MOTOR CARRIERS (ENTRY LEVEL DRIVER CDL STANDARDS) / Federal Motor Carrier Safety Administration (FMCSA) had in 2007 issued notice of proposed rulemaking, “that proposed new entry-level driver training standards for individuals applying for a commercial driver’s license (CDL) to operate commercial motor vehicles (CMVs) in interstate commerce”. FMCSA hereby withdraws that proposal because: MAP-21 instructs FMCSA to consider new entry level CDL requirements; so FMCSA thinks it best to start on this issue anew.

“Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators” 

Notice of Withdrawal. September 19, 2013.

Lesson #1: The FMCSA sees this issue as very consequential, not least because Congress recently in MAP-21 saw fit to put it on FMCSA’s agenda anew. 

Lesson #2: Because FMCSA had taken an earlier stab at this question pre-MAP-21, FMCSA responded to MAP-21 by taking a completely fresh effort at the minimum training requirements for entry-level CDL drivers.

MOTOR CARRIERS (PASSENGER) / Federal Motor Carrier Safety Administration (FMCSA) FMCSA “proposes to adopt regulations governing the lease and interchange of passenger-carrying commercial motor vehicles (CMVs)”. The point: Identify the motor carrier who is actually operating the particular CMV (mostly inter-city buses) so as to make clear who exactly is responsible for compliance with all applicable safety regulations.

“Lease and Interchange of Vehicles; Motor Carriers of Passengers”

Notice of Proposed Rulemaking. September 20, 2013.

This goes to a problem the FMCSA has long been concerned with: the so-called “phantom” carrier, who accrues violations under a particular operating certificate and name, and then makes use of another name and perhaps operating certificate under which to continue its unsafe operations unsanctioned. 

RAILROADS & HAZARDOUS MATERIALS / Implementing the MAP-21 statute enacted in 2012, the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Administration (PHMSA) amend both the Federal Motor Carrier Safety Regulations and Hazarouds Materials Regulations, “to prohibit a driver of a commercial motor vehicle or of a motor vehicle transporting certain hazardous materials or certain agents or toxins (hereafter collectively referenced as ‘regulated motor vehicle’) from entering onto a highway-rail grade crossing unless there is sufficient space to drive completely through the grade crossing without stopping”.

“Highway-Rail Grade Crossing; Safe Clearance”

Final Rule. September 25, 2013. 

This is a major development in an area of much safety concern over accidents and also a much-litigated matter in tort cases.

The background here is detailed and complex.

Among other implications: The PHMSA and FMCSA standard set forth here will likely be incorporated into negligence standard of care instructions to juries and to judges as finders of fact under a “negligence per se” theory.

MOTOR CARRIER (BROKERS & FREIGHT FORWARDERS) / Federal Motor Carrier Safety Administration “announces guidance concerning the implementation of certain provisions of the Moving Ahead for Progress in the 21st Century Act (MAP-21) concerning persons acting as a property broker or a freight forwarder” – including new financial security requirements for property brokers and freight forwarders.

“Registration and Financial Security Requirements for Brokers of Property and Freight Forwarders 

Notice. September 5, 2013.

“FMCSA has received a number of requests from motor carriers and other transportation companies requesting additional information about when registration as a broker or freight forwarder is required. The Agency has compiled a list of the most common questions and our responses and presents the information below in question-and-answer format. Continue reading

ENFORCEMENT (MOTOR CARRIERS) / Federal Motor Carrier Safety Administration announces that it, “has begun using the Uniform Fine Assessment (UFA) Version 4.0 software to calculate the amounts of civil penalties for violations of the Federal Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs)”.

“Uniform Fine Assessment Version 4.0 Software; Calculating Amounts of Civil Penalties for Violations of Regulations”

Notice. September 3, 2013.

“…FMCSA is required to consider certain statutory factors when proposing civil penalties for violations of the FMCSRs and HMRs and since the mid-1990′s FMCSA has used its UFA software to consider those statutory factors. FMCSA has updated the UFA software to ensure that it adequately considers the statutory penalty factors for all statutes and regulations enforced by FMCSA; to implement the Agency’s policy for consideration of the Small Business Regulatory Enforcement Fairness Act; and, to ensure uniformity in proposed civil penalties. UFA 4.0 software also considers the factors set forth in 49 U.S.C. 521(b)(2)(D) for violations of regulations where no statutory factors are otherwise specified by statute. To enhance transparency of the civil penalty calculation, UFA 4.0 generates a report detailing the calculations used to propose civil penalties. While UFA 4.0 is used to calculate the majority of civil penalties proposed by FMCSA, the Agency may propose a civil penalty outside of UFA 4.0 when the proposed civil penalty calculated by UFA 4.0 would not promote enhanced commercial motor vehicle safety or induce prompt and sustained compliance. In such cases, the Agency will nevertheless consider the applicable statutory factors to assess a penalty. This Federal Register Notice supersedes the Federal Register Notice issued by FMCSA entitled, “Civil Penalty Calculation Methodology. ” 76 FR 71431, November 17, 2011.”

