How Trucking Fleets Can Escape the Insurance Squeeze

Sixth Circuit Deepens Circuit Split on FAAAA Preemption of Broker Liability Claims

Wed, 09 Jul 2025 19:10:20 GMT

Yesterday, the United States Court of Appeals for the Sixth Circuit found broker liability claims for negligent selection of a motor carrier brought against Total Quality Logistics (“TQL”), a broker, are not preempted by the Federal Aviation Administration Authorization Act (“FAAAA”), 49 U.S.C. § 14501(c), due to the statute’s exception for a state’s safety regulatory authority with respect to motor vehicles. The decision in Cox v. Total Quality Logistics , comes one year after the Eleventh Circuit held a similar claim against the same broker was preempted and creates an even split on the question of applicability of the “safety exception,” with the Ninth and Sixth Circuits holding such claims are saved from preemption and the Seventh and Eleventh Circuits holding the claims preempted.

The Cox case arose out of a 2019 accident involving motor carrier Gold Transit, Inc. that occurred while Gold Transit was hauling a load tendered by TQL. TQL was sued, alleging it was a broker that was negligent in hiring the motor carrier.

As noted, the Sixth Circuit’s opinion means that four federal Courts of Appeals have addressed preemption of claims against brokers. The first to do so held that such claims were within the bounds of the general preemption clause of the FAAAA, but were ultimately not preempted because of the safety exception to the FAAAA . M iller v. C.H. Robinson Worldwide, Inc., (9th Cir. 2020). The next two appellate court decisions both found that the claims were within the FAAAA’s preemptive scope, and were not saved from preemption by the safety exception , because claims against brokers are not with respect to motor vehicles. Aspen Am. Ins. Co. v. Landstar Ranger., (11th Cir. 2023) (see also Gauthier v. Hard to Stop LLC , (11th Cir. 2024)); Ye v. Global Tranz Enterprises, Inc. (7th Cir. 2023).

In Cox , the Sixth Circuit agreed that the negligent hiring claims against TQL as a broker fell within the preemptive scope of the FAAAA. However, the court found that the claims were saved from preemption because they fall “within the safety regulatory authority of a State with respect to motor vehicles”. On this point, the court demurred as to the question of whether the underlying state law the defendant seeks to preempt (here, state common law) must be directly related to the safety regulatory authority of a state with respect to vehicles. Rather, the court found that regardless, there was a direct link because the negligent hiring claim against TQL “substantively concerns motor vehicles and motor vehicle safety”.

While there are no guarantees, the deepened circuit split increases the likelihood that the Supreme Court will take up the question should TQL decide to request Supreme Court review. There is an already pending request for the Supreme Court to take up the issue from a plaintiff’s appeal of a different case from the Seventh Circuit. The Supreme Court has refused to decide the issue on several prior occasions.

For questions regarding the Cox decision, please contact Nathaniel Saylor or Jay Starrett .

What You Need to Know to Survive an FMCSA Audit

Mon, 07 Jul 2025 13:17:06 GMT

The Federal Motor Carrier Safety Administration (FMCSA) conducts thousands of audits each year to enforce the motor carrier safety and hazardous materials regulations. The targets of these audits are interstate motor carriers as well as in-state-only carriers that transport hazardous materials.

S urviving an FMCS A audit depends on knowing the types of audits being conducted, understanding what to expect during an audit ( and preparing for it! ), and having all required documentation in place.

FMCSA audits, sometimes called “DOT audits” or “investigations,” come in three main varieties:

OFFSITE FOCUSED INVESTIGATIONS target a specific area of compliance, such as hours of service. The motor carrier sends its compliance records to the FMCSA regional office for review. This type of investigation does not result in a safety rating.
ONSITE FOCUSED INVESTIGATIONS also target a specific area of compliance, but enforcement personnel will perform the audit at the motor carrier’s principal place of business (as identified on the USDOT registration). This type of investigation also does not result in a safety rating.
ONSITE COMPREHENSIVE INVESTIGATIONS address all aspects of a motor carrier’s operation and take place at the motor carrier’s principal place of business. This type of investigation results in a safety rating.

Safety Ratings

The FMCSA will only assign a safety rating to a motor carrier after performing an onsite comprehensive investigation. The onsite comprehensive investigation contains the compliance review model.

Appendix B to Part 385 details the method used in the compliance review to arrive at one of the following three possible safety ratings:

SATISFACTORY. The motor carrier’s safety management controls are considered functioning and adequate.
CONDITIONAL. The motor carrier does not have adequate safety management controls in place to ensure compliance, and the motor carrier has to make some changes to show it is working on the problem areas.
UNSATISFACTORY. The motor carrier does not have adequate safety management controls in place to ensure compliance, and its violations are to such a degree that the motor carrier is prohibited from operating commercial motor vehicles.

Note that the FMCSA has proposed to change the way it issues safety ratings. Rather than relying solely on comprehensive reviews, the agency would like to use roadside inspection data, data collected during investigations (of any type), or a combination of the two to arrive at a rating. Under this proposed system, carriers would be rated as either “fit” or “unfit” to continue operating.

New Entrant Safety Audits

In addition to the investigations noted earlier, the FMCSA reviews the compliance of new entrants through a safety audit. A “new entrant” is a motor carrier that applies for United States Department of Transportation registration (i.e., a USDOT number) in order to operate in interstate commerce. New entrants are given a “new entrant registration” status and their safety management practices are monitored for an 18-month period.

The FMCSA will perform a new entrant safety audit within 12 months for a property carrier and 3 months for a passenger carrier . The compliance documents and processes examined for new entrants are the same as for those companies that have been in business for years. The safety audit is used to monitor and assist the new carrier in establishing a sound safety program from the onset. It is for educational purposes and will not result in a safety rating. However, if inadequate basic safety management controls are found during a safety audit, the new entrant will be unable to continue operating in interstate commerce.

Audit Preparation

The results of any investigation will affect a company either positively or negatively depending on the outcome. If you pass an audit with flying colors, you are demonstrating — to business partners, employees, and any other interested parties — that you have been proactive in your safety management.

If you perform poorly in an audit, you may experience monetary fines and be given either an unsatisfactory or conditional rating. An unsatisfactory safety rating can put your company out of business.

A conditional rating allows the carrier to continue in operation, but its reputation now has been tarnished. This may affect the ability to attract customers and quality drivers, dispatchers, and technicians. Since the safety rating is public knowledge, your insurance carrier will no doubt use this when determining your rates. And, finally, if your carrier is ever involved in a crash, a plaintiff’s attorney will surely use your safety history to discredit your carrier’s name in front of a judge and jury.

But there is hope! By proactively using the right information, tools and safet y resources , you can identify areas to improve upon in your safety program. Correcting problems well before an audit — rather than after — will help your overall safety rating in the event you are selected for an investigation.

The best advice is to join a national transportation association of your peers such as the NorthAmerican Transportation Association whose members covers many types of small to medium private companies, motor carriers and Independent Contractors. They are the most knowledgeable in the industry.

The best defense against a negative FMCSA audit is preparation !

Pittsburgh-Area Coca-Cola Driver Slams Teamsters With Federal Charges for Threatening Firing Over Refusal to Fund Union Politics

Mon, 07 Jul 2025 13:12:15 GMT

Worker’s case seeks to change federal standards so that union bosses must convince workers to ‘opt-in’ to supporting union politics

Pittsburgh, PA (July 3, 2025) – Josh Hammaker, a driver for ABARTA Coca-Cola’s Houston, PA, distribution center, has filed federal charges against Teamsters Local 585 union officials at his workplace. Hammaker is charging Teamsters union officials with violating federal law by threatening to get him fired if he did not formally join the union, and with forcing him to pay for union expenditures – including union political activities. Hammaker filed his charges at the National Labor Relations Board (NLRB) with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.

Hammaker’s charges state that Teamsters union officials breached federal labor law by “telling [him] that he is not permitted to become a Beck objector and that formal union membership is a condition of employment,” – i.e. they would demand his firing if he refused to join. Under the Foundation-won Communication Workers of America v. Beck Supreme Court decision, union bosses cannot force workers who have opted out of union membership to pay fees for union political or ideological expenditures.

While the National Labor Relations Act (NLRA) protects workers’ right to abstain from formal union membership, states like Pennsylvania that lack Right to Work laws permit union officials to enforce contracts that mandate workers pay dues or fees to keep their jobs. However, this forced-dues power is limited by Beck . In contrast, in Right to Work states, all union financial support is strictly voluntary, so workers can freely withhold dues payments if they find union officials’ monopoly “representation” is harming them.

Coca-Cola Driver’s Case Challenges NLRB Precedent Regarding Dues for Politics

Hammaker’s charges go on to challenge the fact that Teamsters union officials’ policies force workers to “affirmatively opt out of paying for non-chargeable expenditures” (if such requests are accepted at all), as opposed to letting workers voluntarily opt in to such support. Moreover, “the Union has violated the Act by failing to inform [Hammaker] and similarly situated employees of the true amount of dues they are required to pay” under Beck to stay employed, the charges conclude.

Union officials often neglect to inform workers of their Beck rights, and sometimes don’t even seek worker consent before deducting full dues (including dues for political expenses) from their paychecks. If Hammaker’s case is successful, the NLRB could create a new federal standard mandating union officials to seek clear consent from workers before extracting full union dues payments from their paychecks.

“I don’t support Teamsters politicking. My job definitely shouldn’t hinge on whether or not my hard-earned money is funding it,” commented Hammaker. “It’s bad enough I have to pay any money to Teamsters officials just to keep my job, but the NLRB should at least prevent union officials from automatically taking political funds from an employee’s wages by default and instead place the responsibility on the union to obtain the employee’s consent.”

“Like the rest of top Big Labor bosses, Teamsters kingpins oppose popular Right to Work laws so they can extort dues from unwilling workers and use that money to fund a radical political agenda that is completely out of touch with the priorities of most rank-and-file employees,” commented National Right to Work Foundation President Mark Mix. “The solution to this problem is ensuring all union payments are completely voluntary, so union officials cannot have workers fired solely for refusing to pay dues or fees.

“While we wait for the day when Congress takes action to strip union officials of their government-granted forced-dues powers, the NLRB should help protect workers from the worst forced-dues-for-politics abuses,” added Mix. “It’s long past time that the NLRB require union officials to earn political support from those workers they claim to ‘represent’ and end schemes that require workers to opt-out of funding union political activities.”

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year. Its web address is www.nrtw.org .

Is it a Rest Area or a Stress Area?

Mon, 07 Jul 2025 13:09:49 GMT

Adequate truck parking is critical to the success of the transportation industry. But, with an estimated national average of just 1 truck parking spot available for every 11 truck drivers, research on how to expand such parking options at public rest stops has recently become a top priority.

Truck parking concerns have sparked attention at both state and federal levels, prompting the American Transportation Research Institute (ATRI) to release data in collaboration with the American Association of State Highway and Transportation Officials (AASHTO). The agencies’ joint research covers all 50 state Departments of Transportation, as well as Puerto Rico and Washington, D.C.

Truck parking research results

Findings revealed that, on average, rest areas have 19 truck parking spaces; Southern states typically had an average of 25 truck parking spaces per stop while Northeast states averaged 15 spaces.

ATRI created a dashboard that breaks down each state’s public truck parking availability, including any available safety features. The dashboard covers 47 states and is available on ATRI’s website: https://truckingresearch.org/2025/04/truck-parking-index/

The dashboard also includes:

The number of parking spaces per 100 miles of roadway,
The state's maintenance budget per space, and
The ratio of public to private parking spaces.

According to ATRI’s dashboard, Florida has the most truck parking spaces available at rest stops, Indiana has the most rest area truck parking spaces per 100 miles of national highway, and Virginia has the highest annual maintenance budget per parking space.

Truck parking research efforts

National research efforts on public truck parking included:

A joint ATRI/AASHTO survey to understand costs and provisions;
A collection of data on issues and costs connected to land, construction, maintenance, and amenities;
Select case studies on specific topics of interest:
Truck parking information systems,
Truck parking provisions for severe weather, and
Repurposing state-owned locations for truck parking; and
A survey on state efforts to increase parking, with over 500 driver participants.

USDOT Issues Roadside English Language Test

Wed, 11 Jun 2025 19:01:51 GMT

In response to a directive from the Trump administration, the U.S. Department of Transportation has issued a new enforcement policy aimed at ensuring commercial truck and bus drivers are able to read and speak English.

The internal policy, issued May 20, 2025, is now in effect. It includes guidance for how roadside enforcement personnel should enforce the English language proficiency requirements in 49 CFR 391.11(b)(2).

Two-part assessment

The policy advises officers to begin all roadside inspections in English. If it seems the driver may not understand the officer’s initial instructions, the officer is directed to conduct a two-part assessment to evaluate the driver’s compliance with the English language standard.

The first step is a driver interview, though details of the interview process were redacted from the public version of the policy. The policy says drivers should not use tools to facilitate communication during the interview, such as interpreters or smart-phone applications.

The policy directs officers to cite drivers for a violation if they cannot pass the interview portion of the assessment.

Step two in the assessment is evaluating whether the driver can recognize common highway traffic signs. The policy contains images of signs officers can use for this part of the test, but those too are redacted from the public version of the policy.

‘Out of service’ as of June 25

If a driver fails the test, the policy says the officer should:

Cite the driver for a violation of 391.11(b)(2);
Document evidence to support the violation, including the driver’s responses or lack thereof;
Beginning June 25, place the driver out of service (June 25 is when the violation will be added to the North American Standard Out-of-Service Criteria, as previously announced by the Commercial Vehicle Safety Alliance); and
When warranted, initiate an action to disqualify the driver from operating commercial motor vehicles in interstate commerce.

Drivers who are placed out of service won’t be allowed to drive until they can meet the English language requirements.

The policy applies to all federal enforcement personnel who perform inspections on drivers engaged in interstate commerce. Its effect on state-level enforcement remains unclear for now.

According to the policy, drivers in a commercial zone along the U.S.-Mexico border may be cited but should not be placed out of service.

The regulation

The Federal Motor Carrier Safety Regulations state that commercial drivers must be able to “read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.”

The new policy replaces a 2016 policy that ordered inspectors not to place drivers out of service for violating the language requirement.

Drive Like Someone’s Watching — Because They Are!

Mon, 09 Jun 2025 14:06:22 GMT

Time to look alive, drivers! Operation Safe Driver Week will run from July 13-19 this year, with a focus on reckless, careless, and dangerous driving. Officers in Mexico, Canada, and the U.S. will be looking out for commercial drivers’ unsafe driving habits — don’t be one of the offenders!

During last year’s initiative, officers in Canada and the U.S. pulled over 11,050 vehicles, issued 2,712 tickets and citations, and gave 3,228 warnings to both commercial and passenger vehicle drivers. Research shows that these interactions have had a positive impact on safe driver rates over time.

What do drivers need to know?

The Commercial Vehicle Safety Alliance (CVSA) runs Operation Safe Driver Week every summer to help encourage safe driver practices and improve road safety for everyone. Law enforcement personnel are looking for:

Speeding,
Following too closely,
Drunk driving,
Drugged driving,
Distracting driving, and
Other unsafe driving habits.

Drivers who engage in these types of behaviors will be pulled over and issued a warning or citation. Any person who drives a vehicle with clear disregard for safety is considered a reckless driver. All drivers must operate with due care and attention, and with reasonable consideration for everyone else on the road.

Why Operation Safe Driver Week matters

Data from the U.S. National Highway Traffic Safety Administration revealed that 42,514 people were killed in traffic crashes during 2022. Also in 2022, Canadian statistics reveal 1,931 motor fatalities, while Mexico statistics report 15,979 road deaths.

The goal of Operation Safe Driver Week is to address and reduce these rates by improving awareness. To boost these efforts, CVSA also offers other driver education initiatives to bring more attention and information to their cause.

CVSA will be offering:

Resources for teen drivers and new drivers,
Resources for commercial motor vehicle drivers, and
Public service announcements

Transportation Secretary Promises to go After “Bad Actors” in Trucking

Mon, 09 Jun 2025 14:02:08 GMT

Promising to end the “plague of bad actors” in trucking, Transportatio n Secretary Se an P. Duffy signed an order officially rescinding previous FMCSA guidance on enforcing requirements for English proficiency for drivers. At the same time, he promised more action from the DOT in areas such as truck parking and non-domiciled CDLs.

In an official signing at a trucking event in Austin, Texas, on May 20, Duffy said, “We’re going to replace it with stronger enforcement procedures.”

Under the new guidance, commercial motor vehicle drivers who fail to comply with the Federal Motor Carrier Safety Administration’s longstanding English-language proficiency requirements will be placed out of service.

This new guidance, which Duffy announced in April, is in response to President Trump’s Executive Order to strengthen highway safety by ensuring that all commercial drivers are properly qualified and proficient in English.

The English Proficiency Problem

According to existing federal regulations, to drive a commercial motor vehicle in interstate commerce, drivers must be able to speak and read English satisfactorily to:

Converse with the general public.
Understand traffic signs and signals.
Respond to official questions.
Make legible entries on reports and records.

However, in 2016, the Federal Motor Carrier Safety Administration put out guidance that violators were no longer to be placed out of service.

In 2015, Duffy said, before the guidance was changed, there were almost 100,000 violations of the English proficiency requirements. Of those, 1,000 were put out of service. In 2024, he said, there were only 10,000 violations, and no drivers were put out of service.

Duffy thanked the Commercial Vehicle Safety Alliance for its prompt cooperation in changing its out-of-service criteria to accommodate the change. Beginning June 25, English language proficiency violations will once again be included in the out-of-service criteria .

How Will Officers Determine Violations of the English Proficiency Rules?

In making the initial announcement last month, Duffy promised that there would be guidance forthcoming from the Federal Motor Carrier Safety Administration for commercial motor vehicle inspectors to ensure enforcement of the English language proficiency standard is applied consistently.

The new policy advises FMCSA personnel to initiate all roadside inspections in English. If the inspector’s initial contact with the driver indicates that the driver may not understand the inspector’s initial instructions, the inspector should conduct an English language proficiency assessment, which should consist of:

Driver interview
Highway traffic sign recognition assessment.

In a reversal from previous guidance, tools such as interpreters, I-Speak cards, cue cards, smartphone applications, and On-Call Telephone Interpretation Service should not be used during the driver interview.

What questions are supposed to be included in that interview and what's in that sign recognition assessment are unknow at this time.

"In short, FMCSA’s renewed emphasis on ELP reflects a safety-first mindset, but the guidance leaves some uncertainty," Esparza said. For instance, one question it does not answer, he said, is "how drivers placed OOS for ELP violations can be rehabilitated and returned to work."

"For trucking companies, the reintroduction of OOS consequences could disrupt operations, especially without insight into the assessment’s specifics," Esparza noted. "Drivers face increased scrutiny and potential downtime, underscoring the need for robust English training programs."

Will This Move the Needle on Highway Fatalities?

In response to a question from a reporter, Duffy said, “We have 40,000 deaths on American roads every year, and as much as we try, it’s really hard to move those numbers. Is this going to move those numbers by the thousands? No.

"But I think we have to think through, how can we take small steps and start to save lives and move that needle in the right direction, and I think this is one of those small things we can do to follow the law and make sure we keep our roads safe.”

Going Beyond Truck Driver English Requirements

Duffy announced that the DOT is also taking additional steps related to commercial driver qualifications.

Reviewing the security of commercial driver’s licenses. “This is a state-by-state issue, but we do have a role, and we are reviewing the security procedures around how CDLs are given throughout the states."
Reviewing non-domiciled CDLs.
Improving verification protocols for both domestic and international credentials to ensure only qualified drivers are behind the wheel on American roads.

Truck Driver Quality of Life

The executive order commanding the Department of Transportation to change the English-language enforcement also directed the DOT to take steps to improve the working lives of truckers.

That's a broad and vague order, but Duffy offered a few clues to the department's thinking so far.

“By the way, I’ve got to tell you, it’s one of the most vocal groups of people I’ve heard from in my time at DOT…. I hear from the truckers a lot, and this English language proficiency was one of the big ones.

“But they’ve also said the quality of life could be improved. And that means looking at critical needs like truck parking , which impacts the lives of truckers every day on the road.”

“There will be more to come on this, but you can be sure the DOT is committed to truckers and trucker safety,” Duffy said.

“From not enforcing English language proficiency requirements, to br oker fraud , to non-domiciled CDLs, it kind of feels like the trucking industry has become the Wild West with a lot of bad actors who have been allowed to play in this space," he added.

“We’re going to end the plague of bad actors, and we are going to support and encourage … the great businesses, the great drivers, the great brokers that make this country work.”

With Duffy were John Esparza, president and CEO of the Texas Trucking Association, as well as state transportation officials.

The Significance of Texas for Duffy's Announcement

“This is an issue that has been long in the works,” Esparza said. “Something as an industry we’ve been in communication for years now.... The very basic premise behind what’s occurring today is safety. Imagine you cannot, if you’re on the enforcement side, you’re unable to communicate roadside.”

“When we talk about English proficiency, we are talking about the very first interaction that we’re having roadside," Esparza said.

"We share 1,250 miles of U.S./Mexican border here in Texas, out of 1,550 miles in the entire country. … If we’re not taking the lead, as partners with our TexDOT commission, our leadership here in the state, with enforcement, then we’re not going to get any work done.”

“When you talk about non-domiciled, when we talk about the instances of cab otage (to move domestic freight within the borders of the United States) that are occurring out there; we’re going to work in every area that we can.”

'English Proficiency Isn't Optional'

“Out on the road, there’s no margin for error,” Esparza said. “The only thing separating safe trips from deadly ones can be a simple road sign.

“These signs aren’t suggestions. They’re warnings. They save lives — but only if they’re understood. … Truckers must be able to read road signs, communicate with law enforcement, and respond in emergencies. When that doesn’t happen, people get hurt — or worse.

“Complying with the language proficiency standards doesn’t mean you can recite an encyclopedia, but it should mean you comprehend routine safety messages,” Esparza said.

“Those can and should be taught in training schools and tested for. English proficiency isn’t optional. It’s essential.”

Republicans Try to Kill Off CARB Regulations

Mon, 09 Jun 2025 13:55:01 GMT

Everyone has been on pins and needles since President Trump introduced tariffs. The following article should belay your fears and prove that President Trump is on the side of the common worker especially the transportation industry.

First, I want to point that the Dow Jones recorded on 1/20/2021 under the Biden Administration that the Dow was at $30,930.52.

On 5/1/2025, the Dow recorded $41,074.66 under the Trump Administration. This was just a few days over his 100 days in office.

No matter what you say, this is a 32% gain!

UPDATED: The U.S. House of Representatives has sent two resolutions to the Senate attempting to invalidate waivers allowing California's stricter emissions rules for heavy-duty trucks. But the legality of their action is in question and its unclear what action the Senate may take.

On April 30, the House passed two Congressional Review Act resolutions (CRAs) attempting to block California (and the states that adopt its regulations) from implementing its Advanced Clean Trucks and NOx pollution rules. The federal waivers needed for the state to enforce those rules were approved by the Environmental Protection Agency during the Biden administration.

But whether or not it is legal for the House to now revoke those waivers remains an open question. Both the Go vernment Accountability Office and the Senate Parliamentarian have said the EPA is not subject to Congressional Review Act, which Republicans are using to try to claw back the California regulations.

What are Republicans Trying to Do?

The regulations in question are centered on the California Air Resource Board’s Advanced Clean Trucks and Omnibus NOx waivers granted to California.

Specifically, Republicans are going after a series of waivers issued by President Biden’s EPA that would allow California and other CARB states to set tough emissions rules that would phase out gasoline- and diesel-powered vehicles in favor of zero-emission vehicles.

Setting national policy is the responsibility of Congress, not California. It’s no wonder small-business truckers have left the state in droves to find better opportunities elsewhere.

So far, there is no convincing evidence that electric commercial motor vehicles are a viable option for small-business truckers given the high costs and inadequate charging infrastructure.

Additionally, CARB's overreaching Omnibus NOx rules have already raised prices on new vehicles and increased maintenance costs for trucks currently on the road.

The American Trucking Associations also praised the move, with President & CEO Chris Spear reiterating his catchphrase, “This is not the United States of California."

Just another reason to join NorthAmerican Transportation Association to help you stay out of trouble

California to Officially Repeal Advanced Clean Fleets Rules

Mon, 02 Jun 2025 19:34:57 GMT

California has agreed to formally repeal much of its controversial Advanced Clean Fle ets electric-truck mandate as part of a legal settlement.

Key provisions of ACF already were not being enforced because the state did not get a required waiver from the Environmental Protection Agency.

Nebraska Attorney General Mike Hilgers announced the legal settlement. The state had led a coalition of 17 states in challenging the Advanced Clean Fleets rules in court.

Among other things, a press release from the AG’s office explained, the ACF rule targeted any fleet that operated in California, regardless of where the fleet was headquartered. Given California’s large population and access to international ports, the news release said, this rule would have had nationwide effects on the supply chain.

In the settlement, California agreed not to enforce the Advanced Clean Fleets rule and to start the process to repeal it.

California regulators also conceded that they cannot enforce California’s 2036 ban on the sale of internal-combustion trucks unless until the ban receives a Clean Air Act preemption waiver from the EPA. Such a waiver looks highly unlikely at this point.

What Is the Advanced Clean Fleets Rule?

Advanced Clean Fleets was the second part of California’s efforts to convert trucking in the state to zero-emission vehicles.

Unlike the state's earlier Advanced Clean Trucks rules, which require truck makers to sell a certain percentage of ZEV trucks, ACF was a rule directly targeting trucking fleets.

As previously re ported , the ACF would have mandated that truck buyers increasingly purchase zero-emissions trucks, on a phased-in schedule based on fleet size and annual revenues.

It would have ended the sale of new fossil-fuel trucks in 2036 and required large trucking companies to convert their medium- and heavy-duty fleets to zero-emission battery-electric or hydrogen fuel cell models by 2042.

ACF has been opposed by the trucking industry for setting unrealistic goals for electric-truck adoption and not considering other emissions reduction alternatives.

According to court documents, the California Air Resources Board agreed to begin a rulemaking to repeal ACF's High-Priority Fleet and Drayage Fleet Requirements.

Unclear, however, is how this will affect the ACF rules for State and Local Gove rnment Fleets , which, affecting only fleets in the state, did not require an EPA waiver.

Advanced Clean Fleets Already Was Effectively Dead

In January of this year, shortly before President Donald Trump took office, the California Air Resources Board withdrew its request for the Advanced Clean Fleets EPA waiver, realizing that it would be unlikely to get approval under the new administration.

And in fact, the Trump administration and the Republican-led Congress are trying to kill off the Adv anced Clean Trucks rule and California’s diesel e missio ns rules , which both had already received EPA waivers under the Biden administration.

California's withdrawal of the waiver request meant it could not enforce the Advanced Clean Fleet rules .

In announcing the settlement, Hilgers took credit for helping to kill California’s request for the ACF waiver during the Biden administration, noting that he previously led a 24-state coalition in successfully opposing that request.

What's Next for CARB and ACF?

According to the c ourt filing , the California Air Resources Board staff agreed it will present a proposal to repeal the High-Priority Fleet and Drayage Fleet Requirements of the Advanced Clean Fleets regulation to the Board in a public hearing to be held no later than October 31, 2025.

If the Board approves the proposed repeal, CARB staff will submit that rulemaking action to California’s Office of Administrative Law for approval no later than August 31, 2026.

CARB also agreed that it will not take any enforcement action under the High Priority Fleet or Drayage Requirements for conduct during the period beginning with the earliest effective date of any of these requirements (November 1, 2023) and ending when CARB or OAL (whichever acts latest) takes final action on the CARB rulemaking.

Nor will CARB enforce the part of the Advanced Clean Fleets regulation requiring 100% zero-emission-vehicle sales in the medium- and heavy-duty categories beginning with model year 2036, until CARB obtains a Clean Air Act preemption waiver from EPA for that regulatory requirement.

Attorneys general from the following states joined the lawsuit against California regulators: Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Oklahoma, South Carolina, Utah, West Virginia, and Wyoming. Also joining the lawsuit were the Nebraska Trucking Association and the Arizona State Legislature.

FMCSA Issues New English Language Proficiency Guidance

Wed, 21 May 2025 12:42:12 GMT

Originally published by Scopelitis, Garvin, Light, Hanson & Feary

Yesterday, the Federal Motor Carrier Safety Administration (FMCSA) issued internal agency enforcement guidance (Guidance) to evaluate the English language proficiency (ELP) requirement for driver qualification under 49 C.F.R. 391.11(b)(2). The ELP Guidance was issued pursuant to Executive Order (EO) 14286, Enforcing Commonsense Rules of the Road for America’s Truck Drivers, signed by President Trump on April 28. As directed by the EO, the Guidance rescinds and replaces prior policy guidance that the FMCSA issued in 2016.

The Guidance applies to all FMCSA enforcement personnel who perform inspections of motor carriers and drivers in the U.S. and directs them to conduct an assessment that consists of (1) a driver interview; and (2) a highway traffic sign recognition assessment, if the inspector determines the driver may not understand the inspector’s initial instructions. At the first Step, the driver interview should be conducted in English without the use of interpretation tools. If the driver is unable to respond sufficiently to English inquiries, FMCSA’s policy is to cite the driver for a violation of the ELP regulation and there is no need to go to Step 2. In Step 2, the inspector is to evaluate the driver’s ability to understand the meaning of U.S. highway traffic signs,

When the driver is cited for a violation, FMCSA’s policy includes placing the driver immediately out-of-service (starting June 25, when the regulation is incorporated in the North American Standard Out-of-Service Criteria) and initiating additional action to disqualify the driver from operating commercial motor vehicles when warranted. The Guidance does not indicate how a driver can remedy or cure the condition. The policy of placing drivers out-of-service or further disqualifying the driver should not apply to drivers performing operations in the U.S.-Mexico border commercial zone, but the drivers may still be cited for violations.

The Guidance is redacted and therefore the criteria for the assessment in Step 1 is very vague. Unless the FMCSA issues additional instructions, this could lead to uneven enforcement throughout the U.S.

For more information, contact Greg Feary , Tim Wiseman , Prasad Sharma , or Chris Eckhart .

California Looks to Accelerate Self-Dring Trucks

Fri, 16 May 2025 18:09:33 GMT

Testing and deployment of self-driving trucks may accelerate after the federal government announced a new "automated vehicle framework" and California is contemplating new rules allowing them.

The first actions under this framework will help accelerate work toward modernizing Federal Motor Vehicle Safety Standards.

The National Highway Traffic Safety Administration (NHTSA) is maintaining its Standing General Order on Crash Reporting for vehicles equipped with certain advanced driver assistance systems (ADAS) and automated driving systems (ADS).

However, the agency will streamline the reporting to sharpen the focus on critical safety information while removing “unnecessary and duplicative requirements.”

NHTSA is expanding the Automated Vehicle Exemption Program to now include domestically produced vehicles. Previously open only to imported AVs, AVEP has promoted vehicle innovation and safety through simpler, faster exemption procedures that allow companies to operate non-compliant imported vehicles on U.S. roads.

NHTSA announced the change via an open letter to AV developers on April 24, 2025.

“This administration understands that we’re in a race with China to out-innovate, and the stakes couldn’t be higher,” said U.S. Transportation Secretary Sean P. Duffy in a news release.

“As part of DOT's innovation agenda, our new framework will slash red tape and move us closer to a single national standard that spurs innovation and prioritizes safety.”

Self-Driving Trucks in California?

The California Department of Motor Vehicles is proposing regulations for testing and deployment of heavy-duty commercial autonomous vehicles on California’s public roads.

Under the proposed framework, heavy-duty autonomous vehicles (weighing 10,001 pounds or more) can now be tested with a DMV-approved permit.

The state currently prohibits autonomous vehicles weighing more than 10,000 pounds on public roads. Self-driving heavy-duty trucks are already being tested in other states such as Texas and Arizona.

Safety advocates and the Teamsters union will likely oppose the regulations.

The California legislature passed a Teamsters-backed bill in 2023 to require human drivers aboard self-driving heavy-duty trucks. It was vetoed by Gov. Gavin Newsom .

What Do California’s Proposed Autonomous-Truck Regulations Say?

Applications received after the new regulations are implemented will be subject to a phased permitting process for AV testing and deployment.

Initially, manufacturers must obtain a permit for testing with a safety driver. Subsequent phases require obtaining a Driverless Testing Permit and a Deployment Permit after completing the required test miles and submitting a report detailing the testing conducted.

These steps ensure that manufacturers meet stringent safety requirements through a comprehensive process tailored to each manufacturer’s technology and operational environment, according to a California DMV news release.

Heavy-duty autonomous trucks would be limited to testing and deployment in an “operational design domain” that only includes routes legal for the vehicle’s size and weight load. They aren’t allowed on local roads with a speed limit of 25 mph or less unless those roads are “within the shortest distance to freeways from hubs, motor carrier and shipper facilities, distribution centers, fueling and charging stations, and end points, while using arterial roadways wherever possible.”
Autonomous commercial vehicle test drivers, remote drivers, and remote assistants would need to comply with state and federal commercial driver requirements, including licensing and hours-of-service restrictions.
Manufacturers would be allowed to receive compensation for transporting goods during testing.
Certain commercial vehicle operations would be excluded, including household movers, oversized loads, hazardous materials, and bulk liquids requiring a tank endorsement.

The DMV said the proposed regulations offer the nation’s most comprehensive rules for the operation of autonomous vehicles.

The updated regulations also refine the guidelines for light-duty AVs, enhancing data reporting requirements and implementing recent legislative changes from AB 1777 (Chapter 682, Statutes of 2024). These include updated protocols for autonomous vehicle interactions with first responders and a new procedure for law enforcement to report potential non-compliance with traffic regulations.

There’s a 45-day public comment period, which ends on June 9. After the conclusion of the public comment period, the DMV will conduct a public hearing to gather further input on the regulations. Details regarding the date and location of this hearing will be announced separately, closer to the event, along with an invitation for public participation.

Written comments may be submitted to LADRegulations@dmv.ca.gov during the 45-day period. The proposed regulations are available on the DMV Autonomous Vehicles webpage .

FMCSA Removes EIGHT (8) ELDs From the List of Registered Devices

wayne@ntassoc.com (Wayne Schooling) — Fri, 16 May 2025 13:31:03 GMT

Eight electronic logging devices from Gorilla Fleet Safety LLC have been taken off the list of registered ELDs by the Federal Motor Carrier Safety Administration.

These ELDs were placed on the FMCSA’s Revoked Devices list due to the company’s failure to meet the minimum requirements set forth in federal regulations.

The removals are effective May 12, 2025, for the following devices:

AllwaysTrack
Command Alkon Trackit
ELDX
Gorilla Safety Compact ELD
HCSS ELD
LB Technologies FleetTrack HOS
Simplex ELD 2GO
Trucker Path ELD Pro

Motor carriers have up to 60 days to replace the revoked ELDs with compliant ELDs.

FMCSA will send an industry-wide email to inform motor carriers that anyone using these revoked ELDs must take the following steps:

Discontinue using the revoked ELDs and revert to paper logs or logging software to record required hours of service data.
Replace the revoked ELDs with compliant ELDs from the Registered Devices list before July 11, 2025.

Until July 11, FMCSA said, safety officials are encouraged not to cite drivers using these revoked ELDs for “No record of duty status” or “Failing to use a registered ELD.” Instead, safety officials should request the driver’s paper logs, logging software, or use the ELD display as a backup method to review the hours-of-service data.

Beginning July 11, motor carriers and drivers who continue using the revoked devices listed above will be considered operating without an ELD. Safety officials who encounter a driver using a revoked device on or after July 11 should place the driver out-of-service in accordance with the Commercial Vehicle Safety Alliance OOS Criteria.

If the ELD provider corrects all identified deficiencies for its device, FMCSA will place the ELD back on the list of registered devices and inform the industry of the update.

However, FMCSA strongly encourages motor carriers to take the actions listed above now to avoid compliance issues in the event that the ELD provider does not address the deficiencies.

For a top notch ELD that you can depend on, just go to: https://www.ntassoc.com/nta-electronic-logging-devices

The Trump DOL Indicates Yet Another Change to its Independent Contractor Classification Rule is on the Horizon

Mon, 12 May 2025 14:57:20 GMT

By Kindall C James, Matthew C Lonergan of Bradley Arant Boult Cummings LLP

Exactly a year ago, we wrote about the final rule issued by the Biden-era U.S. Department of Labor (DOL) regarding the test for determining whether a worker is an employee covered by the Fair Labor Standards Act (FLSA), or an independent contractor exempt from FLSA coverage. The final rule became effective on March 11, 2024 (the “2024 rule”) and replaced the DOL’s independent contractor test that was adopted in 2021 during the first Trump administration (the “2021 rule”), which made it made it easier to classify workers as independent contractors. We previously wrote about the 2021 rule back in January 2021.

Recent developments suggest that, under new leadership, the DOL may abandon the short-lived 2024 rule and implement changes to its guidance on this issue in the near future.

Recent Developments Suggest the DOL’s New Leadership May Abandon the 2024 Biden-Era Rule

Soon after the Biden-era’s publication of the 2024 rule, several lawsuits were filed against the agency arguing that it exceeded its authority in adopting the 2024 rule. The leading case, Frisard’s Transp., LLC v. United States DOL , No. 24-30223, is currently pending on appeal before the Fifth Circuit. The case originated when Frisard’s Transportation, LLC, along with other plaintiffs, filed a lawsuit, in the U.S. District Court for the Eastern District of Louisiana on February 8, 2024 (Case No. 2:24-cv-00347). The plaintiffs sought a preliminary injunction to block the rule, but on March 27, 2024, the district judge denied the motion, finding the plaintiffs could not show immediate irreparable harm because the rule’s impact on their business was speculative at that stage. Following this denial, the plaintiffs appealed to the Fifth Circuit on April 8, 2024, arguing that the district court erred in denying the preliminary injunction. Several amicus briefs supporting the plaintiffs were filed by organizations such as the U.S. Chamber of Commerce, the Manhattan Institute, and others, emphasizing the rule’s broad economic implications.

The Fifth Circuit was scheduled to hear oral arguments on the appeal in the Frisard’s case on February 5, 2025; however, the DOL requested to delay the scheduled argument to allow sufficient time for its newly confirmed leadership to familiarize themselves with the issues presented in the case and “determine how they wish to proceed.” The Fifth Circuit initially ordered the DOL to file a status report no later than March 25, 2025, stating its position regarding the litigation under its new leadership, but that deadline was recently extended to April 7, 2025.

Confirmation of Secretary of Labor Creates Some Difficulty in Predicting the DOL’s Next Steps

If we were asked to predict the fate of the 2024 rule on November 6, 2024, we would not have hesitated in forecasting a return to the more employer-friendly 2021 rule adopted during the first Trump administration. The subsequent nomination and senate confirmation of U.S. Secretary of Labor Lori Chavez-DeRemer, however, leaves us less confident in making that prediction. Chavez-DeRemer served as the U.S. representative for Oregon’s 5th congressional district between 2023 and 2025. Though a member of the Republican Party, Chavez-DeRemer has an unusually pro-labor congressional record as one of only three House Republicans to co-sponsor the Protecting the Right to Organize (PRO) Act, proposed legislation that would strengthen employee rights under the National Labor Relations Act and other labor laws. Significant to the question of independent contractor classification, the PRO Act would impose California’s ABC test for determining independent contractor status and make it even more difficult to classify workers as independent contractors for purposes of questions under the NLRA.

While Chavez-DeRemer has not made any specific commitments regarding the 2024 rule, she walked back her support for the PRO Act, acknowledging on several occasions that the PRO Act was “imperfect.” She also agreed that worker flexibility and independent contractors were key to growing the economy and committed to reviewing all of the DOL’s regulations to determine whether they support President Trump’s agenda.

In light of Chavez-DeRemer comments during her senate confirmation hearing, we anticipate that the DOL will ultimately rescind the 2024 rule and drop its defense of the rule in the Frisard’s case and the other pending legal challenges. Following that, the DOL may restore the more employer-friendly 2021 rule, or it might not adopt any replacement rule and simply let courts analyze questions regarding independent contractor classification under their own case precedents, without agency guidance.

What This Means for Employers

Despite the anticipated employer-friendly changes at the DOL, employers should continue to proceed with caution in classifying workers as independent contractors. Notably, the Supreme Court’s watershed decision in Loper Bright means that any new DOL guidance defining the test for distinguishing employees from independent contractors under the FLSA may not be entitled to judicial deference anyway. Employers would therefore be wise to continue evaluating the following key questions when deciding whether workers may be classified as independent contractors:

What is the nature and degree of the control that the worker has over their own work? For example, does the worker control how and when the job will be performed and the pricing for the services?
What is the worker’s opportunity for profit and loss? Is the worker required to make their own investments to perform the services?
Does the work require a special or unique skillset?
Is the work integral to the company’s core business?
Is the worker’s relationship with the company non-exclusive and are the services provided on a project-specific or sporadic basis, rather than indefinitely or continuously?
Does the company have employees performing the same services as the worker?

Employers should also keep in mind that other federal laws (such as the Family and Medical Leave Act and the Internal Revenue Code) may impose different standards for distinguishing employees from independent contractors and that courts may differ by jurisdiction in their interpretation of these standards. Additionally, many states have adopted their own standards for distinguishing employees from independent contractors under state employment laws.

Article Originally Published by Bradley Arant Boult Cummings LLP

NEWS RELEASE: NorthAmerican Transportation Association Inc. Announces NEW Partnership

Mon, 12 May 2025 13:27:50 GMT

NEWS RELEASE

May 12, 2025

FOR IMMEDIATE RELEASE:

Contact Wayne Schooling

800-805-0040

NorthAmerican Transportation Association Inc. Announces NEW Partnership

Carson City, NV, May 2025

Just as Morgan & Morgan is America’s largest law firm, NorthAmerican Transportation Association (NTA) is pleased to announce that NTA has joined with Truckinfo.net to become the most comprehensive transportation association in the United States dedicated to serving the transportation industry.

NTA now brings you the most expanded information on a myriad of subjects such as; The Top Trucking Insurance Companies of 2025.

Now you can get truck quotes from multiple insurance carriers offers. This is an exciting milestone for us and we’re so grateful that thousands of you have trusted your business needs to us over the years.

Established in 1989, we have continually grown over the years. NTA has become a trusted resource for private carriers, small to medium motor carriers, and Independent Contractors.

NorthAmerican Transportation Association

680 East Nye Lane, Suite 201

Carson City, NV 89703

If you’re a NTA member, be sure to check our MEMBERS ONLY PORTAL for new and updated information. If you’re not a member, you don’t know what you’re missing and you may well be facing trouble in State and/or Federal compliance.

For more information about NTA’s programs, you can visit our website at www.ntassoc.org or .com or call us at (562) 279-0557 if you are within California and at 800-805-0040 outside of California.

President Trump Issues Executive Order Addressing English Proficiency Requirement

Tue, 29 Apr 2025 18:54:50 GMT

Originally published by Scopelitis, Garvin, Light, Hanson & Feary

Yesterday afternoon, President Donald Trump signed an executive order (EO), “Enforcing Commonsense Rules of the Road for America’s Truck Drivers,” addressing the requirement for commercial truck drivers to demonstrate English proficiency under the Federal Motor Carriers Safety Regulations (FMCSRs). Under the EO, the Federal Motor Carrier Safety Administration (FMCSA) is directed to take action to ensure drivers who violate the proficiency requirement in 49 U.S.C. § 391.11(b)(2) will be placed out-of-service by roadside enforcement.

The EO rescinds the 2016 guidance issued by the FMCSA, which had relaxed the enforcement of English proficiency standards. The 2016 guidance allowed drivers to use interpreters, cue cards, and phone apps to demonstrate English proficiency, and removed the out-of-service requirement for violations. The new EO will reinstate the requirement that enforcement personnel place drivers who do not meet the English proficiency standard out-of-service. The EO explains its goal is to enhance roadway safety by ensuring that all drivers can effectively read road signs, communicate with safety officials, and follow critical instructions.

If you have questions about this development, please contact Greg Feary , Tim Wiseman , Chris Eckhart , or Prasad Sharma .

California Ban on Independent Contractors

Mon, 03 Mar 2025 18:25:58 GMT

With Permission from Miles L Kavaller, Atty

California port drayage motor carriers in particular, the trucking industry, as well as businesses located in California using California workers, have been dramatically impacted by AB5, commonly known as the “ABC” test defining employee.¹ By and large a worker is an employee if that person provides services to a business and is engaged in the same business and is not otherwise eligible for the business-to-business exemption or is a Lyft or Uber driver.² This legislation following the California Supreme Court’s ruling in the Dynamex case, was intended to prohibit misclassification of workers as independent contractors. The Legislative findings supporting this legislation described a port drayage industry as guilty of “wage theft” particularly affecting low wage immigrants.

Currently, the California’s Department of Industrial Relations, Division of Labor Standards Enforcement (“DLSE”) is required to post on its internet webpage the names, addresses, and essential information for a port drayage motor carrier with an unsatisfied final court judgment, tax assessment, or tax lien that may be released to the public under federal and state disclosure laws, including any order, decision, or award obtained by a public or private person or entity pursuant to California Labor Code Section 98.1 finding that a port drayage motor carrier has engaged in illegal conduct including failure to pay wages, imposing unlawful expenses on employees, failure to remit payroll taxes, failure to provide workers’ compensation insurance, or misclassification of employees as independent contractors with regard to a port drayage commercial driver.

The California Legislature has enacted new rather, in this author’s opinion “Draconian” provisions effective on January 1, 2025 directly affecting THE CUSTOMERS of California port drayage motor carriers. A CUSTOMER that uses a port drayage motor carrier that is on the DLSE list shall share with the motor carrier or the motor carrier’s successor all civil legal responsibility and civil liability owed to a port drayage driver or to the state for port drayage services obtained after the date the motor carrier appeared on the list, meaning joint and several liability with the motor carrier for the full amount of unpaid wages, unreimbursed expenses, damages, and penalties, including applicable interest and all other amounts that are found due.³

This means the customers of the port drayage carriers on the DLSE list are also responsible for the payment of the drivers. That is determined by the DLSE or by a court in a civil action brought by the Labor Commissioner, or by a commercial driver or their representative, where at least 30 business days prior to filing the civil action, the Labor Commissioner, or commercial driver or representative, notifies the customer of its potential joint and several liability for any of the wages, expenses, damages, or penalties.⁴

This article is not by any means an exhaustive analysis of the law. Those who need legal assistance should consult counsel.

¹ See California Labor Code Section 2775. Under the ABC test, a worker is considered an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions:

The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
The worker performs work that is outside the usual course of the hiring entity’s business; and
The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

For the business-to-business exemption, see California Labor Code Section 2776.

² See California Labor Code Section 2810.4
³ See California Labor Code Section 2810.4(b)(3) Subdivisions (A)-(G) identifying the of categories of payments.

⁴ See California Labor Code Section 2810.4( c ).

New York City Congestion Pricing Plan Takes Effect

Mon, 03 Mar 2025 18:17:55 GMT

New York City has officially started its controversial congestion pricing plan , which trucking interests have vowed to keep fighting.

As of January 5 in New York City, heavy-duty trucks must pay $21.60 each time they enter Manhattan south of 60th Street between 5 a.m. and 9 p.m. on weekdays and between 9 a.m. and 9 p.m. on weekends.

The fee for heavy-duty trucks under the Central Business District Tolling Program is scheduled to rise to $28.80 in 2028 and $36.00 in 2031.

An article from the Wall Street Journal’s Logistics Report points out that other cities are watching closely with an eye toward enacting similar programs. San Francisco and Los Angeles have explored their own versions of business-district tolls.

The congestion plan has been making its way through the courts for years. Recently a judge rejected the Trucking Association of New York ’s motion for preliminary injunction against the plan, allowing it to move forward.

To Make Matters Worse

The charges add to the high costs for truckers in the New York metropolitan region, including tolls of $100 or more to cross some bridges, as well as some of the highest in the nation for insurance and labor. Stiff penalties for a long menu of infractions, including $115 tickets for double parking in neighborhoods with limited curb space and fines of $350 for idling for more than three minutes, add to the financial toll.

About 120,000 trucks and commercial vehicles enter the city each day, according to the city transportation department.

In 2022, the Mayor's Office of Immigrant Affairs estimated about 412,000 undocumented immigrants in the city, down from 611,000 in 2012.

Additionally, since the asylum seeker crisis began, over 223,000 migrants have entered New York City, with more than 58,000 still in taxpayer-funded shelters as of November 2024.

These figures suggest a significant undocumented immigrant population in New York City, though exact numbers are difficult to determine.

In June 2019, New York State enacted the "Green Light Law," allowing undocumented immigrants to obtain standard, non-commercial driver's licenses.

Prior to the law's implementation, the New York City Comptroller's Office estimated that approximately 150,000 undocumented immigrants in the city would obtain driver's licenses under this new legislation.

However, specific data on the actual number of licenses issued to undocumented immigrants since the law's enactment is not readily available. The New York State Department of Motor Vehicles does not publicly disclose applicants' immigration status, ensuring privacy and encouraging participation without fear of exposure.

Therefore, while initial estimates provide a general idea, the exact number of undocumented immigrants with driver's licenses in New York remains undetermined.

Why the Trucking Association of New York Opposes NYC's Congestion Pricing

The association contends that the disproportionate pricing structure unfairly targets trucking operators (4% of all NYC vehicle traffic) on a per-trip basis, while passenger vehicles (which constitute 87% of all NYC vehicle traffic) are only charged once per day.

“This burden — which is far heavier for the trucking industry than any other — will have significant downstream impacts on the entire economy,” said TANY President Kendra Hems in a statement.

“While congestion pricing has only just taken effect, our drivers are already bracing for the severe impact these tolls will have on their operations in the days and weeks ahead," Hems said.

The association is not inherently opposed to congestion pricing, she explained. But it objects to the disproportionate pricing structure.

"The trucking industry is not able to adapt like commuters who have the ability to use alternative modes of transportation," Hems said. "Grocery stores, after all, can’t be stocked with shipments that travel on the subway.

"Additionally, while we fully support overnight deliveries, our drivers do not determine when and where deliveries occur — their customers do. In other words, drivers do not have the luxury of being able to drive during off-peak hours.

"The trucking industry fully supports finding a way to reduce traffic and improve the environment, but these efforts should not come at the cost of businesses and residents who in many cases serve as a lifeline to New Yorkers.”

The On-Again, Off-Again Congestion Pricing Plan

Last summer, New York Gov. Kathy Horchul put the program on pause just weeks before it was scheduled to go into effect. She revived it in November with lower pricing. For large trucks, for instance, the fee came down from the original proposal of $36 to $21.60.

“When congestion pricing was delayed earlier in 2024, we had the chance to go back to the drawing board to ensure parity for much of the city’s economic backbone, including the trucking industry, which moves nearly 90 percent of goods in the five boroughs,” Hems said.

The association said the congestion pricing program could lead to unstocked store shelves, restaurants unable to get needed food and supplies, and a lack of immediate access to life saving medications.

“We will continue to advocate for the needs of the communities we serve. As such, we will take this challenge as far as we need to.”

There have been a number of other legal challenges against the congestion pricing plan, including one from the state of New Jersey, which predicted environmental harm if traffic gets worse on the other side of the river.

According to published reports, there’s been a rush to get the plan implemented before President Donald Trump takes office Jan. 20. The New York Times reports that the president-elect has promised to end it permanently once he takes office on Jan. 20, but his options are limited now that the plan is underway.

The Solution

The solution is simple. Every motor carrier should institute a Delivery Surcharge equal to the congestion price PLUS 10%. This is for the discrimination against the trucking industry and the cost of paperwork.

The Changing of the Guard: What’s in Store With the Return of President Trump

Mon, 03 Mar 2025 18:14:44 GMT

Compliment of Scopelitis, Garvin, Light, Hanson & Feary

On January 20, Donald Trump returned to office as the 47th President of the United States accompanied by a Republican-controlled House and Senate, albeit with slim majorities (particularly in the House). Although the first Trump administration taught us to expect the unexpected, President Trump’s track record of lowering taxes and tackling regulatory burdens should signal initiatives that will ultimately benefit the transportation industry.

Republican control of the Senate affords President Trump the opportunity to have most of his Cabinet nominations confirmed expeditiously, though a few may test that theory. His nominee for Secretary of Transportation, former Representative Sean Duff (R-WI), appears to be on a smooth path for confirmation. As of this writing, the President-elect has yet to announce a nominee to serve as Administrator of the Federal Motor Carrier Safety Administration (FMCSA).

Enactment of significant tax relief for individuals and businesses was a signature achievement of the first Trump administration. Many of the individual provisions are set to expire at the end of 2025, and President Trump has made no secret about his desire to renew and potentially enact additional tax relief. With Republicans in control, Congress can use special budget reconciliation procedures to circumvent a Senate filibuster in order to enact a tax reform package, although prolonged debate amongst Republican leaders over funding tax cuts and suspending the debt limit is expected.

Primarily due to California Air Resources Board’s (CARB) unrealistic emissions regulations and timelines, compounded by the U.S. Environmental Protection Agency’s (EPA) regulatory measures, the trucking industry is facing significant equipment availability challenges. From raw materials to battery production and EV infrastructure, timelines for such standards have been questioned by President Trump, along with the practical application of such standards to heavy duty trucking. President-elect Trump’s track record and his nomination of former Representative Lee Zeldin (R-NY) to head EPA suggests the Trump era EPA will rein in the forced and impractical transition to zero-emission trucks.

Despite growing support of candidate Trump by pro-labor voters and the nomination of former Representative Lori Chavez-DeRemer (R-WA) to head U.S. Department of Labor (DOL), the DOL is unlikely to deviate from the first Trump administration’s approach favoring a simpler, more predictable test for determining worker status under the Fair Labor Standards Act.

As has been the case over the past several changes in administrations, President Trump will have the opportunity to appoint a Republican majority to the National Labor Relations Board (NLRB), which should check some of the more pro-union measures adopted by the Biden-era NLRB. There appears to be insufficient support for the PRO Act (with its ABC test) in the Senate, and Chavez-DeRemer’s prior support of the PRO Act will likely not be relevant during the upcoming administration.

During his first administration, President Trump was committed to eliminating regulatory burdens. This included an Executive Order requiring the elimination of two regulations before a new regulation could be adopted. President Trump has suggested the ratio should be increased (even suggesting it should be ten to one). For certain Biden-era regulations finalized after August 2024, Congress and President-elect Trump may opt to utilize the Congressional Review Act to overturn them. During his first term, President Trump and the Republican Congress overturned 16 regulations using this procedure (in comparison to President Biden and the Democrat-controlled Congress which used it three times).

While the Firm expects a deregulatory push, assisted by the work of the newly formed Department of Government Efficiency task force, many of these deregulatory measures may be subject to challenges in the courts. In addition, blue states will likely be active in furthering their policy preferences at the state level. At the least, the Firm can safely predict that it will be an interesting Presidential term ahead.

DOL Contractor Rule

Mon, 03 Mar 2025 18:09:33 GMT

In the waning days of the first Trump administration, the U.S. Department of Labor (DOL) finalized a regulation establishing the test to be used by DOL to determine whether a worker is an independent contractor or employee under the Fair Labor Standards Act, which governs overtime and minimum wage. That regulation set forth a multi-factor test that emphasized two core factors that made the determination more predictable. The Biden administration replaced the DOL regulation with an equally weighted, multi-factor test but included commentary that leans toward a finding of employee status.

President Trump’s Secretary of Labor nominee will take over at a time where the newer Biden administration rule is embroiled in legal challenges. The President may have multiple paths toward reinstituting a simpler, more predictable test favored by businesses.

NorthAmerican Transportation Association will keep you abreast of any new changes,

Get Ready for the 2025 Roadcheck Inspection

Mon, 03 Mar 2025 18:05:24 GMT

The Commercial Vehicle Safety Alliance will hold its annual International Roadcheck commercial vehicle inspection blitz May 13-15, focusing on tires and truck driver hours of service .

Roadcheck is a high-visibility, high-volume commercial motor vehicle inspection and regulatory compliance enforcement initiative that takes place over three days in Canada, Mexico and the United States.

Law enforcement personnel will inspect commercial motor vehicles and drivers at weigh/inspection stations, temporary sites and mobile patrols. Data from the 72 hours of International Roadcheck will be collected and the results will be released this summer.

Each year, International Roadcheck places special emphasis on a driver violation category and a vehicle violation category.

During International Roadcheck, inspectors will primarily conduct the North American Standard Level I Inspection, a 37-step procedure that includes an examination of driver operating requirements and vehicle mechanical fitness.

This year inspectors will pay special attention to hours-of-service compliance and to tires.

CVSA Focusing on Hours of Service for Roadcheck Driver Inspections

In last year’s Roadcheck , hours of service were the top out-of-service violation for drivers, making up 32% of the driver violations in North America. It was also the top driver violation in the U.S.

To ensure compliance of driver hours-of-service regulations, drivers track their times and duty statuses in an electronic or paper log, what CVSA calls the record of duty status (RODS).

Failure to record, complete or retain the log, or knowingly falsifying logs or other related reports, is not only a driver out-of-service violation, it also makes the driver and/or carrier liable to prosecution.

During the driver portion of an inspection, inspectors check the driver’s documents, license or commercial driver’s license, medical examiner’s certificate and skill performance certificate (if applicable), record of duty status, Drug and Alcohol Clearinghouse status (in the U.S.), seat belt usage, and alcohol and/or drug impairment.

If an inspector identifies driver out-of-service violations, they place the driver out of service, restricting that driver from operating their vehicle.

Tires to Be CVSA's Vehicle Focus Area

CVSA is focusing on tires during this year's Roadcheck

“Tire failure while in transit is a hazard to all motorists," CVSA said in its Roadcheck announcement.

"It is also far more expensive and time-consuming for motor carriers to repair an in-transit tire failure versus proactively maintaining tire health and addressing tire issues before the vehicle is on the road.”

During International Roadcheck, inspectors will check tires’ tread depth and proper inflation. They will also be on the lookout for tire damage, such as air leaks, tread separation, cuts, bulges, sidewall damage and improper repairs.

Last year’s top vehicle out-of-service violation in North America was for defective brakes, with 25% of the violations. It also was the top OOS vehicle violation in the U.S.

But tires were close behind at 21% in second place in North American inspections.

What is a CVSA Level 1 Commercial Vehicle Inspection?

During the vehicle portion of the Level I Inspection, inspectors ensure the vehicle’s brake systems, cargo securement, coupling devices, driveline/driveshaft components, driver’s seat, fuel and exhaust systems, frames, lighting devices, steering mechanisms, suspensions, tires, wheels, rims, hubs, and windshield wipers are compliant with applicable regulations.

A vehicle that successfully passes a Level I or V Inspection without any critical vehicle inspection item violations may receive a CVSA decal, which is valid for up to three months.

If out-of-service violations are found during an inspection, as outlined in the North American Standard Out-of-Service Criteria , the vehicle is restricted from operating until all out-of-service violations have been properly addressed.

As part of International Roadcheck, inspectors may also be available to answer questions about tire health and violations, and to help drivers navigate the HOS regulations in their jurisdictions.

CVSA is a nonprofit organization made up of local, state, provincial, territorial and federal commercial motor vehicle safety officials and industry representatives in Canada, Mexico and the U.S. Its mission is to improve commercial motor vehicle safety and enforcement across North America.

Jack Cooper Transport Shuts its Doors After Nearly 100 Years

Thu, 13 Feb 2025 13:45:51 GMT

Often, trucking company closures happen following a long trend of indications of trouble. That wasn’t the case for Jack Cooper Transport, one of the biggest auto haulers, which is shutting down its business after losing its two largest customers in barely six weeks.

But 2025 started with a bang, and not a good one, for the unionized auto hauler, as Ford —believed to be its second-largest customer — invoked a clause in its contract allowing it to terminate its contract with Jack Cooper with a 30-day notice.

Just five weeks later, talks went sideways with its largest customer, General Motors, according to published reports, as the car hauler sought to renegotiate its contract with GM in the wake of Ford’s move.

According to the Detroit Free Press , as those “intense negotiations” were happening, on Thursday, Feb. 6, GM ordered a temporary stop on all its vehicle shipments with Jack Cooper. This led to the scene painted by the Freep of Jack Cooper truck drivers unloading the brand-new Corvettes that they had just loaded at GM’s assembly plant in Bowling Green, Kentucky.

By 11 p.m. Friday, Feb. 7, those talks ended, according to the paper. On early Saturday, GM restarted shipments of its new vehicles to dealerships using other haulers.

“As to who ended the 97-year relationship, both sides pointed at the other,” the paper reported.

What Jack Cooper's Closure Means for the Car Hauler Industry

The transportation advisers at investment firm Stifel told investors in an email Monday that this “could be an even more meaningful bankruptcy than 2023's closure of Yellow Freight in the less-than-truckload world.”

Ironically, last year Jack Cooper had sought to resurrect Yellow Freight , but its offer was refused in favor of liquidation.

Other auto haulers stand to benefit from the demise of Jack Cooper, Stifel said, including Proficient Auto Logistics, “one of the few small-scale players in the business that has been investing in service and capacity.”

The auto transporter had been hauling vehicles for GM for nearly a century. The relationship between Ford and Jack Cooper had lasted for decades.

Was Being Unionized a Problem for Jack Cooper?

Jack Cooper has approximately 2,500 employees. About 1,700 of them are members of the Teamsters. There has been speculation that being a unionized carrier has been a problem for the carrier.

In 2019, the company declared Chapter 11 bankruptcy, citing difficulty competing with its mostly non-union industry.

The carrier got its start in 1928 when Jack Cooper founded a carrier for General Motors in Kansas City, Missouri. Since then, Jack Cooper Holdings grew to include several businesses and a full range of automotive transportation and logistics services spanning the United States, Mexico, and Canada. It boasted one of the largest fleets of finished vehicle carriers in North America.

FleetOwner: What Happened with Small Carriers’ Beneficial Ownership Information?

Fri, 31 Jan 2025 14:08:55 GMT

The Corporate Transparency Act required 32 million small businesses to submit beneficial ownership information to FinCEN by January 15. One case in federal court shook things up. Here is what happened—and what carriers need to know.

The requirement to submit BOI to the Financial Crimes Enforcement Network is part of the Corporate Transparency Act. However, that requirement was paused. The delay came from a confusing court battle full of reversals, revisions, and more reversals.

Here is what happened to the Corporate Transparency Act—and how small carriers should prepare for the future—with expertise from Scopelitis attorneys Kathryne Feary-Gardner, Jordan Yu, and J.D. Robinson III.

What is the Corporate Transparency Act?

The Corporate Transparency Act is a 2021 law introduced to combat money laundering from small companies. The law, part of the 2021 National Defense Authorization Act, introduced reporting requirements for small companies’ beneficial ownership information.

The bill specifically targets any companies that employ 20 or fewer employees (with many exceptions), including motor carriers. FinCEN estimated about 32 million entities would need to report for the first deadline. The agency would require a business to submit the ownership information just once and update its reports as the ownership information changes.

Under the law, these businesses would have to provide beneficial ownership information—namely, a list of identifying information for each person with ownership or control over the company—to FinCEN.

“The CTA’s reporting requirements are designed to establish the creation of a national registry of beneficiary owners of select businesses, which U.S. authorities can use to prevent illicit activity conducted through shell companies and to combat money laundering,” Scopelitis’s attorneys explained.

The start of 2025 was going to be the first mandatory CTA reporting deadline. FinCEN set its first beneficial ownership reporting deadline for January 1—but legal battles in federal court changed things.

What happened to the filing deadline?

The CTA faced several legal challenges arguing that the reporting requirement is unconstitutional. One lawsuit in Texas—Texas Top Cop Shop, Inc., et al. v. Garland, et al.—convinced a federal judge to temporarily block the act’s requirements nationwide.

On December 3, a Texas federal judge issued a preliminary injunction in favor of the plaintiffs, temporarily prohibiting FinCEN from enforcing CTA. With this injunction, small carriers no longer needed to follow the January 1 deadline. Companies could still voluntarily submit ownership information but with no legal obligation.

On December 23, an appeals court reversed the injunction. FinCEN posted an alert to remind companies that they, once again, needed to follow reporting requirements. To accommodate the pause and confusion, FinCEN delayed its reporting deadline to January 15.

On December 26, another reversal. A panel of judges reversed the appeals court decision, resuming the injunction and again pausing CTA’s reporting requirement.

On December 31, the federal government asked the Supreme Court to reverse the injunction.

“At this point, BOI reporting is voluntary,” Scopelitis’s attorneys said.

Next in the court system

The Texas district court case that forced FinCEN to pause CTA enforcement will continue to move through the legal system.

“The case currently sits before the Fifth Circuit. Appellate briefs are due with the court in February, and oral arguments are scheduled for late March,” Scopelitis’s attorneys explained. “However, the DOJ also filed an emergency motion with the U.S. Supreme Court requesting that the Court stay the nationwide injunction. Alternatively, if the Court does not decide to stay the nationwide injunction, the DOJ is requesting that the Court limit the scope of the injunction to the parties involved in the litigation rather than apply it nationwide.”

In the Supreme Court, Justice Alito would likely rule on the nationwide injunction, Feary-Gardner, Yu, and Robinson said. His ruling could either continue the injunction, pause the injunction, or narrow it to only the parties involved. If the Supreme Court pauses the injunction, the case would move out of the Fifth Circuit Court of Appeals and back to the Texas district court.

“The merits of the case have yet to be decided with the U.S. District Court for the Eastern District of Texas where plaintiffs challenged the constitutionality of the CTA. However, we expect the court to find the CTA unconstitutional,” Scopelitis’s attorneys said. “Should the court find the CTA unconstitutional, we expect the decision to be appealed to the Fifth Circuit and potentially find its way to the Supreme Court.”

The courts could repeal CTA entirely, revise its regulations to comply with the constitution, or allow CTA to resume as-is. If CTA is allowed to resume, other court challenges could still threaten the law’s execution.

What’s next for small carriers?

For now, carriers with 20 or fewer employees do not have to submit ownership information to FinCEN—but may want to prepare the information for any additional reversals.

“Companies can voluntarily report, but there’s no longer a mandatory deadline,” the attorneys told FleetOwner. “However, given that CTA enforcement remains a moving target, companies should move ahead with determining whether they are subject to reporting requirements and what information should be included in the BOI report so as to avoid being caught on their backfoot.”

Failing to comply with CTA can include hefty costs.

“CTA allows for civil penalties of up to $500 for each day such willful violation continues, or criminal penalties including imprisonment for up to two years and/or a fine of up to $10,000,” Scopelitis’s attorneys said.

New York City to Establish Truck Delivery Micro Zones

Fri, 31 Jan 2025 14:05:41 GMT

Last year New York City announced a $6 million plan to get big trucks off of its streets. Now, the New York City Department of Transportation plans to establish on-street “micro-hub zones” for trucks.

Earlier in January, a much-debated traffic congestion mitigation plan for the Big Apple became law, as well.

And last year, New City announced an automated weight enforcement program for large trucks.

NYCDOT Commissioner Ydanis Rodriguez said the new program is part of a local delivery hub pilot to address the negative environmental and public safety effects of truck deliveries.

Micro-hub Zones were officially authorized on January 14.

A Three-Year Pilot Program

The three-year “micro-hubs” pilot program is intended to provide safe, dedicated spaces for truck operators. In these zones, drivers will transfer deliveries onto safer and more sustainable modes of transportation for the last leg of delivery.

According to NYC DOT, these approved vehicles include e-cargo bikes, handcarts, and smaller electric delivery vans .

Rodriguez noted that New Yorkers are receiving more deliveries than ever before, and micro-hub zones will reduce the number of big trucks navigating local streets.

The first five pilot locations will be in Greenpoint, Clinton Hill, and the Upper West Side. Each micro-hub zone will be designated to one delivery company for exclusive use via an annual permit.

“New York gets 90% of its freight by truck, which translates to more traffic and worse air, said Deputy Mayor for Operations Meera Joshi. “Well placed 'micro-hubs', or drop-off points, allow trucks to avoid traveling further into neighborhoods and commercial corridors, where less intrusive options like cargo bikes can pick them up and take them to their final destination.

"With this important pilot as a first step, our ultimate goal is to make every piece of the package delivery lifecycle greener and less burdensome on our roads and neighborhoods.”

Miniature Loading Zones

The rules and the design of the pilot program incorporate feedback from the public comment period and community outreach NYC DOT conducted in 2024.

NYC DOT will have the future opportunity to adjust the rules if the pilot moves to a permanent program.

On-street micro-hub zones will be about 80-100 feet in length and located in the curb lane. They will include signage and other markings designating them as a micro-hub.

Space will be available for package sorting and transfer of packages to electric vehicles, cargo bikes, and handcarts. The agency will also install upgraded safety barriers and cargo bike corrals where needed.

Off-street micro-hub zones will be located on city-owned properties and may include space for vehicles, goods storage, vehicle repairs, maintenance, and/or charging, transloading space for package sorting and vehicle transfer, weather protection, and lighting.

The off-street delivery hubs will vary in size based on site location and they will be managed by a license agreement between New York City and the respective companies in the pilot.

Requirements for Participating Companies

NYC DOT said it will work in partnership with small and large delivery companies who responded to the agency's previously published Requests for Expressions of Interests.

Additional companies may have the opportunity to participate following the first year of the pilot.

The rules clarify the requirements for participating companies, known as “micro-hub operators.”

Micro-hub operators must use the micro-hubs to transfer goods and packages from commercial vehicles onto a sustainable mode of transportation to a final point of delivery.
Operators seeking to use an on-street micro-hub zone must first obtain a permit from NYC DOT. Permits will be active for one year, with the option to renew.
Participating companies will be responsible for maintaining a clean space and are required to share robust data and feedback with NYC DOT in order to help the agency successfully evaluate the effectiveness of the pilot program.
Operators will be responsible for sweeping micro-hub zones at least once per week, removing snow and ice, and maintaining the cleanliness of designated street signage.
Company names must be prominently displayed on each commercial vehicle, low-emission or electric commercial vehicle, bicycle, or handcart using a micro-hub zone.

NYC DOT will be providing micro-hub operators with guidelines for design and circulation of micro-hub zones. To ensure compliance, NYC DOT can suspend or revoke a permit for failure to comply with these terms.

Pilot Overview

The pilot will last three years and will include up to 36 locations, both on-street and off-street. The first five locations to launch this year will be on the Upper West Side of Manhattan and under the Brooklyn Queens Expressway (BQE) in Clinton Hill and Greenpoint, Brooklyn.

The first five locations will include both on-street and off-street locations:

On-Street: The first three on-street sites will be implemented on the Upper West Side as part of the Smart Curbs program:

Amsterdam Avenue & West 73rd Street
Amsterdam Avenue & West 85th Street
Broadway and West 77th Street

Off-street: The first two off-street sites are located under the Brooklyn-Queens Expressway:

Clinton Hill: A portion of the block under the BQE on Park Avenue between Washington Avenue and Hall Street
Greenpoint: A portion of the block under the BQE on Meeker Avenue between Sutton Street and Kingsland Avenue

Location selection criteria for further sites will include:

High-density mixed land use (commercial/manufacturing uses near residential areas)
Close proximity to truck routes, transit, and bike lane networks
Serving Priority Investment Areas per the NYC Streets Plan
Delivery demand/desired neighborhoods as provided by the delivery companies.

Reimagining Freight Delivery

NYC DOT will collect data from each micro-hub at regular intervals to determine the pilot’s success.

Relevant data points include:

The make and model of any sustainable mode of transportation used in the micro-hub
The operator’s average daily and weekly utilization rate of the micro-hub
The total number of trips from the micro-hub to the final destination of delivery categorized by type of sustainable mode of transportation.

As part of NYC DOT’s analysis of the program, the agency will monitor usage, and work to update street designs if it observes issues.

NYC DOT hopes to reduce pollution and increase public safety with new "micro-hub" truck delivery zones.

According to NYC DOT, the City of New York’s micro-hubs pilot program is part of its efforts to reimagine freight delivery in New York City.

This vision includes restructuring freight distribution, create a sustainable last-mile delivery system for getting goods where they need to go, and builds upon previous innovations deployed by the Adams Administration to support these goals.

In a related move, late last year, NYC DOT expanded LockerNYC to combat package thefts.

Additionally, in November 2024, NYC DOT announced the agency began implementation of the “Smart Curbs” program on the Upper West Side.

The program, first announced in 2023, will implement and evaluate new treatments and regulations to improve safety, reduce congestion , create vibrant and clean public spaces, support orderly local deliveries, and more.

Earlier in 2024 the city promulgated new rules to make it easier for delivery companies to adopt electric cargo bikes , a more sustainable alternative to large delivery trucks.

NYC DOT also continues to work on a Blue Highways program in coordination with the New York City Economic Development Corporation to reactivate marine infrastructure, helping to shift deliveries from larger trucks to our waterways.

The Demand for Curb Space

In addition, NYC DOT has installed nearly 3,000 loading zones since December 2021, 500 of which directly addressed public feedback on where New Yorkers commonly see double parking and blocked bike and bus lanes due to vehicle loading and unloading.

Demand for curb space in New York City – from trash collection and bike lanes to truck loading and parking – is increasing, and NYC DOT is responding to address these new demands.

"Smart Curbs," "Micro-hubs" and the broader Curb Management Action Plan, released in September 2023, are efforts to address the community needs of today while better preparing the city's streets for the future. These efforts build on the core tenets of the ‘New’ New York panel’s action plan, which identified public space as a key force for the city’s economic recovery. For more information, visit nyc.gov/ deliveries .

Additional details on the pilot program are available in NYC DOT’s Micro-hubs Pilot report. This pilot program is part of DOT’s comprehensive freight strategy detailed in Delivering New York and Delivering Green. For more information, visit nyc .gov/micro-hubs .

“Joining forces with NYC DOT on this groundbreaking initiative aligns perfectly with our mission to provide sustainable and efficient delivery solutions,” said Mark Chiusano, CEO of Net Zero Logistics. “We are excited to contribute to a cleaner, greener New York City while helping to alleviate traffic congestion.”

How to Keep Your Diesel Fuel From Freezing

Fri, 31 Jan 2025 14:00:57 GMT

Diesel fuel gets cantankerous when the temperature plummets. Sometimes it stops flowing, sometimes it doesn't. Nervous drivers start pouring in fuel treatment when they hear the temperature is dropping: is it really necessary? And when all is said and done, did the additives help, or would the truck have kept running without help from a jug?

There should be no need to panic about fuel when it gets cold if you manage your fuel properly and take appropriate steps. Many don't, and they are the ones who get stung either with the added expense of on-road fuel treatment purchases or the inconvenience of a shut-down.

To successfully combat cold-related fuel problems, you have to understand what happens to fuel at low temperatures. First, let's clarify some of the terms used when discussing temperature's impact of diesel fuel:

Gelling: Situations where the fuel literally turns to jelly are fairly rare. Gelling occurs when the paraffin wax in diesel solidifies because of a drop in temperature, and the temperature of the fuel generally has to stay below something like minus 10 degrees F for extended periods, like 48 to 72 hours. When cold soaked, the paraffin wax present in diesel solidifies, giving the fuel a cloudy appearance. The fuel can begin to cloud at temperatures as high as 32 degrees F, but it will continue flowing. The fuel must stay very cold for long periods before it will actually gel. It's not uncommon to hear drivers complain about their fuel gelling up, but that's probably not the actual problem they are experiencing. The more likely problem is ice or solidified paraffin wax in the fuel filter. More on that below.
Cloud Point: There are prescribed tests to determine the cloud point of a sample of diesel fuel, which is the temperature at which the naturally present paraffin wax in #2 diesel fuel begins to crystalize. These tiny particles of suspended solidified wax give the fuel a cloudy appearance. Typical cloud point temperatures range from -18°F to +20°F but may be as high as +40°F — depending on a number of factors related to the base stock and refining processes used to make diesel fuel. So-called winter diesel fuel (#1 diesel or kerosene) contains very little paraffin and therefore has a significantly lower cloud point. Fuel distributors will test the product and may publish the results on tenders and delivery receipts if requested.
Pour Point: This is the temperature below which a liquid loses its flow characteristics. With diesel fuel, the pour point can vary with the concentration of wax in the fuel, which varies with the source of the base stock, the refining process, and the type and quantity of additives that may have been introduced to the fuel during refining or distribution. There's always a spread between the cloud point and the pour point, with the latter usually from anywhere 2° to 20°F below the former. There are prescribed tests to determine the pour point of a fuel sample. As above, bulk suppliers can provide this information.
Cold Filter Plugging Point: This is a measurement based on a standardized test that indicates the rate at which diesel fuel will flow through a standardized filtration device in a specified length of time when cooled. The point at which the sample fails to go through the filter within the specified time is the CFPP.

Water in Your Diesel = Ice in Your Veins

While "gelling up" may be a common phrase, it's probably not the real reason your truck no longer runs. The most likely culprit is water, or more aptly, ice.

Frozen water can clog fuel lines and fuel filters , which starves the engine of fuel. Water freezes at a much higher temperature than does fuel, so if you're experiencing problems at temps ranging from 20° to 30°F, you probably have ice in your fuel lines or fuel filters. Pop the filter off and look inside; ice looks like, well, ice, and frozen wax is thick and gooey.

Water is almost always present in diesel fuel to some degree. A substantial quantity can accumulate in storage tanks or truck tanks if it isn't removed periodically. Since water is heavier than fuel, it settles to the bottom of the fuel tank. You'd be okay if it stayed there, even frozen, but it never does. Warm fuel melts the water which then sloshes around in the tank when the truck is moving. That breaks it up into finer droplets that can freeze as it travels through fuel lines exposed to cold outside air.

"We really see the problems at the metal 90-degree-bend fittings in the fuel lines," says Darry Stuart, an independent, limited time executive, providing maintenance and operational expertise. He's also a very active member of ATA's Technology & Maintenance Council. "The metal is cold, the 90-degree bend slows the flow and water trapped there can freeze, eventually plugging the line. The same thing can happen with air lines when the air dryer isn't working, but that's another story."

Ice crystals that make it past a 90-degree bend will next hit the fuel filter filtration media. In the past, when filter media was measured in 10s of microns, tiny ice crystals easily passed through the media. With today's 2-micron filters, ice will be trapped by the filter. If enough ice accumulates on the filter media, fuel will no longer flow through the filter and the engine will quit.

Changing your filters to one with more porous media is not the answer. Today's high-pressure fuel injection systems have very tight internal clearances, and any debris can cause significant and costly damage. Were you to use a more porous filter, the ice that clogged the smaller filter would melt under the heat and pressure in the injection system long before it got to the sensitive injectors, but other particles present in the fuel would pass through too, possibly damaging the pump or injectors.

You can lessen your chances of being struck down by humble ice crystals by draining or vacuuming the water from your fuel tanks, both on board the truck and in the yard.

"That should be part of a late-year PM, before the temperatures begin dropping," says Stuart. "You get water in the fuel from many sources: from condensation [warm fuel/cold temperatures], sludge in the bottom of the storage tanks, poor quality fuel from truck stops. It's everywhere, and it's probably in your tanks too. You should also drain your fuel/water separators too."

Take Control of Your Fuel

Stuart insists that the only way a fleet can stay ahead of fuel problems in winter is controlling the supply.

"Diesel fuel is a commodity," he says. "The people in the fleet who purchase the fuel look only at the price, not what's being delivered. For nine months out the year, it really doesn't matter what you buy, save for the swings in quality and junk that comes in with the fuel, but you can't control that except by maybe switching suppliers. It's a different story in winter."

Stuart say fleets with northern exposure should blend kerosene into their regular diesel supply, even if the supplier already offers a winter blend.

"Blending kerosene into diesel fuel in cold weather is the only sure-fire way of avoiding fuel-related cold-weather problems," he swears.

Blending kerosene into #2 diesel fuel lowers the cloud point of the fuel, or the temperature at which the paraffin wax begins to crystalize.

"How do you think fleets in the northern states and Canada manage when it gets really cold?" he asks. "They use a winter blend of #2 diesel and kerosene, often sold as #1 diesel. Depending how far north they are located, kerosene blending usually starts in the fall and continues through the winter months and into spring. They hardly ever have problems with that fuel."

Why is kerosene blending Stuart's preferred method of preventing fuel-related downtime?

"It's measurable and predictable," he says. "We know from testing and experience that, for example, a 20% kerosene blend will lower the cloud point of fuel and keep you running in temperatures down to zero degrees Fahrenheit.

"Any fuel supplier can give you a pour-point chart, and they'll tell you, 'our fuel is good down to 18-below.' Okay, that's fine, but then ask the supplier if they are willing to pay all the associated costs if it doesn't work," Stuart says. "Usually you never hear from them again."

Somebody is going to pay if the temperature dips down to minus-18 and the winter fuel or the additives you bought don't work. To those who believe kerosene is too expensive, compare that to the cost having a significant portion of your fleet sitting on the side of the road due to frozen fuel.

Balancing Price Against the Cost of Not Being Able to Run the Truck

"I grew up in Massachusetts, and fleets around here preferred using additives rather than kerosene blending," says Ben Curtis, fleet maintenance supervisor for the Delta Bulk Transport division of J.P. Noonan Transportation. "Kerosene was shunned because it was expensive, had lower BTU than diesel [poorer fuel mileage] and less lubricity. Blending with kerosene wasn't something I was accustomed to doing."

Then, over the Christmas holiday a few years back (working for a different carrier), a cold front moved across New England and temperatures sank into the single digits. What's worse, because the equipment sat for a few days, the fuel in the tanks became cold soaked.

"It was a mess," Curtis recalls. "The fuel had chilled to ambient temperature and had begun to cloud (the wax had crystalized), and the fuel filters were plugged. I called Darry (Stuart) and he advised me to pour kerosene into the tanks with a best estimate of the blend for the temperature, and to get some kerosene into the fuel filters to dissolve the wax. We did that and it worked."

The lesson Curtis learned from that experience was not to compare the cost of kerosene against the cost of an additive program, but to the cost of not being able to run the truck.

"I was worried about lubricity value and BTU value, but my trucks weren't running, and my customers were pretty unhappy," he says. "Since then, I have been ordering my fuel cut with kerosene in varying percentages based on projected temperatures."

Stuart says various fuel additives such as pour-point suppressants and anti-gelling products can work, but he takes issue with the usual lack of performance guarantees.

"Like with the fuel suppliers, try getting an additive supplier to back up their claims with a guarantee that they will pay the cost of getting the trucks back on the road if the product fails to prevent a freeze-up," he says. "It's probably not going to happen."

Stuart's position is, if you're spending money to protect yourself and that investment falls short, you're throwing money away. Instead, he says, "Take control of your fuel destiny; do it yourself. Start ordering your own kerosene-blended fuel around December 1, depending where you live in the country and how cold it's likely to get, and continue monitoring the weather forecasts for warnings of extreme dips in temperature."

For fleets with their own fuel pumps, Stuart supplied the chart below with his recommendations for winter blending of diesel with kerosene. Bear in mind, product must be ultra-low sulfur kerosene, which differs from Jet A (basically kerosene), which is not ultra-low sulfur. Fuel suppliers will provide test results on samples of the fuel they sell if you ask. As above, the results will show the cloud point and perhaps the cold filter plug point. Even if those numbers are within your requirements, Stuart says the fuel is probably fine, but cautions that you won't get a performance guarantee from the fuel supplier.

"If you want a guarantee, do it yourself," he says.

Understanding fuel system problems and their symptoms makes finding solutions easier. Darry Stuart provided these guidelines to help fleets understand what happening to their fuel and how to fix it.

How to Prevent Truck Cab Corrosion in Winter

Fri, 31 Jan 2025 13:51:46 GMT

You’d have to admit that truck OEMs are generally doing a much better job today at keeping their cabs from literally rotting away. Coating and pre-paint treatments are much better than they were 20 or 30 years ago. But the industry is seeing a new type of invasive corrosion, brought into cab on drivers’ boots and even in the air.

The highly corrosive road de-icing compounds find their way into places we can’t reach and inexorably begin eating away at our expensive trucks. Evidence of corrosion has been found in tractor and trailer braking systems and even in the deeper recesses of HVAC systems. It’s thought that corrosion is the result of airborne magnesium- and calcium-chloride dust that is inhaled into the various systems and then comes to rest there.

“That stuff is drawn into the air circulating fan, circulated through the HVAC system, and pushed back out into the cab interior,” says Tim May, regional sales manager at Minimizer and chair of the S.17 Cab and Controls Corrosion Control task force at the ATA’s Technology & Maintenance Council. “We’re starting to see it even in seatbelt retractor mechanisms and in the door jambs that house some darned expensive sensors.”

How De-Icing Compounds Corrode Truck Cabs from the Inside Out

Minimizer’s May suggests there are many ways chloride-laden moisture can enter the cab, including on the soles of drivers’ boots and shoes and even along CB antenna wires that are passed through door jambs.

“When the antenna wire is routed through the door opening, it prevents the rubber seals from seating properly,” he says. “Water flows along the outside of the wire, enters the cab and drips down to the floor, where it flows to the lowest point and collects. There, it begins eating away at whatever it lands on.”

It can access the cab interior from the other direction as well, wicking up through the floor from the underside of the cab on bolts such as seat mounts. Left unchecked, this could result in weakened seat mounts and corroded floor panels, especially on older trucks.

Dried-out windshield sealing rubbers can also serve as ingress points for moisture. The rubber contracts and becomes less pliable with age and exposure to the sun’s UV rays. Water can seep in this way, and like the antenna wire, it can create a pathway for moisture to leak into the cab and down into areas that are seldom seen or inspected.

Corrosion of Aftermarket Accessories on Trucks

When cabs are built, they are acid washed before painting to achieve as moisture-free surface as possible, and they are coated several times for good coverage and a thicker coating. Today’s coating processes will last a good long time — or until someone breaks the surface of the paint by drilling through the cab wall to attach some post-assembly component such as a light bar or a grab-handle. Once the paint is broken, rust is inevitable.

Often, items bolted to the cab are of dissimilar metals, aluminum on steel, for example. When dissimilar metals come into contact with electrolytes such as condensation, rainwater, or other sources such as oil, dirt and airborne particles, it can produce an electrochemical reaction that destroys metal and reduces its strength and thickness.

While it’s never a good idea to drill through a painted surface and join together two dissimilar metals, measures can be taken to reduce the effect of this galvanic corrosion. Insulate the two metals electrically with a non-conductive material such as a rubber grommet or a polyester/plastic film tape such as Mylar.

“Fleets are notorious for not using a 3-cent rubber gasket or a grommet when hanging stuff like muffler mounts and lights,” says limited-time fleet maintenance executive Darry Stuart, who is also an active member of TMC. “On trailers, we use Mylar tape, but after a while, that gets eaten away too.”

Corrosion's Role in Post-Accident Truck Repairs

Cabs can get beaten up pretty good after a crash, and putting them back together requires a little extra care if long-term corrosion protection is a consideration. Joints and seams can be opened up during the crash can allow water inside, corroding the surfaces from the inside.

Firewalls can be potential assess points for moisture too, particularly in older trucks where gaskets and seals may have dried out. The firewall is like Swiss cheese, there are so many holes. After a crash, bends or twists in the metal surface can reduce the effectiveness of the seals around the holes.

It’s basically impossible to prevent corrosion entirely, especially today with the harsh chemicals used for road de-icing. However, technicians can be trained to spot it developing before it becomes a serious problem.

It’s basically impossible to prevent corrosion entirely, especially today with the harsh chemicals used for road de-icing.

Wash trucks regularly, especially during the winter when the chemicals are used. Those chemicals linger on road surfaces, and the dust kicked up by tires, even in summer, is a threat to the metallic surfaces of the truck. Regular washes with non-corrosive wash products can help.

“There’s so much of that stuff around now, it’s like living by the seashore,” Stuart says. “There’s enough corrosive material in the air that it will corrode anything it comes into contact with, even brake valves and evaporators inside the cab.”

Top Violations for 2024

Thu, 23 Jan 2025 14:26:17 GMT

Top 5 Acute Violations

Operating without a valid CDL.
Failing to periodically inspect vehicle.
Failing to maintain driver qualification files.
Using an unqualified driver (previous positive drug test).
Failing to maintain vehicle maintenance/inspection records.

Top 5 Critical Violations

Speeding.
Falsifying HOS records.
Not using an ELD.
Using a driver before receiving preemployment drug test.
Failing to maintain copies of MVR in driver qualification Files.

Top 5 Roadside Violations - Drivers

Speeding 6-10 miles per hour over the speed limit.
Failing to obey traffic control device.
Falsifying HOS records.
Failing to use seat belt while operating a CMV.
Operating a CMV without a CD.

Top 5 Roadside OOS Violations - Drivers

Operating a CMV without a CDL.
Failing to record HOS with ELD.
Falsifying HOS record.
Failing to record HOS when ELD not required.
Failing to retain HOS records for previous 7 days.

Top 5 Roadside Violations -Vehicles

Inoperable Required Lamp.
Operating a CMV without proof of a periodic inspection.
Brake Out of Adjustment.
No/discharged/unsecured fire extinguisher.
Inoperative turn signal.

Top 5 Roadside OOS Violations -Vehicles

Tire-flat and/or audible air leak.
Defective brake(s).
Inoperative turn signal.
No/improper breakaway or emergency braking.
Inoperable Required Lamp.

Breaking News: California Abandons Advanced Clean Fleets Rule

Thu, 16 Jan 2025 13:59:45 GMT

The California Air Resources Board has withdrawn its request for the waiver it would need from the U.S. Environmental Protection Agency for its controversial Advanced Clean Fleets (ACF) regulation, since it’s unlikely to get approval from the incoming Trump administration.

