In April, the American Transportation Research Institute (ATRI) released its report on the FMCSA’s hours-of-service study allegedly supporting the change in the HOS regulation. Particularly, the FMCSA study claimed to support the need for the new restart rule; however, ATRI points out the study contained “a variety of technical issues related to research design flaws, validity of measurement techniques and interpretations and data conflicts within and across the study.”

FMCSA’s study was supposed to be representative of drivers and carriers regulated by HOS, but ATRI points out the study merely includes less than 12 days of data for only 106 drivers. Hardly representative considering FMCSA’s website shows there are approximately 700,000+ motor carriers and almost 5 million DOT drivers in the US (1.6 million of which are heavy duty). Further, FMCSA has always stated that only 15% of drivers would be affected by the restart rule. Instead…ATRI found that 48% of the drivers IN THE FMCSA STUDY had to use the new restart to continue operating.

ATRI also found issue with the report in that:
  • It did not present research to support the 34 hour restart being used only once a week;
  • There was no link between lapses of attention by drivers in both duty cycle groups (restarts with one v. two nighttime periods from 1-5 a.m.) and fatigue;
  • Lane deviation measurements between the 2 duty cycle groups differed by only 1/10th of a centimeter and the study provided no evidence that the deviations were an indicator of fatigue;
  • Average driver scores on the subjective sleepiness scale did not indicate any level of sleepiness;
  • Drivers in the two nighttime group were more likely to drive during the day when FMCSA’s own data shows a higher crash risk;
  • The difference in sleep obtained between the two groups was an increase of a mere six minutes
Not surprisingly, FMCSA continues to defend its decision like Custard at Little Big Horn. FMCSA countered that “ATRI’s report is an attempt to cloud the fact that the updated hours-of-service rule is working to ensure that truck drivers who work extreme schedules of up to 70 hours a week are getting the recuperation time they need before getting back behind the wheel.”  Is it fear of admitting they rushed the rule that drives FMCSA to continue saying this rule is soundly supported?

Carriers and drivers on the other hand relate that the lack of flexibility provided by the new HOS regulation is causing additional stress and fatigue on the drivers. If true, this of course defeats the purpose! Drivers and carriers have also stated that productivity of drivers has been hindered.

I recently received a call from a friend and industry acquaintance at a large ground carrier about driver hiring and standards. He related to me that while his drivers are not governed by the HOS rules because of the size of their trucks, the company applies the HOS regs on them anyway for safety reasons. Very good policy if you ask me. However, where it is acting as a detriment is that it is creating issues hiring qualified drivers to fill the trucks. The fear is that if you relax the standards, you get crucified should it ever come up in litigation. And if you don’t relax your standards slightly, the fear is that you don’t fill your trucks and hit a capacity crunch.

The release of the ATRI study picking apart FMCSA’s research and the above inquiry from my friend got me thinking…You gotta follow the rules and the HOS regs are the rules, like it or not. But often times, there may not be a rule that covers standards your company may apply to drivers.  Or maybe a rule exists and doesn’t apply to your drivers but we fear from deviating from it anyway.

Should we be driven by fear instead of sound reasoning in these situations? Is it smart to follow the rules to your detriment to be on the safe side when the rules themselves may not be sound?I don’t know the ultimate answer. But what I do believe is that if you make a business decision, make a sound one and have reasons behind it. If you ever have to state your case to a jury, your sound reason will carry more water than rules that are riddled like a tin can hit by a shotgun.

This blog was originally posted on June 4 to the Loaded Up and Trucking Blog. You can read the original entry here

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The trucking industry is at a crossroads in regards to more aggressive plaintiff’s counsel, regulatory attacks and reptile theory strategies. Which way will all this go? Will 21st Century transportation be plagued with drawn out and costly litigation, demand more creative strategies from defense counsel or is aggressive claim resolution/mediation the key? How does the transportation risk leadership respond to such change? The DRI Trucking Law Seminar, June 19-20, 2014, set at The Cosmopolitan Hotel, looks set to address many of these issues. 

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As reports begin to roll in about the results of Roadcheck 2013, we are starting to hear more and more statistics designed to impress upon us the number of purportedly dangerous truck drivers taken off our public highways by the efforts of law enforcement. A closer examination of the statistics that are not being reported by the media is called for.

For those who do not know, Roadcheck is an annual program across the United States, Canada, and Mexico involving 72-hours straight of commercial truck inspections.  This year’s program was conducted June 4-6, 2013.
 
