FMCSA Rescinds Longstanding CMV Driver Record Of Violations/Certification Reporting And Recordkeeping Rule

By Gerald D. Borovick

 

The FMCSA is rescinding the longstanding driver “record of violations” reporting rule.[1]  After May 8, 2022, neither the motor carrier employer or driver will be required to complete and maintain the annual written driver certification as to the existence of traffic violations resulting in convictions or forfeited bond or collateral.  Further, elimination of the rule also removes it as a “critical violation” cited by FMCSA in compliance investigations following safety fitness reviews (audits).[2]

Previously, the way the rule worked, all drivers of commercial motor vehicles (CDL and non-CDL drivers) were required to, at least once every 12 months, prepare and furnish the motor carrier with a list of all violations of motor vehicle traffic laws and ordinances for which driver has been convicted or has forfeited bond or collateral during the preceding twelve months.[3]  If there were no reportable violations, the driver would still be required to furnish a certification to that effect.  Typically, the motor carrier used the record of violation certification form suggested by the FMCSA in 49 CFR 391.27(c).  The rule also required that the motor carrier retain a list of the driver violations or certification of no violations (in either case using the same form), in the driver qualification file.  By removing the record of violation rule, FMCSA eliminates a motor carrier and driver recordkeeping and reporting requirement in the Federal Motor Carrier Safety Rules (FMCSRs).

What Has Not Changed

CDL drivers are still required to inform their employers of all traffic convictions in any type of vehicle within 30 days.

Driver applicants are still required to provide certain conviction information to prospective employers on employment applications.

Convictions for driving while intoxicated and driving under the influence continue to be reportable for CDL drivers and for all driver applicants.

Motor carriers continue to be responsible for making inquiry to obtain and then review the motor vehicle record of each driver it employs at least annually.

Motor Vehicle Records (MVRs)

The rulemaking also changes where and how a motor carrier is required to obtain and maintain MVRs.  It expands the query to include Mexico and Canada.  It also eases the administrative burden by eliminating the requirement that the motor carrier certify that no record exists for a driver in a jurisdiction checked where the State Drivers’ License Agency (and now Canada and Mexico) fails to respond to the query, so long as, the motor carrier makes an adequate record documenting the “good faith effort” to obtain the MVRs in the first place.  An example of a case where a local trucking company was tripped up on this and other FMCSRs, is described in our article here.  In the Sorreda Transport case, the First Circuit Court of Appeals ruled the carrier failed to meet its burden of proving a “good faith effort” to get the MVRs where it delegated the background check to its insurance broker.

FMCSA’s Stated Justification

The FMCSA’s justification for the rulemaking was to remove a burdensome recordkeeping requirement which did not yield a safety benefit in part, because FMCSA determination that in practice the accuracy of the annual report of convictions or certification of no convictions was based on the driver’s memory and truthfulness.

The FMCSA argues the change to qualification of motor carrier employees, by elimination of the annual list of violations is consistent with the safe operation of CMVs.  It argues safety is not diminished because the required traffic violations on the employment application for drivers, reporting requirements of CDL drivers and required annual MVR check in combination are a more accurate depiction of a driver’s traffic conviction history.

Closing Thoughts

The FMCSA notes an employer is free to adopt its own policy requiring drivers to provide a list of traffic convictions as a condition of employment.  Again, after May 8, 2022, this will not be a legal requirement in the FMCSRs.  Such an undertaking should be carefully considered, in light of the company’s culture and other factors.

The following case summary illustrates the point.  Company policies concerning motor vehicle safety which are not based on a rule of law can have an unintended effect of establishing a basis for affixing vicarious liability in a case involving motor vehicle homicide based on negligent operation.  The Supreme Judicial Court of Massachusetts has ruled that non-compliance employer’s company policy requiring all CMVs to be equipped with back up alarms at all times which sound when in reverse to alert non-occupants to get out of the driver’s blind-spot was used to find the employer guilty of vehicular homicide.[4]  In the case, the back up alarm on a 10-wheel dump truck failed; was noted by the driver; the mechanic didn’t have a spare horn in stock; and the driver continued to operate the truck; killing a police officer on a detail by backing over him.  The Commonwealth was only required to prove the driver operated the truck negligently.  In this case, even where it was admitted that the employer’s policy requiring a back up alarm on a CMV was not required by statute, where such policy mandated each truck to have one, the operator’s violation of his employer’s rule, intended to protect the safety of third persons, was evidence of the employee’s negligence, for which the employer was held liable.  In this case, the employer’s policy was applied to hold the employer vicariously liable for the employee’s negligence.

Takeaway

One can imagine a circumstance where the company has a policy of requiring its drivers to at least annually report convictions but because there is no legal requirement under the FMCSRs, its enforcement falls out of use over time.  One can further imagine a motor vehicle crash involving a CMV allegedly caused by reckless operation.  Counsel can be expected to argue the company should be vicariously liable in that the company had a safety policy, the driver violated it by earlier failing to report a conviction for reckless driving, the company safety manager admits in deposition that had the policy been enforced requiring the driver to reveal his driving conviction, the driver would have not been operating the CMV.

The takeaway is that the motor carrier needs to be mindful that its company policies involving safety of operation should be enforced uniformly for the policy to be effective and protect the company’s interests.

Dated: Sudbury, MA

March 17, 2022

Andresen & Borovick, LLP

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Sudbury, Massachusetts 01776
www.abmasslaw.com
Tel:  (978) 443-6868
borovick@abmasslaw.com

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[1] In Matter Record of Violations, Dock. No. FMCSA-2018-0105 (FR) 87 Fed. Reg. 13192 (Mar. 9, 2022).

[2] A “critical violation,” also known as a pattern of occurrence violation, is triggered by a pattern of noncompliance related to the motor carrier’s management or operational controls that is found during an investigation.  A pattern of noncompliance with a critical regulation exists when the number of violations of the cited rule equals 10 percent or more of the records examined.  In Matter BMC Trucking Inc., Dock. No. FMCSA-2017-0285 (Final Order on Petition for Administrative Review) sv’d 4-6-18, at 2.

[3] Parking tickets were excluded.  See 49 CFR § 391.27(a).

[4] Com. v. Angelo Todesca Corp., 446 Mass. 128 (2006)