“The withdrawal is an important step given the uncertainty presented by the incoming administration that previously attacked California’s programs to protect public health and the climate and has said will continue to oppose those programs," said CARB Chair Liane Randolph in a statement.

For the first time, ACF required fleets to buy zero-emissions trucks. In the past, emissions regulations targeted the manufacturers.

The ACF would have mandated that truck buyers increasingly purchase zero-emissions trucks, on a phased-in schedule based on fleet size and annual revenues.

Advanced Clean Fleets Rule Has Faced a Legal Battle

For drayage operators, the ACF mandated that even one-truck owner-operators comply, noted the Western States Trucking Association (WSTA), one of the trucking groups that had fought the regulation in court — including banning all new non-zero-emissions vehicles from serving California ports and railyards if they had not been previously registered to do so with CARB.

WSTA and other industry groups had sued California over the rules, which had been pending at EPA for more than a year. California must have EPA permission to enforce stricter-than-federal emissions rules under the Clean Air Act through a waiver system.

CARB had previously delayed enforcement of the ACF regulations that were scheduled to kick in last year on drayage and "high-priority fleets" until the EPA could grant a waiver.

Jane Nishida Acting Administrator of the EPA, said, “We have placed a copy of your letter, as well as this response, into the Air Docket at regulations.gov regarding CARB’s request. As a result, the EPA is taking no further action on the HD ACF waiver request (89 FR 57151 (July 12, 2024)) and considers this matter closed.”

In regulatory documents as part of the ACF rulemaking CARB stated they needed the waiver from U.S. EPA to enforce the regulation against drayage truck operators, federal and privately owned fleets.

Advanced Clean Trucks and Other Factors Still Will Mean Push for ZEVs

This move doesn't mean California is backing off on its efforts to push trucking toward zero-emissions vehicles.

The separate California Advanced Clean Trucks (ACT) regulation, which sets limits on truck manufacturers can sell in the state, does have a waiver from the U.S. EPA , granted in 2023.

Dealers operating in California and in states that have adopted California's ACT rules have reported that they have a delicate balancing act of being able to get customers the trucks they need because there are a certain number of zero-emission trucks that must be sold.

In fact, Daimler Truck North America last month announced it would stop selling diesel trucks in Oregon, a decision it reversed earlier this week .

In addition, CARB said that it is "assessing its option to continue its progress as part of its commitment to move forward the important work of improving the state’s air quality and reducing harmful pollutants that contribute to poor health outcomes and worsen climate change.

"The waivers and authorizations recently approved, along with other existing programs, will advance essential emissions reductions in key sectors as we assess next steps."

As Matt Schrap, CEO of the Harbor Trucking Association, said in a LinkedIn post, "This isn’t the end, but the beginning of a new pathway."

Keep in mind that California ports had been restricting older, higher-emissions trucks well before the state's Advanced Clean Trucks rule, with the Port of Long Beach and the Port of Los Angeles Clean Trucks Program that was fully implemented in 2012.

And let's not forget that CARB and truck and engine makers entered into a Clean Truck Partnership in 2023 committing to meet California’s standards.

WSTA: 'Not the Time' to Push Zero-Emissions Truck Mandate

The WSTA was the first trucking association to file litigation in state court challenging the ACF. Other groups, such as the California Trucking Association , also filed lawsuits challenging the rules.

“We are pleased at this development at a time California is facing crisis that clearly illustrates the importance of heavy-duty vehicles — especially ultra-clean diesel-powered trucks in helping protect our communities and ultimately to begin the massive recovery efforts,” said the association in a statement.

“This was not the time to try and push through a rule designed to transform the industry to meet the desires of a small segment of the population, especially considering many of the burn areas have been without electricity for a least a week and do not have charging facilities to handle all the trucks.”

How to Prevent Truck Air System Freeze-ups

Fri, 03 Jan 2025 17:52:38 GMT

Cold temperatures and water can lead to only one outcome – and ice has no place in a truck's air system. Frozen moisture can disable compressors, along with any of the multitude of air valves in the system. Plunging temperatures, like we have seen across much of the Lower 48 in recent weeks, will put air systems to the test.

Compressed air always contains moisture, and when the air leaves the compressor, it’s hot. But as it travels through the line from the compressor to the air dryer, it cools, and that’s when the moisture in the compressed air condenses to liquid. If it's cold enough, that liquid will freeze, threatening the air supply to various systems, including transmissions, suspensions, and of course, brakes.

A heavy truck's air compressor puts out 4-6 ounces of water during an average day’s operation; more when operating in regions of high relative humidity, and less when air is cold and dry. If all that water is sloshing around in your air reservoirs or some other spot further downstream, you could be in trouble when temperatures plummet.

Air Compressors and Air Dryers

Your first line of defense is the air dryer, but there’s potential for trouble even before that. While it’s unlikely under normal circumstances, water vapor can freeze in the line from the compressor to the air dryer. If you have a particularly long line, or if the line has any restrictions or 90-degree-angle fittings, you’ve got a potential spot for problems. Any low points in the line can provide a point for water to collect and freeze, cutting off the air supply to the air dryer and thus the rest of the air system.

If the compressor discharge line becomes plugged, you'll probably hear the compressor banging away as the pressure builds up in the discharge line. Or, if you hear a loud rush of air, it could indicate that the safety valve on the discharge line has opened to relieve the pressure in the line. Either of those symptoms would indicate a blockage or restriction somewhere between the compressor and the air dryer.

If you know anything about the venturi effect, an older and carbon-choked discharge line can be especially susceptible to ice formation. As the warm moist air leaves the compressor and encounters a restriction in the discharge line (in effect, a venturi), the change in pressure on the downwind side of the restriction causes a rapid and dramatic drop in temperature – sometimes as much as 70 degrees – that will turn moisture to ice almost instantly. That ice can build up in the discharge line, eventually choking it completely.

Air compressors almost always pass a small amount of oil, which usually collects harmlessly in the air dryer or the wet tank. Older compressors can pass much more oil, which can prematurely foul the desiccant material in the air dryer and reduce its ability to remove moisture from the air. The mucky mixture of oil and water from a slobbery compressor also increases the risk of a blockage in the air line as the ice and oil bind together.

"It's normal for most compressors to pass a little oil, but if you constantly have to replace your air-dryer desiccant cartridge you may have excessive oil passage," says Jonathan Adams, product manager at Tectran, a manufacturer and marketer of air, hydraulic and electrical components and systems. "Air dryer effectiveness and air system performance decline quickly as oil is passed into the desiccant cartridge. Check your wet tank for moisture and other contaminants."

If you see sludge in your wet tank, oil is getting through the air dryer and passing into the downstream air system.

Most air dryers are equipped with heaters to prevent the collected waste from freezing in the purge valve reservoir, but these heater elements can fail too. It’s possible that air could leak past the purge valve if it doesn’t seat properly due to ice after a purge cycle, causing a loss of air through the open valve. Air won’t escape from the tractor reservoirs because of the one-way check valves, but the air used in brake applications and by the suspension won’t be replaced.

Drivers can check the condition of their air dryers by observing how much water and oily sludge comes from the wet tank when it's drained, notes Abe Aon, director of sales, Wabco North American Aftermarket. "We don’t recommend completely draining all reservoirs every day," he says. "Pulling on the drain cord or opening the drain cock for just a few seconds is a good indicator of the overall health of the air system."

For linehaul applications, most OEMs and air dryer manufacturers recommend replacing the air dryer cartridge every 2-3 years. The air dryer cartridge on vocational vehicles such as garbage trucks should be changed much more frequently. Some fleets can go longer or shorter between cartridge changes than others due to the climate they run in, the amount of air that they use, or the age of the vehicle, Aon says. "Older vehicles tend to have more air leaks and compressors that pass more oil."

Oil & Water Don't Mix

Since there will always be some oil in the compressor discharge air, and moisture too, the idea is to trap it before it gets downstream where it might do some damage.

"The first place it goes is into the air dryer contaminating the desiccant material," says Richard Nagel, director of marketing and customer solutions, air charging, at Bendix. "That's why air dryers lose efficiency. The desiccant does not expire or get used up, but it can become saturated with oil and it will no longer be capable of removing moisture."

Even though the compressor might be the problem, fleets are more likely to change the cartridge and service the air drier more frequently because that's much less expensive than replacing the compressor -- which can be a 6- to 8-hour job, plus the cost of the compressor.

"It might be cheaper to replace the desiccant cartridge more often, but the desiccant won't remove oil from the air," warns Nagel. "Air dryers are available with oil coalescing cartridges designed to remove oil from air systems, but they will need to be changed more often if you have an oily compressor."

While most brake valves are fairly tolerant of oil contamination, equipment like automated transmissions often have air-operated solenoid valves, which are very sensitive to both oil and water contamination.

Brake valves are more sensitive to moisture. Typically, these valves contain tiny little passages that can easily ice up and close off partially or completely. Depending on the effectiveness of the air dryer, a significant amount of moisture can get into the system and cause problems in these valves. That’s why it’s so important to drain the air tanks frequently. Moisture accumulated during the summer stays in the system like a time bomb, waiting for a minus-40 cold snap.

If your trucks are out in the wild with poorly maintained air systems, it's probably just a matter of time until sub-zero temperatures sideline the truck.

Hydraulic vs Mechanical Goosenecks for Lowboy Trailers

Fri, 03 Jan 2025 17:49:54 GMT

What’s the best lowboy trailer for your business? The wrong one can not only cost in the long term, but it may also have an immediate impact on the ability to haul the necessary equipment. It’s important to thoroughly research lowboy trailers in advance to help avoid trailer failures in the future.

Original equipment manufacturers provide a wide range of heavy haul solutions. Some offer lowboy trailer models with a removable gooseneck that is available in either hydraulic or mechanical configurations. Which type of removable gooseneck is right for your business?

While most contractors choose hydraulic goosenecks for ease of use, there may be some situations where a mechanical gooseneck is preferred.

Pros and Cons of Hydraulic Gooseneck Trailers

One of the main benefits a hydraulic gooseneck trailer offers is its ability to quickly attach and detach to save on downtime and labor costs.

Hydraulic goosenecks also use a series of hydraulic cylinders to safely and easily lower and lift the deck when the trailer is attached to the truck while maintaining a low center of gravity when the loaded equipment is particularly tall.

Additionally, if an operator knows there will be rough terrain or overhead clearances during transport, the front deck height of the hydraulic gooseneck can be adjusted to accommodate its surroundings.

Hydraulic gooseneck trailers also offer enhanced safety for the operator, as the neck can be raised to allow the truck fifth wheel to attach without requiring the main deck to be lifted.

Operations can further optimize their hydraulic gooseneck trailer by adding additional shims for weight distribution. Some manufacturers offer hydraulic gooseneck in double drop series, which can feature an 18-inch loaded deck height to ensure ample clearance and stability for tall loads and air suspension to provide maximum control over the load, as well as the lowboy series, which can have a weight capacity of up to 110,000 pounds.

Mechanical goosenecks utilize front rollers and truck ramps to connect and disconnect. These are best suited for longer-distance trucking companies, where the load will be on the truck for several days and unloading will occur on smooth, hard surfaces.

Pros and Cons of Mechanical Gooseneck Trailers

Mechanical goosenecks are lighter weight than hydraulic goosenecks; however, they take more time to attach and detach. They also cost less than hydraulic goosenecks and require less maintenance .

Mechanical goosenecks use front rollers and truck ramps to connect and disconnect. These are best suited for longer-distance trucking companies, where the load will be on the truck for several days and unloading will occur on smooth, hard surfaces.

Whether contractors choose a hydraulic or mechanical gooseneck trailer, by ensuring safe weight distribution, axle loads, and load positioning, heavy-haul trailers are continuing to provide the safety and efficiency users need to successfully haul their equipment.

Understanding Your Rights to Downtime Payments

Fri, 03 Jan 2025 17:46:21 GMT

“Fred,” a seasoned owner of a heavy-haul trucking business , has built a solid reputation for handling oversized loads. His fleet includes specialized equipment , such as an extra-long extendable step-deck trailer, essential for transporting massive machinery like excavators.

Last May, Fred took on a contract to move a large excavator across the Midwest — a routine job that soon turned into a challenging ordeal.

A young driver in a Mustang veered into Fred's lane and collided with his trailer. The police arrived at the scene, and it was clear that the Mustang driver was at fault. Fortunately, neither Fred nor the excavator he was transporting were harmed.

However, the damage to Fred's step-deck trailer was significant enough to render it undrivable according to federal Department of Transportation standards.

The Financial Impact of Downtime for Truckers After a Crash

Fred's immediate action was to file a claim with his insurance company to cover the repairs and the cost of transferring the cargo. His insurance company acted swiftly and paid the claim, but it took time to repair the equipment. There was a significant loss of income during this process.

For heavy-haul truckers like Fred, the inability to operate a portion or all of the business due to damaged equipment can be financially crippling.

The specialized nature of Fred’s trailer meant finding a replacement was next to impossible, leaving him sidelined and losing income.

Situations like Fred’s are where understanding an owner-operators or trucking fleet’s rights to downtime payments becomes crucial.

Mitigating Losses: A Challenge for Heavy Haulers

Fred, being proactive, did everything in his power to expedite the repair process and find a rental. He reached out to rental companies across the region, inquiring about the availability of a similar extendable step-deck trailer. Given the specialized nature of his equipment, he wasn’t surprised when every rental facility he contacted responded with a “no.”

However, Fred’s diligence in documenting these mitigation efforts in writing paid off later when dealing with the Mustang driver’s insurance company.

When Fred filed a downtime claim with the Mustang driver’s insurance, the adjuster requested proof that Fred had taken steps to mitigate his losses. In the insurance world, mitigation refers to the actions taken to lessen the loss.

By forwarding the rejection letters from the rental companies, Fred was able to demonstrate that he had made significant efforts to find a similar substitute trailer. He showed that no option was available.

This evidence was critical in supporting his claim for reimbursement of his downtime losses.

Downtime Payments: What Truckers Need to Know

Downtime payments from the at-fault party are designed to compensate truckers for their lost income while damaged equipment is out of service due to an accident.

This compensation can be especially vital for heavy-haul operators, who often rely on specialized trailers and equipment that are not easily rented or replaced.

Obtaining payment for lost income can be a complex process. Insurance companies often challenge these claims, arguing that the claimant-trucker didn’t do enough to mitigate the loss or that the time down was excessive.

This is why it’s essential for truckers to thoroughly document all efforts to repair or replace damaged equipment and to keep detailed records of the income they lose during the downtime period.

In Fred’s case, his written proof of trying to get a rental helped him overcome the insurance adjuster’s objections and secure payment for the time his trailer was out of service.

Would Your Insurance Protect Your Trucking Business?

Heavy-haul trucking is a high-stakes business. Even a few days of downtime can have significant financial repercussions.

While Fred was ultimately able to recover his lost income from the at-fault driver’s insurance, the experience highlighted the importance of having comprehensive insurance coverage that includes downtime coverage.

If the Mustang had had little to no insurance coverage, Uninsured Motorist Property Damage and Underinsured Motorist Property Damage would have been valuable coverages on Fred’s policy. They may cover the significant downtime losses the Mustang’s insurance won’t cover.

Truckers should work closely with their insurance agents to ensure there is adequate protection in the event of an accident. Proper coverage helps bridge the financial gap during the repair process and keep a business afloat when unforeseen incidents occur.

While no one wants to file a claim on their own policy, sometimes it’s necessary.

Be Prepared and Stay Protected

Fred’s experience can be a valuable lesson for heavy-haul truckers and others in the trucking industry.

Understanding your rights to downtime payments from the at-fault party and ensuring you have adequate insurance coverage are essential steps in protecting your business.

In a field where specialized equipment is often irreplaceable, being sidelined can quickly become a costly affair. By being prepared, staying safe, and working closely with your insurance agent and attorney, you can navigate the challenges with confidence and keep your business moving forward.

Stay safe, stay insured, and know your rights when it comes to downtime payments.

Trucking Grapples with Economy, Lawsuits & EV Rules

Mon, 30 Dec 2024 20:11:54 GMT

In 2024, truckers traveling the nation’s highways couldn’t help but notice the construction zones popping up like springtime Texas wildflowers, offering evidence of the road and bridge improvement investments during the third anniversary of the $1.2 trillion bipartisan infrastructure law passed in 2021.

There was more to come. In October, transportation officials announced a $62 billion chunk of funding to continue road, bridge and tunnel improvements across all 50 states.

Of course, even that good news could not solve a lingering nationwide truck parking shortage , stop an assault on the independent owner-operator model, slow regulatory pressure to replace diesel trucks with electric vehicles or stem the increasing number of nuclear jury verdicts in the nation’s courtrooms.

Jury Issues $462 Million Verdict Against Wabash After Crash
Texas Supreme Court Hears Werner’s $100 Million Verdict Appeal
Jury Rules Against Daimler IN $160 Million Liability Verdict

Another sign of the times in 2024 was the continued concern over the economy. For the second year in a row, it was the No. 1 industry concern expressed in a survey by the American Transportation Research Institute. The cause for concern: the combined impacts of rising operational costs with the lingering freight recession and declining freight rates, according to the American Trucking Research Institute report.

But by year-end, experts were optimistic that the economic doldrums might improve in 2025.

The year started out with a bad omen for independent contractors and motor carriers who depend on them. On Jan. 9, the U.S. Department of Labor announced it was adopting a multistep “economic factors” test for companies to follow to determine whether a worker should be classified as an independent contractor or employee, adding a layer of regulatory oversight that transportation stakeholders warned could upend the business model for independent truck drivers.

The federal law was modeled after one in California known as AB 5. The California Trucking Association (CTA) has for years waged a legal battle against it, as the law forces fleets there to reclassify owner-operators as employees. In August, however, the latest in a series of legal setbacks in its fight compelled CTA to throw in the towel and cease its challenges.

Otherwise, it was a quiet year for trucking on the regulatory side, said Dan Horvath, American Trucking Associations senior vice president of regulatory affairs and safety policy.

“I think 2024 was a different year in the sense that there weren’t any major rulemakings that were emerging on a regular basis,” he said.

That’s not to say there hadn’t been plans for federal trucking regulators to do so. But in July, for example, regulators announced they were delaying until 2025 a supplemental heavy-duty truck speed limiter proposed rule, an automatic emergency braking final rule and a proposed new truck driver seizure standard.

“What we did see was the Federal Motor Carrier Safety Administration perhaps move the needle forward on some general regulatory items such as expanding the Compliance Safety Accountability crash preventability program,” Horvath said. “It isn’t a major rulemaking, but by the same token it’s really an important piece of the broader regulatory puzzle for our trucking companies. Expanding the program allows the carrier to challenge that crash and have it marked as not preventable on their profile.”

He added, “From a purely safety perspective, I’d say the biggest regulatory item that is still pending and will be for some time was the Drug Enforcement Agency’s proposal to downgrade marijuana from Schedule 1 to a Schedule 3 drug. That was back on May 27. That was a big one. We’re still waiting for a response from the Department of Transportation as to how motor carriers are going to be impacted if there was a rescheduling. The concern is that regulators could decide to no longer test for marijuana.”

But there was no indication that the frequency and number of nuclear lawsuits declined in 2024, according to Doug Marcello, an attorney with the Harrisburg, Pa., law firm of Saxton & Stump.

“In fact, they seem to be escalating to the point that we’re starting to reach crisis proportions in terms of the impact they’re having on the industry as a whole, and with insurance,” Marcello said. “There’s no indication of it letting up. The number and the amounts of the verdicts out there have been very disturbing.”

But there has been progress, as some states have sought to curtail the trend at a more local level.

“In Georgia, for example, Gov. Brian Kemp is making it a priority,” Marcello said. “Over the last several years, Florida and other states have enacted some abuse reforms law. Hopefully, we’ll see that trend continuing. But it’s a multitier approach that is necessary, because even if the legislators enact lawsuit abuse reforms, the next thing is for the elected judges to enforce the laws in a manner to reduce lawsuit abuse.” Marcello added that judicial interpretations also play a key role in case outcomes.

Decarbonization

For many, the quest by California and Environmental Protection Agency regulators to mandate a rapid transition from diesel to electric trucks was the most concerning development for fleets in 2024.

“Out of all the regulatory items that were discussed in 2024, certainly emissions standards, greenhouse gas emissions standards, would top that list,” Horvath said. “That would include the EPA’s greenhouse gas Phase 3 standards for heavy-duty vehicles.”

The EPA rulemaking, announced in March, set stringent standards and timelines to reduce greenhouse gas emissions from heavy-duty vehicles from model years 2027 to 2032. The rule relies heavily on battery-electric and hydrogen-electric power systems.

Volvo's VNR Electric truck. EPA's stringent timeline to reduce emissions from heavy-duty vehicles will rely in part on OEMs developing battery-electric and hydrogen-electric power systems that achieve cost parity with diesel vehicles. (Volvo)

There were a number of other noteworthy efforts underway in 2024. Some of them included:

At year-end, a controversy over a $17.9 billion contract to improve moving services for military members and their families still was not workable , according to a number of members of large moving companies who said the military had not yet explained how the contract would work. At press time, the contract was being examined by the Government Accountability Office.
An Advisory Committee on Underride Protection was tasked with providing information, advice and recommendations to the secretary of transportation on safety regulations to reduce underride crashes and fatalities. In the end, the committee’s final report called on the National Highway Traffic Safety Administration to pursue a rule requiring side underride guards on heavy trucks. NHTSA declined.
FMCSA created a Predatory Leasing Task Force to evaluate lease agreements in the industry and their potential safety and financial impacts on owner-operators. At press time, the task force was continuing its work but had identified myriad lease agreements that left owner-operators in financial straits.
While driver detention has decreased slightly in recent years, the overall costs of being detained at customer facilities for more than two hours remain substantial, an ATRI analysis made public in September concluded. Drivers reported being detained during 39.3% of deliveries , resulting in major consequences for industry productivity and safety, according to ATRI’s 2024 survey of 587 drivers.
In May, a string of an estimated 100 staged accidents with tractor-trailers in the New Orleans area turned grisly when two of the scammers were charged with the 2020 murder of a co-conspirator who was cooperating with the FBI. One woman has since pleaded guilty. A 10-count indictment in December charged two law firms, two individual attorneys and multiple participants in a sweeping witness tampering and murder conspiracy .

NorthAmerican Transportation Association will continue to keep our readers and members up-to-date on what is going on in the Transportation industry. Join the NTA today and get paid for referring a friend through our referral program.

The Real Science & Truth About “Climate Change”

Mon, 30 Dec 2024 20:06:50 GMT

No matter what California does it will not change this so-called myth that climate change will doom the world.

It seems that the Democrats of California live in a fantasy world since they legalized marijuana because they ALL believe that all the “clean air” that they “generate” in California will somehow be kept in some “fantasy bubble” over California.

But the last time I watched the weather channel, the jet stream comes in from the east going across the west coast and then proceeds to move continually over to the east coast .

So, in essence, the new weather replaces the old weather.

World coal use is set to reach an all-time high in 2024, the International Energy Agency said Wednesday, in a year all but certain to be the hottest in recorded history.

Despite calls to halt humanity's burning of the filthiest fossil fuel driving climate change ( see below), the energy watchdog expects global demand for coal to hit record highs for the third year in a row.

Scientists have warned that planet-warming greenhouse gases will have to be drastically slashed to limit global heating to avoid catastrophic impacts on the Earth and humanity.

Earlier in December, the European Union's climate monitor Copernicus said 2024 was "effectively certain" to be the hottest on record — eclipsing the mark set just last year.

Published on Wednesday, the IEA's "Coal 2024" report does, however, predict the world will hit peak coal use in 2027 after topping 8.77 billion tons this year.

But that would be dependent on China, which for the past quarter-century has consumed 30 percent more coal than the rest of the world's countries combined , the IEA said.

China's demand for electricity was the most significant driving force behind the increase, with more than a third of coal burnt worldwide carbonized in that country's power plants.

Though Beijing has sought to diversify its electricity sources, including a massive expansion of solar and wind power, the IEA said China's coal demand in 2024 will still hit 4.9 billion tones — itself another record.

Increasing coal demand in China, as well as in emerging economies such as India and Indonesia, made up for a continued decline in advanced economies.

However, that decline has slowed in the European Union and the United States. Coal use there is set to decline by 12 and five percent respectively, compared with 23 and 17 percent in 2023.

With the imminent return to the White House of Donald Trump — who has repeatedly called climate change a "hoax" — many scientists fear that a second Trump presidency would water down the climate commitments of the world's largest economy.

Coal mining also hit unprecedented levels by topping nine billion tons in output for the first time, the IEA said, with top producers China, India and Indonesia all posting new production records.

The energy watchdog warned that the explosion in power-hungry data centers powering the emergence of artificial intelligence was likewise likely to drive up demand for power generation, with that trend underpinning electricity demand in coal-guzzling China.

The 2024 report reverses the IEA's prediction last year that coal use would begin declining after peaking in 2023.

At the annual U.N. climate change forum in Dubai last year, nations vowed to transition away from fossil fuels.

But its follow-up this year ended in acrimony, with experts warning that the failure to double down on that landmark pledge at COP29 in Azerbaijan risked jeopardizing efforts to fight climate change.

Set up in the wake of the 1973 oil crisis, the IEA presents itself as "the world's leading energy authority.

*Global temperature records typically start around the mid-19th century (about 1850) when systematic and reliable measurements began. Since then, the Earth's average surface temperature has increased by approximately 1.1 to 1.3°C (2.0 to 2.3°F) as of 2023.

That is exactly 173 years.

So, to break this climate change myth down to scientific facts,

Historical Global Temperature Data

Pre-1850s (Before Systematic Records) :

Scientists use indirect evidence, such as ice cores, tree rings, and sediment layers, to estimate past temperatures. These show relatively stable temperatures before industrialization, with natural fluctuations due to volcanic activity and solar cycles.

Greenhouse Effect (Early 19th Century)

1824 : French physicist Joseph Fourier first proposed that Earth's atmosphere could (not will but could) trap heat, comparing it to a greenhouse.

1850–1900 (Pre-Industrial Era) :

This period is considered the baseline for comparison.
Global average temperatures were relatively stable.
1856 : Eunice Newton Foote discovered that carbon dioxide (CO₂) could trap heat, but her work was largely overlooked at the time.
1896 : Swedish scientist Svante Arrhenius calculated that increasing CO₂ from burning fossil fuels could warm the planet, laying the groundwork for understanding human-induced climate impacts.
Note : They all said could- not would trap Co2.

1900–1950 (Early 20th Century) :

A modest warming of about 0.1–0.2°C , partially influenced by industrial activity and natural climate variability.
Warming slowed during the 1940s-1950s due to aerosol cooling from industrial pollution .
1938: British engineer Guy Stewart Callendar connected rising CO₂ levels to global temperature increases, using the term "global warming."

1950–2000 (Post-War Industrial Boom) :

Accelerated warming due to increased greenhouse gas emissions.
Average temperature rose by about 0.6–0.8°C during this period.
1956 : American physicist Gilbert Plass discussed how CO₂ could cause broader climate shifts, leading to the early use of "climate change."
1980s–1990s : "Climate change" became the preferred term in scientific and policy discussions because it encompasses a wider range of impacts beyond just warming.
1970s–1980s : The term "global warming" gained prominence in public and scientific discourse, especially with growing evidence of rising temperatures.

2000–Present : Climate Change (Mid-20th Century Onward)

Rapid warming continues, with the planet warming an additional ~0.4–0.5°C.
This period includes the hottest years ever recorded globally.

In Summary:

The Greenhouse Effect came first in the early 19th century, followed by the terms Global Warming and Climate Change in the mid-20th century as understanding evolved.

So, you see, it didn’t even get to 1 degree hotter in the last 24 years.

Now, let look at the COST to Taxpayers:

The United States has allocated substantial funds toward addressing climate change and controlling air pollution, including smog. Here's an overview of significant investments:

1. Inflation Reduction Act (IRA) of 2022

The IRA represents the largest federal investment in climate action to date, with allocations ranging from $370 billion to over $500 billion for clean energy and climate initiatives over the next decade.

2. Infrastructure Investment and Jobs Act (IIJA) of 2021

The IIJA provides approximately $7 billion to the Federal Emergency Management Agency (FEMA) for aiding communities in adapting to climate-related disasters, such as hurricanes, droughts, and heat waves.

3. Environmental Protection Agency (EPA) Budget

The EPA's budget includes funding for various environmental protection efforts, including air quality improvement and pollution control. For instance, the Fiscal Year 2024 enacted budget is approximately $9.16 billion , supporting programs that address air quality, transportation, indoor air, and climate change.

4. State and Local Expenditures

In addition to federal spending, state and local governments contribute significantly to environmental protection. For example, California's 2024-25 budget allocates $17.8 billion from various fund sources for resources and environmental protection.

5. Economic Impact of Air Pollution

Addressing air pollution is economically beneficial. The U.S. Environmental Protection Agency estimates that every $1 spent on air pollution control yields an estimated $30 in economic benefits.

These investments reflect the U.S. government's commitment to mitigating climate change and improving air quality through substantial financial allocations across various programs and initiatives.

The California Air Resources Board (CARB) is a state agency dedicated to improving air quality and reducing pollution in California. Its operations are funded through a combination of state budget allocations, special funds, and federal grants. Here's an overview of CARB's funding and expenditures:

6. Annual Budget

Fiscal Year 2024-2025: CARB's budget is approximately $1.005 billion.

Did you notice that ALL of the above talked in Billions of Taxpayers Dollars.

And the final results are that the temperature has not even went up 1 degree in the last 24 years and we still have dirty air in California, so what have we gained?

FMCSA Revokes Two More Electronic Logging Devices

Fri, 20 Dec 2024 17:47:05 GMT

Two more electronic logging devices have been kicked off the list of registered ELDs by the Federal Motor Carrier Safety Administration, meaning drivers or motor carriers using them will need to replace them with ones on the list.

Electronic logging devices are required to monitor commercial drivers' hours of service and must be registered as complying with the minimum federal specifications for these devices.

On December 18, 2024, FMCSA removed the following ELDs from the list of registered ELDs due to the providers' failure to meet the minimum requirements established in 49 CFR part 395, subpart B, appendix A.

These ELDs have been removed from the list of registered devices.

Source: FMCSA

Mountain ELD and XELD devices were placed on the Revoked Devices list due to the companies’ failure to meet the minimum requirements established in 49 CFR part 395, subpart B, appendix A. These ELDs now appear on FMCSA’s Revoked Devices list.

The agency last week revoked four other ELDs , and three last month .

The removals are effective December 18, 2024. If the ELD providers correct all identified deficiencies for their devices, FMCSA will place the ELDs back on the list of registered devices and inform the industry of the update.

What Should Drivers and Trucking Companies Do If Their ELDs Are Revoked?

FMCSA will send an industry-wide email to inform motor carriers that all who use these revoked ELDs must take the following steps:

Discontinue using the revoked ELDs and revert to paper logs or logging software to record required hours of service data.
Replace the revoked ELDs with compliant ELDs from the Registered Devices list before February 16, 2025.

Motor carriers have up to 60 days to replace the revoked ELDs with compliant ELDs.

Instead, the agency said, enforcement officials should request the driver’s paper logs or logging software or use the ELD display as a back-up method to review the hours-of-service data.

Beginning February 16, 2025, those who continue to use the revoked devices listed above will be considered as operating without an ELD and drivers will be placed out-of-service.

Just another reason to utilize NorthAmerican Transportation Association’s NTA ELD. NTA is the only transportation started by a trucking professional who was once with the California Trucking Association’s safety department.

NTA is a reseller of a MAJOR ELD that has been on the market since 2016.

The NTA ELD is an electronic logging device developed by the NorthAmerican Transportation Association (NTA) to assist commercial drivers and fleet managers in complying with Hours of Service (HOS) regulations. It automatically records driving time by connecting to a vehicle's engine control module (ECM) via the diagnostic port and synchronizes with the driver's mobile device through Bluetooth or USB.

Key features of the NTA ELD include:

Automatic Driver Logs : The device captures driving time automatically whenever the vehicle moves at a speed of 5 mph or more, switching the driver's status to "Driving." If the vehicle remains stationary for over five minutes, the driver is prompted to change their status; without a response, it defaults to "On Duty."
Log Management and Certification : Drivers can view and edit their Records of Duty Status (RODS) for the past 14 days using the NTA ELD Electronic Logbook App. Logs can be certified by tapping the "Certify" button within the app.
HOS Compliance : The app provides information on applicable HOS rules, cycles, and cargo types, helping drivers stay compliant with federal regulations. It also supports special driving categories like Yard Move and Personal Conveyance, which can be enabled or disabled by fleet managers.
Compatibility : The NTA ELD is compatible with most vehicles equipped with standard 6-pin, 9-pin, or OBDII diagnostic ports. It connects to Android devices running version 5.1 or later and iOS devices running version 8.0 or later.
Offline Functionality : Both the ELD device and the Electronic Logbook App can function without a cellular data connection. While offline, the ELD continues to collect vehicle and GPS data, which can be synchronized with the NTA ELD servers once an internet connection is available.

The NTA ELD is designed to be tamper-resistant, employing multiple methods to prevent unauthorized adjustments, ensuring the integrity of recorded driving data.

For more information go to: https://www.ntassoc.com/nta-electronic-logging-devices .

Trucking’s Annual Congestion Costs Rise to $109.8 Billion

Wed, 18 Dec 2024 19:21:59 GMT

Traffic congestion on U.S. highways added $108.8 billion in costs to the trucking industry in 2022 according to the latest Cost of Congestion study published by the American Transportation Research Institute (ATRI). This finding, part of ATRI’s ongoing highway performance measurement research, marks a new record-high national congestion cost.

ATRI utilized a variety of data sources, including its substantial truck GPS database and Operational Costs benchmarks, to calculate the impacts of trucking delays on major U.S. roadways. The total hours of congestion decreased slightly in 2022 from record 2021 highs due to a softening freight market, but the cost of operating a truck during this period increased at a much greater rate.

As a result, the overall cost of congestion increased by 15.0 percent year-over-year. This level of delay is equivalent to more than 430,000 commercial truck drivers sitting idle for one work year and an average cost of $7,588 for every registered combination truck.

In addition to the national findings, ATRI’s analysis also documented state and metropolitan delays and related cost impacts. The top 10 states each experienced costs of more than $8 billion, led by Texas ($9.17B), California ($8.77B), and Florida ($8.44B). Combined, the top 10 states ultimately account for more than half (52%) of trucking’s congestion costs nationwide.

Texas
California
Florida
New York
Georgia
New Jersey
Illinois
Pennsylvania
Louisiana
Tennessee

Additionally, the metropolitan areas with the highest congestion costs included New York City ($6.68B), Miami ($3.20B), and Chicago ($3.14B).

ATRI’s analysis also found that the trucking industry wasted over 6.4 billion gallons of diesel fuel in 2022 due to congestion, resulting in additional fuel costs of $32.1 billion.

“With rising costs putting pressure on businesses and consumers alike, minimizing delays caused by congestion is more important than ever,” said Frank Granieri, A. Duie Pyle COO of Supply Chain Solutions. “Addressing these challenges requires a shared commitment to modernize our infrastructure and strengthen the backbone of our economy: resilient and efficient supply chains.”

So, what is the solution? If you intend to wait for State and Federal agencies to pony up the funds, well I think you have been smoking funny cigarettes.

It is this writer’s opinion that not only should motor carriers keep up on fuel surcharges but also institute a “congestion charge” to all freight headed for the foregoing States and Cities listed.

A copy of this report is available to all NTA Members.

Motor Carriers Must Stop Using These 4 Electronic Logging Devices

Tue, 17 Dec 2024 14:41:31 GMT

The Federal Motor Carrier Safety Administration has removed four devices from the agency’s list of registered electronic logging devices, or ELDs.

Motor carriers or drivers using the following ELDs must take steps to stop using and replace them.

The following four ELDs were placed on the revoked devices list due to the companies’ failure to meet the minimum requirements for ELDs. The removals are effective December 11, 2024.

COLUMBUS ELD (Model Number: C-US)
MasterELD (Model Numbers: MELD02, MELD03, and MELD04)

If the ELD providers correct all identified deficiencies for their devices, FMCSA will place the ELDs back on the list of registered devices and inform the industry of the update.

FMCSA will send an industry-wide email to inform motor carriers that all who use these revoked ELDs must take the following steps:

Discontinue using the revoked ELDs and revert to paper logs or logging software to record required hours of service data.
Replace the revoked ELDs with compliant ELDs from the Registered Devices list before February 9, 2025.

Motor carriers have up to 60 days to replace the revoked ELDs with compliant ELDs.

FMCSA strongly encourages motor carriers to take the actions listed above now to avoid compliance issues in the event that the deficiencies are not addressed by the ELD providers.

On December 11, 2024, FMCSA removed the following ELDs from the list of registered ELDs due to the providers' failure to meet the minimum requirements established in 49 CFR part 395, subpart B, appendix A.

These four electronic logging devices don't meet federal ELD requirements.

Source: FMCSA

Enforcement for Drivers Using Revoked ELDs

During the 60-day period carriers have to replace the revoked ELDs, safety officials are encouraged not to cite drivers using these revoked ELDs for 395.8(a)(1) – “No record of duty status” or 395.22(a) – “Failing to use a registered ELD.”

Instead, safety officials should request the driver’s paper logs, logging software, or use the ELD display as a back-up method to review the hours-of-service data.

Beginning February 9, 2025, motor carriers who continue to use the revoked devices listed above will be considered to be operating without an ELD. At that point, safety officials are instructed to cite 395.8(a)(1), and place the driver out-of-service (OOS) in accordance with the Commercial Vehicle Safety Alliance OOS Criteria.

What is AB 2754?

Wed, 11 Dec 2024 20:21:59 GMT

This is just a reminder of the changes to come for 2025.

AB 2754 was a newly passed legislation , signed into law on September 27, 2024, that will impact employment contracts and agreements in the port drayage motor carrier’s industry.

This new law builds on existing law that prohibits a person or entity from entering into an employment contract or agreement with a construction, farm labor, garment, janitorial, security guard, or warehouse contractor if the person or entity knows or should know that the contract or agreement does not include sufficient funds for the contractor to comply with all applicable local, state, and federal laws or regulations related to the job specified in the contract.

A person or entity—the customer—can take steps to limit their exposure in these situations if the contract they sign contains nine specific pieces of information including the number of workers (including independent contractors ) who will perform work under the agreement, the amounts those workers are to be paid and when they will be paid. A copy of this contract must be provided to the Labor Commissioner upon request.

These contract requirements, which will certainly alter the bargaining position of the contractor and the customer, only provide a rebuttable presumption that the customer did not violate the law. A violation can still be established if the facts show that the customer knew or shown have known that the contract did not provide sufficient funds.

A customer who violates this law can be sued by the employees of the contractor the customer hired for actual or statutory damages plus attorney’s fees.

AB 2754 now extends this law to the customers of port drayage motor carriers.

WHAT NOW?

This law is effective January 1, 2025, customers of port drayage services may share civil legal responsibility and civil liability to port drayage drivers wage & hour claims including a motor carrier’s misclassification of drivers as independent contractors.

Under the “ABC Test” now used in California, it is very difficult for a motor carrier’s truck drivers to qualify as independent contractors.

Preparation is of the utmost importance. Revising existing contracts and preparing new contracts may prevent and mitigate costly lawsuits and fines. Port drayage motor carriers may seek to review their treatment of drivers (and other workers) to ensure compliance with California’s Labor Code.

Doing so will put them in a stronger position to compete in a market where customers will become increasingly cautious about which motor carriers they hire.

Having a law firm that deeply understands the complexities and intersections of employment and transportation law is vital to protecting your business.

Therefore, it is advantageous to join the NorthAmerican Transportation Association to see how we can help.

How to Secure Cargo on Open-Deck Trailers

Mon, 02 Dec 2024 16:19:36 GMT

Securing a load on an open-deck trailer presents a unique set of challenges, with no walls to contain cargo. Those who secure the payload to the trailer’s structure (most often the driver) have to be knowledgeable about federal regulations, understand some basic laws of physics, and be familiar with the characteristics of the trailer they are hauling. If they don’t, it can result in the accumulation of CSA points, an out-of-service citation, or a catastrophic cargo securement failure.

Cargo types can vary significantly, with materials such as lumber, metal coils, pipe, crushed vehicles, boulders, and everything in between. Heavy-haul drop deck and lowboy trailers may carry large, articulating equipment to and from off-highway worksites. Or oversize loads, like a 56-ton wind turbine nacelle, might be on the bill of lading.

Some fleets and drivers specialize in hauling a particular type of cargo and can become quite proficient at the process of securing it. Many others deal with significant variability, which can lead to trouble.

Know the Regulations

There is no substitute for a thorough understanding of federal regulations. In North America, the official regulations are governed by two key entities. In the United States, the Federal Motor Carrier Safety Administration establishes the regulations. In Canada, the regulations are set forth by the National Safety Code Standard 10 — Cargo Securement (NSC 10).

FMCSA’s Drivers Handbook on Cargo Securement classifies different commodities and stipulates the standards for proper securement of these specific load types:

logs
dressed lumber and similar building products
metal coils
paper rolls
concrete pipe loaded crosswise on a platform vehicle
intermodal containers
automobiles, vans and light trucks
heavy vehicles, equipment and machinery
flattened or crushed vehicles
roll-on/roll-off hook-lift containers
large boulders.

FMCSA regulations are informed by standards published by The Web Sling and Tie Down Association (WSTDA) regarding recommended standard specification for load securement devices, including synthetic web tie-downs, winches used with web tie-downs, and load binders used with chain tie-downs. The WSTDA standards detail definitions, construction, testing procedures, and operating practices for tie-downs, winches, and load binders. The National Association of Chain Manufacturers writes the standards for steel chain used for load securement.

Do the Math

When moving, an open-deck trailer is a dynamic environment that exerts physical forces on the cargo it bears. As soon as a trailer begins to roll, the mechanical action and movement of the trailer is transferred to its cargo. In order to secure cargo to the deck of a trailer successfully, one must understand the basic forces at hand and how they can cause a payload to shift, tip, slide and otherwise become unstable.

The gravitational force equivalent, most commonly referred to as “g-force,” is the most important part of the equation, and it is represented as simply “g.” One g is basically equal to something’s weight here on earth. Knowing the weight of the cargo is necessary to understand performance criteria for the breaking strength and related working load limit (WLL) of tie-down assemblies (including chains, wire rope, steel strapping, synthetic webbing and cordage) and other attachments or fastening devices used to secure articles of cargo. All such devices are manufactured to include clearly marked information on WLL — and these must remain legible for tie-down assemblies to remain in service.

According to FMCSA regulations for performance criteria, cargo securement devices and systems must be capable of withstanding the following three forces, applied separately:

0.8 g (or 80% of the weight of the cargo) deceleration in the forward direction;
0.5 g (or 50% of the weight of the cargo) acceleration in the rearward direction; and
0.5 g (or 50% of the weight of the cargo) acceleration in a lateral direction.

Securement systems must provide a downward force equivalent to at least 20% of the weight of the article of cargo if the article is not fully contained within the structure of a vehicle.

WSTDA has established the design factor of tie-down straps as 3:1, or a WLL of 1/3 of the tie-down strap’s breaking strength. For chains, the design factor is 4:1 or a WLL of 1/4 of the chain’s breaking strength.

The combined ratings of all the straps or chains must equal at least half the load’s total weight. If the load is 40,000 pounds, the aggregate WLL of all the tie-downs together must equal at least 20,000 pounds.

Along with FMCSA guidelines, ensure that these four critical conditions are met:

cargo should be fully contained and supported by the flatbed structure and should be restrained from any horizontal or vertical movement;
cargo should be fully restrained from shifting or tipping over by the truck’s structure and blocking implements of adequate strength, and
cargo should be completely immobilized by appropriately applied tie-downs so it can withstand the required g-forces in all directions.

Consideration should be given to the angle from the horizontal tie-down to its anchor point on the trailer, as this affects the downward pressure. The lower the angle, the less pressure and friction against the load. This may result in the need for additional tie-downs.

Often overlooked, the angle of a tie-down assembly can significantly decrease the amount of downward pressure exerted on a load, reducing friction between tiers of stacked cargo, and ultimately, against the deck. As an example, at a 30-degree angle, a tie-down may only be able to exert 50% of its effective downward pressure, which under certain circumstances may allow some cargo, including sheeted materials, to slide or become unstable.

The noted angle factors assume equal tension on all parts of the tie-down assembly, but in reality, tie-down tension varies from side-to-side due to friction on the cargo. So the effective downward pressure impact on actual load securement is compounded.

In all cases, chains and straps face limits on cuts, breaks and other defects as defined in a Defect Classification Table in the CVSA guidelines. Inspectors use the Out Of Service Guideline when examining a vehicle’s cargo securement. It’s wise to make chain and strap inspection a part of any cargo securement process.

Size Things Up

Load securement requires some planning and an assessment of the vehicle, the tie-down appropriate for a particular load, and the load itself. Good securement starts with a clean, safe and structurally sound trailer. It is also important to inspect and verify that the critical components of the vehicle involved in the securement are in good condition and are not weakened or corroded. Of particular importance are the deck structure and the anchor points for the tie-down.

The system or systems one chooses should depend on the characteristics of the load. Is it configured as one piece or as constituent pieces? Will it be prone to sliding? Does it have sharp corners that could cut through webbing? Does it have engineered anchor points that allow for “direct” securement attaching to the article, or nothing to attach to, requiring “indirect” securement that passes through, over or around the article? The cargo itself must also be strong enough to withstand the pressure of securement without becoming damaged.

In addition to traditional cargo securement and fastening devices such as binders, winches and hooks, there are a variety of tools that can be employed to enhance cargo securement effectiveness. Wood or rubber chocks may be added to promote stability. Corner protectors can be used to cover sharp edges that could cut webbing and to distribute downward force, avoiding edge-crushing damage to cargo such as shingles. Netting can be applied to unitize otherwise unstable cargo. Anti-slip mats can increase the coefficient of friction between the load and the load-bearing surface.

It’s Not Over Until It’s Over

Even if cargo is expertly secured at the outset, once it and the trailer are on the move, things can and will change. Per FMCSA 392.9, Inspection of Cargo, Cargo Securement Devices and Systems, drivers are required to inspect cargo before driving the vehicle and no more than 49.7 miles (80 kilometers) from where the cargo is loaded.

Periodic inspection of cargo securement devices and systems is mandatory when:

There is a change of duty status for the driver, or
The vehicle has been driven more than three hours, or
The vehicle has been driven for 149.129 miles (240 kilometers).

Ready Your Fifth Wheel for Winter

Mon, 02 Dec 2024 16:16:30 GMT

With winter on the way, now’s a good time to deal with the mess beneath your fifth wheel. Several pounds of gunk laced with rocks, sand, and other debris may have collected beneath the top plate over the summer. Those grease gobs thicken at sub-zero temperatures and can interfere with the movement of the locking mechanism.

Best to deal with it now before you’re besieged by difficult-to-uncouple complaints from semi-frozen, unhappy drivers. In addition, SAF-Holland emphasizes, a poorly maintained fifth wheel “could result in tractor and trailer separation, causing death or serious injury to others.”

“It is important to specifically follow the complete cleaning of the fifth wheel and proper lubrication and adjustments outlined by the manufacturer,” says Rob Nissen, SAF-Holland director, field service.

All old grease should be stripped from the top plate and the underside so the fifth wheel can be visually inspected for cracks. It’s important to clean all old grease from the grease grooves on the top plate, as they are likely to be loaded with impurities like sand and small stones that can gouge the plate. Most fifth-wheel manufacturers recommend this be done at least twice a year, during spring and fall.

It’s not necessary to remove the top plate to do this, as it can be steam-cleaned in place or cleaned with solvent. It is necessary to ensure all the old caked grease is removed from the lock mechanism to ensure it functions properly.

“Grease attracts dirt, rocks and debris; you have to clean that out periodically,” says Rob March, Jost International’s national sales manager. “Once you have it clean, exercise the lock mechanism four or five times using a lock tester. You want to make sure it locks and unlocks freely and easily.”

You can confirm it’s locking properly by noting the position of the release handle and visually confirming the locking bar is in place behind the kingpin or that the jaws are closed, depending on the make and model. The locking action should be quick and crisp. If it’s sluggish or it binds, it may be because of built-up grease on the mechanism or damaged parts.

Follow the manufacturer’s maintenance recommendations. Different makes and models of fifth wheel have different locking mechanisms and maintenance procedures.

Visual/Physical Inspection

In addition to freeing up a possibly bound-up lock mechanism, a thorough cleaning makes it easier to visually and physically inspect of the fifth wheel. Cracks or damage to the plate may be hidden beneath the old grease, warns Dan Henderson, Fontaine Fifth Wheel technical service coordinator.

“If the top plate has been damaged by a high-pinning event where the kingpin runs up onto the plate, the weight of the trailer could have bent or cracked the plate,” he says. “You won’t see that if it’s covered with grease. The same goes for wear or damage to the locks or stretched or broken springs. Caked grease can hide all that. They have to be thoroughly cleaned and inspected periodically, as per the maintenance recommendations.”

A straightedge can be used to check for deformation of the top plate, checking edge-to-edge in lateral and longitudinal directions.

Also check for slack in the jaws or locks using a standard lock tester. There should be no fore/aft movement and the tester should turn freely but firmly when in the locked position. Follow the proper procedures if any adjustment is necessary.

Some fifth-wheel manufacturers include grease fittings to lubricate the locking mechanism beneath the top plate. Others recommend coating the mating surfaces with a film of light oil, like a 90-weight gear oil. SAF-Holland advises those using no-lube fifth wheels that some underside parts may still need cleaning and lubrication.

While you’re up close and personal with the fifth wheel, ensure all the fasteners are present and tight. Check the function of the slider mechanism, if you have one, and the condition of the air cylinder to ensure the hose isn’t kinked and it doesn’t leak air when the opener is engaged.

Once it has been cleaned and inspected for damage and proper operation, the fifth wheel needs to be relubricated. Here’s where you can run into trouble. Different manufacturers have different grease recommendations. Fontaine, for example, recommends a Mobil moly lithium complex grease.

“It holds much lower temperatures than your over-the-counter bearing grease,” Henderson says. “Be careful about mixing or blending different types of grease, as that can change the viscosity of the lube and affect its performance.”

Prepping a fifth wheel for winter is a messy job that few fleets do regularly. Since they are pretty robust, it may seem inconsequential — until a driver calls in from a drop yard at 2 a.m. complaining he or she can’t unhook the trailer.

How to Get Your Cooling System Ready for Winter

Mon, 02 Dec 2024 16:13:29 GMT

You can almost hear the cooling systems of the nation heaving a sigh of relief as the hot summer weather abates in most parts of the country. But don’t kid yourself – winter isn’t any easier on the cooling system. As temperatures dip and the leaves change from green to yellow and red, it’s time to think about winterizing your trucks for the siege ahead.

As a resource for cooling system maintenance, the American Trucking Associations’ Technology and Maintenance Council offers Recommended Practice 313 C. You won’t go wrong following these guidelines.

Of primary importance this time of the year is the coolant mixture. You need adequate freeze protection, especially in the north where ambient temperatures of 10 or 20 below zero are common for several months. If the trucks stay in the South, you can get away with a leaner mixture, but you have to consider the likelihood of them straying north. The standard recommendation is a 40%-60% coolant-to-water blend, which will provide freeze protection down to minus 10 to minus 60 degrees.

TMC’s RP 313C cautions that any blend of 60% coolant or more could result in the fluid thickening at really low temperatures and reducing cooling system performance. A 50/50 mix will protect the system from freezing down to 34 degrees below zero.

That RP recommends using an optical refractometer to check the coolant/water ratio rather than a hydrometer because of its accuracy, speed and simplicity.

That’s the easy part. Sorting out which type of coolant the truck is using could be tricky, and have more serious implications if you get it wrong. It used to be easy when all we had was the traditional low-silicate coolants, says Peter Woyciesjes, worldwide RD&E manager, coolants, for Prestone Products Corp.

“Today we have several types of coolant in common use in heavy-duty diesel engines,” he says. “They are commonly differentiated by color, but that’s not always a reliable guide. There are companies that differentiate their product types by color. Unfortunately, there are some manufacturers that will use three different colors for the same fluid or technology. That can create problems.”

Getting the Wrong Coolant

Woyciesjes says mixing two different types of coolant should be avoided, but notes that a mix isn’t the end of the world.

“If you inadvertently mix red organic acid coolant and green conventional coolants, you won’t have any problems in terms of the key parameters – specifically its heat transfer properties,” he says. “The product will still cool the engine and you’ll have your freeze and boil-over protection. However, you’re now starting to mix chemistries, and you won’t get optimum performance from the coolant.”

TMC and most of the coolant manufacturers say a mix of up to 15% of a different type of coolant won’t cause any difficulties. If you have more than that, you should consider flushing the system and restoring the coolant that you want in the engine.

Maintenance staff should communicate with drivers the importance of preventing mixes, and urge them to report on-road top-offs so they can be alerted to a possible mix.

“Blends can happen when there a leak in the system and the driver is constantly adding make-up coolant of perhaps the wrong type,” cautions Woyciesjes. “It never hurts to monitor the coolant chemistry at PM time or any time after repairing a leaking cooling system.”

Homer Hogg, manager of technical development at TA Petro Stopping Centers, says some of coolants are compatible with each other, but not all.

“Metals protection is really the issue today,” Hogg explains. “These coolants are formulated with additive packages to prevent cavitation corrosion on wet-sleeve cylinder liners. Different OEMs take different approaches to this and so their coolant formula recommendations can be different.”

Hogg cites Detroit Diesel as one OE that is moving away from extended-life nitrite coolants.

“They have traditionally used the red extended-life coolants, but they have decided to move to a non-nitrite extended life formulation,” Hogg says.

The switch has a lot to do with the introduction of aluminum radiators into the heavy-duty fleet.

“Those radiators are assembled with a process called controlled atmosphere brazing, and some of the coolants on the market will react with the surface the weld and not perform as well,” Woyciesjes explains. “The non-nitrited fluids are more compatible with the newer radiator designs.”

The choice of which coolant to use was probably decided by the manufacturers of the truck you’re working on, but in mixed fleets or those using newer engines alongside legacy engines, coolant maintenance requires a little extra vigilance.

System Inspection

With the high heat load on today’s engine, even in cold weather, the need to maintain the cooling system has never been more pressing. That means the entire system needs a trained eye cast over it a couple of times a year. Things like fan shrouds can work loose over time, compromising air flow through the radiator core and possibly jeopardizing the fan blades in a worst-case scenario.

And of course, the belts are critical to proper operation of the cooling system and a few other components.

“The types of belts in use today are much different from the old neoprene belts and their wear patterns and indicators are different,” notes Hogg. “You won’t see the cracking we used to see. Consequently, it’s much harder to tell a belt’s condition just by looking at it.”

Hogg says you need to use a belt gauge to measure the depth in the peaks and valleys of the belt.

“There’s some training required to use a belt gauge properly, so it really does require a properly trained technician using the proper tools to evaluate the condition of the belts,” Hogg says.

And let’s not overlook what are perhaps the three most important bits: thermostats, radiator caps, and the humble hose clamp.

The cap, Hogg says, is designed to maintain a certain pressure in the engine.

“Coolant will boil at a higher temperature when it’s under pressure. If the cap allows the pressure to drop, the engine will overheat, just like when you operate the engine at higher altitudes. If the cap isn’t doing its job, the system could display all sorts of systems that might lead one to think it’s a more expensive problem.”

Hogg says leaks are most likely to appear when temperatures plunge because the metal of the engine, including the fittings coolant hoses are attached to. When the metal contracts, the clamps aren’t as tight and they could start leaking.

He suggests checking the torque on the clamps, being careful not to over tighten them when it’s really cold. The engine metal will expand again when it gets hot, and if the clamp is too tight, the expanding metal fitting could snap the clamp.

While cooling system maintenance is anything but discretionary, its importance may not be fully appreciated.

“The engine makers tell me that about 40% of the major engine failures today are related to coolant,” says Hogg. “Particularly poor cooling system maintenance.”

How to Get Your Trucks Ready for Winter

Mon, 02 Dec 2024 16:08:51 GMT

Why the heck didn’t I …?” That’s a question we hope you never ask yourself. Usually, it means you should have done something that would have had some bearing on your current predicament. Preparing the truck for another long, cold winter is a perfect illustration of the expression, “an ounce of prevention is worth a pound of cure.”

With fall upon us, now is the time to get the truck prepped for winter before the snow starts flying. There’s lots to be done, especially on equipment that is past its prime.

1. Check the Air System

Air System Checklist

Drain each air tank every day.
Eliminate kinks and restrictions from system plumbing.
Change/repair old air compressors.

Compressed air always contains moisture, and when warm, moist air hits cold steel air tanks, brass fittings, hoses, and valves, you have a recipe for trouble. Remind drivers to drain each air tank every day, especially the wet tank. It’s designed to coalesce moisture before it gets into the rest of the system.

Take steps to eliminate any kinks, restrictions, 90-degree bends, or low points from air system plumbing. Those are all points most likely to freeze in cold weather.

If the old air compressor is getting slobbery and spitting oil into the air tanks, change it or repair it before that oily water starts gumming up air lines and brake valves.

Air dryer manufacturers have specified maintenance intervals, but oil from the compressor can prematurely foul the desiccant cartridge, rendering it ineffective. Make sure the purge valve heater in the air dryer is working; otherwise, ejected moist air could freeze the valve open or prevent it from closing completely. Of course, follow the air dryer manufacturer’s maintenance recommendations.

Ultimately, you’re trying to keep moisture from fouling the brake valves. These valves contain tiny little passages that can easily ice up and close off partially or completely. Depending on the effectiveness of the air dryer, a significant amount of moisture could still get into the system and cause problems in these valves downstream of the air tanks. Moisture accumulated during the summer stays in the system like a time bomb, waiting for a minus-40 cold snap.

Consider switching the cable-release air tank drain cocks for the twist-open types. You can open them up completely and walk away, rather than having to hold them open. This ensures the tanks drain completely.

2. Inspect Charging and Starting Components

Start/Charge Checklist

Load-test batteries and replace bad ones.
Test alternators and starter output.
Visually inspect wiring connections and cable runs.
Clean battery terminal ports and apply protectant.
Inspect the trailer pigtail.

Winter beats up electrical systems. Lights, mirror heaters, and heater fans are always on. And then there are the inverters that power the hotel loads that keep drivers happy. All that current draw means batteries seldom get the chance to fully recharge. That means your batteries will be in a somewhat weakened state most of the winter.

Now is a good time to load-test your batteries and if necessary, replace the bad ones before they take the good ones down.

If you need to replace a battery, consider the application. Highway trucks that run inverters when they’re shut down need batteries with high reserve capacities to operate all those electrical extras. Deep-cycle batteries will forfeit some CCA (cold cranking amps) capacity for starting, but if your charging system is good, and you’re not losing voltage and amperage to bad connections, you’ll be fine.

Trucks running locally with many starting cycles each day should stick with high-CCA batteries.

If you have the equipment, test the alternator and starter output. At the very least, visually inspect the wiring connections at the starter and alternator as well as the ground connections for signs of corrosion or deteriorating wiring. Repair or replace all questionable cables and connectors.

While you’re under the truck, inspect the cable runs to ensure they are properly bound and not rubbing on the frame or other metal parts that could rub through the insulation, which could cause a short or allow moisture to enter the cable.

If you do nothing else, clean the battery terminal posts and apply a film of dielectric grease or protectant to prevent corrosion.

And finally, have a look at that trailer pigtail. The trailer end of that cable gets badly abused, pulled to its extremes, and is highly exposed to rain and road salt. Pull the connector apart and inspect the connectors inside. Or better still, replace it. It’s cheap insurance against a lighting or ABS violation.

3. Check the Cab and Chassis

Cab/Chassis Checklist

Check fuel tanks for water.
Consider replacing fuel filters.

Since water inevitably gets into fuel tanks, let the tanks get low and then check for water. Drain off as much as you can before it has a chance to freeze in the fuel lines.

Consider replacing the fuel filters for the same reason. Put a spare fuel filter and a bottle of air-line antifreeze — with instructions on how to use them — in the jockey box in case you have a freeze-up somewhere in the wilds of Wyoming.

A Few More Small Things to Check on Trucks Before Winter

Check the engine coolant for freeze point and rust inhibitors, and pressure-test the system for leaks. At the same time tighten all hose clamps and inspect all hoses for serviceability.
Clean the old, dirty grease from the fifth-wheel locking mechanism. It’s already a bit stiff with road debris; cold temps will only make it worse, which can cause difficulty in hooking up and releasing.
Check alternator mounting brackets, belts, and belt tensioners. Engine vibration often loosens things up, which allows the belts to slip on the alternator pulley. That can reduce the alternator output.
Make sure everything in and on the cab works. Check mirror heaters, heater-defroster fan, door, and window seals for air leaks. Apply a little antifreeze lube spray in door locks. Check the exhaust system for under-cab leaks; you don’t want your drivers snuffed out by carbon monoxide while they’re sleeping with the engine running.
Put on fresh wiper blades for winter and keep the old ones in the truck as spares.
Inspect your tire chains for wear and damage before they are needed.

Generally speaking, cold isn’t bad for trucks. What causes trouble is temperature changes. Cold weather is no big deal when you’re ready for it.

How Cold Weather Impacts Tires

Cold weather does funny things to tires. It’s not the tire that supports the load, but the air inside the tire. When that air is cold, it becomes denser, and thus occupies a smaller volume. That’s a fancy way of saying the pressure inside the tire will drop. If you don’t habitually check your tire pressure, a sudden drop in ambient temperature can lower your tire pressure by 5-10 psi (about one psi for every 10-degree drop in temperature).

Tire Pressure

Check your tire pressures regularly when they are cold — before you start driving. If the mercury drops, wait until they are cold and check the pressure again.

Be aware that when checking tire pressure when it’s really cold, any moisture in the tire could freeze in the valve as it escapes into the tire gauge. It’s a rare occurrence, but it happens, and it’s a bad way to start your day.

Tire Purchasing

If you’re planning a tire purchase, fall is the time to do it. Tires wear better in the cold because there’s less heat generated internally at the tread surface. You’ll improve your tire life by buying at the beginning of winter — and the extra traction provided by new, deeper tread won’t hurt.

FMCSA Revokes Three More ELDs

Wed, 20 Nov 2024 15:29:28 GMT

The Federal Motor Carrier Safety Administration removed three more devices from the agency’s list of registered electronic logging devices, or ELDs.

Keep Tracking
Rollingtrans ELD - ACCURATE ONE
RT ELD Plus - ACCURATE PLUS

These devices were placed on the Revoked Devices list due to the companies’ failure to meet the minimum requirements established in 49 CFR part 395, subpart B, appendix A. The removals are effective November 18, 2024.

If the ELD providers correct all identified deficiencies for their devices, FMCSA will place the ELDs back on the list of registered devices and

inform the industry of the update.

Motor carriers that use these revoked ELDs must take the following steps:

Discontinue using the revoked ELDs and revert to paper logs or logging software to record required hours of service data.
Replace the revoked ELDs with compliant ELDs from the Registered Devices list before January 17, 2025.

Motor carriers have up to 60 days to replace the revoked ELDs with compliant ELDs.

During this time, safety officials are encouraged not to cite drivers using these revoked ELDs for 395.8(a)(1) – “No record of duty status” or 395.22(a) – “Failing to use a registered ELD.” Instead, safety officials should request the driver’s paper logs, logging software, or use the ELD display as a back-up method to review the hours of service data.

Beginning January 17, 2025, motor carriers who continue to use the revoked devices listed above will be considered as operating without a ELD and the driver can be placed out-of-service in accordance with the Commercial Vehicle Safety Alliance OOS Criteria.

Just another reason to switch over to the NorthAmerican Transportation Association’s NTA ELD .

The ONLY Transportation Association that has its own ELD. Just go to: https://www.ntassoc.com/nta-electronic-logging-devices

The Second Clearinghouse Rule: CDL Downgrades Begin November 18, 2024

Fri, 08 Nov 2024 15:02:23 GMT

The compliance date for the second Clearinghouse final rule (Clearinghouse-II) is fast approaching. Beginning November 18, 2024, SDLAs will be required to remove the commercial driving privileges of drivers in a “prohibited” status in FMCSA’s CDL Drug and Alcohol Clearinghouse , which would result in a downgrade of the driver’s commercial driver’s license (CDL) until the driver completes the return-to-duty process. Some States have already begun downgrading CDLs for drivers in a “prohibited” status. The Clearinghouse-II rule supports FMCSA’s goal of ensuring that only qualified drivers are eligible to obtain and retain a CDL. FMCSA has created a Return-to-Duty Quick Reference Guide outlining the return-to-duty process that drivers with a “prohibited” Clearinghouse status must complete so they can get their status back to “not prohibited.” For more information about the return-to-duty process, visit the Clearinghouse Learning Center or frequently asked questions .

FMCSA Updates SMS Website

FMCSA has updated the Safety Measurement System (SMS) Website with the October 25, 2024 results. Complete SMS results are available to enforcement users and motor carriers that are logged into the SMS Website .

Note: the Prioritization Preview Website continues to be updated monthly alongside the SMS Website. Motor carriers can visit the Preview site and log in to see what their prioritization results would be under the proposed new methodology.

Arizona Trucking Company Failed Safety Audit, Registered With New Name Before Driver on Meth Killed 5 Outside of Las Vegas

Mon, 04 Nov 2024 19:36:11 GMT

LAS VEGAS (KLAS) — The trucking company that employed the driver high on meth who killed five cyclists in one of Nevada’s deadliest crashes failed a safety audit and was granted a second identification number under a new name, sparking possible changes to how the federal government tracks businesses on our roads.

On Dec. 10, 2020, while driving on U.S. 95 outside Searchlight, Jordan Barson, 48, collided with the group, killing five and injuring several others. Nevada State Police Highway Patrol troopers investigating the crash did not suspect Barson was impaired, but a blood test administered without a warrant would later find he had a level of methamphetamine in his system often seen in corpses.

The five cyclists killed were all from Las Vegas: Aksoy Ahmet, 48; Michael Murray, 57; Gerrard Nieva, 41; Erin Ray, 39; and Tom Trauger, 57.

Barson initially faced separate counts of DUI and reckless driving for each of the five bicyclists killed and other charges — 14 counts in all. The lead prosecutor on the case told the 8 News Now Investigators in 2021 that those charges ultimately led to a lesser deal due to the investigative failure.

Barson was working for Roadrunner Transport AZ, a courier service based in Kingman, Arizona. He drove from Arizona to Las Vegas for a pickup that morning and was on his way back to Arizona when the crash occurred. The cyclists were struck from behind as the truck crossed into the right lane.

The Nevada Department of Transportation allows cyclists to ride on rural sections of highway, including this section of U.S. 95. There is no law barring them from the right lane — even though body camera video would reveal the police investigating the crash did not know that.

Barson submitted to a voluntary blood draw at a hospital. Blood results showed he had 948 nanograms per milliliter of methamphetamine in his blood, documents said. The limit, 100 nanograms per milliliter, is the bar prosecutors must show to prove impairment.

The 8 News Now Investigators filed several public records requests after the crash. Documents obtained through those requests reveal Roadrunner Transport was not required to drug test Barson because the truck he was driving was not considered a commercial motor vehicle.

Documents reveal a company in Roadrunner Transport’s owner’s name failed a safety audit in 2019. That audit failure, plus previous violations with a driver other than Barson, led the company’s owner to close it and open a new one under a new name, fearing they would not get insurance, documents said.

Video the 8 News Now Investigators obtained from the crash shows troopers working to convince Barson to submit to a blood draw and others researching the trucking company.

In one video, one trooper searches for Roadrunner Transport’s U.S. Department of Transportation number — a unique seven-digit identifier from the Federal Motor Carrier Safety Administration, which regulates companies doing business on our roads.

Federal law requires drivers with commercial licenses driving certain trucks to be randomly drug tested regularly. Barson had a commercial driver’s license — but even though he was piloting a vehicle that could and would kill a group of people — the truck itself was not heavy enough to require that commercial license or have regular testing.

Records show Barson was tested before he started working for Roadrunner Transport, but four other drivers started working at the company before Roadrunner Transport received their test results.

Other documents the 8 News Now Investigators obtained show Roadrunner Transport was a “successor company,” replacing one with a similar name – Roadrunner Hotshot. Federal investigators said, “the same owner owned both operations,” finding the new company “utilized the same drivers and equipment.”

Arizona business licensing records show Roadrunner Transport and Roadrunner Hotshot were both registered to the same person. The post-crash investigation found Roadrunner Hotshot — the first company — received “various violations” and in 2019, failed an initial safety audit.

“They were coming up for insurance renewal and were unaware if they would be approved,” an investigator wrote in one document. FMCSA then granted the owner a new DOT number under that new name – Roadrunner Transport.

“The carrier started they wanted to start off fresh,” an investigator wrote about the closing of Roadrunner Transport and the start of the new business.

“That should have raised flags, and it should have raised questions,” Las Vegas attorney Craig Drummond said. “To the extent that they are changing a number but continuing the same operation means that members of the public or perhaps other government agencies taking a take a look at this cooperation or this entity wouldn’t have access to the prior information because they wouldn’t have known that they had switched numbers.”

According to federal officials, a DOT number is assigned to “only one person and remain[s] assigned to that person forever,” adding a business owner will keep that “number when it changes its current form of business, and the new entity will continue to operate virtually the same.” The only change between Roadrunner Transport and Roadrunner Hotshot was a second person added as an owner of the new business.

“If you get two DUIs, a speeding ticket, whatever, you can’t just call the DMV and say, ‘I want a new number I want to register,’” 8 News Now Investigator David Charns said to Drummond.

“You’d have to take a lot of actions and get a lot of approvals,” Drummond said. “And you’d have to show you’re not doing it for a nefarious reason or an improper reason.”

Other than the documents from federal investigators stating the business owners wanted “to start off fresh,” there is no indication there was anything improper about the action of getting a new number — nor if the company’s owners knew it was not standard practice.

In 2022, after the 8 News Now Investigators aired a report about the methamphetamine in Barson’s system and the troopers’ investigation, the 8 News Now Investigators asked FMCSA about one business owner closing one company and starting a new one under a new number.

The department declined several interview requests but later provided a statement: “It was determined that the motor carrier failed to have an adequate drug and alcohol testing program, which is required and checked during the FMCSA new entrant safety audit within the mandated 12-month timeframe. It failed to conduct pre-employment drug tests on several subject drivers properly.”

The 8 News Now Investigators followed up with additional questions regarding the DOT numbers. A spokesperson again declined an interview request but agreed to answer written questions.

Question: I want to know how often that happen?

Answer: Entities required to obtain a USDOT number from FMCSA should obtain and hold only one USDOT number, to identify a single operation. There are instances where separate and distinct operations may be performed by a single corporate entity, or under a singular tax identification number. In those instances, it may be necessary for a corporation to hold more than one USDOT number for those distinct, active operations. FMCSA is aware, however, that some entities intentionally seek to obtain more than one USDOT number for a single operation often in an attempt to circumvent compliance with safety regulations.

FMCSA is actively working on a rulemaking and an improved IT system to ensure only safe companies are registered with FMCSA and that no single operation holds more than one USDOT number. FMCSA is already working on this effort migrating registration data into the technology structure for the new system. Within the migration process, FMCSA will identify entities who have been able to circumvent current processes to obtain more than one USDOT number. When those situations are identified, FMCSA will use existing enforcement tools to consolidate safety records and ensure companies are not using separate numbers or corporate identities to avoid compliance with federal safety regulation.

The 8 News Now Investigators then went to Transportation Secretary Pete Buttigieg for a clearer answer.

“DOT does a level of vetting to try to catch problem actors reincarnating under new numbers but sometimes that can be difficult to catch,” Buttigieg said, adding the agency was working on new systems to find similar incidents.

“Why do you think I had to come to you to get this answer?” Charns asked.

“What I can tell you is that we are constantly working to make sure that our system and our practices are up to date,” Buttigieg said.

Troopers working to find out more about Roadrunner Transport’s registration and DOT number found also be confused in the initial hours after the crash.

“We need to make sure who his carrier is because Roadrunner Hotshot LLC is an inactive DOT number,” one trooper said, referencing the old company’s name.

While Jordan Barson and Jordan Barson alone is at fault for the crash, documents indicate the government revoked Roadrunner Transport’s right to drive on our roads and the company closed in 2021.

“I think this case does highlight a need to fix a potential loophole,” Drummond said.

The families of the five victims and several survivors have filed civil lawsuits against Barson, the company and other entities involved in the crash. A trial was scheduled to begin next year.

8 News Now repeatedly attempted to get a comment from the attorneys for Roadrunner Transport — including several emails alerting them to the publication of this story — but never received a response.

In April 2021, Barson pleaded guilty to two counts of DUI resulting in death. A judge later sentenced him to 16-40 years in prison. Because the blood draw was voluntary and would have likely been suppressed had the case gone to trial, prosecutors agreed to a plea deal, Moskal said. Barson is serving two counts of DUI resulting in death. Five people died.

FMCSA Targets Falsified ELD Records in New Approach

wayne@ntassoc.com (Wayne Schooling) — Mon, 04 Nov 2024 19:32:02 GMT

Faced with evolving tactics to bypass hours-of-service rules, the Federal Motor Carrier Safety Administration is taking steps to combat electronic logging device fraud. The agency is launching a multipronged approach to address what it describes as a “moving target.”

In particular, the agency cited National Transportation Safety Board concerns with so-called ghost drivers as well as drivers utilizing multiple ELD accounts, and it is exploring various technological requirements to target those specific issues. It also is monitoring ELD performance data, training enforcement personnel to identify and act against fraud, removing noncompliant ELD providers from the market, and updating its ELD rules.

“FMCSA is committed to staying diligent with its fraud prevention efforts,” an agency spokeswoman said in a statement. “FMCSA continues to explore other methods to decrease ELD fraud in both the short and long term.”

A fatal December 2022 crash in Virginia put a spotlight on ELD fraud after a tractor-trailer driver for Illinois-based Triton Logistics was able to — with apparent participation from the carrier — falsify his ELD records to extend his driving time beyond the 11-hour regulatory maximum limit. The truck he was driving during early morning hours along Interstate 64 near Williamsburg, Va., came upon and crashed into a party bus after he failed to take evasive action or brake in time, according to the NTSB investigation. NTSB cited fatigue as a factor in the crash.

“We found that the truck driver’s lack of response to the slow-moving vehicle in his travel lane was due to fatigue from excess driving time and lack of sleep opportunity,” said the NTSB report, recently made public . “The truck’s motor carrier, Triton Logistics, created fictitious driver accounts for some of its vehicles’ electronic logging device systems that enabled drivers to operate beyond federal regulations, creating an opportunity for fatigued driving.”

Three occupants in the party bus died, nine sustained serious injuries, and 11 sustained minor injuries. The truck driver also was seriously injured.

Triton did not return a message left by Transport Topics seeking comment. However, NTSB said the company’s CEO denied knowledge of the fictitious logins and said it conducted internal checks to determine how the incident happened.

The driver detailed the scheme for NTSB investigators. He said whenever he reached his 11-hour limit, he could call the carrier’s HOS department — based in Lithuania — and add the name of a fictitious or former co-driver to the ELD, opening up another 11-hour driving window. If asked by a roadside inspector about the double login, the driver would tell the inspector that he dropped off his co-driver at a truck stop for a family emergency. The driver noted that other drivers used the login scheme to extend time behind the wheel.

After the 2022 crash, FMCSA conducted an on-site review of Triton and issued violations related to drivers making false reports regarding duty status as well as requiring or permitting drivers to extend driving time beyond 11 hours. After the review, FMCSA assigned Triton a conditional safety rating.

With an eye toward remedial action, NTSB concluded that a data-entry tracking history in ELD software could increase accountability and transparency, and also deter motor carrier personnel from making false entries aimed at circumventing HOS regulations. Investigators recommended that FMCSA revise its requirements to require ELD providers to create an audit log that includes the date, driver login time and identity of who logged them in, driver’s license numbers, the names of anyone who edits a log, and any changes to active driver lists. NTSB also recommended that the Commercial Vehicle Safety Alliance inform its members about the scheme and circumstances surrounding the Williamsburg crash.

Senior NTSB investigator Shawn Currie told Transport Topics if the driver’s name was John, he’d be logged in as Frank and then operate with a new 11-hour HOS time limit. “The hours of service, whether you agree with them or not, are there to prevent drivers from driving in excess of the rules , and to ensure they have the appropriate time off,” Currie said. He noted that the circumstance of the Williamsburg case could result in FMCSA fines and possibly criminal penalties if the state elected to bring charges.

Jeremy Disbrow, a Commercial Vehicle Safety Alliance roadside inspection specialist, said inspectors encounter false ELD log entries “all day, every day. Of course, many of the false entries can’t be proven, or they go unnoticed.”

He said the issue is known to CVSA inspectors. “We just discussed all this in a conference after the NTSB report came out,” Disbrow said. “It was pretty clear from the inspectors around the country that this isn’t an isolated incident by any means. The average inspector is seeing this every shift, at least once or twice. There’s a number of ways that they’re falsifying [logs].”

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This can include simply using tools available on some devices, he said.

“Drivers can make edits,” Disbrow noted. “If a driver makes an edit on the device himself, it will show up as an edit, and a suspicious inspector can see that. But if a carrier in their back office makes the edit, there are instances where it’s been done but doesn’t show up as an edit.”

Disbrow noted it’s risky to publicly discuss the varying methods. “It’s hard to talk about it because I don’t want to give people ideas,” he said. “I don’t want the industry to say, ‘Hey we can try that.’ As the years are going by, people are finding new workarounds. It’s a cat and mouse game.”

He added, “The hours-of-service rules are th ere to prote ct everybody . Thwarting them and running an extra five, six, seven hours without adequate rest is absolutely a recipe for fatigue.”

California Eases 90-day Inspection Requirement for Select Vehicles

Mon, 04 Nov 2024 19:28:01 GMT

As of January 1, 2025, certain vehicles will no longer be subject to California’s 90-day inspection program.

Recently enacted Assembly Bill 3278 removes vehicles with a gross vehicle weight rating (GVWR) of under 26,001 from the state’s mandatory 90-day vehicle inspection program (sometimes referred to as the California Highway Patrol’s 90-day BIT inspection).

About the 90-day inspection program

Section 34505.5 of the California Vehicle Code requires a vehicle inspection at least every 90 days on the following items:

Brake adjustments,
Brake system components and leaks,
Steering and suspension systems,
Tires and w heels , and
Vehicle connecting devices.

Inspections must be documented and include the:

Identification of the vehicle, including:
Make,
Model,
License number,
Company vehicle number, or
Other means of positive identification;
Date and nature of each inspection and any repair performed; and
Signature of the carrier’s authorized representative attesting to the inspection and the completion of all required repairs.

Inspection records must be maintained for two years.

The Federal Motor Carrier Safety Administration (FMCSA) considers this mandatory inspection program to be equivalent to the federal inspection requirements in Part 396.

Periodic inspection compliance on January 1, 2025

On and after January 1, 2025, vehicles that are no longer subject to the 90-day inspection requirement will be subject to the federal annual inspection requirements in Part 396 of the F ederal Motor Carrier Safety Regulations (FMCSRs) .

NorthAmerican Transportation Association’s Endorsed Fuel Card Adds New Security Feature

Mon, 04 Nov 2024 19:18:55 GMT

Multi Service Fuel Card has added a One-Time PIN (OTP) security feature integrated into its mobile app to guard against fuel card fraud.

The FBI estimates that card-skimming costs financial institutions and consumers more than $1 billion each year. According to FICO, the number of cards compromised due to skimming jumped 77% in 2023 compared to 2022.

OTP sends cardholders a unique time-sensitive PIN through the Multi Service Fuel Card mobile app to authorize transactions at the pump.

Unlike traditional static PINs, One-Time PINs are generated on the fly and expire quickly, making it virtually impossible for criminals to reuse intercepted data.

How Multi Service One-Time PIN Works

The OTP feature requires an iOS or Android device to operate but is not reliant on Wi-Fi access.

“We’ve run a pilot to ensure OTP delivery and point of sale authorization are reliable, fast and effective across the entire merchant network,” explained Ron Gunderson, Senior Director of Product and Technology.

“This update reflects our commitment to protect our cardholders from ever-evolving threats by delivering secure solutions without compromising ease of use.”

The new OTP feature is available now in the Multi Service Fuel Card mobile app on iOS and Android. The feature will be enabled by default for all new Multi Service Fuel Card accountholders. Existing customers can enable it via their account settings.

How Fleet Owners Can Leverage Fuel Card Info

Along with the OTP roll-out, the latest version of the Multi Service Fuel Card mobile app includes access to recent transactions and AR info for fleet owners leveraging the fuel card.

Users of the app who are not cardholders can still leverage the application to identify truck stops along their route with visibility to retail fuel prices and available amenities at each stop.

The latest version includes biometric security on Apple and Android devices for easy login.

Just as NorthAmerican Transportation Association was found in 1989 by a former truck driver, Multi Service Fuel Card was founded in 1978 by a former over-the-road truck driver who believed there had to be a better way to pay for fuel than a pocket full of cash.

Accepted at over 8,900 truck stops of all sizes across the U.S. and Canada, since 2021, Multi Service Fuel Card has been a wholly owned portfolio company of Shell USA.

Local Trucking Company Abruptly Ends Operations, Lays Off Hundreds of Employees Across Four States

wayne@ntassoc.com (Wayne Schooling) — Wed, 23 Oct 2024 18:51:40 GMT

ROBINSON, Ill. (WTHI) - A trucking and logistics company headquartered in Robinson, Illinois cut hundreds of jobs across four states when it abruptly closed, and the company now faces a lawsuit from a former employee.

According to an online database, the Illinois Department of Labor received a Worker Adjustment and Retraining Notification (WARN) from Midwest Transport, Inc. on Monday. The database showed that 75 employees were being laid off at the Robinson facility and that the layoffs started weeks before the state notification was received.

Under the Illinois WARN Act , employers with 75 or more full-time employees must provide written notice of pending plant closures or mass layoffs at least 60 days in advance. Other state and federal regulations outline similar requirements.

A copy of the WARN letter Midwest Transport sent to the Illinois Department of Labor, dated September 27 explains that the company ceased operations on September 9 at all facilities, which include locations in Robinson and Greenup, Illinois. Other facilities are located in Tennessee, Florida, and Pennsylvania.

Midwest Transport says it had been seeking capital to continue operating. The company claims it couldn't give the 60-day notice because it would've jeopardized the efforts. Further, the company says a large creditor unexpectedly demanded the business cessation on September 9, preventing the company from giving employees the 60-day notice.

In total, just over 500 people were impacted, including truck drivers, support staff, maintenance workers, dispatchers, managers, and regional directors. Only a few office and administrative staffers remained to wind up the company's affairs. The letter from Midwest Transport says all of the layoffs started and ended on September 9.

A former employee in Florida filed a lawsuit in federal court, which could clear the way for a class action. The lawsuit claims Midwest Transport violated the WARN Act by not providing proper notice of mass layoffs at its Tampa, Florida location, where about 400 people lost their jobs. The plaintiff is asking for unpaid wages and benefits for 60 days.

East and Gulf Coast Ports Brace for Seemingly Imminent Strike

Mon, 21 Oct 2024 12:28:13 GMT

The collective bargaining agreement between the International Longshoremen’s Association (ILA) and the U.S. Maritime Alliance (USMX) expires in less than a week. The sticking points primarily involve increased wages and automation. No bargaining sessions are scheduled prior to the September 30 contract expiration, and the ILA is on record as stating it will not extend that deadline. A strike seems nearly unavoidable.

A strike would shut down the East coast and Gulf coast ports entirely. Those facilities include over half of the busiest ports in the country, with nearly 13 million containers passing through annually. What is more, the effects of a strike would mushroom well-beyond the actual strike, as shipping delays, container ship congestion, port congestion on West coast ports, and stranded freight would be prevalent. Without question, even a reasonably short strike would devastate the container supply chain for months as the potential timing coincides with elevated holiday shipping demand. Several trade groups have therefore called on the White House to exert its Taft-Hartley Act power to force workers to remain on the job for an 80-day cooling off and negotiation period, but the White House has signalled it does not intend to do so.

Anticipating a strike, logistics providers should consider several mitigation measures. Preparing for congestion on West Coast ports, taking advantage of intermodal ground transportation where possible, looking for alternatives including when necessary for urgent delivery, possibly air transport, delaying shipping from East and Gulf Coast ports until after the strike, and budgeting for increased freight and container fees could all be beneficial. Similarly, watching for increased port hours in the lead-up to September 30 may be helpful.

We will continue to monitor the interaction between the ILA and USMX. As deadlines loom, pressure to negotiate mounts. Although a strike seems unavoidable at present, increased pressure could conceivably lead to movement. For more information, feel free to contact Greg Feary , Jim Hanson , Jack Finklea , Don Vogel , Prasad Sharma , or Chris McNatt .

Explaining VP Candidate Walz’s School Nutrition Scandal

Mon, 21 Oct 2024 12:08:37 GMT

The choice of Minnesota Governor Tim Walz as Kamala Harris' VP candidate ignited discussions on the future of education and social welfare. If Harris and Walz win the election, Walz’s potential influence as Vice President could significantly impact national school nutrition policies.

But a month after announcing that he would be on the road to the VP, things took a turn for Walz when official allegations were published from the federal government. He’s been issued a congressional subpoena calling him out for a lack of oversight in his position as governor. What’s it all about, and how will it affect his campaign? Let’s take a look at the governor’s track record and trace back how he got to be in this position.

Who Is Tim Walz?

The Harris-Walz campaign has highlighted how the governor’s background in education and agriculture positions him to advocate for expanded federal support, collaborate with state and local leaders, leverage executive influence, and address funding challenges. They claim that Walz’s leadership could pave the way for meaningful advancements in school nutrition, contributing to a more equitable educational environment for all students.

Indeed, the governor is known for his strong advocacy for educational equity and welfare reform. He perhaps brings a unique perspective to the ticket, particularly regarding universal school meals. As a former high school teacher and current governor, Walz has touted goals prioritizing education, pushing for increased school funding and initiatives to reduce educational disparities.

Universal free school meals, a free breakfast and lunch policy to all students regardless of income, gained prominence during the COVID-19 pandemic, addressing food insecurity and educational disruption. Despite its benefits, the program ended nationwide on June 30, 2022, due to funding and logistical challenges. However, Walz’s tenure as governor saw Minnesota become the fourth state to offer free school meals, highlighting his commitment to reducing childhood poverty and hunger.

But according to the federal government, things under the surface were a lot less smooth – and a lot shadier.

A SNAP SNAFU

On September 4, the U.S. House Committee on Education and the Workforce sent a letter to Walz. The Committee oversaw the United States Department of Agriculture’s and the Minnesota Department of Education’s administration of federal child nutrition programs. The letter, signed by Chairwoman Virginia Foxx, highlighted the Committee’s concerns about a multi-million-dollar fraud that occurred under Walz's tenure, based on findings from a government probe two years ago.

In 2022, the U.S. Department of Justice brought fraud charges against 47 Feeding Our Future (FOF) employees, a Minnesota-based nonprofit organization. The charges stemmed from allegations that the individuals were involved in a massive scheme to defraud federal child nutrition programs. Prosecutors claimed that the defendants conspired to misappropriate millions of dollars intended for feeding underprivileged children during the COVID-19 pandemic. The DOJ claimed that FOF had defrauded Minnesota’s school nutrition programs (funded by the state’s Department of Agriculture) for around $250 million.

According to the charges, the accused individuals submitted false claims for meal reimbursements, inflating the number of meals served and diverting funds for personal use, including luxury purchases and real estate investments. The case highlighted serious vulnerabilities in oversight and accountability within federal aid programs, drawing widespread attention and prompting calls for stricter regulatory measures to prevent similar fraud in the future.

Attempts for Documents Frustrated

The Committee sent letters to the Minnesota Department of Education (MDE) on November 14, 2023, and June 14, 2024, seeking information related to the FOF incident. It requested documents and communications related to the administration of these programs and the fraud that occurred. But, the MDE fell short of providing substantive and responsive materials.

Despite multiple requests for information and documentation from the MDE, the responses have been insufficient in addressing the scope of the fraud. Press statements by Walz and his representatives have indicated awareness of the fraud, yet actions taken by the administration were deemed inadequate to prevent the massive financial abuse that was alleged. What the Committee could gather from the documents that MDE did provide was that the actions taken by Walz and other executive officers were insufficient to address the fraud.

The Committee was particularly troubled by the lack of accountability and due diligence within the MDE. Foxx claimed that statements in the press from Walz and his representatives indicated that he and other executive officers were involved in or knew about MDE’s administration of the nutrition programs and responsibilities. Despite that, the letter pointed out that Walz had claimed in a statement published in the Minnesota Star Tribune in June that there was no “malfeasance” in the state’s education department. Walz had claimed: “There’s not a single state employee that was implicated in doing anything that was illegal. They simply didn’t do as much due diligence as they should’ve.”

The Committee noted that press statements by Governor Walz and his representatives acknowledged the fraud but did not hold agencies accountable or discipline MDE employees adequately. The lack of comprehensive and detailed responses from the MDE led the Committee to issue a subpoena to compel the production of the necessary documents and communications to fully understand the extent of the administration's involvement and response to the fraud.

The Subpoena

The Committee has now resorted to issuing a subpoena to compel the production of documents and communications to fully understand the extent of the administration's involvement and response to the fraud. Foxx emphasized the need for transparency and accountability in the stewardship of taxpayer dollars intended to feed hungry children.

Foxx wrote on X that it’s “[t]ime for answers.” Democrats are accusing Republicans of using official resources (congressional oversight) to go after an opposing party member.

