Key Regulations for Handling Trucking Accident Cases

By: Timothy M. Whiting

Whiting Law Group, Ltd1 E. Wacker Drive, Ste

2300Chicago, IL 60601

twhiting@wlglaw.net

Introduction

A. Key Federal Motor Carrier Safety Regulations

B. Useful Resources for Trucking Cases

C. FMCSA Website Resources

A. Key Federal Motor Carrier Safety Regulations

• The JJ Keller Federal Motor Carrier Safety Regulation Handbook is a useful resource in determining the applicability of regulations. The Handbook’s guidance section is an invaluable resource to have at your fingertips.

General Safety Rules

• General Safety Rules• § 382- Controlled Substance and Alcohol Abuse Testing• § 383- CDL Standards: Requirements and Penalties• § 390- FMCSR: Generally• § 391- Qualifications for Drivers and LCV Driver

Instructions• § 392- Driving of CMV• § 393- Parts and Accessories for Safe Operation• § 395- Hours of Service of Drivers• § 396- Inspection, Repair, and Maintenance• § 397- Transportation of Hazardous Materials: Driving

and Parking

Specific Safety Rules RegardingCommercial Motor Vehicles

§ 392.2- Operating Safety Rules:

• Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a regulation of the FMCSA imposes a higher standard of care than that law, ordinance or regulation, the FMCSA regulation must be complied with.

Specific Safety Rules RegardingCommercial Motor Vehicles Cont.

§ 383.5- Commercial Motor Vehicle: (Intrastate or Interstate)

A motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle that has a Gross Combination Weight Rating of 26,001 or more pounds inclusive of a towed unit with a Gross Vehicle Weight Rating of more than 10,001 pounds.

Ex: Tractor weighing 6,000 lbs hauling trailer/load weighing 20,001 = 26,001. This is a CMV.

Specific Safety Rules RegardingCommercial Motor Vehicles Cont.

§ 390.5- Commercial Motor Vehicle (Interstate only)

“any self-propelled or towed motor vehicle used on a highway in interstate commerce...(that) has a Gross Vehicle Weight Rating or Gross Combination Weight Rating of 10,001 pounds or more.”

Note: If the vehicle is traveling intrastate and is 10,001 pounds, and the state adopts the FMCSRs including 390.5, then the vehicle is considered a CMV.

Specific Safety Rules RegardingMaking a Case About the Company

§ 392.1- Scope of Driving Commercial Vehicles

“Every motor carrier and its officers, agents, representatives, and driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers are required to be instructed and comply with the rules in this part.”

§ 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.

Specific Safety Rules RegardingMaking a Case About the Company Cont.

390.3- General Applicability

• The rules in subchapter B of this chapter are applicable to all employers, employees, and commercial motor vehicles, which transport property or passengers in interstate commerce.

§390.5- Employee

• [A]ny individual employed by an employer and who in the course of his employment directly affects CMV safety. Such term includes a CMV driver (including an independent contractor while in the course of operating a CMV), a mechanic, and a freight handler. i.e. a truck driver 

• Key Point: Employee definition applies to independent contractors.

Specific Safety Rules Regarding Fatigue and Hours of Service

§ 392.2- Applicable Operating Rules

• Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a regulation of the Federal Motor Carrier Safety Administration imposes a higher standard of care than that law, ordinance or regulation, the Federal Motor Carrier Safety Administration regulation must be complied with.

Specific Safety Rules Regarding Fatigue and Hours of Service Cont.

§ 392.3- Ill or Fatigued Operator:

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. However, in a case of grave emergency where the hazard to occupants of the commercial motor vehicle or other users of the highway would be increased by compliance with this section, the driver may continue to operate the commercial motor vehicle to the nearest place at which that hazard is removed.

Specific Safety Rules Regarding Fatigue and Hours of Service Cont.

§ 392.6- Schedules to Conform with Speed Limits

Drivers are required to conform to the posted speed limits prescribed by the jurisdictions in or through which the vehicle is being operated. Where the total trip is on highways with a speed limit of 65 mph, trips of 550-600 miles completed in 10 hours are considered questionable and the motor carrier may be asked to document that such trips can be made. Trips of 600 miles or more will be assumed to be incapable of being completed without violations of the speed limits and may be required to be documented. In areas where a 55mph speed limit is in effect, trips of 450-500 miles are open to question, and runs of 500 miles or more are considered incapable of being made in compliance with the speed limit an hours of service limitation.

Specific Safety Rules Regarding Fatigue and Hours of Service Cont.

§ 390.13- Aiding or Abetting Violations

No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.

