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.”

EMPLOYMENT (“EMPLOYEE MISCLASSIFICATION”) / NY Governor Cuomo is expected to sign next month a bill that classifies truck drivers heretofore classified as independent contractors as employees instead – substituting a trucking-specific test for the traditional test for independent contractors developed at common law and embodied in state statutes.

August 12, 2013 Transport Topics article available here.

Copy of Senate bill introduced April 12, 2013 and as amended on third reading on June 18, 2013 available here.

MOTOR CARRIERS (REGULATORY REFORM) / Federal Motor Carrier Safety Administration (FMCSA) “proposes to rescind the requirement that commercial motor vehicle (CMV) drivers operating in interstate commerce, except drivers of passenger-carrying CMVs, submit, and motor carriers retain, driver-vehicle inspection reports when the driver has neither found nor been made aware of any vehicle defects or deficiencies”.

“Inspection, Repair, and Maintenance; Driver-Vehicle Inspection Report”

August 7, 2013. Notice of Proposed Rulemaking.

“…This proposed rule would remove a significant information collection burden without adversely impacting safety. This proposed rule responds in part to the President’s January 2011 Regulatory Review and Reform initiative. Finally, this proposed rule harmonizes the pre- and post-trip inspection lists.”

MOTOR CARRIER (LOSS OF CDL DUE TO OFF DUTY DRUNK DRIVING) / Connecticut Supreme Court upholds state agency administering unemployment compensation in its ruling that the relevant unemployment compensation statute WAS NOT “intended to disqualify an individual from receiving benefits when he loses his commercial driver’s license for driving under the influence of alcohol while off duty, and, as a consequence, is discharged from employment for which that license is required”.

Tuxis Ohr’s Fuel, Inc. v. Administrator, SC 18791 (Supreme Court of Connecticut, July 30, 2013). Google Scholar version of opinion available here.

Over a strong dissent, the majority of the Court ruled that driver would be eligible for unemployment compensation despite the fact that he had lost his license due to his own conduct, i.e., driving under the influence of alcohol.

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

MOTOR CARRIERS (HOURS OF SERVICE – HOW TO FILL OUT LOGBOOKS) / With new Hours of Service regulation taking effect as of July 1, 2013, the Federal Motor Carrier Safety Administration updates regulatory guidance about how truck drivers should make logbook entries about their rest and meal breaks. The FMCSA expresses its belief that the former (1997) guidance had, “the effect of discouraging drivers from taking breaks during the work day, or documenting such breaks in their logbooks”.

Hours of Service for Commercial Motor Vehicle Drivers; Regulatory Guidance Concerning Off-Duty Time.”

Regulatory Guidance. July 12, 2013.

“FMCSA revises its April 4, 1997, regulatory guidance concerning the conditions that must be met in order for a commercial motor vehicle (CMV) driver to record meal and other routine stops made during a work shift as off-duty time. The Agency has reviewed the guidance and determined that it includes language that is overly restrictive and inconsistent with the hours-of-service regulations. The 1997 guidance has the effect of discouraging drivers from taking breaks during the work day, or documenting such breaks in their logbooks.”

“On April 4, 1997 (62 FR 16370), the Federal Highway Administration (FHWA) published “Regulatory Guidance for the Federal Motor Carrier Safety Regulations.” The notice presented interpretive guidance material for the Federal Motor Carrier Safety Regulations (FMCSRs) based on the FHWA’s consolidation or previously issued interpretations and regulatory guidance materials. The FHWA developed concise interpretive guidance in question-and-answer form for each part of the FMCSRs.

“…

“In consideration of the above, FMCSA has determined the 1997 regulatory guidance should be revised to eliminate language that has the effect of discouraging drivers from taking breaks during the work day, or documenting such breaks in their logbooks. The FMCSA revises Question 2 to 49 CFR 395.2, to read as follows:

Question 2: What conditions must be met for a commercial motor vehicle (CMV) driver to record meal and other routine stops made during a work shift as off-duty time?

“Guidance: Drivers may record meal and other routine stops, including a rest break of at least 30 minutes intended to satisfy 49 CFR 395.3(a)(3)(ii), as off-duty time provided:

  1. The driver is relieved of all duty and responsibility for the care and custody of the vehicle, its accessories, and any cargo or passengers it may be carrying.
  2. During the stop, and for the duration of the stop, the driver must be at liberty to pursue activities of his/her own choosing.

“Through the revision of the regulatory guidance, FMCSA makes clear that the motor carrier need not provide formal guidance, either verbal or written, to drivers with regard to the specific times and locations where rest break may be taken. The revised guidance also emphasizes that periods of time during which the driver is free to stop working, and engage in activities of his/her choosing, may be recorded as off-duty time, irrespective of whether the driver has the means or opportunity to leave a particular facility or location. All previously issued guidance on this matter should be disregarded if inconsistent with today’s notice.”

MOTOR CARRIERS (FRAUD ENFORCEMENT – CIVIL) / Class Action Tentative Settlement – Arkansas federal judge tentatively approved settlement of class action brought by several trucking companies against “Pilot Flying J” truck stops for pricing fraud on fuel. Reported terms include 100% recovery on payments plus 6% interest.

See stories here and here.

Court order here.

 

Court Decision – Held that the Carmack Amendment does not completely preempt claims against freight brokers so as to support the exercise of removal jurisdiction (i.e., from state court where case originally brought over to federal court), in granting Plaintiff’s motion to remand case to state court.

Note that in denying Plaintiff’s requests for costs against defendant for improvident removal, the court observed: the “Carmack Amendment’s application to claims against brokers in addition to carriers is an unsettled area, and a well-supported, if ultimately unsuccessful, argument in favor of removal is hardly improvident.”

Curb Technologies v. Somerset Logistics, LLC, Case No. 3:13-CV-36-WKW[WO] (U.S. District Court for the Middle District of Alabama, July 8, 2013. Free copy of court-issued opinion available here.

Court Decision – In case of semi rig’s collision and wrongful death action, held that MCS-90 endorsement attached to insurance policy of motor carrier whose trailer was being hauled by a rig driven by a third party and pulled by a third party’s tractor unit would apply in the event there was a judgment in the case (context here was motion for summary judgment), despite the facts that (1) third party was hauling the trailer at time of the accident, (2) another third party had entered into a lease subject to purchase with tractor’s owner, and (3) that third party itself had entered into an Owner Operator Lease Agreement with yet another third party with obligation to do the maintenance.

Shropshire v. Shaneyfelt, 12 cv 1657 (U.S. District Court for the Western District of Pennsylvania, July 12, 2013. Copy of court-issued opinion available here.

Policy strength of the MCS-90 endorsement is strong indeed – given this remoteness between policy-holder and party who was operating the truck at the time of the accident.