Electronic Logging Devices: Information and Tips on FMCSA Mandate Now in Effect

As of December 16, 2019, the Federal Motor Carrier Safety Administration’s ELD mandate has gone into full effect.  Inspectors have now started to fully enforce the ELD mandate and it is imperative that motor carriers abide by the requirements of this mandate.

Who Must Use ELDs?

Generally speaking, commercial drivers who used to maintain paper logbooks are required to transition to ELDs under the new mandate. However, there are some exceptions to this regulation. The following scenarios do not require the mandatory implementation of ELDs:

  • Drivers that focus primarily on short-haul operations that use the logbook timecard exception (i.e., 100 air-miles for CDL drivers) can continue to keep records of their daily log on paper;
  • Drivers of vehicles that have engines manufactured prior to 2000 as a result of electronic connectivity capability of the engine;
  • Drivers who operate in a driveaway-towaway service in which the vehicle they are driving is a product or commodity being delivered; and
  • Most recently, drivers who have rented a truck for eight days or less.

Of the exceptions above, the short-haul exemption and the 100 air-mile exemption for CDL drivers can be the hardest to understand. Drivers who meet the short-haul exemptions outlined in section 395.1 (e) of the Federal Motor Carrier Safety Regulations are not required to use ELDs under the recent mandate. FMCSA recognizes that these drivers occasionally do not meet the conditions of these exemptions. In those instances, drivers are required to keep a paper log. However, drivers who use a paper log more than eight days in any rolling 30-day period must start using ELDs when they are not operating under the exception.

As for the 100 air-mile exemption for CDL drivers, they are exempt from the ELDs mandate if they meet all of the following criteria:

  • Operate within a 100 air-mile radius;
  • Go off duty within 12 hours;
  • Reports back to the same work location every day; and
  • Have at least 10 consecutive hours off before starting their next on-duty period.

If even one of the above criteria is not met, then the driver will not benefit from the 100 air-mile exemption on that day. It is worth noting, however, that this exemption is optional.

While drivers operating under an exception are not required to maintain detailed logs of their duty status, they are required to keep track of their on-duty time and therefore must maintain an accurate record of:

  • The time they go on duty;
  • The total number of hours they are on duty; and
  • The time they go off duty.

Data Collection and Sharing:

For an ELD to be compliant with the FMCSA, the device must be certified by the vendor and listed on the agency’s online registry. There are some 150 different ELDs that have been registered on the FMCSA website. There are two primary options for data transfer using the ELDs; a telematics option using web-based services or email, or a local option using Bluetooth or USB.

ELDs also must be able to handle one of the two methods for backing up data transfer. You can either choose an ELD with a graphical display that an inspector can view without entering the vehicle, or having an ELD that can print the driver’s log data.

In the event that an ELD malfunctions, the damaged unit must be replaced within eight days of the problem being discovered. During those eight days, drivers are permitted to maintain paper logs until the ELD returns to standard operating procedures.

ELD Enforcement:

It is imperative that companies and their drivers understand the requirements of the ELD mandate as vehicles can be placed out of service for as long as 10 hours for an ELD violation.

Drivers must maintain a weeks’ worth of ELD data for law enforcement review. That includes metadata such as the driver’s name, time, and status. Documentation can also include bills of lading, manifests, dispatch records, expense receipts, and payroll documents. This documentation is essential if a driver needs to support his hours of service.

All jurisdictions are required to document a driver or carrier’s inspection report noting that they are in violation of the ELD regulations, which will lead to subsequent inquiries into compliance on all future stops and inspections.

ELD Unit Malfunction:

If a driver’s ELD malfunctions, a driver must do the following to comply with the new mandate.

  1. Driver must note the malfunction or error of the ELD and provide written notice to the motor carrier within 24 hours of the ELD malfunction;
  2. Driver must reconstruct the record of duty status (RODS) for the current 24-hour period and the previous seven consecutive days, and record the RODS on graph grid paper logs, or electronic software that complies with 49 CFR 395.8, unless the driver already has the records or retrieves them from the ELD; and
  3. Driver must continue to prepare RODS until the ELD is serviced and back in compliance. However, the paper log cannot continue for more than eight days after the malfunction.  A driver that continues to record HOS on a paper log or electronic logging software beyond the eight days may be placed out of service.

