Commercial Vehicle Safety

Illinois House Bill 5101 prohibits texting or using a hand-held cell phone while driving a commercial motor vehicle - making it a serious traffic violation.  Illinois previously prohibited texting while driving for all vehicles, but cell phones were permitted.  Illinois statutes have since been amended to be in compliance with the Motor Carrier Safety Regulations law that prohibits texting and cell phone use by commercial motor vehicle drivers.

Senate Bill 2488 also prohibits cell phone use in construction or maintenance speed zones regardless of the speed limit in those zones.  Drivers can only use cell phones in voice-operated mode, which includes the use of a headset or cell phones used with single button activation.

The National Highway Traffic Safety Administration ("NHTSA") proposed a federal motor vehicle safety standard to require electronic stability control ("ESC") systems on large commercial trucks and buses. The rule would affect vehicles with a gross vehicle weight rating of more than 26,000 pounds. The proposed rule would take effect between two and four years after the standard is finalized, depending on the type of vehicle. The proposal also includes standards for performance testing of the technology.

Based on NHTSA research, the technology could prevent up to 56% of rollover crashes each year and another 14% of loss-of-control crashes.

A Notice of Proposed Rulemaking has been published in the Federal Register and members of the public will have the opportunity to comment on the proposal for 90 days. NHTSA will also hold a public hearing on the proposed safety standard to solicit further public comment.

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued important new guidance impacting the way employers use criminal arrest and conviction records of prospective employees to make hiring decisions.  Motor carriers (including last-mile carriers, household goods carriers, and couriers) dealing directly with homeowners, residents, and retail consumers are quite often required by their retailer customers to perform criminal background checks.  Although the EEOC’s guidance applies to “employers” as opposed to contractors of owner/operators, caution and attention are warranted.  Employers seeking to avoid liability for claims of discrimination under the disparate impact and disparate treatment prohibitions contained in Title VII are advised to evaluate their application and hiring policies to ensure compliance with the EEOC’s new guidance.

Under the EEOC’s new guidance, an employer’s (e.g. motor carrier) blanket policy or practice of excluding applicants with criminal records from employment may violate Title VII to the extent the policy strays far from Federal Motor Carrier Safety Regulations and the commercial motor vehicle driver disqualifications listed at 49 U.S.C. § 31310.  Instead, the EEOC now requires narrowly-tailored individualized assessments, or “targeted screens,” of applicants that consider the nature of the crime, the time elapsed since the arrest or conviction, and the specific responsibilities of the job for which the applicant is applying. 

With the new guidance in place, employers should expect the EEOC to step up its investigative and enforcement efforts, particularly to the extent blanket criminal background policies raise the “pattern or practice” flags most noticeable to the EEOC.  Motor carriers that “employ” drivers and helpers to conduct in-home deliveries should therefore evaluate their application and hiring policies related to the use of criminal arrest and conviction records to ensure narrow tailoring and individualized assessments in light of the new EEOC guidance.  Even contractor-model motor carriers should use reasonable efforts to avoid overly-broad screening of owner/operators.  For additional information on the new EEOC guidance, or to discuss implementing a policy that minimizes your company’s exposure on a claim of discrimination in its hiring practices, contact Greg Feary, Jim Hanson, David Robinson, or Jack Finklea in the Firm’s Indianapolis office at (317) 637-1777.
 

The Federal Motor Carrier Safety Administration ("FMCSA") announced planned improvements to the implemented in December 2010 as part of the agency’s Compliance, Safety, Accountability initiative. A preview is currently available to motor carriers and law enforcement. During this data preview period, FMCSA requests comments on the possible impact of the changes.  To comment, go to www.regulations.gov; the docket number is FMCSA 2012-0074. The changes will be available to the public in July 2012.

FMCSA says the SMS improvements are based on ongoing analysis and feedback from enforcement personnel, the motor carrier industry and other stakeholders, and are designed to more effectively identify and prioritize high-risk and other unsafe motor carriers for enforcement interventions designed to reduce commercial motor vehicle crashes and hazardous materials incidents.

 FMCSA will provide motor carriers with the ability to preview how the improvements impact their individual safety data in SMS. These improvements include:
• Changes to the SMS methodology that identify higher-risk carriers while addressing industry biases;
• Better applications of SMS results for agency interventions by more accurately identifying safety-sensitive carriers – such as carriers transporting people and carriers hauling hazardous materials – so that such firms can be selected for CSA interventions at more stringent levels; and
• More specific fact-based displays of SMS results on the SMS Website.

Last week, the Occupational Safety and Health Administration (“OSHA”) placed the Office of the Whistleblower Protection Program under the direct supervision of the agency’s head, Assistant Secretary of Labor Dr. David Michaels.  The move strongly emphasizes the heightened priority OSHA and the U.S. Department of Labor placed on employee whistleblower protections last year.

Among the whistleblower laws enforced by OSHA that are critical to motor carriers is the Surface Transportation Assistance Act, or STAA.  The STAA protects drivers and other employees from adverse employment action taken in response to complaints related to commercial motor vehicle safety.  Motor carrier liability under the STAA is significant and may include back pay, reinstatement, compensatory and punitive damages, and attorney’s fees.  OSHA’s efforts to strengthen whistleblower protections, as indicated by yesterday’s announcement, signals a continuation of the increased government scrutiny motor carriers have faced in recent years.