Specific Safety Rules Regarding Driving in Bad Weather Conditions

• § 383.111(12)- Extreme Driving Condition: All drivers must have the basic information on operating in extreme driving conditions and the hazards encountered in such conditions including: bad weather (e.g. snow, ice, sleet, and high wind)

• § 395.2- Adverse Driving Conditions: means snow, sleet, fog, other adverse weather conditions, a highway covered with snow or ice, or unusual road and traffic conditions, none of which were apparent on the basis of information known to the person dispatching the run at the time it was begun.

• The Illinois CDL Manual states that a driver must reduce speed by about one-third (e.g., slow from 55 to about 35 mph) on a wet road. On packed snow, reduce speed by half or more. If the surface is icy, reduce speed to a crawl and stop driving as soon as you can safely do so..

Drugs and other Substances• § 392.4(b)- No Motor carrier shall require or permit a

driver to be on duty and possess or be under the influence or use of any drugs listed in 21 CFR 1308.11 schedule I.

Alcohol Prohibition• § 392.5(b)(1) and (2): No motor carrier shall require or

permit a driver to violate any provision of paragraph (a) of this section, or be on duty or operate a commercial motor vehicle if, by the driver’s general appearance or conduct or by other substantiating evidence, the driver appears to have used alcohol within the preceding 4 hours.

Specific Safety Rules RegardingDrugs and Alcohol

Specific Safety Rules RegardingDrugs and Alcohol Cont.

• § 392.4- No driver shall be on duty and possess, be under the influence of, or use any of the following drugs or other substances :

• Any 21 CFR 1308.11 Schedule I substance;• An amphetamine or any formulation thereof (including,

but not limited, to “pep pills,” and “bennies”)• A narcotic drug or any derivative thereof; or• Any other substance, to a degree which renders the

driver incapable of safely operating a motor vehicle.

Key Point- this means that if a driver uses a controlled substance on or off the job, and/or has used controlled substances regardless of a positive test, they have violated the regulations.- 391.41(b)(12)(i) and (ii)

Specific Safety Rules RegardingDrugs and Alcohol Cont.

§ 382- Controlled Substances and Alcohol Use and Testing

(for Drivers and Company)

• § 382.101- Purpose: to establish programs to help prevent accidents and injuries from the misuse of alcohol or controlled substances by drivers of CMVs (see § 382.107 for definition of a CMV).

• § 382.103- Applicability: applies to every person and all employers of all persons who operate a CMV.

• § 382.201, § 382.205, § 382.207- no driver shall report to duty or remain on duty while having an alcohol concentration of .04 or greater; while performing safety sensitive functions.

Specific Safety Rules RegardingDrugs and Alcohol Cont.

§ 392.5- Alcohol Prohibition:

• A driver cannot use alcohol or be under the influence of alcohol, within 4 hours before going on duty or operating a CMV.

• Key Point: a driver is disqualified from driving a CMV with a clinical diagnosis of alcoholism- § 391.41(b)(13)

Specific Safety Rules RegardingDrugs and Alcohol Cont.

Driver Duties for Alcohol Testing:

• § 383.213 and § 383.215: no driver shall report for duty or remain on duty requiring the performance of safety sensitive functions when the driver uses any controlled substance except as instructed by a licensed doctor and the substance will not adversely affect the driver’s ability to safely operate a CMV.

• § 382.107: Safety Sensitive Function means all time, from the time the driver begins to work or is required to be in readiness of work until he or she is relieved from work…

Specific Safety Rules RegardingDrugs and Alcohol Cont.

Motor Carrier Duties for Drug and Alcohol Testing:

• Form OP-1: The Motor Carrier must have a system for complying with alcohol and drug regulations set forth in § 382.

Specific Safety Rules Regarding Load Securement

1. §392.9(a) – General

2. §392.9(b) – Drivers of Truck and Tractors

3. §393.100- Cargo and Load Securement Standards

Specific Safety Rules Regarding Load Securement Cont.

§ 392.9 (a) General

A driver may not operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless—

• (1) The commercial motor vehicle's cargo is properly distributed and adequately secured as specified in §§ 393.100 through 393.136 of this subchapter.

• (2) The commercial motor vehicle's tailgate, tailboard, doors, tarpaulins, spare tire and other equipment used in its operation, and the means of fastening the commercial motor vehicle's cargo, are secured; and

• (3) The commercial motor vehicle's cargo or any other object does not obscure the driver's view ahead or to the right or left sides (except for drivers of self-steer dollies), interfere with the free movement of his/her arms or legs, prevent his/her free and ready access to accessories required for emergencies, or prevent the free and ready exit of any person from the commercial motor vehicle's cab or driver's compartment.

Specific Safety Rules Regarding Load Securement Cont.

§ 392.9 (b) Drivers of trucks and truck tractors. 

