OVERVIEW OF RECENT DEVELOPMENTS IN MOTOR CARRIER REGULATION - PowerPoint Presentation

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OVERVIEW OF RECENT DEVELOPMENTS IN MOTOR CARRIER REGULATIONSA PEEK INTO THE FUTURE

TRANSPORTATION & LOGISTICS COUNCIL 2013 Annual ConferenceApril 22, 2013San Diego, CaliforniaSlide2

History of Electronic On-Board Recorders

1985: FHWA issues waivers allowing electronic recordkeeping of duty status1986: FHWA begins rulemaking to allow electronic recordkeeping of hours of service1988: FHWA adopts final rule allowing use of Automatic On-Board Recording Devices (AOBRDs) 49 C.F.R. § 395.16Slide3

History of Electronic On-Board Recorders

2003: FMCSA adopts final rule, but does not impose mandatory EOBR use 68 Fed. Reg. 22456 (Apr. 28, 2003)2004: U.S. Court of Appeals vacates 2003 Final Rule; requires FMCSA to collect and analyze data on costs and benefits of EOBR mandate Public Citizen v. FMCSA, 374 F.3d 1290 (D.C. Cir. 2004)Slide4

Recent Rulemaking Proceedings

2007: FMCSA issues first Notice of Proposed Rule-Making to address EOBR issue 72 Fed. Reg. 2339 (Jan. 18, 2007)2010: FMCSA issues first Final Rule (EOBR-1) 75 Fed. Reg. 17208 (Apr. 5, 2010)EOBR-1 targets carriers with poor Hours of Service recordsSlide5

Recent Rulemaking Proceedings

EOBR-1 Vacated OOIDA v. FMCSA, 656 F.3d 580 (7th Cir. 2011)FMCSA failed to address driver harassment, other issues 49 U.S.C. § 31137(a) FMCSA withdraws EOBR-1 final ruleSlide6

Recent Rulemaking Proceedings

2011: FMCSA issues second Notice of Proposed Rule-Making regarding EOBRs (EOBR-2) 76 Fed. Reg. 5537 (Feb. 1, 2011)EOBR-2 requires EOBR us by all carriers required to keep paper logs, including passenger carriers, but excluding 100-mile driversSlide7

EOBR RequirementsEOBRs must be configured to track information in paper logs – duty status, date/time, position

EOBR data cannot be alteredEOBR data must keep 7 days of data, plus current dayEOBRs must provide instructions for law enforcement accessSlide8

EOBR RequirementsDriver must maintain paper logs in case of malfunction

Driver must still maintain supporting documentsFMCSA may ease supporting document requirements for driving duty status, but continue requirement for On Duty-Not Driving and Sleeper Berth duty statusSlide9

EOBR RequirementsNPRM is not especially specific as to configuration of EOBR

However, §§395.15-.18, and Appendix A provide specifics for voluntary EOBRsMust allow officials to immediately check driver status, and must provide detailed instructions to law enforcementMust display key information (395.16(n))Support systems at MC’s principal place of business of driver home terminal must provide summary of activityEOBRs must conform to standards of ANSI, NBS, IEEE; USB-IF (395.18(a))Slide10

EOBR RequirementsEOBR must provide (395.15):

Duty status following lines 1-4 of paper logLocation of duty status changeID of all drivers for team operations and ID of who is drivingInformation on how to recover dataManufacturer certification that EOBR design has been tested to meet FMCSR requirementsTamper-proof, as is practicalVisual and audio warning of malfunctionInformation must replicate capability of paper logsSlide11

EOBR Requirements395.16 (l):

Location must be noted to nearest city, village or town for each change of dutyNo greater than 60 minute intervalsLook out for GPS glitches -- names of towns can be vagueSatellites are prescribedDriver name duty status, date and time, distance traveled, ID of MC and CMVJust what you’d expectAfter stationary for 5 minutes –- default to on-duty not drivingSlide12

EOBR RequirementsDriver must affirmatively review information before submitting record

Drivers must be adequately trained in use and operationMC must maintain back-up copy of electronic HOS in a different location than originalIf FMCSA determines MC has permitted violations or tampered with device, authority to use EOBR can be revoked and paper logs will be requiredIf CMV is used for personal conveyance, that must be noted before trip startsSlide13

EOBR RequirementsAuthority to use EOBR is granted under 395.16(a)

Driver is able to make annotations on hard copy of EOBR printout (legible)Current day and 7 prior days must be producedIf EOBR fails (more than 5 minutes), driver must note it within 2 days and be able to reconstruct 8 daysGo to paper logs after failureDriver must submit and certify HOS within 3 days of completionDriver input can only occur at restSlide14

