of get lost in the shuffle.  However, this morning I received a comment from a seasoned truck driver named Andrew about the recent court ruling on hours of services rules that should stand on its own. 

As a truck driver, I know from personal experience that the old 10/15 rule was much better for the health and safety of drivers and motoring public. A great deal is known about sleep now and, by far, the greatest danger stems from the fact that drivers are yanked all over the clock dial by shippers/recvrs who want to get drivers in doors for loading/unloading at all hours of the night and day. Driving at night is unnatural, unhealthy and risky, especially between about 02:00 and daybreak (red-zone). If we as a society want to make really substantial gains in highway safety, red-zone driving will need to be outlawed. Recent piddly-wink adjustments will yield only slight benefits.

That is right in line with what other truck drivers have been telling me for years, and with what I have seen of some of the worst trucking accidents.

Amen, Andrew!

Thanks to alert reader David Warren for calling this to my attention.

A federal appeals court in Washington, DC, on Tuesday threw out a the 2005 rule allow long-haul truckers to drive for up to 11 hours straight. For 60 years, truckers could drive for 10 hours at a time. Since the 2000 election, the Federal Motor Carrier Safety Administration has been trying to change the rule to allow trucking companies to require truckers to put in another hour of driving time each day and dramatically increase total weekly work time.  However, once again demonstrating the importance of an independent judiciary, the U.S. Court of Appeals for the District of Columbia Circuit has now agreed that the FMCSA did not adequately explain its reasoning for adding the extra hour.

Here are some excerpts from the court's order which frequently refers back to its earlier ruling against an earlier iteration of the same rule:

First, we expressed “very real concerns” about the increase in the daily driving limit from 10 to 11 hours. . . .  We noted that the “agency freely concedes that ‘studies show that performance begins to degrade after the 8th hour on duty and [the degradation] increases geometrically during the 10th and 11th hours.’” . . . . But “[d]espite this finding, the agency cited absolutely no studies in support of its notion that the decrease in [the] daily driving-eligible tour of duty from fifteen to fourteen hours will compensate for [the] conceded and documented ill effects from the increase” in driving time.

Second, we also found suspect the agency’s claim that the increase in the daily driving limit to 11 hours could be justified by “the cost-benefit analysis it conducted.”  . . . The model employed in that analysis, we noted, “assume[d], dubiously, that time spent driving is equally fatiguing as time spent resting -- that is, that a driver who drives for ten hours has the same risk of crashing as a driver who has been resting for ten hours [and] then begins to drive.” Id. “In other words, the model disregarded the effects of ‘time on task,’” and thus understated the risks of driving 11 hours.

Third, “[o]ur doubts extend[ed] as well to the agency’s justification for retaining the sleeper-berth exception,” which permitted “solo and team drivers to obtain the necessary ten hours of off-duty time by splitting their rest in two periods of time spent in sleeper berths.” . . . . Public Citizen “argue[d] persuasively,” we said, “that the agency’s justification for retaining this exception was not rational in view of the conceded central premise of the HOS regulations . . . that ‘[e]ach driver should have an opportunity for eight consecutive hours of uninterrupted sleep every day.’”

Finally, we regarded as “problematic” the fact that FMCSA’s justification for the 34-hour restart provision “[did] not even acknowledge, much less justify, that the rule . . . dramatically increases the maximum permissible hours drivers may work each week.” . . .  That increase, we said, “is likely an important aspect of the problem[,] [a]nd the agency’s failure to address it . . . makes this aspect of the [2003] rule’s rationality questionable.”

. . .
After our July 16, 2004 decision in Public Citizen vacated the 2003 Rule, FMCSA sought and received temporary relief from the vacatur in Congress. The Surface Transportation Extension Act of 2004, signed by the President on September 30, 2004, provided that the 2003 Rule “shall be in effect until
the earlier of -- (1) the effective date of a new final rule addressing the issues raised by [Public Citizen]; or (2) September 30, 2005.” . . . FMCSA issued a new NPRM in January 2005. . . .  The 2005 NPRM used the 2003 Rule as its proposal and sought “comment on what changes to that rule, if any, [were] necessary to respond to the concerns raised by the court” in Public Citizen.

In August 2005, FMCSA promulgated the rule now under review. . . . . With a single exception, the 2005 Rule is identical to the 2003 Rule. The 2005 Rule
preserves the 11-hour daily driving limit, the 14-hour daily onduty limit, the 10-hour daily off-duty requirement, the 60-hour weekly on-duty limit, and the 34-hour restart provision. . . . . The only difference between the two rules is the sleeper-berth exception.

Although the 2005 Rule was largely unchanged from the 2003 Rule, FMCSA said that it had considered and addressed the concerns identified by this court in Public Citizen. As to driver health, the agency explained that it had conducted an extensive literature review to determine the effect of the rule on
a variety of health issues, and concluded that the 2005 Rule would either have no effect or yield a net improvement over the pre-2003 regulations. . . .

FMCSA also determined that the 2005 Rule would improve highway safety by reducing fatigue-related accidents. First, it explained that the 2005 Rule’s change to the sleeper-berth exception would reduce driver fatigue. It cited evidence that “sleep accumulated in short time blocks is less refreshing than
sleep accumulated in one long time period,” and studies indicating that drivers using the split-sleeper-berth provision of the pre-2003 regulations were more likely to be involved in fatal accidents.. . .

