MOTOR CARRIERS & BROKERS (CARMACK) – Gazillionth decision ruling that a “broker” is not a “motor carrier” under 49 U.S. Code § 13102, and that the Carmack Amendment (49 U.S. Code § 14706) applies only to the latter and not to the former. But note how ridiculous is the plaintiff shipper’s argument that § 13102(23)(B)’s definition of “transportation” extends to the mere “arranging for [movement of] … property”. Such arguments continue to be offered, and, as here, no mention of sanctions on the party who wasted the court’s and other litigants’ time on them.

Infinity Air, Inc. v. Echo Global Logistics, Inc., No. 3:13-cv-00307-MO (U.S. District Court for the District of Oregon, June 20, 2013). Court-issued opinion available here.

Note Court’s analysis in its Footnote 1 of plaintiff’s argument that a “broker” can be a “motor carrier” through the plaintiff’s tortured reading of the definition of “transportation” per § 13102(23)(B)’s definition of “transportation”, i.e., that “transportation” extends to the mere “arranging for [movement of] … property” – therefore by that logic a “broker” is also a “motor carrier”:

“The definition of ‘transportation’ does not alter my analysis. Section 13102(23)(B) states that ‘transportation’ includes ‘services related to [the] movement [of passengers or property], including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, handling, packing, unpacking, and interchange of passengers and property.’ If the definition of ‘motor carrier’ incorporated the definition of ‘transportation’ and extended to any person ‘arranging for [the movement of] . . . property,’ brokers would cease to exist under the Act. I decline to read the definition of ‘motor carrier’ in a way that renders the definition of ‘broker’ meaningless. Applying the canon of statutory construction noscitur a sociis, I interpret the general term ‘arranging for’ to be similar to the other specific terms in the series, which all relate to the conduct of the actual transporter. Because Echo did not ‘arrange for’ the movement of property in this more limited sense, it is a broker rather than a motor carrier under the Act.”

MOTOR CARRIERS (TRUCK ENGINES & GREENHOUSE GAS EMISSIONS) / “[The Environmental Protection Agency] and [the National Highway Traffic Safety Administration], on behalf of the Department of Transportation, are each adopting corrections to provisions in our respective Medium- and Heavy-Duty Greenhouse Gas Emissions and Fuel Efficiency final rule issued on September 15, 2011. These amendments eliminate duplicative reporting requirements, reduce inadvertent minor differences between the EPA and NHTSA programs regarding such matters as voluntary early model year compliance, better align testing procedures to market realities, and reduce unnecessary testing burdens.”

“Heavy-Duty Engine and Vehicle, and Nonroad Technical Amendments.”

 June 17, 2013. Direct Final Rule.

Fine-tuning of a 2011 final rule.

“These amendments eliminate duplicative reporting requirements, reduce inadvertent minor differences between the EPA and NHTSA programs regarding such matters as voluntary early model year compliance, better align testing procedures to market realities, and reduce unnecessary testing burdens. This action also separately amends several regulations exclusive to EPA by: adjusting the provisions of the replacement engine exemption, expanding EPA’s discretion to allow greater flexibility under the Transition Program for Equipment Manufacturers related to the Tier 4 standards for nonroad diesel engines, specifying multiple versions of the applicable SAE standard for demonstrating that fuel lines for nonroad spark-ignition engines above 19 kilowatts meet permeation requirements, and allowing for the use of the ethanol-based test fuel specified by the California Air Resources Board for nonroad spark-ignition engines at or below 19 kilowatts. Some of the individual EPA-only provisions of this action may have minor impacts on the costs and emission reductions of the underlying regulatory programs amended in this action, though in most cases these are simple technical amendments. For those provisions that may have a minor impact on the costs or benefits of the amended regulatory program, any potential impacts would be small and we have not attempted to quantify the potential changes.”

REMARKS / National Transportation Safety Board issues report on its safety study regarding crashes of “single unit trucks” (Large trucks having a gross vehicle weight of over 10,000 pounds with non-detachable cargo units and with all axles attached to a single frame) – Significance: “single unit trucks” are exempt from many regulations that apply to tractor-trailer rigs. Comment: NTSB under the leadership of Chairman Deborah A.P. Hersman continues its admirable focus on proactive and preventive safety measures across transport modes.

