Trucking Regulatory and Legislative Developments 2013

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Trucking Regulatory and Legislative Developments 2013

  1. 1. Trucking Regulatory and Legislative Developments, Mid-Year 2013 November 18, 2013
  2. 2. SUBJECTS COVERED • MAIN EMPHASIS: –Hours of Service Developments –CSA Developments OTHER ISSUES: –Port of LA Clean Truck Program –Mexican Carrier Border Crossings –E-Logs Use Mandate –Map 21 Legislation Implementation • 2 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  3. 3. HOURS OF SERVICE DEVELOPMENTS 3 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  4. 4. HOS DEVELOPMENTS BACKGROUND Hours of Service Rules Changes December 2011 • Right before Christmas 2011, the FMCSA announced the long anticipated changes to the truck driver hours of service regulations. • The effective date of the Final Rule was February 27, 2012, but the compliance date for the most significant changes was July 1, 2013. • So, trucking companies have been operating under the new rules since July 1, 2013 4 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  5. 5. HOS DEVELOPMENTS BACKGROUND Hours of Service Rules Changes December 2011 • FMCSA kept the 11 hour maximum daily driving rule favored by truckers BUT made additional limits to ability to work additional legal hours • • REST BREAK: –May drive only if 8 hours or less have passed since end of driver's last off-duty period of at least 30 minutes. 5 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  6. 6. HOS DEVELOPMENTS BACKGROUND Hours of Service Rules Changes December 2011 • 34 Restart Rule Restricted— – Drivers may restart the 60 or 70 hour clock on the maximum number of hours under which a driver can be on duty within a 7 day or 8 day window by taking a 34 hour break. – Under the new 34 hour restart limitations: • there can be only one restart within a week’s 168 hour time frame and • the 34 hours must span two periods between 1 AM and 5 AM. • Impact per FMCSA News Release: – Limits the maximum average work week for truck drivers to 70 hours, a decrease from the current maximum of 82 hours 6 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  7. 7. HOS DEVELOPMENTS BACKGROUND Hours of Service Rules Changes December 2011 • On the positive side: –The agency’s new HOS rules allow for off-duty status: • while a driver is in a parked tractor, but not in the sleeper berth and • up to two hours of off duty credit for team drivers in the passenger seat of a moving truck, immediately before or after 8 consecutive hours in sleeper berth. 7 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  8. 8. HOS DEVELOPMENTS BACKGROUND 8 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  9. 9. HOS CASE RULING • American Trucking Associations vs. Federal Motor Carrier Association, 2013 U.S. App. LEXIS 15934, 2013 WL 3956922 (D.C. Cir 2013) • The American Trucking Associations (―ATA‖) sought to overturn the changes with the filing of a lawsuit on February 14, 2012. • Safety advocates who wanted a return to the pre2004 10 hour per day driving rule also filed a lawsuit seeking a return to the pre-2004 rule. 9 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  10. 10. HOS CASE RULING • For the most part, neither challenge prevailed • • • 10 before the U.S. Court of Appeals, DC Circuit The HOS Rules changes have now been entirely upheld, except for the application of 30 minute break requirement on short haul drivers. FINAL WORD !!!!!! Court Gives Protracted HOS Litigation/Regulatory History to show why this should be the final word. –1999-2013: Several versions of Final Rules changing the 1962 version of the HOS Rules and 3 different sets of lawsuits challenging them. TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  11. 11. HOS CASE RULING ―It is often said the third time's a charm. That may well be true in this case, the third of its kind to be considered by the Circuit. With one small exception, our decision today brings to an end much of the permanent warfare surrounding the HOS rules. Though FMCSA won the day not on the strengths of its rulemaking prowess, but through an artless war of attrition, the controversies of this round are ended.‖ 11 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  12. 12. HOS Rules Changes Impact •Changes to the federal hours-of-service rule topped the 2013 survey of critical issues facing the North American trucking industry, the American Transportation Research Institute reported. Transport Topics •The biggest impact appears to be on carriers that haul full truckloads for a single customer, as opposed to the less-than-truckload (LTL) operators that service multiple accounts. The reason is truckload’s longer average length of haul, resulting in ―a 6% to 7% drag on productivity in its longest haul lanes and a 3% drag overall,‖ according to Stifel Nicolaus & Co. •The House Subcommittee on Contracting and Workforce of the Small Business Committee will hold a hearing on the truck driver hours-of-service rule on November 21. They will question Anne Ferro, chief of the Federal Motor Carrier Safety Administration, on the rule. The panel is chaired by Rep. Richard Hanna, R-N.Y., who said in a notice that he intends to examine the efficacy of the rule and its impact on small business. Hanna recently introduced a bill that would suspend the 34-hour restart provision of the hoursof-service rule, pending an assessment by the Government Accountability Office. 