Except as provided in paragraph (b)(4) of this section, the driver of a truck or truck tractor must—

• (1) Assure himself/herself that the provisions of paragraph (a) of this section have been complied with before he/she drives that commercial motor vehicle;

• (2) Inspect the cargo and the devices used to secure the cargo within the first 50 miles after beginning a trip and cause any adjustments to be made to the cargo or load securement devices as necessary, including adding more securement devices, to ensure that cargo cannot shift on or within, or fall from the commercial motor vehicle; and

Specific Safety Rules Regarding Load Securement Cont.

• (3) Reexamine the commercial motor vehicle's cargo and its load securement devices during the course of transportation and make any necessary adjustment to the cargo or load securement devices, including adding more securement devices, to ensure that cargo cannot shift on or within, or fall from, the commercial motor vehicle. Reexamination and any necessary adjustments must be made whenever—

• (i) The driver makes a change of his/her duty status; or• (ii) The commercial motor vehicle has been driven for 3 hours; or• (iii) The commercial motor vehicle has been driven for 150 miles, whichever

occurs first.

• (4) The rules in this paragraph (b) do not apply to the driver of a sealed commercial motor vehicle who has been ordered not to open it to inspect its cargo or to the driver of a commercial motor vehicle that has been loaded in a manner that makes inspection of its cargo impracticable.

Specific Safety Rules Regarding Load Securement Cont.

§ 393.100: Which types of commercial motor vehicles are subject to the cargo securement standards of this subpart, and what general requirements apply?

• (a) Applicability. The rules in this subpart are applicable to trucks, truck tractors, semitrailers, full trailers, and pole trailers.

• (b) Prevention against loss of load. Each commercial motor vehicle must, when transporting cargo on public roads, be loaded and equipped, and the cargo secured, in accordance with this subpart to prevent the cargo from leaking, spilling, blowing or falling from the motor vehicle.

• (c) Prevention against shifting of load. Cargo must be contained, immobilized or secured in accordance with this subpart to prevent shifting upon or within the vehicle to such an extent that the vehicle's stability or maneuverability is adversely affected.

NOTE: Makes the case about the shipper if the shipper loaded the cargo.

Specific Safety Rules RegardingInspection, Maintenance, and Repair

• § 392.7: Equipment Inspection and Use

• § 396.3(a): Systematic Inspection, Repair, and Maintenance

Specific Safety Rules RegardingInspection, Maintenance, and Repair Cont.

§ 392.7- Out of Service Vehicles

• No commercial motor vehicle shall be driven unless the driver is satisfied that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed:

Service brakesParking (hand) brakeSteering mechanismLighting devices/ reflectorsTiresHornWindshield wiper or wipers

Rear-vision mirror or mirrorsCoupling devicesWheels and rimsEmergency equipment

Specific Safety Rules RegardingInspection, Maintenance, and Repair Cont.

§ 396.3- Systematic Repair

Every motor carrier and intermodal equipment provider must systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles and intermodal equipment subject to its control.

• (1) Parts and accessories shall be in safe and proper operating condition at all times. These include those specified in part 393 of this subchapter and any additional parts and accessories which may affect safety of operation, including but not limited to, frame and frame assemblies, suspension systems, axles and attaching parts, wheels and rims, and steering systems.

• (2) Pushout windows, emergency doors, and emergency door marking lights in buses shall be inspected at least every 90 days.

Specific Safety Rules RegardingTexting and Use of Cell Phones

• Texting: § 392.80• Prohibition against texting provides:

• No driver shall engage in texting while driving; and

• No motor carrier shall allow or require drivers to engage in texting while driving.

• Handheld Mobile Phone: § 392.82• No driver shall use a hand-held mobile telephone while driving a

CMV; and

• No motor carrier shall allow or require its driver to use a hand-held phone.

• (c)- Emergency Exception: using a held-held mobile is permissible by drivers of a CMV when necessary to communicate with law enforcement officials or other emergency services.

Specific Safety Rules RegardingTexting and Use of Cell Phones Cont.

• Research from the Federal Motor Carrier Safety Administration demonstrates that drivers who text while driving take their eyes off of the road for an average of 5 out every 6 seconds. Some are distracted for longer periods of time. Crashes involving texting while driving a commercial vehicle are therefore preventable according to the above definition.

• Texting while driving is especially dangerous because it involves all three of the main distractions simultaneously:

1. Manual Distraction,

2. Cognitive Distraction, and

3. Visual Distraction.

• This of course contributes to a truck driver’s inability to perceive dangers timely and to react to them in a timely manner and appropriate manner.

Illinois CDL Manual Regarding Cell Phone Use

• Even using hands-free technology is considered a distraction while driving and can be dangerous. If you must make a phone call, even with hands-free technology, it is recommended that you pull off to the side of the road before making the call. Illinois drivers are exempt from using a cell phone or text messaging while driving only when: 1. Reporting an emergency situation.

