2014 was unprecedented in the number of potential regulations tumbling around in the U.S. regulatory machine, but there’s more to come. Here’s a look at what to expect in the coming year.
Motor Carrier Financial Responsibility: The minimum financial responsibility for motor carriers has been $750,000 since the early 1980s. Most states have followed that number for their intrastate carriers, as well. In the interim, inflation, and especially medical inflation, have eroded the value of that figure. The Federal Motor Carrier Safety Administration for some time has been looking at increasing the limits. If you’re a motor carrier, you might think this is a bad thing, but you should note that bad legal decisions often originate in the limited amount of financial responsibility available to seriously injured claimants. Had more money been available, the plaintiffs might not have been motivated to pursue the cause of action and theories that resulted in the really bad decisions.
At any rate, the FMCSA is sitting on an advanced notice of proposed rule-making that will seek input from stakeholders on the amount of financial responsibility eventually to be chosen. In all likelihood, the amount will increase, and motor carriers will pay more.
The FMCSA also has suggested it will end its self-insured program. The FMCSA has been pulling back from economic involvement for some time. A few years ago, it quit monitoring cargo insurance for common carriers. This is another step in that direction. It seems the FMCSA is tired of looking at motor carrier financial records to see if they remain solvent enough to continue as qualified self-insureds.
Electronic Logging: The FMCSA is hinting that the electronic logging rule will be issued in September. Now that the agency has studied the driver harassment issue and determined that drivers always feel harassed, they should be ready to put the finishing touches on the regulation requiring electronic logs for all applicable motor carriers (over 100 miles).
The FMCSA also has been wrestling with the qualifications for approved logging devices. Although the agency recently indicated the devices would not have to have a roadside printer, the motor carrier will have to be able to get the roadside enforcement officer a printed copy in short order.
The FMCSA also is trying to develop criteria that would make a device compliant, and noncompliant devices may be grandfathered in for a period of time. At any rate, we’re waiting for the other shoe to drop in the form of the mandatory electronic log requirement.
I have been advising client motor carriers to go to electronic logs quickly. With the Comprehensive Safety Accountability program’s relative system, if everyone else goes to electronic logs and you’re still on paper, you’ll be the one accruing violations. Electronic logs do a great job of eliminating form and manner violations. Because the most common log violation is for form and manner, that takes care of most of the problems motor carriers have with hours-of-service compliance.
Of course, it’s up to the motor carrier to select a device, and drivers can be imaginative when it comes to outwitting these devices. So, find a device, and then understand how your drivers might try to defeat it.
Another interesting issue raised by electronic logs is “personal conveyance” — moving the driver from one place to another, not moving freight in interstate commerce. If a driver turns on the truck to go to a pharmacy to refill a prescription, for example, that driver isn’t on duty. The electronic logging device, however, will capture that the vehicle moved. Motor carriers must figure out a proper way to classify time related to personal conveyance and how to capture it using the device a motor carrier has selected.
Entry Level Driver Training: The FMCSA has put out feelers for a negotiated rule for entry-level driver training and invited industry stakeholders to participate. That’s the first clue that the agency doesn’t know where to start with this. That’s not being harsh or unfair, because the industry doesn’t have a very good handle on this, either.
Entry-level drivers have been the curse of the industry for a long time. Insurers don’t want to cover drivers with less than two years experience, and the drivers have little opportunity to get those two years outside of the motor carriers with large self-insured retentions. So the field is open for a lot of improvement in this area.
New Safety Rating Procedure: For the last two or three years, the industry has been awaiting the FMCSA’s proposal for merging its CSA program into the current safety ratings established by 49 C.F.R. Section 385. The current ratings are the familiar satisfactory, unsatisfactory, unrated and conditional standards. These are based solely on the FMCSA’s compliance review process. The FMCSA has long wanted to integrate roadside results with the safety rating process. This will be interesting given the controversy over the CSA program.
FMCSA Driver Pay Study: The FMCSA is studying driver pay, in part by comparing safety records of drivers who are paid by the hour with the records of those who are paid by the mile or by percentage. We’ve known for a long time that the FMCSA wants all drivers paid by the hour so they can be employees, so they can join unions, etc. The study likely will be used to leverage that type of result. This is nothing new. In the FMCSA’s safety management cycle, the agency suggests that all drivers be paid by the hour.