12 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  13. 13. CSA Developments Summary 13 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  14. 14. CSA Developments Background • Up to this point: – CSA, with its SMS methodology, has helped the FMCSA prioritize its safety monitoring and intervention efforts, assisted it in determining carriers subject to Comprehensive Reviews, and – Has provided the basis for publicly displayed comparative percentile rankings of carriers in the statistical areas the FMCSA has determined to be related to carrier propensity to be involved in vehicular accidents (the SMS Methodology BASICs). 14 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  15. 15. CSA Developments Background •In its final phase, SMS methodology will be used in the Safety Fitness Determination process to rate each carrier’s ultimate safety fitness rating, –based solely on a motor carrier’s own performance measure. –Not on the present relative, comparative CSA ratings –But still using CSA SMS data. 15 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  16. 16. Recent CSA Developments—Committee Findings • The first significant recent development for CSA • 16 in 2013 involved the April FMCSA CSA Advisory Subcommittee Recommendations. ―As instructed by the Federal Motor Carrier Safety Administration (FMCSA), the Motor Carrier Safety Advisory Committee (MCSAC) created the Compliance, Safety, Accountability (CSA) subcommittee (subcommittee) and tasked it with providing feedback and suggestions on the CSA program and how it could be more effective as a tool for dentifying unsafe motor carriers …‖ TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  17. 17. Recent CSA Developments—Committee Findings DATA FOR CRASH INDICATOR—SPLIT SUBCOMMITTEE – I. J. Subcommittee Recommendations (Palmer, Petrancosta, Hamilton, Tucker, Spencer, Davison, Mulani x, Supina): • 1. Examining all information that the Agency has before it, FMCSA should exclude crash data for which there is a clear determination of not-at-fault or non-preventable crashes for purposes of a carrier’s Crash Indicator BASIC score. • b. Rationale: – i. Preventability determination in crashes is an important part of data quality. Being involved in crashes is different than causing them. – ii. Starting from all reported crashes is inappropriate because many of them may not be related to carrier safety. – iii. Determination of preventability for a particular crash is very fact-specific. 17 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  18. 18. Recent CSA Developments—Committee Findings DATA FOR CRASH INDICATOR—SPLIT SUBCOMMITTEE • I. K. Subcommittee Recommendations (Owings, Lannen): – 1. The Crash Indicator BASIC should continue to use all crash reports, regardless of fault or preventability determination. – 2. Rationale: • a. Crash Indicator is the strongest BASIC (i.e., the BASIC that best correlates to future crashes). There is value in looking at all crashes regardless of fault. • b. Currently, all reportable crashes are included, so all carriers are being treated the same. The lack of consideration of fault in crash data should affect all carriers the same way. 18 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  19. 19. Recent CSA Developments—Committee Findings • RATINGS DISPLAY ISSUE—SPLIT SUBCOMMITTEE – II. C. Subcommittee Recommendations: • 1. If removal of CSA scores from public view is not possible, FMCSA should remove, at a minimum, the Controlled Substance/Alcohol and Driver Fitness BASICs. (Dissent: Lannen, Hamilton, Mulanix, and Owings) • 2. FMCSA should remove from public view the three BASIC scores that do not correlate strongly to crash risk (HM, Driver Fitness, Controlled Substance/Alcohol). • 3. Keep the Crash Indicator BASIC removed from public view. • 4. For the remaining three BASICs (Unsafe Driving, Vehicle Maintenance, Hours of Service), keep those in public view. • 5. While the Agency should explain what the data is (and what it is not), FMCSA should not provide guidance or encouragement on how to use SMS data for carrier selection (e.g., by shippers, brokers, insurance companies, etc.). Direction to users should be explicit. (Dissent: Lannen, Owings; Abstain: Hamilton, Mulanix) 19 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  20. 