Finally, FMCSA relied on a new cost-benefit analysis that it described in a Regulatory Impact Analysis (RIA) released along with the 2005 Rule. See FMCSA, Regulatory Impact Analysis and Small Business Impact Analysis for Hours of Service Options (2005) (J.A. 1627) (“2005 RIA”). Based on this
analysis, FMCSA concluded that the economic costs to industry of rescinding the two provisions of the rule that this court had criticized in Public Citizen -- the increase (over the pre-2003 regulations) in the daily driving limit from 10 hours to 11 hours, and the addition of the 34-hour restart provision -- outweighed the safety benefits that rescission would bring. See 2005 Rule,
70 Fed. Reg. at 49,981. As explained below, a key component of the cost-benefit analysis was an operator-fatigue model that the agency used to analyze crash risks under different HOS regimes.

. . .

Public Citizen challenges the 2005 Rule, and specifically its 11-hour daily driving limit and 34-hour restart provision, on four grounds. The petitioner contends that: (1) FMCSA violated the APA’s requirements for notice-and-comment rulemaking by failing to disclose in time for comment the methodology of a model that was central to the agency’s justification for the rule; (2) when the methodology finally was disclosed, FMCSA failed
to provide a reasoned explanation for some of its critical elements, thus rendering it (and the rule) arbitrary and capricious; (3) FMCSA’s treatment of a number of other safety considerations was also arbitrary and capricious; and (4) the rule is contrary to law and arbitrary and capricious because it fails to
protect driver health. . . .

In order to assess the costs and benefits of alternative changes to the HOS rules, FMCSA created a carrier-operations model for estimating the costs to industry of each option, as well as an operator-fatigue model for calculating the crash risks under each option. (The benefits of avoiding crashes were then
monetized and incorporated into the cost-benefit analysis.) The agency explained the models in the RIA that it released along with the 2005 Rule. . . .

. . .

The agency’s 2003 operator-fatigue model had estimated a driver’s crash risk solely by reference to his or her sleep patterns, and thus assumed that time spent driving was no more fatiguing than time spent resting. Id. We found the
decision to ignore time-on-task effects puzzling, because “the agency admits that studies show that crash risk increases, in [FMCSA’s] words, ‘geometrically,’ after the eighth hour on duty, and the agency does not deny that this geometric risk increase results at least in substantial part from time-on-task effects.”

In its 2005 analysis, FMCSA modified its 2003 operatorfatigue model to account for time-on-task effects. To do so, the agency commissioned a study of crash data from a national database known as “Trucks Involved in Fatal Accidents” (TIFA).  The TIFA Study generated what FMCSA referred to as the “fatigue-related crash risk” for each successive hour of driving. Id. at 59 (J.A. 1679). For each driving hour, the study calculated the percentage of all fatal truck crashes in which it was determined that the driver was fatigued at the time of the crash. This calculation yielded the risk that a crash will be  fatigue-related for each of the first twelve hours of driving time, plus an aggregated figure for all driving in Hour 13 and beyond. The figures ranged from less than 1% for Hour 1, to 4.4% for Hour 10, to 9.6% for Hour 11, to 25% for Hour 13 and beyond. Id. at 45 (J.A. 1665). As FMCSA observed, the “risk of . . . a fatigue-related crash in the 11th hour of driving or later is notably higher than in the 10th hour of driving.” . . .

But in the RIA that it released with the 2005 Rule, FMCSA did not use the crash risk figures contained in the TIFA Study. Instead, the agency plotted the aggregate figure for Hour 13 and beyond at Hour 17, and then “fit[] a cubic curve” (derived a regression equation) for that and the other hour-by-hour figures from the TIFA Study. Like the TIFA Study, the curve estimated the actual percentage of crashes related to fatigue for each hour of driving. The curve’s figures, however, were different from those in the TIFA Study. See id. In
particular, the percentage difference between the figures for the 10th and 11th hours was substantially smaller than in the TIFA Study. Finally, FMCSA divided each of the hourly figures from the curve by the average risk for Hours 1 through 11, creating a risk increase “relative to average driving hours.” Id. at 61 (J.A. 1681). The resulting “TOT [time-on-task] crash risk multipliers” were then used in the operator-fatigue model to determine the safety impact of different HOS rules.

Public Citizen objects to FMCSA’s reliance on the operator-fatigue model because FMCSA did not disclose (inter alia) the methodology by which it would derive time-on-task multipliers until it published the 2005 Rule -- too late for interested parties to comment. Because the time-on-task multipliers were an integral part of the operator-fatigue model, and because the output of that model was central to FMCSA’s decision to adopt the 2005 Rule (and particularly the 11-hour daily driving limit and 34-hour restart provision), the model and its methodology were unquestionably among “the most critical
factual material that [was] used to support the agency’s position.” . . .

[detailed discussion of methodology and what was disclosed when by FMCSA]

We have no difficulty in concluding that the agency’s failure to disclose the methodology of the operator-fatigue model in time for comment was prejudicial. The arguments that the petitioner has raised before this court amply demonstrate that it would have mounted a “credible challenge” had it been afforded an opportunity to do so.

Indeed, as we explain below, Public Citizen’s critique of the model persuades us not only that it was prejudiced by FMCSA’s failure to provide an opportunity for comment, but also that FMCSA failed to provide an adequate explanation for its decision to adopt the 11-hour daily driving limit and the 34-hour
restart provision.

Public Citizen notes that the TIFA data, upon which FMCSA’s time-on-task multipliers were ultimately based, indicates that “the risk of fatal-crash involvement more than doubled from the 10th hour to the 11th.” . . . . The actual time-on-task multiplier for the eleventh hour used in FMCSA’s model, however, was “only 30% higher than the . . . multiplier for the 10th hour.” . . .  Public Citizen contends that the two steps FMCSA used to transform the TIFA data into the time-on-task multipliers were unexplained, and that they had the effect of improperly minimizing the crash risk associated with the 11th hour of driving. . . .