"Ghosting” Your US DOT Number: What it Means

Thu, 10 Oct 2024 19:03:02 GMT

Don’t Wait till Your Insurance Company Notifies You

“Broker fraud” is a subject most everyone is familiar with, but what about “ghosting” of a motor carrier? With all the emphasis over the past couple of years on all kinds of broker fraud that ultimately leaves the trucking company holding worthless accounts receivable for work they’ve performed, getting your DOT number “ghosted” can very well completely and utterly destroy your companies survivability by becoming uninsurable. Size doesn’t matter, whether you have one or a hundred trucks, you need to be proactive in monitoring for this fraud. Here is a brief history of how that term came into use.

“Ghosting” is a term the U.S. Department of Homeland Security (DHS) assigned to a form of national security vulnerability in the days after 9-11. It involved drug cartels badging up trucks and trailers to mimic those of large national trucking companies in order to move their product throughout the U.S. DHS’s concern was always how this vulnerability could be used by terrorist organizations to move freely about the U.S. interior.

DHS’s fear wasn’t irrational, in training for officers at the Transportation Security Operation Center originally located near Washington Dulles International Airport, the January 2001 suicide truck attack on the Capitol building in Sacramento causing $19 million in damage weighed heavy on the minds of security officials in Washington. The damage caused at the Sacramento Capitol from a tractor-trailer exemplified why trucks were banned from using U.S. 93 and crossing right on top of Hoover Dam as many of us used to do when running between Las Vegas and Phoenix.

The reason I bring this “old news” up now is because in the past two months I’ve had to assist two members who had their DOT numbers “ghosted.” They only became aware of this when they were notified by their insurance companies of getting cancelled because of horrible roadside inspections associated with their U.S. DOT numbers that were not theirs.

“Ghosted” Motor Carriers

One carrier had a single inspection where it looked like every violation possible was written up, including having no company identifier on the vehicle (legal name and U.S. DOT number). The other was a single truck company based in Phoenix that only transports exotic cars, but had over 100 inspections get tagged to his DOT number over the course of a couple of months.

In viewing the inspections, out-of-service violations noted on all the inspections were two times (on vehicle) to four times (on driver) worse than the national averages. In the case of the single bogus inspection, I assisted our member with a DATA Q challenge that went back to Texas DPS to try and get the inspection removed. I have had little luck in the past getting these inspections removed because the lead agency always asks for proof the truck was never leased or owned by the company, which is hard to do. It’s like being asked to prove a negative. In this particular instance I included his insurance declaration page showing just one truck insured and his ELD records for the time surrounding the inspection showing he was not ever in Texas.

Texas DPS did the right thing and removed the inspection, saving our member at the time of his insurance renewal. The other case was a nightmare. As quickly as an inspection was DATA Q’d and got removed, 10 more new ones popped up!

Temporary Resolution of Issue

The week of September 8-12, 2024 I attended the annual conference of the Commercial Vehicle Safety Alliance (CVSA) where law enforcement officials from throughout North America are present including feds from U.S. DOT.

I tried discussing the issue with various state law enforcement agencies, especially in Region IV (western U.S.) and was taken aback by the stubbornness in refusing to recognize there is a problem at roadside and inspectors are not (in my view) doing enough to validate a truck is actually running legit under the correct U.S. DOT number. This can be done with the vehicle registration.

As I am seeing in California, especially with owner-operators that converted from a sole-proprietorship to an entity (LLC or Corp.), they often leave their truck in their personal name (to avoid sales tax issues or because there is a loan on the vehicle), but neglect to include a rental/lease agreement between themselves and their own motor carrier identity. This is the only way to show the motor carrier has legal possession of the vehicle being operated. It’s identical to getting a Penske truck for short- or long-term use, you’ll have paperwork giving you legal possession of the vehicle. CHP has been dinging people for not having documentation showing the motor carrier has legal possession.

Yes, all documents can be fraudulently created by photo shopping them, but I strongly suspect too many of those “ghosting” a carrier’s identity are not savvy enough to cover all their bases. At any rate, many officers agreed this was a crime but didn’t seem willing to take a proactive stand. While dealing with two instances on my part may not indicate a growing national problem, I was not the only motor carrier representative at the conference discussing this issue. It’s clearly a budding new issue for the industry that has seen more than its share of problems to deal with.

My final attempt was to meet with the top federal official from FMCSA who is the Director of the Office of Registration. When I showed him the carrier profile in their data system, he agreed with me that more can be done at roadside in identifying this fraud. That said, he immediately emailed others in Washington D.C. and they contacted the company owner. The only way they could see in resolving this issue immediately was to issue a new DOT number and federal MC number by-passing the 10-day protest period for new operating authorities. This was the only viable solution since they could not stop all the adverse inspections getting reported under the DOT number. They needed to shut down the DOT number so officers at roadside could place vehicles operating under the DOT number minimally out-of-service or even impound the vehicles.

How is this Happening?

While a lot is not known at this time, I suspect there is linkage between this issue and both broker fraud and the incessant “dispatch service” phone calls many get. As part of a motor carrier getting qualified to haul for a broker, or contract with a dispatch service, they require all sorts of documentation, from operating authority certificates, insurance, etc., all documents needed to facilitate this type of fraud. However, I have seen in simply California only operations the same type of fraud. Phony motor carrier permits and CARB certificates, it’s quite easy to do these days.

Both motor carriers have used load boards to get work and as part of getting qualified to haul for any broker, even if they actually never haul a single shipment, the broker has base documentation from them.

While attending the CVSA conference I did have some officers acknowledge privately to me, they are seeing this issue predominately in the “hot-shot” segment of the industry. That is people with pick-up trucks and gooseneck trailers who apparently at random note a carrier’s legal name and DOT number and place it on their own vehicle in order to haul loads. One of the members I assisted does operate as a “hot-shot,” the one with over 100 bogus inspections operates a tractor-trailer.

There is also the possibility that “human trafficking” plays a role in what is happening. The drivers themselves quite possibly are being forced to operate in this manor to “pay back” the cost of getting them into the U.S. by multi-national cartels (DHS are you listening?). This speculation was stated to me by an ex-CHP inspector, and if accurate, without some major federal intervention this problem for motor carriers isn’t going away anytime soon.

Be Proactive

Monitor your U.S. DOT number, it’s easy to do. Just Google on “FMCSA SAFER” and you’ll be able to enter your DOT number and have your public profile pop up. Scroll down to “Inspections/Crashes.” 24 months’ worth of roadside inspection data will show (in the case of California based motor carrier, terminal inspections on your vehicles are uploaded).

You can go to the upper right of the page and click on “SMS Results” to perform a deeper dive into any inspections showing up. However, because of all the fraud happening inside DOT data system, you can no longer just simply enter your U.S. DOT PIN to see the most detailed information on each inspection which will also identify the driver. You must access through your FMCSA portal account which also requires a multi-step authentication process to access.

Should you see an inspection or inspections that are not yours, you’ll need to attempt the DATA Q process to get them eliminated. That also involves being able to access your FMCSA portal account.

Navigating Federal Mandates & Safety

Thu, 10 Oct 2024 18:03:07 GMT

Implementing the Electronic Logging Device (ELD) mandate marked a significant shift in the trucking industry, particularly for small fleet operators. While the mandate was intended to enforce existing Hours of Service (HOS) rules, it brought about new challenges that many small fleets are still grappling with today.

It has been said that the ELD mandate has made it nearly impossible for drivers to “fudge” their hours, a more common practice when paper logs were in use.

The fact that many more folks have been vocal over the ELD mandate reflects that they have more issues with the existing HOS rules rather than the mandate itself.

The pressure to meet tight schedules could push drivers to engage in risky behaviors , such as speeding or following too closely, which increases anxiety and negatively impacts driving performance.

One of the most significant issues since the ELD mandate? Finding parking.

Parking has also been such a huge topic. It was always a little difficult, but now it’s gotten magnified since there is less ‘fudging’ of hours.

The rigidity of the ELD system, which is directly linked to a truck’s engine control module (ECM), has left little room for the flexibility that drivers once had.

Balancing Small Fleet Safety and Profitability

Balancing profits and safety is a tough job for small fleets, which face pressures that bigger companies might not deal with as often. The question of whether small fleets prioritize profits over driver safety is complex. Small fleets, which make up a significant portion of the trucks on the road, often operate with fewer resources than larger fleets. This lack of resources can lead to safety programs and administrative support gaps.

Smaller fleets may not be as familiar with industry issues like nuclear verdicts and how it impacts insurance rates.

The financial pressures on small fleets can lead to decisions that inadvertently compromise safety, especially if they are not actively involved in industry events and associations that offer valuable resources and education.

Participation in industry associations such your applicable state association or the NorthAmerican Transportation Association lends itself to education and generally safer fleets.

The consequences of these safety gaps are clear: higher accident rates, increased costs, and potential driver dissatisfaction. The resulting cycle can lead to driver turnover and inconsistent freight operations, further challenging the fleet’s sustainability.

When smaller fleets are less safe, there is going to be a rise in accident rates, and the company will have to absorb that cost, which means less to the employees or contractors that work with them.

The Unique Risks for Small Fleets

Small fleets face unique risks, particularly those related to serious accidents or legal actions . Lang noted that these fleets often have minimal insurance coverage and may lack the specialized roles that larger fleets have to ensure safety and compliance.

People have to do more with less in situations like that, which can lead to gaps in safety programs.

These risks are compounded by the fact that small fleets must adhere to the same regulations as larger ones but without the same resources to manage compliance effectively.

When a large accident occurs, they may not know how to handle all the steps that successful larger companies follow.

This can leave small fleets vulnerable, particularly in the face of nuclear verdicts that could threaten their existence.

Leveraging AI for Safer Operations

Using AI technology to navigate these challenges is one way. AI technology, like that found in modern dashcams , can play a crucial role in improving safety without being punitive.

AI can categorize the entire driving day into sections, like Green Minutes, Driver Stars, moderate, and severe alerts. This comprehensive view allows fleet managers to see the full picture of a driver’s performance, recognizing good and bad behaviors.

Using AI, fleets can avoid over-penalizing drivers for minor infractions while focusing on higher-risk behaviors. Using a scoring metric is also very helpful. AI technology, like that found in modern dashcams, can play a crucial role in improving safety without being punitive.

Steps for Small Fleets to Enhance Safety and Compliance

There are several practical steps that small fleet operators can take to balance regulatory compliance with driver safety and satisfaction. He emphasized the importance of leveraging technology, such as AI and in-cab coaching devices, to reduce friction between drivers and management.

If they cannot afford to hire additional staff, embrace AI and use devices to do much of the work for you.

Additionally, don’t overlook the value of industry involvement.

GET INVOLVED in industry associations such as the NorthAmerican Transportation Association. They are committed to helping the small to medium carriers or anyone with a DOT number to keep them out of trouble. Members get discounted services and free safety consulting.

NTA’s Members Portal contained a wealth of information so that our members can take advantage of.

NTA is also an official distributor of J J Keller Products.

NTA has about ten (10) attorney firms that keep them up-to-date on the latest regulations & court decisions.

They also have a very good relationship with the Trucking Industry Defense Association (TIDA) which is a nonprofit association with members devoted to sharing knowledge and resources for defense of the trucking industry. Founded in 1993, TIDA has become the organization of choice for over 1,600 motor carriers, trucking insurers, defense attorneys and claims servicing companies.

The organization is committed to reducing the cost of claims and lawsuits against the trucking industry. Members work to develop strategies and share knowledge to defend the trucking industry in personal injury, property damage, workers' compensation and cargo claims. TIDA members advocate on behalf of the industry’s interests.

Building a network of professionals through local, state, and national associations can provide small fleets with the support and resources they need to keep their wheels on the road.

MOTOR CARRIER Tax & Registration

Mon, 07 Oct 2024 16:31:59 GMT

A n In-depth Understanding the Requirements

The topic of tax and registration covers many areas, both state and federal, both interstate and intrastate. While it is important to look at each component of vehicle legalization and credentialing separately to fully understand each component’s requirements, there may be overlap. Understanding the basics of each component, and how they fit together with one another, is essential to ensure your ongoing vehicle compliance.

Motor carrier tax and registration requirements are handled by many different agencies, both federal and state. Carriers that need tax and registration assistance are often confused by which agency is responsible and are unsure where to turn with questions. To further complicate matters, the applicability of certain tax and registration requirements depends on the sizes and types of vehicles being operated, and often does not closely align with the Federal Motor Carrier Safety Administration (FMCSA) requirements.

The states and provinces administer the International Fuel Tax Agreement (IFTA) and the International Registration Plan (IRP). The federal Internal Revenue Service (IRS) is responsible for the heavy vehicle use tax (HVUT), and a handful of states require certain carriers to fie special state “weight-mile” taxes. These state-specific taxes are in addition to IFTA, IRP, and the HVUT.

In the following, we will take a closer look at some of the most common tax and registration applicable to most carriers.

International Fuel Tax Agreement (IFTA)

The International Fuel Tax Agreement (IFTA) is n agreement for the collection and distribution of fuel use tax revenues. The lower 48 states and the 10 Canadian provinces ae members of IFTA. IFTA allows carriers, including private carriers, to obtain one license and file quarterly tax returns with one base jurisdiction. As an IFTA registrant, you obtain the IFTA license through the base jurisdiction and file the taxes with your base jurisdiction. The base jurisdiction then distributes the necessary fuel taxes to other jurisdictions. IFTA applies to qualified motor vehicles operating in more than one jurisdiction.

A “qualified motor vehicle” is a motor vehicle used, designed, or maintain for transportation of persons, and that

Has two axles and a gross vehicle weight or registered gross vehicle weight exceeding 26,000 lbs.; or
Has three or more axles regardless of weight (counting axles on the power unit only); or
IS used in combination, when the eight of such combination exceeds 26,000 lbs. gross weight or registered gross vehicle weight

Qualified motor vehicles do NOT include recreational vehicles. Vehicles operating strictly intrastate ae not required to register under IFTA in most cases, but some jurisdictions might require them to be reported or may have intrastate fuel reporting requirements.

As a IFTA-licensed carrier, you are required to display two IFTA decals per vehicle and carry a copy of the IFTA license in each vehicle. As of January 2019, carriers are allowed to carry heir IRP cab cards electronically.

Last but not least, IFTA records must be retained for four (4) years from the date of filing the tax reports based on the records.

RECORDKEEPING

You are required to keep records of fuel purchased, received, and used in the course of business. The records must contain items such as date of each receipt of fuel, name and address of the person from whom the fuel was purchased or received, and the number of gallons/liters of fuel received. You must also keep detailed distance records by vehicles showing the taxable and non-taxable use of fuel, distance traveled for taxable and non-taxable use, and distance recaps for each vehicle for each jurisdiction in which the vehicle operated.

A common method of keeping track of mileage and fuel data is with the individual vehicle mileage report (IVMR). Electronic recordkeeping systems, such as the use of a global positioning system (GPS) or electronic logging devices (ELDs) can be used to record mileage data, but must meet the requirements of IFTA, such as the NTA ELD.

At a minimum, you should keep mileage data on each vehicle for each trip through a monthly fleet summary.

For the fuel purchases to count as tax-paid fuel purchases, you must keep records proving that the tax paid at the time the fuel was purchased. Acceptable records to satisfy this requirement must contain the date of purchase, seller’s name and address, number of gallons/liters purchased, fuel type, price per gallon/liter or the total amount of sale, unit numbers, and purchaser’s name.

TAX Reporting

You are required to file quarterly tax returns and pay any taxes due with your base jurisdiction according to the following schedule.

IFTA Quarterly Return Due Dates

Reporting Quarter Due Date

January – March (1st) April 30

April – June (2nd) July 31

July – September (3rd) October 31

October – December (4th) January 31

TRIP PERMITS

If you operate qualified vehicles interstate, you are subject to IFTA. There are two options for compliance.

First, it you frequently operate qualified vehicles interstate, you will most likely obtain permanent IFTA operating credentials and file the quarterly tax forms.

Second, the other option if you operate qualified vehicles interstate only for a few trips throughout the year, however. If you have frequent trips interstate trips, you may satisfy your IFTA obligations through temporary trip permits. Trip permits are obtained, for a small fee, from the intended states or provinces of travel. They ae usually valid for a 72-hour period.

International Registration Plan (IRP)

The International Registration Plan (IRP) I an agreement that provides for the apportioned registration of commercial motor vehicles allowing a qualified commercial vehicle shown on the cab card. The lower 48 states, the District of Columbia, and the 10 Canadian provinces ae members of the IRP.

The IRP registration is based upon “apportioning” the fees, which means paying fees in proportion to the distance traveled in each jurisdiction. For example, is a carrier operates 70% of its miles n Wisconsin and 30% of its miles in Illinois, then 70% of the registration fees are paid to Wisconsin and 30% to Illinois. A carrier registers in a single base state or province (base jurisdiction).

Applicability

“Apportionable vehicle” means any power unit that is used or intended for us in two or more member jurisdictions and that is used for the transportation of persons for hire or designed, used, or maintained primarily for the transportation of property, and:

Has two axles and a gross vehicle weight or registered gross vehicle weight in excess of 26,000 lbs.; or
Has three or more axles, regardless of weight (count axles on power unit only); or
Is used in combination, when the gross vehicle weight of such combination exceeds 26,000 lbs.
Recreational vehicles, vehicles displaying restricted plates. And government-owned vehicles ae not apportionable vehicles. Charter buses that exceed 26,000 lbs. gross weight or registered gross weight, or that have three or more axles regardless of weight are subject to IRP

Credentials

Your vehicles that are properly registered under the IRP receive one apportioned license plate and a cab card from your base jurisdiction. The cab card lists all the members IRP jurisdictions plus the registered weight the vehicle must comply with to operate in each jurisdiction.

Cab cards are vehicle-specific, and the original cab card must be carried in the vehicle for which it was issued. Copies are usually not allowed. Starting in January 2019, carriers will be allowed to carry their IRP cab cards electronically.

Vehicles registered under the IRP ae authorized to travel either intrastate or intrastate in all jurisdictions. No additional vehicle registration is required for intrastate travel.

Recordkeeping

When you are apportioned under IRP, you must keep track of all mileage by jurisdiction with an individual vehicle mileage records (IVMR) or other electronic recording devices, such as the NTA ELD which has both GPS & IFTA tracking. The IRP clearly states what us expected regarding recordkeeping requirements and should be consulted for more details. The IVMR or other distance data that is captured and used for IFTA can be shared and used for IRP annual reporting.

The IRP requires the license to preserve the records the apportioned registration application is based upon for the current application year, plus the three preceding mileage years. Depending on when you might be required to renew your registration, this time period may be over six years. It is recommended to keep your mileage data for six and one-half years for this reason.

You must also maintain monthly and quarterly summaries, and must also maintain a summary of the quarterly summaries. The monthly summary must include both:

The distance traveled by each apportioned vehicle in the fleet during the calendar month, and
The distance traveled in the month by each apportioned vehicle in each jurisdiction.

Non-IRP Apportionable Vehicles

Although exempt from the requirement to obtain apportioned plates, if you are operating a two-axle truck or truck-tractor, or a power unit in a combination of vehicles having a gross vehicle weight of 26,000 lbs. or less, you may register them under IRP at your option.

There may be a good reason to apportion a vehicle even though it is not required to be apportioned under the IRP. If you choose not to apportion vehicles, the vehicles become subject to individual jurisdiction registration laws. Some jurisdictions will grant reciprocity to non-IRP apportionable vehicles while others will a trip permit (or would accept full apportioned registration). Frequent interstate travel, or intrastate travel within a jurisdiction, may be a reason to apportion a non-apportionable vehicle.

You should verify the requirements of the jurisdiction of travel before entering the jurisdiction.

TRIP PERMITS

There are a few different circumstances under which you may need a temporary trip permit to satisfy your vehicle registration obligations for interstate travel:

No IRP credentials. If you normally operate intrastate-only with base-plated (registered only for the state of operation) but you need to operate an apportionable vehicle interstate, a trip permit must be obtained from the intended states or provinces of operation.
Vehicles with restricted plates, Plate such as dealer plates, manufacturer plates, or farm plates are examples. These plates are usually only valid in the state in which they were issued and the vehicles ma require trip permits to operate interstate.
Non-apportionable vehicles. Again, a trip permit may be needed for a non-apportionable vehicle for interstate or intrastate travel within a jurisdiction.

Registration trip permits are generally valid for 72 hrs. and must be obtained for each vehicle, for each trip of intended travel.

FULL Reciprocity Plan under the IRP

Throughout 2015, the IRP implemented the Full Reciprocity Plan (FRP). The FRP changed the IRP by granting all apportioned vehicles full reciprocity in all member jurisdictions. This means that all IRP jurisdictions now appear on all cab cards and that carriers no longer need to declare jurisdictions of travel.

Carriers also no longer need to add jurisdictions to their registrations during the year and pay high registration fees to do so. Carriers only pay registration fees based on the actual distance traveled in the jurisdiction and no longer need to estimate distances by jurisdiction. And, because apportioned vehicles are legally registered in all jurisdictions, the need for trip permits for apportioned vehicles was eliminated.

Crossing the Canadian Border

As international programs, IFTA and IRP affect carriers in both the United States and Canada.

In early 2019, the Canadian government introduced a fuel charge as part of its Greenhouse Gas Pollution Pricing Act, which is being administered by the Canada Revenue Agency (CRA). The tax applies to U.S.-based and Canada-based carriers that operate into the listed provinces.

Motor carriers providing commercial transportation of individuals or goods into, or travel through, the provinces of Alberta, Manitoba, New Brunswick, Ontario, and Saskatchewan or the territories of Nunavut and Yukon are required to register with the CRA and are subject to quarterly fuel charge filings. Canada’s fuel charge filing is in addition to the IFTA filings.

The fuel charge program applies to a variety of entities, including road carriers using qualifying motor fuel when operating specified commercial vehicles in the listed provinces. Qualifying motor fuel includes gasoline, light fuel oil, marketable natural gas, and propane. Commercial vehicles that meet the definition of a qualified motor vehicle under IFTA are subject to the fuel charge program. Carriers ae required to register with the Revenue Canada Agency.

Other Fleet Taxes

Heavy Vehicle Use Tax (HVUT)

The heavy Vehicle Use Tax (HVUT) is a federal excise tax collected to invest in U.S. transportation infrastructure. Collected by the Internal Revenue Service (IRS), the tax provides money to the states for other transportation-related investments such as law enforcement, motor carrier safety programs, highway/bridge maintenance, and more.

A highway motor vehicle includes any self-propelled vehicle designed to carry a load over public highways, whether also designed to perform other functions.

You are required to file IRD Form 2290 and Schedule 1 if a taxable highway motor vehicle is registered or required to be registered in your name under any state or District of Columbia, Canadian, or Mexican law at the time of its first use. Schedule 1 of Form 2290 is used to list all reportable vehicles by category ad vehicle identification number (VIN). While all taxpayers are encouraged to file HVUT electronically, you must file electronically if you have 25 vehicles or more.

Proof of payment of this tax is required for you to register a vehicle in any jurisdiction, both for the first time and at renewal. Canada-based and Mexican- based carriers are expected to provide proof of payment upon entry into the United States.

Proof of payment consists of a receipted Schedule 1 of Form 2290 “Heavy Vehicle Tax Return” that the IRD returns to you after you have paid the tax on your vehicle.

Form 2290 is used to figure and pay any tax due on heavy vehicles, or to claim exemptions from the tax when such vehicles ae expected to be used on public highways 5,000 miles or less (7,500 miles or less for agricultural vehicles) during the tax period. Returns must also be filed when the taxable gross weight of a vehicle increases during the tax period.

The tax period begins on July 1 and ends the following June 30, and the full year’s tax is due on all vehicles that are in use during the month of July. Returns must be filed by the last day of the month following the month of the vehicle’s first taxable use in the tax period, even if the carrier is filing the return just to suspend the tax for any vehicle.

If you place a new vehicle into service late in the tax year, you must file a new Form 2290 to report an pay the tax on the new vehicle. For example, if you place a taxable vehicle into service in January, you must file and pay the HVUT by the end of February. You will only pay portion of the ta for the remaining portion of the tax year.

STATE TAXES

There are a handful of states – Kentucky, Oregon, New York, Connecticut and New Mexico – which assess carriers with a “weight-distance” tax. These state-specific weight-distance taxes are I addition to the heavy vehicle tax (2290), IFTA and IRP.

KENTUCKY

If you are operating motor vehicles interstate or intrastate in Kentucky with a combined license wight in excess of 59,999 lbs., you are subject to Kentucky’s wight-distance (KYU) tax. It you are subject to the ta, you must obtain a KYU license. Upon application for the KYU license, you must provide a list of vehicles subject to the weight-distance tax.

One KYU license is issued for all units operated under the license. It is not necessary to display the KYU number on the vehicle; enforcement will be verified through the USDOT number. However, the KYU number must be displayed, in addition to the DOT number, if the vehicle is leased and the lessor holds the KYU account and pays the KY taxes. A copy of the lease agreement clearly defining who is paying the KYU credential should be kept in the vehicle to avoid and confusion.

You are responsible for notifying the Kentucky Transportation Cabinet when there are vehicles added to or deleted from the list of vehicles subject to the weight-distance tax. The list of vehicles may be updated online.

Quarterly reports must be filed on or before the last day of the month following the close of the quarter. Rports are required even though no tax may be due. You must maintain record for fuel purchases, consumption, and miles traveled for a period of five (5) years. Reports may be filed online.

OREGON

Oregon’s mileage tax is assessed against all carriers, private and for-hire, operating both intrastate and interstate with vehicles having a combined weight over 26,000 lbs. It you ae subject to the tax, the weight-mile tax is paid based on your vehicle’s declared weight and the miles in which the vehicle travels in Oregon. The declared weight is the heaviest weight at which the vehicle will operate in Oregon. The vehicle’s registration weight may be higher than the declared weight, but the declared weight cannot be higher than the registration weight. You may declare different weights for different vehicle configurations.

You must equip your motor vehicles with an odometer or another satisfactory device to accurately record the cumulative mileage travel by the vehicle.

If you use leased vehicles, you assume full responsibility for paying Oregon’s weight-mileage tax unless a difference arrangement is set up and approved in advance by the Oregon Department of Transportation.

The weight-mile tax is filed and paid on a monthly basis; however, if you have approval from the Oregon Department of Transportation, you may report on a quarterly basis. You must file reports even is no tax for a particular reporting period. If you will no longer be operating in Oregon, you can cancel the Oregon weight-receipt identifier registration.

You may pay the weight-mileage tax on a flat monthly basis if transporting items including but not limited to logs, poles, wood chips,, sawdust sand, gravel, rock and dirt. Farm vehicles operating intrastate for-hie also have the option of paying a flat monthly fee.

In September 2019, Oregon eliminated the weight receipt and tax identifier and no longer requires that a receipt e carried within the vehicle

NEW MEXICO

New Mexico assesses a weight-distance tax on motor vehicles with a declared gross vehicle weight (DGVW) exceeding 26,000 lbs.

If you are operating on New Mexico highways, you must register and report and pay weigh mileage tax quarterly,

or be subject to the trip each time you enter or exit the state.

When applying for the permit, weight categories ae based on total loaded gross weight, which is defined as the total loaded weight of a vehicle or vehicle combination, including the heaviest load that will be transported at any time during the registration year.

The weight-mileage tax applies to all New Mexico miles operated by the vehicle. It is computed by multiplying the miles traveled in New Mexico by the applicable tax rate.

New York

New York’s Highway Use Tax (HUT) applies to motor carriers operating any automobile, truck, tractor or other self-propelled device, alone or in combination with any trailer, semi-trailer, or dolly, having a gross weight exceeding 18,000 lbs., or any truck having an unloaded weight exceeding 8,000 lbs., or any tractor, having an unloaded 4,000 lbs., upon the public highways in New York. The highway use tax is imposed on motor carrier for the privilege of operating motor vehicles on the highways of New York and is based on the gross or unloaded weight of the motor vehicle and the number of miles the vehicle traveled on all state public highways. Miles traveled on the toll-paid portion of New York State Thruway are not subject to the tax.

There are two types of certificates:

A HUT certificate is required for any truck, tractor, or other self-propelled vehicle, including saddle- or full- mount mechanisms; &
A Automotive fuel carrier (AFC) certificate of registration is required for any truck, trailer, semi-trailer, or other attached device transporting automotive fuel and having a gross weigh exceeding 18,000 lbs.

If subject to the tax, you must apply to the New York State Department of Taxation and Finance for a certificate of registration and a decal for each motor vehicle subject to the tax and operated on New York’s public highways.

Tax returns are filed on a monthly, quarterly, or annual basis depending on the amount of the preceding calendar year’s liability. The tax an be filed online.

Alternatively, you may obtain a HUT certificate of registration for a fee. The HUT trip certificate allows you to operate in New York State for 72 hrs. from the time of the trip certificate issuance and relieves you from having to file and pay any tax related to the 72-hr. period. However, you may not apply for more than 10 trip certificates during the year.

CONNECTICUT

As of January 1, 2023, Connecticut imposes a highway use tax (HUT) on every “carrier” for the privilege of operating, or causing to be operated, certain heavy, multi-unit motor vehicles on any highway (i.e., public road) in the state. The HUT is calculated based on a vehicle’s weight and the number of miles driver in the state.

Per-mile tax rates increase based on vehicle gross weight, ranging from 2.5 cents per mile for vehicles weighing 26,000-28,000 lbs. to 17.5 cents per mile for vehicles weighing more than 80,000 lbs.

For purposes of this program, an “eligible motor vehicle” means a motor vehicle that:

Has a gross weight of 26,000 lbs. or more, and
Carries a classification between Class 8 and Class 13, inclusive, under the Federal Highway Administration vehicle classification system.

An “eligible motor vehicle” does not include a motor vehicle carrying or transporting milk or dairy product to or from a dairy farm that holds a license to ship milk.

Carriers must obtain HUT permits, and then file returns and remit the tax to the Department of Revenue Services on a monthly basis.

Think You Don’t Need a DOT Number? Think Again

Mon, 07 Oct 2024 15:58:29 GMT

There has been much confusion about who is required to have a U.S.

NorthAmerican Transportation Association goes out of its way to try and educate the general public so that they can comply in the most cost-effective way.

Department of Transportation (USDOT) number.

Many contractors feel it’s only needed for truckers hauling for hire, which is not the case.

A USDOT number is required for a commercial motor vehicle (49 CFR Part 390.5), which is defined as any self-propelled or towed motor vehicle used on a highway in interstate and/or intrastate commerce:

to transport passengers or property when the vehicle has a gross vehicle weight rating or gross combination weight rating, gross vehicle weight or gross combination weight, of 10,001 pounds or more, whichever is greater; or
to transport more than eight passengers, including the driver, for compensation; or
to transport more than 15 passengers, including the driver, without compensation; or
to transport material found by the Secretary of Transportation to be hazardous under 49 USC 5103 and transported in a quantity requiring placarding under regulations prescribed by the Secretary under 49 CFR, subtitle B, chapter I, subchapter C.

The USDOT number serves as a unique identifier when collecting and monitoring a company’s safety information acquired during audits, compliance reviews, crash investigations, and inspections. The following 32 states have laws agreeing to the enforcement of the federal USDOT regulations: Alabama, Alaska, Arizona, Colorado, Connecticut, Florida, Georgia, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, New York, North Carolina (§390.21), Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia, Wisconsin, and Wyoming.

The other states have state-based USDOT regulations (similar to federal OSHA vs. state OSHA regulations).

Many think that the USDOT number does not apply here, but lack of enforcement does not equal “not applicable.” It is a federal regulation, and it applies to all subject commercial motor vehicles.

Vehicles that require USDOT numbers must have a name and USDOT number on both sides of the vehicle’s power unit, in a contrasting color, and visible from 50 feet away when parked. Currently, there is no cost to register for a USDOT number. You can visit www.safer.fmcsa.dot.gov and select the “FMCSA Registration and Updates” link to register.

Real-World Examples

The law applies to every risk with a single power unit over 10,001 GVW; the misunderstood portion is that it applies to every combination of truck and trailer that exceeds 10,001 pounds.

If the insured owns a small pickup truck but has a heavy trailer, the combined weight of the truck and the trailer’s listed weight affects whether the rule applies.

Also, a single pickup truck can be considered to be carrying hazardous materials, thus triggering the USDOT number requirement, by carrying, for example, one 100-pound propane tank; a 55-gallon drum of pesticide, herbicide, or fertilizer; or some acetylene tanks.

Why Should You Care?

First, noncompliant insureds are open to large fines for even the first violation. Second, violation of these rules may be used against a noncompliant insured in lawsuits.

The USDOT released a new Compliance, Safety, Accountability (CSA) program for enforcement of the regulations, resulting in stepped-up enforcement. More information about the CSA program and resources are available at the website http://csa.fmcsa.dot.gov .

How Fake Co-Driver Led to a Fatal Truck-Bus Crash

Tue, 01 Oct 2024 18:59:59 GMT

It’s too easy for motor carriers and truck drivers to cheat on electronic logging devices, says the National Transportation Safety Board, resulting in dangerous driver fatigue — a major factor in a fatal 2022 crash between a semi-truck and a bus.

The NTSB is recommending stronger state and federal regulations for motor carriers in its report on the December 2022 crash on Interstate 64 in Williamsburg, Virginia.

The party bus was travelling at 20 to 25 mph in the right lane, while the truck was traveling at 65 to 70 mph with cruise control engaged. The speed limit on I-64 is 70 mph. The semi-truck hit the rear of the slower-moving bus. The truck driver did not brake or take any evasive action.

Three of the bus occupants died, while nine occupants and the truck driver sustained serious injuries.

The NTSB determined that the truck driver’s lack of response to the slower-moving bus was due to fatigue from excess driving time and lack of sleep opportunity.

The motor carrier, Triton Logistics, created fictitious driver accounts for its electronic logging device systems that allowed drivers to exceed federal hours-of-service regulations and drive while fatigued.

The investigation also determined that the bus’s significantly slower speed contributed to the severity of the crash.

NTSB Makes Recommendations on ELD Rules, Collision Avoidance, and More

As a result of the investigation, the NTSB is issuing six new recommendations and reiterating three previous recommendations. New recommendations include:

The Federal Motor Carrier Safety Administration should strengthen electronic logging device requirements to prevent opportunities for the creation of fake driver accounts. Regulations, it said, should require providers of electronic logging devices to create and produce an audit log, to include date, time and editor for driver logins, driver’s license numbers, and active driver list changes.
The Commonwealth of Virginia should offer management safety guidance to new intrastate motor carrier licensees covering license class, drug and alcohol testing, fatigue management, vehicle maintenance, and safe commercial vehicle operation.
Triton Logistics should implement a process to regularly verify the accuracy of drivers’ records of duty, implement a robust fatigue management program, and proactively use onboard inward- and forward-facing video event recording to improve driver training.
The Commercial Vehicle Safety Alliance should use this crash to educate its members on the importance of safeguarding the electronic logging device system to prevent falsification of information.

The board also reiterated previous safety recommendations that are relevant to this crash:

The National Highway Traffic Safety Administration should complete performance standards for assessing forward collision avoidance systems in commercial vehicles. NHTSA should also require that all buses and trucks over 10,000 pounds be equipped with onboard video recorders that record data associated with an event.
The Federal Motor Carrier Safety Administration should provide guidance to motor carriers on the use of onboard video recordings to ensure driver compliance with regulations and safe operations.

Truck Driver's 'Sleep Opportunities' Were Limited, Indicating Driver Fatigue

The NTSB used data from the truck’s electronic logging device (ELD), his cell phone records, and his interviews to determine what had happened in the days before the crash.

The day of the crash was the 61-year-old truck driver’s seventh consecutive day on duty.

When interviewed by the NTSB, the driver said he did not keep to a specific sleep pattern but would stop driving when he felt tired. He preferred to drive at night. He said he had slept for about five hours shortly before the crash.

The driver didn’t get more than five hours of consecutive sleep opportunities in the three days leading up to the crash, the board found. And, it noted, those “sleep opportunity” periods weren’t necessarily used for rest.

Footage from the truck’s forward-facing video showed that in the 3 minutes before the crash, the truck repeatedly drifted over into the shoulder area and then back into the right lane, crossing the white shoulder line nine times in 3 minutes.

A Fake Co-Driver Allowed Trucker to Cheat on Hours-of-Service Regulations

When NTSB examined the ELD data from the day of the crash, it showed that the truck driver was operating in a driver/codriver arrangement.

The driver involved in the crash told the Virginia State Police that he had dropped off his co-driver at a truck stop just before the crash. However, after further investigation, the NTSB found that the person who the supposed co-driver was no longer a Triton employee and had been dismissed eight days before the crash.

The alleged co-driver told the board he didn’t even know the crash-involved driver and had never occupied the truck with him or even driven long-distance trips for Triton.

During his interview, the truck driver stated that Triton had instructed that if he exceeded his allowable driving hours, he was to stop, call the Triton HOS department, and Triton personnel would log him out of the ELD and log in a new driver. He could then continue driving.

Both the NTSB and FMCSA spoke to four former Triton drivers who had been identified by roadside inspection notes as drivers who had recently dropped off co-drivers at truck stops, who told similar stories. Triton’s HOS manager denied creating additional logins for drivers to use, stating that might have been “a mistake.”

Post-crash, the Federal Motor Carrier Safety Administration conducted an on-site focused compliance review of Triton. It found violations that included making or permitting a driver to make a false report regarding duty status and requiring or permitting a driver to drive more than 11 hours.

As a result of the review, the FMCSA assigned Triton a conditional safety rating and a fine of $36,170 for violations related to failure to conduct post-crash alcohol testing, falsification of records, and exceeding maximum driving time.

Fleet Safety Policies Did Not Address Driver Fatigue

Triton Logistics Inc., the NTSB noted, had many safety procedures and policies in effect at the time of the crash.

These included rules of conduct for drivers, a formal written orientation procedure, post-crash procedures, a drug and alcohol policy, a ban on cell phone use and texting, and a roadside inspection rewards and penalties program. The carrier had an established controlled substance and alcohol testing program and an established hiring process.

Triton had the speed of all its truck-tractors electronically governed at 69 mph and used a Samsara forward-facing video and safety management system.

However, the company carrier did not have a stand-alone fatigue management policy and did not schedule routes to manage fatigue. Triton drivers could choose when to drive (for example, they could choose to drive overnight rather than during the day.)

At the time of the crash, Triton used an electronic tablet-based ELD from RoadStar LLC as the provider.

Fleet Deleted Standard Truck Safety Features That Could Have Mitigated Crash

The NTSB reported that advanced vehicle technologies, including automatic emergency braking and adaptive cruise control, were available as standard equipment for the 2022 Freightliner Cascadia, but the carrier opted not to purchase these systems.

Last year, a proposed rule put out by the DOT would require new commercial vehicles over 10,000 pounds to have automatic emergency braking systems.

Since 2015, Daimler Trucks North America has provided the Detroit Assurance Safety Suite as an optional feature on all new Freightliner Cascadia’s and, since 2018, has marketed it as a standard feature, noted the report. The Detroit Assurance Safety Suite included forward collision warning, automatic emergency braking, and adaptive cruise control, among other features.

Triton ordered the truck without collision avoidance technology, resulting in a price discount. Triton told the NTSB that the owner and several of the drivers had field-tested an earlier version of the equipment, and they did not like its performance.

The NTSB found that the collision may have been avoided or its severity lessened had these systems been installed on the truck-tractor, said the board in its report.

The report went on to say that because commercial vehicle customers can elect not to purchase collision avoidance systems, even those that are considered standard equipment, federal requirements are necessary to increase widespread deployment of this technology.

ATRI Seeks Insights on Changing Truck Driver Demographics

Tue, 24 Sep 2024 20:04:51 GMT

Washington, D.C. – The American Transportation Research Institute (ATRI) is conducting research to understand the make-up of the U.S. truck driver population and how it is changing over time. ATRI will assess over 20 years of survey data from truck drivers, and this latest truck driver survey will provide the newest information on the composition of the truck driver population today – allowing the research to compare changing trends.

This brief survey will seek insights on professional and personal aspects of truck drivers today, enabling ATRI to understand the shifts in the truck driver population over the last few decades. All collected data will be kept completely confidential.

This survey is being conducted in concert with ATRI research that is assessing how underrepresented groups might be recruited into the trucking industry, including women, foster care participants and formerly incarcerated individuals.

“As a driver with 33 years on the road, I have seen our driver workforce change over time. Understanding what the truck driver population looks like today is crucial to ensuring that our needs are properly addressed – whether through support, training, or policies that are specifically tailored to truck drivers. This survey will provide valuable insights into the driver community and highlight areas where we can continue to grow,” said Richard Frazer, an America’s Road Team Captain and professional driver with Walmart Transportation.

Truck drivers are encouraged to participate in the survey by clicking here .

ATRI is the trucking industry’s 501c3 not-for-profit research organization. It is engaged in critical research relating to freight transportation’s essential role in maintaining a safe, secure and efficient transportation system.

Originally Posted https://truckingresearch.org/2024/09/atri-seeks-insights-on-changing-truck-driver-demographics/

DEMOCRATIC PARTY PLATFORM SUPPORTS USE OF ABC TEST FOR IC STATUS.

Wed, 18 Sep 2024 16:56:25 GMT

‎The Democratic Party Platform approved on August 18, 2024 briefly addressed the ‎issue of independent contractor misclassification, stating on page 15 of its 91-page document as ‎follows: “Democrats believe employees who are being misclassified, including gig and platform ‎workers, deserve wage and workplace protections including minimum wage and overtime pay, ‎and we support using the ABC test to determine employee status.”

Notably, that passage does ‎not refer to the type of ABC test the Democratic Party supports: the standard one that is used in ‎about 20 states, mostly in unemployment and workers’ compensation statutes, or the so-called ‎AB5 version in California that is far stricter than almost all other states’ ABC test for IC ‎status.

However, on page 14 of the Platform, it states , “Democrats will ‎prioritize passing the PRO Act and restoring workers’ rights, including the right to launch ‎secondary boycotts.”

The PRO Act includes a version of the ABC test that is akin to ‎the AB5 test in California and Massachusetts, without any of the about 75 exemptions that ‎California included in its version of the ABC test.

Thus, if Democrats sweep both houses of ‎Congress and the White House, there is a chance that the PRO Act’s strict ABC test for IC ‎status could become law .

In that event, litigation asserting that workers have been misclassified is ‎likely to increase dramatically, prompting even more companies to use an IC compliance ‎enhancement process such as IC Diagnostics (TM) in an effort to increase their chances of ‎prevailing in an IC misclassification legal challenge.‎

NorthAmerican Transportation Association is here to protect the transportation industry, no matter how small and/or how large you are.

Join NOW to protect your industry, go to: https://www.ntassoc.com/join-the-nta

Ensuring Compliance and Safety in the Moving Industry: A Focus on DOT Regulations

Tue, 03 Sep 2024 18:54:10 GMT

Written by Contributing writer: Nancy Zafrani, Gen Mgr of Oz Moving & Storage

Moving companies in the United States are primarily regulated at the federal level by the Federal Motor Carrier Safety Administration (FMCSA), which is part of the U.S. Department of Transportation (DOT). The FMCSA regulates interstate movers, meaning those that transport goods across state lines. Each state department of transportation or public utility commission also imposes regulations on local and intrastate moving companies.

These regulations are designed to protect the driving public, consumers who hire movers, as well as the moving companies and their employees.

The Importance of DOT Regulations in the Moving Industry

First and foremost, DOT regulations in the moving industry are intended to help keep people safe. Regulations exist to protect the general public and their belongings, and also to protect movers from unfair or illegal employment practices.

Department of Transportation regulations establish safety standards for moving vehicles, equipment, and drivers. These standards help prevent accidents, injuries, and damage to property during the moving process. By enforcing rules such as vehicle maintenance, driver qualifications, and hours of service limits, DOT regulations contribute to safer roadways for both movers and the public.

DOT regulations include rules aimed at protecting consumers during the moving process. Requirements for written estimates, disclosures of rights and responsibilities, and accurate record-keeping help ensure transparency and fairness in transactions between moving companies and customers. By providing consumers with essential information and safeguards, DOT regulations help prevent fraud, disputes, and other problems.

Compliance Measures for Safety in Transportation Operations

In order for a moving company to be compliant, they must have proper licensing. While local (in-state) moving company regulations vary by state, all interstate moving companies must have a registered number with the U.S. Department of Transportation. In addition to the DOT number, companies who conduct interstate commerce or are considered “for hire” for the transportation of people or goods must also obtain a motor carrier (MC) number.

Common safety-related compliance issues include maintaining accurate records, managing driver hours of service, ensuring vehicle safety and maintenance, and providing proper insurance coverage.

Key DOT Regulations Impacting the Moving Industry

The key regulations pertaining to the moving industry are concerned with consumer protections and the prevention of fraud. However, it’s important to note that movers are also subject to the FMCSA safety regulations that apply to commercial drivers of all kinds.

Licensing, registration, and insurance

All moving companies are required to apply for a moving company license, register with USDOT, and obtain any other applicable registration (like a motor carrier number). Moving companies must carry commercial auto insurance, workers’ compensation insurance, and liability coverage to protect the value of the cargo they transport for their customers. Individual states or localities like New York City may require a Certificate of Insurance, which should be provided by the movers.

Safety

There are a number of safety-related regulations that moving companies must comply with in order to protect the public as well as their own drivers.

For example, hours of service regulations dictate the maximum amount of time drivers can spend behind the wheel and require rest breaks to prevent driver fatigue. Moving companies must ensure that their drivers are properly qualified and licensed to operate commercial vehicles. This includes providing proper training and conducting background checks for their drivers.

There are also specific DOT Hazardous Materials Regulations (HMR) that govern the transportation of hazardous materials during a move. These regulations outline requirements for packaging, labeling, handling, and transporting hazardous materials safely.

In order to comply with safety regulations and pass DOT inspections, moving companies must have a driver screening program in place to ensure that they employ safe, responsible drivers. They must also keep careful records of driver logs, vehicle inspection and maintenance logs, and other documentation. These records help demonstrate compliance with safety regulations and provide valuable data for regulatory oversight and enforcement.

Consumer protections

Unfortunately, the moving industry is prone to scammers. There are numerous complaints of movers charging dubious fees, engaging in deceptive business practices, or holding personal possessions hostage to extort exorbitant charges. In an effort to crack down on these types of predatory and dishonest practices, the DOT enforces a number of regulations designed to protect consumers who hire movers. For example, moving companies must publish tariffs that outline their rates and charges for moving services. these tariffs outline the fees associated with various aspects of the moving process, such as packing, loading, transportation, unloading, and storage. They serve as the official price list for the company's services and must be made available to customers upon request and filed with the FMCSA. Similarly, movers must provide customers with a “bill of lading,” which is essentially a contract detailing the services to be performed, terms and conditions of payment, and other details. In the event of a dispute, this document will serve as the main reference point.

Enforcement and Consequences: Navigating DOT Compliance in Moving Services

How are DOT regulations enforced, and what penalties might moving companies face if they violate those regulations?

The FMCSA is responsible for enforcing DOT regulations regarding the moving industry by conducting inspections, investigations, and audits to ensure compliance. It also provides guidance, resources, and education to help moving companies understand and adhere to those regulations.

Noncompliance with DOT and FMCSA regulations can be costly. As of 2024, the U.S. DOT increased the maximum fine for regulatory violations by 3.2 percent. The maximum civil penalty typically increases every year, and can cost motor carriers and drivers tens of thousands of dollars per violation. In some cases, the FMCSA may issue warnings or notices of non-compliance for less severe violations, providing the company with an opportunity to correct the issue before further enforcement action is taken. Serious violations can result in the company being placed temporarily out of service, or the revocation of a moving company commercial license.

Moving companies should stay updated on any recent changes or updates to DOT regulations through the FMCSA website, industry publications, or legal advisories to ensure ongoing compliance.

What to Expect During Your First Safety Audit

Tue, 03 Sep 2024 18:54:07 GMT

So, you want to start a transportation company. The next thing to think about is who are you going to use as drivers, W2 Employees or 1099 Independent Contractors.

The first thing that you need is a DOT number which is just a free registration number which has no authority to transport freight. To transport freight across State lines, you need to apply for your MC number. With this you can now hire employees or utilize the services of independent contractors.

But wait, you now have to check your applicable state for guidelines to determine whether you pay them as W-2 employees or 1099 independent contractors.

Every state has three departments you will have to check; the work comp, the wage & hour, and the unemployment departments. Even though they are all within the same state they may not have the same guidelines. NTA members have all of this knowledge at their fingertips.

Now, I first reported on this back on June 5, 2024. See NTA News on our website ( www.ntassoc.com )

The following demonstrates what the current administration in Washington, D.C. is doing to small business especially those companies with 1 to 20 employees and/or independent contractors.

The United States Treasury’s Financial Crimes Network (FinCen) now administers a reporting system aimed at all of small business throughout the United States.

Since the first of the year, and any newly established LLC, corporation, LLP and some other business types, including any owner-operator or small fleet who’s filed with their Secretary of State to establish the business , have 90 days to report Beneficial Ownership Information (BOI) to FinCen and the Treasury.

The requirement is also in play for businesses that existed prior to the first of the year. Those owner-operators and many small fleets have much more time to report the deadline to complete the filing with FinCen is the end of 2024.

It now appears that the FMCSA has included sone of this BOI in your First Safety Audit. The following was in a Safety Audit issued to a motor carrier member of NTA in an official letter dated July 1, 2024.

Pay special attention to a new category called Business Records below.

DRIVERS

All identifying information for any and all drivers employed and/or used by you and/or operating a commercial motor vehicle under or displaying your USDOT number, during the previous 12- month period. For each of the drivers , the information shall include:
Full name
Date of birth
Social Security Number
Commercial driver’s license (CDL) & State of issuance
Date(s) of hire
Date(s) of termination
Driver address(es), telephone number(s), cellular telephone number(s) and any other contact information
All driver qualification files for any and all drivers employed and/or used by you and/or operating a commercial motor vehicle under or displaying your USDOT at any time during the previous 12-month period. The driver qualification files for each driver shall include all information required by 49 C.F.R. Part 391, and shall include but not limited to:
Medical examination/certificate and/or examination reports.
Commercial Driver’s License (CDL) and any other licensing information, including a copy of each driver’s Commercial Driver’s License.
Information requested from previous employers.
Information received from previous employers.
Driver history and records requested prior to hire.
Annual certification and list of violations for the driver and annual review of driving record.
Date(s) of hire and first date driver was used in a safety sensitive function.
Any information indicating disqualification.
Information documenting any qualification requirement exemption claimed.

CONTROLLED SUBSTANCES and ALCOHOL TESTING

All alcohol and controlled substances testing files, records, and information by 49 C.F.R. Part 40 and/or 49 C.F.R. Part 382 for the previous 12-month period. The documentation shall include but not be limited to:
Training program.
Control and custody forms for all alcohol and controlled substances testing samples, including pre-employment testing, random testing, reasonable suspicion testing, post- accident testing, and return to duty testing.
Test results for all samples collected.
Medica Review Officer (MRO) reports.
Documentation of driver refusal to be tested.
Documentation of probable cause determination for driver testing,
Identification and contact information (including address and telephone), and copies of contracts for all laboratories sies, and consortiums.
Driver selection and/or pool lists used for random testing.
Signed release forms by each driver for release of testing information.
Information documenting any testing exemptions claimed.
Information documenting the random alcohol and controlled substances testing program including, but not limited to:
The average number of drivers positions for current and previous calenda years, and documentation showing how this number was calculated.
The number of random controlled substance tests conducted for the current and previous calendar year.
The number of random alcohol tests conducted for current and previous year.
The number of pre-employment tests conducted during the previous 12-month period.
Laboratory monthly statistical reports and annual summary.
All records or other documents that refer or relate to company policies and procedures regarding drug and alcohol testing, including correspondence memoranda, and calculations.

HOURS of SERVICE

All driver’s records of duty status (RODS), and all supporting documents, for any and all drivers employed and/or used by you and/or operating a commercial motor vehicle under or displaying your USDOT during the previous 6-month period. Supporting documents include, but are not limited to, trip reports and packets, bills of lading and/or shipping manifest documents, scale receipts, trip permits, roadside inspection reports, fuel receipts, fuel billing reports, expense records, telephone records, motel receipts, trip envelopes, pay records, delivery receipts, toll receipts, port of entry receipts, dispatch sheets, load and offload times and dates, and any other supporting documents.
All dispatch and routing records for any and all drivers employed by and/or used by you, and/or operating a commercial motor vehicle under or operating your USDOT number, and all transportation by, for, or on behalf of you and/or under your USDOT number occurring the previous 6-month period.
All payment records, including any and all records or other documents that refer or relate to payments made to owners, managers, consultants, employees, mechanics, drivers or others.
All invoices, bills, and memorandums of agreement wit agents, customer, and/or brokers or other related documents that ae used by you to claim reimbursement for transportation related services rendered for the previous 12-month period.

ACCIDENTS

Accident Register and al files pertaining to any and all commercial motor vehicles (as defined in 49 C.F.R. §390.5) during the previous 12-month period.

VEHICLES

Identification for any and all commercial motor vehicle(s) owned and/or leased and/or operated by you r on your behalf and/or under your USDOT number during the previous 12-month period, including those operated for you by subcontractors and/or independent contractors and/or leased drivers (including owner/operators). The information including an and all records or other documents that refer, relate to or contain identification information, and shall include the make, model, year, serial number, VIN number, gross vehicle rating (GVWR), license plate number and licensing state, company identifier, and tire size.
All vehicle registration documentation for any and all commercial motor vehicle(s) owned and/or leased and/or operated y you or on your behalf and/or under or displaying your USDOT number during the previous 12-month period.
All documents related to acquisition and/or use of any and all commercial motor vehicle(s) owned and/or leased and/or operated by you or on your behalf and /or under or displaying your USDOT number during the previous 12-month period, including all documents related to or evidencing purchase, transfer and/or leasing of commercial motor vehicle(s). For all leased vehicles, a copy of the lease agreement shall be included.
All vehicle maintenance records and the periodic (annual) inspection report for any and all commercial motor vehicles owned and/or leased and/or operated by you and/or on your behalf ad/or under or displaying your USDOT number during the previous 12-month period, including those operated by or for you by subcontractors and/or independent contractors and/or leased drivers (including owner/operators). The documentation shall include all information specified in49 CFR Part 396.
Identification information for all mechanics and/or maintenance facilities, including contact information (address and telephone) for each you use or have used to inspect, repair and/or maintain any all commercia motor vehicles owned and/or leased and/or operated by you and/or on your behalf and/or under or displaying your USDOT number during the previous 12-month period, including those operated by or for you by subcontractors and/or independent contractors and/or leased drivers (including owner/operators).
All records referencing or related to qualifications, certification, and/or training of any and all mechanics and inspectors who have inspected, maintained and/or repaired any commercia motor vehicles owned and/or leased and/or operated y you and/or on your behalf under or displaying your USDOT number during the previous 12-month period, including those operated by or for you by subcontractors and/or independent contractors and/or leased drivers including owner/operators).
All driver vehicle inspections reports (DVIRs) by any and all drivers employed and/or used by you during the previous 3-month period.
All agreements, lease documents, records, or other documents between you and any other motor carrier in effect during and/or related to the previous 12-month period.
Total Fleet Mileage for all commercial motor vehicles owned, leased, and/or operated by you or on your behalf and/or under or displaying your USDOT number for the previous 12-month period.

BUSINESS RECORDS

Financial statements, tax statements or any other verifiable documentation which evidences and demonstrates your gross revenue for the previous 12-month period.
Business records, including corporate charters, articles of incorporation, bylaws, article of organization, operating agreements, partner agreements, or other documents identifying your company’s structure, officers, directors, and/or manager and their responsibilities.
Identification information for all company/corporate owners, partners, directors, officers, members, shareholders, and managers for, and individuals having a financial interest in your company, including current contact information (address and telephone) for each.
Identification information for all individuals responsible for compliance with Federal motor carrier requirements, including safety director(s), manager9s), and dispatcher(s).
Any and all mailing addresses and physical location(s) used by you, currently and during the previous 12-months. Include copies of any purchase, lease, rental, and/or other agreements for all locations you use.

Registration and Insurance Information

All safety and operating authority registration issued by FMCSAS, including any and all correspondence related to all USDOT numbers and Motor Carrier identification numbers (MC numbers) for all entitles in which you, and and/or any company/corporate owner, partner, director, officer, member, shareholder, or manager, have or have had any financial interest, or management and/or operational responsibility.
All documentation evidencing compliance with minimum liability insurance requirements including Form(s) MSS 90 and/or Form(s) MCS 82 and proof of Bodily Injury and Property Damage (BIPD) for the previous 12-month period including copies of all applications made for insurance.
Identification and contact information (address and telephone) for all insurance companies used by you related to motor carrier operations for the previous 12-month period.
Documentation and/or list showing designation of process agent for each state in which you operate and/or have operated during the previous 12-month period.

In conclusion, do your due diligence as far as starting capital is required and have a business plan. Remember, you should have all this information on your computer as the FMCSA only has to give you a 72-hour notice and are requesting documents be sent electronically as more and more offsite safety audits are the norm.

The above requirements should be in place before the first wheel turns because if not you will be in violation of OP-1, Sec. 4, Safety Certification, item 30-31 which states that you answered YES, that you are familiar with all the Federal Motor Carrier Safety Regulations to get your MC number and that you will operate your commercial motor vehicles in accordance.

Further, under 49 U.S.C. §521 & §§525, failure to provide access to equipment, lands, building, property, or records demanded may result in civil penalties, criminal penalties, an operation out-of- service order, and suspension or revocation of registration issued under 49 U.S.C. Chapter 139.

Welcome to the Big League’s.

New Phishing Scam Targets Motor Carriers

Tue, 03 Sep 2024 18:54:04 GMT

If you get an email that says it’s from The Federal Motor Carrier Safety Administration requesting that carriers’ complete forms attached to the email, the agency warns that it may be a phishing scam.

Phishing is the fraudulent practice of sending emails or other messages purporting to be from reputable companies in order to induce individuals to reveal personal information, such as passwords and credit card numbers.

In the scam emails, FMCSA says, those forms ask for a social security number and USDOT PIN. FMCSA does not require such information on official FMCSA forms. Carriers should NOT fill out forms attached to the fake email, and always refer to the official FMCSA forms for the latest and official documents.

In some cases, the phishing attempt also asks for a certificate of insurance and driver’s license to help protect the recipient against fraud. There is also a threat that if the recipient does not respond within a day, the individual will be fined, which is also not an FMCSA practice as part of the registration process.

How to Spot These Fake Emails

The fake email originates from one of the following email addresses:

safety@fmcsa.gov
filing@fmcsa.gov
dotfilings@fmcsa.gov
audit@fmcsa.gov

None of these are legitimate email addresses and are NOT used or owned by FMCSA.

If the recipient replies to the email, their message goes to @fmcsa-safety-fmcsa.com, which is also NOT a domain owned or used by FMCSA.

Not only is some of this information Personal Identifiable information, but this information would also allow the unauthorized party to gain access to the recipient’s FMCSA account.

The fake email containing the phishing link appears very convincing that the correspondence is from FMCSA, according to the agency. Screenshots of the fake email can be found on FMCSA’s website.

Communications from FMCSA relating to information requests of this type would either request individuals to log into their portal account at FMCSA Login (dot.gov), or the email would come directly from an FMCSA dedicated mailbox. While these emails typically end in “.gov”, FMCSA encourages stakeholders and customers to verify any email or communication they feel to be suspicious with the appropriate agency.

Earlier this year, the FMCSA warned motor carriers of a different email phishing scam involving a fake DOT safety audit .

Here’s What Individuals Can Do to Avoid Phishing

Do not click any suspicious links. Hover over them to see the real email address or URL of that link. Click only on links you deem trustworthy
Contact your applicable State Trucking Association or contact the NorthAmerican Transportation Association at 800-805-0040 ( www.ntassoc.com ).
Visit the Cybersecurity & Infrastructure Security Agency for more guidance on online deceiving tactics.
The Federal Trade Commission recommends following certain procedures for email verification.
File a complaint with the Federal Bureau of Investigations (FBI) by using their Internet Crime Compliant Center ( IC3) site

Reach out to the FMCSA Contact Center or call (1-800-832-5660) if you are the target of these practices.

This article was originally published by Heavy Duty Trucking. Find the original article here .

FMCSA Wants Authority to Enforce Freight Broker Violations Amid Rising Fraud & NTA’s Solution to This Problem

Tue, 03 Sep 2024 18:54:00 GMT

The Federal Motor Carrier Safety Administration has asked Congress to give the agency the statutory authority to assess civil penalties for unauthorized brokerage violations — both the double-brokering and fraud problems as well as a significant increase it has seen in household goods consumer complaints.

The report to Congress was in response to the Joint Explanatory Statement accompanying the 2023 Consolidated Appropriations Act, which required FMCSA to report on efforts to enforce regulations regarding unlawful broker activities.

The agency noted that a 2019 DOT Administrative Law Judge decision, Darlene Riojas et al. , put a hamper on its enforcement efforts.

That decision found that the FMCSA does not have the statutory authority to assess civil penalties for violations of U.S. code regarding regulation of motor carriers, brokers, and freight forwarders. Instead, the FMCSA now must go through the U.S. District Court to pursue civil penalties, including the broker and household goods consumer protection regulations.

“Unless a regulated entity that violates FMCSA’s commercial regulations voluntarily resolves its noncompliance, FMCSA must refer cases to DOJ for enforcement of those regulations," the agency said in its report.

“The need to refer cases to DOJ for the assessment of civil penalties for violations of commercial regulations creates a significant barrier to enforcement, including for unauthorized brokerage violations."

FMCSA saw household goods consumer complaints more than double between 2019 and 2021 (receding in 2022 and 2023 but still well above 2019 levels), coinciding with the start of the Covid-19 pandemic and the impact of the Riojas decision.

FMCSA’s inability to assess civil penalties administratively not only for unauthorized brokerage, but also for these HHG violations, has significantly undermined its ability to combat HHG moving and brokering fraud, according to the report.

How the Riojas Decision Changed the Way FMCSA Enforces Broker Regulations

Prior to the Riojas decision, FMCSA assessed civil penalties for unauthorized brokerage violations via Notices of Claim (NOCs). Between 2014 and 2019, FMCSA issued approximately 20 NOCs for unlawful brokerage violations.

Since the Riojas decision in 2019, however, FMCSA has two alternative enforcement mechanisms available for unauthorized brokerage enforcement: Notices of Violation and Letters of Probable Violation.

Notices of Violation: FMCSA may issue an Notice of Violation (NOV) to a non-registered entity performing brokerage operations without broker operating authority registration. The NOV will state the violations and the corrective actions the broker must take to comply.

The broker has 30 days to acknowledge receipt of the NOV and submit proof of the corrections. No further action is needed if the broker takes sufficient corrective action within 30 days of the NOV issue date. FMCSA does not propose civil penalties as part of an NOV.

Letter of Probable Violation: An LOPV identifies areas of non-compliance and proposes a civil penalty. The agency said the LOPV can encourage brokers and carriers to enter into settlement arrangements and take corrective actions. Once the LOPV is issued, the broker has 30 days to respond.

If the broker fails to respond or its response is insufficient, FMCSA may refer the case to DOJ for judicial enforcement of FMCSA’s commercial regulations, including the assessment of civil penalties, in federal court.

Recent Efforts by FMCSA to Address Broker Non-Compliance

FMCSA did outline actions it has taken recently to address broker non-compliance.

The agency completed a rulemaking on broker financial responsibility in 2023, finalizing regulations regarding:

The composition of broker trust funds.
Immediate suspension of broker/freight forwarder operating authority registration.
Surety or trust responsibilities in cases of broker/freight forwarder financial failure or insolvency .
FMCSA enforcement authority.
Entities eligible to provide trust funds for broker financial responsibility.

A related issue has been addressing household goods scams. FMCSA’s 2023 Operation Protect Your Move was in response to a significant uptick in complaints against movers and brokers for extorting exorbitant additional charges from consumers.

In addition, in 2023, FMCSA conducted HHG broker investigations in Nevada, New Jersey, New York, and Florida, reviewing 35 HHG and property brokers in total. The agency found 166 violations, closed 544 complaints, and issued 17 Letters of Probable Violation. The agency also conducted four property broker investigations in New York. FMCSA expects to continue its expanded broker enforcement efforts in 2024.

Is Unlawful Brokerage a Safety Issue?

FMCSA said it’s still assessing the relationship between motor carrier safety and unlawful brokerage.

While the agency has received multiple expressions of concern from stakeholders regarding fraud related to “double brokering,” it said it doesn’t have the data to quantify or confirm a safety impact.

“The agency does acknowledge an association between motor carriers with poorer safety performance and carriers that lack a verifiable ‘brick and mortar’ principal place of business,” it said in its report.

FMCSA has received comments and other information asserting that use of a virtual principal place of business is more common among entities that engage in unauthorized brokerage.

“As brokers do not typically engage in the actual transportation of goods, however, the direct safety impact of failing to register with FMCSA as a broker is unclear.”

FMCSA said it is considering additional research into the relationship between motor carrier safety and unlawful brokerage.

THE SOLUTION

The solution to this problem, if you haul general freight is to develop your own customer base.

The NorthAmerican Transportation Association offers to our members an up-to-date Shipper Database. This database can be found in the NTA Super Store within the Members Only Portal.

Members can order by individual States that can vary in price from as low as $50.00 for Kentucky with 3,963 companies to as high as $326 for California with 22,284 companies.

The information is cross-reference in five (5) sections: industry classification, alphabetical by company, geographical by city, alphabetical by parent company, and county breakdown.

You have your choice of ordering by individual states (for those intrastate carriers) or by Shipper Class as shown below.

Remember, our knowledge is YOUR POWER.

CALL 800-805-0040

Or

Go to: https://www.ntassoc.com/join-the-nta

Information from this article is sourced from Heavy Duty Trucking. Read the original article here .

The National Highway Traffic Safety Who they Are and What they Have Done

Tue, 03 Sep 2024 18:53:56 GMT

Audits by the U.S. Department of Transportation's Office of the Inspector General in 2011, 2014, 2015, 2016, 2018, and 2021 have concluded that NHTSA is ineffectual; the 2021 audit found NHTSA failing to issue or update Federal Motor Vehicle Safety Standards effectively or to act within timeframes on petitions and investigations; having no process in place for critical agency responsibilities like evaluating petitions, and having failed to implement consensus recommendations derived from the Inspector General's audit a decade before, in 2011. [11] [12]

The 2018 audit found NHTSA incapable of conducting adequate, timely safety recalls. [13] The 2015 audit found NHTSA's collection and analysis of safety-related data to be inadequate, [14] and the agency to be lackadaisical and careless in examining safety defects. [15]

The Current State of the U.S. Economy!

Tue, 03 Sep 2024 18:53:52 GMT

As of mid-2024, the U.S. economy is showing signs of both resilience and challenges. The economic growth rate is projected to slow down compared to 2023, with real GDP expected to grow at a rate of 0.7% for the year. This deceleration is partly due to the effects of previous monetary policies and the fading of post-pandemic economic boosts.

Inflation, which has been a significant concern, shows signs of moderating. The Federal Reserve's interest rate hikes have likely peaked, with the Federal Funds rate expected to hold steady at 5.25%-5.5% until mid-2024, followed by gradual rate cuts towards the end of the year.

Consumer spending, a major component of GDP, is experiencing a mixed outlook. While consumer confidence has improved somewhat, concerns about inflation and debt levels persist. Households have been using up savings accumulated during the pandemic and are taking on more debt, which has sustained spending but may not be sustainable long-term. There is also a notable shift in spending patterns, with more emphasis on essential items and services like travel and home improvements.

Labor markets remain strong, with low unemployment rates continuing to support household incomes and spending. However, there are emerging signs of stress, such as the resumption of student loan payments and increasing credit card delinquencies among certain demographics.

Geopolitical factors, such as ongoing conflicts in Europe and the Middle East, are adding uncertainty to the economic outlook. These tensions are affecting global trade and commodity prices, particularly oil, which in turn impacts inflation and economic stability.

Overall, while the U.S. economy is navigating through a period of slower growth and inflationary pressures, it remains supported by strong labor markets and resilient consumer spending. The outlook suggests cautious optimism, with potential headwinds from geopolitical and fiscal challenges.

More 75% of all personal income tax from American Taxpayers will go directly towards paying off the interest on our massive and ever-burgeoning national debt.

We are headed for a national financial catastrophe of epic proportions.

You ask how did we get to this point. First it was Frankin D Rosevelt who in April of 1033 banned all gold with executive Order 6102. The in August of 1971, Richard Nixon too the US off the gold standard and suspended the dollar’s convertibility into gold.

These two men, together broke the American dollar and put the American people into debt slavery, Even Elon Musk was quoted as saying this that America is headed for bankruptcy with the US Debt about to eclipse $35 trillion.

Remember, if you want to keep the current state of things the same, then keep the current administration in power otherwise change administrations.

Periodic Vehicle Inspections

Tue, 03 Sep 2024 18:53:44 GMT

The periodic (or annual) vehicle inspection continues to confuse many who operate commercial motor vehicles (CMVs) .

In 2023, the third most cited roadside inspection violation was "Operating a commercial motor vehicle (CMV) without proof of a periodic (annual) inspection." That same year, the thirteenth most cited violation during audits by the Federal Motor Carrier Safety Administration (FMCSA) was "Using a CMV not periodically inspected."

With the opportunity to be cited and fined on the line, it is important to understand the basics of the requirement.

Understanding Periodic Vehicle Inspections

The following frequently asked questions summarize several key points on the topic.

1. Which vehicles must be inspected?

If a vehicle meets 390.5's definition of a commercial motor vehicle, it is subject to periodic (usually annual) inspection regulations.

This means a vehicle must be periodically inspected if it is used in interstate commerce and:

Has a vehicle or combination weight rating or actual vehicle or combination weight of 10,001 pounds or more, whichever is greater;
Is designed to transport more than eight passengers (including the driver) for compensation;
It is designed to transport 16 or more people, including the driver, without compensation or
Hauls placardable amounts of hazardous materials.

2. Do trailers need an annual inspection?

Yes. Suppose the trailer is part of a combination commercial vehicle (the combination weighs or has a combined rating of 10,001 pounds or more, etc.). In that case, the trailer must be annually inspected (see the beginning of 396.17(a)).

3. What are the standards for passing the inspection? Does the vehicle need to be in perfect condition?

The vehicle must meet the conditions detailed in Appendix A to Part 396, which look at the safety critical components and systems on the vehicle (brakes, coupling systems, lights, suspension, tires, etc.).

Parts and components not listed in Appendix A are not part of the inspection and do not influence the pass/fail decision. A vehicle cannot be passed if a defective component is discovered in one of the critical areas. It must be repaired before it is passed.

4. Proof of the inspection must be on the vehicle. What is acceptable proof of inspection?

The vehicle can have either a copy of the inspection report or a decal with the information listed in 396.17(c) on it (e.g., the month and year of the inspection, the location of the inspection report, etc.).

5. What if my state requires quarterly or semiannual inspections?

If the state where you are based requires a periodic inspection to be done more frequently than annually, you must follow your state's requirements.

For example,

California: California mandates the Basic Inspection of Terminals (BIT) program, which requires commercial vehicles to undergo inspections every 90 days or 10,000 miles, whichever comes first.
Nebraska: Nebraska requires certain commercial vehicles to be inspected semiannually to maintain compliance with safety regulations.
Texas: Texas has requirements for more frequent inspections, including quarterly inspections for some commercial vehicles, to ensure they meet safety standards.

These states enforce these frequent inspections to maintain high safety standards on the roads and ensure that commercial vehicles are in good operating condition. For detailed information about each state's specific requirements, you may need to consult local Department of Transportation (DOT) resources or state regulatory bodies.

6. If state inspections are mandatory, can the federal inspection be skipped?

In general, yes. If the state has an inspection program that the FMCSA has determined to be equivalent to the inspection required in 396.17, then the state inspection can be done in place of the federal one.

However, the vehicle must carry proof of the inspection, and a copy of the inspection report must be on file in your office or shop.

7. Can I do my own inspections?

Yes, provided you have technicians who meet the qualification requirements in 396.19 (one year of experience, training on doing annual inspections, etc.).

The exception is if the state where you are based has a mandatory program and requires the inspection to be done at a state-licensed facility, and you cannot license your personnel or facility to do the inspections.

Taking Proactive Fleet Measures

Understanding the requirements and taking proactive measures can make complying with the annual inspection requirement much easier.

By effectively scheduling and developing a thorough process, you can ensure that your vehicles meet the necessary safety standards, helping to keep your operations running smoothly and avoiding potential fines or citations.

This article was originally published on Work Truck Online. Find the original article here .

Trucking Operating Costs went up 6.6% in 2023 and a Way to Cut Costs.

Fri, 30 Aug 2024 19:15:37 GMT

The total marginal cost of operating a truck in 2023 rose to a record $2.270 per mile despite fuel costs that fell by 8.8 cents per mile, according to a new report by the American Transportation Research Institute .

“While this marked a new record high cost, it increased by only 0.8% over 2022’s total .” said the report, an in-depth ATRI analysis of 2023 operational costs of trucking. “Marginal costs on a per-hour basis were $91.27, up just 0.5% from $90.78 in 2022.” Fuel costs per mile fell to 0.553 cents last year from 0.641 cents in 2022, ATRI said.

The report was made public June 25. Costs, excluding fuel, went up by 6.6%, even in a year when we had a freight recession — higher than a lot of us were hoping and expecting. But beyond that, no two segments of the industry experienced the same cost trend.

There were some sectors and fleet sizes that had greater increases in some areas, and not in others. So, there were opportunities for somewhat moderated costs. But it was a challenging market still overall.

Despite the cost increases, the ATRI report said that in 2023, inflation rates cooled to 3.4%, GDP growth improved significantly in the second half of the year, and many cost centers in the trucking industry stabilized.

In the freight market, however, contract and spot rates both fell steadily over the year, as did freight shipments, spend and tonnage. All of these developments put a strain on industry costs and operations, the report said.

Also, the report concluded that 2023 expenses rose moderately across most categories, with average costs across line items increasing at less than half the rates experienced during 2021 and 2022.

Truck and trailer payments grew by 8.8% to $0.360 per mile, driver wages grew by 7.6% to $0.779 per mile, and repair and maintenance costs grew by 3.1% to $0.202 per mile.

The exception to the trend was truck insurance premiums, which grew by 12.5% to $0.099 per mile after two years of negligible change.

The soft 2023 freight market posed many challenges for operational efficiency, as tracked in the report. Deadhead mileage, a critical financial drain, rose to an average of 16.3% for all non-tank operations, and driver turnover rose 5 percentage points in the truckload sector, according to the report.

Annualized turnover rates among truckload carriers worsened in every fleet size group in 2023 compared to 2022, noting that while smaller fleets continue to enjoy lower turnover overall, truckload fleets with 26 to 100 trucks saw their average turnover rate jump from 29.2% in 2022 to 51% in 2023. Those pressures combined with low freight rates strained profitability across the industry, the report said.

On the one hand, the report said wages went up. That was predominantly driven by less than truckload due to the market shifts happening in that space and union contracts as well. But we didn’t see wages [increase] as much in some of the other sectors like truckload, where wages have gone up so much in the previous couple of years.”

The report noted that while costs were rising, operating margins were declining.

In the truckload sector, the operating margin was 3% on average, down from 8% in 2022.

In the refrigerated space, it was 2% in 2023, versus 6% in 2022. Going down the line, you had several sectors where operating margins were half of what they were in 2022.

The one exception to that was the less than truckload sector. That’s largely because there was so much of a market upheaval in the LTL space in 2023.

However, the report said some of the numbers for the first two months of 2024 are encouraging.

What the report showed was that in several cost centers, there was moderation in costs. We saw tire costs going down a little bit, we saw repair and maintenance increase by only a small amount the first couple of months, and truck and trailer increases were still going up, but not as much.

So at least our initial indicators for 2024 suggest that costs will not go up by as much. Right now, it looks like costs are still trending up overall in 2024, but not by as much as we saw in 2023.

The current economic environment makes cost management essential to successful operations. ATRI’s Operational Costs report provides the targeted costs and operational benchmarks necessary to identify opportunities for reducing expenses and how to best act on those opportunities in our fleet.

So, what is the solution. Many companies are turning to Emergency Roadside Assistance. So what are the advantages and disadvantages of using Emergency Roadside Assistance .

Safety :
Immediate Help : Provides quick assistance in dangerous situations, such as breakdowns in hazardous locations.
Trained Professionals : Ensures that help comes from professionals who are experienced in handling roadside emergencies safely.
Convenience :
24/7 Availability : Most services are available around the clock, providing peace of mind for truckers who travel at all hours.
Range of Services : Covers a wide range of issues, from mechanical problems to towing, fuel delivery, tire changes, and more.
Minimized Downtime :
Quick Response : Helps get trucks back on the road faster, minimizing delays and potential losses.
Efficient Repairs : Can provide on-the-spot fixes or tow the truck to a nearby repair shop quickly.
Cost Savings :
Membership Benefits : Many services offer memberships that can save money over time compared to paying out-of-pocket for each incident.
Preventive Services : Some plans include preventive services that help avoid major repairs down the road.
Stress Reduction :
Peace of Mind : Knowing that help is just a call away reduces stress for truckers, leading to a more focused and safer driving experience.

Disadvantages

Cost :
Membership Fees : The cost of membership or individual service calls can add up, especially if services are rarely used.
Unexpected Charges : Some services might have hidden fees or limits on coverage that can lead to unexpected costs.
Coverage Limitations :
Geographical Restrictions : Some roadside assistance programs may not cover certain remote or rural areas.
Service Limitations : There may be limitations on the types of services provided or the number of incidents covered annually.
Dependence :
Reliance on Third-Party : Dependence on external services can sometimes delay immediate action, especially if the service provider is busy or far away.
Service Quality Variance : The quality and speed of assistance can vary depending on the provider and location.
Potential Delays :
Response Time : Despite 24/7 availability, response times can be longer during peak hours or in remote areas.
Coordination Issues : Miscommunication or coordination problems between the trucker and the service provider can cause additional delays.
Over-reliance :
Skills Deterioration : Truckers might become too reliant on assistance services and not maintain essential skills for minor repairs and troubleshooting.

Conclusion

Emergency roadside assistance is a valuable service for truckers, offering safety, convenience, and cost savings. However, it's important for truckers to consider the costs, potential coverage limitations, and the possibility of delays. Balancing the use of these services with maintaining personal skills and preparedness can help truckers make the most of what roadside assistance has to offer. NorthAmerican Transportation Association has endorsed Rig Nation as its Roadside Assistance for its membership.

Members of NTA will receive discounted annual fees.

Court Halts FTC Noncompete Ban

Wed, 21 Aug 2024 15:21:32 GMT

Law Alert From Scopelitis, Garvin, Light, Hanson & Feary

Yesterday afternoon, the U.S. District Court for the Northern District of Texas struck down the Federal Trade Commission’s regulation banning noncompete agreements, which was set to go into effect on September 4, 2024. In a move predicted by many observers (and signaled by the court in an earlier, narrower preliminary injunction ruling), Judge Ada Brown ruled that the FTC exceeded its statutory authority in promulgating a substantive rule, like the noncompete ban, with respect to unfair methods of competition. Additionally, the court found the FTC’s rule is “unreasonably overbroad without a reasonable explanation" and because the FTC did not consider a more narrowly-crafted rule, Judge Brown ruled that the ban on non-compete agreements was “arbitrary and capricious.” The court’s ruling is permanent and extends nationwide. The FTC has indicated that it is considering an appeal of this decision to the Fifth Circuit Court of Appeals. The FTC also indicated it may attack noncompetes through case-by-case enforcement actions.

As a result of this ruling, employers no longer need to move toward compliance with the ban’s September 4, 2024, implementation date – and existing noncompete agreements will remain in effect. However, these agreements remain subject to a wide range of state and local laws limiting or forbidding the use of noncompete restrictions in the employment context.

We encourage clients to reach out for further guidance. For more information, please contact D avid Robi nson , Jack Finklea , Prasad Sharma , Don Vogel , Sari Pettinger , or Alaina Hawley .

Trucking Company Owner Convicted of Making False Statements About Safety Rating & Violations.

Wed, 31 Jul 2024 15:57:06 GMT

ROCHESTER, N.Y. — The operator of a trucking company who was accused of lying about his business’ safety rating has been convicted of making false statements to the Federal Motor Commission Safety Administration of the U.S. Department of Transportation.

Convicted by a federal jury, 42-year-old Tony Kirik — aka Anatoliy Kirik — could face up to five years in prison and a $250,000 fine.

Kirik, who operated a multiple million-dollar business called Dallas Logistics, submitted false statements about its safety rating when applying to the FMCSA for authority to operate as an interstate carrier, according to the U.S. Attorney’s Office. He also provided false statements and information regarding the company’s safety violations when undergoing compliance reviews and safety audits by the FMSCA, the U.S. Attorney’s Office reported.

Assistant U.S. Attorneys Richard Resnick and Melissa Marangola, who handled the prosecution, said Kirik also started new companies using various family members’ names and an employee’s name to make it look like those companies were independent and not affiliated with the business that incurred the negative safety ratings.

Kirik is to be sentenced Oct. 28 before U.S. District Judge Charles Siragusa.

The Inspection Selection System (ISS) Score Explained & Where You Can Find Yours

Wed, 31 Jul 2024 15:56:02 GMT

When reading or hearing about weigh station bypass programs, you may have learned that a carrier’s “ISS score” plays a role in determining whether a truck will receive a bypass command or not. Many think a carrier’s ISS score is the same as a carrier’s CSA scores , and although there is a relationship between them, they are not the same thing.

“ISS score” stands for Inspection Selection System score, and was developed by the Federal Motor Carrier Safety Administration (FMCSA) to help roadside commercial vehicle enforcement officers make quick decisions on whether or not a truck should be inspected. Rather than having an officer look up numerous CSA measurements for a given carrier, to aid in truck inspection screening, the ISS score method uses a formula to amalgamate the various safety measures into a single score between 0 and 100.

The FMCSA provides recommendations on whether an officer should occasionally inspect, always inspect, or rarely inspect a vehicle, depending on where the carrier’s ISS score lies in the 0 to 100 range. Like golf, a lower score is better. So the ISS is above all a decision-aid for commercial vehicle roadside vehicle safety inspections.

But with the advent of both transponder-based and GPS/internet-based weigh station bypass services. Scores have also become a means by which state law enforcement agencies can automatically screen incoming trucks in order to provide them with bypass commands or pull-in instructions. When a truck that is enrolled in a bypass service approaches a participating inspection site, the bypass service typically looks at the carrier’s ISS score, along with registration status, IFTA status, weight measurements from any embedded weigh-in-motion (WIM) scales, and other measures, to determine the rate at which a given truck will be given a green light bypass command.

Just as officers use a carrier’s ISS score at the station to determine the likelihood of performing an inspection to determine the rate at which a truck needs to pull in at all. Enrolled trucks with an outstanding carrier ISS score may be told to pull in only 2% of the time, while those with a poorer carrier ISS score may need to pull in 25%, 40% or more of the time.

The ISS score is calculated from a carrier’s Behavior Analysis and Safety Improvement Categories (BASICs) percentile values, as recorded in the FMCSA’s CSA Safety Measurement System (SMS). This alphabet soup of scoring systems is essentially the way the FMSCA tracks the safety records of carriers in the areas of unsafe driving, crash indicators (history of crash involvement), driver fitness, hazardous materials (HM) compliance, vehicle maintenance, hours-of-service compliance and controlled substances and alcohol. The ISS method is simply a way to gather up all of the BASIC measurements into a single, at a glance score.

In cases where a newer carrier may not have the history from which to accumulate a BASIC score, the ISS score is determined through the use of an ‘Insufficient Data Algorithm’, which is used until there is enough data to bring the carrier into the BASIC safety measurement system. This link gives a very in- depth breakdown of how these scores are calculated simply go to:

https://ai.fmcsa.dot.gov/sms/helpfiles/iss_algorithm.pdf

How to Find Your ISS Score

The FMSCA has set up a portal website where carriers can look up their own ISS score. The website can be accessed here: https://portal.fmcsa.dot.gov/login . If this site has not yet been accessed by a carrier a new account will need to be set up here: https://portal.fmcsa.dot.gov/AccountRequest/AccountRequestForm1.jsp

Once a carrier is able to log into the FMCSA portal, the Inspection Selection System (ISS) Info view displays the company’s ISS score, the resulting ISS Recommendation and the Basis for Recommendation – which is essentially the criteria an officer would follow when determining whether or not to inspect a truck that has already pulled in.

However, this ISS Recommendation information is not the same as the criteria each state follows for granting bypasses. In other words, an enrolled truck that has a poor ISS score may or may not be instructed to pull in, based on the state’s screening rules.

A truck with a poor ISS score that is given a bypass instruction will of course not be inspected, since it is being told to stay on the mainline and bypass the station. And trucks that are instructed to pull in are not necessarily being singled out for inspection. Once a truck pulls in, it is up to the officer’s discretion, using the ISS score system and many other criteria, as to whether or not an inspection should take place.

It is also important to note that the FMCSA started randomly manipulating ISS scores for carriers – particularly smaller ones – that don’t have enough inspection data registered in the system. By temporarily increasing a carrier’s ISS score, the FMCSA ensures that such carriers are more likely to be pulled in for an inspection , thus satisfying some ongoing data sufficiency problems within the FMCSA model.

This means that a carrier which is lacking in inspection data may therefore be subject to a temporarily high ISS score, so that a sample of that carrier’s trucks can be pulled in, receive clean inspections, and then have that carrier reinstated to a confirmed, lower ISS score.

In this way, a bypass service and the FMCSA’s manipulation of ISS scores make for a self-regulating system. Carriers who are worried that bypassing scales might negatively impact their ISS scores no longer need to do so, and they no longer need to choose whether to use a bypass service or not.

Those who participate in a bypass program will be able to enjoy bypasses that reflect their safety scores, and if the FMCSA data model deems it necessary, their ISS scores will be temporarily raised, some trucks will be inspected, and then their good safety scores will be confirmed and reinstated.

How is ISS used for the Bypass Program?

The states use a carrier’s ISS score, along with other state specified criteria, to help determine the rate at which an enrolled truck will be instructed to pull in. They pull in criteria for a range of ISS scores is set and managed by each individual state agency, and so varies from state to state and even from site to site.

This allows agencies to balance their manpower availability for pull ins and inspections with the need to achieve the highest safety value. Some agencies may grant bypasses up to 98% of the time for carriers with stellar ISS scores, while reducing the bypass rate to 50% or less for those with poorer scores – or even deciding to pull everyone in for a period of time due an inspection blitz.

California Requiring Zero-Emission Forklifts

Wed, 31 Jul 2024 15:53:53 GMT

Once again California is raising its ugly head just like a snake in the grass. Making fleets operating in California to phase out the use of large spark-ignited forklifts and use zero-emissions forklifts , according to a new regulation from the California Air Resources Board.

Fleets operating in California must phase out the use of large spark-ignited forklifts and use zero-emissions forklifts , according to a new regulation from the California Air Resources Board.

Under the rule, approved June 27, manufacturers cannot produce or sell Class IV and Class V LSI forklifts — categories that largely operate on propane, gasoline and natural gas — for use in California beginning in 2026.

The rule also phases out the use of spark-ignited forklifts by large fleets, defined as 26 units or more, starting in 2028. The phase-out schedule is by model year and designed so that no forklift is required to be phased out before it is 10 years old.

Smaller fleets will phase out use of spark-ignited forklifts starting in 2029.

CARB acknowledged that there are higher upfront cost for zero-emission forklifts but said fuel savings over time mean savings for most fleets.

Targeted forklifts affected by the regulation include:

All Class IV forklifts
Class V forklifts with rated capacity of 12,000 pounds or less

This rule addresses more than 89,000 spark-ignited forklifts currently operating in the state.

The regulation includes compliance extensions for delays with infrastructure construction, infrastructure site electrification, zero-emission forklift delivery, and operational issues if a zero-emission forklift cannot meet an operator’s needs.

Timeline for Phase-Out of Spark-Ignited Forklifts

Starting in 2026 except in limited circumstances:

Manufacturers cannot produce or sell Targeted Forklifts in California
Fleet operators cannot acquire Targeted Forklifts

Starting in 2028 and extending to 2038:

Existing Targeted Forklifts phased-out by model year (MY)
Phase-out schedule designed so that no forklift phased out before 10 years old
Less stringent provisions for small fleets

For the first compliance date only, the new rule will limit required turnover to:

50% of forklifts for large fleets
25% of forklifts for small fleets

CARB emphasized that fleet operators need to contact their electric utility provider no later than March 31, 2026, to initiate discussions regarding potential electrical-service installation or necessary upgrades.

ZEV Forklift Technology

Forklifts are well-suited for widespread adoption of zero-emission technology, and about half of forklift sales in California today are zero-emission, according to CARB. Zero-emission forklifts are already widely used in indoor applications like warehouses.

New technology emerging for zero-emission forklifts include lithium-ion ZEFs (higher energy density and longer lifespan) and fuel cell models that allow for quick refueling.

Editor Note: First, it was autos, then it was buses and trucks, now forklifts. Where does the insanity stop.

Has anyone ever thought in their perfect world of all electric homes, gadgets and toys, what would happen if some terrorist group ever blew up the electrical grid. All of American would come to a grinding halt.

Back in 1605, Don Quixote, said,” It is the part of a wise man to keep himself today for tomorrow, and not venture all his eggs in one basket.”

In other words, do not risk everything on one venture, plan, idea, product or person and risk losing everything.

