Overview of Recent Developments_Joe Pappalardo

2013 Annual Conference
April 22, 2013
San Diego, California
History of Electronic
On-Board Recorders
• 1985: FHWA issues waivers allowing electronic
recordkeeping of duty status
• 1986: FHWA begins rulemaking to allow electronic
recordkeeping of hours of service
• 1988: FHWA adopts final rule allowing use of
Automatic On-Board Recording Devices (AOBRDs)
49 C.F.R. § 395.16
History of Electronic
On-Board Recorders
• 2003: FMCSA adopts final rule, but does not impose
mandatory EOBR use
68 Fed. Reg. 22456 (Apr. 28, 2003)
• 2004: U.S. Court of Appeals vacates 2003 Final Rule;
requires FMCSA to collect and analyze data on costs
and benefits of EOBR mandate
Public Citizen v. FMCSA, 374 F.3d 1290 (D.C. Cir. 2004)
Recent Rulemaking Proceedings
• 2007: FMCSA issues first Notice of Proposed RuleMaking to address EOBR issue
72 Fed. Reg. 2339 (Jan. 18, 2007)
• 2010: FMCSA issues first Final Rule (EOBR-1)
75 Fed. Reg. 17208 (Apr. 5, 2010)
• EOBR-1 targets carriers with poor Hours of Service
Recent Rulemaking Proceedings
• EOBR-1 Vacated
OOIDA v. FMCSA, 656 F.3d 580 (7th Cir. 2011)
• FMCSA failed to address driver harassment, other
49 U.S.C. § 31137(a)
• FMCSA withdraws EOBR-1 final rule
Recent Rulemaking Proceedings
• 2011: FMCSA issues second Notice of Proposed
Rule-Making regarding EOBRs (EOBR-2)
76 Fed. Reg. 5537 (Feb. 1, 2011)
• EOBR-2 requires EOBR us by all carriers required to
keep paper logs, including passenger carriers, but
excluding 100-mile drivers
EOBR Requirements
• EOBRs must be configured to track information in
paper logs – duty status, date/time, position
• EOBR data cannot be altered
• EOBR data must keep 7 days of data, plus current
• EOBRs must provide instructions for law enforcement
EOBR Requirements
• Driver must maintain paper logs in case of malfunction
• Driver must still maintain supporting documents
• FMCSA may ease supporting document requirements
for driving duty status, but continue requirement for On
Duty-Not Driving and Sleeper Berth duty status
EOBR Requirements
• NPRM is not especially specific as to configuration of
• However, §§395.15-.18, and Appendix A provide
specifics for voluntary EOBRs
– Must allow officials to immediately check driver status, and
must provide detailed instructions to law enforcement
– Must display key information (395.16(n))
– Support systems at MC’s principal place of business of
driver home terminal must provide summary of activity
– EOBRs must conform to standards of ANSI, NBS, IEEE;
USB-IF (395.18(a))
EOBR Requirements
• EOBR must provide (395.15):
Duty status following lines 1-4 of paper log
Location of duty status change
ID of all drivers for team operations and ID of who is driving
Information on how to recover data
Manufacturer certification that EOBR design has been tested
to meet FMCSR requirements
– Tamper-proof, as is practical
– Visual and audio warning of malfunction
– Information must replicate capability of paper logs
EOBR Requirements
• 395.16 (l):
– Location must be noted to nearest city, village or town for
each change of duty
– No greater than 60 minute intervals
– Look out for GPS glitches -- names of towns can be vague
– Satellites are prescribed
• Driver name duty status, date and time, distance
traveled, ID of MC and CMV
– Just what you’d expect
– After stationary for 5 minutes –- default to on-duty not driving
EOBR Requirements
• Driver must affirmatively review information before
submitting record
– Drivers must be adequately trained in use and operation
– MC must maintain back-up copy of electronic HOS in a
different location than original
– If FMCSA determines MC has permitted violations or
tampered with device, authority to use EOBR can be
revoked and paper logs will be required
– If CMV is used for personal conveyance, that must be noted
before trip starts
EOBR Requirements
• Authority to use EOBR is granted under 395.16(a)
– Driver is able to make annotations on hard copy of EOBR
printout (legible)
– Current day and 7 prior days must be produced
– If EOBR fails (more than 5 minutes), driver must note it
within 2 days and be able to reconstruct 8 days
– Go to paper logs after failure
• Driver must submit and certify HOS within 3 days of
• Driver input can only occur at rest
Reaction to EOBR Regulations
In Favor
Large Carriers
Alliance for Driver
Safety & Security
• Small Carriers
• Owner-Operators
Reaction to EOBR Regulations
• Concerns about cost, upkeep, burden on smaller
carriers and owner-operators
• Concerns about Mexican trucks
• U.S. will pay for and own Mexican EOBRs; will be
reimbursed when rulemaking goes into effect
Recent Developments in
EOBR Regulation
• 2012 Highway Appropriations Bill
– FMCSA must develop a rule requiring EOBR use within one
– Amendment to bill prohibits federal funding for EOBR
• Commercial Driver Compliance Improvement Act
(Senate Bill 695)
– Requires integration of EOBR into ECM
Practical Considerations
• Litigation and evidentiary considerations:
– Spoliation
– Not complying with records policies
– Why not add more data?