Florida state lawmakers have proposed several bills intended to increase road safety by curbing a growing problem with distracted drivers.

Multiple bills have been filed that once again try to ban texting while driving and make it a secondary offense, meaning law enforcement would need another reason to pull someone over.  Similar efforts in Tallahassee have struggled in recent years because certain lawmakers have doubted the proposed rule’s effectiveness, and blocked passage.

If approved this time around, first offenses would be a non-moving violation. Subsequent offenses would be classified as moving violations. Accidents that result from the distraction would be a 6-point offense.

As truckers are aware, the federal government already prohibits texting while driving for commercial operators. At the state level, Florida is one of 15 states that have not acted to outlaw texting while driving for all vehicles.

A joint motion filed on 11/28/2011 in the U.S. Court of Appeals for the District of Columbia stated that a new Hours of Service (“HOS”) rule will likely be issued before the end of the year.  The promulgation of the final rule has been delayed for over two years.  The rule will amend the limits on the amount of time commercial vehicle drivers can spend behind the wheel.  The existing HOS rules issued by the FMSCA were originally adopted in 2005 and have been the subject of multiple lawsuits.  Currently, the rule for property-carrying Commercial Motor Vehicle drivers (under 49 CFR Part 395) places a 11 hour day driving limit and a 60/70 hour driving limit over a period of 7/8 consecutive days.  Drivers may restart the 7/8 day consecutive period after taking 34 or more hours off duty.  The final rule is likely to substantially change these requirements.

The National Transportation Safety Board (“NTSB”) recently recommended that the Federal Motor Carrier Safety Administration (“FMCSA”) prohibit the use of handheld and hands-free cellular telephones by all commercial driver's license holders while driving in commercial operations.  The recommendation, issued in a public board meeting last week, comes in light of the NTSB’s investigation of a multiple-fatality collision between a Commercial Motor Vehicle (“CMV”) and a fifteen-passenger van in Munfordville, Kentucky.  The NTSB concluded that the probable cause of the accident was the CMV driver’s use of a cell phone.

The FMCSA has taken action with respect to the use of cell phones in the past.  It banned the use of texting by CMV drivers in 2010 and proposed rules regarding the use of cell phones on December 21, 2010.  Comments for the proposed rules have been accepted as recently as September 14, 2011, with major stakeholders weighing-in.  Although it is unclear how the NTSB’s recommendation will affect the FMCSA’s adoption of its own proposed rules, a closer look at the rules is warranted given the recommendation itself and the crash in Kentucky.  Notably, the rules as currently written would prohibit the use of hand-held cell phones only.   Hands-free devices would be allowed so long as they do not require the driver to reach for, dial, or hold a phone.  The rules would also require interstate motor carriers to ensure compliance by their drivers and prohibit motor carriers from allowing or requiring their drivers to engage in the use of a hand-held cell phone while operating in interstate commerce.  What penalties, if any, for noncompliance by motor carriers are not described in the proposed rules.  However, drivers face varying degrees of fines and disqualification sanctions for noncompliance.

In addition to the ban on all cell phone use, the NTSB issued 14 other safety recommendations in response to the Kentucky crash.  Recommendations were sent  to the Federal Highway Administration, the FMCSA, the National Highway Traffic Safety Administration, the American Association of State Highway and Transportation Officials, the Governors Highway Safety Association, all fifty states, and the District of Columbia.   

The annual CVSA Brake Safety week is scheduled for Sept. 11-17. The event is held nationwide by participating members of the Commercial Vehicle Safety Alliance. For more information, visit cvsa.org.

The Federal Motor Carrier Safety Administration (FMCSA) has revised the DOT regulations to establish new minimum federal standards for States’ issuance of commercial learner’s permits (CLPs). At the same time, it modified some requirements relating to commercial drivers licenses (CDLs). Among the provisions:

• A CLP holder will have to meet virtually the same requirements as those for a CDL holder, and will be subject to the same driver disqualification penalties.
• States will be required to check FMCSA databases and verify driver social security numbers of CLP applicants (most already do the latter), to recognize each others’ CLPs, and to create a CDLIS (Commercial Driver’s License Information System) record for each CLP issued.
• The CLP is to be issued for 180 days after passage of the general and endorsement knowledge test, and may be renewed for another 180 days without retaking the test.
• A CPL holder must wait at least 14 days to take the CDL skills test.
• A CDL may not be issued for more than 8 years (states may lower that period).
• States will be required to use the FMCSA’s endorsement and restriction codes as licenses are next issued or renewed.
• Testing in languages other than English is prohibited.

Rejecting comments that larger carriers could be unfairly penalized on a proportional or violation-per-driver, the FMCSA added a new ‘‘acute violation’’ to the DOT Safety Ratings process-- knowingly allowing operation of a CMV [Commercial Motor Vehicle] by an employee who does not have a current CLP or CDL with the proper class or endorsements, or in violation of any restriction. To comments regarding availability of information about drivers, the agency replied, “Carriers are in the best position to determine that their own drivers are properly licensed. Implementation of a central database for monitoring and notifying carriers of status changes to CDL holders is beyond the scope of this rulemaking.”

