The Federal Motor Carrier Safety Administration (FMCSA) has been actively encouraging local law enforcement agencies to become actively involved in commercial motor vehicle enforcement. Unfortunately, this does result in uneven enforcement practices and oftentimes truckers being cited for violations that are not violations. That happened with one of our members who was cited by the Culver City P.D. for not having used bungie cords or rip-ties to keep his chain binder from popping open. The following are state and federal responses to the citation received by our member:
CHP AND FMSCA vs. Culver City Police Department
(1) Load Securement – Is a binder required as a secondary means of securement? For example, bailing wire or to even have the excess chain wrapped around the binder so the binder doesn’t come loose? The answer is “NO”.
The “no” is according to both the California Highway Patrol (CHP) Commercial Division in Sacramento and the United States Department of Transportation (DOT). We asked both the CHP and DOT to weigh in on this issue after one of our members received a citation for exactly this reason. (Captain Steve Dowling was head of the CHP Commercial Division when this incident took place.)
We received CHP Captain Dowling’s letter explaining that this secondary point of securement was not necessary which appeared to resolve this misunderstanding.
From CHP Captain Dowling (since promoted within the Department):
Title 49 of the Code of Federal Regulations, Part 393.104(f)(3) states: “Each tie-down must be attached and secured in a manner that prevents it from becoming loose, unfastening, opening, or releasing while the vehicle is in transit”.
There is no need for any secondary securement mechanism to be present on a tie-down to satisfy the requirements of this section. As long as the tie-down meets the performance criteria stated in the section above, the requirements of this section have been met.
I trust this has adequately addressed your concern. Should you desire any further information regarding this matter please contact Officer Earl Nattrass, of my staff, at (916) 843-3400.
S. B. DOWLING, Captain
Commander, Commercial Vehicle Section
When the response from CHP was shared with the Culver City police officer he had this to say when we gave him the guidance letter, “I don’t care what the CHP has to say. DOT rules require the use of bailing wire or the equivalent. It’s in Title 49, CFR 393.104(f)(3).” Obviously, this officer was not going to back down until we got U.S. DOT to weigh in on the issue.
So, I called FMSCA in Sacramento. FMSCA said they were going to follow the CHP’s lead since the CHP are the enforcement arm for U.S. DOT in California. The following was their response:
I reviewed the copy of the citation you sent and noted it is a bit vague on the issue. I did note the officer referenced 49 CFR 393.104(f) (3) noting the center over binder not secured. I also noted in your emails you said the officer believes a tie-wire, center over binder is needed to satisfy our rule. 49 CFR 393.104(f)(3) states: “Each tie-down must be attached and secured in a manner that prevents it from becoming loose, unfastening, opening or releasing while the vehicle is in transit.” I do not see any reference to the need for a secondary or over center binder. If the binder is in good condition and attached properly should not come loose.
Please let me know if I have answered your question.
Mickael (Mike) Gouweloos
U.S. DOT – FMCSA, California Division
FMCSA’s response will be forwarded to Culver City and the Santa Monica Courthouse. Just as a matter of clarification, California does mirror the Title 49 CFR 399.104.
(2) Load Securement (another) – All hydraulic attachments on equipment are required to be safely secured with a separate chain during transport. If you fail to do this, you will be cited.
There have been several drivers cited under California Vehicle Code (CVC) 34506.3 for failing to secure the hydraulic with a chain after being lowered to the deck, hydraulic pressure released, and safely secured with a separate chain. This applies to all hydraulic attachments such as an excavator bucket so it does not kick into gear while in transport and raise thereby possibly causing major bridge or overhead damage.
Title 13, California Code of Regulations, Section 1300, which adopts and references the loading regulations set forth in 49 Code of Federal Regulations, Section 393.30 (b) (2).
Make sure you know exactly what you are being cited for (or at least what the officer will be putting in his report). Recently, we had a member stopped for no permit on the Pacific Coast Highway (PCH) at the end of the I-10 Freeway.
What we are seeing more and more is that local agencies are writing multiple violation citations for exactly this. You may never know unless you are going to take your case to trial and you have an attorney in court with you. As mentioned, our member was stopped and cited for not having a Caltrans Transportation Permit for the section of PCH where I-10 ends and becomes PCH. This is a Red Route which is restricted travel on an Annual Permit of 12’ wide, 14’ high and 65’ in length using your 5–axle Annual Permit.
So, what the police officer had done was exactly what CVC 42031 states you cannot do. The problem is that the court relies too much on the officer’s report because the court believes that the officer knows everything. In this case, the officer stated in his report, “After isolating each axle and axle group (s),not only am I able to find a single axle weight violation, but I am able to find axle group(s) violations and over all bridge weight violation.”
It is important to know that prior to court, the citing officer had already spoken to the City Attorney. The officer and the City Attorney came to an agreement that if we plead guilty to the first weight charge of being 40,246 lbs. overweight, they will dismiss the second weight violation. But, according to CVC 42031, they can only issue a single weight violation when there are other weights involved. The fine is $34,000.
CVC 42031: Whenever the gross weight and any axle or wheel weight of a vehicle are in excess of the limits prescribed in this code, the excess weights shall be deemed one offense in violation of this code.
The Officer also makes the point several times in his report that “no part of the fine shall be suspended.” So, you do not realize this until you are in court because the ticket is the owner’s responsibility and it is mailed to the owner.
CVC 42030 (3) (d): Notwithstanding any other provision of this section, the court may exercise discretion with respect to the imposition of the fine under this section if any applicable local permit was obtained prior to the court hearing and, at the time of issuance of the notice to appear, the motor carrier was transporting construction equipment or materials and a valid extra-legal load permit from the Department of Transportation was in effect.
The Southern California Contractors Association authored this through Warren Mendel when he was with SCCA. We find it still helping our members today.
Please give me a call if you need help with any of these types of issues.