Written by associate Patrick Wachter.

US DOT Debuts the FMCSA Drug and Alcohol Clearinghouse

As of January 6, 2020, the U.S. Department of Transportation (DOT) activated the Federal Motor Carrier Safety Administration (FMCSA) Drug and Alcohol Clearinghouse (Clearinghouse) through publishing a new rule codified at 49 U.S.C. 31306(a) with an eye toward the reduction of commercial motor vehicle crashes and fatalities. This web-based system (https://clearinghouse.fmcsa.dot.gov), will provide employers with information to identify drivers who have received DOT drug and alcohol violations. The Clearinghouse will also ensure that all DOT regulations are met before a driver is permitted to operate a commercial motor vehicle.

To access the Clearinghouse, employers will need to first register for an account. Accounts can be created by using the following link (https://clearinghouse.fmcsa.dot.gov/Register). The initial registration will be valid for five years unless terminated by the FMCSA. Annual reporting requirements became effective on January 6, 2020.

Once registered, employers can use the system to 1) verify a driver’s previous drug and alcohol violations; 2) update the status of new violations and 3) perform annual reviews of all employed drivers. In addition to registration with the Clearinghouse, employers, State Driver’s License Agencies, and the National Transportation Safety Board will be required to use the Clearinghouse to notify other agencies of a driver’s compliance with DOT requirements. Moreover, the National Transportation Safety Board and other enforcement personnel will be able to view a driver’s status remotely and will be required to report violations accordingly.

For employers, reporting is required if 1) the driver returns an alcohol test with a concentration of 0.04 or higher; 2) a driver refuses to take a alcohol or drug test; 3) an employer has actual knowledge of alcohol use within four hours of starting duty or prior to post-accident testing; 4) a negative return to duty test, and 5) completion of follow-up testing. In addition, employers are required to run a query through the Clearinghouse before hiring a prospective driver. Moreover, employers are required to run annual testing of each employed driver.

The Clearinghouse will collect the following information in the event of a drug and/or alcohol-related test: 1) the reason for the test; 2) the driver’s name date of birth and CDL number and state of issuance; 3) the employer’s name address in US DOT number; 4) the date of the test; 5) the date of the verified result; 6) the type of test; 7) reporting date; and 8) the result of the test. All information collected will be added to the database.

In sum, the Clearinghouse should expedite the verification and reporting requirements for employers with respect to prospective drivers and those currently employed. The Clearinghouse should also facilitate more accurate information gathering and verification. It is important to note that the creation of the Clearinghouse does not alter any other reporting requirements required by DOT or the FMSCA, and that all information contained in the database is subject to DOT retention procedures and must comply with FMSCA guidelines.

For more information about this article, please contact Adam Shareef at 410.230.3056 or ashareef@fandpnet.com.

F&P on the Road

Bert Randall presented “High Times at Work – Medical Marijuana and the Workplace” at the Carroll County SHRM Conference in Westminster, MD on November 1, 2019.

Steve Marshall attended the DRI Professional Liability Seminar in New York, NY on December 4, 2019

Andrew Stephenson and Steve Marshall are presenting “How to Crack Plaintiff’s Medical Mills” on February 21 in London, England.

Steve Marshall will attend the Complex Torts/Products Mobile in Los Angeles, CA on March 19.

Andrew Stephenson and Renee Bowen will be presenting at the Trucking Claims Boot Camps in Dallas, TX, Phoenix, AZ, Denver, CO, Omaha, NE, Philadephia, PA, Chicago, IL and Atlanta, GA. Steve Marshall will be presenting in Orlando, FL. Boot Camps are held February 11 – May 15.