20. Recent CSA Developments—Committee Findings • RATINGS DISPLAY ISSUE—SPLIT SUBCOMMITTEE – II. E. Subcommittee Recommendations (Lannen, Hamilton, Mulanix, and Owings): FMCSA should keep all scores public and explain the difference between a compliance score and a safety score. The Agency should provide more education on how the public should interpret the scores. • 1. The two BASICs that do not correlate well to crash risk should be referred to as ―compliance‖ scores (Controlled Substance/Alcohol, Driver Fitness), and the BASICs that do correlate well to crash risk should be referred to as ―safety‖ scores. • 2. Rationale: – a. This is taxpayer data; the public should be able to see it. – b. The rating will still exist, even if it is removed from the website. Hiding the data will just result in diverting FMCSA resources to Freedom of Information Act (FOIA) requests (unintended consequence). 20 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  21. 21. Recent CSA Developments—TT Editorial • In an August Editorial, ATA’s Transport Topics urged that • • 21 CSA BASIC scores not be made public because of the flawed data that the scores are based upon ―Third parties — e.g., shippers, brokers, insurers, banks — are making risk assessments based on FMCSA’s analysis. This is, in part, because the suggested alternative, carrier safety ratings, are often dated and sometimes obsolete.‖ ―[t]he trucking industry has long contended that, because not all CSA BASICs — i.e., Behavior Analysis and Safety Improvement Categories — correlate well to future crash risk, and many carriers with low crash rates have mistakenly high BASIC scores and vice-versa, it is inappropriate to provide these ―scores‖ to the public …‖ TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  22. 22. Recent CSA Developments—ASECETT Lawsuit • • • 22 THESE ISSUES ARE BEING LITIGATED CSA has also been under legal challenge in litigation challenging the validity of, proper use of and interpretation of data generated under CSA in US Court of Appeals, DC Circuit. Petitioners are individual trucking companies, individual transportation intermediaries (freight forwarders and brokers), and trade associations comprised of such firms (Alliance for Safe, Efficient and Competitive Truck Transportation). Lawsuit specifically challenges the ―Guidance‖ by FMCSA on CSA Usage by Shippers, Brokers and Insurers TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  23. 23. Recent CSA Developments--ASECTTLawsuit • Briefing by both sides to the lawsuit filed in the U.S. Court of Appeals was complete by mid-January of 2013. • A three judge panel heard arguments by the litigants on September 10, 2013, so a decision could be coming before the end of the year. 23 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  24. 24. Recent CSA Developments--ASECTTLawsuit Lawsuit Background—Challenge to Agency ―Guidance‖ • The Federal Motor Carrier Safety Administration's (FMCSA) Compliance, Safety, Accountability (CSA) program is now providing resources specifically geared towards shippers, brokers, and insurers about the agency's publicly available data. • FMCSA makes three sources of safety and compliance data available to the public. These sources are the – Safety and Fitness Electronic Records (SAFER) system • Includes Safety Fitness Rating and Crashes last 24 months – the Licensing and Insurance Online Website • Includes Operating Authority and Insurance Compliance – CSA's Safety Measurement System (SMS). • Lawsuit challenges the agency’s ―Guidance‖ as to the use of these materials by shippers, brokers, and insurers 24 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  25. 25. Recent CSA Developments—ASECTT Lawsuit Lawsuit Background—Challenge to Agency ―Guidance‖ –The suit challenges the agency’s issuance in May of 2012 Factsheet entitled ―FMCSA Data — Information for Shippers, Brokers, and Insurers‖ (https://csa.fmcsa.dot.gov/resources.aspx?locationid=115) –and a subsequent Power Point presentation entitled ―Shipper and Insurer Briefing Addendum‖ intended to supplement the previously issued Factsheet. (https://csa.fmcsa.dot.gov/resources.aspx?locationid=115) 25 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  26. 26. Recent CSA Developments—ASECTT Lawsuit Lawsuit Background—Challenge to Agency “Guidance” • One of the factsheets identifies and clarifies all three of FMCSA’s publicly available data sources: – the Safety and Fitness Electronic Records system (SAFER); – the Licensing and Insurance Online Website; and – CSA’s Safety Measurement System (SMS). • In addition, the PowerPoint presentation gives an overview of FMCSA’s publicly available data sources that includes screenshots from each of those sources. (https://csa.fmcsa.dot.gov/resources.aspx?locationid=115) 26 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  27. 27. Recent CSA Developments—ASECTT Lawsuit • GUIDANCE MATERIALS BACKGROUND: –In these guidance materials, shippers, brokers and insurers are discouraged from attempting to select a safe carrier by relying solely upon a Safety Fitness Determination classification (from SAFER system) that a carrier is ―Satisfactory,‖ and –Shippers, brokers and insurers are invited to review all data available from the FMCSA on a particular carrier before making a decision to use the carrier. 27 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  28. 