Trucking Law 101: Call Me Ishmael
April 15, 2012
“ Call me Ishmael,” a simple statement in a book published 160 years ago by American author Herman Melville recognized by many to be one of the Great American Novels in literature. The book, Moby-Dick; or, The Whale, is one man’s story of his voyage on the Pequod, a whaling ship in the 1800’s.
The plot of Moby-Dick is simple. The Pequod, commanded by Captain Ahab, will go on a search and destroy mission against a great white whale, Moby-Dick. This is a simple concept in theory, but a much more difficult to accomplish in the real world.
Captain Ahab is obsessed with revenge against Moby-Dick for maiming him on a previous voyage. This obsession colors his thinking to the point he dooms the Pequod and crew to death, all for revenge against a whale. The book points out the whale has no intentions to harm Ahab or the Pequod, it is only defending itself against destruction as intent is a human emotion. The book is about the obsession of Ahab.
Modern day trucking might be considered the great white whale while U.S. Department of Transportation Secretary Ray LaHood might fill the character of Captain Ahab. Secretary LaHood is obsessed with making trucking a completely, and I mean completely, safe industry. He may find the end of his book to mirror that of Captain Ahab; he sort of gets the whale but loses everything else.
Before you think I do not want your job to be safe and you to get home every time that is just what I want, your safety. The problem with trucking and Secretary LaHood is trucking cannot by its very nature be completely safe. You have large pieces of equipment moving on highways that are not perfect, nor designed perfectly, at up to 70 miles per hour interacting with wind, water and other traffic and of course other people. Collisions in that scenario cannot be prevented, only somewhat managed, yet Secretary LaHood seeks perfection with his regulations.
Perfection is and should be his goal, but common sense dictates he will not reach his goal of perfection. Let’s talk about a couple of his current regulation expected soon and how they might work and what they might do to trucking.
Cell phones, on November 30, 2011, LaHood and the FMCSA published a final rule restricting CMV drivers from using hand-held cell phones. This rule takes effect on December 30, 2011 and prohibits CMV drivers from holding, dialing, or reaching for hand-held phones. The rule does allow the use of hands-free devices and drivers are allowed to push a single button to answer, end or make a call but prohibit any push-to-talk functions on a cell phone. GPS, fleet management systems, and CB Radios are excluded from the rule. However, drivers will be permitted to use a cell phone for emergency services to contact law enforcement to report an accident or drunk driver.
Here is where the fun comes in for the cell phone rule. The use of a hand-held cell phone will be a disqualifying offense for the driver, plus it will also hold the motor carrier responsible for violations committed by their drivers and impose federal penalties. Are you ready for the penalty amounts? They are and I quote; “Any violation of this restriction may result in a civil penalty imposed on drivers in an amount up to $2,750; a civil penalty may be imposed on employers, who fail to require their drivers to comply with FMCSRs, in an amount up to $11,000 (49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and Appendix B, paragraphs (a)(3) and (4)).” As they say on television, “they ain’t playing”. Now may be the time for the new iPhone 4S with Siri, the intelligent assistant that is voice activated that can make calls, send texts, set reminders and search the web. Or any other phone that is voice activated.
What will this do to trucking? I hope it works, I really do, because nothing scares me more than to look over at another driver and see them texting and not watching the road. I slow down, move over, speed up or just about anything to get away from that texting driver. The cost to trucking is minimal and the benefit is great, good job Secretary LaHood.
Another regulation expected to be released before the end of 2011 is the new Hours of Service rules. Rumor has it, and it is only rumor, the new hours will be limited to 10 hours driving; two consecutive nights of rest from midnight to 6am for restarts; may drive only if it has been 7 hours or less since last off-duty period of at least 30 minutes; the rest is unknown at this time.
The problem with the expected new Hours of Service will be loss of productivity; addition truck purchases required; shortage of drivers; increased congestion on the highways just to name a few. The American Trucking Association wrote to DOT about the HOS and stated; “Late last year, DOT’s Federal Motor Carrier Safety Administration FMCSA proposed costly changes to truck drivers’ hours-of-service rules which, if finalized, would result in reduced wages for hundreds of thousands of drivers, significant administrative and efficiency costs for trucking companies, and most importantly, billions of dollars in lost productivity’” ATA Senior Vice President of Policy and Regulatory Affairs Dave Osiecki wrote in a Sept. 2 letter to Sunstein. “These inefficiencies and costs would deal a serious and sustained blow to the huge ‘tangible goods’ economy that trucking supports, affecting not only shippers of freight, but ultimately consumers.”
This next year will be an exciting one for regulations and the economy. My thinking is this can be a great time to be a truck driver or to start a career in trucking. Why? Because the new regulations may open up many thousands of driver jobs, they will also remove the “bad truck driver” from the profession and carriers will have to pay more to their drivers to haul the freight. It will also cost everyone more when they buy things, but as a driver you will be making more money if you can stay out of trouble and keep your CDL clean.
Captain Ahab lost in the end because he became obsessed with one thing and forgot about everything else which cost him the ultimate price. Let’s home Secretary LaHood does not end up as Ahab did but does make your job safer at a reasonable cost.
I do suggest you read or watch Moby-Dick as it is a great story.
Jim C. Klepper is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation’s commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Jim is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Jim, a former prosecutor, is also a registered pharmacist, with considerable experience in alcohol and drug related cases. He is a lawyer that has focused on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking and life over-the-road and has his Commercial Drivers License.
800-333-DRIVE (3748) or www.interstatetrucker.com and www.driverslegalplan.com