FMC Investigation into Demurrage and Detention Charges

An increase in frequency of detention and demurrage charges assessed against port users across the country recently resulted in a Federal Maritime Commission (“FMC”) investigation into the detention and demurrage practices at U.S. ports.  The spike in detention and demurrage charges appears to be the result of factors outside of the control of port users, including increased port congestion and internal port inefficiencies. The increased congestion at ports has led to increased commercial driver turn times, decreased productivity and efficiency, an inability to retrieve an adequate number of containers, and has compounded the already pervasive issue of the commercial driver shortage for drayage motor carriers due to mounting driver frustration.

In September 2018, the FMC commissioner issued an interim report and Notice of Proposed Rule Making for “just and reasonable regulations and practices relating to or connected with receiving, handling, storing, and delivery of property.” The focus of the FMC investigation was to closely examine port practices that are leading to substantial detention and demurrage charges to port users and to provide solutions to move cargo more efficiently through the ports. The interim report revealed that there are differing, often conflicting, standards from port to port with respect to many demurrage and detention practices and recognized the need for uniform standards and transparency.

In December 2018, the FMC commissioner issued a final report on the investigation. The final report concluded that there was a need for greater transparency and consistency in notice, billing practices, dispute resolution and terminology in the ports’ detention and demurrage practices. The final report therefore recommended that the FMC create “Innovation Teams” to establish ways to standardize port practices. The FMC is in the process of reviewing the recommendations of the final report and will either accept or reject the recommendations.

While the standardization of demurrage and detention practices would be a step in the right direction, the underlying port inefficiencies must be addressed in order to combat the growing concerns in the intermodal industry.

For more information about this article, please contact Renee Bowen at 410.230.3943 or rbowen@fandpnet.com.

 

 

F&P on the Road

Distracted Driving and Nuclear Verdicts

The trucking industry has experienced an increase in nuclear jury verdicts since January 2017.  In fact, in the last year, we have seen the two largest jury verdicts ever awarded in the trucking industry.  Large awards are typically attributable to a jury’s desire to send a message or punish carriers and drivers for specific acts.  In other words, in trials that result in massive civil judgments, awards for punitive damages, if sought, far exceed awards for compensatory damages.  As it turns out, the reason for this trend may be rather simple; with an increase in commercial vehicle accidents involving a distracted driving component, the transportation industry has seen an increase in nuclear verdicts.

There are three classifications of distracted driving: visual, physical, and cognitive.  Visual distractions include mobile devices and texting, GPS devices or maps, and even scenic and external distractions.  Mobile devices and texting are also types of physical distractions, based on the requirement that drivers must take their hands off of the wheel to operate them.  Other physical distractions include smoking and reaching for something in a vehicle.  Conversely, cognitive distractions take driver’s minds away from the road.  Loud music, conversation, and stress or fatigue are examples of cognitive distractions.  Driving under the influence of alcohol or drugs combines all three classifications of distracted driving.

In April 2018, a Valparaiso, Indiana jury awarded a motorist $16.5 million for injuries sustained when a tractor-trailer rear-ended a passenger vehicle while it was stopped at a red light in the case of Binkowski v. Grand Island Express. At trial, the defense conceded the truck’s operator was solely responsible for the accident.  In fact, it was determined that the truck driver was text messaging on his cellular phone, which, the driver testified, took his eyes and attention off the road.  Despite testimony from the plaintiff’s employer that the plaintiff’s job performance, which included the operation of a forklift, had not been impacted by the accident, the jury jumped at the opportunity to punish the trucking company.  Whether the trucking company failed to institute preventative policies or adequately train its drivers, its perceived recklessness and inattention struck a chord with the jury – actual, compensable injuries notwithstanding.  Of the ultimate award in this case, $7 million was awarded in punitive damages.