In FavorLarge CarriersATANPTC

TCAAlliance for Driver Safety & SecurityReaction to EOBR Regulations

Opposed

Small Carriers

Owner-Operators

OOIDASlide15

Concerns about cost, upkeep, burden on smaller carriers and owner-operatorsConcerns about Mexican trucks

U.S. will pay for and own Mexican EOBRs; will be reimbursed when rulemaking goes into effectReaction to EOBR RegulationsSlide16

2012 Highway Appropriations BillFMCSA must develop a rule requiring EOBR use within one yearAmendment to bill prohibits federal funding for EOBR mandate

Commercial Driver Compliance Improvement Act (Senate Bill 695)Requires integration of EOBR into ECMRecent Developments in EOBR RegulationSlide17

Litigation and evidentiary considerations:SpoliationNot complying with records policiesWhy not add more data?

Pandora’s box?May help “logs not current” violationsPractical ConsiderationsSlide18

Practical ConsiderationsThere is currently no EOBR rulemaking in place

Possible supplemental NPRM in 7/13Agency has announced it ill not meet 9/13 deadline in Maps 21 for EOBRsSlide19

National Registry of Certified Medical Examiners

Effective 5/13/12390.101-115New specialized licensureMust complete training program (9390.105)Must pass exam (390.107)Recurrent training (390.111(a)(5))All trainers and programs must be certified by a recognized acreditting organization and coordinate with FMCSASlide20
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Hours of ServiceLink to Rulemaking

http://www.fmcsa.dot.gov/rules-regulations/topics/hos/index.htmOral argument in DC Circuit was 3/15/13(Effective Date of Rulemaking is 7/1/13)FMCSR HAS SAID THERE WILL BE NO DELAY OF IMPLEMENTATIONSlide23

Caution Urged in the Use of SafeStat Data

WARNING: Because of State data variations, FMCSA cautions those who seek to use the SafeStat data analysis system in ways not intended by FMCSA. Please be aware that use of SafeStat for purposes other than identifying and prioritizing carriers for FMCSA and state safety improvement and enforcement programs may produce unintended results and not be suitable for certain uses.Slide24

SafeStatU.S. Inspector General Opinion

“Consequently, while SafeStat is sufficient for internal use, its continued public dissemination and external use require prompt corrective action.”Slide25

SafeStat and Safer in Court

Evidence Admissible in Favor of PlaintiffsAt least two courts permitted evidence re: negligent hiring claimsJones v. C.H. Robinson Worldwide, Inc.Schramm v. FosterEvidence admissible in favor of Motor CarrierFike v. PeaceSmith v. Spring HillSlide26

CSA 2010Created in response to criticism of SafeStat and SAFER

Three ratingsContinue to operateMarginalUnfitSlide27

CSA 2010/CSAFocus on evaluating and targeting “behaviors” which affect safety

Through use of web based technology and data reports from states, FMSCA can more effectively evaluate safety and at risk motor carriers and driversSlide28

CSA 2010/CSA

Seven BASICS (Behavior Analysis and Safety Improvement Categories)Unsafe driving (1-5 mph speeding violations removed)HOS compliance (fka Fatigued Driving HOS)Driver fitnessDrugs/alcoholVehicle maintenance (now includes all non-HazMat cargo issues)HazMatCrashes (not available to the public)Slide29

CSA 2010/CSAAdmissibility

CSA disclaimer – Data not meant for litigationUnreliability of dataUse SAFER/SafeStat cases for arguments against admissibilitySlide30

The key changes that FMCSA will make to the SMS public website by March 25, 2011 are as follows:

Replace any ALERT symbol currently displayed in orange on the SMS website with the following symbol of the exclamation mark inside a gold triangle .

Revise the disclaimer language on the SMS website to read:

"The data in the Safety Measurement System (SMS) is performance data used by the Agency and enforcement community. A symbol, based on that data, indicates that FMCSA may prioritize a motor carrier for further monitoring. The symbol is not intended to imply any federal safety rating of the carrier pursuant to 49 USC 31144. Readers should not draw conclusions about a carrier's overall safety condition simply based on the data displayed in this system. Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 CFR Part 385, or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation's roadways. Motor carrier safety ratings are available at

http://safer.fmcsa.dot.gov

and motor carrier licensing and insurance status are available at

http://li-public.fmcsa.dot.gov

."