Moreover, as Public Citizen pointsout, if the agency had plotted the figure for 13+ hours at Hour 13 rather than Hour 17, the resulting curve would have produced a significantly higher estimate of the risk of a fatigue-related crash
at Hour 11 -- a figure close to that which the TIFA Study had calculated directly. . . .  FMCSA’s decision to plot the data point for Hour 13 and beyond at Hour 17 -- instead of at Hour 13 (or some other point) -- was entirely unexplained in the RIA and final rule. This complete lack of explanation for an important step in the agency’s analysis was arbitrary and capricious. “When an agency uses a computer model, it must ‘explain the assumptions and methodology used in preparing the model.’”

Second, after deriving an estimate of crash risk for each hour of driving using a cubic curve, FMCSA divided those figures by the average risk for Hours 1 through 11, creating an estimate of risk “relative to average driving hours.” . . . . Public Citizen objects that FMCSA gave no explanation for its decision to
divide each hourly risk figure by the average for the first 11 hours, and points out that the effect of this step was “to diminish the increase[d] [risk of driving in Hour 11] by dividing the heightened risk at the 11th hour by an average that includes that heightened 11th-hour risk.” . . .

Public Citizen further contends that the RIA’s operatorfatigue model “also ignored cumulative fatigue from increased weekly driving and working hours allowed by the 34-hour restart.”  . . . In Public Citizen, we said -- with respect to the identical restart provision of the 2003 Rule -- that this increase in weekly hours was likely “‘an important aspect of the problem,’” and that the “agency’s failure to address” it made “the rule’s rationality questionable.” . . .

Yet, as FMCSA acknowledges, the 34-hour restart provision of the 2005 Rule could “allow another 17 hours of driving time . . . in a 7-day work week, compared to the limit of 60 hours of driving time without the [restart] provision.” . . . . In light of these statements by the agency, Public Citizen argues that the operator-fatigue model should have taken into account the increased crash risk caused by “cumulative fatigue” associated with the increased driving and working hours that it would permit.

. . . .

Because the model is the basis for the cost-benefit analysis that led FMCSA to adopt the two provisions of the 2005 Rule that Public Citizen challenges -- the increase in the daily driving limit from 10 to 11 hours, and the 34-hour restart provision -- we must vacate those provisions.

The court goes on to find that other rules regarding loading and unloading time and sleeper berth time were not made in a manner that was "arbitrary and capricious" and therefore were not invalidated under the Administrative Procedure Act.

In reading the court's criticism of the FMCSA's use of formulas and graphs to disguise the increased safety hazard between the 10th and 11th hour of driving, I am reminded of the old adage that "figures don't lie but liars figure."

Police in Kings Mountain, NC, say a driver’s lack of understanding of the English language appears to have led to a violent wreck between a train and a tractor-trailer.  Truck driver Ricardo Ercia was crossing several train lines in town at South Battleground Avenue and Oak Street when he didn’t obey a traffic sign calling for drivers to go through a second rail line crossing. Fortunatley, there were no serious injuries. The Federal Motor Carrier Safety Regulations require that truck drivers be able to read and understand the English language.

Two decades ago Alabama adopted the Federal Motor Carrier Safety Regulations for intrastate trucking operations. Last week, the Alabama legislature voted to exempt most farm trucks from the regulations. My friend and co-counsel who is a member of the Alabama legislature voted for it.  It's hardly a shock.  Georgia already did that.  However, if you are driving through Alabama and see a big farm truck coming, take care.

As I have discussed several times in this blog, the US Federal Motor Carrier Safety Administration significantly increased truck drivers' hours of service last year.  Under the current hours of service rule, truckers may drive 77 hours in 7 days or 88 hours in 8 days – a more than 25 percent increase from the previous rule. On-duty hours during which truckers may drive also have increased, allowing a truck driver working 14-hour shifts to work as many as 84 hours in 7 days or 98 hours in 8 days – a 40 percent increase over the old limits. The adverse effect on trucking safety is just sort of common sense.

Now the European Union has gone the opposite direction, requiring shorter driving hours and longer rests periods for truck drivers.  The EU has reduced the maximum work week for truck drivers from 74 hours to 60 hours, including loading and unloading. After 4.5 hours of driving, they will have to stop for at least 45 minutes to have a rest. The 45-minute period can be divided into two shorter breaks, but the first one may not be shorter than 30 minutes and the second no shorter than 15 minutes. The required daily rest time will also be extended. Under the old regulations, truck drivers are required to take an 8-hour daily rest. Under the new regulations, the daily rest period is defined as a break in driving of at least 11 hours. Daily rest can also be divided into two parts. In this case, the total time has to be extended to 12 hours because the first break may not be shorter than three hours and the second has to last at least nine hours. Additionally, drivers who drive alone and have no one to alternate with them at the wheel will have the right to an additional 9 to 11 hours of rest, but only three times a week. If the truck crew is made up of two people, each driver will have to take a break of at least nine hours (up from eight hours under the existing regulations) within 30 hours of the end of the previous daily or weekly period of rest.  European truck drivers are not allowed to drive longer than 56 hours in a single week. In a two-week period, the limit for driving time remains unchanged at 90 hours.

European truck drivers are apparently better organized than their counterparts in the US.  Back in 1998, truck drivers across Europe circled trucks into blockades at border crossings to dramatize their demand for better working conditions and fewer hours.

Whether the rules are set for reasons of drivers' working conditions or safety of other people on the roads, anyone who has ever driver across the country instinctively knows the difference between driving nine hours, broken up by a 45 minute break, and driving eleven hours straight.  The effect on fatigue and alertness of driving 77 hours per week versus 56 hours per week is just common sense.