The Associated Press Reported that one of Maryland’s Roadcheck inspections led to 19 drivers (3% of all drivers inspected) being pulled off the road because they were not “qualified” to operate their respective commercial vehicles. The “enforcers” (their word, not mine), inspected a total of 525 commercial vehicles.  Ohio State Highway Patrol reportedly inspected 1566 vehicles statewide, of which 65 drivers (4%) and 363 vehicles were placed out of service. The five states with the most trucking accidents (California, Texas, Florida, Georgia, and Pennsylvania) have yet to report any statistics of their inspections. 
 
Currently, the United States has 3.5 million truck drivers who move 70% of all freight across the United States. There are an estimated 15 million trucks in the U.S., transporting those goods. The trucking industry has a revenue of over $250 billion (another source reported this to be $650 billion), annually, of which the trucking industry reimburses the U.S. government over $21 billion dollars to keep our road and highways in good condition and over $37 billion in federal and state highway-user taxes. For that privilege, they also boost our economy by paying for almost 54 billion gallons of gas. Even though commercial vehicles only comprise 12% of all vehicles, they paid 36% of all highway-user taxes in 2006.  Those taxes are paid in part by owner-operators, who comprise 1 in 9 of all truckers. Those men and women can expect to earn a mere $37,000 a year. Long-haul truckers can expect to spend a total of 31 days home with their family each year.  Moreover, jobs for truckers are expected to grow more than 20% in the next ten years, and many of those jobs are expected to go to members of our armed forces returning from abroad.  Indeed, more and more trucking companies are marketing themselves as “military-friendly” employers, offering many of the same benefits of military life (travel, camaraderie among fellow truckers, the willingness to serve a vital service to our country). 
 
In terms of safety, commercial trucks comprise only 2.4% of all car accidents, and trucks are actually three times less likely to be in an accident than a passenger car.  Of those accidents, only 16% are the fault of the truck driver—one reason organizations like OOIDA keeps suing the Federal Motor Carrier Safety Administration to correct their online safety statistics. 
 
While there can always be greater safety in the trucking industry, one must question the amount of money spent on such an endeavor, resulting in so few actual violators, percentage-wise. Instead of reporting the number of truckers taken off the roads, the media does the public a disservice by failing to report the increasingly high number of trucks and drivers that passed the inspections.

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A sign entering town said “78% of all statistics are made up.” While I thought this was a bit cynical, over time I have come to see this as one of life’s truisms. Unfortunately, many groups, including our government, manipulate statistics to justify their actions.

Earlier this week, the American Trucking Association filed a brief with the U.S. Court of Appeals for the District of Columbia Circuit, illustrating that federal rules governing Hours of Service would add tremendous cost to the economy and undue burden onto drivers while providing minimal possible safety benefits. How did FMCSA justify the rulemaking? They did it with reliance on faulty statistics. 

ATA President and CEO Bill Graves said “FMCSA systematically, and without regard for science or logic, distorted the available data in order to fit it to a predetermined and arbitrary outcome.”  In order to justify the new Hours of Service rulemaking, FMCSA claims that 13% of all truck crashes were caused by fatigue, when the very study they relied upon showed that only 2% of crashes were caused by fatigue. Did FMCSA just lie? Not exactly. The study showed that fatigue was present during 13% of crashes, which was then exaggerated to causing 13% of crashes.

 We all know that there a number of issues present during a crash. So why does the federal government distort the data to justify the rulemaking? Because they claim that giving drivers an additional 7.8 minutes off each day will result in more restorative sleep and thus better rested and more alert drivers. Only time will tell.

 

Kurt M. Rozelsky, Smith Moore Leatherwood, LLP, Greenville, SC. Chair, DRI Trucking Law Committee

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As my pastor said in Church this past Sunday, "What are we waiting for?"  In other words, don’t wait until doomsday to get your house in order.  If you aren't in compliance with CSA now, take advantage of the winter slowdown to get there. Take 1 step this week to move towards compliance before you get hit. Here are few easy ways to save your company from racking up points. (All citations below to Code of Federal Regulations.)


Pull your drivers’ personnel files and double check everything is up to date:
Medical certificate not up to date – 1 point (391.41(b)(3))
No double-triple endorsement on the CDL – 3 points (383.93)
Operating without a valid CDL -- 3 points (383.23(a)(2))
Allowing driver to operate with a suspended or revoked CDL – 6 points (383.37(a))
Allowing driver under 21 years of ago drive interstate – 6 points (391.11(b)(1))

Hold a safety meeting and remind drivers about necessary details about their log books including:
Failure to sign the log book – 2 points (395.8(d)(5))
Failure to retain prior 7 days of log book – 5 points (395.8)
Hours of service violations – 7 points (various)
Failure to list motor carrier name in log – 2 points (395.8(f)(6))

Remind drivers that safety is priority one: 
Failure to wear seatbelt – 1 point (393.16)
Allowing an unauthorized passenger aboard – 1 point (392.60)
Smoking within 25 feet of a HM (hazardous material) vehicle – 1 point (397.13)

As you can see, some of these are heavily weighted, but so easy to prevent. Take the time now to protect your companies, your drivers, and yourself from a potential doomsday.