The Rebirth of the Old 34-Hour Restart: With November’s Republican gains in Congress, there may be some momentum to reinstate the old version of the 34-hour restart, which did not require two consecutive early morning periods of off-duty time and which could be utilized as many times as needed during the eight-day period. We will see what happens with that.
Data-Q Challenges for Adjudicated Citations: For citations written after October, motor carriers may seek revisions to CSA points for citations adjudicated to result in a lesser penalty or to exonerate the driver. For example, if the driver is written a ticket for speeding over 10 miles per hour and negotiates a penalty based on less than 10 miles per hour, the motor carrier may seek a reduction of the points charged to the unsafe driving basic. For charges for which the driver is found not guilty, the points will be removed completely. Motor carriers, however, should be familiar with the Data-Q adjudicated citations process. Under that system, for example, if a driver pays court costs but the charges are completely dismissed, he will be treated as if he were guilty of the original charge.
Driver Coercion: The motor carriers have always been prevented from encouraging or even allowing drivers to violate FMCSA regulations. The new wrinkle with the proposed driver coercion regulations is that they also affect shippers, brokers and consignees. This will create an interesting dynamic in that it will be the motor carrier’s drivers that turn in (remember the term “dime out?” — when there were such things as pay phones) the motor carrier’s customers for these violations.
For example, if a driver tells a shipper that he’s out of hours and unable to drive his vehicle from the loading dock or off the shipper’s premises, a shipper who instructs the driver to do so anyway might be in violation.
The FMCSA also is looking at regulations to penalize shippers and consignees for driver-detention issues.
Sleep Apnea: You’ve probably heard about the FMCSA’s attempt to issue guidance to govern sleep apnea in the medical examination process. The American Trucking Associations and other industry organizations mobilized to put the brakes on that through congressional action, so the FMCSA is working to establish a formal rule-making to address the issue. Regardless of the result, this regulation likely will cost the industry billions of dollars.
Ultimately, the regulation may be a blessing in disguise. Motor carriers are struggling with how to address sleep apnea currently, and some law on the issue will be helpful.
Food Safety Modernization Act Regulations: The Food and Drug Administration has proposed regulations to implement the transportation portions of the Food Safety Modernization Act. These proposed regulations are broad and far-reaching. For a detailed analysis, see www.smithmoorelaw.com/TNLOct14.
Briefly, the regulations will give shippers more control over the handling of their loads by carriers. Shippers should put their load requirements in a written contract so carriers are fully aware of the load requirements. Simply putting something on a bill of lading likely will be insufficient.
Carriers must maintain records of the cleaning processes used on trailers and tanks. Drivers handling food products must be trained. There is even a provision that shippers of certain products would have to provide drivers a place to wash their hands.
Drug and Alcohol Clearinghouse: The new drug and alcohol clearinghouse, currently in the works, is certainly positive for the industry overall. Drivers no longer will be able to fail a pre-employment screening at one potential employer and then go to another motor carrier that wouldn’t be aware of the failed test. The proposal falls a little short in that motor carriers still would have to send inquiries to former employers even though this should be a thing of the past given the pre-employment screening and the drug and alcohol clearinghouse.
CSA Update: No regulatory update would be complete without a discussion of something that wasn’t created by regulation: CSA. The CSA website has been updated so that it is less useful and less understandable. The main thing motor carriers might not like is that all fines levied against a motor carrier in the preceding six years are now listed on the website. This is complete with the case number, so anyone in the world who wants to send a Freedom of Information request can request the file.
Speed Limiting Devices: The FMCSA is expected to roll out its ideas about speed limiting devices soon. Larger carriers have long supported governing truck speeds at 68 mph. We’ll have to see how the FMC intends to bring this about.
Rob Moseley is chair of the Transportation Practice Group of the law firm Smith Moore Leatherwood with offices in North Carolina, South Carolina and Georgia. Contact him at rob.moseley@smithmoorelaw.com.