Recordkeeping Basics & Audits

Wed, 31 Jul 2024 15:51:16 GMT

Content Disclaimer: Due to the constantly changing nature of government regulations, it is impossible to guarantee the total and absolute accuracy of the material contained herein or presented.

NorthAmerican Transportation (NTA) cannot and does not assume any responsibility for omissions, errors, misprinting or ambiguity contained. NTA shall not be held in any degree for any loss, damage or injury caused by any such omission, error, misprinting or ambiguity present. It is made available with the understanding that NTA is not engaged in rendering legal, accounting, or other professional service.

If legal advice or other expert service is required, the services of such a professional should be sought.

APPLICABILITY

Meet FMCSRs

Interstate commerce on a highway and;

10,001 lbs or more or
Designed or used for 9+
Passengers for compensation or 16+ passengers or
Placarded for Hazmat

CDL, DRUG TESTING, ELDT Commerce on a highway and:

GCWR or GCW >26,001 lbs., including trailers(s) with a GVWR or GVW >10,000 lbs or
GVWR or GVW of 26,000 lbs or more or
Designed for 16+ passengers; or
Placarded for Hazmat

LOCATION OF RECORDS - §390.29

Records maybe stored at:

Principal Place of business
Regional office or
Driver work-reporting location (unless otherwise specified in the FMCSRs)
MUST be made available to the FMCSA within 48 hours at your principal place of business

RECORDKEEPING BASICS

§390.31 & 390.32 – Explain how to keep documents

Photocopies are acceptable
You may destroy originals once they are properly scanned
Electronic documents and signature are allowed
Auditors may need to print documents

Why Recordkeeping?

Proof of Compliance
Regulators rely on you to document your compliance activities
On Site audits up 13%
94% of audits uncover violations
65% of “critical violations in 2023 were for recordkeeping
Records are an important business asset

DRIVER QUALIFICATION (DQ) FILE

Medical Certificate/ MVR

Get MVR before driving, then within 15 day after every DOT medical exam (at least annually)
MVR in Q file
Don’t use if status is “not certified” or CDL is downgraded or disqualified
CDL Drivers must carry med card for at least 15 days; non-CDL drivers must always carry one

Medical Card/CDL Integration

Chanes in June 22, 2021
Med cards transmitted electronically
MVR = only official proof of certification
Use National Registry verification

Driver Investigation History

Recordkeeping: 391.53
Requires confidentiality
Secured location, access limited to those involved in hiring process
If combined with DQ file, entre file must be secured

DQ/DIH Retention

Pre-Employment Screening Program (PSP) Recordkeeping

Driver’s consent form: 3 years
FMCSA-specified language
Subject to auditing by PSP contractor
www.psp.fmcsa.dot.gov

Drug & Alcohol Clearinghouse

Pre-employment query (prospective drivers)
Annual query (existing drivers)
Must be enrolled by 1/5/21
Limited -query consent forms: 3 years after last authorized query
All query records are stored in the Clearinghouse
Educational materials to include Clearinghouse information (382.601)
Beginning 11/18/2024, State Drivers Licensing (SDLAs) will be required to remove the commercial driving ALL commercial driving privileges of drivers in a “prohibited” status in the Clearinghouse, which would result in a downgrade of the CDL until the driver completes the return-to-duty (RTD) process

DRUG & ALCOHOL RECORDS

§40.333 - §382.401 - §40.25

Consideration of Confidentially cannot be stressed enough. A secure location with controlled access must be maintained at all time. If combined with other files, then they ALL have to be scoured.

TRAINING RECORDS

Part 380, § 301, 303,401, & 509

HOURS of SERVICE

Kept for six (6) months
Logs (paper or electric)
Time records for short-haul drivers (within a 150-mile radius (§395.1(e) Company must document daily start time & end time. Show total daily on-duty time and total time for preceding 7 days
Supporting documents as outlined under §395.11
No more than 8 supporting documents per driver in a 24-hour period
Must obtain the last seven days of time records from new or occasional drivers §395.8(j)(2)
Must show compliance with 60/70-hour rule & 8/10 hours of off-duty prior to first dispatch

HOURS of SERVICE: ELDS

The following MUST be in the vehicle

The ELD user’s manual
Instruction sheet for data transfers
Instruction sheet for malfunctions
At least 8 blank paper logs.

ELD Office Records

Access to ELD data and user accounts
Back-up copy of electronic files, on a separate device, kept for 6 months

VEHICLE RECORDS - §396.3

Records for All vehicles controlled for 30 + days and kept for 12 months
Records must be kept where vehicle is hosed or maintained
Vehicle make, number year, tire size, etc
ALL inspection/maintenance /repair records
PM schedules
Records on vehicles leased or sold must be kept for a) the remaining time left on 1 months, or b) 6 month from when the vehicle leaves your control, whichever occurs first
For buses: test records for pushout windows, emergency doors and door lights

IFTA AND IRP RECODKEEPING

International Fuel Tax Agreement (IFTA)
International Registration Plan (IRP)
Vehicles over 26,000 lbs GVW or RGVW, single or combination
3 or more axles, regardless of weight
Individual vehicle mileage records, trip sheets or trip reports

IFTA/IRP RECORD SUMMARIES

Monthly summaries must show:

Total distance of the vehicle by jurisdiction
Total distance and total fuel for the month
Quarterly summaries are also required under IRP

IFTA/IRP RECORD RETENTION & ORGANIZATION

IFTA requires the records used for the quarterly tax return to be retained for 4 years from the return due date of filing date, whichever is later, plus any time period included as a result of waivers or jeopardy assessments. If a licensee fails to provide the required records for the audit, the 4-year retention requirement is extended until the required records are provided

IRP requires the licensee to preserve the records their apportioned registration application is based upon for the current application year, plus the preceding mileage years. Note that depending on when a carrier renews for IRP, distance data may need to be kept for more than a 3 year period. The recordkeeping time-frame may actually end up being up to 6 ½ years. For this reason, it it highly recommended to keep ll distance and fuel data for 6 ½ years.

IFTA/IRP AUDITS

What do auditors look for:

Internal controls
Gap miles
No odometer reading
Inconsistent distance reporting
High/Low MPG
Unused IFTA decals

IFTA TRIP REPORTS

Trip reports must include:

Date of trip, start and end
Trip origin and destination
Routes of travel
Beginning/ending odometer readings
Total trip miles
Miles by jurisdiction
Unit number or vin number
Vehicle fleet number
Registrant’s name

ELECTRONIC DISTANACE RECORDKEEPING

On-board devices or global positioning systems (GPS) may be used to track distance:

Original GPS or other location data
Date and time of each GPS reading
Location of each GPS reading
Beginning & ending from the odometer, hub odometer, engine control module (ECM)
Calculated distance between each GPS or other system reading
Route of travel
Total distance traveled by the vehicle
Distance traveled in each jurisdiction
Vehicle ID Number or unit number
New GPS rules as of 1/1/24 require a GPS ping every 15 minutes for IRP and every 10 minutes for IFTA

FUEL TAX DOCUMENTATION

IFTA licensees must maintain fuel records in order to take tax-paid fuel credits on their IFTA quarterly return
Fuel may be purchased at the pumps (retail) or carrier may maintain bulk fuel storage

TAX-PAID FUEL – RETAIL

Tax-paid fuel receipts must include:

Vehicle’s plate or unit number
Purchase date
Seller’s name and address
Number of gallons purchased
Fuel type
Price per gallon of total sale
Unit number
Purchasers name

TAX-PAID FUEL – BULK

Bulk fuel records contain:

Date of withdrawal from bulk fuel tank
Number of gallons
Fuel type
Unit number or other details identifying the vehicle
Purchase and inventory records to show that the fuel tax was paid
Carriers must also maintain bulk fuel reconciliations quarterly

VEHICLE RECORDS: INSPECTIONS

49 CFR Part 396

Carrier is responsible for: A) Annual inspector credentials & B) Brake inspector credentials (for employees). They must have at least one year of experience and/or training, plus knowledge of the rules

ACCIDENT RECORDS

Each “accident” as defined in §390.5 for the past 3 years

FINANCIAL RESPONSIBILITY

Proof of Insurance

THE “REAL” REASON for COMPLIAMCE

Rear Ed Collision - $24.7 Million – Three dead and fifteen injured due to distracted truck driver
Rear End Collision - $21.6 Million – (non-CDL) Passenger vehicle rear-ended cause it to lose control and cross into oncoming traffic. Fatality at scene and husband and wife injured
Rear End Collision - $16.1 Million – (non-CDL) Elderly woman permanently disabled
Lane Change Collision - $18.1 Million (DOT recordable) Passenger with herniated disk from bus accident

What got them in trouble?

1 item in a qualification file
1 false log
1 improper drug test specimen
1 missing road test
1 invalid annual safety inspection
1 improper hazmat shipping paper
1 accident

It just doesn’t pay to cut corner’s !!

Operational Costs of Trucking: 2024 Update

Wed, 31 Jul 2024 15:17:02 GMT

The overall marginal costs of operating a truck hit $2.270 per mile in 2023. While the increase was only 0.8% over the previous year, when surcharge-protected fuel costs are excluded, marginal costs rose 6.6% to $1.716 per mile.

This is just another reason to join the NorthAmerican Transportation Association so that you can lower your overhead costs by joining a large association.

Inspections & Maintenance Recordkeeping

Wed, 31 Jul 2024 15:05:43 GMT

Records allow you to both verify and prove compliance with laws and regulations. If you face an audit, litigation, or another test of your compliance practices, your records may seal your fate, failing to have good records – or failing to provide them upon request – could make you susceptible to violations and stiff penalties from the DOT, State Patrol, or other enforcement agencies, not to mention costly settlements in court.

The DOT alone could charge you up to $13,000 in fines for each missing document.

Vital Business Assets

A properly managed vehicle recordkeeping system is also a vital business asset. It provides an inventory f all equipment and its compliance and operational status. In addition, storing your records electronically makes them simple to access, update, and use, making them even more valuable.

Common Inspection & Maintenance Records

Records must be kept for twelve (12) months.

Even if your vehicles are properly credentialed to be on the road, your recordkeeping system is not complete. The Federal Motor Carrier Safety Administration (FMCSA) requires motor carriers to retain various documents to prove that their vehicles are properly maintained.

A vehicle maintenance fie must include:

Vehicle make, vehicle number, serial number, yea and tire size
Who furnished the vehicle
A record of all inspections, repairs, and maintenance
Preventive maintenance schedules
Bus inspection records, if applicable

Retention Requirements

In addition, motor carriers must retain:

Daily vehicle inspection reports for three (3) months
Annual inspections forms for fourteen (14) months
Roadside inspections forms for twelve (12) months
Evidence of inspector qualifications
Accident register information for three (3) years
Records of engine changes until three (3) years after the vehicle leaves your control

Record Management

With so many vehicle records and timelines to juggle – and numerous agencies to deal with – it’s no wonder so many companies get in trouble during audits. They naturally want to focus on keeping the wheels moving, not sift through paperwork. But inadequate record management can bring those moving wheel to a halt.

With the nationwide movement towards electronic recordkeeping, more and more auditors expect instance access to your vehicle records, and they expect those records to be organized, up-to-date, and complete.

Be sure you have a sound record management system, such as J J Kellers Encompass Fleet Management. It lets you meet today’s compliance needs, prepare for tomorrow’s challenges, and keeps the wheel moving.

Remember, NorthAmerican Transportation Association is your authorized reseller for all your transportation needs.

Eleven Things to Know to Stay Out of Trouble with Final ELD Deadline

Wed, 31 Jul 2024 14:59:45 GMT

As of Dec. 17, 2019, most motor carriers are required by federal law to use electronic logging devices, or ELDs, to track driver hours of service. Whether you waited until the last minute to flip the switch or you were already running ELDs , here are some things you need to keep in mind to avoid citations, bad CSA scores, or unsatisfactory safety ratings.

The NTA ELD program is the right setup with the most cost-effective monthly fee of just $13.00.

1. Quit procrastinating

At this point, fleets who haven’t started their transition to ELDs have little hope of making the deadline if they want to do proper evaluation of providers to ensure compliance. But that doesn’t mean they shouldn’t get started. Every day they are on the road and out of compliance, they are at risk of FMCSA fines, which have big CSA score implications. The best time to get started with ELD compliance was yesterday. The second-best time is today. They really should not wait another day.”

2. Make sure you’re using a compliant ELD device

Unlike paper and electronic logs, the differences between compliant ELDs and other onboard recorders aren’t necessarily apparent. As the deadline for full ELD compliance nears, it’s important to make sure you’re using a device that meets all the requirements.”

The Federal Motor Carrier Safety Administration maintains a list of self-certified and registered devices at csa.fmcsa.dot.gov/ELD/List . Make sure your ELD is on it, including the device name, model number, and important details such data transfer methods, where to download the user manual, and the ELD supplier’s certifying statement.

3. Look for more than hardware

Beyond the device, it’s vital, especially if you’ve waited until the last minute, to make sure you have technical support and training.

There are dozens of ELDs on the FMCSA’s list of registered devices, and they all have to produce the same basic set of data. The difference among vendors is in service, support, and your ability to use that data to run your business.”

4. Make sure the ELD can be read by enforcement personnel

The ELD rules require that a safety official be able to read the display without having to enter the vehicle. If the ELD uses a mobile device, the driver doesn’t have to hand it to the inspector; he can handle it on the inspector’s behalf as long as the display is visible.

But that doesn't mean with the inspector standing on the truck step.

At first FMSA said as long as the screen is big enough to be viewed from outside the cab, it was fine. Now they want the official to be able to see it with boots on the ground. Some companies need to get these things tethered, or they may start seeing violations for ELDs not being viewable.”

5. Make sure drivers know how to use the ELD software

If you’re using the same device but simply changing the software from AOBRD to ELD, keep in mind that there may be minor changes in how drivers navigate the device when you. Make that software upgrade.

Drivers need to know how to navigate the system. That also includes entering the driver’s trailer number and bill of lading, unless your ELD device is integrated with a dispatching system that auto populates that data for you in the ELD.

6. Drivers have to certify their log every day

Under the AOBRD rules, submitting the log to the company at the end of the day mean the same thing as certifying it, Seidl explained. Not so with ELDs. Drivers must certify their logs as true and accurate at the end of each day, just as they had to sign paper logs. Some devices automatically prompt drivers when they log out to certify their logs; others don’t. If a driver hasn’t certified his logs, then logs in the next day and starts driving, he or she is now in violation.

That can become a serious problem for a motor carrier during a compliance review, Seidl noted. If a driver has submitted their logs but never certified them, he pointed out, “It is a critical violation if you don’t submit your logs in 13 days to the motor carrier.” If they’re not certified, a compliance review could treat those the same as not having submitted logs at all and hand the carrier a conditional safety rating.

7. Train drivers how to do a data transfer

One of the biggest differences between an AOBRD and an ELD is that the ELD must be able to transfer a data file to the enforcement official at roadside. It’s vital that your drivers know how to do this. If they don’t, you may start seeing violations for failing to transfer a data file.

Some AOBRDs had a way to send the logs as a PDF, but that’s not the same thing. Data transfer is downloaded to the ERODS software so the officer can see the logs in his squad car. That software translates the ELD data into a consistent format the officer can read and automatically flags violations.

8. Have the right documentation in the cab

If you’ve done the software update to turn your AOBRD into an ELD but haven’t replaced the driver instruction card, you could get hit with three points on your CSA score.

AOBRD rules required a single instruction card explaining how to operate the device. If a driver couldn’t produce it, that was one CSA point. Under the ELD rules, there are three different instruction documents required (although many vendors combine them all into a single document). If the driver can’t produce that card, it’s a point for each one of the missing pieces:

Instructions on how to use the ELD.
Instructions on how to transfer data to the enforcement officer at roadside.
Instructions on what to do in case of a malfunction.

The rules do allow these to be available electronically on the ELD. However, the driver must know how to access them – and if the ELD is malfunctioning to the point where those can’t be pulled up, that’s not going to do the driver much good if the device is on the fritz to have the malfunction instructions on the device itself.

You also have to keep eight days’ worth of blank paper logs in the cab in case of a malfunction.

9. Know what to do in case of a malfunction

Another difference between an AOBRD and ELD is the rules in case it doesn’t work right.

Under the previous AOBRD rule, Seidl said, it was unclear when paper logs would be required in case of a “sensor failure.”

The ELD rules refer to both malfunctions and data diagnostic events, Seidl said.

Data diagnostic events are those things where the device isn’t working 100% right, but it doesn’t rise to level of a malfunction. These can be corrected based on how the vendor and motor carrier decide to but they don’t require paper logs.

If the ELD malfunctions, the device must by law notify drivers – which means that notice of malfunction is also clear to any enforcement official who looks at the logs.

Drivers must use paper logs for the period of malfunction. Drivers need to notify their carrier immediately, and the fleet has eight days to repair the malfunction or get an extension from the state division administrator where the trucking company is based. Failure to get an extension or repair the ELD in eight days can be cited as “inappropriate method of logging.”

In case of a malfunction, drivers not only need to start keeping paper logs, but also have the last seven days of logs in their possession. That could be via access in the ELD device, depending on the malfunction; a copy of the logs from the home office records; or through reconstructing their paper logs for the seven days before the malfunction.

10. Train drivers on ELD rules

There are a few areas where we commonly see misconceptions among drivers on the ELD rules:

No, you can’t drive 2 mph to avoid being in driving mode. Under the AOBRD rules, some vendors allowed motor carriers to select the distance and speed that would trigger the device to start tracking hours in driving status. The ELD rules, however, require driving status once the vehicle reaches 5 mph. The only way to get around that is by using personal conveyance or yard move. But that doesn’t mean you can drive around at 2 mph to avoid being counted on-duty. Just because it doesn’t automatically switch you doesn’t mean it’s legal.
Personal conveyance. Make sure you have a company policy and that drivers understand how to use personal conveyance. It’s one of the most common ways drivers still “cheat” on their logs.
Unidentified drive time. If a driver forgets to log out at the end of his day, and the next day someone else is operating the truck, the ELD will ask the new driver if that previous trip is his or hers. Drivers need to understand when they should decline it and when they should accept it.

A common example is going to be with technicians who are test driving the truck in the shop. If a mechanic did not log his test drive of the truck, and the driver gets in the next day after it’s fixed, he or she will need to decline that trip. Otherwise, that mechanic’s drive time is going to be on the driver’s log book. The back office will have to annotate any unidentified trips or assign them. You cannot leave an unidentified trip just sitting there in the reporting system. It’s a violation under a compliance review.

• Edits and annotations. Drivers and back-office staff both need training here. With AOBRDs, motor carriers could edit drivers’ logs. Now all they can do is make a suggestion to an edit; the driver has to accept or decline that edit. It will not be in his log book until he agrees.

11. Know your ELD

There are hundreds of ELDs on the FMCSA’s self-certified list. Remember, many carriers have had unfavorable compliance reviews because neither the enforcement official nor the company really understood their own ELD system.

In one example, the ELD provider was unable to provide a required report showing the system pinged location at least hourly. It turned out that the information was right there in the actual logs. But that wasn’t discovered until after the company had paid an $11,000 fine.

That’s just one example. There are many examples where the investigator may determine your system isn’t legit because you didn’t know it. The investigator can’t know every little caveat of the hundreds of systems. You only have one. Who’s the one who should know?

FMCSA Removes 4 ELDs From Approved Device List

Thu, 25 Jul 2024 17:25:20 GMT

The Federal Motor Carrier Safety Administration has removed four ELDs from its list of registered electronic logging devices :

CTE-LOG ELD
ELD Volt
Powertrucks ELD
TFM ELD

Powertrucks was placed on the Revoked Devices list last year.

FMCSA placed these ELDs on the Revoked Devices list due to the companies’ failure to meet the minimum requirements established in 49 CFR part 395, subpart B, appendix A.

The removals are effective July 23, 2024.

Grace Period for Motor Carriers Using Revoked ELDs

FMCSA will send an industry-wide email to inform motor carriers that all who use these revoked ELDs must take the following steps:

Discontinue using the revoked ELDs and revert to paper logs or logging software to record required hours of service data.
Replace the revoked ELDs with compliant ELDs from the Registered Devices list before September 21, 2024.

Motor carriers have up to 60 days to replace the revoked ELDs with compliant ELDs. If the ELD providers correct all identified deficiencies for their devices, FMCSA will place the ELDs back on the list of registered devices and inform the industry of the update.

A Hard September 21 Compliance Deadline

Instead, safety officials should request the driver’s paper logs, logging software, or use the ELD display as a back-up method to review the hours-of-service data.

Beginning September 21, motor carriers and drivers who continue to use the revoked devices listed above will be considered as operating without an ELD. Safety officials who encounter a driver using a revoked device on or after September 21 should cite 395.8(a)(1), and place the driver out-of-service in accordance with the Commercial Vehicle Safety Alliance OOS Criteria.

FMCSA strongly encourages motor carriers to take the actions listed above now to avoid compliance issues in the event that the deficiencies are not addressed by the ELD providers.

7 Actionable Ways to Improve Profit Margins in Your Trucking Business

Thu, 04 Jul 2024 14:06:04 GMT

By Wendy Lindars, special guest writer

Operating costs are among the highest they have ever been, and trucking businesses around the country are feeling the pinch.

According to the 2023 Operational Costs of Trucking Report , the cost of operating a truck had increased to $2.251 per mile, while costs per hour soared to an average total of $90.78.

A year and a half later, the situation has not improved, and it has become clear to small owner-operators and large companies alike that if they do not find ways to save on costs, they could be looking at a very bleak future.

Factors that Affect Profit Margins

A business’s net profit margin is the difference between its revenue and its costs.

The costs that impact profit margins include what, for many owner-operators, are out-of-pocket expenses such as fuel, maintenance and repairs, weigh station and toll fees, insurance, health insurance, truck financing, taxes, technology, and licenses and permits.

If a trucking business has a fleet of trucks, it needs to hire drivers. This means there is a variety of employment-related costs that also impact profit margins. These typically include the cost-per-mile for hired truckers, driver benefits, other salaries and wages, safety programs and driver training, marketing, employment taxes, legal costs, and recruitment and retention.

No matter the size of the business, owners also need to factor in the costs involved in staying compliant with the FMCSA .

7 Tips to Improve Profit Margins

Use the following seven tips to improve your trucking business’ profit margins.

1. Use Real-Time Tracking Technologies

GPS and AI-enabled tracking technologies can significantly enhance operational efficiency. These technologies can be used to gain insights into fuel, driving behavior, and other metrics and to optimize routes.

By making adjustments to driving behavior and routes, it’s possible to reduce fuel consumption while ensuring that goods are delivered on time, demonstrating your business’ reliability to customers, which should result in more business from them and those to whom they recommend you.

Remember, those fleets using ELDs & GS must have complied from January 1, 2024. The GPS must ping every 15 minutes for IRP & every 10 minutes for IFTA.

By using the NTA ELD you will be in compliance because this was set up by a former driver.

2. Optimize Fuel Management

According to the Operational Costs of Trucking Report, the trucking industry saw a 54% increase in fuel spend in 2022. Most trucking businesses would agree that fuel is one of their biggest expenses, which makes fuel management an important consideration when it comes to improving profit margins.

There are several ways to optimize fuel management.

One is to use fuel management software to plan routes with reduced fuel consumption in mind and to find the most economical fueling stations. Another is to leverage fuel card programs or partnerships and the discounts they offer to regular customers such as the NTA Fuel Card backed by Shell Oil.

3. Use Load Boards for Enhanced Load Planning

Many trucking business owners know the frustration of empty miles and loads that are not as profitable as others are, especially when it comes to flatbed hauling and other specialized segments. However, if you do manage to find the right load for a flatbed, you’re looking at a big increase in revenue.

One way is use the NTA endorsed DAT load boards to enhance your load planning, ensuring that you have sufficient driver capacity first. While you can find free-to-use boards, you are almost certain to receive better service on boards that use a pay-per-use model or charge per transaction or subscription fees.

Another alternative is to join the NTA so that you can have access to NTA’s Manufacturing databases. You can purchase by State, by Region or Shipper database. Get your own private database of up-to-date shippers and do away with load boards and brokers by dealing direct with the shippers.

4. Improve Your Use of Freight Factoring Services

Freight factoring can help improve your trucking business’ liquidity so that you can cover operational expenses by turning your unpaid invoices into cash . However, you need to choose the right factoring company if you want to get the best rates and terms.

You also need to know how to use freight factoring services to your benefit. You will receive less money for each invoice due to the fee you pay to the factoring service. If you don’t know how to use the service to your advantage, these fees become another factor that eats into your profit margin.

The trick is to use your enhanced cash flow to boost your opportunities for generating revenue and growing your business.

By joining the NTA, you will have access to NTA’s endorsed factoring company, Orange Commercial Credit. No long-term contracts, no set up fees & you can choose which accounts to factor.

5. Step into Niche Markets

The specialized nature of niche markets in trucking means being able to charge higher rates. Consider stepping into niche markets such as refrigerated, hazmat, or flatbed trucking.

You will need to research the specific needs of various niche markets and consider how you can tailor your services to meet them. If you do decide to work within these markets, you might need to wait a while before you see a return on investment, but once you do, the boosted revenue and improved profit margins should be obvious.

By joining the NTA, you can have access to dry van shippers, expedited/hot shot shippers, flatbed shippers, refrigerated shippers & LTL shippers.

6. Improve Driver Behavior

Aggressive driving can reduce your fuel mileage by between 15 and 30% at highway speeds and between 10 and 40% in stop-and-go traffic. 7.3% of fatal large truck accidents involved speeding , while 5.2% of truck accidents were a result of driver distraction and impairment. Improving driver behavior can lead to savings in fuel, maintenance, and repair costs.

Use AI-enabled dash cams with driver behavior monitoring features to improve driver behavior. The feature will alert drivers and fleet managers to behaviors such as harsh acceleration, braking, speeding, and idling, and to driver behavior such as using a mobile phone or falling asleep while driving. These alerts act as a form of live coaching, encouraging drivers to improve their behavior to enhance fuel mileage and reduce the chances of accidents.

The footage from these monitoring devices is also crucial when an accident occurs, as truck accident lawyers can use it to prove liability. This can save your business a huge sum of money if a driver is not at fault and should not be held liable.

7. Diversify Income Streams

Offering only traditional trucking services limits your trucking business’ revenue to one income stream. Look for ways to diversify your income streams for increased profitability and stability.

Consider whether you could offer trucking-related services such as logistics consulting, maintenance for other trucking companies, or warehousing.

The Bottom Line: Investment Equals Profit Increases

Improving your trucking business’ profit margins is not without its challenges. The main takeaway here is to leverage technology and find other innovative ways to reduce costs, optimize operations, and adapt and diversify in response to the trucking industry’s challenges and trends.

DEA is One Step Closer to Reclassifying Marijuana

Wed, 03 Jul 2024 14:09:18 GMT

Proposed rule would move marijuana to Schedule III

The Department of Justice is moving forward to reclassify marijuana as a less dangerous drug.

A notice of proposed rulemaking was submitted by the Drug Enforcement Administration (DEA) to change marijuana’s classification from Schedule I to Schedule III under the Controlled Substances Act (CSA).

The Department of Health and Human Services currently holds a view that marijuana has an accepted medical use and less potential for abuse than the drugs in Schedules I and II.

Once the proposed rulemaking is published in the Federal Register, stakeholders will have 60 days to submit commits for DEA’s consideration. However, marijuana remains on Schedule I during the rulemaking process. It will not be reclassified prior to a final rule published by DEA.

If DEA reclassifies marijuana as expected, it is unknown at this time how this change will affect 49 CFR Part 40, drug testing procedures for all modes under the Department of Transportation.

What are schedules of controlled substances?

The DEA classifies drugs in its regulations (21 CFR §§11308.11 through 1308.15) based on:

Whether the drug or substance has a currently accepted medical use in treatment in the United States, and
The drug or substance’s:
Relative abuse potential, and
Likelihood of causing dependence when abused.

Schedule I, the current placement for marijuana, is defined as having:

No currently acceptable medical use,
A lack of accepted safety for use under medical supervision, and
A high potential for abuse.

Schedule II is identified as having a high potential for abuse, leading to severe psychological or physical dependence.

Schedule III, the proposed classification of marijuana, is described as having a potential for abuse less than substances in Schedules I or II, and abuse may lead to moderate or low physical dependence or high psychological dependence.

DEA’s two remaining classifications include:

Schedule IV: Substances with a low potential for abuse relative to Schedule III, and
Schedule V: Substances with a low potential for abuse relative to Schedule IV and contain limited quantities of certain narcotics.

On the other hand, the use of marijuana among truck drivers is a growing concern in the industry. Since the Federal Motor Carrier Safety Administration (FMCSA) Drug & Alcohol Clearinghouse began tracking data in January 2020, marijuana has been the most common substance for which truck drivers test positive.

As of early 2023, nearly 110,856 truck drivers had tested positive for marijuana, with about 41,000 of these cases occurring in 2022 alone (Politico) (Transport Topics).

This increase in positive tests for marijuana is significant, with a 32% rise from 2021 to 2022 and a 9.2% increase in the first quarter of 2023. This trend is exacerbated by the fact that many drivers who test positive do not complete the required return-to-work process, leading to a substantial number of drivers being sidelined indefinitely.

As of early 2023, over 97,000 drivers were in prohibited status due to not starting or completing this process (Transport Topics)

Despite the increasing legalization of marijuana in many states, federal regulations still prohibit its use among commercial drivers. This discrepancy creates challenges for drivers and the trucking industry, as drivers can face penalties and job loss for marijuana use, even in states where it is legal (Politico).

The situation has sparked debate within the industry about the need for more accurate testing methods that differentiate between recent use and past exposure, as current tests can detect marijuana in the system long after its effects have worn off (Transport Topics).

Overall, while exact numbers of current users are difficult to pinpoint, the available data indicates a significant and growing impact of marijuana use among truck drivers, posing challenges for both drivers and employers in maintaining compliance with federal regulations.

So how does one reclassify a drug, especially knowing that people will abuse the drug and have NO WAY to determine what degree that they are under the influence of that drug.

It only makes sense to set the limits first before you make it more accessible to the public. Just as we have limits for alcohol, we MUST have limits for marijuana. It’s just plain COMMON SENCE.

The Delicate Case for Reclassification of Independent Contractors:

Wed, 03 Jul 2024 14:06:13 GMT

Written by: Richard Reibstein Esq.

Two cases reported below in our review of legal developments in February 2024 address reclassification of independent contractors.

The first case is one in which a state and county sought enforcement of California’s strict ABC test for independent contractor status and secured a settlement against a staffing company including its agreement to reclassify workers as employees whom it had previously classified as ICs.

The second lawsuit involves a group of workers first engaged as independent contractors and then converted to employees. Many companies that use ICs question whether they should reclassify their contractors and begin to treat them as employees in the hope that they can avoid IC misclassification lawsuits.

The act of reclassifying workers as W-2 employees after treating them as 1099 independent contractors can, however, not only prompt an IC misclassification lawsuit but, if not done in an appropriate manner, can also be used as evidence that the workers were initially misclassified. In contrast, especially in states like California and Massachusetts with their ultra-strict ABC tests for IC status, reclassifying workers from IC to employee status as part of a settlement of a lawsuit is an option some employers have considered.

The approach taken by the overwhelming number of companies, however, is not to reclassify, which can create the impetus for an IC misclassification lawsuit and typically is not financially feasible. Rather, most prudent businesses seek to enhance compliance with laws governing the use of ICs.

One process used by an increasing number of businesses is IC Diagnostics (TM), which enhances IC compliance by restructuring, re-documenting, and re-implementing IC relationships in a customized and sustainable manner consistent with the company’s business model. The only approach that makes little sense is to do nothing and instead risk a legal proceeding brought by a government agency or plaintiffs’ class action lawyer, as in the first two cases reported below.

In the Courts (4 cases)

GIG ECONOMY STAFFING COMPANY AGREES TO RECLASSIFY WORKERS AND PAY $2.1 MILLION IN IC MISCLASSIFICATION LAWSUIT.

Staffing company Qwick Inc. has agreed to pay $2.1 million in a settlement with the City of San Francisco and the State of California for allegedly misclassifying as independent contractors the gig workers it referred to its hospitality clients. The settlement provides that the on-demand staffing company will convert all of its 10,000 allegedly misclassified California workers to employees. According to a news release issued by San Francisco City David Attorney Chiu, the settlement ends an action brought in 2023 in a California state court by the State of California and City of San Francisco alleging that Qwick violated the state’s Labor Law and Unfair Competition Law by classifying its hospitality workers as independent contractors and not employees and by failing to provide them with meal and paid rest breaks.

According to the news release, the company, through its mobile app, provides restaurants, caterers, and event production companies with on-demand workers to fill empty shifts. The workers are engaged in many different front-of-house and back-of-house roles, including shifts for servers, bussers, bartenders, baristas, dishwashers, cooks, barbacks, event staff, and concession workers. When the workers fill a shift, they work alongside and perform the same functions as hotel and restaurant employees. ‎‎

Under the terms of the court-approved settlement, the company must pay its California workers $1.5 million in restitution and reclassify workers that stay on as employees and provide them with a bank of accrued sick leave hours valued at up to $350,000. The company must also pay $250,000 to the City in civil penalties. California v. Qwick Inc. , No. CGC23608756 (Cal. Super. Ct. San Francisco County Feb. 22, 2024).

WASTE COMPANY’S TRASH SORTERS FIRST TREATED AS IC’S AND THEN CONVERTED TO EMPLOYEES ARE CERTIFIED AS A COLLECTIVE.

A Maryland federal district court has granted collective action certification to group of 80 workers who sort recyclables and trash for a waste company in their independent contractor misclassification lawsuit. In their amended class and collective action complaint, the sorters allege that WB Waste Solutions LLC “hires employees to work the sorting line on a purported ‘temporary basis’ and treats them as independent contractors, despite the fact that [the company] controls all aspects of the work they do, including setting their schedules, assigning their tasks, and requiring them to follow policies established by [the company.”

The sorters also claim that the company allegedly pays the “temporary” employees a daily rate below the legal minimum wage, does not account for how many hours they work in a workweek, fails to pay overtime compensation, and reduces the daily rate if the sorter starts work late or leaves early, all in violation of the Fair Labor Standards Act and Maryland wage and hour laws. Although the sorters claim that after a certain period of time they are reclassified as “full-time” employees, their pay is still allegedly reduced in violation of law by deductions made for meal breaks “that are not bona fide” under the FLSA and Maryland law. Lopez v. WB Waste Solutions LLC , No. 8:23-cv-00963 (D. Md. Feb. 1, 2024).

HEALTHCARE STAFFING AGENCY TARGETED BY U.S. LABOR DEPARTMENT FOR IC MISCLASSIFICATION.

An Illinois healthcare staffing agency and its owner have been sued by the U.S. Department of Labor on behalf of 41 registered nurses, licensed practical nurses, and certified nursing assistants who allegedly were misclassified as independent contractors following an investigation into the agency’s employment and pay practices. According to a news brief published by the DOL’s Wage and Hour Division, the investigation revealed that the workers provided nursing services pursuant to contracts entered into between the NurseRight Staffing Agency LLC and a number of nursing homes, but were not paid overtime.

In its complaint, the DOL alleged that the workers are not independent contractors but rather employees because the staffing company oversees the services provided by the workers and sets performance guidelines; dispatches assignments to the workers; directs the workers’ performance of the services; expects the workers to adhere to the schedules and sites assigned by the staffing agency; tracks the workers’ location via GPS; handles complaints by the nursing homes about the workers; and determines the hourly rates for the nurses.

In addition, the complaint alleges that the workers have an exclusive relationship with the agency; are not in business for themselves; do not invest in advertising; and do not assign or delegate their services. Su v. NurseRight Staffing Agency, LLC, No. 3:24-cv-‎‎50063 (N.D. Ill. Feb. 7, 2024).

DELIVERY COMPANY IN OHIO ABLE TO DECERTIFY COLLECTIVE ACTION FOR INDEPENDENT CONTRACTOR MISCLASSIFICATION.

SBK Delivery, LLC has prevailed in its motion to decertify a collective action under the Fair Labor Standards Act seeking overtime on behalf of a driver and other drivers whom he claims were similarly misclassified as independent contractors. In February of 2022, the parties stipulated to a grant of conditional certification and to the issuance of notice to the putative collective group.

Nineteen employees timely opted into the putative collective. Defendant then moved to decertify the collective. The Court ruled that there was no collective to “decertify” because Plaintiff had not conclusively shown that the opt-ins worked overtime under a uniform policy of the company but rather chose to work overtime based on their own decisions under differing individual circumstances. Miller v. SBK Delivery, LLC , No. 2:21-cv-4744 (S.D. Ohio Feb. 29, 2024).

Regulatory and Administrative Initiatives (1 matter)

FTC FOCUSES ON INDEPENDENT CONTRACTOR MISCLASSIFICATION AS FORM OF UNFAIR COMPETITION.

Federal Trade Commissioner Alvaro M. Bedoya describes independent contractor/employee misclassification as a “pervasive and national scandal” in his February 2, 2024 speech at the Global Competition Review summit explaining that misclassification “takes billions of dollars from working people and it gives it to lawbreakers.”

Commissioner Bedoya, whose speech focused on the construction, port transport, trucking, in-home health care, in-home cleaning, landscaping, and janitorial industries, stated that “the next step in confronting misclassification is making sure that we use every tool in our toolbox to fight it – including competition law.” He continued: “And so today I want to make the case for using the extensive statutory prohibitions against unfair methods of competition to closely examine allegations of misclassification.”

In his remarks, Commissioner Bedoya noted that section 5 of the Federal Trade Commission Act charges the FTC with prosecuting unfair methods of competition which include conduct that may be coercive, exploitative, collusive, abusive, deceptive, predatory, or involve the use of economic power, and must tend to negatively affect competitive conditions.

Can You Cover Independent Contractors With Workers’ Compensation Insurance?

Wed, 03 Jul 2024 13:50:08 GMT

Written by: Richard Reibstein Esq.

We are frequently asked by businesses about workers’ compensation coverage for independent contractors. Clients ask us: Can our company cover independent contractors with workers’ compensation insurance? Is it safer for us if we do so? Or better not to? Like many issues involving independent contractor compliance, there is no one answer to these questions because workers’ comp is governed by state laws, which vary from state to state, and even under a single state’s law, the answer may depend on the nature of the services being provided by the independent contractor. One part of a comprehensive compliance process such as IC Diagnostics (TM) provides businesses with approaches to enhance compliance with independent contractor laws and minimize misclassification liability relating to workers’ comp matters.

What are the risks to businesses?

Workers comp benefits are traditionally limited to employees. Businesses are not generally required to provide workers’ comp coverage to independent contractors.

However, there is a considerable risk that, under a particular state’s workers’ comp law, a state agency or court may find that the workers involved are not independent contractors, but rather employees, and therefore, should have been covered. In that event, a company can be exposed to severe penalties for failure to provide such individuals with worker’s comp coverage. And penalties can be quite considerable. For example, in New York, civil penalties for non-coverage can be as high as ‎$2,000 per violation for each 10-day period of non-compliance, up to two times the cost of compensation ‎for a company’s payroll for the period of such failure. In Virginia, employers who fail to provide workers’ comp insurance for their employees are assessed a civil penalty for each violation of up to $250 per day for each day of noncompliance, up to a maximum penalty of $50,000, plus collection costs.

Are there any workers who must or may be covered by workers’ comp, even if they are independent contractors?

It is important to bear in mind that some state laws require individuals who perform certain types of work (even when undertaken by those properly classified as independent contractors) to be covered by worker’s comp insurance. For example, Louisiana requires a company to cover independent contractors if they engage in substantial manual work. That term presumably covers contractors engaged in construction activities and perhaps a host of other occupations. Florida and other states require companies to provide workers’ comp insurance coverage to independent contractors in the construction industry.

Other state laws permit certain independent contractors to be voluntarily covered by workers’ comp insurance. For example, in Texas, companies can elect to cover independent contractors under their workers’ comp policy by filing the appropriate form depending on the industry and circumstances of the relationship. One type of form relates to building and construction workers who build, demolish, or repair physical structures. Another form creates an agreement between a general contractor and a subcontractor where the former will provide workers’ comp insurance.

In South Carolina, a narrow exception exists to the ‎general rule that workers’ comp is limited to employees. That state allows an independent contractor to elect ‎coverage under the contractor’s own workers’ compensation ‎policy.‎ A similar law exists in Georgia, where sole proprietors can elect to be covered in that state by their own workers’ comp policy by filing an election form. Businesses in these states that use independent contractors may choose to pay the premiums for such coverage, even though that may be a factor undermining an independent contractor relationship.

These nuances in state laws can trip up many companies. Prudent businesses, therefore, should first consider whether a particular type of worker operating as an independent contractor must be covered by workers’ comp or whether the law permits their coverage on a voluntary basis. If workers are engaged in services that must be covered, even when performed by independent contractors, such workers must be provided with coverage.

What steps can businesses take to protect themselves?

How can companies protect themselves from the risk that individuals whom they classify as independent contractors might be reclassified as employees by an agency or court for workers’ comp purposes? There are two ways we suggest.

One way is a step that some businesses regard as being extra cautious: procuring workers’ comp insurance for all their independent contractors – even if paying for such coverage may have no value. There is also a risk if this step is not done properly. Covering independent contractors with insurance that is available only to employees can be misconstrued as an acknowledgement that the workers are employees. Therefore, extreme care must be taken to use effective disclaimers in all communications regarding such coverage so that taking this cautious step cannot be used against the business. The cost of covering such workers may, however, be regarded as an expensive form of legal “insurance.”

A more practical and effective approach, which can also be the least costly, is to maximize compliance not only with the test for independent contractor status under the applicable state workers’ comp law but also with the other state and federal tests for independent contractor status. Many savvy companies have resorted to a process such as IC Diagnostics (TM) to structure, document, and implement their independent contractor relationships in a manner that maximizes compliance with independent contractor laws in a customized and sustainable manner, consistent with their preferred business model.

Some companies have taken both steps, especially where an applicable state law expressly permits a business to carry workers’ comp insurance for certain types of independent contractors. The only approach a company should not take is to disregard the issue of workers comp or ignore the need for elevating its level of independent contractor compliance. Such businesses needlessly expose themselves to liability risks that can otherwise be effectively managed.

Part 2 – How are Hours-of-Service Recorded?

Wed, 03 Jul 2024 13:45:24 GMT

Before looking at the rules, first we’ll look at how to account for a driver’s hours. In order for a DOT inspector to determine if a driver is complying with the hours of service rules, they must know how many hours a driver has driven. Traditionally a driver would record their hours of service on sheets of paper called log sheets, or logs. With the proliferation of smartphones and mobile devices it is becoming increasingly more common for the driver to use an app to create Electronic Logs.

A driver must choose between one of the 4 duty status during their shift:

Off-Duty – for when a driver is not working.
Sleeper – for when a driver is sleeping in the truck’s sleeper berth.
Driving – time spent behind the wheel driving on public roads.
On-Duty – time spent working, but not driving.

With paper logs, every time a driver changes duty status, he must draw a line into the “Remarks” section, and write down the city and the state. With Electronic Logs the process is greatly simplified by inputting a few taps on the screen and logs are automatically generated for them. This information tells the authorities where the driver was. A driver must record his time every day, even if he does not work that day. All days must be accounted for.

There is some more to it. Drivers staying within 100 air miles of their terminals generally don’t have to fill out the log shown above, as long as they are recording the time they start work, the time they finish work, and their total number of hours that day.

Finally, many drivers use an electronic log to record their hours of service. The big advantage of using NTA ELD electronic logs is that it will alert drivers when to take their breaks, and how many hours they have left to drive.

It helps if the driver knows the complex rules, which we’ll look at next time, but when using the Electronic Logs a lot of the legwork is already taken care of, as the device knows the rules.

Part 1 - Who Must Comply with Hours of Service

Wed, 03 Jul 2024 13:43:43 GMT

The Federal Department of Transportation, (DOT) enforces a variety of safety regulations on anyone who operates trucks in interstate commerce. These regulations are numerous, and complex. They are confusing, aggravating, and overwhelming. But fear not! I will attempt to simplify one of the most important categories of regulations: hours of service and logbooks.

What are hours of service?

The DOT believes it must limit the amount of time truck drivers spend behind the wheel. Without these regulations, they think drivers will drive until they collapse from sleepiness and exhaustion, causing mayhem and death.

How seriously does DOT take these rules?

They take them very seriously. If you fail to comply with any of them, you could be looking at thousands of dollars in penalties. DOT fines are often outrageous. A carrier who has 10 drivers who are not taking their 30-minute breaks when they should could easily be fined $15,000. Generally, DOT will usually let one or two isolated violations slide. However, if there are numerous violations, a company is looking at a big fine.

Do these hours-of-service regulations apply to you?

These hours-of-service rules apply to anyone operating trucks in interstate commerce. “Trucks”, or more accurately, commercial motor vehicles, are defined as any vehicle or combination of vehicles with a Gross Vehicle Weight Rating (GVWR) of 10,001 lbs. or more. The GVWR of a vehicle is a value assigned by the manufacturer. It is often found on a metal plate on the inside of the doorjamb. A one-ton pickup truck usually has a GVWR of around 10,000 or 11,000 lbs., for example.

‘Interstate commerce’ generally means trucks crossing state lines for a business purpose. So, certainly, tractor-trailers traveling throughout the country are subject to these rules. However, other types of trucks are subject as well. For example, a one-ton pickup truck, pulling a trailer across state lines in support of a business, such as construction, is also subject to these rules.

Even if you do not cross state lines, the rules still may apply to you. If you stay within one State, the rules within that State apply to you. All States have some kind of truck safety regulations, which includes State specific hours of service rules. Many have adopted the Federal rules almost exactly, such as Maryland and New York. Others, such as New Jersey and Texas, only apply the safety rules to bigger type vehicles, which have a GVWR of 26,001 lbs. or more. If you stay within one State you should check with your local State Police or Highway Patrol to find out if your truck is subject to the rules.

Basically, if you are driving anything bigger than a ¾ ton pickup truck for a business purpose, the hours-of-service rules very well may apply to you.

Paccar Issues Recall - Advises Owners Not to Drive Until Steering Problem is Fixed

Tue, 25 Jun 2024 18:14:38 GMT

Paccar has recalled nearly 3,900 medium- and heavy-duty trucks with diesel powertrains for a steering issue that could cause a loss of control.

The tie rod or drag link assembly may contain a tie rod or drag link with a ball stud out of hardness specification. An out of hardness specification ball stud may fracture. If this happens, the driver may experience a loss of steering and reduced vehicle control, which may increase the risk of a crash.

About 18% of the recalled trucks are estimated to have the defect. Owners are advised not to drive recalled vehicles until the remedy has been completed. No warning signs have been identified prior to failure.

As of June 6, 2024, Paccar had received no warranty claims or reports about trucks in the field that may be related. Zero reports of deaths or injuries have been received.

Which Kenworth and Peterbilt Trucks Were Recalled?

Vehicles recalled include:

2025 model year Kenworth K270, K370, T280, T380, T480, T680, T880, W900, and W990 trucks.
2025 model year Peterbilt 220, 536, 537, 548, 567, 579, and 589 trucks.

The affected vehicles have chassis built with drag link part numbers J20-6067, J20-6071, J20-6072, J20-6073 during a period when suspect lots were at Paccar production plants. Chassis with tie rod part numbers 817755, 971092, 971776, 10036700, or 10036701 installed on front axles during this period may have parts from an axle supplier that had suspect ball stud lots on hand.

The period in question is April 10, 2024-June 4, 2024.

Dealers will inspect and replace the tie rod and drag link assemblies as necessary, free of charge. Dealer and owner notification letters are expected to be mailed August 11.

Owners may contact Kenworth customer service at 1-425-828-5888 and Peterbilt customer service at 1-940-591-4220. Paccar’s numbers for this recall are 24KWG and 24PBG.

Unless You Act Today AB-2583 Will Become Law in California

Mon, 17 Jun 2024 13:48:35 GMT

Unless You Act Today AB-2583 Will Become Law in California

What this means:

The speed limit drops to 20 mph any time anyone under 18 yrs old is anywhere on school grounds (even if they can’t be seen from the roadway) or within 500 feet of a school any time day or night, week day or weekend, whether or not school is in session.
The 20 mph speed limit would also be in effect when no children are present as long as a city puts specific hours on a sign or activates a flashing beacon. Cities would have free rein to set any days or hours as reduced speed school zones with no restrictions. Even 24/7, 365 days a year school zones would be permitted. (NY City’s 24/7 school zones have resulted in tens of millions of dollars in fines to unsuspecting drivers.)
The distance is measured from the school property boundary. For large campuses, the 20 mph zone could extend as long as a half a mile.
Eventually, you will be ticketed with a minimum $370 fine and increased insurance premiums.

Last week we alerted you to the threat posed by AB-2583 and asked you to make 1 phone call and send 1 email. If you called and emailed, thank you. If you haven’t, what are you waiting for?

Don’t wait. Do this today!

Those who would subject you to unreasonable speed limits designed to make driving as miserable and expensive as possible are working overtime to pass AB-2583. Let’s stand up for ourselves instead of just rolling over!

Assembly Bill 2583 will be voted on in the Senate Transportation Committee on June 25th so we need you to act now .

Call Senator Dave Cortese who chairs the Transportation Committee at (916) 651-4015 and tell his staff that you oppose Assembly Bill 2583.

Senator Cortese is the one person in Sacramento who will decide if this bill moves forward, so it is critical to call to express your opposition NOW.

It’s very easy and will take you 1 minute. Just call the number above and say:

"Hi. I’m calling in opposition to Assembly Bill 2583. This bill drops the speed limit to 20 mph any time anyone under 18 yrs old is anywhere on school grounds, even if they can’t be seen from the roadway, or they are within 500 feet of a school any time day or night, week day or weekend, whether or not school is in session. The 20 mph speed limit would also be in effect when no children are present as long as a city puts specific hours on a sign or activates a flashing beacon. Cities would be free to set any days or hours as reduced speed school zones with no restrictions. Even 24/7, 365 days a year school zones would be permitted. A similar proposal was rejected by Caltrans in 2017 and the California Legislature should accept this decision.

AB-2583 will create massive speed traps and calls for additional automated ticketing to try to get people to comply with these unreasonable rules. It would expand law enforcement’s power to conduct and justify pretextual traffic stops. At a minimum, this can result in hefty fines, and for those unable to pay, late fees and possible license suspensions leading to increased poverty. At their worst, traffic stops can turn lethal.

Please tell Senator Cortese to oppose this bill."

Note: His staff may ask if you are a constituent/live in the district. They may ask for your address. You are under no obligation to answer these questions unless you want to. If you do live in his district, we suggest you say so. If you don't want to answer, here's what to say:

"AB-2583 will affect everyone who drives on California roadways so this is a matter of statewide concern. As the chair of the Senate Transportation Committee, all residents of California have the right to contact Senator Cortese about this bill."

Be Polite! These calls are not intended to harass anyone. You are just making your voice heard on this terrible legislation. Making the call is more important than what you say.

If this bill becomes law, you’ll regret not taking action. Call now!

After you call, click below to go to the Action Page . From there you can also send an email to all members of the Transportation Committee.

HOW TO TAKE ACTION:

Call Senator Dave Cortese who chairs the Transportation Committee at (916) 651-4015 and tell his staff that you oppose Assembly Bill 2583.
Click on the “ STOP AB-2583 ” button to get more information and send an email to Senator Dave Cortese and the other members of the Senate Transportation Committee.
Please forward this Action Alert with your friends, family, and co-workers.

The NEW Beneficial Ownership Information (BOI) E-Filing System

Wed, 05 Jun 2024 19:15:30 GMT

The following demonstrates what the current administration in Washington, D.C. is doing to small business especially those companies from 1 to 20 employees and/or independent contractors.

The United States Treasury's Financial Crimes Enforcement Network (FinCEN) now administers a reporting system aimed at all manner of small businesses throughout the United States.

Since the first of this year, any newly established LLC, corporation, LLP and some other business types, including any owner-operator or small fleet who's filed with their Secretary of State to establish the business, have 90 days to report Beneficial Ownership Information (BOI) to FinCen and the Treasury.

The requirement is also in play for businesses that existed prior to the first of the year. Those owner-operators and many small fleets, though, have much more time to report -- the deadline to complete the filing with FinCEN is the end of 2024.

Penalties for not doing so can be "pretty severe" by the letter of the law when it comes to the BOI reporting program, with civil fines of $500 per day beyond a business's deadline to report, and potential criminal penalties up to imprisonment for the worst cases.

If that sounds harsh for what amounts to failure to check a few boxes on an online form, there's a reason Treasury is motivated here. The new BOI program was created as a result of the Corporate Transparency Act, legislation passed in Congress in 2021 as part of that year's Defense reauthorization package and aimed at the problem of money laundering from abroad and at home through shell companies.

Laundering money is fairly easy to do when no one knows who owns the company and this is an attempt to fix that.

The good news is that reporting looks to be a fairly simple matter for most owner-operators, requiring little more than an individual owner's name, date of birth, address and identifying document like your CDL or passport. The owner applicant must identify his/her company with its name, address and Employer Identification Number (Social Security number will suffice, too, for most one-truck businesses that are LLCs, plus identifying any other individuals either with "substantial control" of the business or with an ownership stake above 25%, such as they may exist.

The following from FinCEN aims to help businesses quickly ID whether or not they fall under the new BOI reporting requirement.

The first question is “Under what law was the company created or formed”. If it were form under the laws of a foreign country and has the company registered to do business in any U.S. State or Tribal jurisdiction by filing a document with a secretary of state or similar office of the State or Tribe. If you answered Yes then you may be a foreign reporting company. If you answered No then you are not a reporting company.

If you answered Yes, you formed the company under U.S. laws and it is NOT a corporation, limited liability, LLC then you are not a reporting company.

But if you are any of the above named including a Tribal jurisdiction then you are a reporting domestic company.

Yes, answers to these questions are part of FinCEN's Small Entity Compliance Guide, which means it's likely your business will need to report. There's a significant exemption for small fleets with 20 or more employees hitting a particular revenue target -- read on for more detail.

It is estimated the new requirement might apply to roughly 75% of owner-operators who've set up LLCs or other business entities with their Secretaries of State.

Except in certain circumstances (such as if you move your business to a new home base address), it's likely you'll only need to report once in your business's life. After a single report, if you never move, you may never have to report again.

The bad news: Quick timeline for address-change deadlines with BOI reporting

The bad news is when any registered business changes its address, under the BOI reporting program's terms owners have just "30 days to report the change" to FinCEN, with the same $500 per-day civil fines potentially applying at the end of that 30 days.

That requirement might be the most urgent among all within the program for owners on the move, given the program's newness and the short time period to report an address change.

With that tight deadline, and big penalties, NTA recommends that small business owners get with their CPAs to be able to help out and provide some of the information an owner-operator might need, then recommend the owner-operator do the filing him or herself.

Some other special cases to consider.

Larger businesses are exempt. Exemptions to reporting exist not only for particular types of businesses, including many financial institutions, but also a large swath of "large operating companies. That's right, the FinCEN program specifically targets small entities .
Any small fleet business that reaches the level of 20 full-time employees and can demonstrate $5,000,000 in revenues annually can avoid the reporting requirement.
Inactive entities. If you're not currently operating your trucking business yet haven't officially closed down the LLC entity, for instance, you're technically still subject to the reporting requirement if the business was created after January of 2020.

Say you're an owner who incorporated February 1 of 2020, "lived the high life" during the COVID pandemic spot-market highs then got out in 2022 or 2023, You've still got to report.

The FinCEN Small Entity Compliance Guide provides the following checklist for inactive entities to help determine if they qualify for the what's dubbed the "Inactive Entity" exemption.

The entity was in existence on or before January 1, 2020 – Yes or No
The entity is not engaged in active business – Yes or No
The entity is not owned by a foreign person, whether directly or indirectly, wholly or partially. Foreign person” means a person who is not a United States person. A United States person is defined in Section 7701(a)(30) of the Internal Revenue Code of 1996 as a citizen or resident of the United States, domestic partnership and corporation, and other estates and trusts – Yes or No
The entity has not experienced any change in ownership in the preceding twelve (12) month period – Yes or No
The entity has not sent or received any funds in an amount greater than $1,000, either directly or through any financial account in which the entity or any affiliate of the entity has an interest, in the preceding twelve (12) month period – Yes or No
The entity does not otherwise gold any kind or type of assets, whether in the United States or abroad, including any ownership interest in any corporation, limited liability company, or other similar entity – Yes or No

Businesses must be able to check yes to all six of these conditions to qualify for the Inactive Entity exemption.

Please note there's always been some reporting to FinCEN from entities like private equity managers and hedge funds. The Financial Crimes Enforcement Network is not a new thing.

Yet, in the past they seemed only to go after bigger entities. This is the first time we have seen [the Network] applied to small entities so directly. This clearly shows that since the Democrats have come into power all they want to do is clap down & control small business.

The only way to combat this situation is to remove the current administration from office.

The National Registry of Certified Medical Examiners - UPDATE

Wed, 05 Jun 2024 19:13:47 GMT

It has been 16 years since the Federal Motor Carrier Safety Administration first attempted to stamp out fraud in driver medical certifications by building the National Registry of Certified Medical Examiners (NRCME).

Next year, if everything goes as planned, it will be fully implemented and drivers will no longer need to submit their medical certificates to the state licensing agency. So, after 17 years of waiting, what do motor carriers and drivers have to look forward to?

Earlier this year, the industry started to see some fruits of FMCSA’s labor when the Agency published a Federal Register notice announcing it would be removing nearly 16,000 certified medical examiners from the registry. Medical examiners were being removed for one of a few reasons:

They failed to establish a login.gov account and link it to their NRCME account;
They failed to take the required recertification training; or
Their medical license shows as expired in FMCSA’s database.

This move is our first glimpse into the true purpose and power of the NRCME and what the future might hold for commercial vehicle drivers and carriers. It demonstrates how FMCSA is working to leverage automated data collection and analysis tools to monitor the industry, to identify clear violations, and act.

This, in our opinion, is the low-lying fruit with which enforcement should start. In the future, we can expect FMCSA to more closely scrutinize medical exam results to mine for fraud and to potentially look for drivers engaging in excessive doctor shopping.

Another example of FMCSA improving its data collection and leveraging it to improve data quality and identify and address compliance problems is its rebuilding of the Unified Registration System.

This system, 15 years in the making, will soon start leveraging data authentication tools to scan for and quickly identify fraudulent behavior, inactive and/or chameleon carriers (those that evade enforcement action by registering the same motor carrier under a different DOT number) and take action to correct these deficiencies and/or revoke registrations.

FMCSA is clearly in the database game. From the Drug and Alcohol Clearinghouse to the Unified Registration System to the National Registry of Certified Medical Examiners, to the Training Provider Registry, the industry can surely expect FMCSA to continue to improve at using data it already collects to identify bad actors more easily and target them for improvement.

IFTA/IRP Overview

Wed, 05 Jun 2024 19:11:08 GMT

IFTA

IFTA license and decals valid in all jurisdictions
Quarterly tax filings, filed/with paid to base jurisdiction
Tax is based on fuel used and miles driven, by jurisdiction

IRP

Plate and cab card valid in all jurisdictions
Annual renewal filed, with base jurisdiction

“Qualified” Vehicles

Vehicles that exceed 26,000 pounds
Power unit with 3 or more axles
Combination exceeds 26,000 pounds gross combined weight

Fee Calculation

IRP – Based on % of miles and state/province plate fee
IFTA – Basen on miles/MPG and fuel tax rate

GPS Rules as of January 1

Ping required at least

Every 15 minutes for IRP
Every 10 minutes for IFTA
Latitude/longitude to 4 decimal places (0.0001) of each system reading
The data muse be accessible in an electronic spreadsheet format (XLS, XLSX, CSV or Delimited text file)

Manual vs Electronic Recordkeeping

Consequences of Inadequate Records

IFTA – Reduce Fleet fuel economy

To 4.00 MPG or 1.70 KPL or
By 20%

IRP – Penalty based on annual IRP registration

1st occurrence = 20%
2nd occurrence = 50%
Each additional occurrence = 100%

Record Retention

IRP – Up to 6 ½ years
IFTA – 4 years

Mileage Reports – Electronic (GPS)

Vehicle ID number/unit number
Date & time of each reading
Latitude & longitude
Electronic Control Module (ECM) odometer reading

Mileage Records – Paper

Date of trip
Trip origin & destination
Route of travel
Odometer/hub odometer or ECM readings
Total trip distance
Distance traveled in each jurisdiction
Vehicle ID number or unit number

Fuel Receipts

Date of purchase
Seller name & address
Number of gallons
Total amount of sale
Purchaser’s name & address
Fuel type
Vehicle number

Best Practices

Internal controls

Keeping appropriate records
Check accuracy
Consistency
Recordkeeping policy and train drivers
Use fuel cards to provide electronic fuel receipts that can be imported into your system
If using ELD data – do not purge GPS data.
Every mile is reportable after you put IFTA/IRP on your truck including
Empty deadhead
Personal use
Repairs
Spot check mileage
Keep a “Daily Trip Report” in the truck
Go Electronic
Do a gap analysis on your mileage

IRP or IFTA vs Safety Audit Compliance Review

Reasons For IFTA and IRP Audit

3% must be audited
Late returns
Amended returns
Missing information
Fuel economy and milage fluctuations
High refunds

Assessment Amounts

Thousands of dollars
Multiplied by balance of fleet & by total years
Be sure receipts & distance records include all required information

Gaps in Miles

Investigate within company
Try to recoup information
Be honest with auditors

State Weight Distance Tax

Connecticut
Kentucky
New Mexico
New York
Oregon

Expect an Audit if your Unified Carrier Registration (UCR) Changes

Wed, 05 Jun 2024 19:04:59 GMT

If your fee bracket has changed under the Unified Carrier Registration (UCR) program, make sure your records back up the new numbers for your fleet. States are required to perform audits each year on carriers who move from one payment bracket to a lower bracket. The goal is to verify that the carrier has properly deducted vehicles from its UCR payment.

How many vehicles do you own or operate?

Most carriers, freight forwarders, leasing companies, and brokers engaged in interstate commerce are subject to annual registration and fees under the UCR program. The fee structure is a bracket system, with the fees based on the number of commercial motor vehicles (CMVs) a carrier owns or operates.

A CMV is owned or operated by a carrier if the vehicle is:

Registered under federal or state law, or both, in the name of the carrier; or
Controlled by the carrier under a long-term lease during a vehicle registration year. A vehicle operated by a registrant under a lease of 30 days or less need not be included in the count.

The number of CMVs owned or operated and subject to fees is either:

Option A: The number reported on the most recently filed MCS-150 with the USDOT, or
Option B: The total number of CMVs owned or operated for the twelve-month period ending on June 30 immediately prior to the beginning of a given registration year.

Motor vehicles used solely in intrastate operations may be excluded from the vehicle count. This exclusion must be clearly documented (see “UCR-1 Form” below).

Determining your bracket

For a carrier, fees are based on the number of CMVs it owns or operates.

Fees are charged at the lowest bracket level for a:

Broker,
Leasing company (that is not also a motor carrier), or
Freight forwarder (that does not own or operate motor vehicles).

Brackets are defined as follows:

Proving your numbers

Carriers must retain two specific documents and provide them to the base state upon request:

UCR-1 Form: If you subtracted vehicles used exclusively for intrastate transportation when you registered for UCR, you must maintain a list of the vehicles you subtracted. To subtract a CMV under this option, during the UCR registration year:
The vehicle did not or will not travel outside the state;
The vehicle did not or will not carry property, waste, or recyclable material that originated outside the state or is destined for a location outside the state; AND
The vehicle was not or will not be registered under the International Registration Plan (vehicle must not have an apportioned plate).
UCR-2 Form: If you counted your vehicles using Option B (from above) and this count puts you in a lower fee category compared to Option A, you must keep a list of the vehicles covered by your UCR registration on Form UCR-2.

UCR registrants must keep UCR records for two years from the due date or filing date, whichever is later, plus any time period included as a result of state decisions or inquiries.

Key to remember: If your UCR fee bracket has changed – and especially if it is lower – make sure your records back up the new numbers for your fleet.

DataQs: What Is It? How Does It Work?

Wed, 05 Jun 2024 19:01:27 GMT

DataQs: What is it? How Does It Work? How Can You Increase Your Chances of Success?

DataQs is the online system for drivers, motor carriers, Federal and State agencies, and others to file concerns about Federal and State data maintained in MCMIS and released to the public by FMCSA.

It provides an internet website to accept RDRs, and supporting documentation (fax and/or file upload capability).
It acknowledges receipt of RDRs (Request for Data Review).
It notifies FMCS and/or State personnel when RDRs are received.
It accepts FMCSA and/or State postings and responses related to RDRs.
It provides automated notification capability including receipt of input and status changes
It provides reporting capability based on pre-set parameters.
It tracks RDRs from submission through resolution.

DataQs system users may request the review of various type of data including:

Crash data reflecting a CMV involved in a reportable crash;
Data documented during a roadside safety inspection;
Data collected during investigation, registration data;
Data included in complaints filed against household goods (HHG) carriers via the National Consunber

Data that Could Need Correction

Crash is not mine (wrong carrier)
Crash is not DOT-recordable
Crash is a duplicate (already in the system)
Police crash/accident report contains an error
Crash was NOT preventable
Crash matches the categories in the CPDP & want a preventability determination

Roadside Inspection Reports & Violations

Never received a copy of the roadside inspection report
Roadside inspection is not appearing in my data
Inspection is not mine
Inspection is listed multiple times
Inspection contains incorrect information
Violation was incorrect
Violation was incorrectly recorded

DOT audits/ investigations

Data or violation related to an audit or investigations is incorrect. (Please note that there are different due process mechanisms for challenging failed new-entrant safety audits, carrier safety ratings, and enforcement action penalties & fines)

Other

Registration, insurance & OP-1 information being displayed is not correct. First compare the data to your last MCS-150 filing, if it is incorrect, then file a new MCS-150 rather than using DataQs
Household mover complaints
Not mine
Duplicate complaint

Filing a DataQs

You must register and file DataQs on the FMCSA Data portal:

It very important that all information is included upfront.
The process can take 3-6 weeks or longer for a ruling.
Crash DataQs tend to carry the highest scores and focus on none preventable.
Police Report (all pages)
Accident Report (all pages)
Drug and Alcohol (test results – for fatalities)
Video clips (if available)
Pictures (if available)

Vehicle Maintenance should be a focus especially in rental and leased equipment. Remember, the Owner is responsible for maintenance.

It is also important to know that if additional data is requested, you have fourteen (14) days to respond.

The Crash types that are accepted are:

Struck in the rear
Struck on side at rear
Wrong direction
Illegal turn
Parked or legally stopped
Suicide
Rare and unusual
Failure of another vehicle to stop
Under the influence
Medical issue/distracted driving
Cargo/equipment debris
Infrastructure failure
Animal strike

First Step is to Find Your Data

The easiest places to see your carrier, roadside inspection, & crash data:

Company Snapshot in SAFER: https://safer.fmcsa.dot.gov/CompanySnapshot.aspx
CSA’s SMS: https://ai.fmcsa.dot.gov/SMS

If you log in as a carrier, you will see all data (driver names included on inspections & crash reports)

FMCSA’s Portal: https://portal.fmcsa.dot.gov/login

You will need a Portal Account will provides the largest body of data.

Second Step: Yours versus Theirs

Compare your data to their data. If data does not match, determine why
Look for data that needs to be corrected

Third Step: File DataQs RDR

Review the details of the inspections, violation or crash, the related regulation, and interpretations
Formulate your argument
Locate your supporting documentation such as;
Crash report
Roadside inspection report
Regulations
Vehicle list, driver list, towing invoice, photographs, dash cam video

Final Step: Enter your “request for review” into the system

Log into the DataQs system and:
Select the correct “broad category” of the RDR (roadside, crash, etc)
Select the detailed type of the review you are requesting
Enter details related to the event. Note the system has “stops” built into it to prevent errant filings
Enter the narrative
Concise, to the point, and supported
Make it clear what you want reviewed or changed
Keep opinions out of it
Upload supporting documents
If you successfully challenged a citation related to a violation on a roadside inspection report, upload the court documents as your supporting documents
If the citation was dismissed, the violation will be removed
If citation was reduced, the severity weight will be set to one
DataQs “logs” your request and forwards it to the federal office or the state that was involved
Federal or state investigator is assigned and reviews and investigates
Investigator will talk to the officer involved, so your argument will need to overcome the officer’s version
The Feds are not involved in this if you are challenging state data (roadside inspections & crashes are usually managed by the state)

RESULTS

More information may be needed
Carrier must reply to request
No reply, RDR is closed with no action
If investigator agrees with request
The federal office or state makes the data change
If the investigator disagrees
Closed with no action
Can Appeal, but you need to provide additional information

REMEMBER, this is NOT a “Court of Law”

YOU must PROVE the data is wrong
The violation did not occur
The crash was not yours or not recordable
The investigator will not:
Dismiss a violation on a technically
If a technical error was made, the investigator will correct it
Reduce the violation to a lesser one
Take sympathy on you or the driver

Successful DataQs Strategies

Only dispute when you are able to prove your case
Have and upload supporting documents to dispute the violations
Shop receipt from the same day or within a few days
Towing receipts, statement from the tow company, repair invoices, pictures
Know your data
Make a sound and solid argument in your narrative
Remember, you are trying to convince an investigator that the officer or official report was wrong, so you have to present a compelling argument that is supported
The burden of proof is on you – the carrier

TIPS

Be selective in what you file
Research before you jump into a request – do your homework
Remember to keep the facts separated from your opinion - just because you disagree with the violation does not mean anything
What you can prove is what will carry the day
Need regulations, facts, evidence to back up your RDR
Adjudicated citations related to the violation is the best support

Guaranteed to be Unsuccessful

“The officer should have given my guy a break”
“The officer was being overly picky”
“They normally let that go”
“The truck was just inspected in the neighboring state (or in our Shop) and no defects were found”
“The driver was able to fix it before leaving”
“The crash report was done wrong”
“Get it out, it’s wrong”

Why Fleets Opt Not to Use the DataQs program

Too complex
Too time consuming
Everyone they know that tried it has failed
It will cause the FMCSA and officers on the road to focus in on me in the future
It will cause FMCSA to come and audit me

Future Improvements

FMCSA is proposing an additional Appeal level

FMCSA would review appeals having to do with rules, how rules are applied, and interpretations
Will not overrule a decision based on established facts for example: A driver was over hours
Driver was or was not over hours (FMCSA will not review if that has already been determined)
Carrier or driver claims the driver was using an exception that allowed extra hour correctly and the officer did not accept it (FMCSA will review)

Another ELD Removed From FMCSA's List

Wed, 05 Jun 2024 18:56:00 GMT

A device was recently removed from the FMCSA’s list of registered electronic logging devices (ELDs):

ELD MANDATE PLUS.

Due to a failure to meet the minimum requirements of 49 CFR 395, subpart B, appendix A, the FMCSA has moved these devices to its “revoked devices” list as of May 21, 2024.

Many ELD providers remove their devices from the list voluntarily, but the FMCSA has the authority to remove any ELD that does not comply with regulations.

Next steps for commercial carriers

Commercial carriers who use these ELD MANDATE PLUS devices must replace them with compliant ELDs before July 20, 2024, and:

Stop using the two revoked devices,
Switch to paper logs/logging software until compliant hardware is installed, and
Look out for notice from FMCSA if these devices become compliant again.

During the 60-day replacement period, the FMCSA has instructed safety officials to review affected drivers’ hours-of-service data using logging software, paper logs, or the ELD display.

After July 20, 2024, any motor carrier that continues to use the revoked ELD MANDATE PLUS devices will be considered operating without an ELD. Drivers will be placed out of service and cited for “No record of duty status” (395.8(a)(1)).

Fines for Common FMCSR Violations

Wed, 05 Jun 2024 18:54:11 GMT

An analysis of the most recent DOT enforcement data reveals the price that motor carriers are paying for failing to comply with federal safety regulations.

The following table shows the top 15 most-commonly-fined violations cited during FMCSA investigations and audits from 2020–2023, including the average penalty as well as the top penalty paid by any company in that four-year span.

NOTE: The list is based on all cited violations that resulted in a fine after an audit. Other common violations are not included if they did not result in a monetary penalty. For example, the most common violation found during audits is for violating state/local laws, cited under 49 CFR 392.2, but such violations do not result in as many post-audit fines as the violations shown below.

Variables at play

How does the FMCSA decide the amount of a fine? The maximum amount is set by law, but motor carriers rarely pay that much. To determine fines, the FMCSA uses a software program that takes the following factors into consideration:

What the specific violation was,
How “grave” or serious the violation was,
How culpable or blameworthy the motor carrier was,
Whether the motor carrier has a history of prior offenses,
The level of fine that would affect the motor carrier’s ability to continue to do business, and
“Such other matters as justice and public safety may require.”

In some cases, the FMCSA also looks at whether the motor carrier made a “good faith effort” to achieve compliance after the violations were uncovered. That’s why taking action in such situations can be vital.

What about roadside fines?

Fines and other penalties assessed as a result of a roadside inspection are based on state statutes. These statutes may apply to commercial vehicles specifically, such as fines for violating hours-of-service limits, or all drivers, such as fines for speeding or driving with defective brakes.

Each state is free to set its own penalty structure. As a result, the fine for the same basic violation can vary widely from state to state.

Key to remember: Violations of the Federal Motor Carrier Safety Regulations can be costly when discovered during a DOT audit or investigation. Be sure to make a good-faith effort to comply at all times, but especially when a violation is discovered.

What is CSA?

Mon, 03 Jun 2024 19:52:40 GMT

FMCSA launched its Compliance, Safety, Accountability (CSA) program on December 13, 2010. This program is designed to improve large truck and bus safety and ultimately reduce crashes.

The centerpiece of CSA is the Safety Measurement System (SMS), which analyzes all safety-based violation from inspections and crash data to determine a commercial motor carrier’s on-road performance.

SMS evaluates the safety of individual motor carriers by considering all safety-based roadside inspection violations (not just out-of-service violations) and State reported crashes, using 24 months of performance data.

CSA has Three (3) Elements.

The Safety Measurement System (SMS)
Improves how FMCSA prioritizes carriers for interventions
Includes more safety data; all safety-based violations found during roadside inspections
Organizes safety behaviors unto seven (7) Behavior Analysis and Safety Improvement Categories (BASICs)
Intervention Process
Creates new, more efficient ways for FMCSA to interact with carriers and help bring them into compliance (e.g. warning letters and Onsite Focused Investigations)
Safety Fitness Determination (SFD)
Current safety rating process requires an Onsite Investigation

The SMS organizes carrier roadside inspection, crash, & investigation information into seven (7) BASICs. Your safety performance affects your company’s SMS results and your Pre-Employment Screening Program (PSP) record

The Seven (7) BASICs incorporate violation of the Federal Motor Carrier Safety Regulations (FMCSRs) and the Hazardous Materials Regulations (HMRs), and are organized to focus on behaviors that may cause or increase the severity of crashes.

UNSAFE DRIVING BASIC – Operation of commercial motor vehicles ((CMVs) in a dangerous or careless manner. Examples: speeding, reckless driving, improper lane changes, texting while operating a CMV and not wearing safety belt.
CRASH INDICATOR BASIC – (not publicly available). Historical pattern of crash involvement, including frequency and severity, This BASIC is based on information from State reported crashes that meet reportable crash standards, Crashes found to be not preventable by FMCSA’s Crash Preventability Determination Program (CPDP) will be listed on the SMS website as “Reviewed-Not Preventable” but excluded from a carrier’s measure and percentile in the Crash Indicator BASC .
HOS COMPLIANCE BASIC – Operation of CMVs by drivers who are ill, fatigued, or in noncompliance with the HOS regulations. This BASIC included violation of regulations pertaining to records of duty sats (RODS) as they relate to HOS requirement.
VEHICLE MAINTENANCE BASIC – Failure to properly maintain a CMV and prevent shifting loads, spilled or dropped cargo, and overloading of a CMV. Examples: inoperative brakes, lights, and other mechanical defects, improper load securement, failure to make required repairs.
CONTROLLED SUBSTANCES/ALCOHOL BASIC - Operation of CMVs by drivers who are impaired due to alcohol, illegal drugs, and misuse of prescriptions or over-the-counter medications. Examples: use or possession of controlled substances or alcohol, failing to implement an alcohol and/or controlled substance testing program. As of August 2022, FMCSA reported that 90,000 commercial drivers are currently on prohibited status due to driving under the influence.
HM COMPLIANCE BASIC (not publicly available) – Unsafe handling of Hazardous Materials on a CMV. Examples: failing to mark, label, or placard in accordance with the regulations, not properly securing a package containing HM, leaking containers, failing to conduct a test or inspection on a cargo tank when required by the United States Department of Transportation (U.S. DOT).
DRIVER FITNESS BASIC – Operation of CMVs by drivers who are unfit to operate a CMV due to lack of training, experience, or medical qualifications. Examples: failing to have a valid and appropriate commercial driver’s license (CDL), being medically unqualified to operate a CMV, failing to maintain driver qualification files.

Final Analysis

You have to remember that this is where your insurance companies, the brokers you deal with and your customers most likely will turn to for their due diligence to decide whether or not they are going to raise your insurance rates or even do business with you because they do not want to get sued for the negligence hiring of a motor carrier.

This system is your badge of honor. It reflects how who you are, and what kind of business you run.

Shift happens: Make sure drivers are properly trained on cargo securement

Mon, 03 Jun 2024 19:49:02 GMT

Tucked away in the driver qualifications regulations is a little-known reference to cargo securement.

It may seem out of place in 391.13, but motor carriers are required ensure that drivers are fully qualified when it comes to cargo securement. They must know how to properly secure cargo by way of training, experience, or both.

When vetting a driver applicant, a Pre-employment Screening Program (PSP) report will show whether the driver has a history of cargo securement violations. The PSP report provides the past three years’ worth of roadside inspections.

Driver orientation would be an ideal time to provide training or refresher training, including seasoned drivers. Even if a driver has years of experience and knows the proper securement protocols, it doesn’t hurt to reinforce them and stress that they must be followed.

A scan of your roadside inspection reports will reveal your existing drivers’ knowledge and compliance with Subpart I of Part 383.

How often are carriers cited for cargo securement violations?

The top cargo securement violations found during roadside inspections in 2023 included:

Over 13,000 citations for 393.100(b), Leaking/spilling/blowing/falling cargo;
Almost 7,000 citations for 393.110(b), Insufficient tiedowns to prevent forward movement; and
Over 6,500 for 393.104(F)(3), Loose or unfastened tiedown.

Even though the number of citations may appear low in comparison to other vehicle-related violations, it is a serious risk. Inadequately or improperly secured cargo can result in deadly consequences.

American Cargo Securement

wayne@ntassoc.com (Wayne Schooling) — Mon, 06 May 2024 18:48:48 GMT

Part 1 - American Cargo Securement

Cargo and equipment carried on a commercial motor vehicle (CMV) must be loaded and secured in a way that prevents it from shifting on or within the vehicle or from leaking, spilling, blowing, or falling from the vehicle.

Scope

These requirements apply to CMVs operated in interstate commerce. This includes:

Regulatory citations

49 CFR 393, Subpart I — Protection against shifting and falling cargo

Key definitions

Anchor point: Part of the structure, fitting, or attachment on a vehicle or article of cargo to which a tiedown is attached.
Commercial motor vehicle (CMV): A self-propelled or towed motor vehicle used on a highway, in interstate commerce, that meets any one of the following criteria:
Has a gross vehicle weight rating (GVWR) or gross combination weight rating (GCWR), or gross vehicle weight (GVW) or gross combination weight (GCW), of 10,001 pounds or more, whichever is greater; or
Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
Is designed or used to transport more than 15 passengers (including the driver), and not used to transport passengers for compensation; or
Is transporting hazardous materials of a type or quantity which requires placarding.
Dunnage: All loose materials used to support and protect cargo.
Dunnage bag: An inflatable bag intended to fill empty spaces between articles of cargo or articles of cargo and the wall of the vehicle.
Edge protector: A device placed on the exposed edge of an article to distribute tiedown forces over a larger area of cargo than the tiedown itself, to protect the tiedown and/or cargo from damage, and to allow the tiedown to slide freely when being tensioned.
Tiedown: A combination of securing devices which forms an assembly that attaches articles of cargo to, or restrains articles of cargo on, a vehicle or trailer, and is attached to anchor point(s).
Working load limit (WLL): The maximum load that may be applied to a component of a cargo securement system during normal service. The WLL is usually assigned by the manufacturer of the component.

Summary of requirements

Federal regulations specify how cargo and equipment on a CMV must be loaded and secured to prevent that cargo or equipment from:

Leaking, spilling, blowing, or falling from the vehicle; or
Shifting so much that it adversely affects the vehicle’s stability or maneuverability.

All cargo must be firmly immobilized or secured on or within the vehicle using:

Structures like floors, walls, and beams (as long as they are strong enough);
Tiedowns like straps, chains, or ropes;
Dunnage or dunnage bags;
Shoring bars; or
A combination of these.

Cargo that is likely to roll must be restrained by chocks, wedges, a cradle, or other equivalent means to prevent rolling.

Those items used to prevent rolling must not be able to become loose in transit.

To prevent shifting, articles of cargo that are placed beside each other and secured by tiedowns across the top must either be:

Placed in direct contact with each other; or
Otherwise prevented from shifting towards each other while in transit, such as by placing dunnage in between.

Tiedowns. Tiedowns, anchor points, and other components used to secure cargo must be in good shape. This means no damaged or weakened areas, including any cracks or cuts that will harm their performance. In addition:

Tiedowns cannot be knotted;
Repairs must be done in accordance with manufacturing standards;
Tiedowns must be attached and secured in a way that prevents them from becoming loose, opening, or releasing while in transit; and
Strong edge protectors must be used to protect tiedowns when they would be subject to abrasion or cutting at the point where they touch cargo.

Aggregate working load limit (WLL). Tiedowns must be strong enough to secure the load. This is determined by calculating the “aggregate WLL” of the tiedowns used to secure an article or group of articles. The aggregate WLL must be at least one-half times the weight of the article(s) being secured. For example, if an item of cargo weighs 20,000 pounds, the combined WLL of the tiedowns used on that cargo must be at least 10,000 pounds.

You calculate the aggregate WLL by adding up:

One-half of the working load limit of each tiedown that goes from an anchor point on the vehicle to an anchor point on an article of cargo;
One-half the working load limit of each tiedown that is attached to an anchor point on the vehicle, passes through, over, or around the article of cargo, and is then attached to an anchor point on the same side of the vehicle; and
The full working load limit for each tiedown that goes from an anchor point on the vehicle, through, over, or around the article of cargo, and then attaches to another anchor point on the other side of the vehicle.

Usually, the WLL of a tiedown is marked on the device by the manufacturer. If it is not listed on the device, the working load limits listed in the tables in 393.108 must be used. Note that an unmarked chain is assumed to be Grade 30.

Minimum number of tiedowns. Finally, the minimum number of tiedowns needed for an article of cargo depends on the cargo’s weight, length, and placement.

When an article IS NOT blocked or positioned to prevent forward movement by a header board, bulkhead, other secured cargo, or other appropriate blocking devices, it must be secured by at least:

One tiedown for articles five feet (1.52 meters) or less in length, and 1,100 pounds (500 kg) or less in weight;
Two tiedowns if the article is:
Five feet or less in length and more than 1,100 pounds in weight, or
Longer than 5 feet, but less than or equal to 10 feet (3.04 meters) in length, irrespective of weight;
Two tiedowns if the article is longer than 10 feet and one additional tiedown for every 10 feet of article length, or fraction thereof, beyond the first 10 feet of length.

If an article of cargo IS blocked, braced, or immobilized to prevent forward movement, it must be secured by at least one tiedown for every 10 feet of article length, or fraction thereof. For example, a 26-foot item of cargo placed against a bulkhead must be secured with at least three tiedowns (and the aggregate WLL of those tiedowns must be at least one-half of the cargo weight).

Front end structures. Front-end structures are not required on a CMV. However, if a front-end structure (like a bulkhead or headerboard) is used to prevent forward movement of cargo, then that structure must meet the standards in 393.114.

Commodity-specific rules. Federal regulations include specific securement rules for the following commodities. These rules must be following in addition to the rules for general freight as described above.

Logs: 393.116
Dressed lumber and similar building products: 393.118
Metal coils: 393.120
Paper rolls: 393.122
Concrete pipe: 393.124
Intermodal containers: 393.126
Automobiles, light trucks and vans: 393.128
Heavy vehicles, equipment and machinery: 393.130
Flattened or crushed vehicles: 393.132
Roll-on/roll-off or hook lift containers: 393.134
Large boulders: 393.136

En route inspections. After the start of a trip, drivers must make sure that their cargo remains secured. They must do this within 50 miles of the start of the trip, and then again:

Whenever they make a change of duty status;
After driving for three hours; or
After driving for 150 miles, whichever occurs first.

This en-route inspection is not required for a sealed load that is not to be opened, or if checking the cargo is impracticable.

Part 2 - Canada Cargo Securement Requirements

To help create uniformity regarding the cargo securement requirements, the Canadian Council of Motor Transport Administrators (CCMTA) has developed National Safety Code (NSC) Standard 10, Cargo Securement. This standard is adopted by reference in the majority of the Canadian jurisdictions and was last updated June 2013.

Scope

The standard applies to a vehicle or combination of vehicles that transport cargo on a highway and that exceed a registered gross vehicle weight of 4,500 kilograms. The standard also applies when an intermodal container is used to transport cargo.

Cargo tiedowns

Cargo tiedowns are restraining devices like chains, straps, or ropes that are used to secure items to a commercial motor vehicle so they do not shift or fall from the vehicle.

Scope

The requirements for cargo tiedowns apply to motor carriers and their commercial motor vehicle drivers.

Cargo Securement

Scope

Beware the ‘Blind Zone’ When Unloading Cargo

Mon, 06 May 2024 18:41:56 GMT

A truck driver’s recent death at a construction site serves as a heartbreaking reminder of the dangers that cargo unloading can bring.

The 63-year-old driver was crushed by a 2,500-pound crate of roofing materials that fell off the side of his flatbed trailer as he was walking towards the cab. The tragic incident could have been avoided if the truck driver and the forklift operator unloading the cargo had taken basic precautions.

A Series of Mistakes

The driver had asked construction workers at the site if they would help unload his trailer using their telehandler forklift. A carpenter — uncertified in forklift operation — agreed to help. As he lifted two 56-foot-long wood crates on the passenger side of the trailer, the truck driver walked around to the driver’s side, out of view, so he could pull the truck forward and out from under the cargo.

As the carpenter lifted the crates, a third crate was inadvertently pushed off the driver’s side of the trailer and onto the truck driver. By the time the construction crew lifted the crate using a skid steer, it was too late to save the driver’s life.

No Visibility

Investigators at the Washington construction site found several issues at the scene:

The crates were not raised off the trailer deck enough for the telehandler’s forks to slide underneath.
The telehandler operator and spotters had an obstructed view of the load and workers on the ground. They also assumed the driver was in his truck cab when they began unloading the trailer.
The driver was not wearing a hi-visibility vest or hardhat.

Safety vs. Complacency

The driver’s death serves as a stark reminder that complacency is the enemy of safety. The process of unloading the crates seemed so easy, what could go wrong? In this case — and many others like it — a lot.

To help prevent similar incidents, the Washington State Department of Labor & Industries recommends that employers:

Provide initial and refresher cargo-securement training for flatbed drivers that emphasizes:
Pre-task planning;
Maintaining situational awareness and clear visibility of workers, vehicles, equipment, and loads;
Wearing high-visibility clothing and personal protective equipment; and
Identifying blind zones around trailers.
Prohibit forklift operators from unloading freight on flatbed trailers unless they are trained and certified.

Put it in Writing

The agency also recommends that motor carriers create and enforce policies and procedures for unloading freight. As part of those policies, require drivers to:

Analyze the unloading area for hazards.
Take responsibility, if appropriate, for preventing other workers from being harmed by falling or shifting freight and movement of material handling equipment.
Place high-visibility warning signs at each end of the blind zone on the opposite side of the flatbed trailer from where the forklift or crane operator is unloading.
Mark the blind zone even when a spotter is present, and make sure no one enters it.
Verify signage and other safeguards before starting work.
Wait in the cab or a designated safe zone when other workers are unloading with forklifts or cranes.

Keep in mind: drivers can get so used to doing their jobs — expecting the same outcome every time — that they become a hazard to themselves. That’s why it’s important to “break up the routine” with safety meetings, toolbox talks, and follow-up training. Share stories like this one to remind drivers of how complacency can create unexpected dangers.

Key to remember: Cargo unloading can result in tragedy. Take action to ensure your drivers are vigilant when it comes to protecting themselves and others at the unloading site.

What are Officers Looking for During an Inspection When it Comes to Drugs and Alcohol?

Mon, 06 May 2024 18:39:56 GMT

Because drugs and alcohol are a focus area during International Roadcheck 2024, many people have been asking:

What exactly do officers do when it comes to checking for drugs and alcohol during a roadside inspection, and therefore during Roadcheck?
Do they give the driver a sobriety check?
Do they search the vehicle?

The answer is simple. The officer follows the regular roadside inspection process.

The regular process

As far as the drugs and alcohol portion of a roadside inspection (which is one of the focus areas of Roadcheck this year), during Step 3 of the North American Standard Roadside Inspection (Greet and Prepare the Driver), the officer is to assess the driver for any signs of impairment (regulations are 392.3, 392.4 , and 392.5 ). The signs include any of the indicators officers normally look for when in contact with any driver, such as:

Slurred speech
Inappropriate responses
Inability to focus, lack of attention
Inability to remain awake
Unsteady gait,
Odors, etc.