28. Recent CSA Developments—ASECTT Lawsuit SHIPPER ADDENDUM POWER POINT SLIDES: – Shippers, brokers, freight forwarders, and consumers are encouraged to exercise independent judgment about the companies with which they choose to do business. Accordingly, FMCSA encourages the use of its public data to help make sound business judgments. [Slide 4] – A Satisfactory or Conditional rating [under SAFER] does not mean … that the public should ignore other reasonably available information about the motor carrier’s operations. [Slide 9] 28 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  29. 29. Recent CSA Developments—ASECTT Lawsuit SHIPPER ADDENDUM POWER POINT SLIDES: – A Satisfactory rating [under SAFER] does not mean carrier is currently in compliance and operating safely [but rather] is only a snapshot based on the date of the most recent compliance review [Slide 10] – FMCSA believes that an examination of a motor carrier’s official safety rating in SAFER and their [sic] authority and insurance status on L&I, combined with their [sic] intervention and prioritization status in CSA’s SMS, provide [sic] users with an informed, current, and comprehensive picture of a motor carrier’s safety and compliance standing with FMCSA. FMCSA encourages the public to use the FMCSA information available to help make sound business judgments. [Slide 28] 29 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  30. 30. Recent CSA Developments—ASECTT Brief • The subject matter of the FMCSA Release relates to the process for assessing whether motor carriers (trucking and bus companies) are fit – in terms of safety management practices and performance – to operate on the Nation’s highways. The law imposes on the Agency the sole responsibility to make such safety fitness determinations (―SFDs‖) according to standards that must be developed through full notice-and-comment rulemaking procedures. As will be seen, Petitioners challenge the FMCSA Release as unlawfully introducing new substantive rules and a new ultimate arbiter for determining the safety fitness of such carriers, which number in the hundreds of thousands across this country, and as doing so without adhering to required procedures. 30 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  31. 31. Recent CSA Developments—ASECTT Brief •JURIS STATEMENT: ―This brief will show that the Internet postings in the FMCSA Release are reviewable in this Court under 28 U.S.C. § 2342(3)(A) because they amount, in practical effect, to new and farreaching rules, regulations and final orders of the Secretary of Transportation relating to commercial motor vehicle safety under subchapter III of Chapter 311, Title 49, United States Code.‖ • ISSUE 3: ―Whether the FMCSA Release constitutes final agency action for which there is no adequate remedy; which is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law; is contrary to constitutional right, power, privilege, or immunity; is in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and which constitutes prejudicial error within the meaning of APA section 706(2) …‖ 31 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  32. 32. Recent CSA Developments—ASECTT Brief • The new rules implement and sanction the CSA program and the SMS methodology for the unlawful purpose of summarily changing established rules for making SFDs. Both CSA and SMS were created without rulemaking under the APA, but now exist in a universe parallel to the Agency’s published, APA compliant regulations for making SFDs under its ―safety rating‖ rules at 49 C.F.R. Part 385. 32 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  33. 33. Recent CSA Developments—ASECTT Brief • The new arbiter for fitness is not the Agency with its statutory powers to credential a carrier as safe, but rather the transportation user (such as a bus passenger, a freight shipper, a freight forwarder or a transportation broker). Instead of being able to rely on FMCSA safety ratings under Part 385 as the operative SFDs, the user is now advised by the FMCSA Release to consider SMS scores at least co-equally with safety ratings in making its own ―business judgments‖ about which carriers to utilize. Instead of being able to rely on a preemptive federal safety credential for a motor carrier, the transportation user is subject to second-guessing of its ―business judgments‖ under state tort-law concepts such as negligent selection and vicarious liability 33 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  34. 