The final rule is effective July 11, 2011, but some of the changes have different effective dates. The FMCSA's release is available at 76 Fed. Reg. 26854 (May 9, 2011).

Two bills winding their way through the Oregon Legislature cover trucking issues that address emissions rules and indemnification.

The House voted 48-11 to advance an amended bill to the Senate that addresses emissions reduction. Intended to crack down on unnecessary idling of trucks, the bill would prohibit commercial vehicles from idling for more than five minutes each hour on property open to the public.

Examples of circumstances that would warrant additional idling are to operate defrosting, heating or air conditioners – or installing equipment necessary to comply with manufacturers’ operating requirements, specifications and warranties, or with federal, state or local safety regulations.

An exception would also be made for air conditioning or heating during a rest or sleep period when the outside temperature is below 50 degrees or above 75 degrees.

The exception would not apply if the truck is equipped with an auxiliary power unit or other idle-reduction technology. It would also be unacceptable to park near a grade school and idle, regardless of temperature.

Another exception to the five-minute rule would be made for idling up to 30 minutes while a truck is waiting to load or unload, as well as actually loading or unloading.

Removed from the bill was a provision to require Oregon’s Environmental Quality Commission to adopt rules and establish requirements that trucks weighing in excess of 26,000 pounds that pull box-type trailers must take steps to reduce greenhouse gas emissions.

Separate rules would have been put in place for local-haul trucks and trailers. The affected haulers are classified as operating within 100 miles of home base. Day-cab trucks would have been required to only use tires with low rolling resistance.

The bill – HB2081 – is awaiting consideration in the Senate Business, Transportation and Economic Development Committee.

Another bill on the move would make unenforceable any motor carrier contracts that provide for shippers to be indemnified for losses caused by their own negligence.

Affected contracts would be defined as any written agreement for the transportation of property for compensation or hire, entry on property to load, unload or transport property, or any service incidental to such activity, including the packing or storage of property.

The Illinois Senate unanimously approved a bill that would expand the 65 mph speed limit for cars and trucks to include four-lane, divided highways outside of Chicago. 

Additionally, the Senate approved a separate bill by unanimous consent to remove length limits for the distance between the kingpin and the center of the rear axle of semitrailers longer than 48 feet.

The limit is 45 feet, six inches on Class I and Class II highways. On Class III and other state highways, the limit is 42 feet, six inches.

 Sen. John Sullivan, D-Rushville said he believes Illinois is the only state that still limits the kingpin-rear axle length. For him, the biggest problem with the rule is how it affects double deck livestock trailers.

Sullivan said the current restrictions serve no purpose because equipment has improved through the years.

A bill awaiting a Senate floor vote would put in place certification requirements for municipalities to use portable scales to cite truckers for weight restrictions. Another provision in the nearly 70-page bill would increase the maximum weight limits for large trucks equipped with idle-reduction technology. Commercial vehicles equipped with APUs would be authorized in state law to weigh up to an additional 400 pounds.

Illinois is one of 18 states where the weight allowance is granted by enforcement policy rather than by state law.

Roadcheck is the largest targeted enforcement program on commercial vehicles in the world, with approximately 14 trucks or buses being inspected, on average, every minute from Canada to Mexico during a 72-hour period.

Each year, approximately 10,000 CVSA-certified local, state, provincial and federal inspectors at 1,500 locations across North America perform the truck and bus inspections.

During the 2010 Roadcheck event, CMV enforcement conducted 65,327 inspections across the U.S. Of those, almost 49,000 were Level 1. Vehicle compliance rates were about 80 percent and drivers had a 95.6 percent pass rate. Driver compliance rates in 2009 set a record at 95.7 percent.

The primary causes for placing vehicles and drivers out of service continue to be brakes and logbooks, respectively.

CVSA is made up of local, state, provincial, territorial and federal motor-carrier safety officials and industry representatives in the U.S., Canada and Mexico.

Several states have passed laws that limit or prohibit cell phone use while driving.  A chart compiled by the Governors Highway Safety Association outlining state cell phone and text messaging laws is available at
 http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html. 

Though many motor carriers are now familiar with state laws related to distracted driving, additional caution is warranted to the extent some municipalities may also impose restrictions that are even more stringent than state laws. For example, Mike Tauscher of Scopelitis, Garvin, Light, Hanson & Feary, P.C. - Detroit reports a Troy, Michigan, ordinance prohibits any type of "distracted driving."  The ordinance defines “distracted driving” to include driving while (1) texting (modeled after the state law), (2) talking on cell phones, and (3) other common distractive behaviors, including, but not limited to “eating, reading, writing, performing personal hygiene/grooming, physical interaction with pets, passengers, or unsecured cargo, any of which is done in a manner that prohibits the driver from maintaining direct physical control of the motor vehicle steering mechanism with at least one hand that is free of all other objects and used entirely to form a controlled grip on the steering mechanism."