This assessment will continue into Step 4 of the inspection (the Interview), and to a lesser degree continue as the inspection goes on.

If, based on the signs the officer observes the officer can develop probable cause the driver is impaired, the officer will conduct a field sobriety test and/or a Drug Recognition Expert (DRE) exam.

During the entire inspection (starting at Step 3), the officer will also be looking for the presence of drugs or alcohol in plain sight in the cab. This involves the officer checking the visible area of the cab when on the running boards or standing next to the truck with the door open.

The key to getting through this portion of the inspection will be the driver:

Being alert and attentive
Responding appropriately
Following the officer's instructions
Not having drugs or alcohol in the cab

The Clearinghouse component

In Step 8 of the inspection (Examine Driver's License), the officer will examine the driver's license and run a motor vehicle record, or MVR on the driver (the license is collected in Step 5 of the inspection).

During this step, the inspector will also do a Clearinghouse check using CDLIS or a CDLIS-fed system. If the driver is listed is Prohibited , the driver will be cited and placed out of service (regulation is 392.15 ).

The key to passing this part of the inspection is to make sure drivers know and understand the drug and alcohol requirements and the Clearinghouse (no drugs, no alcohol within four hours of coming on duty, no alcohol in your system, no unmanifested alcohol in the vehicle, etc.).

Also, make sure the company is doing the annual queries on all CDL drivers. As well as showing if there is an issue, the pre-hire and annual queries trigger "push" notifications from the Clearinghouse. These push notifications notify a carrier when a driver queried in the previous 12 months has had information entered into the Clearinghouse on them (and prompt a query on the driver).

Key to remember: During every roadside inspection, the officer will assess the driver for signs of impairment and check the driver’s status in the Drug and Alcohol Clearinghouse. Make sure drivers are aware of this and prepared for it.

Loaded and locked: Avoiding Cargo Securement Compliance Traps

Mon, 06 May 2024 18:38:02 GMT

Cargo securement is a complex and challenging topic. While there’s information out there on how many chains or straps are required for given bits of cargo, drivers often fail to observe some of the intricacies. Seemingly straightforward loads can spell trouble for drivers not well versed on the rules.

To add to the complexity are jurisdictional compliance interpretations and even core differences between the U.S. and Canadian regulations. Each country has its way of writing and applying regulations and the cargo securement regulations in each country differ slightly.

Let’s take a closer look at a few of the potential compliance traps in the United States and Canada.

Trap 1: Unmarked tie-downs.

Canadian legislation requires all tie-down devices and assemblies to be marked with a working load limit (WLL). For synthetic-web straps, this rating can be stenciled or labeled. Chains, hooks, and load binders must have the rating embossed on the product.

Here is where it can go wrong, though. If a piece of cargo requires four straps and a driver has four brand-new, right-out-of-the-box straps with a nice new stenciled WLL on the strap, the driver is good to go! Then, since the driver might have a couple of extra straps, the driver might think, “Why not put on an extra one just to be safe?”

The driver can use an older strap in good condition, but what about a frayed label that no longer shows its WLL? That driver will get a ticket for that bad strap and can be placed out of service. Drivers can be charged for using an unmarked strap even though they meet the WLL requirements with the four new straps.

In the United States, however, tie-downs are not required to be marked. Any unmarked tie-down will be granted a default WLL based on the width of the strap or the type of chain.

Trap 2: Load securement checks.

Another common oversight is drivers not logging required load inspections. According to National Safety Code (NSC) Standard 10, securement devices must be inspected for tightness and load conditions no more than 80 kilometers from where the cargo is loaded, and then reinspected at every change of the driver’s duty status, or if the vehicle has been driven more than three hours, or more than 240 kilometers. Similar rules apply in the United States.

To inspect the load means leaving the driver’s seat, which under hours-of-service regulations requires a change of duty status to be recorded. The bottom line is your drivers must indicate where and when these load securement inspections take place to remain compliant with the cargo securement and hours-of-service rules.

Trap 3: Minimum number of tie-downs.

Drivers are expected to know the basics of load securement and how to calculate the minimum number and placement of tie-downs required.

The minimum number of tie-downs in Canada depends on the length, weight, and shape of the cargo, and the type and strength of the securing devices. In general:

For cargo that is prevented from forward movement (blocked) by a headboard, bulkhead, other cargo, or other appropriate blocking device, one tie-down for every 3.04 meters (10 feet) of length or part thereof is required.
For cargo that is not prevented from forward movement, two tie-downs are required for the first 3.04 meters (10 feet) of length, and one additional tie-down for every additional 3.04 m (10 feet) of length or part thereof.
The minimum working load limit for each tie-down must be at least 50 percent of the weight of the cargo being secured, or the aggregate working load limit of all tie-downs must be at least the weight of the cargo being secured.

There are also specific requirements for different types of cargo, such as logs, metal coils, concrete pipes, vehicles, etc.

The Federal Motor Carrier Safety Administration (FMCSA) has also set the minimum number of tie-downs required for cargo securement in the US dependent on the length and weight of the cargo. For example, one tie-down if your cargo is shorter than 5 feet and weighs less than 1,100 pounds.

Trap 4: Dunnage or cargo?

Canada and the U.S. rules are very different here. The U.S. recognizes dunnage and bits of auxiliary equipment such as spare mud flaps, ladders, jugs of oil, or windshield washer fluid, as not being cargo and simply requires that they be “secured.” Canada’s National Safety Code Standard 10, however, defines cargo as everything not physically part of the truck or bolted to it. An unsecured windshield washer jug wedged between the fuel tank and the frame rail could net a $867 fine in Alberta.

Another item that you might not think falls under the cargo securement regs in Canada is gravel and debris on the deck or frame of the truck, trailer, or cargo. You can’t secure it, so the only option is to get it off the trailer — because if it’s on the truck and not tied down, it’s considered unsecured cargo.

Avoid the cargo securement traps.

While disparate regulations cause their share of headaches, drivers are more likely to wind up with a ticket and perhaps an out-of-service violation because of common errors and oversights.

Unfortunately, it is very common for drivers to take to the road without properly tying down freight. Whether you are the owner of a private vehicle or a commercial fleet, you are always responsible for the freight you or your employees are carrying.

Key to remember: Ensure your drivers understand the cargo securement standards and regulations of the jurisdiction in which they’re operating.

What Happens if a Freight Broker Can't Pay its Motor Carrier Bills?

Mon, 06 May 2024 18:35:52 GMT

You’re a small motor carrier, and you’ve been trying unsuccessfully to get payment from a freight broker for months. What can you do?

That’s the situation many carriers have found themselves in, as the freight recession takes its toll on freight brokers as well as trucking companies.

Illinois-based Armada Transport, for instance, has been trying to get paid more than $22,000 owed to them by third-party logistics provider Elite Transit Solutions, which has laid off nearly all its staff.

Federal law requires brokers and freight forwarders to have a minimum of $75,000 in financial security that carriers are supposed to be able to make a claim on if they haven’t been paid. This financial security is commonly provided through a third party via surety bonds, also called freight broker bonds.

But what happens if there’s more in carrier claims than $75,000? And what if that surety bond gets cancelled? According to the Federal Motor Carrier Safety Administration website, Elite Transit’s surety bond with Allegheny Casualty Company will be canceled as of Nov. 22.

We reached out to J.D. Weisbrot, managing director of Risk Strategies’ commercial surety division, for more information on broker bonds and what a motor carrier can do in this situation.

Weisbrot has been doing this for 23 years. Previously he was president and chief underwriting officer for JW Surety Bonds, (an NTA Service Provider) which was purchased earlier this year by Risk Strategies. His division, he says, is the largest producer of freight broker bonds in country, representing 40% of the entire marketplace.

What Does a Surety Bond Cancellation Mean?

All surety bonds have a cancellation provision, Weisbrot explained. Unlike regular insurance that you can cancel immediately, a freight broker surety bond has a 30-day cancellation provision. So, if the insurance company providing the bond cancels it on October 15, it won’t fully cancel until 30 days after that.

At that point, under federal regulations, there is a 60-day window where claimants can make a claim upon the bond.

But what if the claims are more than the bond is worth?

“This often happens when a freight broker hits financial failure,” Weisbrot says. “Once all the claims have come in during that 60-day window, the surety company will analyze all the claims, see which ones are legitimate, and any legitimate claims get paid out on pro rata basis. It’s not first-come first-served, it doesn’t matter if you’re first or last.

“Say the total claims are double the bond amount, everyone would get 50 cents on the dollar,” Weisbrot explains. “The worse the damage is, the less everyone will receive.”

“It doesn’t matter where you are in line, as long as you’re in line.”

This scenario “unfortunately is not uncommon these days,” Weisbrot says. “Transportation is currently in recession and has been since September of last year, and we’ve seen a lot of freight brokers go out of business this year.”

What Carrier Claims Can Be Denied?

“We probably see up to 20 claims a day,” Weisbrot says. “And a lot of those claims are resolved.”

But there are also a number of reasons those claims could be denied by the insurance/surety company providing the broker bond.

1. The payment is not overdue.

“A lot of carriers are in the same cash crunch as the brokers and looking to get paid quickly,” Weisbrot says. “I’ve seen agreements where the broker has to pay in 30 days and the carrier is making a claim on the 15th because they’re nervous they’re not going to get paid.”

2. The claim involves an exempt commodity.

The most common reason claims on broker bonds are denied, Weisbrot says, is that under federal law, here is a long list of exempt commodities.

Composite Commodity List Of Administrative Ruling No 119

“There’s a huge list,” he says, of products the federal government has said these are not claimable, often food products such as grain, onions, or eggs.

“A claim could be denied even if that carrier is owed the money.”

3. It’s not an interstate delivery

Weisbrot explains that claims can be denied if the load is an intrastate delivery instead of an interstate delivery.

4. There is a bona fide dispute between the companies

Weisbrot gives an example of a carrier that has made a claim that appears legitimate, but when the surety company contacts the broker, they learn that the carrier agreement has a provision for reduction of payment for late delivery. If the load was supposed to be there in two days, but it took four days, and the agreement says the broker will withhold $250 for each day it’s late, the broker has a legitimate reason to withhold $500 from that payment.

“If you still disagree, you have to take this into a court of law,” he says.

Raising Required Insurance Minimums

The minimum broker financial requirement was increased from $10,000 to $75,000 by the Moving Ahead for Progress in the 21st Century Act (MAP-21) a decade ago, but many say it’s clearly not enough.

The FMCSA has proposed changes to freight broker and freight forwarder financial responsibility requirements to try to address the problem of brokers that don’t pay motor carriers.

How ELDs are Audited

Mon, 06 May 2024 18:30:40 GMT

Log falsification is a common and potentially expensive violation, with fines reaching into the thousands of dollars per occurrence. Despite widespread use of electronic logging devices (ELDs), falsification remains a major problem. In fact, it was the second most common violation found during audits last year.

This means you need to look for it, but how? Details from the FMCSA’s audit playbook reveals key methods you can use today.

The DOT playbook

FMCSA investigators are given a training manual — over 1,000 pages long — that provides step-by-step instructions for performing audits, finding violations, and issuing penalties. Included are instructions for weeding out ELD falsification.

Follow these steps — taken from the FMCSA’s own how-to manual — to audit for false ELD records like a pro:

Review login/logout activity and any adjacent, unassigned driving time. This can reveal whether the driver has used another driver’s login to get additional hours or has not logged in properly to avoid violations.
Check the location where the driver went on duty or began driving and make sure it matches the location where the driver earlier went off duty or into the sleeper. If the locations differ and there’s no co-driver, the log may be false.
Check whether all non-driving periods began and ended in the same location by comparing beginning and ending odometer readings. If they differ but the driver’s log indicates a non-driving status, the driver may have falsified the log if no other drivers were present.
Look for off-duty driving (personal use) and ensure that it meets the FMCSA’s personal-conveyance guidelines. Check odometer readings for excessive use of personal conveyance, as defined under company policy.
Pay close attention to edits. Review the driver’s annotations and verify the edits were justified. Check the edited records against the unedited originals. Look for any edits of on-duty time to off duty or sleeper berth, which could allow the driver to exceed the 60/70-hour limit.
Review your ELD back-end system settings to make sure no thresholds were customized to any value not allowed in the regulations. For example, the speed threshold at which a vehicle is “in motion” can be no more than 5 mph. (Contact your ELD vendor if a setting doesn’t look compliant.)
Review any ELD malfunctions and data diagnostic events to identify possible tampering, and make sure malfunctions have been repaired.
Compare any available supporting documents and reports to the logs to verify that they are accurate. Pay special attention to any time that was logged off duty but which was actually spent performing an on-duty activity (refer to the definition of “on-duty time” in 395.2).

Other falsification

FMCSA auditors are also taught to look for certain patterns that can reveal an effort to falsify:

Drivers who log “off duty” for an entire day that is not normally an off-duty day. Auditors will check all available records to find evidence the driver was on duty, especially if the driver reached the 60/70-hour limit on the day before, i.e., the driver ran out of hours but needed to drive.
Drivers who log “off duty” for 10 hours immediately following 11 hours of driving, but who in fact continue to drive, often to reach home.
Drivers’ logs that consistently show 11-hour driving periods followed by exactly 10 hours off duty, or which consistently add up to 58 or 68 total duty hours on the driver’s 6th or 7th day of the period, or which show accumulated duty hours just short of 60 or 70 total duty hours and with little or no time shown as “on duty/not driving” for loading/unloading.
Concealment of part of a day’s work, especially by drivers who typically spend a lot of time performing non-driving tasks. This pattern of falsification can often be detected using dispatch records, shipping documents, and/or payroll records.

Additional considerations

If you find falsification, don’t ignore it. Take immediate steps to reprimand and coach the driver(s) involved.

A few additional steps can help ensure you pass an ELD audit:

Make sure your vehicle list specifies which vehicles have ELDs in them.
Verify that your ELDs still appear on the FMCSA’s ELD registry, at www.fmcsa.dot.gov/elds.
Pay attention to your ELD system’s violation reports and make sure violations are verified and addressed, especially when they’re significant or when patterns emerge (i.e., the same drivers having the same violations repeatedly).
Verify that drivers who claim an exception from the normal rules are actually eligible for it.
Be sure to explain all unassigned driving that cannot be assigned to someone, and strive to minimize it.

Did you know? The average FMCSA fine for log falsification is nearly $7,000!

Key to remember: The FMCSA’s auditor training manual explains how to check ELDs for falsification. Use those instructions to your advantage during self-audits and take action to prevent falsification and fines.

In Depth Review of The Corporate Transparency Act

Mon, 06 May 2024 18:25:27 GMT

In Depth Review by Emily Fons at Godfrey & Kahn

Effective January 1, 2024, U.S. companies including corporations, partnerships, and limited liability companies (LLCs) will be required to report beneficial ownership information to the Financial Crimes Enforcement Network (FinCEN), a branch of the U.S. Department of the Treasury.

The Corporate Transparency Act (CTA) was enacted by Congress in 2021 as an expansion of the anti-money laundering laws. The CTA introduces uniform beneficial ownership reporting requirements for new and existing companies that fall within the CTA’s definition of “reporting company.”

The CTA requires a reporting company to file reports identifying the company’s owners. The CTA authorizes FinCEN to collect that information and disclose it to authorized government authorities and financial institutions to help prevent money laundering, terrorist financing, corruption, tax fraud, and other illicit activity.

Despite some exceptions to the CTA that are discussed below, FinCEN estimates as many as 32 million entities will be required to report at the onset of the law, creating significant compliance requirements.

Compliance with the CTA is the responsibility of reporting companies, and engagement of Godfrey & Kahn does not include legal advice relating to any potential CTA reporting obligations, beneficial ownership or company applicant analysis, or other assistance relating to reporting requirements under the CTA unless we expressly agree to provide that advice.

A. Definitions

In discussing the CTA, the following definitions are important:

Reporting Company
A corporation, partnership, LLC, or any other similar entity organized under the law of a state, or a foreign entity formed under the laws of a foreign country and registered to do business in the United States.
Beneficial Owner
Any individual who (1) directly or indirectly exercises substantial control over a reporting company, or (2) directly or indirectly owns or controls 25 percent or more of the ownership interests of a reporting company.
Company Applicant
An individual who either directly files the document that creates or first registers the reporting company, and/or who is primarily responsible for directing or controlling the filing of the relevant document. There can be up to two company applicants per reporting company. If only one person was involved in filing the relevant document, then only that person should be reported as a company applicant.

B. Types of Exempt Entities

The CTA does not apply to all entities. Exemptions apply for 23 categories of entities, such as companies that are already subject to reporting regulations, like investment companies, insurance companies, tax-exempt entities, federal and state credit unions, and certain banks.

Additionally, “large operating companies,” defined as a company with at least 20 full-time employees, more than $5 million in gross U.S. sales, and an operating presence at a physical office within the U.S., are also exempt. Further, wholly owned subsidiaries of exempt entities are also exempt, but this exemption does not extend to subsidiaries of pooled investment vehicles (i.e., private equity funds).

C. Required Actions

When to File

The due date for the initial report depends on when the company was created.

If the company is created on or after January 1, 2024 , the initial report is due within 30 calendar days of the date the company is created. This 30-day deadline runs from the time the company receives actual notice that its creation or registration is effective, or after a secretary of state or similar office first provides public notice of its creation or registration, whichever is earlier.

Effective November 29, 2023: FinCEN has amended the deadline for the reporting of beneficial ownership information of newly created reporting companies (those created or registered on or after January 1, 2024) to allow reporting companies ninety (90) calendar days to file their initial reports, instead of the original 30-day deadline.

If the company was created before January 1, 2024 , the initial report is due no later than January 1, 2025.

Once a reporting company files its initial report, it has an ongoing commitment to update its beneficial ownership information within 30 calendar days of a change in beneficial ownership.

How to File

If a company is required to report its beneficial ownership information to FinCEN, it will do so electronically through a secure filing system available via FinCEN’s website. This system is currently being developed and is expected to be available before any reports are required to be filed.

Reporting Requirements

The CTA requires reporting companies to file specific information about their company, their beneficial owner(s) and their company applicant(s). The reporting requirements for each are listed below.

Reporting Company

Full legal business name
Any trade name or “doing business as” (d/b/a) name
Complete current street address of principal place of business
Jurisdiction of formation or initial registration (state or tribal)
Taxpayer Identification Number or Employer Identification Number

Beneficial Owner and Company Applicant

Full legal name
Date of birth
Complete current residential street address
Unique Identifying Number from an acceptable non-expired identification document such as a passport or driver’s license
An image of the identification document (that also includes a photograph of the individual)

Note: Only reporting companies formed or registered on or after January 1, 2024, will have to report information about their company applicants. Companies created or registered before January 1, 2024, do not need to report information about their company applicants.

D. Penalties for Non-Compliance

Both individuals and reporting companies are subject to civil and criminal penalties for failure to comply with their obligations under the CTA, which may include a fine of up to $500 for each day the violation continues, imprisonment for up to two years, or both.

E. Confidentiality of Reported Beneficial Owner Information (BOI)

FinCEN will store and maintain all reported BOI in the Beneficial Ownership Secure System (BOSS), which is still under development. The CTA imposes strict confidentiality, security, and access restrictions on the data FinCEN collects. The information reported to FinCEN will not be accessible to the public and is not subject to the Freedom of Information Act Requests. FinCEN is required to maintain the information until five years after the reporting company terminates or is otherwise dissolved.

F. Conclusion

Companies should begin preparing for compliance with the CTA by familiarizing themselves with the applicability of the reporting requirements and establishing protocols for identifying and collecting beneficial ownership information on an ongoing basis.

For companies involved in mergers and acquisitions, this is a new subject area for due diligence, and it will be important to consider a target’s compliance with its CTA reporting obligations.

We are closely following the development of the online reporting process and will update our clients as more information becomes available. If you have any questions in the meantime, please reach out to your Godfrey & Kahn attorney .

Inside Information on Removing Traffic Citations

Mon, 06 May 2024 18:17:57 GMT

Even though some Compliance, Safety, Accountability (CSA) scores for property-carrying operations are not visible to the public, the raw data is.

Members of the public, such as customers , driver applicants, and your insurance carrier , can view your roadside inspection and crash reports.

That’s why it is important to review your reports for accuracy and use DataQs to request corrections when necessary to improve your safety record.

Two areas that may impact your scores include adjudicated citations and post-crash inspection violations.

Removing adjudicated traffic citations

A citation associated with a roadside inspection can be removed from CSA scoring if the violation is dismissed. This removal is possible under the Federal Motor Carrier Safety Administration’s (FMCSA) adjudicated citations policy.

For any violation received during a roadside inspection:

If the driver is found “not guilty” or the violation is dismissed without a fine or punitive court costs, the FMCSA will remove the violation from the CSA scoring system if the driver or carrier submits a successful DataQs challenge.
If the driver is convicted on a lesser charge, the violation will not be removed from the CSA program database. Instead, it will have a note attached indicating “resulted in conviction of a different charge” and the severity will be reduced to 1.

But the policy does not result in an automatic update to your file since court records are not tied to the federal database. It requires a request from you via DataQs. DataQs is a mechanism set up by the FMCSA to request a review of safety data.

If you are not familiar with this complex DataQs procedure, the easiest way is to join the NorthAmerican Transportation Association whereby as a member you can enroll yourself or your drivers into a program called CDL Legal. Their attorney claim a 95% success rate to get your ticket reduced or dismissed altogether.

To have a dismissed violation removed, drivers and/or carriers must submit adequate documentation, which can include scanned copies of certified documentation from the appropriate court or administrative body or a direct web link to the judgment results on an official court or agency website.

Review post-crash roadside inspections

Following a crash, motor carriers should review the crash report and their CSA data. They need to ensure that any vehicle damage as the result of the crash is not mistakenly used in the CSA math.

Any vehicle violations discovered after a crash will be classified in one of two categories.

Those violations that were the result of the crash will be identified on the report with a “Y” in the Crash column on the roadside inspection report.
Those that were present prior to the accident will have an “N” in the Crash column of the report.

Only those with the “N” in the Crash column will be used in the CSA Vehicle Maintenance Behavior Analysis and Safety Improvement Categories (BASIC) scoring.

To confirm crash damage is not scored, check your CSA data in the Safety Measurement System (SMS). When you go into the Vehicle Maintenance BASIC, the report will be visible under the Inspection History and should have a zero in the severity weight column.

When you open the report, it will list the violations. However, it should indicate the violations are not included in the SMS and include the reason as being “Result of Crash.”

If you find the violations were entered incorrectly, you should use DataQs to correct the error.

Key to remember: A lot is at stake if your carrier is not monitoring its CSA data. You can bet others are watching your data, so you need to be monitoring it as well. Review roadside inspection and crash reports and file DataQs challenges, when applicable, to improve your safety record.

So, your best bet is to get professional help through the NorthAmerican Transportation Association.

See the featured article in the official 2024 United States Trucking Resource Guide at: https://ustruckingresourceguide.com/2024/

The When, How, Where, and What of Produce Season

Mon, 06 May 2024 18:15:15 GMT

Produce season will have a tremendous impact on not just reefer volume, but truckload capacity across the board – and with that, pricing.

Brokers across the country are asking: When will produce season hit (and where), how will this impact capacity, and how much will prices go up as a result of diminished capacity?

When?

Weather can have a huge impact on the viability of crops and how many make it out of a certain region. For example, tomato and strawberry season is set to begin quickly in southern Florida. Those volumes are currently down over 30%. When do we expect those volumes to increase and begin moving northward along their traditional route? Our service provider DAT has three market updates (Flatbed, Reefer & Dry Van) which is a good place to look for answers.

Produce season generally follows an annual south-to-north pattern. In the Southeast, the Miami and Lakeland markets absorb truckload capacity in late April and early May, driving higher rates and attracting trucks from other markets.

Retailers restock shelves leading up to Memorial Day, boosting summer shipping of food and beverages. Border cities like McAllen, Laredo, and Miami see increased demand for produce from Mexico and Latin America, impacting outbound spot rates in Texas and the southeast.

By late June, harvests have moved northward, bringing higher demand for refrigerated shipments along with them. Carriers concentrate more capacity in markets like Atlanta, Savannah, and Jacksonville where prices are elevated.

How?

Produce movement out of southern Florida typically means tightening capacity for reefer and dry vans out of Florida. Van capacity also tightens because often when reefers aren’t shipping refrigerated goods, they ship non-refrigerated goods and act as extra capacity.

Take for example, the DAT’s Market Conditions Index (MCI) for southern Florida. The MCI scores market tightness or looseness on a -100 to +100 scale, with +100 representing an extremely tight market. Market tightness associated with produce season typically means linehaul costs go up as it's harder to find capacity.

How much?

Finally, the million-dollar question. How much does produce season impact the cost of freight on a given lane? The answer is, potentially, a lot.

The RateView Analytics snapshots from DAT iQ look at reefer spot freight from Lakeland, FL, to Atlanta. Historically, starting in March, freight out of Lakeland begins to increase until it crescendos in May. Booked rates increased from an average of $800 to $1,200 – a 50% increase – in 2023.

DAT is projecting a similar spike this year, with a peak average of $1,038. As you calculate margins, this $162 difference between 2023 and what is projected for 2024 can be the difference between making or losing money.

Planning for produce season can be a daunting task. NTA & DAT are here to help.

U.S. Department of Labor IC Test Rule

Mon, 06 May 2024 18:10:35 GMT

Author Scopelitis Garvin Light Hanson & Feary

On January 10, the U.S. Department of Labor (DOL) published its final rule (the 2024 Rule) for determining employee or independent contractor status under the Fair Labor Standards Act (FLSA). In so doing, the DOL repealed and replaced the rule promulgated for similar purposes by the Trump administration in early 2021 (the 2021 Rule). A federal district court held an earlier attempt to repeal the 2021 Rule was unlawful and reinstated that rule. The same organizations (and having added others, including the American Trucking Associations) that prevailed in the challenge to the repeal have challenged the 2024 Rule, as have other lawsuits filed in federal courts in Georgia and Louisiana.

As compared to its 2021 predecessor, the 2024 Rule provides far less clarity and certainty, and suggests an increased likelihood for an employee status determination. It analyzes the totality of the circumstances guided by six enumerated factors: (1) opportunity for profit or loss depending on managerial skill; (2) investments by the worker and the potential employer; (3) degree of the permanence of the work relationship; (4) nature and degree of control; (5) whether the work performed is an integral part of the potential employer’s business; and (6) skill and initiative. In contrast, the 2021 Rule included an investment within the opportunity for profit or loss factor and provided that if two factors – control and opportunity for profit or loss – weigh in favor of the same worker status, that would generally end the inquiry. Additionally, the 2024 Rule directs consideration of contractual rights – even if unexercised – as well as actual practices; whereas the 2021 Rule focused on actual practices.

There were, however, some incremental improvements from the originally proposed 2024 Rule. For example, the proposed rule suggested that investment in tools to perform a job would not count as a factor, but the final rule’s commentary notes that trucks purchased for a business purpose would be considered investments indicating independent contractor status. As proposed, compliance with laws, safety standards, and customer requirements could be considered control indicative of employee status; however, as finalized, compliance with specific laws would not be considered control. This notwithstanding, the rule left open the possibility that requiring compliance with safety best practices and customer requirements would indicate employer-like control. This poses numerous difficult challenges for transportation entities, where customer demands for on-time delivery and safe operations are ever-present.

Driver Vehicle Inspection Reports - What, When & How to Report

Mon, 06 May 2024 18:04:50 GMT

A common misconception about driver vehicle inspection reports for truckers and other commercial drivers is that one is required at every pre-trip inspection.

How often must a walk-around pre-trip inspection be conducted? Before every trip.
How often is a post-trip inspection required to be performed? After every trip.

When Does a Driver Have to Turn in a DVIR?

There’s seems to be a lot of confusion in the industry. The driver needs to do a pre-trip — they have to be satisfied the vehicles in good operating condition before they drive it. That’s the bottom line. There’s no report required.

If there's something wrong with the vehicle, the driver needs to get in touch with you and say, hey, this needs to be fixed before I can drive it.

If a driver discovers a safety-related defect during the pre-trip inspection, while there may not be a federal requirement to file a DVIR, you still need a process in place for how the driver reports it.

If he’s in the yard, does he head to the maintenance shop? If drivers are on the road when they find something, do they know who to call or message to work with to get that fixed?

Post-Trip Inspections and DVIRs

It’s at the end of the day, during the post-trip inspection, that finding a defect triggers the legal requirement from the Federal Motor Carrier Safety Administration to file a DVIR.

At the end of the day, the driver does a post-trip, which can be as simple as a quick walk around. But at that point, that's where the driver needs to submit a report to the company saying, ‘I have this defect on the vehicle.’ That's what's required in the regulations. If there's a defect on the vehicle, the company has to be notified, the driver has to complete a DVIR and submit it.

Some companies choose to have the driver submit a daily DVIR, defects or not, and that’s allowed in the regulations — it’s just not required by the FMCSA.

The Importance of the Post-Trip Inspection

Everybody talks about the pre-trip, but the post-trip inspection is actually more important.

If you do a post-trip inspection flawlessly, and catch everything, and have a maintenance shop or provider that now can have from 5:00 in the afternoon to 7:00 in the morning to repair it, the chances of you running a real tight ship is greater because now I've got extra time for the maintenance to get done.

You should shift the emphasis to the post-trip, because the pre-trip is then automatic. You've already done my post-trip, you’ve done all the repairs, your pre-trip is a whiz, you are just making sure that everything is signed off on.

If you put a tremendous amount of effort on the post-trip when it's back at the yard, when you have a technician that can take the next two hours fixing it, it changes the results tremendously.

So, everybody talks about the pre-trip. They know there's a post trip, but the emphasis really needs to be reversed. The post-trip needs to be the best.

DVIRs and Lighter-Duty Commercial Vehicles

Another point of confusion about driver vehicle inspections and DVIRs, is in lighter vehicles.

“The requirement applies to anything 10,001 pounds or more that you're using in interstate commerce. And there's a lot of people in that 10,001-to-26,000-pound category who don't think it applies to them, because their drivers don't have to have a CDL. So, they don't have to know how to do inspections, because they’re not taking a test on it.”

How to Properly Sort your IFTA Miles

Mon, 06 May 2024 17:58:59 GMT

All miles are not created equal when calculating fuel taxes under the International Fuel Tax Agreement (IFTA), and the categories are very specific. Understanding the differences can help you submit accurate quarterly reports and avoid raising red flags for auditors.

IFTA miles

“IFTA miles” include all miles traveled by your IFTA-registered vehicles in jurisdictions that participate in the program. This includes all miles traveled, whether the miles are taxable or nontaxable.

Once a qualified vehicle (A) is registered under IFTA and has decals on the doors, all miles must be tracked (B).

Non-IFTA miles

“Non-IFTA miles” are miles driven in jurisdictions that are not part of IFTA. These include Washington DC, Alaska, Hawaii, and three Canadian territories: Nunavut, Yukon, and Northwest Territories.

The fuel used and miles driven in these areas are taxed differently than in IFTA jurisdictions.

These miles must still be tracked and accounted for, since they are used to calculate total distance and determine average miles per gallon (mpg). Record all miles traveled, whether the miles are taxable or nontaxable, IFTA or non-IFTA.

Total miles

"Total miles” includes all miles traveled during the tax reporting period by every qualified vehicle in your IFTA fleet. This is regardless of whether the miles are considered taxable or nontaxable by a jurisdiction.

Under IFTA, all miles must be counted – interstate and intrastate; work- and non-work-related; and loaded, empty, deadhead, and bobtail miles. If a vehicle is driven for personal use or is in the shop for repairs and the maintenance crew takes it out for road tests, all those miles must be counted.

Tracking every mile is critical to:

Calculate accurate fleet mpg, and
Avoid mileage gaps in distance records, which could result in inadequate records assessments in an audit situation.

Taxable miles

Generally speaking, all miles driven in IFTA jurisdictions are taxable miles. In most cases, total IFTA miles and taxable miles will be the same.

Non-taxable/exempt miles

Some states offer exceptions that are considered exempt miles (usually defined by state statute). Massachusetts Turnpike miles are one example. In some jurisdictions, distance accumulated by qualified vehicles operating off-highway or on agricultural roads may be exempt from IFTA tax.

Distance traveled while operating under a fuel trip permit is included in total miles, but exempt from taxable miles on the IFTA return.

Puzzled by a regulatory question or issue? Let our renowned experts provide the answers and get your business on track to full compliance!

It's important to note that even though some miles may be exempt or non-taxable, they still need to be tracked and reported in the total miles. They are used to calculate accurate mpg but are not used to calculate taxable gallons.

Also, be sure to understand and comply with the terms of any exemptions you claim. For example, to claim the Massachusetts Turnpike miles as exempt, you must:

Retain all turnpike receipts and fuel invoices, and
File a separate “Use Tax Return” to the state by April 15 each year the exemption is taken.

In many states, when you claim exempt distance on your IFTA return, sales or use tax becomes due on the fuel that was used for those miles.

Key to remember : Properly categorizing your mileage under IFTA can help you submit accurate quarterly reports, pay the right amount of tax, and avoid raising red flags for auditors.

A qualified motor vehicle means a motor vehicle used, designed, or maintained for transportation of persons or property and:
Having two axles and a gross vehicle weight or registered gross vehicle weight exceeding 26,000 pounds (11,797 kilograms); or
Having three or more axles regardless of weight; or
Is used in combination when the weight of such combination exceeds 26,000 pounds (11,797 kilograms) gross vehicle or registered gross vehicle weight.

Qualified motor vehicle does not include recreational vehicles.

A recommended source document under IFTA and IRP is an “Individual Vehicle Mileage Record” (IVMR) (or individual vehicle distance record [IVDR]). IVMRs can be created using a paper form or may be created using an electronic logging system/device (ELD) or global positioning system (GPS).

If an Individual Vehicle Mileage Record ( IVMR) is captured on paper, it must include:

The beginning and ending dates of the trip to which the records pertain;
Trip origin and destination;
Route of travel;
Beginning and ending reading from the odometer, hubometer, engine control module (EMC), or similar device for the trip;
Total trip miles or kilometers;
Miles/kilometers by jurisdiction; and
Unit number or vehicle identification number.

Lessons to be Learned from A Sad Story

Mon, 06 May 2024 17:56:21 GMT

On March 22, 2024, a concrete pumper truck veered into oncoming traffic on State Highway 21 in Texas, striking a school bus full of children and ultimately killing a 5-year-old and an adult. At the time of the crash, the bus was transporting 44 children and 11 adults’ home from a field trip to the Texas Zoo.

According to reports, the driver of the concrete truck, 42 year-old Jerry Hernandez, admitted to law enforcement he had smoked marijuana the night before the accident, had used cocaine the morning of the accident, and had only obtained around 3 hours of sleep the night before. Hernandez was subsequently arrested and charged with criminally negligent homicide. Court records reveal Hernandez was in so-called "prohibited" status in the federal Drug & Alcohol Clearinghouse due to a prior refusal to submit to a reasonable suspicion test in 2020.

Investigators also met with FJM Concrete, LLC, the company that operates the concrete truck involved in the crash, according to court records. The owner of FJM allegedly admitted he had not verified the status of Hernandez's CDL or his Clearinghouse record.

The accident is now under investigation by the NTSB.

Sometimes accidents are just accidents; by all accounts, this wasn't one of them. Based on available information, this one was very much preventable. Had the employer of this driver taken the basic steps required of it by federal and/or state law, this driver wouldn't have been operating the truck at the time of the accident and people wouldn't have died.

Enough is enough! When are carriers going to learn their lesson and put in the work and effort it takes to keep our roadways safe? Complying with laws that exist to help accomplish this goal is the bare minimum. If you're not doing that, shame on you; you are part of the problem. But fixing this problem requires a bigger commitment. What are you doing to truly improve safety? Anything?

There are plenty of lessons fleets can/should take away from this particular case. Here are just a few that come to mind...

If you aren't using the Clearinghouse, you better start

In January 2020, the Federal Motor Carrier Safety Administration (FMCSA) rolled out its Drug & Alcohol Clearinghouse, which it describes as an "online database [that] helps keep roads safer for all drivers by identifying, in real time, drivers prohibited from performing safety-sensitive functions, such as operating a commercial motor vehicle (CMV), due to a drug and alcohol program violation."

Anyone who employs or engages commercial drivers to operate vehicles that require a CDL is obligated to run Clearinghouse queries on these drivers to ensure they are not prohibited from operating due to prior drug/alcohol violations.

It's been four years since FMCSA mandated carriers use the Clearinghouse; however, I'm routinely shocked when fleets tell me they haven't been using it. Why not? It takes a few minutes to sign up for a Clearinghouse account and run a required query, and it costs less than $2 to do so. It's also required by law. So, what exactly is your excuse?

According to Clearinghouse data, as of January 2024, there are over 158,000 commercial drivers in "prohibited" status due to prior drug/alcohol testing violations. By law, these drivers are NOT eligible to operate commercial vehicles. They shouldn't be on the road.

Turning back to the case at hand, according to available information, FJM had a regulatory obligation but failed to run a Clearinghouse query on Hernandez. Had it done so, it's my understanding FJM would have discovered that Hernandez was in "prohibited" status and could have kept him out of the truck. That simple step could have spared two lives in this case.

Simply put, if you're hiring individuals to operate CDL-sized equipment and you're not utilizing the Clearinghouse like you're supposed to, you've got a big problem. You need to register for an account and start using it ASAP.

Also, in November of 2024, state drivers' licensing agencies will be compelled to automatically downgrade the CDLs of drivers who are put into prohibited status in the Clearinghouse. That should help fill a gap that currently exists in the system, which allows drivers to keep their CDLs despite being prohibited from operating vehicles that require them. But this will not eliminate the burden that rests on the shoulders of fleets to ensure their drivers are properly qualified, including via required Clearinghouse queries.

Employing drivers with prior drug/alcohol violations is risky; you better have a plan

In this case, Hernandez allegedly had a history of drug use. It's unclear whether FJM knew of that history when it hired him; however, this situation is exceedingly common in our industry. Drivers with prior drug/alcohol testing violations apply to drive for new carriers, and the question is whether those new carriers should hire these drivers despite their history.

It's not an easy question to answer. The federal drug/alcohol regulations prescribe the steps that regulated drivers can take to "return to duty" once they violate the drug/alcohol testing rules. In other words, the regulations themselves allows drivers to keep driving after a drug/alcohol testing violation, so long as they jump through the required hoops. Of course, that doesn't mean subsequent putative employers are required to hire them.

Some--perhaps many--carriers make it a matter of company policy that they will not hire someone who has previously violated the drug/alcohol testing rules. To them, it's too risky to hire these drivers even though they've completed the return-to-duty steps. This case is a good example of that.

Even if Hernandez had gone through the steps to "return to duty," he clearly had a persistent drug abuse problem, which ultimately led to a catastrophic accident. Simply stated, putting drivers with a known history of drug/alcohol problems behind the wheel of heavy trucks and buses is inherently risky, even if technically allowed by the regulations.

Are you willing to take that risk? If so, you better have some guard rails in place to help you mitigate that risk. What I mean is that if you intend to hire drivers with a history of drug/alcohol problems, you should ensure you're not turning a blind eye to their potential relapse. If you do and that leads to a catastrophic accident, you may be partly to blame.

So, what can you do to help minimize that exposure? Well, there are several options. You could subject those drivers to more frequent non-DOT random drug/alcohol testing. You could ensure you are having regular interactions with them to look for signs of impairment. You could provide them ongoing education and support. In short, be sure you're doing something.

You should have plenty of folks trained in reasonable suspicion

The regulations require any carrier whose drivers operate CDL-sized vehicles to train their driver supervisors in reasonable suspicion. In other words, anyone who interacts regularly with these drivers must be trained to detect the signs and symptoms of drug/alcohol impairment.

Specifically, they must receive at least one hour's worth of training on drug use and another hour's worth of training on alcohol use. If they detect impairment, then they must direct the driver to submit to a reasonable suspicion drug/alcohol test.

In the case at hand, Hernandez admitted to using marijuana the night before and cocaine the morning of the accident. He also admitted to sleeping only 3 hours the night before, and court records indicate he was falling asleep during interrogations shortly after the accident.

What we don't know is whether FJM had any interactions with Hernandez prior to the accident and whether he exhibited any signs of impairment. I have to think there's a good chance he did. If so, and had FJM detected that impairment and directed Hernandez to submit to a reasonable suspicion test, then maybe they could have avoided this accident altogether.

Long story short, fleets need to ensure they are training their driver supervisors in reasonable suspicion. They have a critical role to play in that they are the front-line defense against drivers operating while impaired.

Monitoring drivers’ available hours is basic compliance

In this case, Hernandez admitted to only sleeping for three hours the night before the accident. And court records indicate he was falling asleep in his post-accident interrogations. Whether due to his drug use or lack of sleep, Hernandez was clearly fatigued and should not have been operating the vehicle at the time of the accident.

Driver fatigue has historically and continues to be a significant contributor to highway accidents. Indeed, it's the impetus for the hours-of-service regulations that we've had in place in this country since the 1930s. It also happens to be a common trigger for so-called nuclear verdicts against trucking companies, as detailed by the American Transportation Research Institute (ATRI) in its 2020 study of these types of cases. That's not surprising, yet many fleets continue to struggle mightily with hours-of-service compliance. Electronic logging devices (ELDs) were meant to help, but the jury's still out on whether they do.

In my experience, the fleets that struggle the most with hours-of-service compliance are simply not putting in the work it takes to get control of the issue. Plenty of blame gets passed around, but ultimately it really comes down to closely monitoring drivers' hours and holding them accountable to violations.

As a general rule, carriers are not (1) keeping a close enough watch on HOS; and (2) forceful enough when it comes to dealing with repeat HOS offenders. If nothing else, ELDs make it easier for carriers to keep track of each driver's available hours and to sniff out any funny business in their logging. But too often, carriers are just ignoring that data, which inevitably leads to violations and could lead to serious crashes.

So, first thing's first, fleets need to be routinely checking driver logs and confirming drivers are within their allowable limits before dispatching them. Had FJM done that in this case, it presumably would have discovered Hernandez had not obtained the required 10 hour-off duty break and shouldn't have been on the road.

Beyond monitoring drivers' compliance with the HOS rules, carriers also need to be more aggressive in holding drivers accountable for violations. Too often they're letting these issues slide. There need to be real "teeth" to a carrier's progressive discipline program. Drivers who repeatedly violate the law need to be effectively suspended and ultimately terminated, or else the issues will persist.

I understand fleets are hesitant to do this when drivers are hard to come by and expensive to onboard, but those are just excuses that won't ultimately matter in the context of a catastrophic accident. Contractor fleets, this also applies to you! That you're balancing the employment-status of your drivers against safety in limiting your "control" over them will be cold comfort to the families of the folks that your drivers end up killing or injuring or the juries who will be hearing the cases.

Safety technology should be higher on your priority list

It's unclear whether FJM had any safety technology installed on the concrete truck Hernandez was driving. Would lane departure warnings have made a difference here? What about automatic emergency braking? Hard to say until we get the full details, but it's hard to imagine those technologies would have hurt.

I get it. It's expensive for fleets to install equipment that isn't currently mandated by regulation. But as with most things, it's a cost/benefit analysis. If there's even some remote likelihood that a given technology could potentially prevent the death of a 5-year-old, it should at least be considered.

Maybe the economics of it don't work for you at the moment, but what precludes you from placing it in line for implementation down the line? Also, as more and more fleets begin to voluntarily adopt these technologies across the country, the more likely they will be considered the industry standard against which you will be judged in highway accident litigation.

Conclusion

As they say, hindsight is 20/20. But if we as fleets aren't learning lessons from accidents like this one and taking steps to keep ourselves out of them, we are doing ourselves a tremendous disservice and dooming ourselves to a similar fate. This particular case highlights the importance of complying with applicable drug/alcohol testing and hours-of-service regulations, to name just a couple.

Clearinghouse Downgrades Just Seven (7) Months Away.

Fri, 12 Apr 2024 15:30:25 GMT

Over 158,000 drivers are currently in a prohibited status in the Drug and Alcohol Clearinghouse. If these drivers don’t move forward with the return-to-duty process by November 18, 2024, they may find their commercial licenses denied or downgraded.

Out of the 158,330 drivers currently in a prohibited status:

76 percent have yet to start the return-to-duty process,
9 percent are in process, and
15 percent show as eligible to take a return-to-duty test.

A prohibited status is placed on a driver’s Clearinghouse record as the result of DOT drug or alcohol violation under 49 CFR Part 382.

DMV must act on prohibited drivers

State driver’s licensing agencies (SDLAs) have been instructed by the Federal Motor Carrier Safety Administration (FMCSA) to take the following actions:

Deny commercial driver’s license (CDL) and commercial learner’s permit (CLP) issuance, renewal, upgrade, or transfer for any driver that has an unresolved violation (prohibited status) in the Clearinghouse.
Downgrade existing CDL and CLP holders while they are in prohibited status in the Clearinghouse.

The SDLA must report the downgrade within 60 days of learning of the status and reinstate privileges after learning that the driver is no longer prohibited. Section 383.73(q) does not dictate administrative processes for the SDLA to reinstate CDL privileges. Motor carriers and drivers should speak with their SDLA to learn how a driver is to provide documentation to reclaim their license.

MVRs help identify prohibited drivers

Knowledge of a prohibited status will no longer be limited to just Commercial Vehicle Safety Alliance (CVSA) inspectors during a roadside inspection . Today, CVSA inspectors can see a driver’s status to determine if a driver should be placed out of service.

The new rule allows all safety enforcement officers to identify prohibited drivers by conducting a license check during a routine traffic stop. This increased visibility will keep drivers from operating commercial vehicles when restricted.

In addition, tying the driver’s CDL or CLP to the Clearinghouse status provides a medium for motor carriers that are not subject to Part 382. These carriers are not eligible for a Clearinghouse account, and don’t currently have a means of detecting a prohibited status.

But a driver with an unresolved testing violation is restricted from the operation of all commercial motor vehicles (CMVs), including non-CDL CMVs. These motor carriers can avoid using a driver in a prohibited status through a motor vehicle record (MVR) or continuous MVR monitoring. Those who manage a carrier’s driver qualifications (DQ) files should be brought into the conversation, since the MVR will show a downgraded CDL.

Key to remember: Drivers who have a Part 382 violation, but do not pursue the return-to-duty process, will soon lose their ability to hold a CDL once SDLAs tie licensing to a driver’s Clearinghouse status.

CARB Advanced Clean Fleets Rules Update

Thu, 04 Apr 2024 13:10:42 GMT

Written by Prasad Sharma from Scopelitis, Garvin, Light, Feary & Hanson

The California Air Resources Board’s (CARB) Advanced Clean Fleets (ACF) regulations have a number of requirements subject to either a January 1, 2024, deadline (a prohibition on adding new drayage trucks to a California fleet that are not zero-emission vehicles (ZEVs)) or a February 1, 2024, deadline (the reporting requirement for fleets under the ACF-High Priority regulations). Because CARB has sought a waiver from the U.S. Environmental Protection Agency (EPA) to enforce the ACF regulations, CARB will not enforce the deadlines until EPA either grants a waiver or determines a waiver is unnecessary. CARB has reserved the right to require removal from a carrier’s California fleet any truck improperly added to the fleet after the applicable deadline if EPA grants a waiver (or deems a waiver unnecessary). The California Trucking Association has challenged CARB’s authority to promulgate the ACF regulations, so whether the regulations ultimately become enforceable remains unclear.

The Corporate Transparency Act

Thu, 04 Apr 2024 13:08:53 GMT

Written by Katherine Feary-Gardner , & J.D. Robinson, III from Scopelitis, Garvin, Light, Feary & Hanson

The Corporate Transparency Act (the CTA) went into effect on January 1, 2024, and requires many companies not otherwise subject to reporting obligations to submit beneficial ownership information to the US Department of Treasury Financial Crimes Enforcement Network (FinCEN). This information is not accessible to the general public. Rather, FinCEN is only authorized to disclose the information to federal agencies that oversee national security, state law enforcement agencies, and certain financial institutions, among a few others.

Unless falling within one of the 23 exceptions, companies formed prior to 2024 must submit ownership information to FinCEN by January 1, 2025. Companies formed during 2024 must submit this information within 90 days of entity formation.

New Jersey Increased Minimum Required Insurance to $1.5 million

Thu, 04 Apr 2024 13:06:21 GMT

Written by Gregory M. Feary , & Prasad Sharma from Scopelitis, Garvin, Light, Feary & Hanson

New Jersey enacted a provision that will require commercial motor vehicles with GVWR over 26,000 pounds to have minimum liability insurance in the amount of $1.5 million. Beginning in July 2024, all vehicles “principally garaged” or “registered” in NJ are subject to the increased liability insurance amount. It is unclear the extent to which it may apply to trucks in interstate operations with plates issued pursuant to the International Registration Plan. New Jersey has yet to offer clarification regarding the target of enforcement or how enforcement will occur. New Jersey’s action comes on the heels of efforts over the years to increase the required minimum insurance limit of $750,000 for general freight under federal law as enforced by the FMCSA.

Comments Filed In Opposition to Petitions Seeking Waiver from California and Washington Meal and Rest Break Preemption Determinations

Thu, 04 Apr 2024 13:04:49 GMT

Written by Prasad Sharma from Scopelitis, Garvin, Light, Feary & Hanson

In 2018 and then again in 2020, FMCSA determined the meal and rest break (MRB) laws of California and Washington, respectively, were preempted under 49 U.S.C. § 31141. Last year, in an unusual maneuver, FMCSA invited petitions seeking a waiver from one or both of its own preemption determinations, and several parties submitted such petitions. The deadline for comments in opposition was February 26, 2024, and the Scopelitis Firm submitted comments on behalf of several motor carrier clients, noting that the MRB laws are not a component of a state’s motor carrier safety laws, have not been enforced as such, will burden already strained supply chains, and may have a deleterious impact on safety. Readers will recall that the MRB laws have been the subject of lawsuits filed by plaintiffs’ attorneys seeking economic gain and not for purposes of enhancing safety. FMCSA’s decision is expected later this year.

NTA KNOWLEDGE BASE: CARB CLEAN TRUCK CHECK REQUIREMENTS FOR VEHICLES SUBJECT TO SEMI-ANNUAL PERIODIC COMPLIANCE

Mon, 01 Apr 2024 20:05:12 GMT

Overview

The purpose of this guidance it to provide vehicle owners subject to semi-annual testing information on how to comply with Clean Truck Check.

EPA Finalizes Heavy Truck Emissions Standards

Mon, 01 Apr 2024 19:57:26 GMT

On March 29, 2024, the Environmental Protection Agency (EPA) announced long-anticipated Phase 3 greenhouse gas emissions standards for heavy-duty trucks, buses and other large vehicles. EPA officials said the new standards will directly target the North American trucking industry, which the agency said is one of the largest producers of greenhouses gas emissions.

The reduction of greenhouse gas emissions into the atmosphere is critical for combating climate change. EPA said the enaction of these new standards will prevent one billion tons of greenhouse gas emissions over the next three decades.

Additionally, the agency said, the regulations will provide Americans with $13 trillion in savings due to reduced healthcare, lost workdays and early deaths caused by pollution-related illnesses.

The new standards will especially benefit approximately 72 million people in the U.S. living near heavily traveled freight routes used by trucks and other diesel-powered vehicles.

“Heavy-duty vehicles are essential for moving goods and services throughout our country, keeping our economy moving,” Michael Regan, administrator, EPA said. They’re also significant contributors to pollution from the transportation sector — emissions that are fueling climate change and creating poor air quality in too many American communities.”

Strict New Standards

As expected, the new emissions standards will take effect beginning with the 2027 model year for new trucks. The first phase of these standards will run through 2032.

In the face of recent pushback on the timing and cost of implementing such a massive shift away from diesel-powered trucks, EPA noted that it believes the Phase 3 standards are “appropriate and feasible considering lead time, costs, and other factors.”

The rules are complex and will depend on the type of vehicle being used and what applications it works in. But the changes are still extreme: 30% of what the agency defined as “heavy-heavy-duty vocational” trucks are required to be zero-emission vehicles by 2032, according to the new regulations. At the same time, the standards require that 40% of day cab trucks be zero emission vehicles.

EPA argues in the 1,155-page summary of the new regulations that the final rule is “less stringent” and increase at a “slower place” than the proposed rule. For example, in the final rule, day cab emissions standards begin with the 2028 model year.

Whereas “heavy heavy-duty” vocational vehicle standards begin in the 2029 model year. Final standards for sleeper cab models begin with the 2030 model year. But, EPA argues, these standards are “less stringent than proposed in that year and in MY 2031, and equivalent in stringency to the proposed standards in MY 2032.”

EPA said its updated analyses for the final rule show that model years 2031 and 2032 GHG standards are “feasible and appropriate considering feasibility, lead time, cost, and other relevant factors.”

A Mixed Emissions Bag

Overall, Phase 3 rules are about what was to be expected from EPA. In some aspects, the rules are stricter than those proposed by the agency last year. The proposed rule, for example, had 2032 as the deadline for getting 25% of long-haul trucks to be zero-emission vehicles. The same proposal mandated that 35% of all regional tractors and 50% of vocational vehicles be zero—emission vehicles in the same time frame. Overall, under the proposed rule, these would lead to 40% of all heavy-duty trucks in the U.S. being zero emission vehicles before 2033.

Under the Final Rule, however, Phase 3 standards begin in model year 2027 with medium-duty trucks and a 13% increase and a 17% increase for light heavy-duty vocational vehicle standards.

Day cab tractor Phase 3 standards begin with the 2028 model year and an 8% increase in stringency over the Phase 2 standards.

What EPA calls “heavy heavy-duty” vocational standards begin in the 2029 model year with a 13% increase over Phase 2. Sleeper cab tractor standards begin in model year 2030 with a 6% increase over Phase 2.

Each vehicle category then increases in stringency each year, running through the 2032 model year. At that point, compared to Phase 2, light heavy-duty vocational standards are a 60% increase in stringency of the CO2 standard.

Medium heavy-duty vocational vehicle standards experience a 40% increase. Day cab standards increase by 40%. Heavy heavy-duty vocational standards increase by 30%. And sleeper cab standards go up by 25%.

In the Final Report summary, EPA noted that, “Our assessment is that setting this level of standards starting in MY 2032 achieves meaningful GHG emission reductions at reasonable cost, and that heavy-duty vehicle technologies, charging and refueling infrastructure, and critical minerals and related supply chains will be available to support this level of stringency (as many commenters agreed with and provided technical information to support). Our assessment of the final program as a whole is that it takes a balanced and measured approach while still applying meaningful requirements in MY 2027 and later to reducing GHG emissions from the HD sector.”

The Trucking Industry Reacts

Reaction to the Phase 3 Final Rule from the trucking industry was swift and generally negative.

The American Trucking Associations issued a statement noting that it opposes the rule in its final form. ATA insists the post-2030 targets remain "entirely unachievable given the current state of zero-emission technology, the lack of charging infrastructure and restrictions on the power grid. Any regulation that fails to account for the operational realities of trucking will set the industry and America’s supply chain up for failure.”

"Given the wide range of operations required of our industry to keep the economy running, a successful emission regulation must be technology neutral and cannot be one-size-fits-all," said Chris Spear, president and CEO, ATA.

“The trucking industry is fully committed to the road to zero emissions, but the path to get there must be paved with commonsense. While we are disappointed with today’s rule, we will continue to work with EPA to address its shortcomings and advance emission-reduction targets and timelines that are both realistic and durable.”

In a press statement the National Association of Truck Stop Owners said, “Unfortunately, today's Final Rule represents only a modest improvement from the proposed rule. The Administration's Final Rule does not adequately consider the challenges that fuel retailers face in transitioning to heavy-duty truck electrification. The Administration's Final Rule also does not recognize the need to support lower carbon alternatives to diesel fuel that are currently commercially viable, such as biodiesel and renewable diesel.

"To support the full electrification of long-haul vehicles, fuel retailers will need to invest $57 billion to build out a sufficiently dense long-haul charging network, according to a recent study released by Roland Berger. To electrify all medium and heavy-duty vehicles, fleets and charge point operators will need to invest $620 billion into chargers, site infrastructure and utility service costs.

"Off-highway refueling locations will need dozens of fast-chargers to service heavy-duty trucks. The charging capacity required at a single large truck stop would be roughly equivalent to the electric load of an entire small town. Considering that utilities will need to invest $320 billion to upgrade the nation's power grid, we remain unconvinced that the electricity providers will be able to increase generation and transmission activity to service that kind of load at scale within ten years.”

Likewise, the Clean Freight Coalition denounced the Phase 3 Rule, noting that regulation that will require the adoption of zero-emissions commercial vehicles at a pace that isn’t possible due to the limits of today’s technology.

“Today, these vehicles fail to meet the operational demands of many motor carrier applications,” the group said in a press release. “They will reduce the payload of trucks and thereby require more trucks to haul the same amount of freight, and lack sufficient charging and alternative fueling infrastructure to support adoption.

In addition, battery electric motorcoaches have a reduced range and capacity compared to diesel buses. These commercial vehicles are in their infancy and are just now being tested and validated with real world-miles.”

The GHG Phase 3 rule will have detrimental ramifications to the commercial vehicle industry, the group added, noting that many small and large businesses, commercial vehicle dealers and their customers.

“A recent study contracted by the CFC demonstrated that fully electrifying the nation’s medium- and heavy-duty commercial vehicles will cost motor carriers $620 billion in charging infrastructure alone,” the statement added. “That does not include the vehicle cost which increases by 2-3 times compared to a diesel truck.

For example, today’s diesel class 8 truck costs roughly $180,000 compared to an electric truck’s price tag of $400,000, and for motorcoaches, today’s diesel costs $600,000 compared to $1.5 million for battery electric – costs that will ultimately be borne on the backs of consumers.

On top of the costs to the truck and bus industries, utilities and the government will need to invest $370 billion to upgrade their networks and the power grid to meet the demands of the commercial vehicle industry alone, putting the price tag for an electric supply chain at nearly $1 trillion before one battery-electric commercial vehicle is purchased.”

California Postpones Periodic Smog Test Check for Trucks

Mon, 01 Apr 2024 19:49:15 GMT

The California Air Resources Board has delayed the first periodic testing deadline for the Clean Truck Check Program to Jan. 1, 2025.

However, this does not delay requirements to register and pay fees for 2023. The rollout of DMV registration holds for non-compliance is beginning to ramp up, notes the California Trucking Association.

Fleets must also still plan to pay fees for 2024, which will be due in the latter half of this year.

Late last year, CARB extended the Clean Truck Check reporting deadline to the end of January 2024.

About Clean Truck Check

Clean Truck Check , previously called the Heavy-Duty Inspection and Maintenance Program , is the commercial truck version of the state’s smog check for light-duty vehicles. It covers nearly all non-gasoline vehicles with a gross vehicle weight rating over 14,000 pounds operating in the state.

The program is being implemented in three phases.

Phase 1 started Jan. 1, 2023, with the deployment of Remote Emissions Monitoring Devices. These monitor the exhaust emissions of passing heavy-duty vehicles and flag potential high emitters. Vehicles flagged must undergo an additional emissions test to verify their emissions-control equipment is functioning properly.

Phase 2 started Oct. 1 and requires vehicle owners to enter their vehicles in CARB’s Clean Truck Check database . There is an initial annual compliance fee of $30 per vehicle. That deadline originally was Dec. 31 and was extended to Jan. 31, but it is now in effect. All trucks driving in California need proof of compliance to continue operating.

Phase 3 of Clean Truck Check is what’s being delayed in this most recent postponement. It will require heavy-duty vehicle owners to conduct periodic emissions testing .

CARB's Periodic Truck Emissions Testing

Vehicles subject to semi-annual testing under the Clean Truck Check regulations will be required to submit periodic testing every six months.

California-registered vehicles’ compliance deadline will be the vehicles’ DMV registration expiration date. Vehicles registered outside of California have compliance deadlines based on their last VIN digit.

All trucks driving in California need proof of compliance that they've registered in the Clean Truck Program and paid the initial compliance fee to continue operating.

Periodic testing requirements are effective Oct. 1, 2024. For example, a vehicle with a compliance deadline of Feb. 1, 2025, may submit a passing emissions test as early as November 3, 2024, according to CARB. Tests may be submitted no more than 90 days prior to the vehicle’s compliance deadlines.

Compliance testing must be performed by a CARB credentialed tester who has completed CARB’s free online Tester Training Course and scored at least 80% on the accompanying exam. The certification must be renewed every two years.

If you only operate for short periods of time in California, CARB offers a five consecutive day pass for each vehicle, once per calendar year. The 5-day pass must be submitted 7 business days before entering California.

The Real Costs of an Accident!

Mon, 01 Apr 2024 19:46:23 GMT

On-the-job traffic crashes cost employers and commercial carriers billions of dollars each year.

When an employee is involved in a crash while on the job or driving a company vehicle, the parent employer ultimately pays the bill. On-the-job traffic incidents that result in serious injury or death are not only emotionally devastating to everyone involved, but they can also have a huge impact on a company’s bottom line.

In 2018, around 1,800 people were killed in on-the-job motor vehicle traffic crashes in the U.S., according to the most recent data from the Network of Employers for Traffic Safety (NETS). In each case, the cost per incident to the parent company was more than $751,382. Some 379,000 more people are injured each year in on-the-job crashes on U.S. roadways at a cost of more than $75,000 per incident to employers.

Property damage-only crashes cost employers an average of $5,000 per incident and the overall cost per traffic crash is approximately $25,000. According to the NETS report, 20% of a fleet is generally involved in some type of crash annually. This means that a fleet of 1,000 vehicles averages a cost of $1 million dollars per year in property damages alone.

The Indirect Costs of On-the-Job Traffic Accidents

In addition to medical and legal expenses, property damage, and potential lawsuits and liabilities, on-the-job traffic crashes have other indirect costs as well.

For example, when employees are injured in a crash, they are often forced to miss work. This results in lost productivity in addition to workers’ compensation claims and the associated expenses of having to hire and train a replacement if an employee cannot return to work.

On-the-job crashes can also harm your company’s reputation. If employees are out on the roadways, driving erratically or recklessly in company vehicles or involved in crashes, it ultimately reflects poorly on the employer. This can lead to bad publicity, lost customers, and missed revenue.

For companies who are self-insured, on-the-job crashes and related expenses have a huge negative effect on the bottom line. For companies that are insured by outside entities, crashes can cause insurance premiums to increase dramatically.

Revenue Necessary to Pay for Accident Losses

The following table shows the dollars of revenue required to pay for different amounts of costs for accidents.

It is necessary for a motor carrier to generate an additional $1,250,000 of revenue to pay the cost of a $25,000. Assuming an average profit of 2%. The amount of revenue required to pay for losses will vary with the profit margin (as shown in the chart below).

Yearly Accident Costs vs Profit Margin

Accident costs consist of any /or all of the following:

Vehicle Damage
Loss of Revenue
Administrative Costs
Police Reports
Cargo Damage
Possible Effects on Cost of Insurance
Possible Effect on Cost of Workmen’s Compensation
Towing
Storage of Damaged Vehicle
Damage to Customer Relationships
Legal Fees
Customer’s Los of Revenue Directly Attributable to Accident

How Driver Training Reduces On-the-Job Crashes

Research shows that driver behavior has a direct effect on on-the-job crashes. As a result, training and compliance should be as important to a company as checking drivers’ Motor Vehicle Reports, maintaining company vehicles, and ensuring on-time deliveries.

Simply put, improving driver behavior is good for business. But keeping your drivers and fleet in compliance in today’s complex regulatory environment is also the law. By creating and enforcing a driver safety and compliance program complete with advanced, behind-the-wheel training, you can ensure that your drivers learn the skills they need to drive more defensively and avoid crashes while also keeping your fleet compliant with U.S. Department of Transportation (DOT) regulations.

Fortunately, most motor vehicle crashes are preventable. The biggest causes of crashes resulting in serious injury or death are speeding, driving while impaired, not wearing a seat belt, and distracted driving.

The impact of distracted driving can be especially devastating. According to the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), 37,461 people died on U.S. roadways in 2016, and distracted driving played a role in 3,450 of those deaths.

Despite the known dangers, in a survey by AT&T, some 70% of respondents admitted to using their smartphones while driving to read and respond to texts, as well as to use email and social media like Facebook, Twitter and Instagram. Some even admitted to shooting videos and snapping selfies from behind the wheel.

Creating and enforcing a distracted driving policy for your fleet that prohibits the use of phones and hands-free devices from behind the wheel in company vehicles can reduce the number of on-the-job driving incidents that result in injuries, death and property damage. Setting rules around the use of navigation systems is also important. Drivers should never set destinations or interact with navigation tools while driving.

An effective driver safety program and driver training methodology can protect employees from on-the-job crashes, protect employers from liability and improve the safety of everyone on the road.

Judge Denies Latest Challenge to California’s AB5 Independent Contractor Law

Mon, 01 Apr 2024 19:37:19 GMT

Before I get started on this update, I just wanted to remind everyone that Assemblywoman Lorena Gonzales, a Democrat, was the one who sponsored this bill back in 2018.

In January of 2022, she announced her resignation from her 80th District for a leadership at the California Labor Federation, AFL-CIO.

The judge on this case, basically said this matter should be handled by the legislature to remedy this problem. So just remember who is on your side when it comes time to vote. California is known for it’s antibusiness nature.

A California federal judge on March 15 rejected trucking’s latest legal challenge to block the state’s enforcement of its Assembly Bill 5 law that severely restricts the use of independent contractors.

Passed in 2019, AB5 put in place a strict “ABC test” for determining whether a worker is an independent contractor or an employee.

All three prongs of the ABC test must be in place for a worker to be considered an independent contractor. The “B” prong says workers cannot be classified as independent contractors if those workers are in the same business as the employer. It’s nearly impossible for trucking’s traditional leased owner-operator model to clear that bar.

The California Trucking Association and the Owner-Independent Drivers Association had renewed motions for a preliminary injunction to keep the law from being enforced against the trucking industry. Oral arguments were held last fall.

The U.S. District Court for the Southern District of California rejected the associations’ arguments that AB5 violates several federal laws and denied its request for a preliminary injunction.

On its website, the California Trucking Association said, “We will be discussing remaining options moving forward with counsel and supporters of the litigation.”

The trucking attorneys at Scopelitis, Scopelitis, Garvin, Light, Hanson & Feary, in a March 18 email alert, said “We anticipate CTA will appeal the decision, but there will be no relief from AB 5 in the meantime.”

“The district court judge was sympathetic to the disruptions and burdens AB 5 places on the trucking industry,” said the Scopelitis attorneys. “However, he indicated it was better left to the legislature to remedy the problem.”

In his decision, Benitez wrote, “Remedying complexities and perceived deficiencies in AB5 are the kind of work better left to the soap box and the ballot box than to the jury box.”

Five Years of Litigation Fighting California’s AB5

2019: AB5 was signed into law and was swiftly challenged in court.

2020: The law was scheduled to go into effect Jan. 1, 2020. On the last day of December 2019, trucking was able to get a preliminary injunction granted to keep it from being enforced against the industry while the California Trucking Association’s legal challenge made its way through the courts. That decision was made by Roger Benitez of the U.S. District Court for the Southern District of California — the same judge who wrote this new decision rejecting the latest challenge.

2021: The preliminary injunction was reversed by the U.S. Court of Appeals for the 9th Circuit in 2021, with a panel of the court ruling that California Trucking Association was unlikely to succeed on the merits with respect to its claim that AB5 is preempted by FAAAA. However, the court kept the injunction in place pending CTA's petition for review by the US Supreme Court.

2022: In the summer of 2022, three years after the bill’s passage, the Supreme Court declined to hear CTA’s challenge to AB5. Soon afterward, Judge Benitez lifted the injunction.

However, CTA at that time said the case was not over, arguing that AB5 as applied to trucking in California violates parts of the Federal Aviation Administration Authorization Act was only argued through motions on the injunction, not in a full court procedure.

OOIDA joined the litigation, and both CTA and OOIDA filed for a renewed motion for preliminary injunction, which was ultimately combined with the full merits trial. Oral argument took place last fall.

On March 15, Benitez denied those claims, saying among other things that the Ninth Circuit decision reversing the court’s prior preliminary injunction negated them.

AB5 Advice for Motor Carriers and Owner-Operators

CTA advised owner-operators and entities who do business with them continue to consult with legal counsel.

Since AB 5 was adopted, both the courts and briefs in CTA’s litigation have suggested that the business-to-business exemption to the ABC Test (CA Labor Code Section 2776) could apply to owner-operators and the entities who hire them, the association notes.

“However, businesses must continue to carefully examine their contractual relationships in the face of AB5 and still-evolving case law.”

FAAAA: Interstate Commerce vs. State Labor Laws

The primary challenges to AB5 have been that the law interferes with interstate commerce and violates the Federal Aviation Administration Authorization Act of 1994.

In the FAAAA, Congress said states “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.”

Benitez’ decision in this latest case references the Ninth Court decision, which said of FAAAA, “Congress did not intend to preempt laws that implement California’s traditional labor protection powers, and which affect carriers’ rates, routes, or services in only tenuous ways.”

Benitez explained in his decision that AB5’s employee classification scheme does not directly conflict with the FAAAA.

“First, it is not impossible for truck drivers to comply with both federal and state law because there is simply no federal standard of classification requiring compliance. The FAAAA does not dictate that truck drivers must be classified as independent contractors or that drivers are not subject to state wage and hour laws. Among the 50 states there are various methods used for classifying workers."

In addition, he said, “While the jury is out as to whether AB5 substantially affects carrier prices, routes, or services, it does not attempt to do so directly.”

Dormant Commerce Clause

The judge also ruled against the suit’s claims that AB5 violated the Dormant Commerce Clause and the Equal Protection Clause of the U.S. Constitution and the California constitution

“As to CTA’s dormant Commerce Clause claim, the court found that AB 5 has no discriminatory intent or effect that would favor California truckers, and without that, courts should generally not engage in a weighing of benefits versus burdens,” explained the attorneys at Scopelitis in an email alert.

In citing a case precedent involving the National Pork Producers Council, Benitez wrote, “the mere fact that a firm engaged in interstate commerce will face increased costs as a result of complying with state regulations does not, on its own, suffice to establish a substantial burden on interstate commerce.”

Benitez said, “California’s interest in protecting in-state drivers from being misclassified as independent contractors and losing statutory entitlements under state labor laws cannot be weighed on a scale opposite the additional dollars spent on compliance by freight hauling businesses.

“While AB5 has economic effects, the effects do not confirm purposeful discrimination against interstate commerce in the design of AB5," the decision explained. "Although courts are not well-equipped to do such weighing… it does not appear that the pure economic burdens on out-of-state worker-drivers and freight hauling firms substantially outweigh the in-state benefits of correctly classifying worker-drivers as employees.”

Benitez several times cited decisions from the Supreme Court, including this quote: “Preventing state officials from enforcing a democratically adopted state law in the name of the dormant Commerce Clause is a matter of ‘extreme delicacy,’ something courts should do only ‘where the infraction is clear.’”

Benitez said that the asserted AB5 infraction is not clear.

Equal Protection Clause

The legal challenge also charged that AB5 violated the Equal Protection Clause of the Constitution.

“CTA also claimed that the legislature improperly targeted the trucking industry under the Equal Protection Clause, pointing to bill sponsor Assemblywoman Gonzales’ public statements to that effect,” said the Scopelitis attorneys. “The court indicated that one legislator’s comments could not be attributed to the entire legislature’s motives for enacting a law.”

The Scopelitis brief also explained that CTA had relied heavily on a recent Ninth Circuit decision in which the appellate court found an Equal Protection violation in favor of Uber, Lyft, and other gig companies. Yet that decision was subsequently vacated for rehearing by the full Ninth Circuit, so it’s no longer a precedent in this case.

Truth in Leasing Rules and AB5’s B2B Exemption

OOIDA tried to make the case that AB5’s B2B exemption violates federal truth-in-leasing rules, making the law irrational.

Under the B2B exemption, a driver-worker need not be classified as an employee if he or she contracts as a sole proprietor or a business entity.

However, Benitez denied that claim.

“At best, Plaintiffs’ contention seems to be an argument that if a motor carrier must exercise exclusive possession and control of a leased truck, then by implication, it must also exercise exclusive control over the owner-operator who may drive the truck,” he wrote.

He said that OOIDA “simply does not explain how [truth-in-leasing] erects an obstacle to using the B2B exemption. Whatever the effect of the federal Truth-in-Leasing regulations are on the ability of interstate owner-operators to take advantage of the B2B exemption (when hauling freight into or inside of California), it is not at all clear that AB5 treats interstate owner-operators in an irrational manner. It is too far of a drive to go from saying that federal leasing disclosure regulations reveal that California’s B2B exemption is irrational.”

Why is the ABC Test Such a Problem for Trucking?

AB5 codified into state law a previous California Supreme Court decision setting forth an “ABC” test in determining whether a worker is an employee or an independent contractor. That test says a worker is an employee, unless it can be certified that:

A the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
B the worker performs work that is outside the usual course of the hiring entity’s business; and
C the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

FINALLY, the Business to Business regulations for Motor Carriers & Independent Contractors can be found in NTA’s Members Portal under Independent Contractor Resources – Federal Regulations

How to Set up a Maintenance Program that Will Keep FMCSA Happy

Mon, 01 Apr 2024 19:33:44 GMT

Many people are puzzled by what the Federal Motor Carrier Safety Administration is talking about in the maintenance regulations. In §396.3 it simply states that a carrier must have a program to “systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles and intermodal equipment subject to its control.”

This applies to all carriers, whether you have one truck or 20,000.

As far as actually establishing the specifics of the maintenance program, that is up to the carrier.

The only other guidance the FMCSA provides is that parts and accessories (the ones required in the regulations) “shall be in safe and proper operating condition at all times.” The specifics about what “safe and proper” means are scattered throughout the regulations, but they are mostly found in Part 393 and Appendix G.

The effectiveness of a carrier’s maintenance program is “officially judged” during roadside inspections. This judging is especially important if you have just gotten your DOT number. All “new-entrant carriers” (carriers that have just gotten a DOT number) are subjected to a “new-entrant safety audit” after 6 to 18 months of operation. One component of this audit is calculating the new carrier’s out-of-service rate (what percentage of the time the carrier’s vehicles “fail” a roadside inspection). If it is too high, it will lower the carrier’s chances of getting lifted off new-entrant status.

Where do you start?

The first step is determining how often you should do maintenance inspections and preventive maintenance on your vehicle(s).

To get started, you can contact the original equipment manufacturer that built the vehicle. Most OEMs have inspection and preventive maintenance (PM) “schedules” available for the vehicles they build. These include recommended intervals (based on miles, hours run, and/or dates) and checklists (items that should be checked).

You should also establish “cut-off points” for major components that wear out. This is the point at which a part or component will be repaired or replaced. The starting point for these decisions needs to be the limits established in Part 393 of the FMCSA regulations, as well as Appendix G. If the regulations do not establish a cut-off point for a part or component, the OEM can usually provide this information.

Tires, brake adjusters, brake linings, fuel filters, and clutches are examples of parts and components that can have cut-off points assigned to them. The idea is to repair or remove the part or component before it creates a problem on the road. This may sound complicated, but it is much better than breaking down (or worse, causing a crash).

Next, set up the records

One key to compliance in this area is maintenance records. If you are audited, these records will be an important part of the audit as they show that you are “taking care” of your vehicle(s).

Carriers — here again, no matter how big or small — must have an “informational record” for each vehicle that includes:

Fleet number (if one is assigned)
Make, model, and year
VIN
Tire size
Owner (if not the carrier)
A maintenance schedule for the unit (a means to indicate when maintenance was last done and is to be done again)

The regulations also require that records of all inspection, maintenance, lubrication, repairs, and upcoming maintenance be kept for one year while the unit is in service, and for six months after the unit leaves service. So far all of this is covered in §396.3. The records can take any form the carrier wants; there are no “required forms” for documenting normal maintenance and repairs. A handwritten note describing what was done or a receipt from a truck shop would qualify as “maintenance records.”

The one exception is periodic (annual) inspections reports. They must contain specific information and be kept for 14 months, rather than 12 .

You will want to set up and maintain maintenance records not just because they are required by the regulations, but because they can help you decide if your maintenance program is working. The records can also help you determine where you are having vehicle problems and how much it is really costing you to operate a specific piece of equipment.

How to Get Control of Driver Log Falsification

Mon, 01 Apr 2024 19:31:26 GMT

In the years since mandatory electronic logging devices for most U.S. truck drivers went fully into effect in late 2019, log falsification violations rank as one of the most common driver-related violations discovered by enforcement officials.

Log falsification is a misrepresentation of a commercial driver’s duty status or driving time on their daily record of duty status. They can be uncovered during roadside inspections or during Department of Transportation audits of motor carriers. And whether they are deliberate or unintentional, they can be a major problem for fleets.

But there are things you can do to reduce the number of violations.

Nearly 5% of all driver-related roadside inspections involved some kind of a log falsification in the years from 2019 to 2023, according to Federal Motor Carrier Safety Administration statistics — and they rank as the fourth most common driver-related violation.

It’s even worse in compliance reviews, Aka DOT audits, where log falsification is actually the second most common violation that’s discovered. The FMCSA has reportedly discovered around 21,000 log falsification violations in their DOT audits, which amounts to around 6% of the audits that they conduct. Those numbers — 5, 6% — don't seem like all that all that big of a deal, but they are.

Why can log falsification violations be so bad for motor carriers, why are there so many false log violations, and what can fleets do to fix it?

Log Falsifications Hurt Your CSA Score

Log falsifications discovered during roadside inspections affect a motor carrier’s CSA (Compliance, Safety, Accountability) score in the hours of service BASIC as shown in the FMCSA’s Safety Measurement System.

“They are heavily weighted, and they can cause a motor carrier’s CSA score in the hours of service basic to tick up pretty quickly,” Wiseman says. “And in fact, a high hours of service BASIC score is a very common trigger for a DOT audit.

“The more log falsifications you as a fleet are incurring, the more likely it is you're going to have the DOT knocking at your door,” he says.

Log Falsifications Hurt Your Motor Carrier Safety Rating

What those DOT inspectors discover during that audit will mean the difference between a Satisfactory, Conditional, or Unsatisfactory Safety Fitness Determination (more commonly known simply as a safety rating.

Remember that during a DOT audit, investigators are looking for critical-level violations in your hours of service records.

What they mean by a critical level of violations is a pattern of noncompliance over a certain period of time, or over a certain number of logs that they are sampling. A 10% or higher violation rate in that context, that would amount to a critical level violation.

Investigators are looking for violations of the rules themselves — the 11-hour driving rule, the 14-hour daily rule, the 70-hour rule, etc. — but they’re also looking for log falsifications.

If they find a log falsification violation rate of 10% or more in the DOT audit — which is not that hard to find — then you’re going to get a critical level violation in the hours-of-service factor for that audit. And if you get a critical level violation in the hours-of-service factor, you're not getting out of that audit with anything better than a Conditional safety rating.

What the DOT has seen in the years of working with motor carrier on their regulatory compliance is that the most common way fleets get a downgraded safety rating is log falsifications.

Aside from getting a downgraded safety rating, the other thing you can usually expect to receive is a civil penalty. Just how much that fine may be will vary based on factors such as the size of your company and how many violations were discovered, but log falsification fines are up from $5,000 up to $50,000.

False Logs + Crash Litigation = Bad News

And let’s not forget the potential for litigation following a crash.

In its 2020 research report on how “nuclear verdicts” affect the trucking industry, the American Transportation Research Institute found that there were five particular factors brought against a defendant that yielded 100% verdicts in favor of the plaintiff.

The top one was hours-of-service or logbook violations.

If your fleet has a real problem with drivers falsifying their logs, whether it’s deliberately or inadvertently, and one of your drivers is involved in a catastrophic accident, you can be sure that the log falsification issue is going to come to light in that litigation. And it may very well haunt you in that litigation, particularly if one of the reasons for the accident has to do with driver fatigue.

How do Log Falsifications Happen?

One of the biggest culprits behind log falsification is the use and abuse of “personal conveyance” status.

In fact, it is being widely misused by a lot of drivers to conceal hours of service violations.

Personal conveyance has always been and continues to be a significant source of misunderstanding among drivers, among carriers, among law enforcement, among the FMCSA itself. Nobody can really get their arms around it.

Personal conveyance, is for a limited circumstance where a commercial driver could legally log their driving time as off duty. When ELDs were implemented, because the device will automatically log as on-duty driving if the vehicles is moving, officials added the “personal conveyance” status as an option so the ELD doesn’t count against their hour’s limits.

A legitimate use of personal conveyance might be an owner-operator who’s not under dispatch and needs to use his truck to help move his brother from Indiana to Florida. Or he has a boat that he needs to take down to the lake. As anyone can see this is for truly personal reasons.

Part of the problem is that personal conveyance is not written in the official rules but is published as a guidance.

Mis-Using Personal Conveyance Status

Drivers can mis-use the personal exemption option in their ELDs, whether it's from a lack of understanding of the rules or a deliberate falsification.

For example, take a driver who’s under dispatch for a motor carrier and has only 50 more miles to go when he or she hits the 11-hour daily driving limit. Regulations require the driver to shut down for the required rest period right there.

“But if you really want to get the job done, and you want to avoid the appearance of an hours-of-service violation, the way you get around that is by flipping yourself into personal conveyance status.

To someone who’s not digging into it very deeply, he says, it will look like the driver was in compliance with the hours-of-service rules that day.

However, it doesn’t take much for law enforcement and for motor carriers to do a little bit of digging on that personal conveyance segment of your time and figure out if you were legitimately off-duty for personal reasons or not. And if they find out that you weren’t, then it's a log falsification.

Ironically, what the driver actually would have been better off to have just violated the 11-hour rule than to be found falsifying driver logs.

Personal Conveyance Misconceptions

A common misconception is that the personal conveyance status can be used by drivers to get to a safe parking place for their required rest if the first place they stop is full. In fact, that is only for right after loading or unloading. The guidance says an accepted use of personal conveyance is “time spent traveling to a nearby, reasonable, safe location to obtain required rest after loading or unloading.”

That's a very common misunderstanding is that that there's some so-called safe haven allowance in the personal conveyance guidance. It’s not true. If you run out of hours and you’re in the middle of the highway, there’s no way for you to get to a safe location to rest except to go in violation. That’s your only option.

“DOT would tell you; you should have planned better for that situation. And now you're going to suffer the consequences of your hour’s violation.

Other Reasons for Driver Log Falsifications

Some of the other common reasons behind log falsification violations may be inadvertent.

For instance, a driver might put themselves into off duty status in a situation where the regulations require them to be in on-duty/not driving status.

The most common example, he says, is drivers logging off-duty when fueling their trucks. That time is supposed to be logged as on duty/not driving.

A lot of times drivers just don’t realize that they’re supposed to be an on-duty status during while they’re fueling their vehicles, and so they flip themselves into off duty status. That’s considered a log falsification.

Another common area where logs are falsified — deliberately or inadvertently — is unassigned driving time when using an ELD.

ELDs automatically start logging driving time whenever a vehicle starts moving. If nobody is logged in, that goes into the carrier’s back-office access to the ELD software and put on an unassigned driving report.

When the DOT comes to audit you, one of the first things they’re going to ask for when they’re looking at your hours of service is your unassigned driving report. And it's a very common way that carriers run into trouble in those audits.

They turn over this unassigned driving report, and if it’s got thousands of hours of unassigned driving time, DOT oftentimes considers those to be log falsifications. Because a way for drivers to conceal hours of service violations is just by not logging into the device.

FMCSA expects motor carriers to be reconciling the time on those unassigned driving reports and assigning them to the driver to whom they belong.

There are certain instances where there's no driver to whom they belong, like when a technician is taking the truck out to diagnose or evaluate a problem. In those cases, it’s important to annotate what those unassigned driving time entries are.

What Can Motor Carriers Do to Prevent Log Falsification Violations?

There's no magic formula to this, it just takes effort on your part to get these things under control.

First things first, you can’t fix what you’re not measuring.

It is recommended that fleets watch key safety and compliance metrics . When it comes to log falsifications, safety managers need to watch the carrier’s hours-of-service CSA score in the SMS.

If you see that you’re getting a bunch of log falsifications, now’s the time to deal with that before it balloons into a big problem and you have DOT knocking at your door.

In addition, monitor key reports that come from your ELD system, such as personal conveyance and unassigned driving time.

Carriers need to regularly audit their driver logs to look for common problems, such as logging fueling time as off-duty.

Remember, once you know where you are having problems, you actually have to take action to get control of them.

If a driver is incurring false log violations or a lot of personal conveyance time, the first step is to have a conversation with that driver.

If it turns out that it’s a nefarious reason, then you need to take disciplinary action against them. There needs to be a progressive discipline program in place in fleet policies and it needs to be followed.

But if it turns out that false log violation, an overabundance of unassigned driving or personal conveyance time stems from a lack of understanding of the rules, drivers need reeducation.

You need to be educating your drivers, making sure they understand when they can use personal conveyance and when they can’t. Or if it's unassigned driving time that you’re having a problem with, making sure that they are being held accountable to logging into their device. Holding drivers accountable, giving them the education they need. That’s really what goes into getting control of these issues.

What's Your Trucking Fleet's Personal Conveyance Policy?

One way motor carriers can address personal conveyance problems is by putting in place a more restrictive company policy than what the DOT guidance outlines.

For instance, the guidance says, a motor carrier could:

Ban the use of a commercial motor vehicle for personal conveyance purposes.
Set a distance limitation on personal conveyance.
Prohibit personal conveyance while under a load.

Understanding Your CSA Safety Record

Mon, 01 Apr 2024 19:26:58 GMT

At the core of the Federal Motor Carrier Safety Administration's mission is the prevention of crashes and fatalities involving large vehicles like trucks and buses. The introduction of the CSA (Compliance, Safety, Accountability) program aims to identify carriers with the highest safety risks and assist them in rectifying their practices.

Utilizing a points-based system, CSA scores are assigned to every motor carrier, including owner-operators. These scores enhance accountability for both drivers and carriers, providing clear guidance on actions needed for safety improvement.

Depending on what is found during a roadside inspection, violations have a point value ranging from one to 10. At some point, if that number gets too high, the DOT [U.S. Department of Transportation] will do an intervention.

That intervention typically comes first in the form of a letter, but if multiple violations have occurred, it could prompt an in-person visit and compliance review.

What Do CSA Scores Mean?

Among the things factored into the scores are the number of safety violations, how severe those violations were, the date of the violations, the number of trucks or buses a carrier operates and the number of vehicle miles traveled.

That information is broken down into seven different categories called Behavior Analysis and Safety Improvement Categories, or BASICs. These categories are:

Unsafe driving . Incidents of speeding, reckless driving, improper lane change, inattention and not wearing a seatbelt.
Crash indicator . History of crash involvement.
Hours of Service (HOS) compliance . Incidents of HOS non-compliance regulations, including logbook records.
Vehicle maintenance : Includes brakes, lights, defects, and failure to make required repairs.
Controlled substances and alcohol . Use or possession of controlled substances and alcohol.
Hazardous materials compliance . Includes leaking containers and improper packaging and/or placarding.
Driver fitness . Includes invalid licenses or being medically unfit to operate a commercial motor vehicle.

To collect this information, the FMCSA uses a tool called the Safety Measurement System (SMS) that identifies carriers with safety violations. While the SMS data can be found online, crash histories and hazardous materials compliance issues are not made available to the public. This is because the general public would not be able to see them in the context of all safety data.

How CSA Scoring Works

Points are assigned for each violation based on its severity, but there isn't a specific minimum point threshold that triggers FMCSA action.

Each fleet is compared with other fleets that have a similar number of crashes, inspections, and violations. Fleets are given a BASIC percentile rating that goes from 0 to 100, and their ranking will determine if their fleet is not meeting safety performance standards.

Various factors impact scores and the recency of violations can triple the points. Points from a violation remain on a fleet’s safety record for two years.

How to Check Your CSA Score

Checking your CSA score lets you know where you stand and gives you an idea of what areas need improvement. You can check your score by visiting the FMCSA site at www.safer.fmcsa.dot.gov and entering your DOT number and PIN on the SMS login page.

If you don’t have a PIN, you can request one from the U.S. Department of Transportation and receive it within four to seven days.

CSA and PSP: How They Work Together

Because a high CSA score depends on good drivers, it’s important to hire drivers with excellent safety records. Just as the FMCSA compiles CSA scores on companies, it maintains records on drivers through its Pre-Employment Screening Program , or PSP.

A PSP record includes the five-year crash and three-year roadside inspection history of a driver. Carriers and companies that are conducting pre-employment screening for commercial drivers can access these records at any time.

According to the DOT, using PSP to screen new hires has helped companies lower their crash rate by 8% and decrease their driver-out-of-service rates by 17% on average.

It’s not mandatory and it’s not free. The subscription fee starts at $25.00 annually for carriers that have less than 100 power units. The transaction fees range from $10.00 each for 1 -10 records and $8.75 each for 100+ records. You want to know what their driving history is. If they have a bad history, you’ll want to pass on them.

Why CSA Scores Are So Important

High CSA scores come with many downsides meaning more than the national average. For one thing, if your scores aren’t up to standards, the FMCSA is going to keep a much closer eye on your operations, and this could lead to corrective action. In extreme cases, it could even result in an Out-of-Service Order that keeps your company from operating.

Just as there are downsides to high scores, there are certain benefits to low scores. Customers who follow rankings will be more likely to want to do business with you, and you’ll have fewer DOT audits and roadside inspections. Recruiting top-quality drivers to join your ranks is easier when you have a great reputation. You also can enjoy lower insurance premiums based on your record.