• Pandora’s box?
• May help “logs not current” violations
Practical Considerations
• There is currently no EOBR rulemaking
in place
• Possible supplemental NPRM in 7/13
• Agency has announced it ill not meet
9/13 deadline in Maps 21 for EOBRs
National Registry of Certified
Medical Examiners
Effective 5/13/12
New specialized licensure
Must complete training program (9390.105)
Must pass exam (390.107)
Recurrent training (390.111(a)(5))
All trainers and programs must be certified by a
recognized acreditting organization and coordinate
with FMCSA
Hours of Service
Link to Rulemaking
Oral argument in DC Circuit was 3/15/13
(Effective Date of Rulemaking is 7/1/13)
Caution Urged in the Use of SafeStat Data
WARNING: Because of State data variations,
FMCSA cautions those who seek to use the
SafeStat data analysis system in ways not
intended by FMCSA. Please be aware that use of
SafeStat for purposes other than identifying and
prioritizing carriers for FMCSA and state safety
improvement and enforcement programs may
produce unintended results and not be suitable for
certain uses.
U.S. Inspector General Opinion
“Consequently, while SafeStat is
sufficient for internal use, its continued
public dissemination and external use
require prompt corrective action.”
SafeStat and Safer in Court
Evidence Admissible in Favor of Plaintiffs
• At least two courts permitted evidence re:
negligent hiring claims
• Jones v. C.H. Robinson Worldwide, Inc.
• Schramm v. Foster
• Evidence admissible in favor of Motor Carrier
• Fike v. Peace
• Smith v. Spring Hill
CSA 2010
• Created in response to criticism of
SafeStat and SAFER
• Three ratings
– Continue to operate
– Marginal
– Unfit
CSA 2010/CSA
• Focus on evaluating and targeting
“behaviors” which affect safety
• Through use of web based technology
and data reports from states, FMSCA
can more effectively evaluate safety and
at risk motor carriers and drivers
CSA 2010/CSA
• Seven BASICS (Behavior Analysis and
Safety Improvement Categories)
– Unsafe driving (1-5 mph speeding violations
– HOS compliance (fka Fatigued Driving HOS)
– Driver fitness
– Drugs/alcohol
– Vehicle maintenance (now includes all nonHazMat cargo issues)
– HazMat
– Crashes (not available to the public)
CSA 2010/CSA
• Admissibility
• CSA disclaimer – Data not meant for
• Unreliability of data
• Use SAFER/SafeStat cases for
arguments against admissibility
The key changes that FMCSA will make to the SMS public website by March 25, 2011 are as follows:
•Replace any ALERT symbol currently displayed in orange on the SMS
website with the following symbol of the exclamation mark inside a gold
triangle .
•Revise the disclaimer language on the SMS website to read:
1."The data in the Safety Measurement System (SMS) is performance
data used by the Agency and enforcement community. A symbol,
based on that data, indicates that FMCSA may prioritize a motor
carrier for further monitoring. The symbol is not intended to imply
any federal safety rating of the carrier pursuant to 49 USC 31144.
Readers should not draw conclusions about a carrier's overall safety
condition simply based on the data displayed in this system. Unless a
motor carrier in the SMS has received an UNSATISFACTORY safety
rating pursuant to 49 CFR Part 385, or has otherwise been ordered to
discontinue operations by the FMCSA, it is authorized to operate on
the nation's roadways. Motor carrier safety ratings are available at
http://safer.fmcsa.dot.gov and motor carrier licensing and insurance
status are available at http://li-public.fmcsa.dot.gov."