34. Recent CSA Developments—OTHER CSA RELATED LAWSUIT • Two lawsuits filed before the U.S. District Court for the District of Columbia for OOIDA. Second one filed in 2013. The suits challenge the use of a database of information on driver violations maintained by the FMCSA under the Pre-Employment Screening Program (PSP) Data kept by states (i.e. tickets, citations, written warnings, convictions) is used not only for CSA carrier rankings, but also to give safety information about drivers to prospective employers via the Pre-Employment Screening Program. The lawsuit contends that the PSP database has inaccurate information regarding driver violations because it contains information on drivers where they have not been found guilty of the alleged violations and that the statutory basis for the gathering and use of the database is violated because the statute requires the use of only reliable and accurate information. The suits seek to have the FMCSA remove drivers’ violations from the database if a court finds that the driver is not responsible, to tell prospective employers if a violation that shows up in the database is being disputed by the driver, and why the driver is challenging the information and also to have the agency take an active role in the process of correcting challenged data, which it now leaves largely to the states. • • • • 34 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  35. 35. Future CSA Developments • Still coming in the CSA implementation process is an • 35 expected Notice of Public Rulemaking (―NPRM‖) to amend existing regulations to allow for the use of SMS data in making Safety Fitness Determinations and without an onsite Comprehensive Review Until that rule change is made, SMS data will be used formally as a tool to determine when the intervention of the FMCSA is necessary, based on the carrier’s percentile BASICs in relationship to other carriers. – And to provide the type of ―guidance‖ described in lawsuit. TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  36. 36. Future CSA Developments ―The proposed Safety Fitness Determination (SFD) aims to incorporate on-road performance from the Safety Measurement System (SMS) into the safety rating process for motor carriers and produce an SFD to determine if a carrier is fit to operate.” (notes to Slide 4 to Power Point Presentation) 36 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  37. 37. Future CSA Developments SMS Preview Available Now (11-04-13) • The Federal Motor Carrier Safety Administration (FMCSA) is proposing enhancements to the display of information on the SMS Website. These proposed changes aim to: – Provide easier, more intuitive navigation and user-friendly features – Provide a ―one-stop-shop‖ for FMCSA safety information for the public, motor carriers, and industry – Retain and provide easy access to detailed information and new performance monitoring tools During the preview, law enforcement, motor carriers, and the public are able to view the proposed new features. Carriers may preview how their data would appear publicly, if the proposed changes were implemented by logging into the FMCSA Portal and selecting SMS Preview using their U.S. DOT Number and PIN on https://csa.fmcsa.dot.gov/SMSPreview/. The public may view the proposed changes by looking at sample carrier data available at https://csa.fmcsa.dot.gov/SMSPreview/. • • • • 37 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  38. 38. Future CSA Developments—Current CSA Screen 38 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  39. 39. Future CSA Developments—Future Screen 39 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  40. 40. Supreme Court Overturns Port of L.A.’s Truck Rules • In June the U.S. Supreme Court ruled in favor of the ATA in its long litigation battle over the validity of the regulations applicable to drayage operators at the Port of Los Angeles • American Trucking Associations, Inc. v. City of Los Angeles ("ATA II"), 133 S.Ct. 2096, 186 L. Ed. 2d 177 (June 13, 2013). 40 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  41. 41. Supreme Court Overturns Port of L.A.’s Truck Rules • Previously the 9th Circuit Court of Appeals had ruled in American Trucking Associations vs. the City of Los Angeles that: –the Port could not ban Owner Operator drayage truckers, –but that it could impose other restrictions and requirements, such as the submission of detailed off street parking plans and detailed placard requirements 41 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  42. 42. Supreme Court Overturns Port of L.A.’s Truck Rules • In reversing much of the previous 9th Circuit Court decision, • the United States Supreme Court unanimously ruled in June that portions of the Port of Los Angeles clean truck plan violate federal preemption law and cannot be enforced. • The court’s June 13 decision said the port cannot force fleets to submit parking plans or display placards before being allowed to operate. 42 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  43. 43. Supreme Court Overturns Port of L.A.’s Truck Rules BASIS OF PREEMPTION FINDING— • Federal Act: FAAAA – Preemption Mandate: • ―a state, political subdivision of a State, or a political authority of two or more states may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route or service of any motor carrier … with respect to the transportation of property.