We send you best wishes for the happiest New Year. As we head off into the sunset of 2016 we are so grateful for our relationship with you all. It is a pleasure to work with you and learn from you. 2017 should be an interesting year and we look forward to seeing where things lead. Expect new and exciting changes at CAB as we work at creating more ways to help you analyze motor carrier operations.
This month we report.
VEHICLE TO VEHICLE TECHNOLOGY – The DOT has released a proposed rule on the development of vehicle-to-vehicle technologies that would provide advance warning of potentially life-threatening crashes for light vehicles. The V2V technology would share data in a common language for such variables as a vehicle’s speed, direction and position at a rate of 10 times per second. The technologies would provide 360-degree awareness and include such systems as automatic emergency braking for adaptive cruise control to automatically avoid or lessen imminent crashes. Of course the rule will take five years to be implemented.
DRUG TESTING – The FMCSA is not increasing the number of random drug tests in 2017. A year ago they reduced the percentage to 25% and they intend to keep it at level. Federal regulations require that if there are two consecutive calendar years in which the rate of positive tests, as estimated by a Management Information System data survey for controlled substances, is less than 1%, the agency has the discretion to lower the annual testing rate to a minimum of 25% of carriers’ driver positions. If the positive test rate is higher than 1%, the testing rate will automatically revert to 50%. FMCSA said the 2014 survey estimated the rate of drug usage at 0.9%. In 2012, the usage rate for drugs was 0.6% and in 2013 was 0.7%. Violation rates for blood alcohol content was 0.08% in 2014, 0.03% in 2012 and 0.09% in 2013.
NEW ENTRANT REQUIREMENTS – The rules have been released for anticipated new entrants. Effective 2020 proposed drivers will have to complete non wheel driver training before getting a CDL. There will be a proficiency-based approach that will accommodate individuals who learn at different paces. The trainers will be required to check off on a list of skills as each is mastered. Trainers with substandard performance can face removal from the registry and would no longer be permitted to train new drivers.
CARGO THEFT – CargoNet released its list of the top places for cargo thefts. Los Angeles and Dallas lead the way. In LA more than 1/3 of the thefts were at warehouse or distribution facilities. Two other California counties made the Top 10 list, as did two other Texas counties, including Tarrant County, which includes the Arlington/Fort Worth metro area. Chicago’s Cook County, and nearby Will County along with Miami-Dade County, Fla., and Middlesex County, N.J. complete the list.
HOUSEHOLD GOODS CONSUMER PROTECTION – The FMCSA announced the appointment of 15 members to the Household Goods (HHG) Consumer Protection Working Group (HHG Working Group). The group is charged with providing recommendations on how to better educate and protect HHG moving customers (consumers) during interstate HHG moves. This new collection of information is for the National Consumer Complaint Database (NCCDB), which is an online interface allowing consumers, drivers and others to file complaints against unsafe and unscrupulous companies and/or their employees, including shippers, receivers and transportation intermediaries, depending on the type of complaint. These complaints cover a wide range of activities, including but not limited to driver harassment, coercion, movement of household goods, financial responsibility instruments for brokers and freight forwarders, and Americans with Disability Act (ADA) complaints.
HOURS OF SERVICE – A temporary spending bill will keep the 34-hour restart option in place for the time being The bill includes a provision that provides that the FMCSA cannot enforce two restrictions it had placed on the 34-hour restart option in July 2013 unless the agency can show that those restrictions significantly improve safety and health. The restrictions include a requirement that each restart break include two periods from 1 a.m. to 5 a.m. and be limited to once per week. The restart provision allows truck drivers to reset their weekly accumulation of on-duty time by taking 34 consecutive hours off duty.
URS DELAYED – As you know from our news blast this month The FMCSA has delayed the final implementation of the Unified Registration System (URS) rule. A new date has still not been announced. The FMCSA indicated that it needs more time in the development of the centralized database and migration of data from multiple platforms. We will, of course, keep you advised of any developments.