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The Centers for Medicare and Medicaid Services (“CMS”) posted an alert (the “Alert”) that confirms that there has been an extension, in certain cases, of the reporting trigger date for Mandatory Insurer Reporting (“MIR”) under Section 111 of the MMSEA.  The Alert provides the new trigger dates based on gross settlement/judgment/other payment (“TPOC”)  values for claims as follows:

The implementation timeline for reporting will be based on the TPOC amount.  Below is a schedule of the new dates.

For TPOCs between $5,000 and $25,000 – the trigger date is Oct. 1, 2012 (with MIR starting the First Quarter, 2013);

For TPOCs between $25,001 and $50,000 – the trigger date is July 1, 2012 (with MIR starting the Fourth Quarter, 2012);

For TPOCs between $50,001 and $100,000 – the trigger date is April 1, 2012 (with MIR starting the Third Quarter, 2012); and

For TPOCs of $100,001 and above – the trigger date remains the same – Oct 1, 2011 (with MIR starting the First Quarter, 2012).

Below are examples of how these provisions will work: 

Example 1: If you settle a TPOC for $15,000 next week, you are not required to report that claim.  You may voluntarily report, but mandatory reporting (and the penalties associated therewith) would not apply until you settled that $15,000 claim on or after October 1, 2012.

Example 2: If you settle a $115,000 TPOC on or after October 1, 2011, mandatory reporting occurs no later than the submission window assigned during the first quarter of 2012.  The chart (in the Alert) is intended to let you know when a failure to report would trigger penalties. Penalties, therefore, could be levied if the RRE settles a TPOC of $100,000 or more, on or after October 1, 2011, and the RRE does not report under Section 111 during the reporting period in the first quarter of 2012.

The DRI Medicare Secondary Payer Task Force will continue to follow these issues and provide guidance to the DRI Community as new Alerts are posted.

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The 7th Circuit recently struck down FMCSA (Federal Motor Carrier Safety Administration), Regulation 395.16 on grounds that it failed to address the issue of "harassment" of drivers. Regulation 395.16, which would have gone into effect June 2012, would have required motor carriers with a greater than 10% rate of noncompliance who are subject to a remedial directive to "install, use and maintain EOBRs [Electronic On-Board Recorders]" to record hours of service.  In bringing the action, the Owner-Operator Independent Drivers Association argued that the Regulation impermissibly failed to address the potential for harassment of drivers through use of the device. The Court of Appeals agreed, determining that the regulation and the legal basis for it failed to address the issue of how the EOBR, capable of "contemporaneous transmission" of information would "guard against harassment."  Notably, the ATA (American Trucking Association) has expressed their support of the Regulation because of the correlation between accuracy in hours of service reporting and a decrease in accidents.  

The victory may be short-lived, however, due to FMCSA proposed regulation RIN2126-AB20, docket number FMCSA-2010-0167 which would require virtually all motor carriers to use an EOBR. RIN2126, if approved, would require all motor carriers currently required to maintain Records of Duty Status for Hours of Service recordkeeping . . . to use EOBRs to systematically and effectively monitor their drivers' compliance with HOS requirements." FMCSA actually extended the period for coments on this regulation from the original April 4, 2011 deadline to May 23, 2011 and there has been speculation the deadline was extended because of the afore-mentioned litigation.  Notably, RIN2126 has the same failings noted by the court with regard to the harassment issue, only addressing it in the Legal Basis section of the Rule where it states, "Section 9104 of the Truck and Bus Safety and Regulatory Reform Act (Pub. L. 100-690, November 18, 1988, 102 Stat. 4181, at 4529) also anticipates the Secretary promulgating 'a regulation about the use of monitoring devices on commercial motor vehicles to increase compliance by operators of the vehicles with hours of service regulations' and requires the Agency to ensure that any such device is not used to 'harass vehicle operators' (49 U.S.C. 31137(a))."

In this author’s view, the foregoing language hardly addresses the Court of Appeals’ concerns regarding harassment, but at the same time one wonders whether the “harassment” issue raised by OOIDA is really a technical argument to get around what would otherwise be viewed as a step forward in safety compliance for the trucking industry.  The real issue, in my mind, regardless of the size of your shop or whether you are a single owner-operator, is who will be paying for the purchase, installation, and maintenance of these EOBRs?  Moreover, how is the FMCSA going to manage the enforcement of such a regulation which would require drivers to “make it possible for authorized Federal, State, or local officials to immediately check the status of a driver's hours of service.”

