On October 28, 2008, the National Transportation Safety Board (NTSB) issued its annual list of Most Wanted Safety Improvements. The list is designed to raise public awareness about transportation safety issues for many modes of transportation, including airplanes, trains, oil pipelines, and commercial trucks. 

Relating to commercial trucking, the NTSB again advocates for the mandatory use of on-board electronic data recorders to assure compliance with hours of service regulations. Also, the NTSB seeks adoption of more stringent regulations to prevent medically unqualified drivers from operating commercial vehicles. In particular, the NTSB recommends:

• Establishing a comprehensive medical oversight program for interstate commercial drivers.
• Ensuring that medical examiners are qualified.
• Tracking all medical certificate applications
• Enhancing oversight and enforcement of invalid medical certificates, and
• Providing mechanisms for reporting medical conditions.

The NTSB notes that the Federal Motor Carrier Safety Administration’s response to these issues has been “unacceptable.”

The NTSB is an independent Federal agency charged by Congress with investigating every civil aviation accident in the United States and significant accidents in the other modes of transportation — railroad, highway, marine and pipeline — and issuing safety recommendations aimed at preventing future accidents. It’s most recent list of Most Wanted Transportation Safety Improvements can be found here.

Federal regulations limit the number of hours commercial truck drivers may stay on-duty. These rules have been modified over the years in an effort reach a balance between safety and efficiency. Currently, the rules impose daily and weekly limits on the number of hours commercial truck drivers are permitted to work.  Generally, drivers are permitted to work no more than 14 consecutive hours. Of that time, only 11 hours may be devoted to driving. (The remaining time may be devoted to paperwork, loading and unloading, etc.) After exhausting these limits, drivers are required to spend a minimum of 10 consecutive hours off duty. The regulations also prohibit driving after being on-duty more than 60 hours in 7 consecutive days, or 70 hours in 8 consecutive days. Drivers may restart the 60 or 70 hour clock by taking no less than 34 consecutive hours off duty.

A recent Federal Motor Carrier Safety Administration (FMCSA) study sheds light on whether these regulations, if properly followed and enforced, are likely to be effective. (See Analysis of Risk as a Function of Driving-Hour: Assessment of Driving Hours 1 through 11 Final Report. The shorter ‘Tech Brief‘ summary is here.) This study does not support the hypothesis that driving 10 or 11 hours is more unsafe than driving fewer hours. In fact, the study suggests that driver performance in hours 2 through 11 is about the same. Oddly, drivers performed worst during the first hour of driving.

Overall, the study concludes that “time on task” is a poor predictor of driver performance. More relevant, the study suggests, is time of day. The highest incidence of unsafe performance occurred during times of heavy traffic conditions.

In September 2003, a Fresno California truck driver fell asleep at the wheel, causing a multi-vehicle crash resulting in the death of a father and son. Investigation revealed that the driver had been driving for 19 consecutive hours, greatly exceeding the maximum hours of service permitted by federal regulations. Ultimately, five truckers at the same company plead guilty to falsifying their log books.

Given the competitive nature of the trucking industry, it is unfortunate, but not surprising, that commercial truck drivers sometimes violate the hours of service regulations and alter their records to escape detection. In recognition of these temptations, trucking companies must institute practices and procedures to encourage their drivers to comply with the law. In this tragic case, however, just the opposite occurred. The trucking company executives actually conspired with drivers to falsify records to hide routine safety violations.

In June 2008, executives of Nijjar Brothers Trucking Inc. were sentenced for aiding and abetting the falsification by their drivers of official documents required by the Federal Motor Carrier Safety regulations. The trucking company owners face prison, probation, and fines, all of which will come as little comfort to the families of the victims.

The investigation of most motor vehicle crashes focuses on the conduct of the driver. Truck crash investigation must also focus on the conduct of the trucking company which may foster a culture of unsafe trucking practices. Public safety demands this emphasis on corporate accountability.

On July 9, 2008, the House of Representatives Committee on Transportation and Infrastructure subcommittee on Transportation and Infrastructure took testimony on the subject of truck weight and length regulations. Generally, federal regulations limit truck weight to a maximum of 20,000 pounds for single axles, 34,000 pounds for tandem axles, with a total Gross Vehicle Weight (GVW) limit of 80,000 pounds. These limits have been in effect since 1974.

The issue of whether trucks of greater width and weight should be allowed on our highways has recently received greater attention. Generally, the trucking industry contends that larger trucks are needed to handle an ever increasing flow of cargo across the country. Safety advocates, on the other hand, claim that bigger trucks will increase to number of truck related crashes and damage our aging roads and bridges.