Of course, most significantly, a good CSA score indicates that your company is operating safely and that drivers are following the rules. Every driver contributes to a culture of safety — and when everyone on the team works together to improve and maintain high CSA scores, the entire company wins.

Out-of-Services Criteria change April 1st, no Fooling !!

Mon, 18 Mar 2024 19:51:53 GMT

On January 30, the Commercial Vehicle Safety Alliance (CVSA) formally announced the upcoming changes to the North American Standard Out-of-Service Criteria (OOSC). This is the decision-making guide officers use when determining if a violation that was discovered during a roadside inspection is serious enough to place the driver and/or vehicle out of service. The OOSC is updated annually, with the changes taking effect on April 1 each year.

Changes for April 1, 2024

The driver part of the OOSC saw several updates, including:

Clarifying that a driver transporting placardable hazardous materials is to be placed out of service if the TSA hazardous materials screening or hazardous materials endorsement has expired, even if the license is still valid.
Clarifying that Class D drivers licensed in Ontario are no longer required to carry a medical card.
Informing officers to cite the regulation at 392.15 when placing a driver listed in the Drug and Alcohol Clearinghouse as prohibited out of service.
Adding drivers with commercial learners permits to the out-of-service table related to operating when prohibited under the Drug and Alcohol Clearinghouse.

Under the vehicle portion of the OOSC, the changes include:

Adding a missing brake cam shaft bushing to the 20 percent criteria.
Clarifying what brake violations are included in the 20 percent criteria and what violations are stand-alone violations.
Clarifying that a vehicle placed out of service as a result of a performance brake test may be retested (as opposed to must be retested).
Updated the coupling section to include a pintle hook that is not locked or not in use (the eye on the trailer drawbar is not inside the pintle hook) and mismatched ball and receiver couplers.
Clarifying that a driver forgetting to turn on the lights when lights are required is a traffic violation, and not a vehicle or out-of-service violation.
Clarifying that a functional light that is the wrong color or improperly placed (such as too high or too low) is a violation, but not an out-of-service violation.
Adding a provision stating that a non-steering tire with a leak in the tread area being kept over 50 percent of the maximum pressure by an automatic tire inflation system (ATIS) is not to be placed out of service (the leak is still a violation, but not an out-of-service violation if the ATIS is keeping up with the leak).

The other materials included in the OOSC, such as the inspection procedures, inspection bulletins, operational policies, and pictures were also updated.

How CVSA Works

Many in the industry are not aware of what the CVSA produces (such as the inspection procedures officers use and the OOSC), how CVSA functions, and the role they can play in it.

The various committees within CVSA (Driver Traffic Enforcement, Training, Vehicle, etc.), act on member submitted action items.

The committees then create or update a policy or procedure, change the OOSC, kill the idea, or table it for further or later action. The committees are made up of members of law enforcement and the industry, with certain members awarded the right to vote on the committee’s actions.

If the committee outcome is a new or changed policy or procedure or a change to the OOSC, it goes to the Board for final approval and implementation. If the Board approves it, the change will go into effect either immediately (in the case of policies and procedures) or when the next OOSC is effective (April 1 each year).

Key to remember: The new Out-of-Service Criteria goes into effect on April 1, 2024. It is to a carrier’s advantage to learn what is changing.

Coalition Sues California Air Resources Board Over Emission Report Mandates

wayne@ntassoc.com (Wayne Schooling) — Fri, 15 Mar 2024 14:42:26 GMT

Groups Take Action Over Mandatory Out-of-State Reports on Supply Chain

I am glad that someone has finally the gumption to take on CARB. Now I’m waiting for some transportation company with the chutzpah to charge a California surge charge on freight.

California is being sued over its new emission laws mandating that companies there and out of state report their supply chain emissions and mitigation efforts.

The legal action was taken by the U.S. Chamber of Commerce, American Farm Bureau Federation, Western Growers Association and two California business groups.

The state government is accused of violating both the First Amendment by forcing a business “to engage in subjective speech” and the federal Clean Air Act, “which pre-empts a state’s ability to regulate emissions in other states — as California seeks to do by mandating reporting on out-of-state emissions.”

A 30-page complaint for declaratory and injunctive relief by the groups was filed Jan. 30 in the Los Angeles Western Division of the U.S. District Court for the Central District of California against the California Air Resources Board and its board chair and executive officer.

The lawsuit also was joined by California’s Central Valley Business Federation (representing 75 businesses and trade organizations with 400,000 employees) and the Los Angeles County Business Federation (420,000 employers, 5 million employees).

The legal action contends that by enacting Senate bills 253 and 261, California is forcing thousands of businesses “to make costly, burdensome and politically fraught statements” about their operations in California and around the world.

The parties accuse CARB of violating the First Amendment by forcing companies “to engage in controversial speech that they do not wish to make” unrelated to any commercial purpose or transaction but instead to place “political and economic pressure on companies” to behave according to California’s political agenda.

“The new corporate disclosure laws require businesses to report on emissions across their supply chain, including indirect emissions, no matter where they occur despite the fact that such emissions can be nearly impossible for a company to accurately calculate,” the chamber said in a statement. “The laws also require companies to subjectively report their worldwide climate-related financial risks and proposed mitigation strategies.”

It noted that California’s new laws, enacted last year, “apply to companies across the U.S. and worldwide on the basis of even minimal operations in the state of California, thus attempting to impose essentially a national standard.”

CARB can impose administrative penalties of $50,000 per reporting year for violations of S.B. 261. The parties noted that the law requires the businesses “to pay for the law themselves, with an annual fee being assessed on covered entities to defray CARB’s costs in administering and implementing the law.” Fees are to be deposited in a new “Climate-Related Financial Risk Disclosure Fund.”

Also, the lawsuit contends that small businesses nationwide are now forced to pay significant costs to monitor and report emissions “to suppliers and customers swept within the law’s reach. For example, scores of family farm members of AFBF [American Farm Bureau Federation] will need to report emissions to business partners that do business with entities covered by S.B. 253.”

To underscore non-California businesses across the nation now subject to CARB’s new powers, the lawsuit cited Triple H Family Farms, a Missouri cattle operation run by third-generation farmer Garrett Hawkins, his father and brother. Although the farm doesn’t operate in California or sell directly to businesses there, Hawkins’ cattle are in the supply chain of California grocery stores that are forced to report on emissions that would include the Hawkins farm.

“Hawkins fears that the requirements of S.B. 253 will have the potential to force rapid consolidation across agriculture, such that only the largest operations will survive” because of the expansive documentation and record keeping required by CARB over his supply chain greenhouse gas emissions.

The lawsuit also gave the example of Michael White, a fourth-generation Texas farmer from Wilbarger County who shares the same concerns and is facing the same regulatory burdens from CARB. White, his brother and nephew raise wheat, cotton, hay and cattle on their century-old Gene & Michael White Farms. The family is concerned that their beef and agricultural products will end up in the “value chain of companies subject to S.B. 253.”

The chamber predicted California’s laws now targeting public and private companies with forced greenhouse gas emissions costs and compliance “will be felt by businesses of all sizes, but especially small, Main Street businesses.”

How does hydrogen fuel cell technology fit into freight transportation? Find out with Parker Meeks, the CEO of Hyzon, a company that designs and manufactures fuel cell technology for heavy-duty transport applications. Tune in above or by going to RoadSigns.ttnews.com .

However, state Sen. Scott Wiener, a Democrat from San Francisco who authored S.B. 253 and heralded its success last year, issued a statement countering the lawsuit for making “bogus arguments about cost and implementation since it’s both inexpensive and easy for corporations to make these disclosures.”

Last year, California legislators were made aware in a state fiscal analysis that legal challenges could arise. The state Senate Rules Committee was presented in September with implications resulting from enacting S.B. 253. The document discussed “unknown but potentially significant costs” to the state Department of Justice’s anticipated “increased litigation referrals from its client, CARB, for legal challenges arising from this bill. DOJ notes the increased costs associated with this potential litigation are unquantifiable but potentially significant; however, DOJ will bill CARB for these costs, which CARB will reimburse fully.”

FMCSA Warns About Fake Safety Audit Scam

wayne@ntassoc.com (Wayne Schooling) — Fri, 15 Mar 2024 14:38:43 GMT

The Federal Motor Carrier Safety Administration is warning motor carriers of an email phishing scam involving a fake DOT safety audit.

An email is being sent to registered motor carriers by someone pretending to be FMCSA and notifying the recipient that they need to schedule a safety audit. The link to request the safety audit has what appears to be a SAFER URL and mirrors FMCSA’s MCS-150, but includes fields to enter a PIN #, EIN #, and Social Security Number.

Phishing e-mails masquerade as being from reputable companies or entities in order to get the recipient to reveal personal information, such as passwords and credit card numbers. In this case, some of the information being requested is not only sensitive personal information that could be used for purposes such as identity theft, but this information would also allow the unauthorized party to gain access to your FMCSA account.

The agency says the email containing the link is very convincing as coming from FMCSA.

FMCSA explains that communications relating to safety audits will typically come directly from an FMCSA dedicated mailbox, or from the state entity that has been assigned the responsibility to conduct the safety audit. While these emails typically end in a “.gov”, FMCSA recommends that you verify any potentially suspicious email or communication with the appropriate agency or contact your FMCSA Division Office directly to clarify.

The Federal Trade Commission has some advice on how to recognize phishing scams.

If you suspect your company has been victim of fraud or identity theft, we recommend using the official website of the Federal Trade Commission (FTC) dedicated to reporting fraud cases at: https://reportfraud.ftc.gov/#/

If you need assistance with your registration, please contact FMCSA by calling 1-800-832-5660.

Do Your Drivers Understand Their Brakes?

wayne@ntassoc.com (Wayne Schooling) — Fri, 15 Mar 2024 14:35:57 GMT

Drivers are an integral link in the brake maintenance chain and thus the vehicle safety chain. They are hands-on with the equipment every day, while shop staff see trucks very much less frequently. Drivers see, hear, and feel the trucks in action, while technicians see only a static component. Do your drivers know enough about brake systems to help maintenance staff identify defective equipment?

Brakes pose an interesting diagnostic and maintenance challenge. On the whole, modern brake systems, drum or disk, operate reliably and trouble-free for hundreds of thousands of miles, so the de facto condition of brakes is good-to-go. On top of that, brakes are seldom stressed under normal operating conditions, so any underlying problems may never be detected. With engine brakes as effective as they are, brake applications above 20 or 30 psi are uncommon, yet it's at higher application pressure that problems can become more obvious.

Take brakes that pull to the right or left, for example. Drivers wouldn't notice a pull at low application pressures, but if a problem existed, they surely would notice something at 40 or 50 psi application pressure. There are several possible culprits for a pulling condition:

One or more brakes may be out of adjustment.
Brake clevis pins could be seized, inhibiting push-rod movement.
Cam bushings could be seized or damaged, inhibiting rotation of the cam rod.
Brake linings could be contaminated with oil caused by a failed wheel seal.
Brake chamber push rods cut to the wrong length could be hanging up on the mounting brackets, inhibiting travel.
Brake relay valves may be delivering unequal air pressure or volume to different wheel-ends.
Air lines that aren't matched to brake chamber type, or a restricted or leaking air line, could cause unequal air pressure or air volume to the brake chamber.

How would a driver know to report such a condition to the maintenance department if he or she had never experienced a symptom? Yet I'm sure you'd agree any of those conditions could be present on any number of your trucks.

Some cases where a truck pulls to one side or another may not be brake-related at all. Failed or worn suspension bushings will cause a temporary misalignment of the steer or drive axles when the brakes are applied, causing the unit to pull right or left.

A thorough visual inspection of the type performed by roadside inspectors during events like Brake Safety Week or Roadcheck would uncover some of those problems, but not all.

Are the Basics Enough?

I have always believed that the basic air-brake training drivers receive in pursuit of a CDL overemphasizes the technical/mechanical side of the brake system while doing little to contextualize brakes as drivers experience them from the driver's seat.

What's really more important in day-to-day operation: being able to point out on a schematic diagram which valves are relay valves, or what it feels like when the tractor brakes apply sooner than the trailer brakes?

In terms of their potential for calamity, which scenario would be worse: brake linings worn thin and close to the legal limit, or nice thick linings that never wear down because they are so hard and have a very low coefficient of friction? I've driven with such linings; they will last forever, but they hardly stop the truck. Would a rookie driver know the difference between hard linings and brakes that had gone beyond their adjustment limit? They feel about the same.

Given the number of brake violations uncovered at various organized inspection blitzes, I hardly think drivers are doing a good job at keeping ahead of the problems.

It's a near certainty that few drivers do mark-and-measure inspections every morning. They probably don't need to go that far every day, but cheap and easy-to-install brake stroke indicators would help turn the mark-and-measure inspection into a one-knee inspection where a driver could conveniently visually verify that the brakes are still reasonably close to being in proper adjustment.

But how many drivers would understand the difference between spring-applied brake stroke and an application of between 90 and 100 psi? Drivers need to be aware that the difference between the two could be upwards of half an inch of stroke length. If it's near the limit with the parking brakes applied, it will almost certainly be over when checked under full application pressure by a CVSA inspector at roadside.

How much coaching and brake update training do you offer your drivers?

Most of them are not mechanics or engineers, and they probably don't need to understand schematic diagrams, but it would sure be useful to get a few reminders in the company newsletter on how to inspect brakes on one knee or how to interpret a pulling sensation in the steering wheel when the brakes are applied.

How about a reminder of how to apply brakes when the ABS isn't working (ever noticed black electrical tape covering the dashboard ABS lamp)?

I'd bet that few drivers really understand their brake system in a practical sense. And if you think they are likely to have retained much of what they learned in CDL school two, five, or 10 years ago, you're fooling yourself.

If you're thinking that a brake refresher course for drivers might be a good thing, ask yourself, are we doing it to pass brake inspections or to improve road safety? That might inform what you decide to offer them.

Five Ways to Improve Your CSA Score

wayne@ntassoc.com (Wayne Schooling) — Fri, 15 Mar 2024 14:30:04 GMT

If you’re looking to better your trucking business, improving your Compliance, Safety, Accountability (CSA) score has several benefits.

Issued by the safety compliance and enforcement program of the Federal Motor Carrier Safety Administration, a good CSA score can produce lower insurance premiums, help to attract and retain business, and potentially reduce the frequency of Department of Transportation audits.

With more than 35 years of industry experience as a company driver and a trucking business owner, I’ve been part of several inspections with no penalties received. Now I help trucking customers improve business operations and safety issues, boosting their profitability and CSA scores. Here’s what I’ve learned.

How CSA Scores Affect Your Trucking Business

Through on-site investigations — which can happen because an officer has spotted something off about driver behavior, the state of the commercial vehicle, or for the sole purpose of conducting an investigation — the enforcement officer or DOT auditor may issue a Safety Fitness Determination rating. This is often referred to as a safety rating.

The four SFD ratings are:

Satisfactory: The FMCSA determines the trucking company meets basic safety fitness standards.
Conditional: This rating is essentially a warning. This means the DOT auditor does not think the company’s safety program is sufficient, but it hasn’t yet violated a safety fitness standard.
Unsatisfactory: The trucking company is failing to comply with CSA safety standards and violations have occurred and been documented.
Unrated: The FMCSA hasn’t issued a SFD for the carrier. Although major trucking companies and brokers who book their freight are pressuring the FMCSA to attach a safety rating to unrated carriers, this is currently the rating for over 90% of the freight market.

There are a few primary ways that a conditional or unsatisfactory rating can negatively impact your business.

Carriers with poor CSA scores can face increased scrutiny from regulatory authorities, resulting in more frequent roadside inspections, compliance reviews and audits.

They also can face operational disruptions, higher insurance costs, difficulty securing and maintaining contracts, driver recruitment and retention challenges, and more.

If your trucking business has a poor safety rating or you’re looking to maintain your positive rating, there are several things you can do to help get ahead of the curve.

Conduct Internal Safety Audits

It’s best to identify safety issues before the FMSCA does it for you. Consider the value of an internal audit, in which you vet drivers’ hours of service compliance and required documentation such as commercial driver’s licenses and medical certificates and you perform vehicle inspections. This process can help you identify weaknesses in your safety program and can help give drivers the confidence they need to ace inspections.

Implement Regular Training and Education

It’s your job to ensure drivers have the information they need to operate safely. I usually advise trucking customers to have mandatory safety training at least monthly, focusing on timely topics and using real situations as examples.

Communicate Clearly and Frequently on Safety

Safety isn’t a “set it and forget it” issue. Posted safety reminders, regular emails and/or newsletters are a few ways to keep safety top of mind. Consider asking your drivers for input as to how they prefer to receive safety information and for ways the company can better prioritize safety.

Recognize and Incentivize Safe Drivers

Some trucking companies offer drivers safety bonuses to incentivize good behavior. Examples of behaviors that earn bonuses include clean roadside inspections, no accidents, or no tickets or violations.

More in-depth bonus programs can include points that add up for everything from not missing workdays, to on time deliveries, or following policies. Also consider honoring safe drivers at safety meetings or including their names in your company newsletter.

Schedule Regular Reviews of Your Safety Program

A successful safety program should be written, but the guide should be seen as a working document that is regularly updated to address the actual exposures faced by drivers and the processes for them to deal with those exposures.

Introduce the guide to drivers during orientation and reinforce its principles through ongoing training, testing and two-way communication.

Although there are many things you can do to improve your company’s CSA scores, adopting these best practices can help to ensure your drivers are effectively prepared to ace future inspections.

Five Easy Fixes for Hours-of-Service Violations

wayne@ntassoc.com (Wayne Schooling) — Fri, 15 Mar 2024 14:18:52 GMT

More than unsafe driving and traffic violations, most drivers have a hard time complying with hours of service (HOS) regulations. HOS compliance is one of the CSA BASICs, and keeping a low score in this category is often the cause of a lot of frustration across the industry.

Fixing hours of service problems are often a key way to keep safety scores in check and control the frequency and severity of roadside inspections.

Keeping track of the complicated rules surrounding a driver’s hours is troublesome for many carriers and drivers. This is reflected by the fact that the majority of driver violations from roadside inspections are HOS related. What seems like the smallest infraction counts towards drivers being considered too fatigued to drive by an inspector.

Thankfully, there are some simple steps that can go a long way toward improving HOS compliance. Best of all, it’s often fairly easy to implement without costing a fortune.

Electronic logbook apps that take advantage of the massive computing power many of us already carry in our pockets provide an excellent replacement to paper logbooks. These apps are often free and can be used to help eliminate all HOS-related driver violations.

Here are the most common HOS driver violations from roadside inspections, and how to fix them:

1. Stopping Form & Manner Violations

Over 70% of all HOS violations are related to form and manner issues. The prevalence of these violations is likely due to the fact they are easy to spot by an inspector. So what is form and manner? Basically, it is the set of clerical tasks needed to complete a driver’s log. Along with recording duty status, drivers also have to make sure they have the following information recorded on their logs:

Date
Name of carrier
Main office address
Total miles driving today
Vehicle number
Driver’s signature/certification
Name of co-driver
Remarks
Shipping document number(s)

That’s a lot of information to keep on top of. Even when complete, sloppy paperwork, poor handwriting and small mistakes can also lead to violations and longer inspections.

The Fix – Kiss messy paperwork goodbye. An electronic logbook app automatically fills out any fields that stay the same each day, and it eliminates the tiny mistakes. With each day’s log drivers will be reminded what missing fields still need to be completed. Any remarks the added by the driver are legible and mistakes are easily fixed leaving logs free of messy scribbles.

2. Stopping Not Current Violations

Unlike the multiple things that can lead to form and manner violations, this one is a lot simpler. The duty status graph on a log must be current to the last change of duty status. If not, drivers run afoul of the ‘not current’ violation. Forgetting to update duty status is the second most frequent HOS violation found in a roadside inspection. This is sometimes due to a lack of vigilance on the driver’s part, as there are many drivers that still like to do their logs at the end of the day or when dispatch starts asking for them.

The Fix – With the touch of a screen, all a driver has to do is set themselves to on duty when they start their shift and off duty when they finish. Electronic logbooks can detect when a vehicle is in motion and automatically change duty status so it’s not really possible to fall behind.

3. Stopping Driving Beyond Time Violations

Driving beyond the14-hour duty period is the most common violation when it comes to drivers going beyond their allotted time. Drivers are only allowed to drive a maximum of 11 hours a day and these hours must be within a 14-hour period from when they first come on duty. Often drivers don’t realize they have gone beyond the 14-hour period, as they haven’t used all the allotted driving time in a day. It’s also worth mentioning here that the next most frequent driving beyond time violation is driving more than 11 hours within the 14-hour window. Both show that keeping time can be difficult when out on the road.

The Fix – Keeping track of remaining time and not going beyond the daily and weekly time limits is frustrating task for most drivers. An electronic logbook can tell a driver to how much time they have left and alert them when they are running low on remaining time. These apps can automatically calculate remaining drive time in a 14-hour shift as well as alert drivers to when they should take a break. They can also let drivers know how long they have left for a shift reset and let them know when they have worked the maximum weekly 70 hours as well tracking the time in their 34-hour reset.

4. False Records Violations

Falsifying logs is a violation that can land offenders into some really hot water. Over 75% of the time, a false report of a driver’s record of duty status will result in an out-of-service violation. Unfortunately, drivers who think they can do a week’s worth of logs in a single sitting are setting themselves up for trouble. Fudging the numbers doesn’t work for drivers who don’t record their duty status properly. They are unable to say for certain if they actually drove within the correct time limits. If an inspector suspects a driver of falsifying logs, the driver can expect a very thorough inspection. DOT inspectors already know what kind of distances can be covered within a reasonable time. Drivers who think they can cheat their logs better also be prepared back up their claims with gas receipts.

The Fix – Along with automatically recording duty status, electronic logs will add the location to the log at each change of duty status. Taking the grind out of logs encourages drivers to complete them properly. Logs can be completed quickly when most of the work is done automatically. This eliminates the need to rely on memory to complete missing information on logs.

5. No Record of Duty Status and Failing to Retain Previous 7 Days’ Logs

Lastly, failing to provide a record of duty status along with not being able to present logs for the last seven days completed are on the list of most common driver violations. Inspectors are even tougher on these two violations than false log violations, with 86% resulting in out of service violations. Not all drivers know if they need to record their duty status. This is especially true of companies that own smaller vehicles. Also, constantly having the last seven days of logs readily available requires drivers to remember to carry a lot of extra paperwork. It’s easy to misplace just a single day’s record of duty status.

The Fix – The only fix for no record of duty status violations is education. Giving drivers an easy-to-use tool, like an electronic logbook, encourages them to be more diligent with their logs. Also, electronic logbooks remove the fear of lost paperwork by automatically storing the previous seven days of logs. These can be presented during a roadside inspection using an inspection mode that makes them look as familiar to an inspector as paper.

What Steps Should I Take Now?

This list of violations ranges from minor mistakes, all the way to an increased chance of out-of-service violations. Not only do these violations affect the HOS safety score, fines can often be costly especially for repeat offenders. Factor in the time lost from roadside inspections and it’s easy to see why taking care of HOS compliance pays for itself.

Providing training on HOS regulations to drivers is a great start. A great place to find the proper examples of Hour-of-Service can be found inside the Members Only section at www.ntassoc.com that gives an overview on how HOS regulations work. It covers who must comply with HOS regulations, how HOS are recorded and what core rules a driver must follow.

The free NTA ELD electronic logbook app is perfect for drivers. It produces clean, compliant logs that are ready for roadside inspection. With the addition of fleet management tools, fleet managers can also alert drivers when their logs pose a roadside inspection risk. NTA ELD offers a complete, inexpensive and effective solution to HOS compliance.

Before rolling out a companywide HOS compliance solution like NTA ELD, it is important to understand the ins and outs of the system. Knowing how a system works will make the transition to an electronic logging system a lot simpler.

Important Things to Know About DOT Audits

wayne@ntassoc.com (Wayne Schooling) — Fri, 15 Mar 2024 14:05:07 GMT

It’s no secret to anyone in trucking that highway transportation is one of the heaviest regulated industries in the U.S. The Federal Motor Carrier Safety Administration is the federal agency charged with that regulation. For years, its primary enforcement mechanism for ensuring that regulated carriers comply with the multitude of safety-related regulations has been the compliance review, or safety audit. Because FMCSA is a sub-agency of the Department of Transportation, it’s commonly called a DOT audit.

There are few things more nerve-racking for a motor carrier, and for good reason. For one, the stakes couldn’t be higher. A DOT audit can result in significant fines, a downgraded safety rating, and even a company-wide out-of-service order, depending on the nature and extent of regulatory violations uncovered. For another, when the DOT selects a carrier for an audit, it typically only has 48 hours to prepare.

No motor carrier expects to be audited, and most do little to prepare until it’s too late. But simply understanding the process goes a long way to ensuring a positive outcome should an audit ever come.

The FMCSA prioritizes motor carriers for audits

The FMCSA is a relatively small agency, even though it is tasked with regulating nearly 600,000 carriers and millions of commercial drivers across the country. That means the agency lacks the personnel to audit a significant percentage of regulated carriers at any regular interval. Accordingly, it has to prioritize carriers for audit. Understanding what factors the agency uses to prioritize carriers for audit is important for all carriers to understand so they can do their best to keep out of the crosshairs.

Since 2010, the FMCSA has relied primarily on its Compliance, Safety, Accountability (CSA) program, and more specifically, its Safety Measurement System (SMS), to prioritize carriers for audits.

High CSA scores can prompt an audit.

SMS is a system that scores all regulated motor carriers using data gathered through roadside inspections, crashes, and investigations within the past 24 months. Violations discovered through inspections and/or investigations are assigned to one of seven categories known as BASICs, and then weighted, based in part on their severity and how recently they occurred. Each carrier's performance is then evaluated against similarly situated motor carriers in each BASIC, and the carrier is assigned a percentile score in each BASIC.

Ultimately, carriers who perform worse than a certain percentage of their peers and exceed certain “intervention thresholds” in one or more BASICs in a given month will be higher on the agency's list for a potential audit.

Carriers with two or more BASICs in “alert status” are much more likely to be targeted for an audit. In 2021, high CSA scores triggered nearly 7,500 carrier audits, which accounts for nearly 75% of all audits conducted that year. So it's imperative that carriers closely track their scores and take deliberate steps to keep them in check.

Serious accidents can prompt an audit.

If the purpose of federal and state motor carrier safety regulations is to reduce highway accidents and resulting injuries, it should come as no surprise that accidents tend to trigger DOT audits. But not just any accidents. It’s typically the more serious accidents, especially fatalities, that prompt the FMCSA to take a closer look. This is particularly true in areas of the country where DOT auditors have more capacity to conduct audits.

Something to keep in mind with accident-related audits is that they tend to start out more focused in nature. For example, the agency may only request compliance documents for the driver involved in the accident. However, these types of audits quite frequently transform into more comprehensive audits, particularly when the accidents garner publicity.

Safety complaints can trigger an audit.

Yet another common trigger for a DOT audit is a complaint made against the motor carrier. The FMCSA explicitly solicits safety-related complaints on its website, and it tends to take them seriously. It’s not uncommon for disgruntled employees to file these complaints and prompt a DOT audit, even when their complaints have no real basis in fact. Regardless, carriers should take care to thoroughly investigate any internal complaints they receive before they blossom into a full-blown DOT audit.

FMCSA audits can take several forms

The FMCSA conducts several types of audits: comprehensive, focused, onsite, offsite, new entrant, etc. Historically, it has favored onsite, comprehensive reviews; however, more recently, the agency has turned to offsite audits to extend its enforcement reach.

The primary benefit of these offsite reviews, of course, is they allow the agency’s investigators to review documents from their own offices, cutting down the time and expense of traveling to and from a carrier’s terminal, and relying, instead, on the electronic transfer of documents from the carrier.

Prior to the COVID-19 pandemic, the agency typically reserved these offsite reviews for less intensive circumstances, such as new entrant safety audits and focused reviews — those involving a lower volume of paperwork. However, as the offsite review process became more streamlined and reliable, the agency slowly began to ramp them up. And then came COVID-19 — a complete game-changer for offsite reviews.

As addressed in a prior article, FMCSA offsite audits are up over 400% over the last couple of years, and they’re not slowing down. In fact, the agency has amended its regulations to authorize the issuance of safety fitness determinations — previously reserved for onsite reviews — following an offsite audit.

Whether onsite or offsite, an audit can be focused on one or a few areas of compliance (such as hours of service) or it can be comprehensive, meaning the agency is looking at all major areas of a carrier’s compliance program. Occasionally, the agency will start an audit as a focused review but subsequently expand the scope based on violations discovered early on. Carriers should not be lured into a false sense of security if they learn their review will be focused in nature.

The agency follows a detailed auditing methodology

What many carriers don’t realize is that FMCSA investigators follow a very specific and methodical process when conducting their reviews. What’s more, this methodology — known as the Electronic Field Operations Training Manual or eFOTM — is available for all to access, if you can stomach the 1,082-page read.

The manual details the sample sizes that agency investigators are supposed to follow when selecting records to review. For example, eFOTM prescribes a sample of 80 driver files for a fleet with between 501 and 1,200 drivers. The manual also describes the steps investigators should take to understand the carrier’s safety management program and confirm it’s sufficient under the circumstances.

DOT audits can lead to the issuance of a safety rating and/or civil penalties

DOT safety ratings (aka safety fitness determinations) are reflections of a motor carrier's compliance with the Federal Motor Carrier Safety Regulations as of the date of the FMCSA audit that resulted in the rating. There are three possible ratings: Satisfactory, Conditional, and Unsatisfactory. If an audit reveals substantial enough non-compliance, the carrier will receive an Unsatisfactory rating, which will ultimately result in the carrier being shut down.

Aside from the regulatory consequences, safety ratings can also have commercial consequences, given that they are publicly available through the FMCSA's online SAFER database.

The FMCSA determines a carrier's safety rating in accordance with the detailed safety rating methodology contained in Appendix B to 49 C.F.R. Part 385. As a preliminary matter, the FMCSA only issues safety ratings to carriers that have undergone a comprehensive on- or off-site compliance review.

Once a carrier is selected for a comprehensive audit, the investigator evaluates and rates the carrier's compliance in six broad factor areas:

general compliance (parts 387 and 390 of the FMCSRs);
driver (parts 382, 383, and 391 of the FMCSRs);
operational (parts 392 and 395 of the FMCSRs);
vehicle (parts 393 and 396 of the FMCSRs);
hazardous materials (part 397 of the FMCSRs and parts 171, 177, and 180 of the HMRs)
accidents (based on the carrier's calculated accident rate).

Each individual factor rating depends on the number of “acute” and/or “critical” violations the investigator uncovers within those factors.

Once the investigator completes the audit, he or she will tally the number of acute and/or critical violations in each of the six factor areas and assign a safety rating according to a particular formula. Carriers who receive a less-than Satisfactory rating have a couple of options to upgrade that rating, including through an administrative appeal or by taking prompt action to correct admitted deficiencies.

Aside from safety ratings, audits can also lead to civil penalties. The agency routinely assesses penalties following audits, particularly for more serious violations. In 2021, the agency closed 2,771 civil penalty cases for a total of $18.37 million and an average of $6,629 per case.

The consequences of a bad DOT audit are severe, so carriers should take proactive steps to prepare. At minimum, this should include ensuring compliance records are up to date and in order.

Is Your Company’s Pickup Truck Really a Commercial Motor Vehicle

wayne@ntassoc.com (Wayne Schooling) — Mon, 11 Mar 2024 18:26:17 GMT

The notion that a company pickup truck might be a commercial motor vehicle (CMV) may seem highly unlikely to some.

Common arguments against classifying a pickup as a CMV often include the truck:

Is not transporting cargo, and
Is too small.

But, an examination of the Federal Motor Carrier Safety Regulations (FMCSRs) could very well reveal that some smaller fleet vehicles qualify as regulated CMVs.

Is it a CMV? How Do I Know?

When determining whether a smaller vehicle is a CMV, consider the following:

Commerce involves anything that moves business forward, such as hauling supplies and tools to and from a worksite, dropping off workers, or just visiting a worksite. If you are not hauling freight for someone else, you can still be considered a private (motor) carrier.
The weight threshold of 10,001 pounds or greater in the CMV definition (§390.5) includes the truck, load, and any attached trailer (including a small utility trailer). This weight is based on the manufacturer’s specifications of the truck by itself or with a trailer. If you exceed the manufacturer’s weight specifications, the actual weight of the vehicle or vehicle combination is used to determine applicability. If the actual weight is 10,001 pounds or greater, you have a CMV.
Any size vehicle hauling placardable amounts of hazmat is a CMV.

If the vehicle only meets the definition when pulling a trailer, you would only be concerned about observance of the safety regulations on those days it meets the definition.

It’s a CMV. Now What?

Even if you find you (mistakenly) didn’t identify your pickup truck as a CMV, all hope is not lost. If you demonstrate a good faith effort to comply with the regulatory requirements going forward, this will lessen the impact during an FMCSA audit.

Pickups that are defined as CMVs must be reflected on your FMCSA registration (MCS-150) as straight trucks. And, you need to adjust your number of drivers, trailers, and vehicle miles traveled.

Next, you must make sure that both the driver and vehicle meet all applicable safety regulations.

The vehicle and any attached trailer are subject to such areas as:

USDOT markings.
Cargo securement.
Weigh station stops for roadside inspections (depending on the state).
Annual vehicle inspections.
Daily pretrip and post-trip vehicle inspections.
Recordkeeping for repairs and preventative maintenance.
Equipment requirements.
Vehicle standards.

The driver of a regulated vehicle, including a pickup, must have a complete driver’s qualification (DQ) file. If current operators do not have a file, you must generate one as soon as possible.

Never try to hide a violation, such as backdating documents to give the appearance records were created prior. Falsification is frowned upon and carries a hefty price tag for fines. A best practice is to place note in the file indicating the date you discovered the violation and what you are doing going forward so that the violation is not repeated.

For instance, someone within the organization will be given the role of maintaining driver qualification files. You could indicate that all vehicles are being properly classified going forward and only qualified drivers will be assigned to them.

In addition, the operator of the vehicle is subject to hour-of-service (HOS) limits. The company may be required to equip the vehicle with an electronic logging device (ELD) unless it qualifies for one of the exceptions. However, an exception to the ELD requirements may not remove all HOS requirements.

ELDs exceptions used for pickups may include:

Vehicles manufactured before model year 2000, when electronic control modules were not required.
Drivers who are required to use a standard paper log no more than eight days within any 30-consecutive-day period. Examples include “intermittent” or “occasional” drivers and drivers eligible for a short-haul exception in §395.1(e). These drivers may continue to use paper logs when necessary in place of ELDs.
Drivers claiming exceptions such as utility service vehicles and certain agricultural operations.

Don’t Cut Your Fleet Short

When deciding which of your vehicles and drivers are subject to the federal safety regulations, don’t limit yourself to the big rigs. CMVs come in a variety of shapes and sizes, and are used for variety of business activities, not just hauling freight.

Always compare the vehicle or vehicle combination against the definition of CMV in §390.5.

Commercial Drivers and Cold Medicines

wayne@ntassoc.com (Wayne Schooling) — Fri, 08 Mar 2024 20:11:06 GMT

It’s the season for respiratory illnesses, and many of your employees and commercial motor vehicle drivers may be coming to work under the weather. They may feel ill but not bad enough to stay home, so they medicate.

However, using some prescriptions or over-the-counter medications to relieve symptoms can create safety risks when operating a commercial vehicle or truck.

Common Side Effects of Medications for Respiratory Illnesses

When suffering from a respiratory ailment, employees need to be aware of the potential side effects of medications.

Depending on the specific drug, a person may experience one or more of the following:

Drowsiness
Dizziness
Upset stomach
Blurred vision
Headache
Nervousness
Fast heartbeat
Increased blood pressure
Loss of appetite
Sleep problems

And, of course, employees should always check for interactions with any other medications they are taking.

Guidelines for Ill and Fatigued Commercial Motor Vehicle Drivers

A driver is prohibited from operating a CMV when impaired or likely to become impaired through fatigue, illness, or any other cause.

If the driver’s condition or medicinal side effects call into question the ability to safely drive a CMV, the driver can’t be dispatched.

This regulation holds both the motor carrier and driver accountable, so:

The driver is responsible for notifying the carrier when too ill or fatigued to be safe,
Motor carriers must not pressure drivers to endanger themselves and others when not feeling up to operating a vehicle, and
Supervisors must be observant and identify drivers who should be pulled off the road.

Understanding Prohibited Drugs in the Federal Motor Carrier Safety Regulations

There is no official list of prohibited drugs in the Federal Motor Carrier Safety Regulations (FMCSRs). Instead, the regulations reference the Schedules of Controlled Substances appearing in the Drug Enforcement Administration (DEA) regulations (21 CFR 1308).

DEA’s Schedule I is the only drug list prohibited in the FMCSRs, with no exceptions. Marijuana is on this list, and it is prohibited even when permitted under state law. Use of all other schedules of controlled substances is based on what the prescribing doctor said about its use. In other words, the driver is explicitly told it won’t interfere with the ability to operate a CMV safely. This stipulation appears in the general safety rules (392.4) and driver physical (391.41), both of which apply to all CMV drivers.

Drivers operating CMVs requiring a CDL are given the same exception (382.213).

Over-the-Counter Medications and Their Impact on Safe Driving

Over-the-counter medications are also included in 392.4 if they affect a driver’s ability to operate a CMV safely. Many cold medications have side effects that cause drowsiness.

A motor carrier must pull a driver from operating a CMV if there is a safety risk.

The state of Oregon recently enacted a law that considers the use of over-the-counter medications, such as NyQuil, as a possible cause of DUI.

Alcohol in Medications and Its Effects on Commercial Drivers

Commercial drivers must be careful when using any medication containing alcohol. Cold-and-flu medications and cough syrups have been known to contain 10 percent alcohol to help dissolve the ingredients. This is equal to 20-proof liquor. Often, the alcohol interacts with the other active ingredients in the medications to make the user sleepy, groggy, and/or dizzy.

The regulations are clear regarding alcohol use, whether included in cold medicine or consumed as a beverage. Drivers are prohibited from:

Consuming alcohol within four hours of coming on duty;
Consuming alcohol or having any measurable concentration while on duty or in physical control of a CMV; and
Carrying any unmanifested alcohol (including medicine) on the CMV.

Closing Thoughts

During the cold and flu season, make sure your drivers understand the limitations placed on them when using medication.

A mistake in judgment is more than a violation of the FMCSRs. It may be a crash waiting to happen.

FMCSA Revokes 5 ELDs from Registered List

wayne@ntassoc.com (Wayne Schooling) — Fri, 08 Mar 2024 20:07:17 GMT

The Federal Motor Carrier Safety Administration has removed five electronic logging devices from its list of registered ELDs.

Registered ELDs have been self-certified as meeting federal standards by the provider.

FMCSA placed these ELDs on the Revoked Devices list due to the companies’ failure to meet the minimum requirements established in the ELD regulations:

CI ELD LOGS from CV Options LLC
CN ELD from ELD Connection
KSK ELD from KSK Group Inc.
TT ELD 30 from TT ELD Inc.
TT ELD 1010 TT ELD Inc.

The removals were effective Feb. 28, 2024.

If the ELD providers correct all identified deficiencies for their devices, FMCSA will place the ELDs back on the list of registered devices and inform the industry of the update.

Two of these devices — CI ELD LOGS and KSK ELD — were put on the revoked list last year, but the agency later reinstated them. Now they are again on the revoked device list.

There are currently 22 devices on the revoked list that were revoked by FMCSA. Many others have been self-revoked by the manufacturer for various reasons, such as they are no longer providing that particular ELD or have gone out of business.

What To Do If You Are Using a Revoked Electronic Logging Device

Motor carriers who are using these revoked ELDs must take the following steps:

Discontinue using the revoked ELDs and revert to paper logs or logging software to record required hours of service data.
Replace the revoked ELDs with compliant ELDs from the Registered Devices list before April 28, 2024.

Carriers have up to 60 days to replace the revoked ELDs with compliant ELDs.

Until that time, FMCSA encourages enforcement officials not to cite drivers using these revoked ELDs for 395.8(a)(1) – “No record of duty status” or 395.22(a) – “Failing to use a registered ELD.”

Instead, safety officials should request the driver’s paper logs, logging software, or use the ELD display as a back-up method to review the hours-of-service data.

Beginning April 28, motor carriers who continue to use the revoked devices will be considered as operating without an ELD and placed out of service.

Republican Lawmakers Target FHWA Rule

wayne@ntassoc.com (Wayne Schooling) — Mon, 04 Mar 2024 20:12:17 GMT

Senior Republicans are seeking to undo emissions targets the Federal Highway Administration is requiring of state transportation agencies.

Relying on a procedural resolution, the lawmakers seek to nullify the recent move by FHWA. The Republican measure’s consideration has yet to be scheduled for a vote. This procedural tool from Rep. Rick Crawford (R-Ark.) and fellow Republicans coincides with their caucus’ opposition to the Biden administration’s climate change and economic agenda.

“This one-size-fits-all regulation puts states with more small towns and rural communities that are not able to cut emissions by building a metro system, buying electric buses or building miles of bike lanes between communities at a significant disadvantage,” Crawford, chairman of the Highways and Transit Subcommittee, said Feb. 7. “What’s most galling is that this administration has implemented this rule despite having no statutory authority to do so. This is the heavy hand of the federal government run amok.”

“While the infrastructure law included provisions to address transportation-related environmental impacts and transportation resiliency, Congress considered and specifically rejected the inclusion of a [greenhouse gas] performance-measure requirement during negotiations,” added Sam Graves (R-Mo.), chairman of the Transportation and Infrastructure Committee. “The Biden administration needs to implement the law that was written — not a law that it keeps wishing had been written.”

More than five dozen Republican colleagues in the House have co-sponsored the resolution. FHWA’s rule requires state departments of transportation and metropolitan planning organizations to establish declining carbon dioxide targets. State DOTs and MPOs also are required to issue reports about their progress toward achieving those targets.

On the other side of the Capitol, most senators have expressed their support. Sen. Kevin Cramer (R-N.D.), ranking member of the Transportation and Infrastructure Subcommittee, is leading the effort.

“The absence of a prohibition is not a license, and yet the Biden administration pushed this illegal and infeasible regulation anyway,” he said. “New York and North Dakota have very different transportation systems, needs and capabilities, but under this one-size-fits-all mandate, they’re effectively treated the same.”

Sen. Shelley Moore Capito (R-W.Va.), ranking member of the Environment and Public Works Committee, emphasized, “When we negotiated the bipartisan Infrastructure Investment and Jobs Act, we specifically left out the authority FHWA is attempting to exercise with its greenhouse gas emissions performance-measure requirement.

“As we’ve done before, I am committed to working with my Senate and House colleagues to hold the Biden administration accountable.”

Dozens of freight stakeholders have endorsed the lawmaker’s procedural response to the FHWA rule.

“Our organizations supported investments made in the IIJA, which include programs dedicated to carbon reduction and infrastructure resilience,” groups such as American Trucking Associations, the Owner-Operator Independent Drivers Association and the U.S. Chamber of Commerce wrote lawmakers Feb. 6. “However, regulatory overreach outside the bounds of the IIJA has the potential to limit improvements to our infrastructure. Congress debated authorizing the U.S. Department of Transportation to establish a greenhouse gas performance measure, but it was ultimately excluded from the 2021 [IIJA] law, due to the provision’s lack of sufficient congressional support.”

The FHWA rule, finalized in December, took effect last month. According to FHWA, the rule establishes a method for the measurement and reporting of greenhouse gas emissions associated with transportation. According to background information from the agency, the rule will pave the way for “adding a new greenhouse gas performance-management measure to the existing FHWA national performance measures to establish a national framework to help states track performance and make more informed investment decisions.” Additionally, it will be “creating a flexible system under which state DOTs and MPOs will set their own targets for reducing greenhouse gas emissions from roadway travel.”

Federal Highway Administration Chief Shailen Bhatt said Nov. 22, “Transportation is the leading source of greenhouse gas emissions in the U.S., and reducing emissions from that sector while ensuring our economy works for everyday Americans is critical to addressing the climate crisis. We don’t expect state DOTs and MPOs to solve a problem this large on their own, which is why this performance measure does not impose penalties for those who miss their targets.”

Federal Truck Leasing Task Force Seeking Help From Truckers

wayne@ntassoc.com (Wayne Schooling) — Mon, 04 Mar 2024 20:09:19 GMT

FMCSA Wants to See Examples of Predatory Truck Leasing Agreements but Also Hear About Good Experiences

Federal trucking regulators have requested truckers, especially owner-operators, to assist the agency’s truck leasing task force by providing information on leasing agreements that they believe are unfair.

The task force, specially appointed by the Federal Motor Carrier Safety Administration , then may use the information at its future meetings and ultimately apply what members learn to shape their findings in a report on predatory lease agreements to the secretary of transportation .

The task force, a requirement of the bipartisan infrastructure law , requires the transportation secretary, in consultation with the labor secretary , to establish the leasing task force to examine the terms, conditions and equability of common truck leasing arrangements, particularly as they impact owner-operators.

What is CVSA Focusing on in 2024 Roadcheck Truck Inspection Blitz?

wayne@ntassoc.com (Wayne Schooling) — Mon, 04 Mar 2024 20:06:26 GMT

This year’s annual Roadcheck inspection safety blitz, May 14-16, will focus on tractor protection systems and alcohol and controlled substance possession.

The Commercial Vehicle Safety Alliance’s International Roadcheck is a high-visibility, high-volume commercial motor vehicle inspection and regulatory compliance enforcement initiative that takes place over three days in Canada, Mexico and the United States.

CVSA-certified law enforcement personnel will inspect commercial motor vehicles and drivers at weigh/inspection stations, temporary sites and mobile patrols. Data from the 72 hours of International Roadcheck will be collected and the results will be released this summer.

Last year, brake problems were the top Roadcheck out-of-service violation.

CVSA is a nonprofit organization made up of local, state, provincial, territorial and federal commercial motor vehicle safety officials and industry representatives in Canada, Mexico and the US.

Each year, Roadcheck places special emphasis on a category of violations. This year, there will be two focus areas – tractor protection systems and alcohol and controlled substance possession. For inspections in the U.S., there will be an additional emphasis on prohibited drivers within the Drug and Alcohol Clearinghouse.

Tractor Protection System Often Overlooked

A commercial motor vehicle’s tractor protection system consists of a tractor protection valve, trailer supply valve and anti-bleed back valve. All valves should be properly tested during a driver’s trip inspection and an inspector’s roadside inspection.

During the inspection of tractor protection system components, the inspector will:

Direct the driver to release all brakes by pressing dash valves.
Have the driver carefully remove the gladhands and allow air to escape.
Ensure the air stops leaking from the supply line with at least 20 psi remaining.
Listen and/or feel for any leaking air at the gladhand couplers on the trailer.
Request a full-service brake application by the driver.
Listen and/or feel for leaks from both air lines

CVSA said it’s focusing on these critical vehicle components because they may be overlooked during trip and roadside inspections. CVSA has an inspection bulletin outlining the steps on how to properly check tractor protection systems.

Commercial Driver Drug and Alcohol Use

CVSA said controlled substance and alcohol possession/use remains a significant concern for motor carriers, drivers and the general public. The number of prohibited drivers listed in the U.S. Drug and Alcohol Clearinghouse (DACH) has been increasing.

CVSA reminds motor carriers to establish and strictly enforce clear policies to prevent controlled substance and alcohol possession or use in the workplace.

In addition, U.S. motor carriers should regularly query the Drug and Alcohol Clearinghouse to ensure their drivers are not in prohibited status.

CVSA Decals

Over the three days of International Roadcheck, inspectors will conduct their routine North American Standard Level I Inspection, which is a thorough 37-step inspection procedure consisting of the examination of vehicle components and driver documentation and requirements.

A vehicle that successfully passes a Level I or V Inspection without any critical vehicle inspection item violations may receive a CVSA decal, which is valid for three months.

If out-of-service violations, as outlined in the North American Standard Out-of-Service Criteria, are found during an inspection, the vehicle will be restricted from operating until all out-of-service violations have been properly addressed.

During the driver portion of an inspection, inspectors will check the driver’s operating credentials, hours-of-service documentation, Clearinghouse status (in the U.S.), seat belt usage, and for alcohol and/or drug impairment.

If an inspector identifies driver out-of-service violations, such as not possessing a valid or necessary operating license or exhibiting signs of impairment, the inspector will restrict that driver from operating their vehicle.

For International Roadcheck, in case of inclement weather or other limiting circumstances, instead of a Level I Inspection, a jurisdiction or an inspector may opt to conduct a Level II Walk-Around Driver/Vehicle Inspection or Level III Driver/Credential/Administrative Inspection, neither of which are eligible for a CVSA decal.

New Out-of-Service Criteria Published

CVSA also just announced that its 2024 North American Standard Out-of-Service Criteria spiral-bound handbook is now available for purchase thru NTA’s relationship with JJ Keller.

The North American Standard Out-of-Service Criteria are used by certified commercial vehicle safety enforcement personnel to determine if a commercial motor vehicle or driver is considered an imminent hazard and should be placed out of service.

The 2024 handbook identifies driver, vehicle, hazardous materials/dangerous goods and administrative out-of-service conditions/violations and contains hundreds of photos of real-life violations.

The 2024 out-of-service criteria will take effect on April 1 with 11 changes from the previous year’s criteria, all of which are outlined in this document. The 2024 criteria supersede all other versions.

The handbooks are available for purchase by inspectors, motor carriers, drivers, mechanics, safety managers, jurisdictions, agencies, transportation safety organizations, etc.

Need More Information on CVSA Inspections?

NorthAmerican Transportation Association offers resources to help educate drivers, motor carriers and others on compliance, enforcement and various elements of motor carrier, driver and vehicle safety.

The following are available for FREE at NorthAmerican Transportation Association’s Members Only section .

North American Standard Roadside Inspection Vehicle Cheat Sheet – Download this flyer detailing the components of the commercial motor vehicle that the inspector will inspect when conducting a Level I Inspection.

North American Standard Roadside Inspection Driver Cheat Sheet – Download this flyer outlining the details, requirements and steps of the driver portion of an inspection

ATRI Releases Annual List of Top 100 Truck Bottlenecks

wayne@ntassoc.com (Wayne Schooling) — Wed, 14 Feb 2024 14:32:16 GMT

Washington, D.C. – The American Transportation Research Institute today released its 13th annual list highlighting the most congested bottlenecks for trucks in America.

The 2024 Top Truck Bottleneck List measures the level of truck-involved congestion at over 325 locations on the national highway system. The analysis, based on an extensive database of freight truck GPS data, uses several customized software applications and analysis methods, along with terabytes of data from trucking operations to produce a congestion impact ranking for each location. ATRI’s truck GPS data is also used to support numerous state and federal freight mobility initiatives. The bottleneck locations detailed in this latest ATRI list represent the top 100 congested locations, although ATRI continuously monitors more than 325 freight-critical locations.

For the sixth year in a row, the intersection of I-95 and SR 4 in Fort Lee, New Jersey is once again the Number One freight bottleneck in the country. The remaining Top 10 bottlenecks include:

Chicago: I-294 at I-290/I-88
Chicago: I-55
Houston: I-45 at I-69/US 59
Atlanta: I-285 at I-85 (North)
Atlanta: I-20 at I-285 (West)
Los Angeles: SR 60 at SR 57
Houston: I-10 at I-45
Atlanta: I-285 at SR 400
Nashville: I-24/I-40 at I-440 (East)

Biden’s Department of Labor has Issued its Final Rule on Independent Contractor Definition under the Fair Labor Standards ACT

wayne@ntassoc.com (Wayne Schooling) — Thu, 01 Feb 2024 21:11:35 GMT

The U.S. Department of Labor issued its final rule , attempting to define employee versus independent contractor status under the Fair Labor Standards Act (FLSA) (the “Final Rule”).

The Final Rule jettisons an earlier attempt under the prior Administration to modernize and simplify how to determine who is an employee and who is a contractor by focusing on two core factors.

The Final Rule instead purports to return to an ambiguous totality-of-the-circumstances approach, while also placing a thumb on the scale in favor of more workers being deemed employees under the FLSA.

Remember, if you want to call them Independent Contractors, there is already case law that states that this is just a label and noting more. If you want to counter by saying that you issue a 1099 at the end of the year, there is already case law that states that this means you did not deduct any taxes and nothing more.

Background

The FLSA defines “employee” in an unhelpful, circular fashion. Section 3(e) of the FLSA defines the term “employee” as “any individual employed by an employer.” Section 3(d), in turn, defines “employer” to “include[e] any person acting directly or indirectly in the interest of an employer in relation to an employee.”

In the absence of a concrete statutory definition of “employee,” and to distinguish between employees (who are covered by the FLSA) from independent contractors (who are not), court decisions predominately coalesce around some form of an “economic realities test,” in which courts balance several factors to determine if a worker is so dependent on the business to which they render services that they must be deemed an employee.

But application of the economic realities test has led to divergent outcomes based on similar facts. As summarized by Judge Easterbrook of the Court of Appeals for the Seventh Circuit, the economic realities test “is unsatisfactory both because it offers little guidance for future cases and because any balancing test begs questions about which aspects of ‘economic reality’ matter and why.” Sec’y of Labor v. Lauritzen , 835 F.2d 1529, 1539 (7th Cir. 1988) (Easterbrook, J. concurring).

In January 2021, the DOL issued an interpretation delineating how to define an employee versus a contractor under the FLSA (the “2021 Rule”). In doing so, the DOL proposed to simplify the multi-factor test by setting forth two core factors to consider: (1) the nature and degree of the worker’s control of the work, and (2) the worker’s opportunity to earn a profit or loss. The proposal further provided that, if both factors point toward the same classification—whether employee or contractor—then the worker is likely to be classified as such.

If, however, those factors point in opposite directions, then three other factors should be considered: (1) the amount of skill required for the work; (2) the degree of permanence of the working relationship between the individual and the company, and (3) whether the work is part of an integrated unit of production. The 2021 Rule was a welcome development for the business community.

Following the change in administration, however, the DOL delayed the effective date of that rule and then (unsuccessfully) attempted to withdraw it in May 2021.

The DOL’s New Interpretation

As we discussed here, on October 11, 2022, the DOL issued a notice of proposed rulemaking (“NPRM”) proposing to rescind the 2021 Rule and replace it with a multifactor, totality-of-the-circumstances analysis to determine whether a worker is an employee or an independent contractor under the FLSA. And as we discussed here, and there, the NPRM proposed an analysis which skewed the inquiry in favor of employee status. The Final Rule largely adopts the NPRM, with a few exceptions, as noted below.

(1) Totality-of-the-circumstances test. As with the NPRM, the Final Rule adopts a totality-of-circumstances test, eschewing the more targeted and focused inquiry under the 2021 Rule. Under this analysis, “no one factor or subset of factors is necessarily dispositive, and the weight to give each factor may depend on the facts and circumstances of the particular relationship.” Absent from the Final Rule is any indication on how courts should weigh each factor, depending the particular facts and circumstances, or even the facts within each factor. Indeed, the DOL expressly declined to create an analytical framework that would provide businesses and workers “a scorecard or a checklist.” The Final Rule also appears to permit consideration of multiple facts across different factors, but provides no guidance on how that should occur, so that those individual facts will not be afforded outsized weight in the final analysis.

(2) The worker’s opportunity for profit or loss depending on managerial skill.

“This factor considers whether the worker has opportunities for profit or loss based on managerial (including initiative or business acumen or judgment) that affect the worker’s economic success or failure in performing the work.” The Final Rule helpfully clarifies that it is a worker’s “opportunities” for profit and loss, instead of whether the worker actually takes advantage of that opportunity, that is the touchstone under this prong. Under the NPRM, a worker’s unilateral choice to forego an entrepreneurial activity would have made employee status more likely.

Under the Final Rule, however, it is the fact that the worker has the choice at all—and thus the ability to exercise his business judgment—that is indicative of independent contractor status. The Final Rule also added the language “including initiative or business acumen or judgment,” which was absent from the NPRM. This is a welcome addition because the NPRM focused merely on “managerial skill,” which narrowed the types of evidence indicative of independent contractor status.

(3) Investments made by the worker and the employer .

The Final Rule adopts the NPRM’s formulation that an investment borne by the worker must be capital or entrepreneurial in nature to indicate independent contractor status, and that investments should be assessed separately from the opportunities-for-profit-or-loss factor (unlike in the 2021 Rule). The Final Rule also adopts the NPRM’s approach that a worker’s investment “should be considered on a relative basis with the potential employer’s investments in its overall business.”

However, the Final Rule clarifies that the comparison should be primarily qualitative, rather than quantitative—i.e., on whether the worker is making similar types of investments, not on the amount or size of the investments (which will almost always be greater for the alleged employer). Further, although the NPRM originally suggested that any cost borne by a worker to perform a job could not be evidence of capital or entrepreneurial investment, the Final Rule acknowledges that investments in tools and equipment may occur for many reasons beyond performance of a particular job, including the performance of more types of work, the reduction of costs, or the extension of market reach, and thus could be evidence of independent contractor status in certain circumstances.

(4) Degree of permanence of the work relationship .

The Final Rule states that the permanency factor “weighs in favor of the worker being an employee when the work relationship is indefinite in duration, continuous, or exclusive of work for other employers.” The NPRM originally provided that, where a lack of permanence is due to “operational characteristics that are unique or intrinsic to particular businesses or industries and the workers they employ,” that lack of permanence would not necessarily be evidence of independent contractor status.

The Final Rule was adjusted to acknowledge that if the lack of permanence was both related to operational characteristics and the worker’s exercise of independent business initiative, it may be evidence of independent contractor status. The Final Rule, however, provides no clear guidance as to what qualifies as the worker exercising his business initiative in this context.

The Department’s commentary also newly recognizes that the permanence factor cannot be reduced to mere considerations of length, and instead, can only be fully analyzed against the backdrop of a full understanding of the relationship between the worker and business (such as intermittent freelancing).

(5) Nature and degree of the business’s control over the worker. The Final Rule largely adopts the NPRM with respect to the control factor. Facts relevant to control would include whether the employer sets the worker’s schedule, supervises the performance of the work, sets the price or rate for service, or explicitly limits the worker’s ability to work for others. One important change from the NPRM is that the Final Rule clarifies that “actions taken by the potential employer for the sole purpose of complying with a specific, applicable Federal, State, Trial, or local law or regulation are not indicative of control.”

In contrast, “actions taken by the potential employer that go beyond compliance . . . and instead serve the potential employer’s own compliance methods, safety, quality control, or contractual or customer service standards may be indicative of control.” The DOL seems to be saying that strict compliance with health and safety standards imposed by law are not indicative of employee status, but if an employer goes beyond those standards (e.g., creates a safer work environment than strictly required) this “may” be indicative of employee status. This creates a potentially harmful disincentive: businesses that go beyond minimum safety standards risk having their independent contractors deemed employees. Equally problematic, the Rule provides no clarification of the meaning behind its “sole purpose” language.

For example, a business may believe that imposition of a legally required standard has secondary value (indeed, most laws exist for some beneficial purpose beyond the mere fact of compliance). But it is unclear under the Final Rule’s articulation whether such a secondary consideration, even if it would have had no impact on the business’s act of complying with the law, could impact the analysis of this factor.

Separately, the NPRM originally provided that any means of technological “supervision” would be relevant evidence of control. The Final Rule, however, acknowledges that is not always the case, and provides that technological supervision is only evidence of control if used to “supervise the performance of the work.”

That is, under the Final Rule, merely collecting data generated from the actions of a worker (e.g., that an item was delivered) is not necessarily evidence of control. However, if that data is paired with additional supervisory action, such as directing or correcting the worker’s conduct, it may be evidence of employer-like control under the Final Rule.

(6) Extent to which the work performed is an integral part of the employer’s business .

The DOL’s framing of this factor may be particularly problematic. The Final Rule states that “this factor does not depend on whether any individual worker in particular is an integral part of the business, but rather whether the function they perform is an integral part” and that when the work a worker performs is “critical, necessary, or central to the employer’s principal business,” then this factor weighs in favor of employer status.

It begs the question of how to determine an employer’s “principal business” or what is “critical, necessary, or central to it,” though the DOL’s commentary to its proposal provides possible guidance. The Final Rule fails to offer any convincing explanation for its departure from the “integrated unit of production” standard used in the 2021 Rule and first articulated by the Supreme Court in Rutherford Food Corp. v. McComb , 331 U.S. 772 (1947), which largely rests on the DOL’s belief that using Rutherford ’s actual language would be “overly rigid.”

(7) Whether the worker uses specialized skills in performing the work.

Under the Final Rule, like under the NPRM, if a worker “uses specialized skills and . . . those skills contribute to business-like initiative,” then the worker is more likely a contractor. In its commentary, however, the DOL proposes to define those skills narrowly. The DOL commentary also proposes that, even when a worker possesses specialized skills, that fact is irrelevant unless the work requires those skills.

Under the proposed rule, no one factor would be dispositive or entitled to predetermined weight. While on the one hand this may seem to lead to greater flexibility, it blurs lines, leads to inconsistent results, and provides businesses and workers little of the clarity that rulemaking on worker status was supposed to provide.

What’s Next and What Will It Mean

With the Department of Labor’s retreat from the 2021 Rule only a short time after it went into effect, businesses and workers alike are faced with yet another potential analytical test against which they must measure their work relationships. Although the Final Rule attempts to tilt the scale towards employee status in the average case, substantial questions remain about the ultimate impact of the Final Rule, including whether it will be afforded any deference from courts, whether it will survive an inevitable legal challenge, and whether (like the 2021 Rule) it will be in jeopardy in any administration change. In the meantime, businesses should review their independent contractor relationships in light of the Final Rule.

Cost of DOT Non-Compliance Goes up for 2024

wayne@ntassoc.com (Wayne Schooling) — Thu, 01 Feb 2024 21:04:48 GMT

Increased civil penalties affect all DOT agencies

The U.S. Department of Transportation has increased its maximum fines by 3.2 percent for the new year.

The increase affects all fines (known as civil penalties) levied by agencies within the DOT, including the Federal Motor Carrier Safety Administration (FMCSA) and Pipeline and Hazardous Materials Safety Administration (PHMSA).

The annual increase is required by law and is pegged to inflation, which has eased in the past year. By comparison, last year’s increase was nearly 8 percent, while the increase for 2022 was just over 6 percent. Prior to that, increases had generally been around 1 percent each year.

The increase means federal penalties levied on motor carriers, drivers, and others for violations of DOT regulations will be going up, effective December 28, 2023. For example, a highway safety violation that might have cost up to $18,170 earlier in 2023 could now result in a fine of $18,760.

The complete list of maximum civil penalties is found in Appendices A and B to 49 CFR Part 386.

New Rules, Overdue Rules, and Rules Long Delayed

wayne@ntassoc.com (Wayne Schooling) — Thu, 01 Feb 2024 21:00:36 GMT

Numerous DOT rules in the works for the new year

The DOT plans to propose over 25 commercial vehicle safety rule changes for the public to weigh in on in 2024. Speed limiters, higher fines, and changes to driver training rules are all on the agenda, while at least one controversial rule has been pushed to the backburner.

New DOT rule changes for 2024

The following are some of the new rule changes with key actions to look out for in the new year:

ELD update: The FMCSA will be “streamlining and improving the clarity” of its electronic logging device (ELD) rules. This update was expected in 2023 but has been delayed to October 2024.
Speed limiters: The FMCSA intends to require the use of speed limiters on interstate CDL-class vehicles. The proposal should be out soon.
Driver training: The FMCSA is looking to update its entry-level driver training rules to add training on sexual harassment and pedestrian/cyclist safety.
Fines: The DOT will adjust its fines upward for inflation, making noncompliance a bit more costly.
CDL testing: The FMCSA may make it easier for drivers to obtain a commercial driver’s license (CDL), in part by allowing any state to perform a driver’s skills test.
Drug & Alcohol Clearinghouse: The FMCSA intends to revise its Clearinghouse rules to improve error-correction procedures, queries, and consent requirements.
Hair testing: The Department of Health plans to propose hair testing for federal employees, which will eventually make it an option for CDL drivers’ drug tests.
Test refusals: The DOT plans to establish an appeals process for drivers accused of refusing a drug or alcohol test.
Bus accessibility: The DOT will be adopting new accessibility guidelines for buses and vans under 36 CFR 1192.
Emergency brakes: The DOT plans to require and/or establish performance standards for automatic emergency braking systems on heavy trucks.
Brokerage: This action would amend broker rules to add transparency to transactions and contracts.

Long-term actions placed on the backburner

Equally important to these upcoming rule changes is what’s NOT on the agenda. The FMCSA has notably moved the proposal to require electronic IDs on commercial motor vehicles to its “long-term actions” list, meaning the proposal is not expecting any action in 2024. This rule proposal was opposed by the Owner-Operator Independent Drivers Association and others, who claim the rule is a major privacy intrusion for drivers.

Other long-term actions with an uncertain future include:

A rule to remove for the need for a driver’s employment application,
A rule clarifying the need for a tank endorsement, and
A rule that allows buses and hazmat carriers to obey traffic control devices at railroad crossings instead of stopping at each one.

What Truck Fleet Managers Need to Know About OSHA

wayne@ntassoc.com (Wayne Schooling) — Mon, 29 Jan 2024 20:08:44 GMT

If you're a trucking fleet safety manager, chances are you're familiar with federal Department of Transportation regulations affecting your company's operations. But what about OSHA, the Occupational Safety and Health Administration? Do its workplace regulations affect your company?

Generally, the federal Department of Transportation preempts OSHA's jurisdiction while vehicles operate on public roadways. OSHA’s jurisdiction is limited to vehicles operated in the workplace and not on public roads.

In addition, the DOT's jurisdiction covers interstate (between two states) commerce. OSHA’s jurisdiction extends to intrastate (within a state) commerce. For instance, OSHA’s jurisdiction includes gravel and sand haulers, logging, agriculture, and cement and concrete mixers, which are typically intrastate commerce activities.

Making the question more complex is the fact that many states have adopted federal DOT standards for intrastate commerce activity within their borders.

Is My Trucking Operation Subject to DOT, OSHA, or Both?

It can be confusing to know when and where the dividing line is between these two federal agencies.

For example, say a trucking company hauls building materials from its shop in Wisconsin to California. Another trucking company then delivers the building material to its final destination in California.

Although the second company travels entirely intrastate (in California), the original intent of the shipment is interstate and therefore covered by DOT regulations.

However, suppose the first company delivers to a warehouse in California. In that case, delivery trucks taking the building material from the warehouse to a construction jobsite are not considered involved in interstate commerce. The original manifest must not indicate the shipments were intended for the particular construction jobsite. Otherwise, it would be interstate commerce activity. If not, then OSHA would have jurisdiction over the intrastate commerce activity and not DOT.

What about yard trucks? Fleets of all sizes rely on yard drivers to move trailers safely and efficiently around the yard. Drivers who operate yard trucks in any area open to public travel, even if on private property, are subject to the Federal Motor Carrier Safety Regulations, with off-highway operations covered by OSHA safety regulations. This means these drivers must also understand which regulations apply to them and how to stay in compliance.

OSHA on Loading and Unloading

OSHA regulations cover off-highway loading and unloading at warehouses, plants, grain handling facilities, retail locations, marine terminals, wharves, piers, and shipyards, among others.

Its jurisdiction in the construction industry includes loading/offloading scrapers, loaders, crawler or wheel tractors, bulldozers, off-highway trucks, graders, agricultural and industrial tractors, and similar equipment.

Common safety issues to consider while performing loading and unloading activities include:

Stacking.
Storing.
Lifting.
Rigging practices.
Rigging equipment.
Powered industrial truck operations.
Forklift operations.
Safe working loads.
Rigging inspections.

OSHA has a whole e-tool section on beverage delivery on its website, covering possible solutions to potential ergonomic hazards drivers face with doing things like unloading beverages, using hand trucks, and so forth.

OSHA and Vehicle Maintenance

In terminal operations, such as at a shipping warehouse, OSHA regulates the performance of all vehicle maintenance activities. It also regulates mobile maintenance activities on public roadways such as highways.

DOT regulates the roadworthiness of the vehicle. OSHA is concerned with the safety and health of the employees performing such maintenance tasks.

Drivers or technicians performing vehicle maintenance can be exposed to chemicals. Safety data sheets must be provided to maintenance workers, and employers must ensure the manufacturer's recommendations are followed to minimize exposure to hazards.

In addition, if workers perform hot work, such as making repairs by welding, a hot work permit must be issued. Appropriate fire prevention and protection measures must be in place to prevent fires and address any fire event, such as training workers to use a portable fire extinguisher or requiring workers to evacuate to a designated area.

Another common issue concerns the failure to chock trailer wheels. OSHA doesn't cite drivers for failure to chock commercial motor vehicle trailer wheels because DOT regulation preempts enforcement. However, OSHA can enforce chocking requirements on trucks used in intrastate commerce.

In addition, OSHA can enforce chocking requirements on CMVs used for interstate commerce if employees other than the driver enter the trailer. OSHA outlined this policy in an interpretation dated March 7, 2011.

Workers may need to perform lockout/tagout if exposed to hazardous energy, such as electrical components, while performing service and maintenance activities. This is a safety procedure used to ensure that dangerous equipment is properly shut off and not able to be started up again until the maintenance or repair work is completed.

Employers should ensure controls are in place to prevent cuts, abrasions, stains, and shock. Workers could become pinned against equipment and machinery, or worse, entangled or killed if safety guards are removed or not properly used.

Other exposures include irritation, sensitization, carcinogenicity, and physical hazards (such as flammability, corrosion, and reactivity.

Fall Protection on Trailers

When employees are on top of a semi-trailer, for whatever reason, fall protection is required if using it would be feasible. Even if there’s no overhead anchor, providing training on safe practices and precautions would is a good idea.

In a memorandum dated Oct. 18, 1996, OSHA explained, "It would not be appropriate to use the personal protection equipment standard... to cite exposure to fall hazards from the tops of rolling stock, unless employees are working atop stock that is positioned inside of or contiguous to a building or other structure where the installation of fall protection is feasible. In such cases, fall protection systems often can be and, in fact, are used in many facilities in the industry.”

Personal Protective Equipment

Using personal protective equipment, or PPE, can seem simple. Put on safety glasses, wear gloves, use steel-toe shoes, or put in earplugs.

The reality is much more complicated than that.

Injuries related to PPE in the transportation industry often stem from wearing the wrong type of equipment for the task, not wearing the PPE correctly, or not wearing the equipment because it wasn't clear what workers needed to do.

What's in it for your workers? Why do they even wear PPE? Understanding PPE requirements, using the right equipment, and learning how and when to use PPE is essential to protecting workers from injury and illness. Wearing it helps get workers home safely each day and keeps them injury-free.

Employers must perform a hazard assessment and identify hazards workers will be exposed to. This is called a PPE certification. Workers should be issued PPE, paid for by the employer, that is comfortable to use and fits properly.

Hazardous Materials

OSHA has limited authority over over-the-road vehicle operations. If spills occur while the material is on the vehicle or otherwise “in transportation,” OSHA's Hazardous Waste Operations & Emergency Response standard does not cover drivers.

It does, however, cover first responders who respond to the scene of the spill. And if drivers become actively involved in an emergency response, OSHA would consider them an emergency responder, subject to following OSHA's applicable health and safety requirements.

Distracted Driving, Back Safety, and OSHA's General Duty Clause

OSHA doesn’t have any specific standards on some topics, such as distracted driving or avoiding back injuries, but employers are expected to address such topics under OSHA’s General Duty Clause.

Under the GDC, when OSHA doesn’t have a standard about a certain hazard or safety issue to workers, employers must still address the issue by implementing controls and mitigating workers’ exposure to hazards.

For instance, employers must train workers how to avoid distracted driving. Perform a check ride with drivers and make observations about their driving habits. Correct any distracted driving behaviors and follow up with the driver to ensure corrective actions are effective.

Ergonomics and Musculoskeletal Injuries

Loading and unloading trucks involves the movement of products, not just with materials handling equipment like forklifts, conveyors, and overhead cranes, but also by hand. Manually handling loads, in turn, puts a lot of strain on an employee’s back.

In the trucking industry, injuries and illnesses involving the back account for numerous injury and illness cases, some involving days away from work each year, making back disorders a top concern. Some disorders are serious enough to require surgery, and some lead to permanent disability.

OSHA has no specific standard related to ergonomic lifting, which means there are no safe lifting techniques OSHA recommends officially.

However, ergonomic lifting and safe lifting techniques fall under OSHA's General Duty Clause, which requires employers to protect workers from serious and recognized workplace hazards. As a result, you must employ any "feasible and useful" method necessary to mitigate the danger.

Back Safety

While many people think that back disorders are acute and come from a single lift of a heavy or awkward load, back disorders often result from relatively minor strains that occur chronically over time.

Back safety applies ergonomic principles to any lifting or manual handling task. Teaching safe lifting techniques, for example, is a proven way to reduce employee lost time and workers’ compensation costs related to back disorders.

However, training is only half of the back safety picture. A complete back safety effort will also include the identification of back hazards at your facility, implementing engineering and administrative controls to reduce or eliminate those hazards, and managing any reports of back disorders.

DOT, OSHA Work Together on Driver Safety

Workers in the transport industry experience the most fatalities of all other occupations. DOT and OSHA will continue working together on driver safety issues.

Together, they provide employers, warehouse workers, and trucking drivers with information and assistance to help comply with federal standards and ensure transportation workers have a safe working environment.

What Can Trigger an OSHA Inspection?

OSHA has jurisdiction over approximately 7 million worksites. The agency seeks to focus its inspection resources on the most hazardous workplaces in the following order of priority:

Imminent danger situations — hazards that could cause death or serious physical harm receive top priority. Compliance officers will ask employers to correct these hazards immediately or remove endangered employees.
Severe injuries and illnesses — employers must report all work-related fatalities within 8 hours and all work-related inpatient hospitalizations, amputations, or losses of an eye within 24 hours.
Worker complaints — allegations of hazards or violations also receive a high priority. Employees may request anonymity when they file complaints.
Referrals of hazards — from other federal, state or local agencies, individuals, organizations or the media receive consideration for inspection.
Targeted inspections — inspections aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries and illnesses also receive priority.
Follow-up inspections — checks for abatement of violations cited during previous inspections are also conducted by the agency in certain circumstances.

Night Driving Tips: How To Stay Safe While Driving After Dark

wayne@ntassoc.com (Wayne Schooling) — Mon, 29 Jan 2024 20:08:42 GMT

Driving at night poses unique risks, from reduced visibility to heightened fatigue, making it crucial for all road users to equip themselves with the knowledge to stay safe. This requires us to think about our readiness before getting behind the wheel and prepare to encounter uncertain and unpredictable conditions on the road after dark.

Risks and Tips When Driving At Night

There are many practical ways to make your journey safer when driving at night. It starts by recognizing and preparing for the potential risks.

Reduced Visibility

The visual landscape changes radically on the road at night. On the one hand, decreased visibility of objects in the environment makes it harder to spot potential hazards. On the other hand, headlights and other artificial lighting require our eyes to adjust quickly between dark and light.

Ensure your windshield is clean and that wipers are working effectively, as streaks on the glass can create added issues when light hits them.

Keep your headlights clean, maintained, and properly aimed so you don't dazzle oncoming drivers. Know how to use your high beams and fog lights, and always remember to switch to low beams as soon as you are visible to another vehicle. Also, turn off any lights inside the car and change the screen to night mode.

Increased Fatigue

Humans are naturally wired to be awake during the day and asleep at night. This means we are more likely to feel drowsy when driving after dark. So night driving carries more inherent risk, especially after a long day.

According to research, crashes from drowsy driving after dark are more likely between midnight and 6 am. Technology is rapidly developing to pick up on physiological signs that a driver is experiencing drowsiness because people rarely know that their driving is impaired by fatigue.

Ensure you are well rested before driving at night. Take regular breaks, at least every two hours or 100 miles, to keep your blood pumping and energy flowing.

If you notice you feel drowsy while driving, take a break as soon as possible and drink water. Have a short walk around the car, and if necessary, take a 20-30 minute nap. Share driving responsibilities with a well-rested co-driver, if possible, especially on long journeys.

More Wildlife Near Roads

You are more likely to encounter wildlife during twilight and at night. Large animals grazing around roads can be dangerous if the driver doesn’t spot them in time when required to slow down and take evasive action.

A recent study found that "Vehicle headlights are the primary means of illuminating potential roadside hazards to drivers at night." High beams can detect large animals further away, giving drivers more time to brake safely. The study also found that driver reaction times increase as a journey continues.

Look out for wildlife warning signs and drive with care on rural roads. If an animal crosses your path, brake firmly, but avoid swerving into oncoming traffic.

Less Traffic, More Speed

There tends to be a lower volume of traffic at night, which can make it tempting for drivers to increase their speed. But speed significantly increases the risk of the elements we've already discussed. With less visibility, lower reaction times, and unpredictable factors like unsighted animals and pedestrians, it's even more important to take care, slow down, and allow plenty of space around your vehicle.

Alcohol

The risk of encountering road users who have had a drink is higher at night. Driving is inherently more dangerous after consuming any amount of alcohol, so don't.

Keep your distance from other vehicles, especially if you notice them driving erratically or unusually. Be alert to pedestrians who may have consumed alcohol. Intoxication means they are more likely to act impulsively, which may include suddenly stepping out into the road.

Weather Conditions

Nighttime can bring changes in the weather that require care and patience behind the wheel. When the temperature fluctuates, especially in the winter, you are more likely to encounter ice, fog, and invisible potholes. This can make for precarious driving conditions with low visibility. If wet and windy, there is an increased chance of flooding, debris, and fallen trees on the road, which is harder to see from a distance.

Check weather forecasts before your trip. Only travel in adverse weather at night if absolutely necessary, and allow plenty of extra time so you can drive with patience, care, and awareness of everything around you.

Roadworks and Construction

Road maintenance and development projects often happen at night when the roads are quieter. A road closure may cause anxiety and panic, especially if you don't know your diverted route. Unexpected driving in unfamiliar surroundings might require you to find somewhere to stop, take a breath, and look at a map to get more comfortable with the change of plan.

Get as much information as possible about potential road closures and highway work along your route before you set off. Plan your journey accordingly. Respond to active construction zones by following posted speed limits and being prepared for changes. Look out for construction workers, bollards, and equipment.

Keep it Simple with these simple tips

Remember these tips, whenever you drive at night. They are the simplest way to keep safe whenever you get behind the wheel.

Aim high in your steering by scanning the road at least 15 seconds ahead.

Get the big picture by using your mirrors and leaving a stopping distance of at least four seconds between you and the car in front.

Always keep your eyes moving to stay alert and avoid drowsiness.

Leave yourself an out by surrounding yourself with space.

Make sure they see you by using your lights and indicators to maximize communication even when visibility is reduced.

Transportation Workers Have the Most Fatal Workplace Incidents

wayne@ntassoc.com (Wayne Schooling) — Mon, 29 Jan 2024 20:08:39 GMT

The following is why Independent Contractors in the Trucking Industry need Occupation Accident coverage.

There were more transportation and material moving worker deaths in 2022 than in any other occupational group, according to the Bureau of Labor Statistics' recent release of the National Census of Fatal Occupational Injuries in 2022. Those occupations had the highest rate of fatalities, as well.

The report attributes the increase to fatalities of driver/sales workers and truck drivers increasing by 8%, from 1,032 fatalities in 2021 to 1,115 in 2022.

Workers in transportation and material moving occupations experienced 1,620 fatal work injuries in 2022. The next occupational group with the highest number of fatal incidents was construction and extraction workers with 1,056 incidents.

Transportation and material moving workers also had the highest rate of fatalities, 14.6 fatalities per 100,000 full-time equivalent (FTE) workers. Farming, fishing, and forestry occupations had a higher fatality rate, 23.5 per 100,000 FTE, but fewer fatal incidents overall.

Transportation Incidents

Transportation incidents remained the most frequent type of fatal event accounting for 37.7% of all occupational fatalities. There were 2,066 fatal injuries from transportation incidents in 2022, a 4.2% increase from 1,982 in 2021.

Roadway Incidents

Roadway incidents involving a vehicle accounted for the largest portion of fatal transportation incidents, according to the report. Those incidents increased 9.3% between 2021 and 2022, leading to a series high of 1,369.

Leading roadway incidents included:

Roadway collision with an object other than a vehicle — 352
Roadway collision with vehicle moving in opposite directions, oncoming — 252
Roadway non-collision incident — 249
Roadway collision with vehicle moving in the same direction — 207
Roadway collision with vehicle moving perpendicularly — 164

Non-Roadway Incidents

Other transportation incident counts, not occurring on a roadway, included:

Aircraft incidents — 101
Rail vehicle incidents — 43
Water vehicle incident — 31
Non-roadway incident involving motorized land vehicle — 185
Non-roadway non-collision incident — 128
Jack-knifed or overturned, non-roadway — 77

Demographics Most Impacted

Transportation incidents were the highest cause of fatalities among African American workers, 278, and Hispanic workers, 439.

Workers in the 55- to 64-year-old age group continued to have the highest number of fatalities in 2022 with 1,175, which was 21.4% of total fatalities. Transportation incidents were the highest cause of fatalities for this age group (455), followed by falls, slips, and trips (251).

Despite consecutive increases in 2021 and 2022, transportation incidents were still down 2.6% from pre-pandemic levels in 2019 when there were 2,122 fatalities.

NorthAmerican Transportation Association offers one of the best insurance coverages from one of the best top insurers. Call 800-805-0040 for details.

New California Laws May Impact Your Noncompete Agreement.

wayne@ntassoc.com (Wayne Schooling) — Mon, 29 Jan 2024 20:08:38 GMT

Employers nationwide need to evaluate whether they must now comply with the February 14, 2024 written notice deadline created by new California noncompete laws. In addition, California’s new noncompete laws introduce enhanced remedies that mean employers nationwide need to carefully evaluate when, and with whom, to seek a noncompete agreement.

Background

California has historically prohibited noncompete agreements (including traditional noncompetes as well as non-solicitation covenants) in the employment context. On September 1, 2023, California Governor Gavin Newsom signed Senate Bill (SB) 699 into law effective January 1, 2024.

SB 699 makes two meaningful additions to California’s existing ban on noncompetes by (1) extending the reach of California’s restrictions to contracts signed out of state and (2) creating a private right of action for employees whose agreements include restrictive covenants.

On October 13, 2023, Governor Newsom signed into law additional legislation, Assembly Bill (AB) 1076 , which expands and strengthens California’s ban on noncompete agreements. Among other things, AB1076 makes it an act of unfair competition, punishable by civil penalty, to include a noncompete in an employment agreement or require an employee to enter into a noncompete.

In addition, the law creates an affirmative obligation for employers to provide notice to current and former California employees who were employed after January 1, 2022, and subject to a noncompliant noncompete agreement, that their noncompete agreement is void. AB 1076 further claims it codifies existing case law requiring a broad reading of the California ban on noncompetes.

Notably, however, California’s noncompete ban has three exceptions where noncompete agreements are enforceable: in the sale of a business, in the dissolution of a partnership, or upon the dissolution or termination of interests in a limited liability company. AB 1076 does not narrow or alter those exceptions.

Impact on Employers Based Outside of California

California’s new laws not only impact employers based in California but also purport to apply to out-of-state employers that have remote workers in California or former employees who move to California while subject to the out-of-state employer’s noncompete—even where the noncompete was entered into outside of California.

While the reach of California’s new laws is likely to be challenged, employers should review their employment contracts with California employees to ensure they do not contain a noncompete that may run afoul of the new laws.

Furthermore, employers who have employees relocate to California during employment, should be sure to advise such employees, in writing, that they will not attempt to enforce any agreement or provision of any agreement to the extent contrary to California law. Finally, employers should not attempt to enforce a noncompete against a former employee who subsequently moves to California.

Provide Notice by February 14, 2024

Employers who have entered into a non-compliant noncompete with current or former California employees after January 1, 2022 must provide notice to such individuals by February 14, 2024, that such noncompete is void. Notice must be a written, individualized communication to the employee or former employee delivered to the last known address and email address of the employee or former employee.

Failure to provide such notice can result in injunctive relief, restitution, civil penalties of up to $2,500 per violation and recovery of attorneys’ fees and costs.

This article is from our friends at Godfrey & Kahn

Truckers Must Complete Return-To-Duty Process or Lose Their CDL

wayne@ntassoc.com (Wayne Schooling) — Mon, 29 Jan 2024 20:08:36 GMT

Effective November 18, 2024, commercial vehicle drivers in a “prohibited” status in the Federal Motor Carrier Safety Administration’s Drug and Alcohol Clearinghouse will lose their commercial driving privileges unless they complete the return-to-duty (RTD) process.

The “prohibited” clearinghouse status means that a person holding a commercial driver’s license (CDL) or a commercial learner’s permit (CLP) engaged in the prohibited use of drugs or alcohol or refused a drug or alcohol test. Those CDL or CLP holders cannot legally operate a commercial motor vehicle (CMV).

The FMCSA Drug and Alcohol Clearinghouse began operation on Jan. 6, 2020 in a rulemaking now dubbed “Clearinghouse I.”

The goal of the “Clearinghouse I” rule was to close loopholes and help employers, law enforcement, and state driver licensing agencies quickly identify drivers who are not legally permitted to operate commercial motor vehicles (CMVs) due to unresolved drug and alcohol violations.

To create the clearinghouse database, FMCSA required motor carriers, third-party administrators, and medical review officers to report all drug and alcohol violations. Substance abuse professionals also must submit updates on return-to-duty and follow-up tests.

“Clearinghouse I” required state driver licensing agencies (SDLAs) to query the clearinghouse database prior to completing licensing transactions, such as issuance, renewal, transfer, and upgrades of CDLs or CLPs.

But one loophole remained. While FMCSA required SDLAs to look at the clearinghouse data, it did not require them to act upon it. Some states acted under their own laws, but not all states did.

Now comes “ Clearinghouse II ” which required state compliance by Nov. 18, 2024. At that time, any CDL or CLP holder in the “prohibited” clearinghouse status will have their license downgraded by the SDLA to a non-commercial license. Similarly, no SDLA may issue a new CDL or CLP if the driver appears in the “prohibited” clearinghouse status.

Drivers must complete the return-to-duty (RTD) to avoid the license downgrade and seek CDL/CLP reinstatement. FMCSA outlines the RTD process steps in its “Return-To-Duty Quick Reference Guide.” For more RTD information, drivers can visit the Clearinghouse Learning Center.

New Jersey Increases Minimum Insurance Limits

Mon, 29 Jan 2024 20:08:06 GMT

The New Jersey legislature recently changed its financial responsibility minimums as they apply to commercial motor vehicles and pedicabs (i.e., taxis). Under the new law, New Jersey will now require commercial motor vehicles (CMVs) to maintain proof of financial responsibility of $1.5 million for CMVs 26,001 lbs. and higher, certain passenger carriers, and those transporting hazardous materials. CMVs weighing between 10,001 and 26,001 lbs. must maintain limits of $300,000. The coverage required by the statute may be satisfied by a commercial auto policy, fleet insurance, a commercial umbrella policy, commercial excess coverage, a similar insurance policy, or any combination of these types of coverage.

There is no indication in the legislation that it is intended to apply only to intrastate New Jersey operations. There appears to be indirect evidence that the intent is that the new higher minimum limits under this legislation will apply to all commercial vehicles within its scope, whether in interstate or intrastate operations. The Federal Motor Carrier Safety Administration (FMCSA) has considered increasing the federal minimum insurance limits applicable to CMVs. To date, it has not elected to do so. Whether New Jersey’s statute will cause other states or even FMCSA to similarly increase their limits remains to be seen.

For more information, contact Greg Feary , Jeffrey Toole , Shannon Cohen , or Prasad Sharma .

ATRI Issues Call for Motor Carriers and Owner-Operators to Participate in Detention Survey

Mon, 22 Jan 2024 21:02:21 GMT

Washington, D.C. – As part of a larger study on the impacts of truck driver detention on the industry, the American Transportation Research Institute today issued a call for motor carriers and owner-operators to participate in new ATRI data collection on the consequences of driver detention in the trucking industry.

Driver detention – time spent waiting at shipper or receiver facilities outside of loading/unloading – is a longstanding issue in the trucking industry. Accordingly, ATRI’s Research Advisory Committee (RAC) identified the need for new research to document the widespread negative consequences of driver detention for carriers, truck drivers, shippers, and the economy as a whole.

The short survey asks motor carriers and owner-operators to share details on their experience with driver detention and how it relates to their operations, as well as their strategies for mitigating detention. Later this year ATRI will release two additional surveys as a part of this research, one for company drivers and one for shippers/receivers.

“Driver detention is everyone’s problem, and it isn’t going away,” said Stephen A. Truono, NFI Industries EVP & Chief Risk Officer. “While carriers have made efforts to address it in recent years, ATRI’s comprehensive detention research will shed light on the impact and scale of driver detention on both trucking and supply chains in general.”

Motor carriers and owner-operators are encouraged to complete the survey by clicking here .

What is a Systematic Preventive Maintenance Program?

wayne@ntassoc.com (Wayne Schooling) — Tue, 16 Jan 2024 18:42:17 GMT

Regulation 49 CFR §396.3(a) has been a long-standing problem for some in industry and enforcement – it states that carriers must have a program to “systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles and intermodal equipment subject to its control.”

However, it is subjective, and there is no supporting definition of the word systematic, making it challenging for government personnel to assess compliance and can make it difficult for carriers to comply with the regulation’s intent.

First, what the FMCSA wants to see is your maintenance calendar with your scheduled dates for maintenance for all your vehicles.

Next, they want to see your documentation of your maintenance records to see just how close to the calendar schedule you actually met.