In July 2018, a jury in Upshur County, Texas awarded $101 million to a man who was injured in a rear-end accident by a distracted driver operating a tractor-trailer.  In Patterson v. FTSI, LLC. et al., the plaintiff sustained only soft-tissue injuries and eventually had back surgery, but the ultimate award was not based on the severity of the plaintiff’s injuries.  Rather, $75 million of the verdict was in punitive damages.  Over the course of the trial, it was discovered that the tractor-trailer driver was under the influence of marijuana and methamphetamine at the time of the accident.  Though the operator’s actions themselves were reprehensible, the jury took exception to the actions, or inaction, of the operator’s employer, also a defendant in the case and a large hydraulic provider in the fracking industry.  The operator’s employer was found to have fabricated the driver’s former drug test results and credited him for training he never completed.  The employer had internal policies which, if enforced, would have removed the truck’s operator from the road prior to the accident.  It seems this one procedural miscue drove the jury’s deliberation, but the underlying cause of the accident was distracted driving.

In November 2018, a second jury in Upshur County, Texas awarded $260 million to the family of a deceased motorist who was killed after colliding with the side of a tractor-trailer that was blocking all four lanes of a highway in the case of McPherson v. Jefferson Trucking.  Much like the two cases addressed above, there were aggravating factors that contributed to the jury’s award.  The tractor-trailer driver had been operating his vehicle for approximately 17 hours at the time of the accident, which violated the hours of service regulations.  Therefore, fatigue was a likely factor in the accident.  In addition, the decedent’s family was successful in showing that the driver had a history of reckless driving, likely leading to an increase in the award.

Nuclear verdicts are trending up.  As noted, there seems to be a common thread between them.  That is, there exists some act leading to distracted driving, whether visual, physical, or cognitive, and an element of preventability and accountability on behalf of the carriers and trucking companies.  There is no dispute that distracted driving significantly increases the likelihood of catastrophic accidents. The recent nuclear verdicts in cases involving commercial vehicle accidents with a distracted driving component, make clear that juries will hold not just the driver accountable, but the motor carrier accountable as well for the safety of the public on the roadways.

For more information about this article, please contact Patrick Toohey at 410.230.1085 or ptoohey@fandpnet.com.

Traveling Employees and the Going and Coming Rule

In Delaware, an injured worker is entitled to workers’ compensation benefits for an injury arising out of and in the course of employment.  The Industrial Accident Board and appellate courts interpreted this language as creating a “going and coming” rule, which prohibits compensation for injuries sustained while traveling to and from work.  The rationale behind the rule is that an employee faces the same hazards as the general public during his or her daily commute.  Application of the rule appears straight forward, however, several exceptions have been created.

The first is the dual-purpose exception.  An employee’s injury may occur while serving both a private and business interest.  The dual-purpose exception looks to whether it is the private or business interest that compels the need for travel.  The second exception is the special errand exception. This exception involves travel with the added element of “special inconvenience, hazard or urgency.”  The third exception is the compensation exception.  This exception states that if the employee is paid for travel, the injury occurred while traveling is compensable.  The fourth is the premises exception.  This exception states that once the employee reaches the employer’s premises, his or her routine travel has ended.  The final exception is the traveling employee exception.  Somewhat related to the compensation exception, the traveling employee exception states that an employee who does not have a fixed place of employment or only a semi-fixed place of employment may not be subject to the going and coming rule.

The Supreme Court of the state of Delaware recently provided a two-step process for how the board should handle the traveling employee and the going and coming rule cases in Spellman v. Christiana Care Health Services.  First, the board must review the employment contract to determine if the contractual terms resolve the dispute of whether the injury occurred in the course and scope of employment.  If the contract is ambiguous or does not answer the question, the board will then consider the applicability of the going and coming rule.

Employers should be mindful of the manner in which employment contracts are drafted to address the “going and coming” rule, particularly where the employee will be subject to different types of travel.  Employers would be best served in specifying how the parties view specific types of travel, i.e., whether that travel would arise out of and take place in the course of employment to remove any potential ambiguity and control risk.

For more information about this article, please contact Robert Hunt at 302.594.9780 or rhunt@fandpnet.com.

 

F&P on the Road

Steve Marshall attended the DRI Products Liability Seminar in Austin, TX from February 5 – February 8.

