Trucking Regulatory and Legislative Developments 2013

Trucking Regulatory and Legislative
Developments, Mid-Year 2013
November 18, 2013

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

HOURS OF SERVICE
DEVELOPMENTS

3


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



• 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


• 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


• 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



8


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


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.

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


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


CSA Developments Summary

13


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


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


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 …‖

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



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.
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• 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



• 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


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 …‖

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

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


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


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.

25


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.

26



• 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


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



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


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



•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



• 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



• 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


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


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.



―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


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


Future CSA Developments—Current CSA Screen

38


Future CSA Developments—Future Screen

39


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



• 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



• 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



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



• 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


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.

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

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


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


Presentation End
Thank you for your attention

49


Trucking Regulatory and Legislative Developments 2013

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