NTSB announcement available here.

Synopsis of full NTSB report available here.

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. 

REMARKS / U.S. Supreme Court unanimously rules that the Federal Aviation Authorization Act of 1994 (“FAAA”) DOES NOT federally preempt state consumer fraud statute and negligence claims against towing company that moved plaintiff’s car during a snowstorm without his permission. Comment: This sort of “Captain Obvious” answer by a unanimous court is just common sense. But federal preemption doctrine in the transportation field continues to be a major source of confusion and inefficiency. From negligence standards at rail crossings, to airline agreements with passengers, to all manner of motor carrier operations – it’s just too easy to “throw in a preemption argument” and gum up the works in court for months or worse.

During briefing and prior to argument before the U.S. Supreme Court this was anticipated in an “UPCOMING” post three month ago available here.

Official copy of opinion available here.

Legal Take-Away:

There are common sense limits to the extent of federal preemption doctrine’s application to transportation. Some matters are indeed so local that they will not be deemed to implicate national concerns.

Like local towing companies.

Practical Take-Away:

Common sense is not codified.

Look what it took to get a ruling on this obvious point (i.e., did Congress intend the Federal Aviation Authorization Act to govern car tows in small New England cities?). They had to go all the way to the U.S. Supreme Court.

The vagueness of federal preemption law continues to confuse transport providers and muddy the waters for those lawyers and courts who are supposed to serve them. 

MOTOR CARRIER (FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION) / Federal Motor Carrier Safety Administration proposes new template for medical examination report to be used by physicians that are certified by the FMCSA to perform medical examinations of commercial motor carrier drivers.

“Medical Examiner’s Certification Integration.”

May 10, 2013. Notice of Proposed Rulemaking.

See FMCSA announcement here.  

“FMCSA proposes to require certified medical examiners (MEs) performing physical examinations on drivers of commercial motor vehicles (CMV) to use a newly developed Medical Examination Report (MER) Form, MCSA-5875, in place of the current MER Form and to use Form MCSA-5876 for the medical examiner’s certificate (MEC). In addition, MEs would be required to report results of all completed commercial drivers’ physical examinations (including the results of examinations where the driver was found not to be qualified) to FMCSA by close of business on the day of the examination. This would include all CMV drivers who are required to be medically certified to operate in interstate commerce, not only those who hold or apply for commercial learner’s permits (CLP) or commercial driver’s licenses (CDL). Reporting of this information would be accomplished, by completing a CMV Driver Medical Examination Results Form, MCSA-5850, via their individual password-protected National Registry web account. For holders of CDLs and CLPs, FMCSA also proposes to electronically transmit driver identification, examination results, and restriction information from the National Registry system to the State Driver Licensing Agencies (SDLAs). This includes those that have been voided by FMCSA because it finds that an ME has certified a driver who does not meet the physical certification standards. The Agency would also transmit medical variance information (exemptions, skills performance evaluation certificates and grandfathered exemptions) for all CMV drivers electronically to the SDLAs. Transmission of this information would allow authorized State and Federal enforcement officials to be able to view the most current and accurate information regarding the medical status of the CMV driver, all information on the MEC, and the medical variance information (as defined above) to include the issued and expiration dates.”

REMARKS / Court case deciding pretrial motion about what evidence should be allowed at upcoming trial relating to damage to freight – one issue: Does parking a truck rig on consignee railroad’s tracks amount to “delivery” under Carmack? Comment: Seriously? “Delivery?” Isn’t this claim more like the drunk who denied smoking in bed: “It was on fire BEFORE I got into it”. Well … I think the point here is not that “delivery” (if it was that) was well done, but that it happened in any way, shape or form.

Union Pacific Railroad Company v. Beemac Trucking LLC, 8:11CV8 (U.S. District Court for the District of Nebraska, April 30, 2013. Copy of court-issued opinion available here.

See this week’s blog post here.