Daniel S. Chamberlain
Doehrman & Chamberlain
10333 N. Meridian Street, Suite 100
Indianapolis, Indiana 46290
Toll Free: 800.269.3443
www.tortsLAW.com
Suing a North American Commercial Motor Vehicle Driver and Carrier: United States, Canada and Mexico.
I. Overview: North American Commercial Motor Vehicle Carrier and Operator Statistics.
As of 2009, the United States Department of Transportation issued operational authority to 740,540 motor carriers, comprised primarily of United States carriers, the remaining carriers being Canada based (22,620) and Mexico based (15,014) carriers. Of the Mexico based carriers, only 7,672 carriers have OP-2 operational authority, meaning that such carriers may freely engage in interstate commerce within the entire United States. There are almost 5 million power units and licensed commercial motor vehicle operators in North America.
Out of service rates between North American licensed operators are as follows: United States, 5.9%; Mexico, 1.7%; and, Canada 5.3%. Vehicle out of service rates are reported as follows: United States, 22.2%; Mexico, 17.3%; and, Canada, 13.7%. Canada based carriers have been operating in the United States since 1982 with similar statistics during such commerce.
In 1993, Congress approved the NAFTA (North American Free Trade Agreement) which allowed Mexico based commercial motor vehicle carriers' access to border states and eventually the entire United States. Due to safety concerns, the Clinton Administration postponed implementation of the NAFTA provisions concerning Mexico based carriers by limiting access to the United States within certain commercial zones in Arizona, California, New Mexico and Texas. In 2001, the Bush administration implemented NAFTA's provisions allowing Mexico based carriers access outside of the commercial zones into United States interstate commerce.
II. Federal Motor Carrier Safety Regulations: Uniform Requirements.
In part, the Federal Motor Carrier Safety Regulations require that all operators of commercial motor vehicles in the United States are governed by the same safety standards. All commercial drivers on United States roadways are required (Part 391.11, et. seq.) to comply with the following minimum standards:
(a) A person shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle. A motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle.
(b) A driver must meet the following minimum criteria:
1. Be at least 21 years old;
2. Can 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;
3. Can, by reason of experience, training, or both, safely operate the type of commercial motor vehicle he/she drives;
4. Is physically qualified to drive a commercial motor vehicle;
5. Has a currently valid commercial motor vehicle operator's license issued only by one State or jurisdiction.
6. Has prepared and furnished the motor carrier that employs him/her with the list of violations or the certificate as required by §391.27;
7. Is not otherwise disqualified to drive a commercial motor vehicle under the rules in §391.15; and
8. Has successfully completed a driver's road test and has been issued a certificate of driver's road test in accordance with §391.31, or has presented an operator's license or a certificate of road test which the motor carrier that employs him/her has accepted as equivalent to a road test in accordance with §391.33.
III. United States and Canadian Commercial Carriers: New Entrant Safety Program.
A commercial carrier must request authority to operate a commercial motor vehicle in interstate operation. A new request for Department of Transportation authority, must comply with the terms and conditions of Part 385, Subpart A, Safety Fitness Procedures. In part, all motor carriers (with the exception of Mexico based operations) seeking authority are deemed a "new entrant" and as such, probationary authority may be issued for an 18 month period. During the 18 month period, a safety audit will be conducted by the Federal Motor Carrier Safety Administration to determine whether a satisfactory safety rating has been achieved.
To meet the safety fitness standard, the motor carrier must demonstrate it has adequate safety management controls in place, which function effectively to ensure acceptable compliance with applicable safety requirements to reduce the risk associated with:
(a) Commercial driver's license standard violations (Part 383),
(b) Inadequate levels of financial responsibility (Part 387),
(c) The use of unqualified drivers (Part 391),
(d) Improper use and driving of motor vehicles (Part 392),
(e) Unsafe vehicles operating on the highways (Part 393),
(f) Failure to maintain accident registers and copies of accident reports (Part 390),
(g) The use of fatigued drivers (Part 395),
(h) Inadequate inspection, repair, and maintenance of vehicles (Part 396),
(i) Transportation of hazardous materials, driving and parking rule violations (Part 397).
(j) Violation of hazardous materials regulations (Parts 170 through 177), and
(k) Motor vehicle accidents and hazardous materials incidents.