A coalition of trucking, environmental and safety organizations has filed suit seeking an injunction against implementation of the Bush Administration's decision to allow up to 100 Mexican motor carriers – with an unlimited number of trucks – to perform long-haul operations within the U.S. 

The Owner-Operator Independent Drivers Association, Sierra Club; Public Citizen; the Environmental Law Foundation; and the Teamsters Union filed suit in federal court in San Francisco on Monday.  They claim that the Bush Administration's program authorizing Mexican trucking companies to operate on US highways is in violation of public notice and comment requirements federal law imposes on pilot programs.

OOIDA Executive Vice President Todd Spencer stated: 

“The DOT has still not answered questions about verification of drivers’ records, drug and alcohol testing, hours of service, cabotage, inspections and insurance. They make general statements about audits of Mexican motor carriers, but have shown nothing that should make the American public feel confident that they have fulfilled all the obligations necessary before moving forward.”

Observing how some trucking and logistics companies operate, I have often joked that they would outsource truck driving to third world countries if they could find a way.  Well, now the Bush team is enabling them to do just that.  I will watch this case with great interest.

See the following articles and comments on this topic:
Mexican truckers' free travel put on hold (San Diego Union Tribune, 4/27/07)
Teamsters sue the Feds (Sky Puppy blog)
Bush: Mexican Truckers Are Okay (Bloviating Zeppelin blog)

Fri., 3/9/07, Calhoun, GA. 

In a scene reminiscent of the 1982 Paul Newman movie, "The Verdict," the jury after three hours of deliberation Thursday afternoon sent a note to the judge asking if they were limited by the amount the plaintiff asked for.   In closing argument I had asked for a verdict of approximately $1.2 million for our client's permanently disabling leg injury.  When we got that question from the jury, my first thought was that I don't drink anywhere near enough to fit the Paul Newman role in the movie.

Today we won a $2,345,940.17 jury verdict against a Pennsylvania trucking company in the Superior Court of Gordon County, Calhoun, Georgia.  The verdict was broken down as follows: compensatory damages:  $1,742,845.70, attorney fees due to bad faith in the transaction, $580,948.57, expenses  of litigation $ 22,145.90.  Medical expenses were $112,228.  The highest offer from defendant's insurance company before trial was $125,000, going up to $400,000 on third day of trial. This was nearly three times the highest previous verdict in the history of Gordon County.

The specificity of the figures, down to the penny, helps to refute any allegation that it was a random verdict by a "runaway jury."  These jurors were all deeply conservative northwest Georgia folks who were determined to follow the law and the facts wherever they led, and to do the right thing.

It was a very good week.

Johnson v. Clarendon National Insurance Company, American Trans-Freight, LLC, ATF Trucking, LLC, ATF Logistics, LLC, and Robert W. Carnley, CIVIL ACTION FILE NO. 04-CV-43532

    The Federal Motor Carrier Safety Regulations often referred to in cases where tired truckers wreck include the following:

    49 C.F.R. § 392.3, Driver Impairment.

No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.

    § 390.11 Motor carrier to require observance of driver regulations.

 Whenever ... a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound.

FMCSR, 49 C.F.R. § 390.13, provides that

"No person shall aid, abet, encourage, or require a motor carrier or  its employees to violate the rules of this chapter."  It does not say "no motor carrier." 

49 CFR 390.5 defines "person" as follows:

Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals.

    § 395.3 Maximum driving time for property-carrying vehicles.

    Subject to the exceptions and exemptions in § 395.1:

(a) No motor carrier shall permit or require any driver used by it to drive a property-carrying commercial motor vehicle, nor shall any such driver drive a property-carrying commercial motor vehicle:

    (1) More than 11 cumulative hours following 10 consecutive hours off duty; or
    (2) For any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty, except when a property-carrying driver complies with the provisions of § 395.1(o) or § 395.1(e)(2).
(b) No motor carrier shall permit or require a driver of a property-carrying commercial motor vehicle to drive, nor shall any driver drive a property-carrying commercial motor vehicle, regardless of the number of motor carriers using the driver's services, for any period after-
     (1) Having been on duty 60 hours in any period of 7 consecutive days if the employing motor carrier does not operate commercial motor vehicles every day of the week; or
    (2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates commercial motor vehicles every day of the week.

    § 395.8 Driver's record of duty status.

(a) Except for a private motor carrier of passengers (nonbusiness), every motor carrier shall require every driver used by the motor carrier to record his/her duty status for each 24 hour period using the methods prescribed [herein]....
    * * * *
(e) Failure to complete the record of duty activities of this section or § 395.15, failure to preserve a record of such duty activities, or making of false reports in connection with such duty activities shall make the driver and/or the carrier liable to prosecution.

    A court may also consider the applicable administrative interpretations included in the Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed.Reg. 16370 (1997).  The agency "consolidated previously issued interpretations and regulatory guidance materials and developed concise interpretive guidance in question and answer form for each part of the FMCSRs." Id. at 16370.  "[A]n agency's interpretation of its own regulations is entitled to a relatively high level of deference.... A court must accept the interpretation unless it is ... plainly erroneous or inconsistent with the regulation."  United States v. Thorson, No. 03-C-0074- C, 2004 WL 737522, at *8 (W.D.Wis. Apr. 6, 2004); "Deference is particularly appropriate when an agency interprets its own regulation." Hickey v. Great W. Mortgage Corp., No. 94 C 3638, 1995 WL 317095, at *5 (N.D.Ill. May 23, 1995). 
 