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Mexican Trucking Program1993-NAFTA was approved, however President Clinton declined to implement full open border policy with MexicoSlide32

Mexican Trucking ProgramAnnounced February 23, 2007; permitted by FMCSR Part 381

Allowed limited number of Mexican-based trucks to travel throughout the United StatesMexican motor carriers held to identical standards as U.S. CarriersDOT inspectors in MexicoTruckload – no LTLU.S. InsurersSlide33

Mexican Trucking Program2004 –Supreme Court of U.S. holds that Mexican/U.S. cross-border provisions of NAFTA can move forward

Heavy opposition from Congress, Teamsters, Interest GroupsSlide34

Mexican Trucking Program

Early 2009 Obama Administration and Congress cease funding programMexico retaliated with tariffsDeal reached – program reinstated, tariffs removedInterest Groups and hostile legislators are still opposed – Teamsters and OOIDA have sued againEOBRs paid for by U.S.As of 11/18/11 26 Mexican motor carriers have appliedSlide35

Mexican Trucking ProgramOn Friday, 4/19/13 the D.C. Circuit rejected Teamster/OOIDA challenges to the program

Mexican truck program complies with all applicable law and can proceedTeamsters v. DOT – Case No. 11-1444OOIDA v. DOT – Case No. 11-1251Slide36

Hand-Held Mobile Telephones Banned: 1/3/12

FMCSR §390.5: Definition of use of hand-held mobile telephone: Using at least one hand to hold a mobile telephone to conduct a voice communication;Dialing or answering a mobile telephone by pressing more than a single button; orReaching for a mobile telephone in a manner that requires a driver to maneuver so that he or she is no longer in a seated driving position, restrained by a seat belt that is installed in according with 49 CFR 393.93 and adjusted in accordance with the vehicle manufacturer’s instructions.Slide37

Hand-Held Mobile Telephones

Ban includes texting on mobile devicesNote: the “single button” rule will be difficult to comply withSlide38

FMCSR §392.82: Statement of Prohibited and Allowed Conduct

No driver shall use a hand-held mobile telephone while driving a CMVNo motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMVDriving means operating a CMV on a highway, including while temporarily stationery … does not include when driver has moved to side of, or off, a highway, or halted in a location where the vehicle can safely remain stationeryEmergency exception: Permissible when necessary to communicate with law enforcement or other emergency services. Slide39

Hand-Held Mobile Telephones: Penalties

Commercial drivers will face fines up to $2,750 for using phones, and revocation or suspension of their commercial driver’s license for second and subsequent offensesEmployers who allow drivers to use phones while driving face up to $11,000 in finesSlide40

Hand-Held Mobile Telephones

CSA Motor Carrier Score Implications:Five texting and cell phone use violations will now contribute to highest (10 points) weighted severity to carrier’s numerical rankings in the Unsafe Driving Behavior Analysis and Safety Improvement Score (BASIC)Violations include two each relating to operating a commercial motor vehicle while texting and operating a CMV while using a hand-held mobile telephone. The fifth violation applies to motor carrier safety procedures assigning a 10-point severity weighting to carriers’ “allowing or requiring driver to sue a hand-held mobile telephone while operating a CMV.”Slide41

Hand-Held Mobile TelephonesLink to Rulemaking

http://www.gpo.gov/fdsys/pkg/FR-2011-12-02/html/2011-30749.htm Slide42

The FutureCSA

“Fault”Or preventability (385.3)Accident “could have been averted but for an act or failure to act by M/C or DriverOpen ended – not tort faultSlide43

The FutureBroker regulation?

Bond raised to $75k – 10/13Shipper regulation?FMCSA 5-year plan 2012-2016Shippers and Brokers: http://www.fmcsa.dot.gov/documents/STRATEGIC-PLAN/FMCSA_StrategicPlan_2012-2016.pdfSlide44

The Future: FMCSA Strategic Plan

“FMCSA will achieve its goal to maintain high safety standards to remain in industry by identify gaps in resources and authorities that prevent FMCSA from reaching certain elements of the CMV transportation life-cycle (e.g. entities touching highway movement of freight: shippers, receivers, brokers, freight forwarders) that may have a detrimental effect on safety through their actions.”Slide45

The Future: FMCSA Strategic Plan

“Further, the Agency will create a comprehensive prioritization system based upon safety and risk analysis to drive FMCSA intervention efforts. This will include a single, unified, prioritization list based upon easily updateable algorithms that cover each segment of our regulated industry, e.g., passenger, HAZMAT property, and HHG carriers, as well as shippers, including intermodal freight, brokers, drivers, and cargo tank manufacturers or repair facilities. This system will also necessitate improving the tools regulated entities need to proactively track, measure, and improve their own safety performance.”Slide46

Thank You!

Joe Pappalardo jpappalardo@gallaghersharp.com