trucking litigation

EXPANDED FEDERAL REGULATORY

REQUIREMENTS:

Incorporating CSA, FMCSA, DOT, and

Safety Ratings Into Your Litigation Strategy

AMERICAN CONFERENCE INSTITUTE

3rd National Forum on Defending and Managing

TRUCKING LITIGATION November 29, 2012

Atlanta, Georgia

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 Rule-

Making 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

records


• EOBR-1 Vacated

OOIDA v. FMCSA, 656 F.3d 580 (7th Cir. 2011)

• FMCSA failed to address driver harassment, other

issues

49 U.S.C. § 31137(a)

• FMCSA withdraws EOBR-1 final rule


• 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

day

• EOBRs must provide instructions for law enforcement

access

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

EOBR

• 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

USBIF (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

completion

• Driver input can only occur at rest

In Favor

• Large Carriers

• ATA

• NPTC

• TCA

• Alliance for Driver

Safety & Security

Reaction to EOBR Regulations

Opposed

• Small Carriers

• Owner-Operators

• OOIDA

• 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

Reaction to EOBR Regulations

• 2012 Highway Appropriations Bill

– FMCSA must develop a rule requiring EOBR use within one

year

– Amendment to bill prohibits federal funding for EOBR

mandate

• Commercial Driver Compliance Improvement Act

(Senate Bill 695)

– Requires integration of EOBR into ECM

Recent Developments in

EOBR Regulation

• 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

Hours of Service

Link to Rulemaking

http://www.fmcsa.dot.gov/rules-regulations/topics/hos/index.htm

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.

SafeStat

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

– Fatigued driving

– Driver fitness

– Drugs/alcohol

– Vehicle maintenance

– Improper loading/cargo issues

– Crashes

CSA 2010/CSA

• Admissibility

• CSA disclaimer – Data not meant for

litigation

• Unreliability of data

• Use SAFER/SafeStat cases for

arguments against admissibility

Mexican Trucking Program

• 1993-NAFTA was approved, however

President Clinton declined to implement

full open border policy with Mexico


• 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


• 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


• Early 2009 Obama Administration and Congress cease funding program

• Mexico retaliated with tariffs

• Deal reached – program reinstated, tariffs removed

• Interest Groups and hostile legislators are still opposed – Teamsters and OOIDA have sued again

• EOBRs paid for by U.S.

• As of 11/18/11 26 Mexican motor carriers have applied

Hand-Held Mobile Telephones Banned:

1/3/12

FMCSR §390.5: Definition of use of hand-held mobile

telephone:

• 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

a CMV

• 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

services.

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


• 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.”


Link to Rulemaking

http://www.gpo.gov/fdsys/pkg/FR-2011-12-

02/html/2011-30749.htm

Thank You!

Joe Pappalardo

[email protected]

trucking litigation

Career