   The Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 FR 16370-01 (1997) includes the following official administrative interpretations of the regulations:

Question 7: What is the liability of a motor carrier for hours of service violations?
Guidance: The carrier is liable for violations of the hours of service regulations if it had or should have had the means by which to detect the violations. Liability under the FMCSRs does not depend upon actual knowledge of the violations.
Question 8: Are carriers liable for the actions of their employees even though the carrier contends that it did not require or permit the violations to occur?
Guidance: Yes. Carriers are liable for the actions of their employees. Neither intent to commit, nor actual knowledge of, a violation is a necessary element of that liability. Carriers "permit" violations of the hours of service regulations by their employees if they fail to have in place management systems that effectively prevent such violations.

    In interpretation of 49 C.F.R. § 395.8, the regulatory guidance states:

 Question 21: What is the carrier's liability when its drivers falsify records of duty status?
 Guidance: A carrier is liable both for the actions of its drivers in submitting false documents and for its own actions in accepting false documents.  62 Fed.Reg. at 16426. In short, “Motor carriers have a duty to require drivers to observe the FMCSRs.”

A recent confidential survey of commercial truck drivers reports that 77 percent admitted to deliberately violating the hours of service regulations in the past, and that 55 percent said they were still breaking the rules.  Drivers report that the most common violation is logging time as off-duty when actually on-duty (78 percent). Other common violations included using more than one logbook (21 percent), logging violations correctly in hopes that they will not be noticed (17 percent), and indicating that a team driver is operating the vehicle when they really are not (11 percent). Respondents report an average of six days per month of intentional violations and five days per month of unintentional violations.Nearly 17 percent of the respondents felt it necessary to violate the HOS rules in order to earn a reasonable income, while 38 percent strongly disagreed with that assumption. Thirty-eight percent said that their company expects them to violate the regulations as part of their job. Some 68 percent thought that law enforcement officers do not know how to relate to commercial motor vehicle drivers. Among the reporting drivers, 11.2 hours was the average estimate given for the reduction in driving hours over seven days if logbooks couldn't be "adjusted."

The survey does not report, however, the extent to which these violations are due to pressure from trucking companies and shippers who insist that drivers fulfill legally impossible delivery schedules.  I have talked with many hard working truck drivers who have told me stories of trucking companies letting them know that if they didn't make deliveries on an impossible schedule, the company would find a driver who would. They have told of shippers releasing loads many hours late, but insisting that the drivers get to destinations at times that could not be done without grossly violating the hours of service and fatigue regulations. I think most truck drivers are just working guys struggling to make a living in a tough business while under tremendous pressure to do the legally and physically impossible.

Of course, when the inevitable happens, the trucking company claims it had no idea a "rogue driver" was driving twice the number of hours legally permitted, even though the company could clearly see the trips for which the driver was dispatched and the time required to complete those trips.  Often trucking companies are willfully and deliberately blind to the effect of the orders they give the drivers until a tragedy occurs, and then they blame the driver who was following orders. And, if a truck driver, tries to blow the whistle on such practices, he may be blackballed in the trucking industry.

Fortunately no one was injured when the driver of an 18-wheeler mail truck fell asleep on I-75 near Macon at 3:30 AM, over-corrected when he woke with a start, and went over an embankment.  However, two of three northbound lanes were closed several hours and the GA DOT will have to replace a guard rail.  All too often we see such incidents result in serious injuries including fatalities. 

 49 C.F.R § 392.3 provides:

No driver shall operate a motor vehicle, and a commercial motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.

49 C.F.R. § 390.13 requires that " No person shall aid, abet, encourage, or require a motor carrier or  its employees to violate the rules of this chapter."

49 C.F.R. § 395.3 spells out the hours of services rules, which I won't repeat here.

However, we also see retired FMCSA officials, who have gone through the "revolving door" to serve as shills for the businesses they used to regulate,  coming in to testify as expert witnesses for the defense, claiming that the fatigue and hours of service regulations don't mean what they say and that the official Regulatory Guidance published by the FMCSA has no significance.  I spent an afternoon recently deposing one of those guys in another state.  It's amazing what former regulators will say in order to profit from their former government positions.  But even a greased pig can be caught in time.

Recent articles in the New York Times and Chicago Tribune critique the causes of safety problems in the current trucking industry.  Much of the focus of the Chicago Tribune article is on the Bush Administration's decision to increase the permissible driving hours and working hours for truck drivers.  The New York Times article digs a little deeper, going back to the deregulation of the trucking industry in the 1980's.  Most truckers are now paid by the mile or the trip so that the time they spend waiting to be loaded or unloaded or doing maintenance unpaid. Counting all their time on the job, some earn as little as $8 an hour., often with no medical insurance or pension plan. 

According to John Siebert, an official with the Owner-Operator Independent Drivers Association, his review of members' obituaries revealed their average age at death was 55 and a high rate of suicide.  Surveys of truck drivers reveal 90% are overweight and nearly two-thirds expect to rely solely upon Social Security when they retire. Under extreme scheduling pressure from shippers and trucking companies as well as financial stress, they sacrifice physical needs including sleep in order to work 100 to 120 hours per week. 

According to Mike Belzer, a one-time Chicago trucker and now a Wayne State University professor and trucking industry expert, ever since deregulation it has been a "race to the bottom" in the trucking industry.  Truckers' income, adjusted for inflation, has dropped steadily as the market has been flooded with new companies, new drivers, and pressures from shippers and manufacturers to keep freight costs down.  The number of interstate trucking companies went from 20,000 to 564,000, with nearly 90% operating six trucks or less, a highly fragmented industry with thin profit margins.  

For more, see the Confined Space blog.