Lynn Fitzpatrick and Jennifer Helsel attended the Virginia Workers’ Compensation Commission Inn or Court Annual Meeting in Charlottesville, VA from March 12 – March 13.

Lynn Fitzpatrick was inducted into the College of Workers’ Compensation Lawyers at the ABA 2019 Workers’ Compensation Midwinter Seminar and Conference in Coral Gables, FL from March 14 – March 16.

Skip Crawford, Renee Bowen, and Andrew Stephenson attended the ABA Transportation Megaconference in New Orleans from March 20-22.  Andrew presented The Top Ten List:
Recent legal and regulatory developments affecting truck litigation and operation.

Bert Randall will be presenting at Captive Resources, CGI Captive in St. Louis, MO on April 9 and in Nashville on April 11.

Sarah Lemmert will be presenting at Captive Resources, NCI Captive in Salt Lake City, UT on April 11.

Tamara Goorevitz will be presenting “Lawyers: A necessary evil in the supply chain or a blessing!?” at the TIA Capital Ideas Conference and Exhibition in Orlando, FL from April 10-13.

Steve Marshall will attend the Magna Legal Services Seminar in Las Vegas, NV on April 20 – April 22.

Andrew Stephenson and Renee Bowen will be presenting at the Trucking Claims Boot Camps in Dallas, TX, Denver, CO, Chicago, IL, Atlanta, GA, Orlando, FL,  Morrisville, NJ, and Steve Marshall will be presenting in London, England. Boot Camps are held from April 3 – July 1.

The Uncertain Future of CSA Scores and Safety Rating

To the extent that courts continue to impute liability to brokers for the negligent acts of the contracted motor carriers, the problem is compounded by the current, uncertain state of the FMCA’s system for collecting motor carrier data and publishing safety assessments of motor carriers.  Ever since the FMCSA, in 2010, first instituted Compliance, Safety, Accountability (“CSA”), the program by which the FMCSA measures motor carriers’ safety performance, it has been subject to a range of criticism from key stakeholders.  Following a mandate from the Fixing America’s Surface Transportation Act (“FAST Act”) of 2015, the FMCSA authorized a replacement of the CSA’s Safety Management System (“SMS”), and authorized the National Academy of Sciences (“NAS”) to conduct a thorough study of the efficacy and integrity of the CSA program.   In particular, the NAS was tasked with addressing various key criticisms of the system, such as how to collect more and better data regarding motor carrier safety, the need for a better and more statistically sound data-collection methodology than the SMS, and the need for better user interface for stakeholders to access information and results on the FMCSA’s websites.

The NAS, comprised of a 12-member elite panel of researchers, published its report in mid-2017 at the end of a 15-month study.  The NAS concluded that generally the SMS system for identifying high-risk motor carriers was “conceptually sound” and had good overall goals, but it recommended sweeping changes, including a more detailed, “more statistically principled approach” to data measurement in the form of an alternate methodology to SMS, called “Item Response Theory” (“IRT”), a data measurement model that has been successfully used to analyze a range of social issues.  Under the SMS, safety scores relied on seven Behavior Analysis and Safety Improvement Categories (or “BASICs”).  The NAS recommended that the FMCSA adopt this new methodology model, but suggested that the agency take its time testing and incorporating it into its current system.  The FMCSA has signaled its adoption of the IRT system, and one year into its evaluation of its two-year planned study of IRT, the agency has said that it is making progress, but that it is too soon to say whether the new methodology could improve on the CSA program.  The agency said it will complete its full evaluation by the Fall of 2019.

One issue of concern is that the new system, even if statistically improved, involved greater complexity that will create challenges for stakeholders used to the simpler (if substantially flawed) CSA system.  Another concern for stakeholders in the transportation industry is precisely which data will be collected moving forward, and whether the data-collection methods will accurately reflect which motor carriers are at-risk carriers, and which are not.