So set up a schedule of say the second or third week of every month or every other month. Then pick a day but here lies the problem in picking a right day of the week. I suggest picking a Wednesday. This is because if you can’t make it on time, you have a day on either side, thusly giving you a 72-hour window.

However, you can work out any schedule that fits your operation but just remember to give yourself some leeway. After all, you cannot predict the future and you cannot guarantee your going to get that vehicle in your shop or dealer every time and on time.

Vehicle Maintenance Violations

Parts or accessories in disrepair 396.3(a)(1)
Oil or grease leak 396.5(b)
Operating a CMV without periodic inspection 396.17(c)
Hubs—Oil/Grease leaking from hub 396.5(b)
Hubs―Wheel seal leaking 396.5(b) Failure to correct defects on inspection report 396.5(b)
Brakes (general) 396.3(a)(1) Brakes—reserve system pressure loss 396.3(a)(1)
Tires (general) 396.3(a)(1) Failure to correct defects noted on inspection report 396.9(d)(2)

Parts & Accessories Violations

Not having required operable lamps 393.9
Clamp/roto-chamber type brake(s) out of adjustment 393.47E
Tire tread depth less than 2/32 of an inch 393.75C
No/discharged/unsecured fire extinguisher 393.95A
No/defective lighting devices/reflective devices/projected 393.11
Inoperative turn signal 393.9TS Windshield wipers inoperative/defective 393.78
Automatic brake adjuster CMV manufactured on or after 10/20/1994—air brake 393.53B
Brake hose/tubing chaffing and/or kinking 393.45B2
No/insufficient warning devices 393.95F

TuSimple Shutters U. S. Operations

wayne@ntassoc.com (Wayne Schooling) — Tue, 16 Jan 2024 18:39:52 GMT

Autonomous truck development company TuSimple is closing down operations in the U.S.

TuSimple is a joint Chinese-American company. It will continue operations in China, according to filings the company made with the U.S. Securities and Exchange Commission.

Turmoil and Investigations

In June, TuSimple announced it was looking for a buyer or other strategic options for its U.S. operations. At the time, the company said it was adjusting its focus on operations in Asia and the Pacific as well as other global markets.

The June decision, TuSimple said in a press statement, was due to the “review of multiple business factors and commercial opportunities."

However, TuSimple has endured management turmoil over the past several years, with co-founder Xiaodi Hou being forced out of the company over his ties to Chinese startup company Hydron. The FBI and the SEC also looked into allegations that TuSimple defrauded investors by financing and giving autonomous vehicle technology to Hydron, which is backed by the Chinese government. The investigations underscored the importance of autonomous vehicle technology as a component of modern warfare and U.S. national security, as well as a potentially powerful economic driver for the global trucking industry.

Those shakeups were followed by safety concerns about its technology in the wake of an August 2022 crash on I-10 in Arizona.

Following its failure to find a buyer for its U.S. operations this year, TuSimple has laid off approximately 150 employees — about 75% — of its U.S. staff, according to published reports.

In addition, the company has ceased freight-hauling operations in the U.S. and ended most of its autonomous technology research and development work. Remaining U.S. TuSimple employees are tasked with shutting down operations in this country, including selling off company assets.

Early Self-Driving Truck Entrant

TuSimple announced in 2017 that it would start testing autonomous trucks in Arizona . It attracted investments and partnerships from companies such as chip-maker Nvidia, UPS , ZF , Navistar , Traton , Goodyear Ventures , U.S. Xpress , Ryder , DHL , and Werner Enterprises.

According to the Wall Street Journal , TuSimple is currently valued at about $229 million. It went public in the U.S. in 2021 with an initial valuation of $8.5 billion.

The Secret to Painless IFTA and IRP Audits

wayne@ntassoc.com (Wayne Schooling) — Tue, 16 Jan 2024 18:36:46 GMT

Organized and accessible records are the secret to a painless and penalty-free audit under the International Fuel Tax Agreement (IFTA) and International Registration Plan (IRP).

Your hard work will have a double payoff because:

Similar recordkeeping requirements apply under both programs, and
Jurisdictions often conduct joint audits of these programs.

Tip #1: Organize distance records for both programs

Both IFTA and IRP require detailed records of the actual routes traveled by each vehicle for every trip. When recording mileage for these programs, include ALL movement – interstate and intrastate — as well as loaded, empty, dead-head, and bobtail miles.

A recommended source document to track distance is an individual vehicle mileage record (IVMR). IVMRs must be detailed, accurate, and legible. They can be created:

In paper form, or
By an electronic logging system/device (ELD) or global positioning system.

Distance records must allow an auditor to:

Verify the reported distances, and
Evaluate the distance tracking system.

Tip #2: Organize fuel records for IFTA

In addition to distance records, IFTA licensees must also maintain detailed records of all motor fuel purchased, received, or used in the conduct of the business. Retail fuel purchases and bulk fuel purchases must be tracked separately.

The records must enable an auditor to:

Verify the distances traveled and fuel purchased for the period under audit, and
Evaluate the accuracy of distance and fuel accounting systems for the fleet.

Tip #3: Keep records accessible

Neither IFTA nor IRP requires a specific type of storage system for the required records. Paper or electronic/digital records are acceptable.

Records can be kept:

Onsite,
At an offsite location, or
With a third-party administrator.

However, once you are notified of an audit by the base jurisdiction, you must be able to present those records within 30 days of the request. If using a third-party administrator, you should be clear about how to access records when necessary.

Tip #4: Retain records for required time frames

Under IFTA, records used for the quarterly tax return must be retained for four years from the return due date or filing date, whichever is later, plus any time included under waivers or jeopardy assessments.

You must retain IRP records that support the apportioned registration for the current year, plus the three preceding mileage years. As a result, distance data may need to be kept for up to six and one-half years. For this reason, it is highly recommended to keep all distance and fuel data for six and one-half years.

Key to remember: For a painless and penalty-free audit under IFTA and IRP, keep complete, organized, and detailed records of distance and fuel purchases:

In an accessible format, and
For the required retention periods.

Tip #5: Combine NTA ELD & J J Keller Services

Let the team of JJ Keller compliance advisors combined with the NTA ELD to make it easy to keep your company compliant with complex motor carrier tax and registration requirements, state IFTA and IRP requirements, and fuel tax reporting obligations, plus help reduce your audit risk. They will apply their expertise to ensuring that your vehicles are legal and improving the accuracy and integrity of your fuel and mileage tax data.

NorthAmerican Transportation Association is your authorized dealer for J J Keller products and services.

Preparing for your Deposition

wayne@ntassoc.com (Wayne Schooling) — Fri, 12 Jan 2024 20:35:49 GMT

In the normal case, your deposition is the first and only time in which you will testify, under oath, about the facts of your case. It is a very important procedure which often forms the basis for settlement. It cannot be taken lightly. Thorough preparation on your part is essential. We are giving you this information to help you be prepared for this important occasion.

The opposing attorney has a right to take your deposition. That lawyer's purpose is generally to understand what you know about the subject matter of the case, so that he or she can prepare for trial and assess the strength or weakness of your position. The opposition may be using this technique to try to discover as much as possible about the facts. The opposition, however, may also be using the deposition as an occasion to have you testify under oath in a way which would make you uncomfortable at trial. If you make statements under oath at trial which are contrary to what you have said under oath at your deposition, your deposition may be used to "impeach your credibility." It is important, therefore, that you discuss with us any concerns you may have about possible problems or areas where you feel at all weak or unsure about your testimony. It is also important that you have fully disclosed to us any potential weaknesses or possible defenses which you believe the opposing party might know about in your case. If we have talked about the difficulties, we will have figured out how, consistent with the truth, you can deal with them. On the other hand, if we do not know about a possible problem or a harmful document, then we will have no way of reviewing it with you before your deposition and it is possible that, on that point or on that document, your deposition would go poorly.

Therefore, you must assume that the opposing lawyer knows all of the potential weaknesses in your case. if for any reason you have not told them to us so far, you must do so before the deposition so that we can adequately prepare your testimony if the subject comes up. If You are right that the other side has no knowledge about a potential weakness, then the subject will not come up and we don't have to worry about it. But if You are wrong in that assumption, then there can be significant problems. Full disclosure to us is always the best policy- A deposition begins with a court reporter taking your Oath that you will tell the truth . It is generally held in a conference room in the opposing attorney's office. One of the attorneys from our office will always be present at the deposition. Because the opposing attorney has requested your deposition, he or she will ask questions and your answers will be taken down by the court reporter.

Unlike a court proceeding, in a deposition, objections to questions are generally few. There is no judge present at a deposition and there is no way to get a ruling on whether a question is objectionable. Only a few objections are appropriate to make at a deposition. This means that often there will be long stretches of time where we will be saying nothing. Generally, however, the less we say, the better your deposition is going so don't be concerned if we have little participation.

It is not your job at your deposition to tell the opposing attorney everything you know about your case. It is your job to answer the questions which the other side asks, as concisely as possible. "Volunteering information" is almost always a bad idea. Realistically, you should abandon any idea that you might convince the opposing party of your account by telling him or her everything you know. In fact, often the other side does not know some of the things that you know, and if you make a disclosure of an item not previously known to the other party, then you can expect the other party to follow up on that matter by trying to obtain witnesses or find documents opposing your view. So, if you are not asked about a matter, don't bring it up.

Although our role as your attorney will be limited at your deposition, if we do object to questions you should listen carefully to the objection we make. We may be trying to help you out on your answer. If, for example, we object that the question would call for you to speculate or guess, that means that we do not want you to be guessing at an answer while you are under oath. If you actually know what the answer is, you may go ahead and answer; but if you do not, and you would be required to guess, you are better off simply stating that you do not know the answer and you are unwilling to guess under oath. In addition, we might object that you have already answered the question in previous deposition testimony, and we objcc4L to your having to answer it again. This objection usually means that we think that your previous answer was good and complete, and we don't want you to deviate from it. Under those circumstances, it would usually be best for you to insist that you have already given a full answer and you cannot recall anything else, unless in fact there is something important which you remember and you did not bring out in your initial answer.

It is also possible that we will make an objection and at the same time instruct you not to answer the question. If we do that, do not answer the question.

With the above in mind, we will now turn to some specific instructions to help you do a good job in this important procedure.

INSTRUCTIONS

Tell the truth.
Listen to the question. Answer that question and only that question - no more, no less. Resist the temptation to be helpful or get out your side of the story, or "fill in the blanks."
Do not answer a question that you have not heard completely; ask that it be repeated. Do not answer a question you do not understand, and do not be afraid to say that you do not understand. It is up to the examiner to frame intelligible questions; if he or she cannot do it, do not offer your help. Do not explain to the examiner that the question is incomprehensible because he or she has misunderstood words of art in your business trade or science. Do not help the examiner by saying "do you mean X" or "I think you mean."
Think about your answer before you respond to the question. This permits time for you to make sure that you understand the question and can prepare your answer properly. It also gives us time to object. If we feel an objection is important do not be embarrassed about taking your time in answering, no judge or jury is present. The transcript does not reflect how long you take to answer. If anyone comments that you are taking a long time to answer, just say you want to be sure your answer is accurate and complete. That is enough explanation for the opposing party.
Answer each question accurately, but as briefly as possible. Respond only to the question asked and do not, under any circumstances, volunteer information. The examiner is entitled to an answer to the question that is asked and only to that question. You are not there to educate the examiner. Do not make a speech. Do not try to explain why you did or said something. Do not try to appear friendly and helpful. This is not a social occasion, and it is not a game. The examiner's interests are often the exact opposite of your own; do not trust him or her, charming though he or she may be.
In connection with answering questions:
Do not make up an answer, even though you think that it is what the answer probably is or ought to be.
Do not guess, speculate or assume.
Do not be afraid to say that you don't remember, if in fact you do not remember.
Do not argue with the examining attorney. Do not let him or her make you angry; anger can provoke people into saying things they do not mean. Do not try to make the examiner angry. If your attorney appears to be angry, that is not a signal for you to allow yourself to be angry. It may be just an act on his or her part.
Conversely, as already indicated, do not be taken in by the examining attorney. Be polite, but not friendly. It is a good technique for the opposing lawyer to appear to be friendly to you. On the other hand, keep in mind that the opposing attorney will make the best possible impression on his or her client if your case is completely demolished. Thus, do not believe that the opposing attorney is your friend.
Often lawyers will act as if they know nothing about a particular subject matter. Almost always, this is not the case. Usually, the lawyer has gone into the subject matter carefully, and knows quite a bit about it - do not be deceived by the opposing lawyer saying that he or she is really naive about your area of employment, or any other subject matter of your case. That kind of introduction is more likely a tip off that the other lawyer has done some serious studying about it, and should be a signal to you definitely not to volunteer information and answer only what you are being asked.
When there is a silence -- and this is very important -- do not try to fill the silence. Answer the question. Then be quiet. Do not be embarrassed by the silence. Do not try to expand on your answer. Sit there for 40 minutes of silence if that is what it takes. Wait for the next question.
Do not try to memorize your testimony.
Be as specific or as vague as your memory allows, but do not be put in a position contrary to your true recollection. If you are asked when something occurred and you remember that it occurred on January 15, answer "on January 15." If, on the other hand, you cannot recall the exact date, state the approximate date if you recall enough information to approximate a date. Otherwise, say you don't know.
Do not explain your thought processes as to how you reached the answer to a question. If your answer depends on your recollection of other facts not called for by the question, do not refer to those other facts in explaining how you answer the question. For example, if you are asked when a conversation with Jones occurred, and you recall that it had to be in December because you met Smith after Jones and that was in January, do not explain this thought process to the examiner. This is an example of volunteering information, which we generally discourage.
In testifying to conversations, make it clear whether you are paraphrasing or quoting directly.
In answering a question calling for a complicated series of events or extensive conversations, summarize these where possible. An examiner who is doing his or her job properly will ask for all the details. It is always possible, however, that the examiner will accept your summary and this is so much the better.
Never characterize your own testimony. "In all candor, "honestly, " "I'm doing the best I can", are out.
Avoid all adjectives and superlatives. "I never" or "I always" have a way of coming back to haunt you.
You only know what you have seen or heard. Questions are often phrased "do you know". A question in a deposition may legitimately call for something you do not know, but it must be so phrased. There is a difference between a question that asks "do you know", and a question that asks whether you have any information bearing on a particular subject.
Numerous documents may be marked as exhibits at a deposition. If you are asked about a document, read it before testifying. Do not make any comments whatsoever about the document, except in answer to a question that elicits your testimony.
If information is in a document that is an exhibit, ask to see the document before answering.
If information is in a document that is not an exhibit at the deposition, answer the question only if you can recall the answer. Do not tip off the examiner as to the existence of documents he or she does not know about. If you cannot answer the question without looking at a document that is not marked as an exhibit, you may simply answer the question by stating you do not recall. After a witness state he or she does not recall a fact that the examiner believes he or she should have knowledge of, the examiner may ask if there is a document that can refresh his or her recollection.
Sometimes an examining lawyer will ask you questions from a document but not let you see the document. It is dangerous to contradict what is stated in a document, unless the document is for some reason false. If you need the document to help you testify, ask for it. If the lawyer won't give it to you make it clear that you feel you can't answer the question without having the document to refer to. If the lawyer still won't show it to you, tell the lawyer it's not fair for you to have to answer a question under oath without the document in front of you but that if he or she insists, you will do your best without it. Following this format insures that you will not later be impeached by contradictory statements in the document itself.
Do not let the examiner put words in your mouth. Do not accept the examiner's characterization of time, distance, personalities, events, etc. Rephrase the question into a sentence of your own, using your own words.
Pay particular attention to the introductory clauses preceding the main portion of the question. Leading questions are often preceded by statements that are either half-true or contain facts that you do not know to be true. Do not let the examiner put you in the position of adopting these half-truths or unknown facts on which he or she will then base further questions.
If you have a flash of insight or recollection while testifying and this has not been previously discussed with your attorney, hold this to yourself, if possible, until you have had an opportunity to go over it with your attorney.
If you are interrupted, let the examiner or other lawyer finish his interruption and then firmly but courteously state that you were interrupted, that you had not finished your answer to the question, and then proceed with your answer.
Beware of any question that begins with "you have testified that...... Many witnesses simply assume that the attorney is repeating what was previously stated, and so they automatically agree with the characterization. But attorneys often use such an opportunity to recast your testimony in a light favorable to their side of the case. Accordingly, you should listen very carefully to any such summary. If it does not accord precisely with what you did in fact testify to, simply state that the summary is incorrect, and ask for the question to be rephrased.
If You are finished with an answer and the answer is complete and truthful, remain quiet and do not expand upon it- Do not add to Your answer because the examiner looks at you expectantly. If the examiner asks you if that is all you recollect, say yes, if that is the case.
If your attorney objects to a question, listen to the objection very carefully. You may learn something about the question and how it should be handled from the objection.
Do not expect to testify without the other side scoring points. If the examiner asks questions that call for answers that do not help your case, recognize that every lawsuit has two sides; sit back and accept the unavoidable. Resist the temptation to guess, to expand on your answer where no expansion is called for, or, even worse, lie.
Avoid any attempt at humor or telling jokes. Jokes, sarcasm or irony simply do not come off well in a written transcript. Often the writing will look absolutely the opposite of what you expected.
Assume there is no such thing as "off the record." If you have any conversation with anybody in the deposition room, be prepared for questions on that conversation.
Every witness makes mistakes during a deposition. Do not become upset if you make one. If you make a mistake, you should correct it as soon as you realize it. If your correction would require new testimony on your part that you have not discussed previously with your attorney, ask for a break at the earliest convenient time. The record can be corrected later in the deposition. Also, mistakes may be corrected when you sign the transcript, although generally, you cannot substantively change your transcribed answers at the time you sign the deposition.
If you are asked whether you talked to anyone about your testimony, you should testify truthfully including that you talked with us about it. You cannot be asked about the content of our discussions because those are subject to the attorney-client privilege. It would not be truthful, however, if you omitted stating that you had spoken with us to prepare for your deposition, and it would also make us look bad because lawyers are always supposed to prepare their clients for depositions.
Any documents that you refer to in the deposition which you have used to refresh your memory or prepare for the deposition probably will be required to be produced to the opposing party. This means that under no circumstances -absolutely none -- should you bring a document into the deposition without first letting us know what you plan to bring. We may encourage you to bring some kinds of lists, such as dates referencing certain important events, places you have lived, jobs you have held, etc., but generally we discourage you from bringing any "home made" documents to the deposition. Our office once obtained the defense lawyer's strategy when the company president pulled the strategy paper out of his pocket to refer to it to refresh his memory on some questions. You must clear any document that you want to use in the deposition with us, before you use it.
The opposing lawyer will ask you for names and addresses of witnesses to events. If there is any witness whose name you are trying to protect, it is essential that we discuss this issue before you testify. If we know the witness exists, we can work on ways to preserve confidentiality. We can probably protect some witnesses but others we probably cannot. The rule, however, is that we must talk about them with you before your deposition.
You will probably be asked whether you have been involved in other lawsuits or ever been arrested or similar questions. Once again, you should prepare us for your answer. If it is something embarrassing to you, perhaps we can keep it out of your testimony. If you have not reviewed it with us and you are asked about something, then answer truthfully even if it is embarrassing. It is a lot less embarrassing to give a truthful answer than to be caught at trial with a lie or with covering up information.
It is essential that you re-read your complaint in your case before your deposition. You need to understand how you would prove all of the facts which you have alleged in your complaint. You also should understand the legal theories, even though you are not the lawyer and you are not really responsible for the theories. Finally, you should understand the damages which we are seeking in your complaint. Review those with us carefully and if you have any questions about them, please ask.
You may be asked about physical injuries or mental and emotional pain and suffering. You should not minimize the extent of your injuries when you are asked about them. Neither should you exaggerate as exaggeration probably works more against you than minimization. It is always good simply to be as descriptive as possible about injuries. The presentation of mental and emotional pain and suffering needs to be discussed with us before your deposition.
Certain things may be asked in your deposition which are personal, but which the opposing party is entitled to ask about. These may include:
marital history;
educational background;
religious affiliation;
employment history including current and previous employment;
personal and family income;
previous residences;
any arrests or criminal convictions;
driving record in some cases.
If something happened at a particular place, it may be useful for you to revisit that place before your deposition. Sometimes you may be asked to diagram where or how an incident happened, or you May be asked to diagram where some things were in relation to others. Viewing the place in question before the deposition often helps.
Usually a final question will be asked which is whether you know of anything else that has not been brought out on a particular subject matter. Unless you know of something specific, you should not answer this question any way other than to say you do not recall anything at this time but that if you are asked a specific question you will try to answer it.
Remember that you may ask for a break at any time you want one. If you want to consult with your attorney, just ask for a break and then adjourn to a place where you can confer in private. Normally, an examining lawyer would not consider it acceptable for you to confer with your attorney while a question is pending. However, do not be intimidated if the examiner strenuously objects to you speaking with your attorney when you are asked a question you feel you simply cannot answer without conferring with counsel. Such a situation may arise, for example, where you are asked about an aspect of your business that you deem to be a trade secret or otherwise highly confidential, and you and your counsel had not previously discussed this.In that case, merely state that you cannot answer the question without first conferring with counsel and your attorney will take it from there. However, keep in mind that this is your deposition, not your attorney's. You do not want the written record to make it appear as though your attorney frequently was prompting Your answers. p Adequate preparation will generally avoid this problem, except for the occasional unforeseen instances, such as that described above.

COMMON TRAPS

Some people are tripped up by the following areas:

Old Claims or Injuries - As you know, computers these days contain about everything you've ever done. The insurance companies have access to most computer information, and they will dig up any and all insurance claims that you have ever made. They will also know about previous injuries that you have had, and they will know many of your medical conditions, especially those for which you may have made a health insurance claim. Nevertheless, the other lawyer will ask you in detail about these, hoping that you try to hide or misrepresent information about one of them. Again, if that happens, the lawyer will be able to point that out to the jury to try to prove that you are not a truthful person. When you are asked about prior claims, injuries or medical conditions, it is very important that you be as complete and accurate as you can be.
Arrests or Convictions - Again, the above advice about being complete and honest applies. All information about arrests or convictions is available, and I assure you that the insurance company will have that information. Don't try to hide such information or misrepresent it. If you do, the results will be fatal to your case.
Present Activities - They will be very interested to know if your activities before the accident have been affected by your injury. Sometimes a client will say that they cannot do a certain activity now, when what they really mean is that they don't do the activity very often or that when they try it they don't do it as well as they did before the accident. Be careful about that; you should say that you cannot do a certain activity only if you absolutely cannot, do not, and have not performed that activity. Remember, it is very common these days for the other side to “Spy” on you and film your activities with a video tape. They will then ask you on deposition whether you do certain activities that they have you doing on video tape. They will be delighted if you say you can't do that activity when they have the evidence that you can.

We know that you will not be able to remember all of these instructions, but we hope that most of it will seem like common sense to you. We strongly encourage your reviewing these instructions as often as you need, so that your deposition will be a positive experience and allow us to pursue your case toward an adequate settlement or a winning trial.

FMCSA Raises Broker & Freight Forwarder Financial Responsibilities

wayne@ntassoc.com (Wayne Schooling) — Fri, 12 Jan 2024 20:26:21 GMT

Motor carriers have new protections against broker and freight forwarder fraud. The Federal Motor Carrier Safety Administration issued a final rule on broker and freight forwarder financial responsibilities with the aim of alleviating the effects of broker or trustee non-payment of claims.

FMCSA says it listened closely to motor carrier and trucking association concerns and proposals found in the Notice of Proposed Rulemaking (NPRM) when making the changes to how it regulates brokers.

Federal law requires brokers and freight forwarders to maintain financial security in the amount of $75,000. In the final rule, FMCSA declined to increase that amount.

Brokers and freight forwarders commonly meet the $75,000 requirement through surety agreements or trust funds backed by other parties. The final rule makes significant changes in ways assets may be used to meet the $75,000 security amount and which types of entities can serve as financial backers to brokers and freight forwarders.

In the NPRM, FMCSA had proposed a list of prohibited assets which could not be considered “assets readily available” to meet motor carrier claims because those assets were not secure, fluctuated in value, or were not convertible in a timely manner. In the final rule, however, FMCSA agreed with many commenters that it was better to state the list of “assets readily available” in an affirmative manner. This new approach prevents any future assertions that an unlisted asset somehow met the standard. The final rule states that the only assets which can be claimed are cash, Irrevocable Letters of Credit issued by a federally insured depository institution, and Treasury bonds.

In line with the NPRM, FMCSA removed loan and finance companies from the entities eligible to serve as a financial backer, known formally as a “BMC-85 trustee,” of a broker or freight forwarder. The agency noted that loan and finance companies are not depository institutions and are not regulated by the federal depository regulators or an equivalent state regulator. They are also generally not subject to a level of state regulation comparable to insurance companies.

The final rule retained the FMCSA suspension of a broker/freight forwarder’s operating authority when its available financial security falls below $75,000 and the broker or freight forwarder fails to replenish funds within seven calendar days. Sureties and trustees must also report if a broker or freight forwarder enters bankruptcy or becomes insolvent. FMCSA will establish a website, using the Unified Registration System platform, to facilitate communication about broker/freight forwarder insolvencies and suspensions.

Lastly, the final rule adjusted the implementation timeline for these changes. FMCSA decided to reduce the implementation period from three years to one year after the effective date of the final rule for the immediate suspension, financial failure or insolvency, and enforcement authority provisions of the rulemaking. FMCSA also reduced the implementation period from three years to two years for the assets readily available and entities eligible to provide trust funds for Form BMC-85 trust fund filings provisions.

This final rule becomes effective Jan. 16, 2024.

What to do if a lawyer wants to take your deposition

wayne@ntassoc.com (Wayne Schooling) — Fri, 12 Jan 2024 20:23:22 GMT

Depositions are part of the “discovery” process.

A deposition is an out-of-court proceeding in which a lawyer asks questions of a witness under oath and with a court reporter present. Depositions typically take place at an attorney’s office or a court reporter’s office.

You may have your deposition taken by an attorney if you are a party to a lawsuit or you are someone who has personal knowledge about the facts of a lawsuit. It is common during a lawsuit for a lawyer to depose the plaintiff, the defendant, an expert or someone who has a connection to the case, such as an eye witness.

Often times, the person being deposed will receive a deposition subpoena which describes the date, time, location and purpose of the deposition. The subpoena may also require you to produce specific records. Failure to comply with a subpoena may result in a court order and sanctions against you.

If you are being deposed, it is critical to meet with your attorney beforehand to understand your rights and obligations before and during a deposition.

Department of Labor Issues Final Rule on Independent Contractor Definition under the Fair Labor Standards Act

Fri, 12 Jan 2024 20:19:27 GMT

By Seyfarth Shaw LLP, Andrew M. McKinley & Kyle D. Winnick

Seyfarth Synopsis: Today the U.S. Department of Labor issued its final rule , attempting to define employee versus independent contractor status under the Fair Labor Standards Act (FLSA) (the “Final Rule”). The Final Rule jettisons an earlier attempt under the prior Administration to modernize and simplify how to determine who is an employee and who is a contractor by focusing on two core factors. The Final Rule instead purports to return to an ambiguous totality-of-the-circumstances approach, while also placing a thumb on the scale in favor of more workers being deemed employees under the FLSA.

It’s an election year. Be careful out there.

wayne@ntassoc.com (Wayne Schooling) — Wed, 10 Jan 2024 21:16:36 GMT

“A long time ago, in a galaxy far, far away,” I was a city driver for Pacific Intermountain Express (PIE). Actually, it was more like 63 + years ago and just a few miles off the I-5 in Commerce, CA.

Just like that opening crawl from the original Star Wars movie, that long-ago experience provides the back story for this bulletin.

In the years when I was there, I started as a bobtail driver with a designated route downtown Los Angeles. Then I worked my way up to drive a 26’ semi, then a 40’ semi and finally a set of doubles. At first back then, one would never see an independent contractor but over the years they proliferated to the point that that there were very few union companies.

Although my experience driving was all good, I couldn’t pass up the opportunity to jump over to management. It was a simple math test. I could stay a union driver and get a 40 cent raise over 3 years (that is 25/10/5) or go into management and get a $100 a month raise right off the bat and any more raises were based on my abilities.

So, I jumped the fence from union driver to management. Over the years, I changed motor carriers always moving up in the ranks. Eventually, winding up the California Trucking Association.

Now the current administrations in both California and Washington, D.C. are recklessly determined to put the independent contractors out of business & make small businesses who utilized such ICs employees so that the unions can step back in.

Unless you’ve been on a desert island, you all know we are entering an election year for control of the federal government. (Based on what we have seen so far from all sides, you might be wishing you were on that island.)

My experience teaches me that between now and November 2024 employers should expect increased activity by the federal agencies responsible for enforcing our nation’s labor and employment laws.

The latest data support that expectation.

The EEOC is suing employers at a greater rate than in the past

According a recent press release from the U.S. Equal Employment Opportunity Commission, the agency filed 50 percent more discrimination lawsuits against employers in fiscal year 2023 than it did in fiscal year 2022. That included 25 lawsuits alleging systemic discrimination (almost double the number filed in each of the past three fiscal years), 32 class actions, and 86 lawsuits on behalf of individuals.

During the two months since that press release, it has not been unusual for me to see reports of four or five lawsuits being filed in one week by the EEOC against employers. Like the numbers above, they include a smorgasbord of class and individual actions alleging a wide range of discriminatory conduct by employers.

The EEOC has been equally busy on the regulatory front. As my colleague Robin Shea has reported , the agency has issued proposed enforcement guidance on harassment in the workplace. In its recently released fall regulatory agenda, one of the EEOC’s priorities is to finalize its proposed regulations for implementing the Pregnant Workers Fairness Act.

It’s not just the EEOC

As my colleagues have been reporting, throughout 2023 the National Labor Relations Board overruled multiple decisions issued by the Trump-era Board. In doing so, it expanded the rights of employees and increased the burdens on employers. Here are some of the more notable examples:

In Lion Elastomers LLC II , the Board overruled a Trump-era decision and made it more difficult for employers to defend the discipline of employees for engaging in misconduct, like offensive or abusive behavior, that occurs in the course of protected concerted activity.
In Stericycle, Inc. , the Board overturned another Trump-era decision and held that any employer workplace rule that could reasonably be interpreted by an employee as restricting or interfering with any sort of rights protected by the National Labor Relations Act is presumptively unlawful. Even if a more reasonable interpretation of the rule exists, and even if there is no evidence that the rule caused any interference.
In The Atlanta Opera, Inc. , the Board returned to the pre-Trump-era standard for determining independent contractor status. Needless to say, the decision makes it more difficult for an employer to classify someone as an independent contractor

Since the General Counsel of the NLRB has said that she will do everything in her power to enforce the rights that she believes employees have under the NLRA, there is no reason to think that these reversals will abate.

The U.S. Department of Labor has been equally aggressive in enforcing the Fair Labor Standards Act. During fiscal year 2023, the agency recovered more than $300M in back wages for more than 200,000 employees. According to the DOL, this resulted in the highest per-person recovery since 2009.

On the regulatory front, the DOL’s agenda continues to include revamping its rules regarding exempt and independent contractor status, both of which would result in substantial costs for employers.

They’re even arresting people now

In the past month, the DOL and the NLRB have secured the arrests of business owners for failure to comply with their obligations. Yup. A trip to the pokey.

In 64+ years of doing this, I have never heard of an employer being incarcerated for a labor law violation.

In one case, a judge in Michigan approved the arrest of a business owner for ignoring a court order to turn over records subpoenaed by the DOL. In another, a federal appeals court ordered U.S. Marshals to take the owners of a business into custody for refusing to comply with an NLRB order.

I hope that we do not represent any employer who would willfully ignore a court or Board order. That said, be warned. In the current climate, the NLRB and the DOL are willing to take the extraordinary step of asking the courts to put some recalcitrant employers in jail.

May The Force be with you

Whether it has been prompted by an effort to appeal to a Democratic base, a desire to complete an agenda before a possible change in administration, or just something in the water North of the Potomac, light sabers have been drawn. As Yoda might say, “Patience you must have, my young Padawan.”

I suggest that you look both ways before taking action on any “hot button” issues and do your best to stay under the radar.

Misuse of Personal Conveyance Can Jeopardize Your Safety Record

wayne@ntassoc.com (Wayne Schooling) — Mon, 08 Jan 2024 20:12:20 GMT

It’s common to let employees drive company trucks to and from home.

If your operation offers this perk, your drivers and supervisors must fully understand how to use the personal conveyance (PC) provision or face violations.

Roadside Inspections: Avoiding Violations & Ensuring Safety

Since its inception as a distinct roadside violation, inspectors have cited drivers nearly 23,000 times for improper use of the PC provision.

The PC violation, cited as “395.8E1PC,” came into being in late August 2021 as a distinct type of log falsification. The Compliance, Safety, Accountability (CSA) scoring system uses this roadside inspection violation. The violation carries seven points, the same as any other violation for falsifying a log .

The hours-of-service regulations themselves do not mention personal conveyance, and those rules have not changed. However, the relatively new way to cite a PC violation helps the FMCSA quantify how many drivers are abusing the PC exception.

The agency does not require officers to use the new citation, so some may still lump PC violations under 395.8(e), the catch-all rule for log falsification.  

What is PC? (Personal Conveyance)

When used properly, the PC exception allows drivers to log commercial vehicle driving time as off-duty. Such off-duty driving is allowed only for personal reasons, such as to commute to or from work or to get to a restaurant or grocery store.

To use a vehicle for personal conveyance, the driver:

Must be relieved from work and all responsibility for performing work,
Must not be too ill or fatigued to drive safely and
Must ensure that the movement will not benefit the company in any way.

When is PC Allowed?

Acceptable examples of PC include:

Driving from an en-route lodging (e.g., motel or truck stop) to and from restaurants, entertainment facilities, stores, etc., for personal reasons.
Commuting between home and a terminal or a trailer drop lot.
Driving to the first reasonably available and safe location to get required rest after running out of hours while loading or unloading and ordered to move the vehicle.
Moving a vehicle at the request of a safety official during the driver’s off-duty time.
Transporting personal property while off duty.
Driving home from a remote jobsite or “base camp” where the driver was stationed for a while (such as when working for a construction or utility company).

What Does Not Qualify as PC?

Certain instances are not acceptable as PC, including:

Driving to a company terminal, the normal work-reporting location, or home after loading or unloading at a shipper or receiver.
Driving that “enhances the operational readiness” of the company, " such as skipping an available rest area to get closer to the next work destination.
Driving to or from a facility for maintenance or to get fuel.
Continuing a trip to fulfill a business purpose, such as bobtailing or pulling an empty trailer to retrieve another load or repositioning a tractor or trailer at the company’s direction.
After delivering a trailer, returning to the point of origin under the direction of the company to pick up another trailer.
Driving to get rest after being placed out of service for exceeding the hours-of-service limits, unless told to do so by an enforcement officer.

In Closing

Thousands of drivers are being cited for violating the personal conveyance provision, so make sure you know what’s acceptable regarding personal use of a commercial vehicle.

FMCSA Limits Scope of Emergency Regulatory Waivers

wayne@ntassoc.com (Wayne Schooling) — Thu, 04 Jan 2024 14:56:18 GMT

The Federal Motor Carrier Safety Administration has limited the scope of regulatory relief in emergency situations, changes that went into effect Dec. 12. The new rules limit the duration of emergency relief exemptions in state or regional emergencies to 14 days, and those exemptions now only apply to hours-of-service limits.

Response to COVID-19 Exemptions

A year ago, HDT reported that FMCSA proposed to limit the trucking regulations that are suspended for motor carriers and drivers providing direct relief in emergency situations.

The agency's action came in the wake of concerns raised about the broad, extended, nationwide emergency exemptions for the COVID-19 pandemic.

In the December 2022 notice of proposed rulemaking, the agency said it believes most emergencies justify relief from the normal hours of service limits in order to deliver critical supplies and services. However, it said, other safety regulations often have no direct bearing on the ability to provide emergency assistance, such as:

Driver qualification requirements.
Drug and alcohol requirements.
Vehicle inspection requirements.
Prohibitions on operating while ill or fatigued.

The agency published a final rule on Oct. 13, which went into effect Dec. 12, implementing much of the proposal with a few revisions.

New Emergency Relief Exemption Rules

In the final rule, FMCSA narrowed the automatic applicability of Sec. 390.23 to hours of service limits only, saying “this change clarifies that carriers and drivers are not authorized to overlook other important safety requirements while performing direct assistance to emergency relief efforts.”

The rule also shortened the duration of regulatory relief.

Presidential declarations of emergency will continue to trigger a 30-day exemption from all FMCSRs in parts 390 through 399. However, the rule limits the duration and scope of the automatic regulatory relief that takes effect upon a regional declaration of emergency by a governor or FMCSA.

The automatic regulatory relief applies for 14 days, as opposed to the previous 30 days, and exempts commercial vehicle drivers only from the HOS regulations.

“This change both shortens the time the automatic regulatory relief is in place and limits the scope of the relief provided, ensuring any impact on safety continues to be minimized during the period of the automatic regulatory relief,” explained the agency.

This rule also modifies the definition for emergency to clarify that emergency regulatory relief generally does not apply to economic conditions that are caused by market forces, including shortages of raw materials or supplies, labor strikes, driver shortages, inflation, or fluctuations in freight shipment or brokerage rates, unless such conditions or events cause an immediate threat to human life and result in a declaration of an emergency.

Change from Proposed Five-Day Emergency Exemption

FMCSA said one change from the previous proposal was the 14-day relief period, which is longer than the five days originally proposed.

This was based on comments to the proposal that said five days would be too short to provide emergency relief, and also too little time for FMCSA to receive and evaluate information on whether a longer FMCSA-issued emergency exemption was warranted.

FMCSA said it “believes that most emergency declarations expire within five days, but it is aware that climate change has impacted both the number and severity of storms that often give rise to regional declarations of emergency.

“Providing for 14 days of automatic relief will allow emergency relief efforts in these severe weather scenarios to continue unabated, without fear that there will be a lapse between the automatic regulatory relief and any FMCSA action to extend or reinstate the regulatory relief.”

For emergencies that do not require an extended response period, the regulation states that the exemption period triggered by a governor-issued emergency declaration will end upon cessation of the emergency declaration or 14 days, whichever is sooner.

Truckers entitled to ‘sleeper berth’ time under FLSA

wayne@ntassoc.com (Wayne Schooling) — Tue, 02 Jan 2024 14:53:44 GMT

Constitutes ‘on-duty’ hours under DOL regs

As you may or not know, the NorthAmerican Transportation Association keeps tabs on what is legally going all over the United States through about a dozen legal firms so that we can keep our readers up to date. The following is what I call a very good Christmas present to all long haul truckers.

In a case of first impression, the 1st U.S. Circuit Court of Appeals has ruled that long-haul truckers driving as a team are entitled to be paid for “sleeper berth time” in excess of eight hours in a 24-hour period.

The employer, defendant CRST Expedited, uses a “team driving model” to transport goods nationwide in which two drivers ride in a truck, alternating between driving and resting in the vehicle’s sleeper berth.

Per trip, CRST pays each driver half the total number of miles at a per-mile rate corresponding with their level of experience. That means their hourly rate can be calculated by dividing the pay they receive by the total number of hours they work.

U.S. Department of Labor compensation regulations allow employers to deduct up to eight hours of sleeping time from each 24-hour period when calculating an employee’s compensation.

Meanwhile, under the U.S. Department of Transportation’s “hours of service regulations,” each driver can be “on duty” for up to 14 hours at a time, during which they can drive for up to 11 hours, spending the remaining three hours on non-driving duties such as loading and unloading. After those 14 hours, they must take at least 10 consecutive hours of “off-duty” time.

Much of the off-duty time is time is spent in the sleeper berth while the other team member is driving. DOT regulations also specifically exclude time resting in the sleeper berth from “on-duty” time.

Driver Juan Carlos Montoya, lead plaintiff in a collective action, alleged that CRST’s refusal to compensate him for hours spent in the sleeper berth beyond the DOL’s eight excludable hours resulted in him being paid less than minimum wage in violation of the federal Fair Labor Standards Act.

CRST countered that none of the time Montoya and similarly situated drivers spend in the sleeper berth should be considered work under the FLSA because that time is predominantly to the driver’s benefit, not the employer’s, and because of the DOT’s exclusion of sleeper berth time from on-duty time.

The 1st Circuit disagreed.

“The DOT regulations concern driver and road safety and, unlike the FLSA, do not address worker compensation,” Judge Kermit V. Lipez wrote for the court. “Indeed, the DOT itself has recognized that using DOT classifications of ‘off-duty’ time to guide issues of compensability is misplaced and can result in employers circumventing the FLSA’s requirements.”

As for CRST’s argument that sleeping berth time was for the benefit of the employee, Lipez said the panel found it “unpersuasive considering the drivers’ physical confinement in a restrictive space that is ill-equipped for many activities.”

The 37-page decision is Montoya, et al. v. CRST Expedited, Inc., et al., Lawyers Weekly No. 01-243-23.

‘Consistent with the law’

Plaintiffs’ counsel Hillary Schwab of Boston said the ruling is consistent with the law.

“The case is important for anybody who is subject to both Department of Transportation and Department of Labor regulations and clarifies that employers have to ensure that they comply with wage laws and not just DOT safety regulations,” Schwab said. “This obviously has a big impact for truck drivers, but I would suppose it also provides guidance as to what constitutes working time for any employer who has people on duty for long periods, including sleep time.”

Cambridge attorney Michaela C. May, who submitted an amicus brief on behalf of the Massachusetts Employment Lawyers Association, said at first glance the case appears to concern a narrow predatory employment practice for a discrete group of workers.

But in reality, she said, the suit is about the time-honored rule that time spent primarily for the employer’s benefit must be paid under the FLSA.

“Here, the truckers were confined to a small, noisy, moving space, and they couldn’t have a social life, see their families, or go to the bathroom during these periods,” May said. “There’s a lot of work situations where time is primarily for the employer and the employee has to get paid for it, and this was an important concept to reaffirm.”

Rebecca E. Filippo, a labor and employment attorney in Providence, found noteworthy the panel’s emphasis on the fact that drivers are typically traveling during their sleeper berth time, which suggests the employee’s continuous travel is important to the employer’s business.

“The analysis of this factor could help determine future claims of whether time commuting or traveling for work may be compensable under certain limited circumstances,” Filippo said.

CRST’s attorney, James H. Hanson of Indianapolis, did not respond to requests for comment.

Alleged FLSA violation

CRST provides trucking services across North America and runs a driver training program for aspiring long-haul drivers.

Montoya was a trainee driver in “phase three” of his training, in which he had earned a license and gone through a practicum and was now working under an eight- to 10-month contract that paired him with a more experienced driver. One driver would be off duty and in the sleeper berth for DOT purposes while the other was driving. The drivers would switch when the off-duty driver completed the required 10-hour period.

The approach enabled the company to keep its trucks in near-continuous motion for multiple days while complying with DOT limits on how many hours a driver could spend behind the wheel.

During sleeper berth times, drivers could sleep in their bunk, prepare food, connect to the internet if available, read or watch TV. When teammates swapped places at a rest stop, drivers could leave to eat, use the rest room, or attend to other needs.

In November 2014, Montoya completed an 1,871-mile trip from Iowa to Oregon.

Montoya was paid for 935.5 miles at a rate of $0.25 per mile under CRST’s pay scale. He also received a $100 signing bonus, resulting in a total wage of $333.88 for the trip.

His payroll statement said he worked a total of 33 hours per CRST’s definition of “hours worked.” He also logged nearly 16 hours of “excess” sleeper berth time beyond the eight hours per day CRST could exclude under DOL regulations.

If the excess sleeper berth time was not included when calculating Montoya’s hourly pay, he received $10.12 an hour ($333.88 for 33 hours worked). However, if the excess sleeper berth time was included, he received only $6.87 an hour ($333.88 for 48.61 hours worked), which would be less than the applicable $7.25 an hour minimum wage.

Montoya filed a collective action against CRST in January 2016 alleging that the defendant’s compensation policies violated the FLSA.

U.S. District Court Judge Patti B. Saris granted the plaintiffs’ motion for summary judgment, finding that drivers’ sleeper berth time in excess of eight hours was indeed compensable and must be included when calculating whether CRST pays drivers an hourly wage that meets FLSA minimum wage requirements.

CRST appealed.

Benefit of the employer

In affirming summary judgment, the 1st Circuit rejected CRST’s argument that, under the “predominant benefit test,” sleeper berth time should not be considered work under the FLSA because drivers were “waiting to be engaged” and thus their time was their own.

In particular, it found the employer’s reliance on the DOT’s hours-of-service regulations — which require drivers to be relieved from all work responsibilities during their 10-hour off-duty period and which exclude sleeper berth time from “on-duty” time — to be unpersuasive.

Lipez noted that the DOT regulations do not address compensation, and the DOT itself has cautioned employers against using its classifications of off-duty time to guide payment issues.

The panel similarly rejected CRST’s argument that drivers could do “anything they have a mind to do” during their sleeper berth time, making it predominantly for their own benefit.

“Though drivers may be able to engage in some leisure activities, the nature of these activities is restricted by the drivers’ presence in the sleeper berth of a moving truck — a small space, containing only some basic living essentials, that drivers cannot leave until the truck stops moving,” Lipez wrote.

Additionally, the panel pointed to the U.S. Supreme Court’s 1944 Armour & Co. v. Wantock decision, which stated that time does not become the worker’s own merely because the nature of the duty left time “hanging heavy” on the employee’s hands and the employee and employer cooperated to make the resulting confinement and idleness more tolerable.

“Similarly, here, the drivers’ time is not their own merely because they can pass the time spent in the sleeper-berth by watching a movie or surfing the internet, activities that are the modern-day equivalents of cards and the radio,” the panel found. “The fact that the drivers are typically traveling during time spent in the sleeper berth also suggests that such time is for CRST’s benefit.”

IFTA changes final for ELD/GPS electronic records

wayne@ntassoc.com (Wayne Schooling) — Mon, 18 Dec 2023 16:14:54 GMT

Systems using ELDs and GPS must comply beginning January 1, 2024.

The International Fuel Tax Agreement (IFTA) has finalized changes to requirements for electronic records to tightly define what data elements are required and what formats are acceptable.

For distance records produced by a vehicle tracking system that utilizes latitudes and longitudes (ELDs and GPS), a record must be created and maintained at a minimum every 10 minutes when the vehicle’s engine is on.

This action is even more stringent than recent changes for electronic records under the International Registration Plan (IRP), which require a minimum record creation rate of every 15 minutes while the engine is on.

Mirroring changes under IRP, electronic records under IFTA must be accessible in an electronic spreadsheet format such as XLS, XLSX, CSV, or delimited text file. Formats from a vehicle tracking system that provides a static image such as PDF, JPEG, PNG, or Word are not acceptable.

The effective date for the changes – January 1, 2024 – also aligns with changes recently finalized by IRP.

CARB Clean Truck Check Compliance Begins January 1, 2024

wayne@ntassoc.com (Wayne Schooling) — Fri, 08 Dec 2023 20:32:01 GMT

Beginning on January 1, 2024, all trucks operating in California will need proof of compliance with California Air Resources Board (CARB) regulations to continue operating in the state. Vehicles must be registered in the Clean Truck Check database by Dec. 31.

Clean Truck Check, formerly known as the Heavy-Duty Inspection and Maintenance Program, was approved by CARB in 2021. CARB said the program ensures heavy-duty vehicles operating in California are well-maintained and repaired quickly when needed to reduce emissions and improve public health statewide, especially in disadvantaged communities disproportionately impacted by air pollution.

It also provides a level playing field for the businesses that operate these vehicles as it applies to both in-state and out-of-state registered heavy-duty vehicles, according to CARB.

The program includes nearly all non-gasoline vehicles with a gross vehicle weight rating over 14,000 pounds that operate in California. This includes public vehicles, trucks, buses, personal vehicles, California-registered motorhomes, single-vehicle fleets, and vehicles registered outside of California (not including motorhomes).

Clean Truck Check is being implemented in three phases.

Phase 1 of Clean Truck Check

This initial phase, which started Jan. 1, began with the deployment of Remote Emissions Monitoring Devices (REMD).

REMDs monitor the exhaust emissions of passing heavy-duty vehicles and flag potential high emitters that may receive a Notice to Submit to Testing (NST).

NST’s require vehicle owners to submit a passing compliance test to CARB after any necessary emissions-related repairs are made, within 30 days of receipt of the notice. Failure to comply and remedy emissions-related concerns could result in DMV registration holds and/or removal from the compliance database.

Phase 2 of Clean Truck Check

This phase, which started Oct. 1, requires vehicle owners who are subject to the program to enter their vehicles in CARB’s Clean Truck Check database and pay an initial annual compliance fee of $30 dollars per vehicle by December 31.

Phase 2 also includes freight contractor, broker, and applicable freight facility requirements for hiring compliant fleets, allowing access to the facility, and record keeping.

Starting January 2024, all trucks driving in California will need proof of compliance with these requirements to continue operating in the state. Operating in California without registration in the compliance database could result in violations from CARB and/or the California Highway Patrol.

Phase 3 of Clean Truck Check

Phase 3 of Clean Truck Check requires heavy-duty vehicle owners to conduct periodic emissions testing on their vehicles.

This is similar to California’s Smog Check program for cars, according to CARB.

Periodic testing begins in 2024 and applies to all compliance deadlines after July 1, 2024.

Compliant tests may be submitted as early as April 2024. Periodic testing initially will be required twice per year for nearly all vehicles in the program.

Agricultural vehicles and California-registered motorhomes are required to test once annually. Testing requirements vary based on whether the vehicle is equipped with onboard diagnostics (OBD).

For California-registered vehicles, the compliance testing deadlines are linked to each vehicle’s DMV registration expiration/renewal date.

For vehicles registered outside of California and for vehicles exempt from DMV registration requirements, compliance deadlines are based on the last number of a vehicle’s VIN.

Passing test results may be submitted up to 90 days before a compliance deadline. Testing should be performed in a timely manner to avoid penalties and possible DMV registration holds.

FMCSA Revokes 10 ELDs

wayne@ntassoc.com (Wayne Schooling) — Fri, 08 Dec 2023 20:27:33 GMT

The Federal Motor Carrier Safety Administration has removed 10 electronic logging devices from its list of registered ELDs that meet the technical specifications in the ELD rule.

Unlike Canada's ELD rule, which requires third-party certification, in the U.S., suppliers are allowed to self-certify that they meet the technical requirements.

Which ELDs Are No Longer Approved?

Motor carriers and drivers using the following devices have 60 days to replace them with compliant ELDs.

CI ELD Logs from CV Options LLC
ELD 2 Go GoMax from ELD 2 Go
ELD4Trucking from ELD4Trucking LLC
ELog365 from EZ ELD Solutions Inc.
Golden ELD from Golden ELD
Powertrucks ELD from Miran Support LLC
Steer Right ELD from Steer Right LLC
TruckX-ELD from TruckX Inc.
TST 1 ELD from TST Group Inc.
World Trucking ELD[WS1] from World Trucking LLC

These ELDs now appear on FMCSA’s Revoked Devices list, which now has 17 pages of listings.

What Should Carriers and Truck Drivers Do About Revoked ELDs?

Motor carriers and drivers who use the ELDs listed above must take the following actions:

1. Discontinue using the revoked ELDs and revert to paper logs or logging software to record required hours of service data.

2. Replace the revoked ELDs with compliant ELDs from the Registered Devices list before January 30, 2024.

Motor carriers and drivers who continue to use the revoked ELDs listed above on or after January 30, 2024, will be in violation of 49 CFR 395.8(a)(1)—“No record of duty status” and drivers will be placed out-of-service in accordance with the Commercial Vehicle Safety Alliance (CVSA) OOS Criteria.

If the ELD providers correct all identified deficiencies for their devices, FMCSA will place the ELDs back on the Registered Devices list and inform the industry and the field. And in fact, that happened with one revoked ELD earlier this year, with the agency reinstating it to the list within a day after announcing its removal.

However, FMCSA strongly encourages motor carriers to take the actions listed above now to avoid compliance issues in the event that these deficiencies are not addressed in time.

New FMCSA Regulation Targets Fraudulent and Insolvent Freight Brokers

wayne@ntassoc.com (Wayne Schooling) — Fri, 08 Dec 2023 20:24:05 GMT

The Federal Motor Carrier Safety Administration has published a final rule tightening financial responsibility requirements for brokers and freight forwarders in an attempt to cut down on fraud and non-payment of motor carriers.

It’s been more than a decade since Congress directed the Federal Motor Carrier Safety Administration in 2012 to make changes to broker financial requirements in the Moving Ahead for Progress in the 21st Century Act (MAP-21). Provisions of that law increased the financial security requirement for freight brokers and established a financial security requirement for freight forwarders for the first time.

In January, FMCSA issued a Notice of Proposed Rulemaking on rule revisions for the financial requirements for brokers and freight forwarders. The agency solicited comments for 90 days and held a listening session on this rulemaking and other broker-related matters in conjunction with the Mid-America Trucking Show in Louisville, Kentucky.

The final rule on broker financial responsibility is scheduled to be posted in the Federal Register on Nov. 16.

The Broker Problem

FMCSA said it believes that most brokers operate with integrity and uphold the contracts made with motor carriers and shippers. However, the agency said, a minority of brokers with unscrupulous business practices can create unnecessary financial hardship for unsuspecting motor carriers.

Just last week, for instance, we reported on motor carriers left in the lurch by Pennsylvania-based broker Elite Transit Solutions.

The agency estimates that approximately 1.3% of brokers will experience a drawdown on their surety bond or trust fund within a given year, with average claim amounts of approximately $1,900. Of these brokers, 18% may have total claims more than the $75,000 minimum required by law.

When this happens, the resulting process of trying to get claims paid by the surety company or other financially responsible party can be costly and time-consuming. Motor carrier claims end up being paid pro rata, often resulting in payment of only pennies on the dollar.

The final rule targets five areas:

Assets “readily available”
Immediate suspension of broker/freight forwarder operating authority
Surety or trust responsibilities in cases of broker/freight forwarder financial failure or insolvency.
Enforcement authority.
Entities eligible to provide trust funds for brokers and freight forwarders, which are filed using Form BMC-85, Broker’s or Freight Forwarder’s Trust Fund Agreement under 49 U.S.C. 13906 or Notice of Cancellation of the Agreement.

Assets Readily Available

In the Moving Ahead for Progress in the 21st Century Act (MAP-21), Congress mandated that broker/freight forwarder trust funds consist of “assets readily available to pay claims without resort to personal guarantees or collection of pledged accounts receivable.”

The final rule sets out a list of the acceptable asset types a BMC-85 trust may contain: cash, ILCs issued by a Federally insured depository institution, and Treasury bonds.

FMCSA has determined that these asset types are readily available because they are stable in value and can be easily liquidated within seven calendar days of an event that triggers a payment from the trust.

Its January proposed rule proposed a list of prohibited asset types. However, after getting feedback and comments, it changed the rule to list accepted types. There were concerns among commenters about ambiguity and that only listing prohibited asset types could encourage financial institutions to create new asset classes in an attempt to circumvent the regulations. The Transportation Intermediaries Association was concerned that bad actors could “seek a potential asset that isn’t on the list and note that it is ‘readily available’ due to the fact it isn’t included on the agency’s list of non-compliant assets.”

Compliance with this provision will be required on January 16, 2026.

Immediate Suspension of Broker Operating Authority

When a broker or freight forwarder’s available financial security falls below $75,000, the rule allows FMCSA to suspend its operating authority registration.

That “available financial security” may fall below $75,000 because a broker or freight forwarder consents to a drawdown, or if a broker or freight forwarder does not respond to a valid notice of claim from a surety or trust provider, or if a claim against the broker or freight forwarder is converted to a judgment.

If the available financial security falls below $75,000 and the broker or freight forwarder does not replenish funds within seven calendar days after notice from FMCSA, the agency will issue a notification of suspension of operating authority to the broker or freight forwarder.

FMCSA intends to use its forthcoming Unified Registration System (URS) platform to receive information from surety providers, trustees, brokers, and freight forwarders and to administer FMCSA’s responsibilities regarding immediate suspension of operating authority registration.

In feedback on its January proposal, there were comments that the $75,000 minimum was too low (from owner-operators and motor carriers) or too high (from small brokers.) The agency’s response was that Congress set that $75,000 in MAP-21 so it was outside the scope of this rulemaking.

The final rule also expanded the criteria for determining the timing of the suspension.

FMCSA determined that a bond or trust fund should be considered to have fallen below $75,000 when either an actual drawdown occurs, or when the surety provider or financial institution receives legitimate claims that have not been adequately addressed by the broker and will inevitably result in the bond or trust fund falling below that amount.

“Expanding the criteria in this manner will allay concerns from surety providers and financial institutions about their ability to quickly notify FMCSA of brokers warranting suspension while still adhering to the 60-day period for public advertisement and subsequent 30-day period for paying claims specified in 49 U.S.C. 13906(b)(6),” FMCSA explained. “This is because surety providers and financial institutions will not be required to actually make a payment from the bond or trust fund before notifying FMCSA that the assets have fallen below $75,000, and will thus be able to continue aggregating claims throughout the statutory claims period.”

Compliance for this provision will be required on January 16, 2025.

Surety or Trust Responsibilities in Case of Financial Failure or Insolvency

This rule requires that if the surety/trustee becomes aware that a broker or freight forwarder is experiencing financial failure or insolvency, it must notify FMCSA and initiate cancelation of the financial responsibility. FMCSA will then publish a notice of failure in the FMCSA Register.

If the broker or freight forwarder subsequently cures the default, and the surety company or financial institution reinstates the bond or trust or the broker or freight forwarder obtains a new bond or trust, FMCSA will lift the suspension notice and update the FMCSA Register.

As with the immediate suspension provision, FMCSA intends to use the forthcoming URS platform to receive information and carry out its own responsibilities under this provision.

In its original proposal, the agency proposed to define the terms financial failure and insolvency as a bankruptcy or state insolvency proceeding. Many commentors were against this, pointing out that a significant period often elapses between the time a broker stops paying motor carriers and the time a bankruptcy or insolvency proceeding actually starts. And in some instances, a broker simply moves on and never files for bankruptcy.

FMCSA modified the definition of financial failure or insolvency to allow surety providers or financial institutions flexibility to exercise their judgment and expertise in determining financial failure or Insolvency.

Compliance with this provision will be required on January 16, 2025.

Enforcement Authority

With this rule, FMCSA implements the requirement in MAP-21 for suspension of a surety or trust fund provider’s authority in certain circumstances.

The agency will first provide notice of the suspension to the surety/trust fund provider, followed by 30 calendar days for the surety or trust fund provider to respond before a final Agency decision is issued.

The new rule also adds monetary penalties and a statutorily mandated suspension in 49 Code of Federal Regulations (CFR) part 386, appendix B, for violations of the new requirements.

Compliance for this provision will be required on January 16, 2025.

Entities Eligible to Provide Trust Funds for BMC-85 Filings

The new rule removes loan and finance companies from the list of providers eligible to serve as BMC-85 trustees, “because this type of institution is not subject to the rigorous Federal regulations applicable to chartered depository institutions or to the state regulations applicable to insurance companies.”

Loan and finance companies will now be prohibited from offering BMC-85 trusts unless they obtain certification to operate as another type of financial institution that remains on the list of eligible providers.

Compliance for this provision will be required on January 16, 2026.

But What About Double Brokering and Fraud?

A number of commenters on the January notice of proposed rulemaking wanted to see additional penalties beyond suspension of operating authority, but FMCSA said such penalties would exceed the agency’s statutory authority.

There also were comments expressing concerns about the proposal not going far enough — that it would not keep brokers from accumulating claims and exceeding their financial security. That it would not resolve the broader issue of nonpayment, as it will be challenging to trigger a broker or freight forwarder’s financial failure status, which may not result in the immediate suspension of their operating authority.

“Trust funds will continue to be expended on a ‘first come, serve served’ basis and leave everyone else in the cold,” said one insurance company.

The agency responded that the changes made in the final rule to the reporting requirements for immediate suspensions and to the definition of financial failure or insolvency “will ensure that surety providers and financial institutions can initiate the immediate suspension process more quickly once certain conditions are met. This will help reduce the risk that brokers and freight forwarders can continue accumulating claims for an extended period.”

FMCSA also noted that it received more than 150 comments concerning issues beyond the scope of its proposed rulemaking.

Commenters complained that brokers often behave in various fraudulent ways and are not currently sufficiently regulated by DOT or FMCSA. In particular, commenters mentioned those who operate under fake/stolen business information, as multiple businesses with different operating authority numbers.

A common complaint was “double-brokering” of loads. This term is commonly used to refer to a situation where a motor carrier accepts a load from a broker and then transfers the load without the shipper’s or original broker’s knowledge to another motor carrier who actually delivers the load.

In many instances, the motor carrier who completes the load does not receive payment for their services, as the original broker pays the motor carrier with whom it has contracted and believes the transaction is complete, but that motor carrier does not pay the second motor carrier with whom it has subcontracted.

FMCSA responded that while it appreciates commenters for bringing up these issues, they are outside the scope of this rulemaking, as they do not specifically pertain to the issues presented in the NPRM.

“Regarding the accusations of fraud, FMCSA is aware of increasing concerns in this area and is actively examining approaches to address the problems, including potential rule changes in other areas. FMCSA and DOT are also looking at new tools and practices to better enforce existing regulations against companies engaging in fraud.”

What you need to know about vehicles records, taxes and more

wayne@ntassoc.com (Wayne Schooling) — Fri, 08 Dec 2023 20:20:09 GMT

A properly managed vehicle recordkeeping system is a vital business asset .

While the management of records and documentation may seem a tedious task, it is a powerhouse of data that your organization can use to drive an efficient operation. Your records provide an inventory of all equipment as well as their related compliance and operational status. They answer questions like, “What’s my capacity in January?”, “What units will be serviced in December?” and “When will this asset be back online?”

Those responsible for vehicle recordkeeping understand the job comes with tremendous complexity. There are daily, monthly, quarterly, and yearly vehicle documents and timelines that must be reported, tracked, and stored, along with numerous city, county, state, and federal agencies to keep informed. It’s no wonder companies can find themselves in trouble during audits. Fleet professionals simply want to focus on keeping the wheels moving, not sift through paperwork. But inadequate record management could bring those moving wheels to a halt.

At least 65% of all critical violations found during 2021 audits are related to recordkeeping, including 7 out of the top 10.

If you face an audit, litigation, or another test of your compliance practices, your records alone may seal your fate. They allow you to verify and prove compliance with laws and regulations. Poor record management — or an inability to provide complete, accurate documentation upon request — could open the door to violations and stiff penalties from the DOT, State Patrol, or other enforcement agencies, not to mention costly settlements in court. The DOT alone could charge you up to $13,000 in fines for each missing document.

Additionally, more auditors are expecting near-instant access to your vehicle records, and they expect those records to be organized, up-to-date, and complete. If you haven’t already done so, store your records electronically. This makes data more accessible and more likely to be reviewed, analyzed, monitored, and shared.

Let’s take a look at the more common records typically managed by the maintenance area.

Inspection & Maintenance Records

The most obvious is a vehicle maintenance file. It must include:

Vehicle make, vehicle number, serial number, year, and tire size
Who furnished the vehicle
A record of all inspections, repairs, and maintenance
Preventive maintenance schedules
Bus inspection records

Proper and accurate retention of documents is an essential aspect of compliant recordkeeping. The Federal Motor Carrier Safety Administration (FMCSA) requires motor carriers to retain various documents to prove that their vehicles are properly maintained. Records must be kept for 12 months.

Additional documents that must be retained for specific time periods include:

Daily vehicle inspection reports for three months
Annual inspection forms for 14 months
Roadside inspection forms for 12 months
Evidence of inspector qualifications for the duration of employment plus one year
Accident register information for three years
Records of engine changes until three years after the vehicle leaves your control

Don’t forget about retaining common legalization records, including bills of sale, smog inspections, lease agreements, proof of insurance, lien security agreements, title, registration applications, and the like. Proper vehicle legalization records ensure your vehicles are legally cleared to be on the road. DOT registration must be updated every two years and emissions and annual inspections performed every 12 months.

Vehicle Taxes

There are also vehicle taxes to consider, such as state weight-mile taxes and the federal heavy-vehicle use tax (HVUT) filed annually or whenever vehicles are added. The recordkeeping rules for the International Fuel Tax Agreement (IFTA) and the International Registration Plan (IRP) are extensive. IFTA requires quarterly tax filings as well as annual renewal, while IRP involves yearly registration. Keeping reliable records and avoiding things like missing receipts or unaccounted-for gap miles in mileage reports is vital when the auditors arrive.

Staying Off the Radar

Maintaining accurate fleet records is essential to keeping your Vehicle Maintenance CSA BASIC score under the threshold. That is why the FMCSA recommends motor carriers use the Safety Management Cycle (SMC). It helps them evaluate their safety program, ensure compliance with the safety regulations, and reduce the risk of accidents, and provides additional insights into operations.

The SMC incorporates six key operational areas (see image). We suggest examining your safety management controls - defined as a motor carrier’s policies, programs, practices, and procedures - to ensure they address all six SMC areas.

Your maintenance team is probably responsible for performing all maintenance inspections, preventive maintenance, and repairs, and for generating supporting records. If your organization is trending towards more breakdowns, violations, and out-of-service events, good recordkeeping can help you follow the paper (or digital) trail and identify any gaps in your procedures, policies, training, etc. Without proper documentation and monitoring, you’ll continue to struggle with compliance and operational hiccups. Worse yet, your fleet could have a greater likelihood of accidents, expensive litigation, fines, and lost productivity due to out-of-service events.

Broker Leaves Carriers with Unpaid Loads

wayne@ntassoc.com (Wayne Schooling) — Fri, 08 Dec 2023 20:09:14 GMT

The following story is just another reason to join the NorthAmerican Transportation Association whereby you can obtain the Manufacturing Directory of any state. The Directories contain all the information to enable you to set yourself up as an in-house carrier. You can search name, commodity or city.

The folks at Armada Transport are at their wits’ end trying to get paid more than $22,000 owed to them by third-party logistics provider Elite Transit Solutions.

They and other motor carriers that have been having trouble getting paid by Elite Transit Solutions may face more struggles to get what they’re owed, with reports of sudden layoffs at the Pittsburgh, Pennsylvania-based company and an apparent pending cancellation of its broker surety bond.

According to published reports, the company has let go nearly all its staff. The most recent, on Nov. 3, saw some 65 people fired via Microsoft Teams.

In a LinkedIn post, Melissa Bucci, VP of people and culture for Elite Transit, wrote, “today is a sad day for me and most of the Elite Transit Solutions team as we had to say goodbye to the company, we worked so hard to build.”

Many former Elite employees have posted on LinkedIn in the past week with news of their own layoffs and looking for new jobs.

Elite Transit also has offices in North Carolina, Chicago, and Arizona. Just two months ago the company was hiring for its Scottsdale, Arizona, operations, based on its LinkedIn posts.

As of Nov. 7, according to FMCSA records, Elite Transit Solutions has a pending surety insurance cancellation. It shows that pending cancellation being for Allegheny Casualty Company, with a cancellation date of Nov. 22. And the agency shows a surety insurance for Southwest Marine and General Insurance Company cancelled 11/2/23.

We reached out to Elite Transit via the contact form on its website and to founder Michael D. Jones via social media for comment but had not yet received a response at time of publication.

One Carrier’s Experience

Armada, a small Illinois-based fleet, reached out to trucking media this week about its problems with Elite, which still owed the company $22,000 in unpaid settlements for loads hauled in July, August, and September.

The company has just three trucks and couple of owner-operators, "So this amount they don't pay is huge for us."

On Oct. 25, an Elite Transit representative wrote that its plan was “to make payments on these loads over the next three weeks.”

But as of Nov. 8, those payments had not materialized.

“They never paid us and they are not replying on our emails and phone calls,” the dispatch representative said. “Every time we reach them, they are saying that they will pay on Friday — but they never do.”

Earlier in the day, Michael St. Julien, Elite vice president of customer sales, told Armada in an email that “our legal counsel and owner are working on setting up payment plans for all past due payments. … This is the last response that you will see from me as I am being laid off from Elite.”

Armada has also reached out to the shipper, Starbucks, asking to be paid since the broker had not. On Nov. 6, a Starbucks representative responded that Starbucks does not have a contract with the motor carrier and that Armada should stop “harassing” Starbucks for payment.

Fortunately, there are Attorney firms that specialize in this type of problems, if you look hard enough. The secret of success is whether or not Section 7 was signed on the bill of lading.

What About Broker Bonds?

Federal law requires brokers and freight forwarders to have enough financial security for circumstances when they do not pay their carriers — a minimum of $75,000. Carriers can submit claims to the financial responsibility of the broker if they don’t receive payment.

This is often done via surety bonds, also called freight broker bonds, and motor carriers can file a claim against that surety bond through the Department of Transportation.

However, as the Federal Motor Carrier Safety Administration explained in a proposal earlier this year to make changes in those rules, if the financial responsibility provider has received claims against an individual broker that exceed $75,000, the financial responsibility provider will often submit the claims to a court in an “interpleader action” to determine how to allocate the broker bond or trust fund. This process can be costly and time-consuming and generally results in carriers only getting a portion of their claims.

The FMCSA has proposed changes to freight broker and freight forwarder financial responsibility requirements to try to address the problem of brokers that don’t pay motor carriers.

That rulemaking included examples of how the current requirements fall short in protecting carriers. As we reported previously, one surety provider submitted an example of a logistics company that had accumulated $945,739 in unpaid motor carrier claims after paying out the full $75,000.

Expect MORE Federal Trucking Regulations

wayne@ntassoc.com (Wayne Schooling) — Mon, 04 Dec 2023 20:45:30 GMT

As a motor carrier you have budgetary limits on your departments. As a truck driver you know some costs require pre-approval. Those limits exist to ensure the company has the cash flow needed for expenses. Through experience, you all have learned just how much things cost.

So, when a bill comes in over its budgeted amount or when an unexpectedly high cost arises out on the road, it’s often time for “the talk”:

Is this expense really necessary?
Can we do it cheaper?
Are we getting the best bang for our buck?

That budget focus in trucking has its equivalent in government rulemaking. There, it’s called cost/benefit analysis . Cost/benefit analysis was instituted during President Jimmy Carter’s administration (D) and significantly enhanced under President Reagan(R) to require that regulatory benefits exceed regulatory costs. Things eased a bit under President Clinton(D), whose executive order only asked that the anticipated benefits “justify” the real-world costs.

As part of the government cost/benefit analysis, some proposals are considered “significant regulatory actions” and become subject to more intense scrutiny. There are other reasons a rulemaking may be deemed “significant,” but the cost/benefit relationship is a major one.

Think of it like an unanticipated bill – those proposed regulations exceeded the government budgetary limit (measured by “annual effect on the economy”) for rulemakings. It’s not that the “significant regulatory actions” would not be approved, but first, there would be “the talk.”

The government’s budgetary limit before rulemakings are considered “significant regulatory actions” is $100 million…or, to be precise, was $100 million. That’s because in April 2023 President Biden issued an executive order that doubled the threshold to $200 million . Certainly, regulatory costs have increased. But a $100 million jump in the threshold means many, many more regulations will not receive intense cost/benefit review.

The increased threshold under the April 2023 executive order has not slowed the flow of “significant regulatory actions.” According to analysis by the Competitive Enterprise Institute, significant rulemakings for economic reasons numbered 49 per year under George W. Bush ( Republican) . They were 69 per year under Barack Obama , while the Biden administration is averaging 97 per year, with more proposed (Both Democrats)

So do you see the pattern here. It should be clear as day. Republicans are more for business, while Democrats just want to “tax” people through more regulations and fines.

So, what can you do? Two actions:

Comment on every rulemaking . Address the substance of the proposal certainly, but also comment on the cost. That new reporting requirement, for example, may mean upgrading legacy computers and training administrative personnel – those are real-world costs.That extra 15 minutes a day needed for your truck drivers to stay in full compliance may mean missed deliveries or unavailable truck parking. That hits your bottom line.
Tell your elected officials it’s time to have “the talk.” Are these regulations really necessary? Can we do them cheaper? Are we getting the best bang for our buck?

As the old saying goes, it’s not the elephant that will get you, it’s the mosquito. With the increased cost/benefit threshold at $200 million, there can be a lot of mosquitoes.

The Impact of the Great Trucking Recession on America

wayne@ntassoc.com (Wayne Schooling) — Mon, 04 Dec 2023 20:40:32 GMT

America's trucking industry is in a dire state, which is bad news for the American economy because it serves as an indicator of the mood of consumers and their pocketbooks heading into the holiday season, one expert warned.

Post pandemic, there has been a surplus of trucks and drivers compared to the amount of freight that needs transporting. As lockdown spending slowed and the cost of living continues to rise, more truckers are fighting for the same loads, which results in a "dogfight" between truckers and trucking companies, JKC Trucking Vice-President and Co-Owner Mike Kucharski told Fox News Digital.

"Everybody's calling this the great trucking recession, and it's true because all the trucking companies right now are in dark times," he said. "This is not a good time to be in the trucking industry. Just to paint a picture, the trucking industry is the engine that drives the American economy forward. We're fueling growth [and] prosperity by transporting goods to where they need to be and when the engine breaks down or stops, it works like a heart. When that ceases to be, it brings the entire economic system to a halt."

Yellow Corporation, for example, which is one of the nation's oldest and largest trucking companies, filed for Chapter 11 bankruptcy in August, laying off 30,000 employees. Convoy Inc., a Seattle-based trucking startup that was valued by investors at $3.8 billion just last year, shut down last month.

"Because volumes are down, we may even see more trucking companies go out of business," Kucharski said. "It's going to be really interesting and scary to see how this all unfolds over the next few months because of what has happened in the last two years."

Kucharski's company, JKC Trucking Inc., specializes in a particular sector of the trucking industry known as LTL, or less-than-truckload carriers, which handles pallet-sized shipments of freight through a network of terminals. JKC is Chicago's largest specialty contract carrier for climate-controlled and dry freight loads specializing in LTL shipments for customers with one box, one pallet or half a truck to ship from the Midwest to California, Florida and major cities west of the Mississippi River.

Kucharski explained that freight volumes, specifically, are a critical indicator of the status of the industry, as well as the economy. But he said right now the industry is experiencing "volume volatility" meaning volumes and rates are down due to supply and demand.

"Obviously an increase in freight volume typically suggests the economy is growing, as it indicates greater demand for goods and services," he said.

"We had COVID, we had a huge surplus of spending [and] we didn't have enough truckers to move it," he added. "Now everybody, the consumers, have depleted their funds and they're not buying as much."

In addition, the prices of everything, including energy and food, have "skyrocketed." Consumers are buying less and truckers are fighting over freight "to make some profit or break even to survive another year," he said.

Kucharski said another factor in the "great trucking recession" is diesel fuel prices, which are a major operating cost for trucking companies.

"It costs more to deliver goods and therefore this cost is passed on to the consumer. Consumers are feeling strapped for cash due to the increased costs and interest rates; they are holding back on purchases seeing what's going to happen and now we have our drivers sitting on the sidelines with no work," he said.

"It's a vicious cycle and all the trucking companies are in a dogfight, to get this volume because we went from 100 miles an hour to almost a complete halt," he added. "Until the entire economy corrects itself, we're going to be in the slump, and we're going to continue to see other trucking companies go out of business. Everybody is in bad shape, I don't care if you're Amazon or a one-trucking operation, everybody across the spectrum is affected."

Kucharski said the current economic climate is "the aftershock of COVID." Pre-COVID Americans had more money in their savings, but after COVID, people had depleted their savings, which has led to bad economic decisions, he said.

The holiday season is often a boon for the trucking industry, but Kucharski said spending dropped off after Thanksgiving last year, which resulted in the worst holiday season since the 2008 financial crisis. Unfortunately, he said there are fears that this holiday season could be "even more challenging than 2022."

"The rampant inflation has created financial hardships for Americans across the board," Kucharski said. "People are tightening their belts, you just have to right now, and this holiday season is going to be a major test and economic indicator of how economic pressures are impacting Americans and the trucking industry."

Calling Your Wage and Hour Lawyer Might Save Your Company $22 Million

wayne@ntassoc.com (Wayne Schooling) — Mon, 04 Dec 2023 20:29:49 GMT

Employers frequently struggle with questions around the compensability of certain activities, classification of employees, and how to structure their policies to avoid Fair Labor Standards Act violations. Getting the answers wrong can be costly. But getting them wrong without making reasonable efforts to comply with the law doubles an employer’s exposure. According to a recent Eastern District of Pennsylvania decision, consulting an experienced labor and employment attorney and implementing policies responsive to that advice can avoid that double trouble.

Case in Point:

Many a manufacturer requires its line level employees to wear protective clothing on the job. And many a case has been litigated over whether time spent donning and doffing that clothing is compensable.

East Penn Manufacturing Co. found itself embroiled in one such case brought by the Department of Labor that involved employees who worked with lead while making batteries and related components. A trial determined that East Penn violated the FLSA and owed $22,253,087.56 in back wages. The DOL asked the court after trial to impose liquidated damages (which double the amount of a back pay award) on East Penn, arguing that the company had not acted in good faith in its attempts to comply with federal law and had no reasonable grounds to believe it had complied with the FLSA.

The court disagreed. To avoid liquidated damages in FLSA cases, an employer must show that it acted in good faith and had reasonable grounds to believe it complied with the law. Good faith, said the court, is a subjective requirement that requires employers to “have an honest intention to ascertain and follow” the FLSA. Reasonableness, meanwhile, “imposes an objective standard” that asks what a reasonably prudent [person] would” do “under the same circumstances.”

East Penn proved both that it acted in good faith and reasonably. Every time a donning and doffing issue arose—something that happened in 2003 and 2016—East Penn “took affirmative action to ascertain its FLSA obligations.” In 2003, the company directed its outside labor and employment attorney to analyze two DOL donning and doffing settlements and advise East Penn about its own compensation policies. Upon receipt of the lawyer’s memo and recommendations, East Penn adopted one of their attorney’s “solutions” and promulgated a new compensation policy for donning and doffing time.

In 2016, East Penn learned of an OSHA complaint “about the amount of paid time allotted for showering.” The company revised its compensation policy yet again and solicited the same lawyer’s input on the new proposed policy’s legal compliance. The lawyer approved the policy and the company implemented it.

“In other words,” said the court, “East Penn relied in good faith on the advice of a properly experienced labor and employment attorney” who himself tried to ascertain if the company’s donning and doffing policies complied with the FLSA. Indeed, East Penn “tailored its policies in response to, and consistent with” its lawyer’s advice.

For many of the same reasons, the court also held that East Penn acted in an objectively reasonable manner. The “legitimate legal uncertainty about the compensable status” of donning and doffing time coupled with the company’s actions in response to that uncertainty led the court to conclude “that East Penn was objectively reasonable as a matter of law.” The court thus denied the DOL’s request for liquidated damages and East Penn was able to avoid paying an extra $22,253,087.56.

For employers facing uncertainty about their compensation policies, classification decisions, or other wage and hour related issues, this opinion provides a roadmap for how to avoid the imposition of liquidated damages in the event liability is found. Step one is diligently endeavoring to learn what the FLSA requires of an employer. Step two is structuring policies and conduct accordingly. And the most efficient, easy-to-prove way of doing both of those is, according to East Penn , by consulting experienced wage and hour counsel.

NorthAmerican Transportation Association members with questions or concerns about compliance with the FLSA or similar state laws should feel free to email NTA’s Wage & Hour Service Provider’s world class wage and hour team for additional guidance.

FMCSA Signals It May Use CSA Scores for Carrier Safety Fitness Ratings

wayne@ntassoc.com (Wayne Schooling) — Mon, 04 Dec 2023 20:27:43 GMT

The Federal Motor Carrier Safety Administration (FMCSA) recently issued an advance notice of proposed rulemaking and request for comments indicating that it was “interested in developing a new methodology to determine when a motor carrier is not fit to operate.”

Currently, motor carriers receive one of three safety ratings—Satisfactory, Conditional, or Unsatisfactory—based on the FMCSA’s findings made during safety audits. In the recent notice, the FMCSA stated it would consider whether to use a motor carrier’s Safety Measurement System (SMS) scores, which are part of the broader Compliance, Safety, Accountability program, to determine a motor carrier’s safety rating.

The notice, issued just months after the FMCSA proposed substantial changes to the CSA scoring system itself, suggests the FMCSA may be considering a major overhaul to its process for identifying carriers who are unfit to operate.

Given the concerns raised over the accuracy of the SMS system, the proposal to use CSA scores to rate motor carriers could potentially subject the carriers to unwarranted and unpredictable safety rating determinations.

The current administration is currently weaponizing the Department of Labor (DOL), the National Labor Relations Board (NLRB) & the Equal Employment Opportunity Commission (EEOC) against employers in his quest to become the best pro-President this country has ever scene.

If Biden can put more pressure on small to medium carriers to either do without independent contractors & switch to using employees only, then the unions can step in with their Card Check program and there it is, he becomes the best pro-union president.

Motor carriers are encouraged to submit comments in response to the notice. Contact Scopelitis, Garvin, Light, Hanson & Feary , if you need assistance in doing so. This prestigious law firm is what I call the “Seal Team” of attorney firms with offices in eleven (11) offices.

New NLRB Ruling Requiring Card-Check Union Designation If Unfair Labor Practice Committed

wayne@ntassoc.com (Wayne Schooling) — Mon, 04 Dec 2023 20:24:48 GMT

Employers' "worst nightmare" has just occurred in the Cemex Construction National Labor Relations Board (NLRB) ruling on August 25, 2023. In that ruling, the NLRB necessitates an NLRB order requiring the employer to recognize and bargain with the union, assuming the union can show a majority of employees have signed union authorization cards or otherwise indicated desire for union representation.

The result is almost the same as the "card-check" legislation, such as in the PRO Act, that Congress has repeatedly rejected. It is also in spite of the United States - Mexico - Canada agreement, confirming the right to a "secret ballot vote" for union representation in Mexico, which passed by overwhelming bipartisan majorities in Congress. It is hard to believe that secret ballot elections are required in Mexico, but not in the U.S.

The dissenting NLRB member in the Cemex Construction case states that it is "virtually impossible" for a bargaining order not to issue, particularly in light of the hard position taken by the NLRB General Counsel against ordinary employer work rules, against non-competition agreements, and against mandatory meetings by employers about the pros and cons of unionization and/or the voting process in a secret ballot election.

Admittedly, this ruling is going to be contested in the courts, and litigation may take several years. In the meantime, employers are confronted with a dilemma. It is very difficult if not impossible to go through a union organizational campaign without some type of minor unfair labor practice being committed, particularly if the union is looking for every opportunity to file unfair labor practice charges. While the union must still prove its majority in litigation, the employer may be faced with a choice of recognizing the union or expensive litigation.

There are also requirements in the Cemex Construction ruling as to when and how an employer should respond to a union demand for recognition, including the employer's own filing of an RM election petition within two weeks (unless the union has already filed an election petition).

The problem for employers is magnified by the fact that union organizational campaigns are often conducted in secret, and in some cases the employers do not even know such a campaign in underway until it receives a petition from the union. Unions commonly do not take action until a majority of eligible voters have signed union authorization cards or some other evidence of majority status. Employers are then confronted with the litigation dilemma outlined above, or the "quickie" election procedures outlined in a previous article.

In either case, employers must be prepared, and hopefully have put into place a good communications program addressing employee complaints, and prior education of the workforce about issues of unionization and the significance of signing a union authorization card. This author has written some papers of the implications of the Cemex Construction ruling and appropriate employer strategy going forward which is available free of charge for NorthAmerican Transportation Association members at jww@wimlaw.com.

What you need to know about the California intrastate ELD mandate

wayne@ntassoc.com (Wayne Schooling) — Mon, 04 Dec 2023 20:21:46 GMT

Professional interstate drivers have been required for the past several years to use ELDs to keep track of their hours of service. Since the implementation of the mandate, many states have also adopted ELD use for intrastate drivers. California is next, adopting ELD use for drivers at the turn of the year.

The California Highway Patrol has issued a final rule requiring ELD use by intrastate drivers on and after Jan. 1, 2024.

The rule requires the use of devices that meet the requirements in Part 395, Subpart B of the Federal Motor Carrier Safety Regulations (FMCSRs) by drivers who currently use paper records of duty status to record their hours of service.

Since this ruling specifically affects California’s intrastate drivers, it is essential for fleets to understand the Federal Motor Carrier Safety Administration’s definition of “intrastate.”

The big deal for fleets is understanding the differences when it comes to interstate and intrastate commerce. If a motor carrier doesn’t correctly identify its operations, the motor carrier and its drivers may be in violation of the regulations, which can lead to fines and penalties.

Intrastate commerce does not necessarily mean that drivers and vehicles that remain exclusively within a state. Travel does not include crossing state lines, travel over the border into and/or from Canada or Mexico, or transporting cargo or passengers originating in or destined for another state or country.

Intrastate means that if the origin and destination of the freight begins and ends within the State it is intrastate freight. A good rule of thumb is if the freight is going to or from an airport, an ocean port or a railroad it is interstate freight.

For California fleets subject to the ELD requirements, training should also be top of mind. The new rule requires that drivers be trained in the proper operation of ELDs. These training requirements — coupled with installation time and the innate learning curve associated with new technologies — make it

crucial for carriers to start the compliance process early.

If you haven’t started the process to comply with the California ELD mandate, you need to start today. Fleets shopping for ELD providers should ensure the ELD is on the FMCSA’s list of registered ELDs before purchasing devices in order to avoid unexpected compliance issues.

North American Transportation Association is the ONLY transportation Association in the United States that offers to its members a FMCSA approved ELD at the below market price of just $13.00 per month. GPS and IFTA tracking is $6.00 per month each.

The reason for the low cost is simple, the NTA wants to give back to its members, so they are subsidizing the balance.

While getting a new tool up and running can be frustrating, ELDs provide a wealth of benefits. Fleets that use ELDs can leverage data to stay competitive in challenging economic times, as they can help improve driver productivity and trip planning, eliminate fuel waste, and run a safer operation.

ELD use is a best practice for any driver as it provides a framework for reducing fatigue and mitigating risk. ELDs support a company’s commitment to stated policies and procedures to prevent fatigued driving.”

As the year winds down, interstate and intrastate carriers alike would be wise to take a moment to review all safety requirements, ensuring understanding and compliance across the board. This process should include making sure all drivers are trained on safety regulations as well.

Call NOW 800-805-0040 or go to ntassoc.com/nta-electronic-logging-devices

CVSA Brake Safety Week Results

wayne@ntassoc.com (Wayne Schooling) — Thu, 16 Nov 2023 17:54:31 GMT

Inspectors in Canada, Mexico, and the U.S. conducted 18,875 commercial motor vehicle inspections during the Commercial Vehicle Safety Alliance’s Brake Safety Week, Aug. 20-26, and found 2,375 vehicles had brake-related out-of-service violations.

For the weeklong inspection and enforcement initiative, inspectors focused on the brake systems and components of commercial motor vehicles and submitted brake-related data to CVSA. Fifty-six U.S. and Canadian states/provinces and territories and Mexico participated in this year’s Brake Safety Week.

Out-of-Service Brake Violations

Commercial motor vehicles are placed out of service – meaning restricted from further travel – when an inspector identifies critical vehicle inspection item violations, as outlined in the CVSA North American Standard Out-of-Service Criteria.

Of the 18,875 total commercial motor vehicles inspected, 2,375 (12.6%) were removed from roadways because inspectors discovered brake-related out-of-service violations.

Examples of Brake Violations

Some examples of brake-related out-of-service violations that automatically place the vehicle out of service include broken brake drums, loose air tanks, corroded holes in a spring brake housing, inoperative tractor protection valves, etc.

Service brake violations, such as cracked linings, brake adjustment, or loose chambers, may combine to put the combination of vehicles out of service under the 20% brake criterion. Certain service brake violations are automatically placed out of service when found on the steering axle.

Of the 2,375 commercial motor vehicles that were placed out of service, 295 (12.4%) had steering axle brake violations, 1,127 (47.5%) had stand-alone brake violations and 1,394 (58.7%) failed the 20% defective brakes criterion, which states that a vehicle is out of service if the number of defective brakes is equal to or greater than 20% of the service brakes on the vehicle or combination.

Lining/Pad Violations

The focus area for this year’s Brake Safety Week was lining/pad violations. Throughout the week, and just as they do normally when inspecting the vehicle components of commercial motor vehicles, inspectors checked brake lining/pads for cracks, voids, and contamination.

They also looked for loose, missing, or worn brake lining/pads. A total of 379 power (tractor) units and 261 towed (trailer) units had lining/pad violations.

Although lining/pad violations are not necessarily out-of-service violations, CVSA selected lining/pads as the focus for this year’s Brake Safety Week because brake lining/pad violations still affect a motor carrier’s safety rating. If left unaddressed, brake lining/pad violations may lead to more serious problems and can be out-of-service violations if they are on the steering axle or combined with other brake violations for the 20% brake criterion.

Canadian Inspections

In Canada, 1,327 commercial motor vehicles were inspected. Ten percent (134) had brake-related out-of-service violations. Twenty-six power units and 25 towed units had lining/pad violations.

Nine commercial motor vehicles were inspected in Mexico. One (11%) was placed out of service for brake-related violations. Lining/pad violations were identified on one power unit.

U.S. Inspections

In the U.S., of the 18,031 commercial motor vehicles inspected, 2,240 (12.4%) had brake-related out-of-service violations. There were lining/pad violations on 352 power units and 236 towed units.

PBBT Inspections

Eleven states with performance-based brake testers (PBBT) participated in this year’s Brake Safety Week by conducting inspections using their PBBTs. A PBBT is a machine that assesses the braking performance of a vehicle.