All this is consistent with my own observations, both in investigations and depositions of truck drivers whose fatigue contributed to tragic incidents, and in interviews with truck driver clients and witnesses. I've heard truck  drivers describe  incidents of  being required to complete trips by a deadline even though the shippers loaded the trailers several hours late, under circumstances where they could not possibly get the legally required rest and still deliver by their deadlines. I've seen too many instances of truckers napping an hour in a cab between nation-crossing trips that result in them driving 20 out of 24 hours.  The risks to their health and to public safety are all too obvious.

                                                                                        - Ken Shigley

In a petition filed in court on Dec.5, five groups – The Truck Safety Coalition, comprised of the Teamsters; Citizens for Reliable and Safe Highways; Parents Against Tired Truckers; Advocates for Highway and Auto Safety; and Public Citizen – asked the court to review the revised hours-of-service (HOS) rule that was issued by FMCSA on August 25, 2005.  They complain that the revised rule increases both the number of hours that truckers may drive without a break and the number of hours truckers may drive per week.

Under the current hours of service rule, truckers may drive 77 hours in 7 days or 88 hours in 8 days – a more than 25 percent increase from the previous rule. On-duty hours during which truckers may drive also have increased, allowing a truck driver working 14-hour shifts to work as many as 84 hours in 7 days or 98 hours in 8 days – a 40 percent increase over the old limits.

FMCSA had issued a similar HOS rule in April 2003. However, Public Citizen and two other advocacy groups filed a lawsuit challenging the 2003 rule, and the U.S. Court of Appeals for the District of Columbia Circuit struck down the HOS rule in a July 16, 2004, opinion. The appeals court ruled that FMCSA's 2003 HOS rule "is arbitrary and capricious because the agency neglected to consider a statutorily mandated factor the impact of the rule on the health of drivers." The appeals court then ordered FMCSA to rewrite the rule.

Even so, many of the provisions in the revised HOS rule are the same as the 2003 rule. The 2003 rule increased truckers' maximum daily driving time from 10 to 11 hours, decreased the maximum daily shift from 15 to 14 hours and established a mandatory rest period of 10 hours per shift (up from 8 hours in the old rule.) All of those provisions carry over to the revised HOS rule.

Until 2003, truckers were permitted to drive no more than 10 consecutive hours before taking a break and drivers were barred from driving after they had worked 60 hours in the previous 7 days or 70 hours in the previous 8, depending on the company schedule.

According to an article on the Occupational Hazards web site, "more than 5,000 people are killed each year in large truck-related crashes and more than 110,000 are injured," Public Citizen President (and former head of the National Highway Transportation Safety Adminsitration) Joan Claybrook said. "That FMCSA chose in both rules to expand driving hours is astounding given its statutory mandate to make safety its highest priority and Congress's specific directive to the agency to reduce fatigue-related incidents."

I have nothing against anyone with an impairment of vision or hearing.  I couldn't live in my house if I did.  But sometimes safety trumps equal opportunity. One of those circumstances is in the operation of 80,000 pound tractor trailers at 70 mph on public highways.  Recently we encountered a situation in which a truck driver who was blind in one eye failed to perceive in time  that a vehicle ahead of him was slowing to turn.  Binocular vision with depth perception might have helped.

The Federal Motor Carrier Safety Regulations, at 49  C.F.R.§ 391.41 (b)(10),  provides:

 “A person is physically qualified to drive a commercial motor vehicle if that person: Has a distant visual acuity of at least 20/40 (Snellen) in each eye with or without corrective lenses, or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses; and distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses; and field of vision of at least 70 degrees in the horizontal meridian in each eye . . . .”

The importance of binocular (two eyes) vision for depth perception was recognized long ago.  Here is an illustration by Leonardo da Vinci.

My bride for the past 23 years has monocular vision due to nerve damage from a brain tumor years ago. She is a wonderful person and a careful driver, but without normal depth perception it would not be safe for her to drive a tractor trailer on the highway.

The MCS-90 is an endorsement on a trucking company's liability insurance policy, required by the Federal Motor Carrier Safety Regulations, which serves the function of a surety for safety of the public. Even if the the trucking company is not entitled to liability coverage due to some exception or exclusion in the insurance policy, an injured member of the public may recover under the MCS-90 endorsement and the insurance company may then seek reimbursement from the trucking company.

The purpose of the Federal Motor Carrier Act("FMCA"), and the regulations issued under the Act, especially the MCS-90, was to stem the unregulated use of vehicles in interstate commerce, which threatened public safety. Integral Insurance Company v. Lawrence Fulbright Trucking, 930 F.2d 258 (2d Cir.1991).  One of the "significant aims" of federal rules regulating motor carriers is to eliminate "attendant difficulties" of fixing financial responsibility for damage and injuries to members of the public. Transamerican Freight Lines v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 37, 96 S.Ct. 229, 46 L.Ed.2d 169 (1975).  Accordingly, the MCS-90 should be construed and applied to protect members of the public injured by interstate motor carriers from uncompensated losses by mandating coverage where there would otherwise be no coverage).  American Alternative Ins. Co. v. Sentry Select Ins. Co., 176 F.Supp.2d 550 (E.D.Va., 2001).