As of December 16, 2009, the FMCSR raised the standard for passing the new entrant safety program (Part 385.301, Subpart D). The FMCSA identified 16 regulations that are essential elements of basic safety management controls necessary to operate in interstate commerce and makes a carrier's failure to comply with any of the 16 regulations an automatic failure of the safety audit. The purpose of the strengthened regulations are to identify at-risk new entrant carriers and ensure deficiencies in basic safety management are corrected before permanent registration is granted. Such strengthened regulations include:
Table to § 385.321(b)
Violations That Will Result in Automatic Failure of the New Entrant Safety Audit
Violation Guidelines for Determining Automatic Failure of the Safety Audit
1. § 382.115(a)/§ 382.115(b)-Failing to implement an alcohol and/or controlled substances testing program (domestic and foreign motor carriers, respectively). Single occurrence.
2. § 382.201-Using a driver known to have an alcohol content of 0.04 or greater to perform a safety-sensitive function. Single occurrence.
3. § 382.211-Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382. Single occurrence.
4. § 382.215-Using a driver known to have tested positive for a controlled substance. Single occurrence.
5. § 382.305-Failing to implement a random controlled substances and/or alcohol testing program. Single occurrence.
6. § 383.3(a)/§ 383.23(a)-Knowingly using a driver who does not possess a valid CDL. Single occurrence.
7. § 383.37(a)-Knowingly allowing, requiring, permitting, or authorizing an employee with a commercial driver's license which is suspended, revoked, or canceled by a State or who is disqualified to operate a commercial motor vehicle. Single occurrence.
8. § 383.51(a)-Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a commercial motor vehicle. Single occurrence.
This violation refers to a driver operating a CMV as defined under § 383.5.
9. § 387.7(a)-Operating a motor vehicle without having in effect the required minimum levels of financial responsibility coverage. Single occurrence.
10. § 387.31(a)-Operating a passenger carrying vehicle without having in effect the required minimum levels of financial responsibility. Single occurrence.
11. § 391.15(a)-Knowingly using a disqualified driver. Single occurrence.
12. § 391.11(b)(4)-Knowingly using a physically unqualified driver. Single occurrence.
This violation refers to a driver operating a CMV as defined under § 390.5.
13. § 395.8(a)-Failing to require a driver to make a record of duty status. Requires a violation threshold (51% or more of examined records) to trigger automatic failure.
14. § 396.9(c) (2)-Requiring or permitting the operation of a commercial motor vehicle declared "out-of-service" before repairs are made. Single occurrence.
15. § 396.11(c)-Failing to correct out-of-service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again. Single occurrence
IV. Standards Concerning Mexico Based Carriers.
All Mexico based carriers must comply with Subpart B, 385.101, which provides provisional operating authority, either within certain border areas (commercial zones) or outside of such areas. Provisional operating authority will be revoked as a result of failure to ensure basic safety management controls. All Mexico based carriers are subject to a safety oversight program ensuring compliance with the Federal Motor Carrier Safety Regulations, Federal Motor Vehicle Safety Standards and Hazardous Materials Regulations. In part, such rules require that each Mexico based commercial motor vehicle undergo an inspection by a United States inspector, receive and display a compliance sticker and a safety audit and compliance audit within 18 months of provisional authority.
An expedited audit or compliance action may be ordered against a Mexico based carrier if any of the following occur:
1. Using drivers not possessing, or operating without, a valid Licencia Federal de Conductor. An invalid Licencia Federal de Conductor includes one that is falsified, revoked, expired, or missing a required endorsement.
2. Operating vehicles that have been placed out of service for violations of the Commercial Vehicle Safety Alliance (CVSA) North American Standard Out-of-Service Criteria, without making the required repairs.
3. Involvement in, due to carrier act or omission, certain hazardous material incident(s) within the United States.
4. Using a driver who tests positive for controlled substances or alcohol or who refuses to submit to required controlled substances or alcohol tests.
5. Operating within the United States a motor vehicle that is not insured as required by part 387.
6. Having a driver or vehicle out-of-service rate of 50 percent or more based upon at least three inspections occurring within a consecutive 90-day period.
7. Failure to respond to an agency demand for a written response demonstrating corrective action within 30 days will result in the suspension of the carrier's provisional operating authority or provisional Certificate of Registration until the required showing of corrective action is submitted to the FMCSA.