While a number of large trucking companies showed profits this past quarter, drivers are being faced with worsening conditions and a dismal outlook as the price of gas keeps going up.  I am always in support of a regulation that will increase driver safety, but I have to question whether drivers will spend more time finding ways to get around this rule than they will actually spend complying with it.  Regulations like these need to be practical in order to be enforceable.

 

 

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New Plan for No-Fault Accidents?

Posted on July 20, 2011 03:20 by Noelle M. Natoli-Duffy

Upon reading a recent article on Truckinginfo.com in regards to potential, new no-fault regulations, my initial reaction to this was "great!" But then I kept reading. I disagree with the FMCSA's approach on correcting the scores by relying (almost) entirely on police reports. In my experience, most police officers have minimal training on accident investigation--nothing more than two weeks at the academy. If you think about it, police reports are not even admissible in court (at least in California--with a few minor exceptions), as inherently unreliable hearsay documents. Oftentimes, the officer's assessment of liability is based on incomplete statements from witnesses, misapplication of the law, and "guesstimations" on time, speeds, and distances (because they rarely take any measurements). I would like to see them try to correct these problems with something other than a quick band-aid that just makes the problem worse. I can just see it now...the next case I get will have a certified copy of the FMCSA score attached to the complaint with a cause of action for negligence per se.

 

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Here is an interesting article I came across. Although I consider myself an advocate for drivers, I have to say I disagree with the trucker who was interviewed here. Everyone wants to make a profit, but profits can't come before people, even in these hard economic times. Plus, from a litigation standpoint, I have to say that I have always found it beneficial to be able to argue that my driver "couldn't have been speeding" because of the regulator... what does everyone else think?

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Categories: Transportation | Trucking Law

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Keep on Truckin' -- South of the Border

Posted on July 12, 2011 03:29 by John Anderson

A deal signed last Wednesday, July 6, between the United States and Mexico will allow Mexican trucks and drivers to enter deep into the United States as originally envisioned under the North American Free Trade Agreement (NAFTA) 17 years ago.  In return, Mexico will lift tariffs imposed in 2009 on approximately $2.3 billion in U.S. goods.  Whereas Mexican trucks and drivers were, until recently, limited to carrying loads originating in Mexico to U.S. destinations within 25 miles of the border. Under the new agreement they will be permitted to carry loads to their final destinations in the U.S, wherever they may be dependent on safety inspections, driver reviews, electronic vehicle monitoring and other administrative restrictions.

How will this affect the American trucking carriers, U.S. insurers and those of us who represent them in litigation?

Some of our trucking clients feel that the effects will be minimal.  They believe that the multitude of administrative requirements will dissuade Mexican carriers from seizing the new opportunity, and that Department of Transportation (DOT) inspectors at the border will be particularly thorough in their screening efforts.  Other U.S. carriers feel that the effects may be slow in coming about, but that they will come about, with certainty.  Carriers of this mindset point out that Mexican businesses understand the opportunities available in the U.S. well.  They believe that their Mexican counterpoints will take pains to learn the regulations and adapt quickly.

Cost will be a factor, of course.  The costs of U.S. regulatory compliance will unquestionably be significant for Mexican carriers.  Many of our clients believe that Mexican wages will keep Mexican carriers competitive however, and doubt that costs will outweigh potential profits.  The biggest disincentive for Mexican carriers may very well prove to be the costs and burdens of American litigation. 

Most Mexican companies are unfamiliar with the American personal injury and wrongful death damages.  Under Mexican law, these sorts of damages are commonly controlled by statute, and are significantly limited.  Likewise, there are no punitive damages available in accident cases under Mexican jurisprudence.  Unless they have been previously directly involved in it, American litigation will be an eye-opening experience for most Mexican businesses.

Assuming that Mexican carriers will begin to venture further and further into the United States, and taking as granted that accidents involving Mexican drivers and trucks will take place as traffic increases, it will be the role of insurers and the trucking defense bar to acclimate Mexican companies to the nuances of American litigation.  This presents a responsibility, but also an opportunity.  Our firm, for instance, is considering participating in programs designed to inform Mexican carriers about the critical details of the DOT regulations and Texas accident and cargo litigation.  We see increased Mexican truck traffic is inevitable, and believe that the more smoothly the transition is made, the better for all.  As business continues to become ever-increasingly global, we believe that this new U.S./Mexico trucking deal will ultimately prevent new opportunities for both sides of the border, including carriers, insurers, and all other involved parties.

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Categories: International Law | Trucking Law

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