"A motor carrier of property has a duty under federal law to guaranty its financial responsibility for injuries to the public.  Purchasing coverage under an MCS-90 endorsement is one way for a carrier to fulfill this duty." Harco National Insurance Company v. Bobac Trucking et al, 1995 WL 482330 at * 4 (N.D.Ca. 1995); Barbarula ex rel. Estate of He v. Canal Ins. Co., 353 F.Supp.2d 246 (D.Conn., 2004). The MCS-90 is not insurance coverage per se, but operates as a suretyship for the benefit of the public resting on top of the motor carrier’s liability policy.  See, e.g., Canal Ins. Co. v. Carolina Cas. Ins. Co., 59 F.3d 281, 283 (1st Cir. 1995); John Deere Ins. Co. v. Truckin’ U.S.A., 122 F.3d 270, 274 (5th Cir. 1997).  It does not create in the insurer a duty to defend, but only a duty to member of the public pay any judgment against the motor carrier resulting from negligence in operation, maintenance or use of motor vehicles even if not specifically listed on the policy.  See, e.g., Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 614 (5th Cir. 1989); Industrial indem. Co. v. Truax Trucklines, Inc., 45 F.3d 986, 991 (5th Cir. 1995); National Am. Ins. Co. v. Century State Carriers, Inc., 785 F.Supp. 793, 795 (N.D. Ind. 1992).

The MCS-90 is applicable to interstate motor carriers.  For intrastate carriers within Georgia a different law applies.  I will cover that in a separate posting.

During the first half of the twentieth-century, interstate motor carriers attempted to immunize themselves from liability for negligent drivers by hiring inadequately insured, risky trucks and their drivers – like C&C and the Carnleys in this case.  The companies would classify the drivers who operated the trucks as "independent contractors," and disclaim any association when those uninsured trucks and drivers caused injury to the general public.  See, e.g., White v. Excalibur Insurance Company, 599 F.2d 50, 52 (5th Cir.1979); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 37 (Tex.App.-Fort Worth 2002).

To address this problem, Congress amended the Motor Common Carrier Act in 1956 to require that a motor carrier assume "full direction and control" of leased vehicles in order to prevent trucking companies from eluding liability by engaging in such evasive "independent contractor" relationships.  The federal and state filing requirements were designed to provide a minimal form of coverage for the general public when insolvent and uninsured actors injured them.  See White, 599 F.2d at 53 ("Congress wished to impose on lessee-carriers responsibility for the operation of leased vehicles 'as if they were the owners of such vehicles." ') (citing 49 U.S.C. § 304(e)(2), now codified at 49 U.S.C. § 11107(a)(4)).  "Because the carrier now has both a legal right and duty to control vehicles operated for its benefit, the employees of the vehicle-lessor are deemed statutory employees of the lessee-carrier to the extent necessary to insure the carrier's responsibility for the public safety just as if the lessee-carrier were the owner of the vehicles." Id. (citing Simmons v. King, 478 F.2d 857, 867 (5th Cir.1973)).

As a result of the regulatory authority granted in the Act, Federal Motor Carrier Safety Regulations require a certificated interstate carrier who leases equipment to enter into a written lease with the equipment owner providing that the carrier-lessee shall have exclusive possession, control, and use of the equipment, and shall assume complete responsibility for the operation of the equipment, for the duration of the lease. 49 C.F.R. §§ 376.11-.12.  This FMCSR was enacted to protect the public by providing it with financially responsible carriers, Indiana Refrigerator Lines, Inc. v. Dalton, 516 F.2d 795, 796 (6th Cir.1975), and by preventing a carrier from "evad[ing] its responsibility to the public by obtaining its trucks through leasing arrangements rather than ownership and employment of drivers."  Toomer v. United Resin Adhesives, Inc., 652 F.Supp. 219, 229 (N.D.Ill.,1986).

The FMCSR  requires a carrier lessee to execute a written lease, to clearly identify the vehicle as in the employ of the carrier, and to observe other formalities evidencing its control over the vehicle and its responsibility for its actions, including displaying the carrier's placard. 49 C.F.R. § 1057.11(a)-(d).  The majority of authorities concerning such cases involving the liability of carrier-lessees holds that when a carrier-lessee permits a lessor-driver to use its authority without compliance with  Federal Motor Carrier Safety regulations, it is responsible for injuries caused by the lessor-driver, even if the lessor-driver was embarked on an undertaking of his own while using the carrier-lessee's authority. Rodriguez v. Ager, 705 F.2d 1229 (10th Cir., 1983); Carolina Cas. Ins. Co. v. Insurance Co. of North America, 595 F.2d 128 (3rd Cir., 1979); Wellman v. Liberty Mut. Ins. Co., 496 F.2d 131 (8th Cir., 1974);  Rediehs Express, Inc. v. Maple, 491 N.E.2d 1006 (Ind.App.,1986); Kreider Truck Service, Inc. v. Augustine,  76 Ill.2d 535, 311 Ill.Dec. 802, 394 N.E.2d 1179 (1979); Cox v. Bond Transp., Inc., 53 N.J. 186, 249 A.2d 579 (1969).

Therefore, when a member of the public is injured by the negligence of the driver of leased commercial motor vehicle, under federal law the  motor carrier bears responsibility to the injured person for the negligence of the commercial motor vehicle driver. Dove v. National Freight, Inc., 138 Ga.App. 114, 225 S.E.2d 477 (Ga.App. 1976); Judy v. Tri-State Motor Transit Co., 844 F.2d 1496, 1051 (11th Cir. 1988); Radman v. Jones Motor Co., Inc., 914 F.Supp. 1193, 1198 (W.D.Pa. 1996).  The Motor Carrier Act creates “an irrebuttable statutory employment relationship between [a] driver and the carrier-lessee.” Holliday v. Epperson, No. 1:02-CV-1030-T, 2003 WL 2340746, at *3 (W.D.Tenn. Aug.26, 2003); Gilstorff v. Top Line Express, Inc., No. 96-3081, 1997 WL 14378, at *2 n. 6 (6th Cir. Jan.14, 1997) (suggesting that the Sixth Circuit adopts this interpretation of ICC regulations); Wyckoff Trucking, Inc. v. Marsh Brothers Trucking Service, 58 Ohio St.3d 261, 569 N.E.2d 1049, 1053 (Ohio 1991) (adopting the “doctrine of statutory employment” and holding that “if the driver is negligent, the carrier-lessee is liable as a matter of law for accidents that occur while a lease is still in effect???”).  See also Baker v. Roberts Express, Inc., 800 F.Supp. 1571, 1574 (S.D.Ohio 1992) (adopting the Ohio Supreme Court's interpretation of ICC regulations in Wyckoff Trucking ). 