However, a satisfactory response to a written demand for corrective action does not excuse a carrier from the requirement that it undergo a safety audit or compliance review, as appropriate, during the provisional registration period.
During the provisional registration period, Mexico based carriers are subject to the same safety audit and compliance review as other registrants. A specific concern as to safety protocols and carrier management are the benchmark on passage of the same. A satisfactory rating is mandatory to continued operation in the United States. A conditional rating will initiate a revocation process at the end of the 18 month probationary period, whereas an unsatisfactory rating will trigger an immediate suspension and revocation period. If, at the end of this 18-month period, the carrier's most recent safety audit or safety rating was satisfactory and no additional enforcement or safety improvement actions are pending, the Mexico-domiciled carrier's provisional operating authority or provisional Certificate of Registration will become permanent.
V. Minimum Insurance Requirements: Part 387.7.
No motor carrier shall operate a commercial motor vehicle on United States roadways without minimum insurance coverage. All policies of insurance shall be binding and valid, cancellable by the insurer or insured with 35 days written, advance, notice. However, a Mexico based carrier may obtain insurance coverage for periods of 24 hours or more provided operation solely within border municipalities or commercial zones. If such interim policies are obtained, Mexican carriers must have the following available for inspection in each of its vehicles:
1. Certificate of Registration;
2. Required insurance endorsement (MCS-90);
3. Insurance identification information clearly identifying effective and termination date and time, as well as insurer information.
As of December 16, 2009, non-North American-domiciled private and for-hire motor carriers shall file evidence of financial responsibility with the FMCSA in accordance with the requirements of subpart C, 387.301 et seq.
Schedule of limits (Public liability)
Type of carriage Commodity transported January 1, 1985
(1) For-hire (In interstate or foreign commerce, with a gross vehicle weight rating of 10,001 or more pounds). Property (nonhazardous). $ 750,000
(2) For-hire and Private (In interstate, foreign, or intrastate commerce, with a gross vehicle weight rating of 10,001 or more pounds). Hazardous substances, as defined in 49 CFR 171.8, transported in cargo tanks, portable tanks, or hopper-type vehicles with capacities in excess of 3,500 water gallons; or in bulk Division 1.1, 1.2 and 1.3 materials. Division 2.3, Hazard Zone A, or Division 6.1, Packing Group I, Hazard Zone A material; in bulk Division 2.1 or 2.2; or highway route controlled quantities of a Class 7 material, as defined in 49 CFR 173.403.
$5,000,000
(3) For-hire and Private (In interstate or foreign commerce, in any quantity; or in intrastate commerce, in bulk only; with a gross vehicle weight rating of 10,001 or more pounds). Oil listed in 49 CFR 172.101; hazardous waste, hazardous materials, and hazardous substances defined in 49 CFR 171.8 and listed in 49 CFR 172.101, but not mentioned in (2) above or (4) below. $1,000,000
(4) For-hire and Private (In interstate or foreign commerce, with a gross vehicle weight rating of less than 10,001 pounds). Any quantity of Division 1.1, 1.2, or 1.3 material; any quantity of a Division 2.3, Hazard Zone A, or Division 6.1, Packing Group I, Hazard Zone A material; or highway route controlled quantities of a Class 7 material as defined in 49 CFR 173.403.
$5,000,000
Pursuant to the terms and conditions of Part 387.11, the issuance of a policy of insurance or surety bond is only effective if the insurer is legally qualified (Part 387.315):
1. To issue such policies or bonds in each State in which the motor carrier operates; or,
2. To issue such policies or bonds in the State in which the motor carrier has its principle place of business AND is willing to designate a person upon whom legal process may be made; or,
3. To issue such policies or bonds in any State, is eligible as an excess lines carrier AND is willing to designate a person upon whom legal process may be made.
Should you or a family member have a question about a serious personal injury or wrongful death caused as a result of a semi tractor-trailer crash, feel free to contact Indianapolis, Indiana crash attorney, Dan Chamberlain, also admitted in North Carolina to represent the families of the wrongfully injured or killed. 800-269-3443.
Doehrman & Chamberlain
10333 North Meridian Street Suite 100
Indianapolis, Indiana 46290