MOTOR CARRIERS (HOURS-OF-SERVICE / OIL FIELD) / Federal Motor Carrier Safety Administration (FMCSA) responds to earlier public comments motor carrier rules about hours-of-service requirements for oilfield operations: First, for specially trained drivers of commercial motor vehicles that are built specifically to service the oil wells themselves (a lengthy specific list), the so-called “oilfield-waiting-time” provision will continue to exclude from on-duty time such time as they spend waiting at the well site (oil or gas). Second, commercial motor vehicles that transport equipment, water (for fracking) and sand (for fracking) – a list is given – do NOT qualify for the “oilfield-waiting-time” provision to exclude their waiting time at the well site from total hours-of-service calculation.

Note well: “Oilfield-waiting-time” has been the topic of debate in the industry since the old Interstate Commerce Commission first issued hours-of-service rules for motor carriers in 1939. The lists of those whose equipment and operations  qualify for the “oilfield-waiting-time” exclusion to hours-of-service and those whose equipment and operations do not qualify are long and detailed. And for those businesses who believe their equipment and operations are not adequately described, FMCSA invites them to apply for an exemption: “Therefore, motor carriers that believe the current oilfield operations exceptions do not provide sufficient relief for their operations should consider submitting an application for an exemption to the Agency describing an alternative that would ensure the requisite level of safety.”

“Hours of Service of Drivers of Commercial Motor Vehicles; Regulatory Guidance for Oilfield Exception”

August 12, 2013. Notice Of Regulatory Guidance; Response To Public Comments.

MOTOR CARRIERS (HOURS-OF-SERVICE / SHORT-HAUL) In its ruling on the third round of court challenges to the Federal Motor Carrier Safety Administration’s (FMCSA’s) most recent version of its hours-of-service rules originally issued in 2011, the U.S. Circuit Court of Appeals for the D.C. Circuit in what the court called “a protracted rulemaking [that] traces its beginnings to 1999” – held: Affirmed the rule generally and vacated only the FMCSA’s application of the 30-minute break provision to short-haul drivers.

American Trucking Associations, Inc. v. FMCSA et al., No. 12-1092 (U.S. Court of Appeals for the D.C. Circuit, August 2, 2013). Copy of court-issued opinion available here.

MOTOR CARRIERS (HOURS-OF-SERVICE / SHORT-HAUL) / In response to the decision of the U.S. Court of Appeals for the D.C. Circuit immediately above, the Federal Motor Carrier Safety Administration (FMCSA) issues “guidance” August 8 to explain how the FMCSA will enforce the hours-of-service rules subject to the court’s ruling concerning enforcement of the rule in regard to short-haul drivers.

August 8, 2013. Guidance.

OMB Approval of Rule – The White House Office of Management and Budget (OMB) approved a rule to streamline four “legacy” motor carrier systems into one under the management of the Federal Motor Carrier Safety Administration (FMCSA). The rule is seen as a major upgrade and stricter framework register and otherwise identify motor carriers, brokers, freight forwarders and others required to register with the U.S. Department of Transportation in connection with carriage of cargo by motor carrier.

Article in Transport Topics available here (requires subscription).

MOTOR CARRIERS (FMCSA’S COMMERCIAL VEHICLE INFORMATION SYSTEMS AND NETWORKS SAFETY PROGRAM) / The “[Federal Motor Carrier Safety Administration] FMCSA announces that Commercial Mobile Radio Services (CMRS) network devices can be used as transponders for the purposes of [Commercial Vehicle Information Systems and Networks] CVISN electronic screening truck inspection and weigh station bypass systems.” Note: This could lead to some real efficiencies.

“Use of Wireless Mobile Data Devices as Transponders for the Commercial Motor Vehicle Information Systems and Networks (CVISN) Electronic Screening Systems”

July 19, 2013. Notice; Announcement of Policy. Continue reading