Federal Motor Carrier Safety Regulations preempt conflicting state laws, including “independent contractor” laws.  “Th[e] Constitution, and the Laws of the United States which shall be made in Pursuance thereof ..., shall be the supreme Law of the Land....” U.S. Const. art. VI, cl. 2.  “Federal regulations have no less pre-emptive effect than federal statutes.” Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982).  See also Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985)("state laws can be preempted by federal regulations as well as by federal statutes").  A state law that sets a lower standard for protection of public safety than one expressed or implied by the FMCSR is preempted. Cf.,  Yellow Freight System, Inc. v. Amestoy, 736 F.Supp. 44 (D.Vt., 1990), federal regulations requiring the trucking company to bear financial responsibility for operation of trucks under their authority preempt contradictory state laws of agency.  See, e.g., Empire Fire and Marine Insurance Co. v. Truck Insurance Exchange, 462 So. 2d 76 (Fla. App. 1985); A.C. v. Roadrunner Trucking, Inc, 1993 U.S. Dist. LEXIS 7251 (C.D.Utah 1993); Conlee v. George Transfer, Inc., 1995 Me. Super. LEXIS 206 (1995); Price v. Westmoreland, 727 F.2d 494 (5th Cir., 1984); Proctor v. Colonial Refrigerated Transportation, Inc., 494 F.2d 89 (1974); Simmons v. King, 478 F.2d 857, 867 (5th Cir. 1973); see also, Wellman v. Liberty Mut. Ins. Co., 496 F.2d 131, 136 (8th Cir. 1974); Mellon Nat'l Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473, 477 (3rd Cir. 1961). Therefore state laws and court decisions on independent contractor status, decided without reference to the federal Motor Carrier Act or Federal Motor Carrier Safety Regulations are inapplicable.  See., e.g., Montgomery Trucking Co., Inc. v. Black, 231 Ga. 211, 200 S.E.2d 882 (Ga. Oct 05, 1973); Dove v. National Freight, Inc., 138 Ga.App. 114, 225 S.E.2d 477 (Ga.App. Mar 01, 1976); Flowers v. U. S. S. Agri-Chemicals, 139 Ga.App. 430, 228 S.E.2d 392 (1976).

I have written several times this year about proposals for toll lanes for trucks on metro Atlanta interstate highways.  An article this week shows another reason why this may become a necessity.

The Georgia Department of Transportation expects to spend $160 billion on road construction projects between 2005 and 2035. But revenues from the motor fuel tax that funds road improvement are projected to bring in only $86 billion during the same period. That leaves a $74 billion funding gap.  In addition, federal funding for highway construction has declined sharply in real terms because the federal motor fuel tax is set at 18.4 cents per gallon and is not indexed to inflation, Studstill told the more than 300-hundred attendees at the event. “This shortfall could result in a complete drawdown of the Federal Highway Trust Fund in 2009,” Studstill said. If this occurred, federal highway funds would be exhausted in three years. That leaves a $74 billion funding gap for Georgia roads.

At the same time, increasing road construction costs, population growth and more truck traffic through the state and from the booming port of Savannah increasing pressure on Georgia’s roads.

Three fiscal solutions have been proposed.  One is project-specific Special Purpose Local Option Sales Tax, or SPLOST, on a statewide or regional basis. Another is a statewide 1% sales tax  to replace the fuel tax.  The official estimate is that this would generate $1.5 billion per year, compared with $850 million from the fuel tax.

The third approach would involve public-private partnerships such as toll roads. Georgia law allows GDOT to partner with private or corporate businesses to help finance, design, construct, operate and/or maintain transportation projects. Four are under now consideration in Georgia.

There is also the possibility of rail or other transit relieving commuter pressure on metro Atlanta expressways, while we add another 2 million or more people in the next 25 years. Transit makes good sense in densely populated areas, and the area inside I-285 is rapidly becoming a much more densely packed urban environment.

As with moth things, there are no easy answers.  The tough choices are seldom if ever between good and bad, but between good and good, and between bad and bad.  My hunch is that the federal, state and local government officials will incrementally cobble together some imperfect combination of all these approaches, but we will stay perpetually behind the growth curve until something -- either good (e.g., fantastic new energy technology, etc. spurring stronger economic growth)  or bad (environmental, demographic and/or economic collapse)  -- causes a dramatic discontinuity in our current patterns.

In 1953, the United States Supreme Court described motor carriers' use of independent owner-operators who lacked adequate insurance in order to avoid financial responsibility to injured members of the public as "evils that had grown up" in the industry. American Trucking Ass'ns v. United States, 344 U.S. 298, 301 (1953). 

More recently, one court described the position taken by a motor carrier  by incredulously stating the "suggestion that it could lawfully engage in the transportation . . . without regulation by the Surface Transportation Board is just plain wrong."   Serna v. Pettey Leach Trucking, Inc., 2 Cal. Rptr. 3d 835, 845 (Cal. Ct. App. 2003). 

Another court declared that "[s]uch an application would not advance the public policy goals of the Motor Carrier Act in protecting the general public, and it would also defy common sense." Royal Indem. Co. v. Jacobsen, 863 F.Supp. 1537 (D. Utah 1994).

(Continued below)