‖ • Port entering into the Port Concession Agreement did not transform the Port Authority from a regulator into a ―market participant‖ because of the coercive power of the state subdivision – Port exercised regulatory power through the Concession Agreement because, it could exercise legal authority to coerce carrier compliance with agreement » Could enforce through criminal proceedings 43 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  44. 44. Supreme Court Overturns Port of L.A.’s Truck Rules • The USSC ruling resulted in a recent final local Federal Court order enjoining enforcement of the rules. • In her order, U.S. District Court Judge Christina Snyder: – banned off-street parking and placarding requirements and –issued an injunction permanently barring the port from enforcing its 2008 move to force drivers who enter the port to be company employees. 44 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  45. 45. Mexican Carrier Border Crossings Under NAFTA • In April the U.S. Court of Appeals for the District of • 45 Columbia Circuit rejected the legal challenge made by the Owner/Operator group OOIDA to the Federal Motor Carrier Safety Administration pilot program that allows a limited number of Mexico-based companies to operate in the interior of the United States, finding that the program complies with applicable law, including NAFTA and U.S. safety requirements. According to FMCSA spokesman Duane DeBruyne, the decision found ―that we apply the same rigorous safety standards under the program that we require of all U.S. carriers.‖ The Court found that the carriers in the pilot program operated under Mexican equivalents U.S. FMCSA safety regulations. TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  46. 46. E-Logs Use Mandate • The latest transportation funding bill passed by Congress, the ―Moving Ahead for Progress in the 21st Century Act‖, or MAP-21, directs the FMCSA to write an electronic logging rule (EOBR) that would mandate electronic logging devices for all commercial trucks (with the mandate being effective two years after the final regulations are in place). • The Act required a notice of a proposed rulemaking to be filed in September of 2013, with a final rule in place a year later, with the implementation of enforcement of the rule likely to be two years after the final rule is adopted. • In early April, FMCSA announced that the agency would not be able to meet the deadline. • The existence of the Congressional mandate is already pushing fleetsAND REGULATORY DEVELOPMENTS, MID-YEAR 2013 logging. to implement electronic 46 TRUCKING LEGISLATIVE
  47. 47. Map 21—IMPLEMENTING REGULATIONS •The Federal Motor Carrier Safety Administration (―FMCSA‖) was set to publish regulations in the October 1, 2013 edition of the Federal Register implementing various provisions of MAP-21. •The FMCSA is taking the position that the regulations are mandated by Congress and that the agency is not exercising any discretion by promulgating the regulations. •In effect, the FMCSA is merely bringing its regulations in line with what Congress already dictated when MAP-21 was first passed. As such, the regulations will take effect immediately when published; there will be no notice and comment rulemaking procedure. The public will have 60 days from the date of publication to submit requests for reconsideration of the new regulations. Quoted from Scopelitis, Garvin, Light, Hanson & Feary, P.C. 47 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  48. 48. Map 21—IMPLEMENTING REGULATIONS Among the regulatory pronouncements are the following: • 1. Financial Security of Brokers and Freight Forwarders. The FMCSA is revising its regulations regarding financial security to increase the amount required to be maintained by property brokers to $75,000, and to make the requirement applicable to freight forwarders as well. 2. Increased Penalties. Current penalties for violation reporting, recordkeeping and registration requirements are $500 except that violations of passenger carrier authority requirements are $2,000. The regulations increase the penalties to: (1) $1,000 for violating reporting and recordkeeping requirements; (2) $10,000 for violation nonpassenger carrier registration requirements; and (3) $25,000 for violation passenger carrier registration requirements … Penalties for failing to respond to a subpoena are increased to between $1,000 and $10,000 (from current levels of $100 to $5,000). General penalties for evading regulations currently require that the violation be knowing and willful. That requirement is being removed and penalties are increasing to $2,000-$5,000 for a first violation and $2,500-$7,000 for any subsequent violation. The regulations will add a penalty of $25,000 for violating an out of service order. A carrier’s ―ability to pay‖ will no longer be taken into account in determining the penalty for violating the FMCSR. 3. Other regulatory provisions with less interest • • 48 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013
  49. 49. Presentation End Thank you for your attention 49 TRUCKING LEGISLATIVE AND REGULATORY DEVELOPMENTS, MID-YEAR 2013

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