MOTOR CARRIERS (ELECTRONIC ONBOARD RECORDERS) – Federal Motor Carrier Safety Administration seeks information relating to Electronic Onboard Recorders (EOBR’s) in trucks and their potential for (1) employer “harassment” and (2) use to “monitor driver productivity” – based on what EOBR’s might report to motor carrier management.

“Agency Information Collection Activities; Approval of a New Information Collection Request: Driver and Carrier Surveys Related to Electronic Onboard Recorders (EOBRs), and Potential Harassment Deriving From EOBR Use.”

May 28, 013. Notice and Request for Comments.

“ … The purpose of this new ICR is to broadly examine, by the collection of survey data, the issue of driver harassment and determine the extent to which Electronic Onboard Recorders (EOBRs) used to document drivers’ hours of service (HOS) could be used by motor carriers or enforcement personnel to harass drivers or monitor driver productivity. The survey will collect information on the extent to which respondents believe that the use of EOBRs may result in coercion of drivers by motor carriers, shippers, receivers, and transportation intermediaries. The proposed surveys for drivers and carriers collect information related to issues of EOBR harassment of drivers by carriers. FMCSA plans to publish a supplemental notice of proposed rulemaking on EOBRs. Prior to the issuance of a final rule, FMCSA will consider the survey results.

MOTOR CARRIERS (ECONOMIC & COMMERCIAL REGULATION) / Federal Motor Carrier Safety Administration proposes to eliminate the quarterly financial reporting requirements for certain for-hire motor carriers of property (Form QFR) and for-hire motor carriers of passengers (Form MP-1).

“Rescision of Quarterly Financial Reporting Requirements.”

May 24, 2013. Notice of Proposed Rulemaking.

Under the press release heading “FMCSA Proposes to Eliminate Outdated Reporting Requirement” the agency notes that the financial data reporting program of which this is a part dates back to 1938.

Put another way, this requirement was a vestige of the economic regulation of motor carriers that prevailed before the Motor Carrier Act of 1980. 

MOTOR CARRIERS (COMMERCIAL DRIVER LICENSE) / The Federal Motor Carrier Safety Administration issues a final rule that amends its commercial driver’s license (CDL) rules to eliminate the requirement for drivers to notify the State licensing agency that issued their commercial learner’s permit (CLP) or CDL of out-of-State traffic convictions when those convictions occur in States that have a certified CDL program in substantial compliance with FMCSA’s rules.

“Self Reporting of Out-of-State Convictions.”

April 26, 2013. Final Rule.

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION / Administrative Action – “[Federal Motor Carrier Safety Administration] announces and requests public comment on data and information concerning the Pre-Authorization Safety Audit (PASA) for RAM Trucking SA de CV (RAM) with U.S. Department of Transportation (USDOT) number 2063285, which applied to participate in the Agency’s long-haul pilot program to test and demonstrate the ability of Mexico-domiciled motor carriers to operate safely in the United States beyond the municipalities in the United States on the United States-Mexico international border or the commercial zones of such municipalities.”

“Pilot Program on NAFTA Trucking Provisions” 

April 24, 2013. Notice; Request for Public Comment

“This action is required by the “U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007” and all subsequent appropriations.”

REMARKS – Teamsters and Owner-Operators join forces at the U.S. Court of Appeals for the D.C. Circuit petitioning to overturn Federal Motor Carrier Safety Administration authorization of pilot program that allows Mexico-domiciled motor carriers to operate their trucks throughout the United States pursuant to NAFTA –held: Petitions denied and pilot program is supported by law. COMMENT: Absent U.S. Supreme Court intervention to the contrary, this NAFTA-based pilot program will become part of the commercial context of the U.S. trucking industry – and query: Will it become a scaled-up involvement of Mexican trucking firms competing in the U.S. domestic market?

 

International Board of Teamsters, et al. v. U.S. Department of Transportation, No.s 11-1444, 11-1251 (U.S. Court of Appeals for the D.C. Circuit, April 19, 2013). Free copy from the court available here.

Legal Take-Away:

Teamsters union and Owner-Operator Independent Drivers Association each held to have “standing” to bring this petition. But all legal grounds on which they challenged the pilot program were rejected in the appeals court’s opinion.

The gist: This court may not strike down the pilot as inconsistent with existing federal statutes because between the NAFTA Treaty as ratified and related congressional enactments thereafter there is no disconnect between existing federal trucking safety standards and the pilot program as set up by the Federal Motor Carrier Safety Administration.

Practical Take-Away:

Those objecting to what Congress enacted in regard to NAFTA and the U.S. domestic trucking industry can delay implementation through litigation like this, but it is difficult to stop through administrative or court channels what Congress has approved in legislation signed by the president.

 

REMARKS – The MCS-90 endorsement mandated by the Motor Carrier Act held not to require issuer of that endorsement to pay out to another insurance company – in light of MCS-90’s design that was to protect an “injured member of the public” harmed by “negligent authorized interstate [motor] carriers”. It simply does not apply “between two or more insurance companies”. COMMENT: At some point the federal court systems will need to resolve this question about application of MCS-90 as between two or more insurance companies. The law is unsettled in the various jurisdictions – including as interpreted by federal and state courts.

Carolina Casualty Insurance Co. v. Canal Insurance Co., Case No. 2:11-cv-736 (U.S. District Court for the Southern District of Ohio, April 18, 2013). Free copy from the court available here.

Legal Take-Away:

Application of MCS-90 to cases between two or more insurance companies is unsettled in the law.

Practical Take-Away:

Until law is resolved on the application of MCS-90 to cases between two or more insurance companies, counsel for insurance carriers (1) should assume for planning purposes that MCS-90 will not apply to such circumstances, and (2) should always – in the context of an accident case presenting this situation – explore the possibility of making a good faith claim for recovery in such circumstances unless and until the law is settled to say otherwise.

REMARKS / The Federal Motor Carrier Safety Administration has made numerous enforcement determinations in the past few weeks shutting down motor carriers in both passenger and freight. COMMENT: This probably indicates something about enforcement priorities – but candidly I do not know more about the detail of such changes.

See here, here, here, and here.

Also, U.S. DOT Secretary LaHood and FMCSA Administrator Ferro met recently  (April 5) with representatives of the passenger motor carrier industry to address safety issues.