On behalf of the Teamster’s Union, truckers testified that larger trucks would be unsafe. Specifically, they argued that road widths, automobile traffic, and short highway entrance ramps all make bigger trucks too dangerous. Trucking industry representatives, on the other hand, claim that bigger trucks are needed to off-set increased fuel costs, address increased demand for freight transportation, and harmonize federal and state regulations.

A summary of the hearing subject matter, the written testimony of the witnesses, and a video of the hearing itself are all available at the Transportation and Infrastructure Committee website.

In a move to prevent truckers from cheating on mandatory drug testing, the Federal Motor Carrier Safety Administration (”FMCSA”) announced a new rule on June 25 that requires drug testers to check for evidence of tempering with urine samples. The new rule addresses concern over the availability and use of products designed to alter urine samples to hide illegal drug usage. As part of the findings in support of the new rule, the FMCSA noted: “The DOT continues to believe that mandatory testing for specimen validity is an appropriate response to the use of adulterants and attempts to subvert the collection and testing process.”

If drug testers detect possible tampering, under some circumstances, the new rule requires, for example, collection of another urine sample under “direct observation”.

The new rule is available in its entirety here. It goes into effect on August 25.

Truck safety advocates often battle with the trucking industry over truck safety legislation. Recently, the issue of truck weight limits took center stage. The trucking industry favors higher weight limits for more profitable operations. Truck safety advocates contend that heavier trucks pose greater risk to the motoring public.

On May 13 and 14 2008, the trucking industry group Americans for Safe and Efficient Transportation (ASET) hosted a “fly-in” to lobby congress for legislation increasing the weight limit for heavy trucks from the current 80,000 pounds to 97,000 pounds, a 21% increase. According to the ASET website, such a change would increase efficiency and decrease pollution.

As reported by the Washington Post (the articles are reprinted at the ASET website), the idea is opposed by certain key members of the Senate who quickly introduced legislation to prevent any increase of the weight limit, claiming that heavier trucks take longer to stop, cause more damage to public roads, and are more inclined to cause roll-over accidents. (This legislation, the Safe Truck Operations and Preservation Act, may be viewed at the Library of Congress website by searching for S3021.) These concerns are shared by truck safety advocacy groups such as Advocates for Highway and Auto Safety which outlines the dangers of heavier trucks in a “Fact Sheet” here.

Commercial truck drivers are subject to periodic drug and alcohol testing. A commercial truck driver is not permitted to drive with a Blood Alcohol Content (BAC) of greater than .02. Drivers testing at this level are not permitted to perform “safety-sensitive functions”, which includes driving, for at least 24 hours after the test. A driver whose BAC exceeds .04 may not return to duty without submitting to further testing. Drivers are also tested for marijuana, cocaine, opiates, amphetamines, and PCP.

On May 15, 2008, the General Accountability Office (GAO) issued a report recommending improvements in the enforcement of drug and alcohol safety rules regulating the trucking industry. The GAO notes that this is an important issue of public safety: previous studies have found that driving under the influence of drugs, alcohol, or both can increase the risk of truck crashes anywhere from two-to six-fold.

Some key findings of the GAO study are: 1) many carriers, especially new one, have no drug testing program at all; 2) drug users may avoid detection by “adulterating or substituting their urine specimens with products that are widely available and marketed as allowing drivers to ‘beat’ the test;” and 3) drivers who test positive may continue to drive by hopping from one job to the next. Perhaps most tellingly, the GAO concluded that the FMCSA is able to conduct, on average, only 13,000 compliance reviews annually even though there are over 700,000 carriers registered with the Department of Transportation.

The GAO’s report calls for the Secretary of Transportation to expedite improving safety audits and to implement a national database of drug testing information. The GAO also suggests that Congress consider (1) adopting legislation to ban “subversion products” used to “beat” drug testing, (2) providing FMCSA with additional authority over entities involved in the drug testing process, and (3) encouraging or requiring states to suspend commercial driver’s licenses of drivers who fail or refuse to take a drug test.

The full report of the GAO may be found here.

The regulations designed to prevent commercial truck drivers from becoming too tired to drive safely are only effective if they are enforceable. Most drivers are paid by the mile. As a result, the incentive to break the hours of service rules is built into the system — sometimes with tragic results.

The rules impose daily and weekly limits on the number of hours commercial truck drivers are permitted to work.  Generally, drivers are permitted to work no more than 14 consecutive hours. Of that time, only 11 hours may be devoted to driving. (The remaining time may be devoted to paperwork, loading and unloading, etc.) After exhausting these limits, drivers are required to spend a minimum of 10 consecutive hours off duty. The regulations also prohibit driving after being on-duty more than 60 hours in 7 consecutive days, or 70 hours in 8 consecutive days. Drivers may restart the 60 or 70 hour clock by taking no less than 34 consecutive hours off duty.