2. Using the device hands-free or in voice-activated mode.

3. Parked on the shoulder of a highway.

4. Stopped due to normal traffic being obstructed and the vehicle is in neutral or park.

B. Useful Resourcesfor Trucking Cases

• Commercial Driver License Study Guide

• Driver Training Manuals

• Preventability Manuals

• OP-1 Form

• MCS-150 Form

• Additional Key Resources

Useful Resources for Trucking Cases: Commercial Driver License Study Guide

Examples of Key Language:

Illinois:

• “This section contains knowledge and safe driving information that all commercial drivers should know. You must take an exam on this information to obtain a CDL.”

Wisconsin:

• “This section contains knowledge and safe driving information that all commercial drivers should know. You must pass a test on this information to get a CDL.”

Useful Resources for Trucking Cases:Driver Training and Preventability Manuals

• Driver Training Manuals/ Videos• Tractor-Trailer Driving Training Manual- J.J. Keller & Associates,

Inc.

• Accident Investigation Manual- North American Transportation Management Institute

• Smith System Videos and Manuals- www.smith-system.com

• FMCSA Commercial Driver’s License Manual- https://www.fmcsa.dot.gov/registration/commercial-drivers-license/commercial-drivers-license-manual

• Delmar’s Tractor-Trailer Truck Driver Training- Alice Adams

• Preventability Manuals• Defensive Driving Course Manual National Safety Council

• Commercial Vehicle Preventable Accident Manual J.J. Keller & Associates, Inc.

Useful Resources for Trucking Cases:OP-1 Form

Applicant has access to and is familiar with all applicable U.S. DOT regulations relating to the safe operation of commercial vehicles and the safe transportation of hazardous materials and it will comply with these regulations. At it minimum it:

1. Has in place a system and individual responsible for ensuring overall compliance with the FMCSRs

2. Has in place a driver safety training program

3. Familiar with Regulations governing driver qualification – has in place a system for overseeing qualification requirements (§ 391)

4. Has in place policies/procedures consistent with FMCSRs governing driving and operational safety of motor vehicles including hours of service and vehicle inspection, repair, and maintenance (§ 392, § 395, § 396).

5. Has system for complying with alcohol and drug regulations (§ 382 and Part 40).

Before beginning interstate operations, all authorized motor carriers and brokers must obtain operating authority by submitting the OP-1 Forms.

Useful Resources for Trucking Cases:MCS-150 Form

Application for U.S. DOT Number:

Declaration Statement: “I __________ certify that I am familiar with the Federal Motor Carrier Safety Regulations and/or Federal Hazardous Materials Regulations. Under the penalties of perjury, I declare that the information entered on this report is, to the best of my knowledge and belief, true, correct, and complete.”

Useful Resources for Trucking Cases:Additional Key Resources

• General Truck Safety Information & Regulations

• Federal Motor Carrier Safety Association: www.fmcsa.dot.gov

• Motor Carrier’s Guide to Improving Highway Safety: https://www.fmcsa.dot.gov/safety/carrier-safety/motor-carriers-guide-improving-highway-safety

• FMCSA Driver’s Handbook on Cargo Securement: https://www.fmcsa.dot.gov/regulations/cargo-securement/drivers-handbook-cargo-securement-introduction

• Safety Management System: https://ai.fmcsa.dot.gov/sms/

• North American Fatigued Management Program: http://www.nafmp.com/en/

• Commercial Truck and Bus Safety: http://www.trb.org/Publications/PubsCTBSSPPublications.aspx

C. FMCSA Website Resources:SafeStat/CSA/SMS

The FMCSA Websites provide a number of resources to help determine the basic information and competency of each carrier. There are three different areas on the FMCSA website one can pull safety statistics on carriers.

1. SafeStat: 1998- 2010

2. CSA- 2010- 2014

3. SMS- July 2014- Present

What is CSA?

What is SMS?

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Sample Carrier Overview

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• BASIC: Behavior Analysis & Safety Improvement Categories

• Shows overall BASIC in status, i.e., whether a BASIC has been prioritized for interventions or further monitoring.

• BASIC percentile data is retained and available on the BASIC Detail page.

Overall BASIC Status/Complete SMS Profile

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BASIC Detail Page

• Highlights a carrier’s measure.

• Displays an Intervention Threshold graphic showing the carrier’s percentile in relation to the Intervention Threshold in that BASIC.

• Displays investigation results, i.e., whether Serious Violations have been discovered within the past 12 months.

BASICs and SAFETY RATING & OOS RATES

FMCSA Intervention Thresholds forEach BASIC

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