Mexican Trucking Program
• 1993-NAFTA was approved, however
President Clinton declined to implement
full open border policy with Mexico
Mexican Trucking Program
• Announced February 23, 2007; permitted by
FMCSR Part 381
• Allowed limited number of Mexican-based
trucks to travel throughout the United States
• Mexican motor carriers held to identical
standards as U.S. Carriers
• DOT inspectors in Mexico
– Truckload – no LTL
– U.S. Insurers
Mexican Trucking Program
• 2004 –Supreme Court of U.S. holds that
Mexican/U.S. cross-border provisions of
NAFTA can move forward
• Heavy opposition from Congress,
Teamsters, Interest Groups
Mexican Trucking Program
• Early 2009 Obama Administration and Congress
cease funding program
• Mexico retaliated with tariffs
• Deal reached – program reinstated, tariffs
• Interest Groups and hostile legislators are still
opposed – Teamsters and OOIDA have sued
• EOBRs paid for by U.S.
• As of 11/18/11 26 Mexican motor carriers have
Mexican Trucking Program
• On Friday, 4/19/13 the D.C. Circuit rejected
Teamster/OOIDA challenges to the program
• Mexican truck program complies with all
applicable law and can proceed
• Teamsters v. DOT – Case No. 11-1444
• OOIDA v. DOT – Case No. 11-1251
Hand-Held Mobile Telephones Banned:
FMCSR §390.5: Definition of use of hand-held mobile
• Using at least one hand to hold a mobile telephone to
conduct a voice communication;
• Dialing or answering a mobile telephone by pressing
more than a single button; or
• Reaching for a mobile telephone in a manner that
requires a driver to maneuver so that he or she is no
longer in a seated driving position, restrained by a
seat belt that is installed in according with 49 CFR
393.93 and adjusted in accordance with the vehicle
manufacturer’s instructions.
Hand-Held Mobile Telephones
• Ban includes texting on mobile devices
• Note: the “single button” rule will be difficult to
comply with
FMCSR §392.82: Statement of Prohibited
and Allowed Conduct
• No driver shall use a hand-held mobile telephone while driving
• No motor carrier shall allow or require its drivers to use a
hand-held mobile telephone while driving a CMV
• Driving means operating a CMV on a highway, including while
temporarily stationery … does not include when driver has
moved to side of, or off, a highway, or halted in a location
where the vehicle can safely remain stationery
• Emergency exception: Permissible when necessary to
communicate with law enforcement or other emergency
Hand-Held Mobile Telephones: Penalties
• Commercial drivers will face fines up to $2,750
for using phones, and revocation or suspension
of their commercial driver’s license for second
and subsequent offenses
• Employers who allow drivers to use phones
while driving face up to $11,000 in fines
Hand-Held Mobile Telephones
• CSA Motor Carrier Score Implications:
• Five texting and cell phone use violations will now
contribute to highest (10 points) weighted severity to
carrier’s numerical rankings in the Unsafe Driving Behavior
Analysis and Safety Improvement Score (BASIC)
• Violations include two each relating to operating a
commercial motor vehicle while texting and operating a
CMV while using a hand-held mobile telephone. The fifth
violation applies to motor carrier safety procedures
assigning a 10-point severity weighting to carriers’
“allowing or requiring driver to sue a hand-held mobile
telephone while operating a CMV.”
Hand-Held Mobile Telephones
Link to Rulemaking
The Future
Or preventability (385.3)
Accident “could have been averted but
for an act or failure to act by M/C or
• Open ended – not tort fault
The Future
Broker regulation?
Bond raised to $75k – 10/13
Shipper regulation?
FMCSA 5-year plan 2012-2016
Shippers and Brokers:
The Future: FMCSA Strategic Plan
“FMCSA will achieve its goal to maintain high
safety standards to remain in industry by
identify gaps in resources and authorities that
prevent FMCSA from reaching certain elements
of the CMV transportation life-cycle (e.g.
entities touching highway movement of
freight: shippers, receivers, brokers, freight
forwarders) that may have a detrimental
effect on safety through their actions.”
The Future: FMCSA Strategic Plan
“Further, the Agency will create a comprehensive
prioritization system based upon safety and risk analysis
to drive FMCSA intervention efforts. This will include a
single, unified, prioritization list based upon easily
updateable algorithms that cover each segment of our
regulated industry, e.g., passenger, HAZMAT property,
and HHG carriers, as well as shippers, including
intermodal freight, brokers, drivers, and cargo tank
manufacturers or repair facilities. This system will also
necessitate improving the tools regulated entities need to
proactively track, measure, and improve their own safety
Thank You!
Joe Pappalardo