To assist in enforcing these regulations, drivers must record their status throughout the day as either “off-duty”, “sleeper berth”, “on duty, not driving”, or “driving.” There is concern, however, that some drivers may falsify their driver logs to circumvent the rules.

In 2004, the Federal Motor Carrier Safety Administration (FMCSA) proposed a rule to make it easier to verify that drivers follow the rules. The proposed rules required drivers to maintain “supporting documents” to verify the entries recorded in the driver’s log. In response to the proposed rule, however, the FMCSA received a large number of negative comments, mostly from within the trucking industry. As a result, the FMCSA withdrew the proposed rule as of October 25, 2007. For now, compliance with the federal hours of service regulations will remain frustratingly difficult to verify.

You can review the proposed rule, the public comments, and the withdraw of the rule by searching for Regulatory Identification Number (RIN) 2126-AA76 at http://www.regulations.gov/.

In the commercial trucking industry, there is always tension between highway safety and making money. The on-going debate about changes to the Hours of Service regulations show the kind of compromises made to accommodate these competing interests. (For an introduction to the Hours of Service regulations, see our previous post.)

In 1995, Congress ordered the Federal Highway Administration (FHA) to revise the Hours of Service regulations, the rules governing how long truck drivers may work before resting. The job fell to the Federal Motor Carrier Safety Administration (FMCSA) when that agency was created in 1999.

In May 2000, the FMCSA proposed new rules and invited public comment. The final rule adopted in April 2003, however, diluted the safety protections afforded in the proposed rules. The changes to the final regulations lead consumer safety advocates to challenge the new rule in Court. In its decision invalidating the new rule, the Court of Appeals for the District of Columbia criticized the rule changes as “arbitrary and capricious.” (The Truck Safety Coalition describes the unsafe features of the new regulations here.) The Court criticized the new rule for, among other things, increasing from 10 to 11 the number of consecutive hours drivers may drive before resting and for failing to require the use of electronic on-board recording devices to assure compliance with the rules despite evidence that these changes may be detrimental to public safety.

In July 2004, Congress temporarily rescued the new regulation by allowing it to become effective until the FMSCA considered and addressed the federal Court’s criticisms. In August 2005, FMSCA did just that by promulgating virtually the identical rule all over again. This time, FMSCA simply supported the changes with additional research and written findings.

Consumer advocacy groups again challenged the regulation in Court, claiming that the changes were detrimental to public safety. In its July 2007 Opinion, the D.C. Circuit Court of Appeals again invalidated portions of the new regulations, essentially finding that the FMSCA failed to publicly disclose its methodology in studying the new rules in time to allow public comment as required by law.

As recently as December 2007, the U.S. Senate held hearings about the new Hours of Service regulations. (These hearing can by viewed at C-Span website.) The debate, as it has for more than a decade, centered around the competition between public safety and trucking company profits. That debate, no doubt, will continue for years to come.

Commercial truck drivers work long hours under physically demanding conditions. Ensuring that drivers get enough rest is a critical component of truck safety. That is the purpose of the federal Hours of Service regulations.

Commercial truckers transporting property (the rules for passenger trucks are a bit different) are subject to daily and weekly limits on the number of hours they are permitted to work.  Generally, drivers are permitted to work no more than 14 consecutive hours. Of that time, only 11 hours may be devoted to driving. (The remaining time may be devoted to paperwork, loading and unloading, etc.) After exhausting these limits, drivers are required to spend a minimum of 10 consecutive hours off duty.

Drivers are subject to weekly limits as well. The regulations prohibit driving after the driver has been on-duty 60 hours in 7 consecutive days, or 70 hours in 8 consecutive days. Drivers may restart the 60 or 70 hour clock by taking no less than 34 consecutive hours off duty.

Drivers must record their status throughout the day as either “off-duty”, “sleeper berth”, “on duty, not driving”, or “driving.” An example of a completed log book is provided by the Federal Motor Carrier Safety Administration here.

In truck crash litigation, it is important to study the driver’s logbook, but that is only a first step. The Hours of Service regulations are well known in the trucking industry, and commercial truck drivers will rarely confess to a violation in the log book. The possibility of falsified log books must always be considered. Log book entries should be compared to other evidence including receipts for fuel and food, credit card statements, cell phone records, bills of lading and other shipping records, loading dock security logs and servailance tapes, and GPS tracking data. A determination about whether a trucking crash was caused by a violation of the Hours of Service rules can be made only after all of the evidence has been considered.