CSA UPDATE – The list of acute and critical violations has been changed under CSA. The acute and critical violations are those found during an investigation into a motor carrier’s operation that resulted in an alert status in the SMS system. The list was updated to reflect violations currently appearing in “Appendix B to Part 385—Explanation of safety rating process.” Below are the additions to the SMS Methodology list:
|Violation||Violation Description||BASIC||Violation Type|
|395.8(a)(1)||Failing to require a driver to prepare a record of duty status using appropriate method||HOS Compliance||Critical Violation|
|395.8(a)(2)(ii)||Failure to require a driver to submit record of duty status in a timely manner||HOS Compliance||Critical Violation|
|395.8(e)(1)||Making, or permitting a driver to make, a false report regarding duty status||HOS Compliance||Critical Violation|
|395.8(e)(2)||Disabling, deactivating, disengaging, jamming, or otherwise blocking or degrading a signal transmission or reception; tampering with an automatic on-board recording device or ELD; or permitting or requiring another person to engage in such activity||HOS Compliance||Acute Violation|
|395.11(b)||Failing to require a driver to submit supporting documents||HOS Compliance||Critical Violation|
|395.11(c)||Failing to retain types of supporting documents as required by §395.11(c)||HOS Compliance||Critical Violation|
|395.11(e)||Failing to retain supporting documents in a manner that permits the effective matching of the documents to the driver’s record of duty status||HOS Compliance||Critical Violation|
|395.11(f)||Altering, defacing, destroying, mutilating, or obscuring a supporting document||HOS Compliance||Critical Violation|
|395.30(f)||Failing to retain ELD information||HOS Compliance||Acute Violation|
|396.11(a)(3)||Failing to correct Out-of-Service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again||Vehicle Maintenance||Acute Violation|
It was a quiet month on the judicial front.
What happens when a motor carrier is put out of service and then the government rescinds the order? The 7th Circuit held that the motor carrier had no on-going injury since the order was rescinded. Even though it could happen again, the motor carrier was limited to those legal remedies which can be used to compel the DOT to justify its steps. This is a good case to read to understand the steps taken to shut down a carrier. (DND International, Inc. v FMCSA, 2016 WL 7260672)
The Western District of Virginia dismissed a punitive damage action against a driver who drove the wrong way on an entrance ramp to exit a rest area. The Court held that there was insufficient evidence to find that the driver exhibited reckless disregard for others. The Court did not, however grant judgment to the vehicle owner who claimed he had only loaned the vehicle to the driver. The Court held that there was a reasonable possibility that a jury could find that that the owner was responsible for and/or controlled the operation of the vehicle. (Lester v. SMC Transport, 2016 U.S. Dist. LEXIS 177905) In a related insurance case an insurer sought a declaration that it provided no coverage to the defendants for liability which it may have to the plaintiff. The insurer provided coverage for a tractor which was being towed by a second tractor at the time of the loss. The Court held that the named insured was entitled to coverage as the tow of the tractor was reasonable and constituted the use required under the auto policy. The Court concluded that the operator of a tractor performing the tow was not covered under that same policy, exposing the insurer of that carrier to an MCS-90 exposure as there was no coverage under the policy. (Falls Lake Insurance Company v Martinez, 2016 WL 7439425)
The Northern District of Illinois held that it would not dismiss a Carmack action against a defendant on the basis that the loss involved a shipment from Mexico to the U.S. and was therefore not subject to the Amendment. While that rule would be true if there was a single through bill of lading, there remained questions of fact as to whether there was a through bill of lading. (Hawkeye Engineering v. Perimeter International, 2016 WL 7231611)
Oh what a tangled web we weave…. The Northern District of Illinois held that a third party complaint would withstand a motion to dismiss when there was a question of fact as to whether the third party plaintiff was acting as a broker or a motor carrier. While a motor carrier has rights against a downstream carrier, and the third party action would have a basis for recovery, a broker may not. The issue would have to be resolved in the underlying claim. (Coyote Logistics, LLC. v. All Way Transport, 2016 WL 7212487)
The Third Circuit held that while a motor carrier must offer choices for rates, it could do that by providing subsets of liability, i.e. certain limitations for certain types of loss. So when the motor carrier offered increased liability for negligent losses, but not other types of loss, the limitation was still valid. (Choi v. ABF Freight, 2016 WL 7212154)