For example, many motor carriers have complained that in the past, drivers have not been given credit for “no violation” or “clean” roadside inspections by federal inspectors, whereas their negative inspection results do get recorded.  In addition, much concern has been voiced from the industry that safety results published by the FMCSA tend to misrepresent the safety risks of motor carriers by failing to eliminate “non-preventable” crashes from the agency’s safety scores.  In response, the FMCSA instituted a Crash Preventability Demonstration Program in August 2017, whereby motor carriers could file requests for data review (“RDRs”) with the agency, regarding motor carrier crashes where the carrier’s driver was clearly not at fault.  As of now, the new program has experienced some growing pains. However, this is one sign that the agency has become more responsive to legitimate concerns from within the trucking industry that the safety ratings made public by the FMCSA mislead the public into thinking that a motor carrier presents a higher risk to safety than it actually does.

For more information regarding this article, please contact Tom Morris at 410.230.3575 or tmorris@fandpnet.com.

Changes to Driver Qualifications

The commercial transportation industry continues to experience a shortage of qualified drivers and the issue has risen to one of the industry’s top concerns. The driver shortage can be attributed to a multitude of factors, including continued industry expansion and retirement of older drivers without sufficient interest from younger potential drivers to replace them.  In an effort to combat the driver shortage plaguing the commercial transportation industry, the Federal Motor Carrier Safety Administration (“FMCSA”) has implemented a number of changes to driver qualifications with the goal of increasing the number of individuals who qualify to become commercial drivers.

One such recent change relates to the requirements of a driver’s physical health. Previously, insulin-dependent diabetic drivers were prohibited from operating commercial vehicles in interstate commerce without an exemption from FMCSA.  However, the FMCSA recently issued a final rule to allow certified medical examiners the discretion to decide whether an insulin-dependent diabetic driver is qualified to drive without seeking an exemption.  Beginning November 19, 2018, medical examiners are now able to issue a diabetic driver a one-year medical certification if the driver’s primary health care provider submits a completed assessment form indicating the individual maintains a stable insulin regimen and proper control of his/her diabetes to the medical examiner.

In addition to changes in regulations related to a driver’s physical health, the increased shortage of drivers has led to a rejuvenated push to lower the CDL age requirement.  Under current law, individuals must be at least 21 to drive a commercial vehicle interstate; however, some states allow individuals under 21 to driver intrastate. In March 2018, the DRIVE-Safe Act was introduced in the House of Representatives and introduced in August 2018 in the Senate. The DRIVE-Safe Act would allow individuals age 18 to 20 who possess a CDL to drive interstate upon completion of 240 hours of on-the-road experience with an experienced truck driver and certain safety features such as automatic active-breaking systems.  The DOT is also launching a three-year pilot program to permit individuals age 18 to 20 who possess the U.S. Military equivalent of a CDL to operate large trucks in interstate commerce.

While the FMCSA is looking to increase the number of qualified drivers, it is also maintaining its focus on ensuring that drivers are adhering to established safety regulations and standards.  Part of ensuring safe roadways is ensuring that commercial drivers are free from drugs and alcohol.  To that end, commercial drivers are required to undergo drug tests, including pre-employment, random, and, under some circumstances, post-accident drug tests.  As of January 1, 2018, four new drugs have been added to the DOT drug testing panel requirements: hydrocodone, hydromorphone, oxymorphone, and oxycodone.

Currently, urinalysis is the only federally-approved drug testing method for commercial drivers. However, the FMCSA is moving towards permitting drug testing through hair sampling. Proponents of the hair sampling method point to the method’s longer detection window, increased accuracy, and decreased ability to cheat the drug test as benefits. On October 28, 2018, President Trump signed into law the SUPPORT for Patients and Communities Act which directs the Secretary of Health and Human Services to provide an estimated date for completion of the final guidelines for hair follicle drug testing under the FMCSR.  Although the precise situations in which the hair sampling method will be permitted and the precise guidelines for same are not yet determined, it is clear that hair sampling will soon be a permissible drug testing method in at least some circumstances under the FMCSR.

For more information regarding this article, please contact Ellen Stewart at 410.230.2670 or estewart@fandpnet.com.