Of the 397 PBBT inspections, there were 18 failures, which is a 4.5% out-of-service rate. Ninety-five vehicles passed with at least one wheel below the 43.5% threshold. U.S. federal regulations and the North American Standard Out-of-Service Criteria require a minimum braking efficiency of 43.5%.

Operation Airbrake

Brake Safety Week is part of the CVSA’s Operation Airbrake Program, a comprehensive program dedicated to improving commercial motor vehicle brake safety throughout North America. The goal is to reduce the number of crashes caused by faulty braking systems on commercial motor vehicles by conducting roadside inspections and educating drivers, mechanics, owner- operators, and others on the importance of proper brake inspection, maintenance, and operation.

Next year’s Brake Safety Week is scheduled for Aug. 25-31, 2024.

How to Handle a Pending Driver Drug Test

wayne@ntassoc.com (Wayne Schooling) — Thu, 16 Nov 2023 17:49:11 GMT

When a DOT drug test is requested for cause, such as a crash or reasonable suspicion, a motor carrier may not receive the result for several days. Many carriers would rather not risk the driver operating their vehicle pending an official result.

Consider the following frequently asked questions regarding options when waiting for test results.

What is a Stand-Down Waiver?

Standing down a driver removes them from safety-sensitive functions based on the lab’s initial result and before an official medical review officer (MRO) result. It requires a waiver issued by the Federal Motor Carrier Safety Administration (FMCSA).

The carrier will have to demonstrate a need to know the lab result based on the company's high number of failed drug tests over the past two years.

Without a stand-down waiver, an official drug test result is not provided until after the MRO completes the verification process.

The stand-down provision only addresses temporary removal from a safety-sensitive function, not other duties, and it cannot impact pay and benefits. If the MRO verifies the test as negative or cancels it, the driver must be returned to safety-sensitive duties and suffer no adverse actions.  

Can We Remove the Driver from Duty Without a Stand-Down Waiver?

Yes. A motor carrier’s Department of Transportation (DOT) drug and alcohol policy may allow for removing a driver from safety-sensitive functions without a waiver while waiting on the MRO’s results.

There is no inside knowledge of positive lab results. The driver must be made aware of the policy, and it must be enforced consistently.

Do We Have to Pay Drivers if We Remove Them from Driving?

When removing the driver from safety-sensitive functions based on policy, a carrier does not generally need to pay drivers for any hours not worked. This includes when waiting for a test result.

Time spent off duty while waiting for a drug test result would usually be unpaid. 

A best practice is to compensate the driver for what would have been scheduled hours if the test is negative. Another best practice option is to place the driver in a non-safety-sensitive position while waiting for the result. The driver would be paid for the time worked.  

The motor carrier may need to refer to collective bargaining or other agreements regarding the pay issue.

How are Inadequate Specimens Handled?

When a driver cannot provide an adequate specimen, the driver is given five days to provide information from a doctor that there was a legitimate medical explanation. During those five days, there is no official drug or alcohol test result.

If the driver fails to pursue a medical exam or the doctor’s findings do not substantiate a reason for the inadequate sample, the test result is a refusal to test.

The motor carrier’s policy should address how these five days are handled, just as it would a period waiting on a lab analysis and MRO result.

What Happens When the Driver Requests a Split Specimen?

A driver who fails a drug test may request a split specimen test to prove their innocence. The other half of a drug test specimen is sent to a different lab for processing.

The MRO, however, does not delay the official test result of the primary specimen result, and it is communicated to the employer.

According to §40.213, the motor carrier must act on the initial result until proven otherwise. The driver must be removed from safety-sensitive functions and provided with a list of substance abuse professionals. The MRO reports the initial failed drug test to the Drug and Alcohol Clearinghouse, and the driver remains in a prohibited status unless the second test proves their innocence.

Key to Remember

The driver’s job duties (if any) pending a drug test result are at the motor carrier’s discretion. However, the motor carrier’s actions must be addressed within their DOT testing policy and identified as their independent authority.

Quickie Election Rule Made Even Quicker by New NLRB Regulation

wayne@ntassoc.com (Wayne Schooling) — Thu, 16 Nov 2023 17:45:58 GMT

The NLRB issued a final rule pertaining to its election procedures on August 18, 2023, to become effective December 26, 2023. The new regulation, promulgated without opportunity for comments, sets forth 10 amendments to NLRB procedures, substantially returning those procedures to those in a 2014 rule issued during the Obama Administration.

The changes expedite the conducting of the election itself. Thus, a pre-election hearing will generally be scheduled to open eight calendar days from service of the notice of hearing, rather than 14 business days. The rule regarding disputes concerning eligibility to vote or inclusion in an appropriate unit will not be litigated or resolved prior to an election, allowing the election to be held earlier.

The NLRB Regional Directors will specify the election details (dates, times and locations of the election, etc.), in the decision and direction of election rather than conveying them in a later-issued notice of election. Finally, and perhaps most importantly, the Regional Directors must schedule elections for "the earliest date practicable" after issuance of the decision following the representation hearing. Management calls the rule the "ambush" election rule because employers have only a couple of weeks or less to campaign and educate voters on election issues.

How Much Do Truck Drivers Make? 10 Highest-Paying Trucking Jobs

wayne@ntassoc.com (Wayne Schooling) — Thu, 16 Nov 2023 17:43:54 GMT

If you are debating a career change, have a clean driving record and enjoy life on the open road, you may be delighted to find out what some trucking companies are paying long-haul truck drivers to transport goods across the United States. Whether you have years of experience or want to get started with truck driving school, this could be a high-paying career path for you.

10 Highest-Paying Truck Driver Salaries

The trucking industry isn’t just made up of one type of experienced driver. In fact, there are many different types of trucking gigs where the driver’s pay is an above-average salary. Get ready to hitch up some tractor-trailers and research truck driving companies as here are some of the best-paid truck driver jobs today based on annual salary:

1. Hazmat Drivers

Average truck driver salary: $70,475 to $85,000

This type of driving isn’t for the faint of heart as you would be responsible for transporting hazardous and dangerous things. These could be explosives, flammables, corrosives or poisonous materials. You do have to have a Hazmat endorsement to ensure you can transport this material both safely and legally.

2. Ice Road Drivers

Average truck driver salary: $66,917 to $120,000

As this is seasonal work, annual salaries aren’t as regular but ice road drivers tend to make around $30,000 to $40,000 in three months. So, if you can find a way to extend your season or freelance out your specialty to places with colder climates, you could make a good living throughout the year. Though you must be over 21 years old, this has become a popular choice recently due to the History Channel show, “Ice Road Truckers.”

3. Mining Industry Drivers

Average truck driver salary: $62,868 to $108,160

This job is a bit more specific as mining industry drivers haul products on giant dump trucks throughout quarry and mining operations. As part of the industrial industry, these drivers are expected to be highly skilled and productive while operating safely in tighter or smaller spaces than the open road.

4. Oversized Load Drivers

Average truck driver salary: $45,000 to $71,091

The difference between regular truck driving and hauling an oversized load is essentially the size of your cargo. It takes skill to maneuver loads pushing over 8.5 feet wide. Anything over 12 feet wide may even require two people to operate the shipment.

5. Owner Operators

Average truck driver salary: $140,000 to $323,870

Though you do have high earning potential when you own a truck and negotiate your own deals, you are also responsible for all of the expenses associated with delivering goods. As with many jobs, with more responsibility and accountability comes more pay and profit. Once your bills and overhead are taken care of you can set your own salary.

6. Private Fleet Drivers

Average truck driver salary: $37,100 to $110,000

A private fleet driver works for chains, big retailers or regional stores shipping with an in-house team of trucks. They are used to transport the store’s goods to warehouses, other stores or directly to customers. You can find jobs like this at big box stores such as Walmart or more independent contractors like regional or local grocery stores such as H-E-B.

7. Regional Truck Drivers

Average truck driver salary: $38,220 to $71,882

Regional truck drivers typically drive within a 1,000-mile radius of where the trucker primarily operates. This means you as the driver would cover in or around a few states. This position’s pay will vary depending on your location and the truck driving company for which you work.

8. Specialty Vehicle Haulers

Average truck driver salary: $48,379 to $79,574

Specialty vehicles can refer to anything from specialty cars, classic cars, luxury brands and exotic sports cars. The owners of these vehicles typically don’t want a lot of miles put on them so they have them hauled from location to location.

9. Team Truck Drivers

Average truck driver salary: $101,079 to $119,464

Team drivers can haul their cargo faster as it typically is a two-driver team where one person drives while the other sleeps. This means instead of a truck delivering goods from coast to coast taking six days, the shipment can get there in three. As this partnership style of driving improves efficiency, companies often compensate better for it.

10. Tanker Drivers

Average truck driver salary: $90,894

Liquid or tanker drivers have their own specialty based on the physics and science it takes to haul large amounts of liquid and containers. This does not necessarily include hazmat materials, but just the sheer volume of the load being hauled can be problematic when the driver is forced to take a sharp corner or suddenly slam on the brakes. However, often the liquid material is highly flammable such as gasoline or propane and therefore every precaution should be taken.

Final Take To GO: How You Can Become a Truck Driver

If the salaries of some of these truck driving positions are enticing to you and you are over the age of 21, there are some steps you can take to start this new career path:

Join a trucking association to gain the knowledge of keeping up with all the regulations
Get Entry-Level Driver Training - In general, the cost of ELDT can range from a few hundred dollars to over a thousand dollars, depending on the specific program and the resources and training that are included. It is important to carefully research and compare different ELDT programs in order to find the one that best meets your needs and budget.
Earn your Class A or Class B CDL and add endorsements.

FAQ

Here are the answers to some of the most frequently asked questions regarding truck driver salaries.

How can a truck driver make $100,000 a year?
Truck driving salaries will vary depending on location, experience and the company you work for, however, there are many truck drivers making $100,000 a year such as:
Ice road drivers
Mining industry drivers
Oversized load drivers
Owner operator
Team truck drivers
Tanker drivers
What is the average salary for a truck driver in the United States?
Some sources have the average national salary for truck drivers to be over $80,000, but there are many different types and degrees of truck driving. For example, according to the Bureau of Labor Statistics, here are some general average salaries for truck drivers:
Heavy and tractor-trailer truck drivers: $49,920
Delivery truck drivers: $38,220

Data is accurate as of Oct. 11, 2023, and is subject to change.

This article originally appeared on GOBankingRates.com: How Much Do Truck Drivers Make? 10 Highest-Paying Trucking Salaries

What Should a Motor Carrier Do When They Get a Drug & Alcohol Clearinghouse Alert?

wayne@ntassoc.com (Wayne Schooling) — Wed, 15 Nov 2023 20:25:12 GMT

The Federal Motor Carrier Safety Administration is now notifying motor carriers if a driver’s Drug and Alcohol Clearinghouse record changes within 12 months after their last query.

Previously there was a loophole in the Clearinghouse system where a driver could have a drug or alcohol violation reported after a pre-employment query, but if another carrier went to hire that driver before their next annual Clearinghouse check, they wouldn't necessarily know about the prior violation.

Previously, such alerts were limited to 30 days following pre-employment queries. This change should help carriers identify violations occurring under another motor carrier’s drug or alcohol testing program.

Employers are now notified by email when a driver with a query has new information placed on his or her record. Changes in a driver’s Clearinghouse record that might prompt an alert from the FMCSA include:

A new violation (failed test, actual knowledge, or a refusal to test);
An entry from a substance abuse professional (SAP);
A negative return-to-duty test; or
A completed follow-up testing program.

When a motor carrier receives an alert that a driver’s record has changed, it should:

Request a full query within 24 hours, and
Verify the driver’s status (prohibited or not prohibited).

Motor carriers must pull the driver from safety-sensitive functions if an unresolved testing violation is discovered.

The vast majority of drug and alcohol violations are found via testing.

1. Request a follow-on query

Motor carriers should request a full (follow-on) query within 24 hours of Clearinghouse notifications.

A full query requires that the driver provide consent through a personal Clearinghouse account. If a driver does not have an account, one must be created quickly.

Once a query request is made, the driver must give consent. If the driver fails to create an account or refuses to consent, the driver cannot return to safety-sensitive functions until the issue is resolved.

If the full query shows an unresolved testing violation, the driver cannot return to safety-sensitive functions until the necessary return-to-duty steps are completed and submitted to the Clearinghouse.

A prohibited status means the driver has not completed the necessary steps to return to duty, including a substance abuse professional (SAP) evaluation, treatment, and a negative drug and/or alcohol test.

If the change to the record was the result of the completion of a follow-up testing program or the entry of a negative return-to-duty test (Not Prohibited status), the driver can continue perform safety-sensitive functions.

2. Change annual query rotation

Once every 365-day period, motor carriers must request an annual Clearinghouse query on drivers in positions requiring a commercial drivers license. Requesting a Clearinghouse query before the 12 months resets the rotation.

That means a follow-on Clearinghouse query:

Satisfies the annual query requirement, and
Allows motor carriers to change their annual rotation schedule based on the follow-on report date.

When a motor carrier receives notification that a driver’s Clearinghouse record contains new information, a follow-on query should be requested within 24 hours to confirm the driver is not prohibited from operating a commercial motor vehicle.

Join the NorthAmerican Transportation Association’s Drug and Alcohol Program with over 23,000 collection sites all across the U.S.

Since the launch of the CDL Drug and Alcohol Clearinghouse on January 6, 2020, through May 1, 2023, 71% of drivers with at least one reported violation remain in a “prohibited status.”

FMCSA to Consider Enforcement of CA and WA Rest-Break Law

wayne@ntassoc.com (Wayne Schooling) — Wed, 15 Nov 2023 20:15:24 GMT

Motor carriers operating in California and Washington who have been exempt from following state meal- and rest-break laws could end up having to comply after all.

The Federal Motor Carrier Safety Administration (FMCSA), which previously ruled that the states’ break laws cannot be enforced on drivers who follow federal hours-of-service rules, now says it will consider requests to allow the state laws to be enforced.

Such requests could come from the states themselves, labor organizations, or others in favor of requiring truck and bus drivers to follow the states’ more stringent rest-break laws.

Under the states’ break and rest laws, most workers must get a 30-minute meal break for every 5 hours of work, plus a 10-minute rest break for every 4 hours worked.

In three separate rulings in 2018 and 2020, the FMCSA concluded that the states’ break laws conflict with its hours-of-service rules and create an undue burden on interstate commerce, so they cannot be enforced on drivers following federal hours-of-service rules. Courts have largely upheld that decision.

In its recent announcement, the FMCSA provided no rationale for revisiting its position, but the move is widely seen as furthering the Biden Administration’s pro-labor stance.

Swift reaction

There was swift reaction to the FMCSA’s announcement. The American Trucking Associations (ATA) panned the move, with ATA president Chris Spear saying the organization is “fully prepared to oppose this effort that would result in a confusing patchwork of regulations,” vowing to “stop this in its tracks.”

Conversely, the Teamsters are applauding the agency’s effort, with Teamsters head Sean O’Brien saying “states should have the freedom to protect motorists and workers by implementing stronger meal and rest break requirements for professional drivers.”

Those seeking a waiver from the FMCSA’s earlier decision to “preempt” California and Washington laws will need to show that a waiver “is in the public interest and is consistent with the safe operation of [commercial motor vehicles].”

The FMCSA set November 13, 2023, as the deadline for receiving waiver petitions. All such petitions will be published and the public will be given an opportunity to weigh in, the FMCSA says.

Keep up with the latest news that affects your ability to run a successful company by joining the NTA .

Tips for Navigating Big Rigs

wayne@ntassoc.com (Wayne Schooling) — Fri, 10 Nov 2023 20:56:11 GMT

For heavy haul truckers, close quarter maneuvering can be particularly tricky. Whether it’s navigating through a detour, getting around a tight corner or maneuvering to a not-so-well-positioned loading dock, drivers face this challenge in many different ways.

Learning how to handle a heavy haul truck in close quarter conditions will help keep drivers, their vehicles and those around them safe.

“The No. 1 thing to remember is that, when it comes to close quarter maneuvering, inattention is not acceptable,” says Wayne Schooling, President of NorthAmerican Transportation Association.

“If you’re driving for five or six hours, there are going to be times when you are not 100% focused on your driving. But when you are doing close quarter maneuvering, you have to have your head in the game. That is absolutely the most important thing to remember.”

Close Quarter Maneuvering Tips for Heavy Haul Trucking

Here are six close quarter maneuvering tips that are essential for heavy haul trucking.

1: Know Where You’re Going

Knowing where you’re going is such an essential part of driving that it provides the first of our principles, which is “Aim high in steering.” In close quarter maneuvering, that translates into looking ahead and knowing where you need to go — and how you’re going to get there.

Your training should focus on the importance of removing all distractions and identifying the safest route. Whenever you're driving, particularly in tight spaces, it's crucial to ensure that your vehicle only goes where your eyes have already explored.

2: Walk Your Path

If you’re in an unfamiliar area, it can pay off to get out and physically walk the path you’re going to travel, particularly if you’re about to turn a corner or enter a tight parking lot.

“You don’t want to make a turn and realize that you’re stuck,” Schooling says. “You can avoid that by taking the extra time to walk the area and determine the safest approach, as well as how you’re going to exit. You always want to plan your exit upon your arrival.”

3: Avoid Backing

Backing collisions account for a large percentage of company crashes, but you can’t have a backing collision if you never back up.

Heavy haul trucks have larger blind areas, which creates more hazards for drivers. Being able to see all of the obstacles and objects in your path is essential to safety, and in a backing situation, it just isn’t possible to see everything in your path.

In addition to the challenges presented by backing up, drivers spend most of their time behind the wheel moving forward, so they have less experience in developing backing skills.

Look for ways to approach your destination that will allow you to leave without ever putting your vehicle in reverse. And if you must back up, avoid backing while turning.

Back wheels are designed to be pulled, not pushed, so “it takes a big lateral movement to push your vehicle in the direction you want to go,” Schooling says. “If you’re backing and turning, you expose the side and rear of your vehicle. So, if you have to back up, backing straighter is much safer.”

4: Think About What’s Above You

When you think about close quarters, it’s common to think about tight turns, parking lots and narrow roadways. But it also includes the space above your vehicle.

“There might be awnings or low overhangs that you have to be aware of,” Schooling says. “Everything above you should be considered; collisions can happen from above, too.”

Checking the distance between your roof and what’s above it can prevent such collisions from happening. That also means being aware of clearance for overpasses and any temporary low-clearance situations. Even if you’re familiar with a certain route, watch for low clearances that may have been implemented since you last visited that location.

According to a report in The New York Times, some 80% of trucks that get stuck under overpasses are following their GPS and believe they’re “in the clear.” Always double check where you’re driving and know the overhead clearance.

5: Get a Guide

The significance of having assistance during close quarter maneuvering is especially heightened for heavy haul truck drivers. This is due to the fact that, as previously mentioned, larger vehicles inherently possess more blind spots.

Accordingly, the individual serving as your guide must be someone you have confidence in and can effectively communicate with. Failing to adhere to this principle could result in harm, or even more serious consequences, for the guide.

In situations where you're relying on a guide for maneuvering but lose visual contact with them, it's imperative to halt immediately. Refrain from resuming vehicle movement until you have verified the safety and visibility of your guide.

The plan is to consistently position your guide on the side of your vehicle that you can see, open the windows to facilitate communication, and ensure that both you and the guide are in agreement regarding the hand signals.

Having the appropriate guide can significantly contribute to your ability to navigate tight scenarios with safety when entering or exiting them.

6: Take It Slow

Close quarters are no place for a fast pace. In fact, you might be surprised to learn just how slow you should go.

“Most people assume that idling or walking speed is OK for backing,” Schooling says. “But that’s too fast.”

Instead, he recommends reversing at one mile per hour, and says that is especially true in a heavy haul vehicle.

“You need to be looking from left to front, to right to above, and then to the back again,” he explains. “If you are moving too quickly, you’ll cover too much ground before you look back again.”

It’s also important to maintain a slow pace moving forward; Schooling recommends moving at about 10 to 15 mph, or even slower, depending on the situation. This is the time when you want to have plenty of time to react to any changes or movement around you and to make sure that you are aware of everything that is happening near and around your vehicle.

Safe Habits Keep Drivers Safe

Mastering the art of safely navigating a heavy haul vehicle in confined spaces constitutes a fundamental aspect of driving responsibly. Despite the majority of driving hours being dedicated to open road conditions, the moments spent in tight quarters hold a paramount significance within your overall journey.

Acquiring the skills to adeptly handle such situations stands as your optimal approach to guaranteeing not only your personal safety but also the well-being of your truck and those around you.

FMCSA Removes 2 More ELDs from List of Registered Devices

wayne@ntassoc.com (Wayne Schooling) — Wed, 01 Nov 2023 20:07:33 GMT

The Federal Motor Carrier Safety Administration has removed Falcon ELD and KSK ELD from its list of registered self-certified electronic logging devices. FMCSA has placed these ELDs on the revoked devices list due to the providers’ failure to meet the minimum requirements established in 49 CFR part 395, subpart B, appendix A, effective Sept. 14, 2023.

FMCSA will send an industry email to inform motor carriers that all who use these revoked ELDs must take the following steps:

Discontinue using the revoked ELDs and revert to paper logs or logging software to record required hours of service data.
Replace the revoked ELDs with compliant ELDs from the registered devices list before Nov. 13, 2023.

Motor carriers have up to 60 days to replace the revoked ELDs with compliant ELDs.

If the ELD providers correct all identified deficiencies, FMCSA will place the ELDs back on the list of registered devices and inform the industry and enforcement officials in the field.

Between now and Nov. 13, safety officials are encouraged not to cite drivers using the revoked ELDs for 395.8(a)(1) – “No record of duty status” or 395.22(a) – “Failing to use a registered ELD.” During this time, safety officials should request the driver’s paper logs, logging software, or use the ELD display as a back-up method to review the hours of service data.

Beginning Nov. 13, motor carriers who continue to use the revoked devices listed above will be considered to be operating without an ELD. Safety officials who encounter a driver using a revoked device on or after Nov. 13 should cite 395.8(a)(1), and place the driver out-of-service.

FMCSA said it strongly encourages motor carriers to take the actions listed above now to avoid compliance issues in the event that the deficiencies are not addressed in time.

The NTA ELD is the basic one you can count on! Easy-to-use app, reliable hardware and top-rated offered by the NorthAmerican Transportation Association at the below market price of $13.00 per month.

To Test or Not to Test in California and Washington

Wed, 01 Nov 2023 20:05:38 GMT

By Guest Contributor, Bill Current

In Shakespeare’s Hamlet, the main character contemplates life and death, and famously poses the question “To be, or not to be: that is the question.”

Come 2024, many employers in California and Washington will have to answer a similar question, one that could possibly have life or death ramifications. “To drug test for marijuana, or to not test for marijuana: that is the question.”

Why the uncertainty? Let’s answer that with a classic “True or False” statement: Starting on January 1, 2024, employers will no longer be allowed to test for marijuana in California and Washington . Many people will find the answer surprising—False!

But didn’t both states recently pass laws that prohibit employers from testing for marijuana? No, that’s not what their new laws actually say. Then what do they say?

Basically, both states’ new laws prohibit employers from discriminating against job applicants in Washington and employees and applicants in California for legally using marijuana on their own time, away from the workplace. This means they cannot deny employment based solely on an adult applicant’s legal use of marijuana or, in the case of California, take adverse employment action against employees when such action is based solely on a positive test result using a testing method only capable of detecting the “non-psychoactive” metabolite of cannabis.

Well, what does that mean? It means employers cannot rely on urine testing because urine tests only reveal the presence of metabolites of cannabis. Instead, employers must find a testing method that detects the parent drug or the drug itself rather than a metabolite. Is there such a test? Yes, oral fluid testing. That’s basically it. While it’s true that a blood test will reveal the presence of the parent drug, it’s impractical for most workplace circumstances and, for good measure, not allowed by most state workplace drug testing laws.

So, oral fluid testing for cannabis will be allowed come 2024? Neither law specifically says that. However, the way both the California and Washington laws are written, they’ve left a gigantic loophole for employers to continue testing for marijuana using oral fluid. That may not be what the authors of the bills meant to do, but that’s what they did, at least as both laws currently read.

Before talking about the virtues of oral fluid testing and why it is a good fit for employers to use on the West Coast, it is important to note that in California construction workers are exempt from the prohibition on urine testing. This means that employers in the construction industry may continue to test applicants and employees with urine and take adverse employment action, including refusing to hire someone, when an individual tests positive for marijuana. In Washington, there is an even longer list of “safety-sensitive” positions that are unaffected by that state’s new law. Additionally, employers covered by the U.S. Department of Transportation drug and alcohol testing regulations may still test applicants and employees for marijuana with urine and follow the disciplinary guidelines found in DOT’s regulations when someone tests positive.

The Substance Abuse and Mental Health Services Administration issued final regulations for lab-based oral fluid testing in October 2019. Then, in May 2023, the U.S. Department of Transportation issued its own final regulations for lab-based oral fluid testing. Why? Because, after years of research and debate, these federal agencies came to the conclusion that “The scientific basis for the use of oral fluid as an alternative specimen for drug testing has now been broadly established and the advances in the use of oral fluid in detecting drugs have made it possible for this alternative specimen to be used in federal programs with the same level of confidence that has been applied to the use of urine.”

Generally speaking, oral fluid samples are easier to collect than urine and hair, collections can take place anywhere at any time and do not require the services of a professional technician, and it is virtually impossible to subvert an oral fluid sample… no more drug test cheating. Rapid-result oral fluid testing, which is not part of the federal regulations, but permitted in both California and Washington, makes same-day hiring a reality for companies struggling to find qualified workers and who wish to continue screening applicants for marijuana before hiring them.

It is important to note that not all oral fluid tests are created equal when it comes to detecting the parent drug. Some oral fluid tests target/detect parent Delta-9 THC, some target the metabolite THC-COOH, and some target both the parent drug and the metabolite in the same test. Delta-9 THC is the psychoactive form of marijuana, the part that causes the “high” an individual experiences when smoking marijuana or using edible forms of THC; this is also the form of the drug that causes impairment.

There are also differences between lab-based oral fluid tests and point-of-collection or rapid-result oral fluid tests. Typically, lab-based tests are more sensitive in detecting Delta-9 THC and will likely produce more true positive results because the window of detection is slightly longer. Rapid-result tests, on the other hand, produce immediate results and with about 95% of the tests, the number that on average are negative, no lab confirmation test is required thus reducing the overall time it takes to get a final result to about 15 minutes.

In the months leading up to the effective date for both laws, much could happen. Lawmakers could tighten the language in their laws to prohibit all forms of testing for marijuana. Employers could lobby their respective legislators to expand the lists of safety-sensitive occupations that are exempt from the laws. Growing numbers of employers could choose to drop marijuana from their drug-test panels or choose not to conduct drug testing all together.

However, here’s what we know for certain:

The legalization of marijuana across the country has coincided with an overall increase in workplace positive drug test results.
Significant numbers of employees admit that they are struggling with substance abuse disorders, that they are using drugs while on the job, and that drug abuse is negatively impacting their job performance.
States that have legalized the recreational use of marijuana have much higher overall positive drug-test rates than states that have not legalized recreational marijuana use.
Companies that discontinue testing for marijuana experience an increase in post-accident positive drug testing results, suggesting that a decision to not test for marijuana makes workplaces less safe and probably less productive.

We also know that employers in California and Washington will soon have to make some very important decisions regarding the safety of their workplaces and the wellbeing of their employees, the majority of whom do not use drugs. To test or not to test… for marijuana, that is the question these employers will have to decide very soon.

What Happens When a DOT Employee Has a Testing Violation Recorded in the FMCSA Clearinghouse and Then Changes Modes?

Wed, 01 Nov 2023 19:54:20 GMT

By Guest Contributor David Perlman, BA,NCAC II, SUDP, EAP

It is not uncommon for an individual to make a career change to another DOT mode of transportation. Transit operators may become truck drivers, merchant mariners may become railroad operators. Also, some employees hold dual status; pipeline operators may also have a commercial driver’s license.

But what happens in the Federal Motor Carrier Safety Administration Drug and Alcohol Clearinghouse when someone fails an FMCSA test and then wants to work in a different transportation mode? Regulations clearly state that reports and their requirements follow the individual. But, if you are not an FMCSA entity, you cannot post results in the Clearinghouse.

What if an employee takes the Return to Duty test and then completes all of their Follow-up testing requirements while being employed by another transportation mode? Will they get no credit in the Clearinghouse? If they want to subsequently apply for an FMCSA position, will they need to repeat the entire testing process?

These are questions that we didn’t have adequate answers for, until recently. An actual case led Patrice Kelly , JD, Senior Policy Executive Advisor for NDASA and FMCSA’s Clearinghouse leadership to work together on developing a process that can support the sharing of information between different modes so that employers aren’t left in the dark and employees can move forward from their violation.

The Case

A Federal Transit Authority (FTA) driver wanted to pursue some extra income and applied for a part-time position as a non-transit bus driver, operating under FMCSA. However, he failed his pre-employment drug test for the FMCSA-regulated job. After some ‘mild’ persuasion, he informed his FTA employer, before his next scheduled duty day. The FTA employer chose to retain the employee, suspending him from duty until he completed the Substance Abuse Professional (SAP) process.

The Medical Review Officer reported the pre-employment test violation to the Clearinghouse – Easy.

The driver selected the SAP and followed the process – Easy.

The SAP reported the Initial and Follow-up evaluations to the Clearinghouse – Easy.

The FTA employer has no access to the Clearinghouse

Problem . The FTA employer had no way of providing confirmation that the employee had successfully completed the Return to Duty and Follow-up tests that would make him eligible for future FMCSA employment as a non-transit bus driver.

The Resolution

FMCSA has approved the following process for these types of situations:

The FTA (or other mode) employer must write a request to the Clearinghouse at, clearinghouse@dot.gov , on letterhead, explaining the details of the specific testing situation and attach a copy of the negative Return to Duty test.
The Clearinghouse will manually enter the test and it will then show that the driver has completed Step 5 of the Return to Duty process.
When the driver completes all required Follow-up tests, the FTA (or other mode) employer again must request that the Clearinghouse post the data and Step 6 will be completed – case closed.

Through good communication with the Clearinghouse at clearinghouse@dot.gov, gaps in the system can be resolved to help ensure that DOT employers, no matter the mode, can take every precaution to support a drug and alcohol free and safe workplace.

FMCSA Looking to Change How it Determines Motor Carrier Safety Fitness

wayne@ntassoc.com (Wayne Schooling) — Fri, 27 Oct 2023 19:07:47 GMT

The Federal Motor Carrier Safety Administration is asking for comments to help it develop a new way to determine when a motor carrier is not fit to operate commercial motor vehicles, also known as a safety fitness determination.

In an advance notice of proposed rulemaking, FMCSA is asking for public comment on:

The need to revise the safety fitness determination process.
The available science or technical information that would allow the agency to analyze alternatives for determining the safety fitness of motor carriers.
Feedback on FMCSA’s current safety fitness determination regulations, including the process and impacts.
The available data and costs for regulatory alternatives reasonably likely to be considered as part of this rulemaking.
Responses to specific questions in the ANPRM.

Current Safety Fitness Determination Process

Safety Fitness Determinations currently are determined based on an analysis of existing motor carrier data and data collected during an investigation (referred to as a “compliance review” or more casually as a “DOT audit.”)

It analyzes six factors based on the Federal Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials Regulations:

General
Driver
Operational
Vehicle
Hazmat
Accident factor (recordable accident rate per million miles)

FMCSA calculates a vehicle out-of-service rate, reviews crash involvement, and conducts an in-depth examination of the motor carrier’s compliance with the acute and critical regulations of the FMCSRs and HMRs.

“Acute regulations” are those where noncompliance is so severe as to require immediate corrective action, regardless of the overall safety management controls of the motor carrier. “Critical regulations” are related to management or operational systems controls.

CSA and Safety Fitness Determinations

One of the criticisms of this process is that it is resource-intensive and reaches only a small percentage of motor carriers.

The agency has long hoped to link its Compliance, Safety, Accountability program and its Safety Measurement System to fitness reviews. The SMS is FMCSA’s prioritization system to identify motor carriers for investigation, which went into effect in 2010.

In 2016, FMCSA proposed using a carrier’s absolute measure, but not its relative percentile ranking, in SMS to generate unfit safety fitness determinations. The idea was to more effectively use FMCSA data and resources to identify unfit motor carriers and remove them from the roads, expanding the number of assessed and rated carriers.

That proposal also looked at eliminating the current rating terms of Satisfactory, Unsatisfactory, and Conditional and transitioning to a single determination of Unfit. The agency noted that a carrier getting a Satisfactory safety rating may be misconstrued as an FMCSA approval of the current operations of a motor carrier, when instead, it reflects FMCSA’s evaluation of a motor carrier’s operations at the time of the investigation. And under the current SFD process, a motor carrier with a Conditional rating is not prohibited from operating, even if a review reveals breakdowns in safety management controls in multiple areas.

Motor carriers generally opposed that proposal, saying there were problems with the SMS data that needed to be fixed before it could be used in this manner. And, they said, it violated the Fixing America’s Surface Transportation (FAST) Act. In 2017, FMCSA withdrew the 2016 SFD proposed rule but left the door open to revisiting it in the future.

What Happened to Item Response Theory (IRT)?

The FAST Act required the National Academy of Sciences to conduct an independent study of SMS.

The NAS report, issued in 2017, did find shortcomings. Its main recommendation was that FMCSA develop a complex statistical model known as item response theory. It was believed this system would better measure a carrier’s overall safety culture, rather than the current snapshot-in-time approach for safety determinations.

While initially expressing optimism about the potential for the item response theory model, after developing and testing an IRT model, FMCSA concluded that IRT modeling does not perform well for use in identifying motor carriers for safety interventions.

Instead, last year it issued a proposal to revamp the current CSA/SMS model. Those improvements include reorganizing the BASICs to better identify specific safety problems, combining the 958 violations used in SMS in 116 violation groups, simplifying violation and crash severity weights, removing percentile jumps that occur when carriers move into a new safety event group, and adjusting the intervention thresholds.

What FMCSA Wants to Know

FMCSA specifically requests responses to the following questions regarding how it does safety fitness determinations:

Should FMCSA retain the current three-tiered rating system of Satisfactory, Unsatisfactory, and Conditional? Why or why not?
Should FMCSA include additional hazmat regulatory requirements in the SFD calculation?
Currently, the table of regulatory factors excludes parts 172 and 173. However, there are violations in these parts included in the list of critical and acute violations in Appendix B. Should they be included in the SFD calculations?
Should motor carriers of passengers be subject to higher standards than other motor carriers in terms of safety fitness rating methodology?
Is there a specific aspect of safety management, such as driver training, driver fatigue management and mitigation, vehicular maintenance and repair, etc., that is so fundamentally different in passenger transportation from freight carriers that FMCSA’s safety fitness rating methodology should take this aspect into special consideration?
How will states be affected? What resources might be needed to accommodate any changes, and how long would it take to incorporate any proposed changes?
The current SFD does not use all available safety data, such as all inspection-based data. Should the SMS methodology be used to issue SFDs, in a manner similar to what was proposed in the 2016 NPRM? If so, what adjustments, if any, should be made to that proposal? If not, should the agency include more safety data in the SFD process in other ways and, if so, how?
Given the importance of driver behavior in preventing crashes, how would you recommend the agency incorporate driver behavior data into the SFD process?
What changes, additions, or deletions, from the current list of critical and acute violations should be included? Why or why not?
Should SFD consider motor carriers’ adoption and use of safety technologies in a carrier’s rating? How should this fit into the SFD methodology? (This appears to be a revisit of a stalled initiative known as “Beyond Compliance” that FMCSA proposed in 2016, which would have given “extra credit,” so to speak, to motor carriers that install advanced safety equipment; use enhanced driver fitness measures; adopts fleet safety management tools, technologies, and programs.)
Should the agency revise the current administrative review procedures?
Given that unsafe driving behaviors, such as speeding and texting while driving, are highly correlated with crash risk, should the safety fitness rating methodology give more weight to unsafe driving violations?

Concerns About the Safety Fitness Determination Proposal

Trucksafe Consulting in a blog post called the proposal “concerning … for many reasons.”

“Many studies over the years have demonstrated significant flaws with SMS, flaws which we do not feel the agency adequately addressed in its recently-proposed SMS revisions," wrote transportation attorney Brandon Wiseman.

"Significantly, SMS, as currently structured (and even with the proposed changes) offers carriers no meaningful due process to contest or appeal erroneous violations or other data that weighs on their scores. Thus, it's conceivable a carrier's safety rating (and its ability to continue to operate) could be threatened by incorrect violations or other problematic SMS data, with no real way for the carrier to address it before receiving a proposed Unfit safety rating."

Comments on this notice must be received on or before 60 days after date of publication in the Federal Register, referring to docket number FMCSA-2022-0003.

The Essentials of a Fleet Safety Program

wayne@ntassoc.com (Wayne Schooling) — Fri, 27 Oct 2023 19:04:08 GMT

Safety is always top of mind for every driving safety professional — for many reasons. From a cost standpoint, vehicle collisions rate as some of the most expensive workplace accidents, according to the National Safety Council, costing as much as $1.4 million per incident.

In addition to injury and possibly even the loss of life, they incur many other expenses, such as vehicle repairs, increased insurance costs, and lost productivity. They also can create headaches and lost business from bad publicity and a poor public perception of your company practices.

The best way to avoid vehicle collisions is through a fleet safety program. A safety program can help spare you from the costs caused by collisions and their related expenses and improve productivity among your drivers. It is also a great way to polish the image of your brand, by boosting public perception of your attention to safety and your driving practices.

No company with fleet vehicles should be without a program of some sort, but it is important to make sure that your fleet safety program addresses all the needs of your company and your industry.

While a simple safety program is better than no program at all, having an expert fleet safety program that can meet your driver’s specific needs will establish your company as one that is committed to safety. It also improves employee satisfaction, loyalty, and contributes to your overall culture of safety.

Certain key traits differentiate an exceptional safety program from a mediocre one. Let’s look at seven important elements of an expert fleet safety program.

No. 1: Demonstrate Top-to-Bottom Commitment

Getting buy-in and support from leaders matters. When employees at all levels see that top-tier management is engaged and committed to the program, they know that safety is important for the entire workforce. When managers support the program, it also increases the chances that it will be used and enforced — and that means drivers will take driving safely more seriously, too.

No. 2: Develop Measurable Initiatives

Without a long-term strategy, goals and initiatives, it’s hard to keep a program on track. Setting specific, measurable goals and outcomes gives a way to monitor and reward performance — as well as keeping safety at the forefront of every employee’s mind. Many workplace strategies fail simply because they fizzle out. Creating an initiative that outlines long-term plans can keep on track and relevant.

No. 3: Pay Attention to Hiring Practices

Effective safety programs start with developing clear-cut, stringent hiring guidelines. A thorough screening process demonstrates your commitment to hiring safer drivers. Without safe drivers, you can never have a safe fleet, so keep your long-term safety record in mind every time you make a hire.

No. 4: Establish Written Procedures

Written procedures are an essential part of an expert fleet safety program. This sets clear, consistent guidelines and expectations, and gives both drivers and managers a designated set of rules to play by.

No. 5: Provide a Formal Fleet Safety Program

A formal safety driving training program goes beyond learning company policies and procedures. It means that all drivers are educated on how to handle vehicles in all kinds of situations and environments, whether that means driving on slick roads, in foul weather, driving in congested traffic or managing their own conditions within the vehicle.

No. 6: Implement an Inspection and Maintenance Program

Drivers are only as safe as the vehicles they’re in. As part of your fleet safety program, implement an inspection and maintenance program to ensure that vehicles are being checked for possible problems before they get out on the road. Creating a checklist of things that need to be checked on a regular basis, and ensuring that employees are completing their inspections and signing off on them before they drive, can avoid expensive roadside breakdowns, dangerous tire blowouts and collisions.

No. 7: Provide Refresher Training

Even after drivers have received their initial driver safety training, it’s important to provide on-going and refresher training. Telematics in fleet vehicles can help you monitor drivers’ behaviors, and if you see areas that continue to be a problem for certain drivers, you can provide refresher training in those areas.

An expert fleet safety program doesn’t just happen. It requires a continued commitment to prioritizing safety — without exception. With a strong commitment to driver training, you’ll demonstrate your company’s desire for excellence and, at the same time, make the roads around you safer.

FMCSA Outlines Plans for Driver Detention Study

wayne@ntassoc.com (Wayne Schooling) — Thu, 26 Oct 2023 13:08:49 GMT

The Federal Motor Carrier Safety Administration has outlined its plan for a study of how driver detention time affects trucking operations and safety and asked for comments.

This research study will collect data on commercial motor vehicle driver detention time, analyze that data to see how bad the detention problem is, and look at the ability of existing intelligent transportation system technology to measure detention time.

The results then can be used in developing strategies to mitigate driver detention time.

The Problem with Detention

In a Federal Register notice, the agency explained that detention time refers to the extra time truck drivers have to wait at shipping and receiving facilities due to delays in loading and unloading cargo. Drivers are often not paid for this extra time.

“Although there is currently no standard definition of detention time, the CMV industry, the U.S. government, and academic detention research in the United States have typically used dwell time — the total amount of time spent at a facility — exceeding two hours to define when detention time occurs.”

Detention time consistently ranks as one of the top problems for a large portion of commercial motor vehicle operators. It often results in lost revenue for both drivers and carriers.

“Reducing detention time may reduce costs for carriers, increase pay for drivers, and improve CMV drivers' ability to make deliveries on time or arrive at a destination as planned without violating hours of service requirements,” FMCSA explained.

And, it said, drivers who experience less detention time may be more likely to drive safely to reach their destinations within the hours-of-service limits and less likely to violate those regulations in order to make deliveries on time.

Detention is a Top Trucking Industry Issue

In 2019, for the first time, detention/delay at customer facilities appeared on the American Transportation Research Institute’s annual Top 10 list of the Top Industry Issues, debuting at No. 4.

The same year, the Transportation Intermediaries Association released a report examining the detention issue, talking to players on all sides.

Detention is among the top research priorities this year for the American Transportation Research Institute, the research arm of the American Trucking Associations.

FMCSA completed a study in 2014 on the impact of detention time on safety. Although this study "provided valuable initial insights," the agency said, it had several limitations. The sample of motor carriers was small and consisted mostly of large fleets. It only used a "rudimentary estimation of detention time," and said it was hampered by the inability to identify time spent loading/unloading. In addition, the data did not cover an entire 12-month period. The agency said that’s why it needs more data from a broader sample of carriers.

Where Will the Detention Data Come From?

The FMCSA said in the notice that it expects approximately 80 carriers and 2,500 drivers to provide data.

The study as proposed will include data collection via electronic logging devices, transportation management systems, vehicle telematic systems, safety records, and answers to questions delivered through the carriers' dispatching systems.

The TMS, ELD, telematics, and safety data are already collected by carriers. The only additional data that will be collected will be the answers to questions submitted through the carriers' dispatching systems. After agreeing to participate in the study, carriers will collect and provide 12 months of data.

The carriers will be selected so that the sample is representative of the nation. Carriers will primarily be selected from the approximately 3,000 Speed Gauge clients in the Driven Data Clearinghouse, which is maintained by Speed Gauge and combines vehicle, telematics, ELD, and vehicle claims data.

However, the study may include other carriers that express interest in participating. The final sample from this source will include up to 80 carriers with up to 2,500 total vehicles. This sample will include a variety of carrier operations, including long haul/short haul, private/company fleets and for-hire fleets, port servicing (primarily chassis), owner-operators, hourly and mileage-based operators, truckload/less-than-truckload, and dedicated local delivery.

These carriers will range in size from single-vehicle owner-operators to carriers with hundreds of trucks, with a likely average fleet size of 31 vehicles.

What Will FMCSA do with the Detention Data?

Multiple analyses will be performed, including assessing the relationships between detention time and characteristics of carriers, facility locations, and driver schedules (appointment times, time of day, day of week, month, and season).

Measures of detention time will include the number of detained stops per shift and the duration of each detention.

Another analysis will examine the relationship between detention time and safety outcomes during the shifts following the detention time. Finally, the study will estimate the cost per year associated with detention time, including lost productivity, disruptions to the supply chain, and any increases in fatal, injury, and property-damage-only crashes.

Comments on this notice must be received on or before October 23, 2023. Comments can be submitted through the federal eRulemaking Portal, Docket Number FMCSA–2023–0172.

EEOC and DOL Join Forces – What the Alliance Means for Employers

Thu, 26 Oct 2023 13:05:15 GMT

By Seyfarth Shaw LLP

By: Rachel V. See , Christopher J. DeGroff , and Andrew L. Scroggins

Seyfarth Synopsis: The EEOC and the Department of Labor Wage Hour Division (WHD) have taken an important step toward inter-agency coordination, committing to information sharing, joint investigations, training, and public outreach. The Memorandum of Understanding between the EEOC and DOL contemplates referring complaints between the two agencies, a move that should catch the attention of all employers. What is more, the agencies have agreed to share swaths of information, including EEO-1 reports and FLSA records. This coordination will not just occur at the agency leadership level – the MOU enables front-line personnel from both agencies to receive shared information quickly and expeditiously. This enhanced and elevated level of agency cooperation should be top of mind for all employers.

On September 14, 2023, the EEOC and WHD announced that they had entered into a Memorandum of Understanding enabling information sharing, joint investigations, training, and outreach. The MOU now empowers the agencies’ field staff to coordinate efforts on both individual matters and larger investigations.

The EEOC’s press release, and some initial media coverage, have focused on the agencies’ coordinated efforts relating to the recently enacted PUMP Act (extending to more nursing employees the rights to receive break time to pump and a private place to pump at work) and the Pregnant Workers Fairness Act (requiring reasonable accommodations for limitations related to pregnancy, childbirth, or related medical conditions). But the MOU’s information-sharing and other contemplated coordinated activity provisions go far beyond those statutes, covering a broad range of activities, touching on all aspects of EEOC and WHD jurisdiction.

For example, the MOU explicitly describes that each agency will make complaint referrals to the other, and that the two will share complaint or investigative files, EEO-1 reports and FLSA records, and “statistical analyses or summaries,” and that the agencies “will explore ways to efficiently facilitate” the data sharing.

Information sharing under the MOU is not limited to just top-level agency officials in Washington, DC; leadership from each agency’s District (or Regional) offices may request information without the need to first obtain approval from HQ in Washington, DC. Importantly, the EEOC District Directors and Regional Attorneys also may designate other EEOC employees to make the request. This means that front-line EEOC staff involved in enforcement and litigation can quickly access a wide range of information held by WHD. It is also noteworthy that the MOU allows any EEOC Commissioner to directly request information from WHD, without first channeling the request through EEOC career staff. This is significant because it enables EEOC Commissioners from different political parties than the Chair to obtain information directly from WHD.

But the elephant lurking in the corner of the room may be the potential for broad-based data-sharing between the two agencies. The MOU specifically contemplates that the EEOC may share employer EEO-1 reports with WHD. Notably, Title VII prohibits the EEOC from disclosing EEO report data to the public, but the MOU does not bind the WHD in the same way. Instead, the WHD agrees to “observe” Title VII’s confidentiality requirements.

Whether these provisions of the MOU might be sufficient to ward off a FOIA request directed to WHD may, at some point, be tested in the courts. WHD’s sibling agency at the Department of Labor, OFCCP, has been involved in contested FOIA litigation seeking large volumes of EEO-1 reports in OFCCP’s possession. For more information about this litigation, see our most-recent client update on OFCCP’s release of EEO-1 reports.

Implications for Employers

Employers can expect the MOU to lead to more information sharing between the EEOC and WHD when it comes to individual charges and investigations. (The MOU contains a high-level framework for coordinated investigations involving the same employer.) More concerning is the potential for data sharing to fuel broader systemic investigations. Indeed, as we recently wrote, the EEOC’s five-year Strategic Plan announced just last month that it is committing to developing these “big cases,” in the hope that this will enable the EEOC “to increase its impact on dismantling discriminatory patterns, practices, or policies.” The ability to gather additional data through this partnership with the WHD adds another powerful tool to the EEOC’s investigative powers.

Stay in touch with the NTA’s Hi-Way Hi-Lites for the latest transportation news that may affect your livelihood or business.

CARB & Transportation Nonprofit Calstart Launch Cal Fleet Advisor

wayne@ntassoc.com (Wayne Schooling) — Thu, 19 Oct 2023 13:50:32 GMT

The California Air Resources Board and transportation nonprofit Calstart recently launched Cal Fleet Advisor, a free assistance program to help small fleets and owner-operators make the transition to zero emissions trucks. The program, Cal Fleet Advisor, is focused on assisting smaller businesses and independent owner-operators.

Applications for the program are now being accepted. Drayage owner-operators are encouraged to apply now, CARB noted, since the requirements for their transition toward zero emissions start in 2024.

"The transition to zero-emissions transportation — and to cleaner air — means working collaboratively with the owners and operators who provide a critical service to California’s economy by transporting goods across the state,” said CARB Chair Liane Randolph in a release.

The program will prioritize smaller businesses and independent owner-operators, with a focus on disadvantaged communities that, according to a CARB press release, often have challenges accessing government assistance programs.

CARB said other services provided will include document tracking assistance and liaison support as needed.

Program Participation

CARB said Cal Fleet Advisor was launched to provide personalized guidance in understanding and meeting the requirements, including getting information about funding and other assistance that will be made available.

California Ups the Ante on ZEVs with Advanced Clean Fleets Rule

Participants in Cal Fleet Advisor will receive assistance through an assigned program expert that will serve as a single point of contact for questions and needs. That expert will provide an individualized action plan that will provide information about approved technology and funding options for fleet owners and single operators.

CARB Advanced Clean Fleets Rule

In April, CARB approved the Advanced Clean Fleets rule, which puts in place a phased-in transition to accomplish the California governor’s goal of fully transitioning the trucks that travel across the state to zero-emissions technology by 2045.

Under the new rule, some vehicle types where zero-emissions technology is currently available must start the transition by 2024. Other vehicle types have later deadlines, and options to transition a percentage of their fleets to meet required zero-emissions milestones.

To learn more about Cal Fleet Advisor application requirements and how to receive personalized assistance, visit the Cal Fleet Advisor website .

How to Qualify Drivers Who Use Insulin in 3 Steps

wayne@ntassoc.com (Wayne Schooling) — Thu, 19 Oct 2023 13:46:19 GMT

Since finding good drivers is getting harder and harder, I am going to repost this article from 2019 which was reviewed for continued relevance and accuracy as of August 2023.

It has been argued by many over the years that commercial drivers with controlled insulin-treated diabetes mellitus (ITDM) should be medically certified, provided they are otherwise physically qualified. And, it appears as if the Federal Motor Carrier Safety Administration (FMCSA) was listening.

As of Nov. 19, 2018, individuals with a stable insulin regimen and properly controlled ITDM may be medically certified — for up to one year — to operate commercial motor vehicles (CMVs) in interstate commerce. Certification of drivers with ITDM no longer requires the considerably more time-consuming medical exemption from the FMCSA.

How to Obtain Medical Certification

Insulin-using drivers must complete three steps before they can be medically certified:

Step 1: Monitor blood glucose levels.

A driver with ITDM is required to follow his or her treatment plan and maintain blood glucose records using an electronic glucometer. The glucometer must be able to record the date and time of each reading. Typed or handwritten logs are not acceptable.

Step 2: Visit the treating clinician (TC).

The driver must make an appointment with his or her TC, the healthcare professional who manages and prescribes insulin for the treatment of his or her diabetes. The driver must provide the TC with at least the previous three months’ worth of blood glucose records. This is achieved through either presenting the glucometer or a printout of the device’s electronic records.

If the TC determines that the driver’s diabetes is controlled, he or she then completes an FMCSA document, the ITDM Assessment Form (MCSA-5870) to attest to this fact. The driver may need to bring a copy of the form to the appointment if the clinic does not provide it.

Step 3: Schedule an FMCSA exam.

The driver must schedule a medical exam within 45 days of the ITDM Assessment Form’s completion with a medical examiner (ME) listed on the National Registry of Certified Medical Examiners.

The driver must bring the completed ITDM Assessment Form to the appointment for the ME’s review. Even though the driver has the TC’s stamp of approval, the decision to medically qualify still rests with the ME. If the ME is satisfied, he or she will qualify the driver (up to one year) based on the ME’s discretion.

Complications Between Med Cards

Drivers with ITDM who are certified, but later suffer a severe hypoglycemic episode, are considered medically unqualified. A severe hypoglycemic episode requires the assistance of others or results in loss of consciousness, seizure, or coma. The driver must report the episode to the TC as soon as possible.

How to Stay Qualified

Once a driver with ITDM is medically certified, he or she must repeat these steps annually to remain qualified:

Accumulate at least three months’ worth of blood-glucose monitoring data prior to each subsequent medical exam;
Time follow-up visits to the TC to ensure Form MCSA-5870 is completed and available to the ME before the current medical card expires; and
Schedule a physical exam with a certified ME before the current medical card expires and no later than 45 days after the TC completes the MCSA-5870.

A driver with a commercial driver’s license (CDL) who becomes medically unqualified, even temporarily, may have his or her CDL downgraded. The state licensing agency needs proof of renewed medical certification no later than 10 days after the prior certificate expires. Within 11 days of the expiration, but no later than 60, the CDL will be downgraded if proof of medical certification was not received.

Educate Drivers on the Topic

Due to privacy issues, motor carriers may not be aware that a driver has been diagnosed with diabetes, let alone prescribed insulin as a treatment.

Motor carriers can help facilitate the process of medical certification of insulin-using drivers (and avoid downgraded licenses) through providing education on the topic to all drivers.

Yellow Files for Chapter 11 Bankruptcy

wayne@ntassoc.com (Wayne Schooling) — Tue, 17 Oct 2023 13:29:02 GMT

After decades of struggling financially and each time pulling through, Yellow ceased operation July 30, and over the weekend filed for Chapter 11 bankruptcy protection.

The shutdown and now bankruptcy filing by the less-than-truckload provider comes on the heels of ongoing disputes between Yellow and the Teamsters Union, each blaming the other for the financial troubles.

Of the trucking company’s debt, a large chunk is owed back to the federal government in connection with a $700 million CARES Act loan that Yellow (then operating as YRC Worldwide) received during the Covid-19 pandemic in 2020. The Wall Street Journal reports that Yellow CEO Darren Hawkins pledged in court Sunday for the business to fully repay that loan. In exchange for that pandemic-era loan, the federal government received a 29.6% equity stake in the company.

How much of that loan can be repaid likely hinges on what money Yellow can generate from the sales of assets, both real estate and rolling stock.

Yellow owns, as reported in the company’s 2022 annual report, 166 transportation service facilities. Of the company’s largest 10 service facilities ranked by number of doors, seven were owned and just three were leased.

According to that same report, Yellow owned 12,700 tractors and about 34,000 trailers. Analysts report much of the fleet is older, with some tractors approaching 20 years of service.

Why is Yellow Pursuing Liquidation?

Investment advisory firm Stifel, following Yellow’s ceasing operations, had predicted that the bankruptcy would be done as a liquidation rather than a restructuring.

In an interview with Bruce Chan, director and senior analyst at Stifel, provided several reasons:

Unlikely there would be buyers in the LTL market interested.
There would only be a small pool of potential buyers outside LTL.
The company was deeply distressed financially.

The Market and Jobs Impact of Yellow's Closing

Chan said there is currently enough spare capacity, 15% to 20%, in the LTL market so the other players absorb the available business. He also says he expects rates to increase, in particular for companies that had been shipping at Yellow’s lower rates.

Yellow’s closing leaves about 30,000 people out of work, with 22,000 of those jobs held by union members. The American Trucking Associations is responding to that large number of displaced workers by allowing those employees to access a database to help them find other jobs in trucking.

“Yellow’s closure is a substantial blow to America’s economy and the company’s 30,000 hardworking employees and their families in all 50 states,” the ATA said in a press release. “Our message to former Yellow employees is that we want them to remain a part of the industry that they have done so much to build and strengthen. That is why the ATA is launching a new portal to connect former employees with prospective employers who are eager to utilize their unique and in-demand skills and experience."

What Went Wrong?

The Wall Street Journal posted an explainer video of "how ballooning debt and a standoff with the Teamsters union led to Yellow's downfall:"

Go to youtube; Yellow: Inside American Trucking’s Largest Bankruptcy | WSJ What Went Wrong

Another Reason Why you need to Join an Association

wayne@ntassoc.com (Wayne Schooling) — Tue, 17 Oct 2023 13:25:47 GMT

Did you know that FMCSA audits are resulting in more negative consequences for motor carriers and private companies

In the first six (6) months of 2023, the FMCSA issued 16,000 New Entrant Out-of-Service Orders, a number that is 60% higher than the same period in 2022.
The percentage of FMCSA compliance investigations resulting in a Notice of Claim (i.e. fine) jumped from 30% in 2021 to 39% in 2022.
In a similar vein, the number of Conditional safety ratings issued by the FMCSA following compliance investigations jumped 24% between 2021 and 2022.

FACTS for 2021

$18.4 million was paid in penalties with an average settlement of $6,626 in 2021.

Audits by the Numbers

Audits by Carrier Size

Very small Carriers (1 - 6 power units) = 53.8%
Small Carriers (7 -20 power units) = 29.2%
Medium Carriers (21 – 100 power units) = 13.8%

Audit Results

Audits with Violations: 11,650 (94.5%)
Audits resulting in Enforcement: 3,688 (30%)
Total Violations: 75,452 (6.48Avg violations/audit)

Auditors are Finding More Recordkeeping Violations

At least 65% of all critical violations found during 2021 audits are related to recordkeeping including out of the top 10.

Besides log violations, this includes violations related to inspection and maintenance records, driving records, HOS supporting documents, driver qualification files and vehicle inspection reports.

2021 Sample Enforcement News

$26,200 Ontario, CA, motor carrier paid for not maintaining logs, DQ files, and maintenance records.
$13,500 Arlington Heights, IL, motor carrier paid for failure to maintain supporting documents and initial MVRs.
$11,500 Manteca, CA and Crown Point, IN, motor carrier paid for failure to maintain initial MVRs and logs

House Committee Approves Internal Combustion Engines Bill

wayne@ntassoc.com (Wayne Schooling) — Thu, 12 Oct 2023 12:12:44 GMT

A panel in the House recently approved a bill that would block efforts meant to prevent the sale of internal combustion engines.

The Preserving Choice in Vehicle Purchases Act, sponsored by Rep. John Joyce (R-Pa.), was backed by the Energy and Commerce Committee on July 27. Specifically, the measure would restrict the Environmental Protection Agency from issuing certain waivers that would ban the sale or use of new motor vehicles equipped with internal combustion engines. This would include commercial vehicles.

Sponsors explained they aim to ensure efficiency of the supply chain, preserve the integrity of consumer choice and maintain competition in the marketplace. They also are responding to efforts by California officials that would ban the sale of vehicles with internal combustion engines. Certain federal waivers are required for California’s agencies to proceed with their plan.

House Republican leaders have yet to schedule the bill’s floor consideration. The House and Senate resume legislative business after Labor Day.

“ California regulators shouldn’t have the power to determine what vehicles are sold to families in Pennsylvania ,” Joyce said shortly after the bill’s approval. “One state should not be able to set national policy, and Americans should not be forced into making purchases they are unable to afford. I’m proud to see the Preserving Choice in Vehicle Purchases Act pass through the Energy and Commerce Committee and look forward to its passage in the House.”

Rep. Bob Latta (R-Ohio), a senior member of the committee, endorses the legislation.

“The federal government should not be picking winners and losers that determine which kind of cars Americans drive — whether that’s a gas and diesel car or an electric vehicle,” Latta said. “Yet, if the EPA grants California’s waiver request to ban internal combustion engine vehicles, Americans across the country will lose the ability to choose the vehicle that works best for them and their families.

“This is an issue of preserving the rights of the American consumer and allowing free markets to flourish.”

On the other side of the Capitol, Sen. Markwayne Mullin (R-Okla.) has sponsored a companion version of the bill.

“California’s waivers are not about clean energy, they are about control,” Mullin said. “ Democrats want to control every aspect of Americans’ lives — including what car they drive. If it were about clean energy, banning tailpipe emissions in favor of electric vehicles that strain an unstable grid is not the solution.”

Said Sen. Roger Marshall (R-Kan.), a co-sponsor: “ A failing state like California, whose economy is in the gutter, with 30% of the homeless in the US, one of the highest marginal income tax, high sales tax, high property taxes has crime-filled cities, and people fleeing in record numbers, should not be advising policies for anyone, especially Kansans. It’s just that simple.”

Both the American Trucking Association and the NorthAmerican Transportation Association endorse the legislation.

“ATA believes we must set national, achievable and realistic targets and timelines along the way to our shared goal of zero emissions. Those efforts must be made through a lens of technology neutrality, allowing innovation to provide a wide range of solutions that meet the diverse needs of the trucking industry,” said ATA Executive Vice President of Advocacy Bill Sullivan. “To that end, we thank Sen. Mullin for calling attention to the unachievable timelines being proposed by California.

“Setting a patchwork of regulations will disrupt the nation’s supply chain and force motor carriers to purchase costly, early-stage equipment and operate it in an environment with insufficient infrastructure support.”

Wayne Schooling, President of the NorthAmerican Transportation Association, said: “California should not be setting policy for America — that is the responsibility of Congress. It’s no surprise we’re seeing small-business truckers leaving the state in droves for opportunities elsewhere.

“Vehicle reliability and affordability are top priorities for OOIDA members. We have yet to see proof that electric commercial motor vehicles are a realistic option for trucking businesses, especially small-business truckers, considering the price tag and lack of charging infrastructure.”

Breaking News: CARB Has Flagged All Out of State Vehicles

wayne@ntassoc.com (Wayne Schooling) — Tue, 10 Oct 2023 13:07:24 GMT

My DMV Contact, Baratta Enterprises, tells me that effective 10/1/2023, the California Air Resource Board (CARB) has FLAGGED all OUT OF STATE VEHICLES.

These vehicles must be Cleared and registered with CARB. No matter what Year, anything that doesn't have a California record.

We know that 2010-year models and older are flagged with DMV and need the clearance, but now...it's all Out of State commercial vehicles.

Once again California is trying to CONTROL the trucking industry.

It’s time to replace the current administration, not only in California but also in Washington, D.C.

FMCSA Finalizes Guidance of Freight Brokerage Definitions

wayne@ntassoc.com (Wayne Schooling) — Tue, 10 Oct 2023 13:06:39 GMT

Are you working with a broker, a bona fide agent, or a dispatch service? As a motor carrier, who you choose as a business partner can have legal and financial repercussions. That, in part, motivated the Federal Motor Carrier Safety Administration (FMCSA) to issue its final guidance on the definitions appropriate to those entities.

Under federal law, 49 CFR 371.2(a), a broker is the person you, as a motor carrier, pay as an intermediary with a shipper when arranging for loads. Brokers are not themselves motor carriers or directly employed by carriers. They are independent entities. To protect your legal and financial interests, the law requires that brokers must be licensed by FMCSA, keep an accounting of the transactions they perform, and carry a $75,000 bond.

Bona fide agents under federal law, 49 CFR 371.2(b), become part of a motor carrier’s own organization, working under contract to perform duties which often include the procurement of loads.

Brokers may field offers from many motor carriers for the same load and coordinate between carriers and the shipper to match prices and service. Bona fide agents, by contrast, do not have discretion “in allocating traffic between the carrier and others.” The FMCSA final guidance clarifies that cumbersome phrase.

While a bona fide agent may have more than one motor carrier as a client, it cannot pick and choose which load goes to which carrier. The guidance offers examples of how bona fide agents can avoid “allocating traffic.” A bona fide agent, for example, may serve carrier clients in different geographic regions or handle hazardous material loads for one carrier and general freight for another. That distinction removes any conflict in the service the bona fide agent provides to each motor carrier.

Federal law does not require Bona fide agents to carry a bond. The written contract with the motor carrier should spell out how it protects the motor carrier’s legal and financial interests.

Dispatch service remains an outlier, even with FMCSA’s final guidance. Dispatch service does not have a statutory or regulatory definition. So, proceed with caution when dealing with a dispatch service. Motor carriers, and FMCSA itself, must carefully look at the facts to see if the dispatch service is operating more like a broker or more like a bona fide agent. The FMCSA final guidance lists multiple factors indicating whether a dispatch service must have broker authority. Federal penalties apply if a dispatch service functions as a broker without obtaining broker authority and carrying the $75,000 bond.

FMCSA has twice sought public input on what facts it should consider in applying these definitions – and what facts motor carriers should likewise consider when doing business with these entities. Because this guidance does not amount to a formal rulemaking, FMCSA was not legally required to seek that public input. But in the complex relationships among transportation partners, all clarification is welcome.

Union Organizing Just Got a Lot Easier: What Employers & Motor Carrier Should be Doing Now

wayne@ntassoc.com (Wayne Schooling) — Thu, 05 Oct 2023 13:30:14 GMT

The National Labor Relations Board (The Board) recently issued a decision that will make it substantially easier for unions to organize. In Cemex Construction Materials, 372 NLRB No. 130 (August 25, 2023), The Board overturned 50 years of precedent and adopted a new approach designed to encourage unions to seek voluntary recognition of their status as the representative of the employer’s employees through the use of authorization cards. This new approach will place a premium on an employer’s ability to detect early warning signs of a “card campaign” and what it can and cannot do in response.

What Is A Card Campaign?

An employer has no duty to recognize or bargain with a union that represents less than a majority of the employer’s employees. Over the years, two methods generally have been accepted for determining majority support: authorization cards signed by a majority of employees (i.e., a “card campaign”) and board conducted secret-ballot elections. Prior to Cemex, the Board and the courts historically have found that board elections are the preferred method of establishing employees’ majority support for unions. According to the Supreme Court, “union authorization cards are admittedly inferior to the election process.” NRLB v. Gissel Packing Company Co., 395 U.S. 575, 602 (1969).

The Board’s New Cemex Standard

Despite the fact that The Board and the courts have recognized that authorization cards are an inferior method of establishing majority support for a union, The Board’s new approach in Cemex is designed to encourage voluntary recognition through the use of such cards.

Under the Cemex standard, an employer that is faced with a demand for voluntary recognition now has three options.

First, the employer could agree to recognize the union based on authorization cards signed by a majority of the employees.

Second, the employer could reject the unions demand for voluntary recognition and, within two weeks, file its own petition (an RM petition) for a secret-ballot election. Note that this second option now places the burden on the employer to seek an election.

Lastly, an employer could refuse to voluntarily recognize the union and not elect to file RM petition. In that situation, the employer risks an unfair labor practice charge for failing to bargain in good faith. In short, an employer who elects to do nothing does so “at its peril. ”

The Cemex approach is a drastic departure from the legal standard that had been in effect. Prior to Cemex, when faced with a demand for recognition based on authorization cards, an employer simply could reject the cards and force the union to seek a secret-ballot election.

Under the new Cemex standard, if an employer rejects the authorization cards the burden now is on it to file a petition for a secret-ballot election. By shifting this burden to the employer, The Board is attempting to induce employers to accept authorization cards as evidence of the union’s majority status.

The Problem with Authorization Cards

There is a strong argument that authorization cards are an inherently unreliable indicator of majority support. As the dissenting opinion in Cemex noted, “signing an authorization card is an observable and, often, observed act, and employees may sign a union card not because they want the union as their bargaining representative but because they were pressured by their coworkers to sign.” Id., at. 42.

Empirical studies also underscore that union authorization cards provide an inferior means for determining the will of the majority compared to board- conducted secret-ballot elections.” In a study that was cited by the dissenting opinion, it was found that, “even where the union had authorization cards from between 50 and 70 percent of the employees, it won only 48 percent of the elections.” The dissenting opinion also cited a second study finding that, “18 percent of those signing authorization cards did not want union representation at the time they signed.” Id., at 43.

Another problem with the use of authorization cards as evidence of majority support is that, from a timing standpoint, an employer may not have the opportunity to share its opinions regarding the union until it is too late. Card-signing campaigns often are conducted without the employer’s knowledge. It is not unusual for an employer to first learn of the card campaign by being presented with the actual cards—accompanied by the union’s demand for immediate recognition.

Where that is the case, both the employer and the employees are deprived of the opportunity to fully consider the arguments both for and against union representation. In short, the authorization card approach being promoted by The Board likely will deprive employers of the opportunity to run meaningful anti-union campaigns.

What Employers Should be Doing Now

Given that the new Cemex approach is designed to promote voluntary recognition through authorization cards, employers need to take proactive measures to both recognize and respond to demands for voluntary recognition.

Managers and front-line supervisors need to be trained to recognize the early warning signs of a union card-signing campaign. In addition, once an employer suspects that a card-signing campaign is underway, its managers and supervisors also need to be trained on what they can and cannot do in response to such a campaign.

It is important that managers and supervisors receive this training so they do not engage in conduct that could form the basis of an Unfair Labor Practice (ULP) charge. (If a ULP occurs, The Board may issue a “bargaining order” compelling the employer to recognize and bargain with the union).

NorthAmerican Transportation Association has 10 law firms that can help our member private employers or motor carriers with this problem. For example, in the Wisconsin area we have Godfrey & Kahn with several offices.

Their labor and employment team is available to help employers navigate this unprecedented change to union organizing.

They offer training for front-line managers and supervisors in how to detect early warning signs of a card signing campaign and training for managers and supervisors on what they can and cannot do during the course of such a campaign.

In the context of a card signing campaign, the most effective way to defeat the campaign is to take steps to prevent a majority of the employees from signing cards in the first place. This approach relies heavily on early detection of the card campaign and effective, legal responses thereto. Our management training can help employers do both.

A Victim of the Deregulated Road

Thu, 05 Oct 2023 13:17:55 GMT

An article that appeared in print on June 15,1993, Section D, Page 1 of the National Edition of the New York Times .

The St. Johnsbury Trucking Company, a leader in the Northeast trucking market, said yesterday that it would close after years of struggling with problems that included nonunionized competitors and a soft Northeast economy.

The fate of the company, founded 72 years ago as a milk hauler in St. Johnsbury, Vt., mirrors that of many trucking companies that have fallen since the industry was deregulated in 1980. Of the top 50 trucking companies operating in 1978, by last year all but 9 had closed or merged.

"It certainly follows a long, unhappy history of carriers not being able to get their cost structure down from what it was in the 1970's, when carriers were quite well protected," said Kenneth Simonson, chief economist of the American Trucking Associations. "There is nothing unusual about this."

St. Johnsbury, which has 4,000 workers, has restructured its finances twice since 1991 to lighten the debt incurred in a 1986 leveraged buyout.

"It just goes to show that market leadership doesn't necessarily confer profitability," said Paul R. Schlesinger, a trucking industry analyst at Donaldson, Lufkin & Jenrette.

As of last night, St. Johnsbury had not released details of its decision, although it indicated that it did not plan a restructuring.

The move followed several attempts in recent years to ease pressures on the company's finances. Earlier this month, the Teamsters union, which represents roughly 3,000 drivers and dock workers, agreed to a 9 percent wage cut, with a promise that workers would share the company's profits.

The company had asked workers in April to approve a 12 percent wage cut in return for a profit-sharing plan, but the rank-and-file members balked at the proposal.

Industry analysts were aware that St. Johnsbury, based in Holliston, Mass., was having difficulties, but assumed that the wage concession had given it breathing room.

Teamster’s officials said they met with St. Johnsbury executives on Thursday, when the company outlined its bleak finances and relayed an order from its bank to liquidate the company. At the time, the company proposed a broad range of concessions, including cutting the work force by half, closing 24 of its 54 terminals and replacing the union's health and pension plans with less expensive St. Johnsbury plans.

The teamsters determined, based on a recent audit of the company's finances, that the company clearly had no chance of surviving. Last year, St. Johnsbury lost $13.4 million on revenue of $88.1 million, far more than the 1991 loss of $2.2 million on revenue of $93.6 million.

"Its another case where workers cannot save a company from management's mistakes and 12 years of deregulation," said Ron Carey, general president of the International Brotherhood of Teamsters. Rivals Have Cut Back

The impact of St. Johnsbury's liquidation plans on other companies that require transportation of so-called less-than-truckload shipments is unclear. But Walter Riley, president of G.O.D. Inc., a less-than-truckload carrier based in Kearny, N.J., said his company and other competitors of St. Johnsbury would have capacity to pick up only about half of the company's roughly 12,000 daily shipments.

St. Johnsbury was believed to have held about 17 percent of the market.

Companies like St. Johnsbury, which ship smaller loads, have seen increasing competition at both ends of their market niche. Many shippers have restructured their operations to take advantage of the lower cost of full truckload transportation. And companies that have used St. Johnsbury in the past for small but highly profitable loads have been turning increasingly to shippers like Federal Express and United Parcel Service.

The DOT Agenda For This Year

wayne@ntassoc.com (Wayne Schooling) — Tue, 03 Oct 2023 13:27:49 GMT

The U.S. Department of Transportation (DOT) is advancing dozens of new regulations, many of which will have a major impact on motor carriers and their drivers.

The latest DOT rulemaking agenda, released on June 14, 2023, describes numerous pending actions from the Federal Motor Carrier Safety Administration (FMCSA) and other DOT agencies.

The FMCSA is slated to publish a whopping 15 rulemaking proposals in the second half of 2023 alone. Among the rules expected to advance this year are those that would:

Require speed limiters for heavy trucks,
Update the cargo securement rules,
Make a variety of enhancements to the rules for electronic logging devices and the Drug & Alcohol Clearinghouse,
Alter the safety-rating process,
Ease rules for stopping at railroad crossings,
Require a proficiency exam for new motor carriers,
Add an appeals process for drivers accused of refusing a drug or alcohol test, and
Add exemption for the transportation of passengers for recreational activities.

Most upcoming rules are in the “proposal” stage, which means motor carriers and the public will have an opportunity to review and comment on the changes before they’re finalized.

The DOT updates its rulemaking roadmap twice yearly. The forecast is not set in stone; proposed changes often encounter delays and take years to finalize.

Stay subscribed to NTA’s Hi-Way Hi-Lites to keep informed.

Remember, “Knowledge is power” (Francis Bacon 1597). And the NTA is the most knowledgeable transportation association is the US.

2024 UCR Enrollment Begins October 1

wayne@ntassoc.com (Wayne Schooling) — Thu, 28 Sep 2023 13:24:34 GMT

Attention Interstate Carriers:

The 2024 UCR Enrollment Period begins October 1, 2023

The Unified Carrier Registration (UCR) enrollment period for 2024 begins October 1, 2023 and ends December 31, 2023. Don't risk getting stalled or fined at a roadside this year.

Our partners, regulatory experts at J. J. Keller can file your UCR for you as part of their Unified Carrier Registration (UCR) Service. Their team can seamlessly handle your initial UCR registration and ensure that your annual UCR renewals are always submitted on time.

IFTA & IRP Records

wayne@ntassoc.com (Wayne Schooling) — Thu, 28 Sep 2023 13:18:40 GMT

The recordkeeping rules for the International Fuel Tax Agreement (IFTA) and the International Registration Plan (IRP) are extensive. Both programs, however, require that you keep the same basic types of information (for interstate vehicles over 26,000 pounds or with three or more axles):

Original GPS data
Date, time, and location of each GPS reading
Odometer/hub odometer or ECM readings
Distance between each GPS reading
Route of travel
Total trip distance/distance in each jurisdiction
Vehicle ID number or unit number

Fuel receipts and bulk-fuel usage (IFTA only) IFTA requires quarterly tax filings as well as annual renewal, while IRP involves yearly registration. Keeping reliable records and avoiding things like missing receipts or unaccounted-for gap miles in mileage reports is vital when the auditors arrive.

Also vital is keeping track of how long each record must be maintained. For example, mileage data must be kept for three years for IRP purposes but four years for IFTA. However, the IRP timeframe may extend to over six years, depending on the timing of registration.

Confusing? Yes, but an electronic record management system, like J. J. Keller® Encompass® Fleet Management, can prevent headaches by tracking timelines for you.

NTA is an official reseller of JJ Keller products & services.

The ABCs of Digital Motor Carrier Identification

wayne@ntassoc.com (Wayne Schooling) — Tue, 26 Sep 2023 13:21:50 GMT

As a motor carrier, you may have stared at your computer screen, where a government form or business contract directed you to enter your name or carrier identity… and then offered only a few blanks to fill in that information… far too short for your company name or your USDOT number. What the form is seeking is your SCAC.

SCAC is the Standard Carrier Alpha Code, a unique two- to four-letter code used to identify transportation companies. In the mid-1960s, the National Motor Freight Traffic Association (NMFTA) saw the need for a short code to identify motor, rail, and water carriers in their electronic communications. NMFTA developed the SCAC in response.

The SCAC is a standard requirement in many commercial situations:

An SCAC is required when doing business with all U.S. government agencies.
An SCAC is required by many commercial shippers in the automobile, forest product, and chemical and petroleum industries.
An SCAC is required for motor carriers who perform ocean container drayage or have railroad piggyback operations.
An SCAC is required for any transportation company utilizing the Uniform Intermodal Interchange Agreement (UIIA), which is a standard industry contract outlining equipment interchange rules between intermodal trucking companies and equipment providers.

U.S.- based motor carriers who conduct cross-border operations into Canada and Mexico should pay special attention to obtaining and renewing their Standard Carrier Alpha Codes. The U.S. Customs and Border Protection’s Automated Commercial Environment (ACE), Automated Manifest (AMS) and Pre-Arrival Processing (PAPS) Systems require a current SCAC.

As a computer code, the SCAC meets the American National Standards Institute (ANSI) criteria and is approved by the United Nations Electronic Data Interchange for Administration, Commerce and Transport (EDIFACT) for electronic data interchange – it is a legitimate and recognized means of identifying your company electronically.

NMFTA issues Standard Carrier Alpha Codes and maintains the list of valid holders. Motor carriers can apply for or renew an SCAC here . The current cost is $87, renewable annually. Standard Carrier Alpha Codes which are not renewed will lapse after three years and be reassigned to another company.

When do you need an SCAC? More times than you may think.

State of California (CARB) sign Unprecedented Emissions Agreement with Truck Makers

Wed, 20 Sep 2023 16:58:25 GMT

The Truck and Engine Manufacturers Association and key truck and engine makers have made a deal with the California Air Resources Board on the development of zero-emission vehicles for commercial trucking.

The agreement creating the Clean Truck Partnership includes flexibility for manufacturers to meet emissions requirements while still reaching the state’s climate and emission reduction goals, according to an announcement from CARB.

The agreement is a “commitment from the companies to meet California’s vehicle standards that will require the sale and adoption of zero-emissions technology in the state, regardless of whether any other entity challenges California’s authority to set more stringent emissions standards under the federal Clean Air Act," CARB said in a news release. "In turn, CARB has agreed to work collaboratively with manufacturers to provide reasonable lead time to meet CARB’s requirements and before imposing new regulations and to support the development of necessary ZEV infrastructure,”

The Clean Truck Partnership includes:

CARB
Truck and Engine Manufacturers Association
Cummins
Daimler Truck North America
Ford
General Motors
Hino Motors
Isuzu Technical Center of America
Navistar
Paccar
Stellantis
Volvo Group North America

The Terms of the Clean Truck Partnership Include:

CARB will align with EPA’s 2027 regulations for nitrogen oxide emissions. CARB also will modify elements of the 2024 NOx emission regulations for which manufacturers will provide offsets as necessary to maintain California’s emission targets.
CARB commits to providing no less than four years lead time and at least three years of regulatory stability before imposing new requirements.
Truck manufacturers commit to meeting CARB’s zero-emission and criteria pollutant regulations in the state regardless of any attempts by other entities to challenge California’s authority.

The Clean Truck Partnership comes as California prepares for implementation of its landmark rules that put in place a phased-in transition toward 100% sale and use of zero-emissions technology for medium- and-heavy duty vehicles under CARB’s Advanced Clean Trucks and Advanced Clean Fleets rule by 2045.

In March, the Biden administration approved California’s waiver under the federal Clean Air Act that allows the state to become the first in the world to require zero-emissions technology for trucks.

CARB chair Liane Randolph called the deal "unprecedented."

It represents "a new era in our zero-emission future, where we work together to address the needs of both the trucking industry and the Californians who deserve to breathe clean air,” Randolph said. “This agreement makes it clear that we have shared goals to tackle pollution and climate change and to ensure the success of the truck owners and operators who provide critical services to California’s economy.”

EMA President Jed Mandel said the agreement “reaffirms EMA’s and its members’ longstanding commitment to reducing emissions and to a zero-emissions commercial vehicle future, and it demonstrates how EMA and CARB can work together to achieve shared clean air goals.”

“Through this agreement, we have aligned on a single nationwide nitrogen oxide emissions standard, secured needed lead time and stability for manufacturers, and agreed on regulatory changes that will ensure continued availability of commercial vehicles," Mandel said. "We look forward to continuing to work constructively with CARB on future regulatory and infrastructure efforts designed to support a successful transition to ZEVs.

Remarks from Clean Truck Partnership Members

Cummins

“Cummins continues to be committed to working collaboratively with CARB toward a zero emissions future. We appreciate CARB’s commitment to providing flexibilities as we transition to zero emissions, and for their efforts to align with EPA’s 2027 standards. We also welcome CARB’s commitment to collaborate in the further development of ZEV infrastructure needed for our customers to adopt these technologies. These actions will enable Cummins to improve product availability for our customers, while delivering significant emissions reductions,” said Shelley A. Knust, vice president of product compliance and regulatory affairs for Cummins Inc.

Daimler Truck

“At Daimler Truck we continue working towards achieving our goal of offering only carbon-neutral vehicles by 2039. For the overall industry transformation to become a reality, we believe the key to success is a close collaboration with all our stakeholders,” said Sean Waters, vice president of product compliance and regulatory affairs for Daimler Truck.

Ford

“Ford remains committed to working collaboratively with the California Air Resources Board and the Truck and Engine Manufacturers Association. During this extraordinary period of transition in the automotive industry, automakers need harmonization between programs to help meet our shared goal of lowering emissions from transportation to improve air quality, human health and the environment. This alignment between California and the Environmental Protection Agency’s national standards for model year 2027 and beyond will help us get more clean trucks on the road across the country,” said Cynthia Williams, global director sustainability, homologation and compliance at Ford Motor Company.

Navistar

“Navistar is committed to offering our customers products and services which support a sustainable future. This agreement enables the regulatory certainty we all need to prepare for a future which will include ever increasing volumes of low and zero-emissions technologies,” said Michael Noonan, director product certification and compliance for Navistar.

Paccar

“Paccar is committed to supporting the environmental goals of California and the nation as a whole and welcome the harmonization of future emissions regulation. This agreement provides regulatory certainty and supports a balanced transition to zero emissions by ensuring continued supply of product into California and opt-in states,” said John Rich, chief technology officer for Paccar.

Volvo Group

“The Volvo Group is pleased to support this joint agreement between the California Air Resources Board and the Truck and Engine Manufacturers Association. We believe this lays the foundation for our customers to have the greatest possible product availability consistent with California’s climate change and air quality goals. Through cooperative efforts such as this, the Volvo Group believes we can achieve the quickest and least disruptive transition to a commercial zero-emission vehicle future,” said Dawn Fenton, vice president, government relations and public affairs for Volvo Group North America.

The Federal Motor Carrier Safety Administration has removed four more electronic logging devices from its list of registered ELDs

Mon, 18 Sep 2023 17:24:50 GMT

The Federal Motor Carrier Safety Administration has removed four more electronic logging devices from its list of registered ELDs, effective July 25, 2023.

All Truckers ELD, Golden ELD, PrimELD, and Secure ELD devices have been put on the Revoked Devices list due to failure to meet the minimum requirements established in 49 CFR part 395, subpart B, appendix A.

Motor Carriers Using These ELDs Must Take These Steps:

FMCSA will send an industry email to let motor carriers know that all who use these revoked ELDs must take the following steps:

Discontinue using the revoked ELDs and revert to paper logs or logging software to record required hours of service data.
Replace the revoked ELDs with compliant ELDs from the Registered Devices list before Sept. 23, 2023.

Motor carriers have up to 60 days to replace the revoked ELDs with compliant ELDs.

If the ELD providers correct all identified deficiencies, FMCSA will place the ELDs back on the list of registered devices and inform the industry and the field.

What Safety Officials Should Do

During this time, safety officials should request the driver’s paper logs, logging software, or use the ELD display as a back-up method to review the hours-of-service data.

Citations Begin

Beginning Sept. 23, 2023, motor carriers who continue to use the revoked devices listed above will be considered to be operating without an ELD.

FMCSA suggests safety officials who encounter a driver using a revoked device on or after that date should cite 395.8(a)(1), and place the driver out-of-service in accordance with the Commercial Vehicle Safety Alliance OOS Criteria.

FMCSA strongly encourages motor carriers to take the actions listed above now to avoid compliance issues in the event that the deficiencies are not addressed in time.

Other ELDs Removed

Earlier this year, FMCSA also removed Nationwide ELD , TMS ELD One , All-Ways Track, and One Plus ELD, from the approved list.

Preparing for the Arrival of Electronic Truck Inspections or Big Brother is Watching You.

Wed, 13 Sep 2023 18:08:22 GMT

Commercial vehicle enforcement agencies are launching a push for thorough pre-trip and wireless roadside inspections, ushering in a new era for truck inspections.

To comply with these new commercial vehicle regulations, carriers may need to install devices that can transmit information on the condition and identity of the truck and driver to roadside enforcement.

How motor carriers will transmit driver and truck data remains unclear, but could explain the recent Federal Motor Carrier Safety Administration (FMSCA) request for comments on Universal Identification, known as UID. In that request, FMCSA sought input on how to broadcast sensitive information, how much it will cost, and what information will be required.

What is UID?

UID, otherwise known as Electronic Identification or Unique Electronic Identification, comprises the quick transmission and recognition of a truck as it moves down the highway. Roadside enforcement uses this electronically transmitted information to make screening and inspection decisions.

The concept has been tossed around since 2010 when the Commercial Vehicle Safety Alliance (CVSA) first petitioned the FMSCA for a rulemaking on UID. In 2013, FMSCA denied CVSA’s request. But in 2015, FMSCA reversed its decision and said it would consider UID.

In September 2021, the trek toward UID became more formal when it was introduced in the Infrastructure, Investment, and Jobs Act (IIAJ). FMSCA then issued an Advance Notice Proposed Rulemaking (ANPRM) for UIDs.

A large group of stakeholders, including CVSA, truck manufacturers, trucking associations, and others provided input on the idea. Those parties agreed that any universal electronic vehicle identifier should be limited to a single point of data, such as the vehicle identification number. They made clear that UID based on a single point of data must:

Identify the vehicle for compliance, inspection, or enforcement purposes;
Not transmit personally identifiable information (PII) regarding operators; and
Not create an undue cost burden for operators and carriers

However, these requirements did not make it into the final IIAJ legislation, leaving UID interpretation up for grabs. Now it seems some want it to go beyond UID and make it part of CVSA Standard Level VIII Electronic Inspection.

Blurred Lines Between Level VIII and UID

The concern industry-wide is that the UID ANPRM blurs the lines between UID and Level VIII inspections. Under the proposed rules, UID information would include:

Driver personally identifiable information
Hours of service
CDL compliance
Medical certification
Truck information, including pre-trip inspection date and time; GPS location date and time; axle weight, gross vehicle weight rating; and more

The UID ARPRM went far beyond the single point of data that stakeholders proposed. It begs the question: Is UID an identifier that will be part of a CVSA Level VIII inspection? A Level VIII Electronic Inspection requires trucks to submit more data sets, including things like:

A descriptive location, including GPS coordinates with date and timestamp
Electronic validation of who is operating the vehicle
Driver’s license and class endorsements for vehicle being operated
Commercial vehicle license status
Medical examiners certificate and the skill performance evaluation certificate
Current driver’s record of duty status
Hours of service compliance
Unified Carrier Registration
Federal out-of-service orders

Questions to Answer Before Possible UID Implementation

There was an extensive list of questions on UID that state enforcement agencies and the trucking industry should seek answers to before the concept moves forward. The questions to answer include:

How will UID improve highway safety?
How would carrier and driver data be transmitted and received?
How would data transmission and data storage be protected?
How would data be used after carriers provide it to federal and state entities? Clear definitions and boundaries of how this data will be used are needed.
How will a new mandate on carrier and driver data impact the trucking industry? Requiring drivers to submit and broadcast PII data as they drive down the road could impact driver recruitment and retention. One survey shows 27% of respondents would leave the industry if the proposed UID rules became law.
Will states be held liable unless every truck violation is detained? What happens if a truck drives past a weigh station at 2 a.m. and transmits info that points to an out-of-service or hours of service violation? If the state doesn’t pull the truck over, and it gets in a wreck, would it be liable? That’s a real concern.
What will motor carriers receive for providing additional data?

The UID ANPRM put forth specific considerations that must be addressed, which brings up five key concerns.

Data Use . What data should be included as part of the electronic ID? If UID is really focused on truck identification, then a VIN should be all that’s needed. But building out a new system and technology to transmit the VIN would be prohibitively expensive to develop and install and states would bear the burden to maintain and update the system. Broadening the scope to include driver data would take a disastrous toll on the supply chain.

Many in the trucking industry indicated they would leave the industry if required to transmit the data included in the UID ANPRM. Any UID system designed to identify trucks would not require drivers to broadcast their PII, but UID as part of Level VIII inspections would. The two have become conflated.

In addition, once the government has all of the truck and driver data, including GPS location with a timestamp, it is not prohibited from using that information elsewhere. Once state or federal governments have the ability to track trucks using GPS, can a vehicle miles traveled tax system be far behind?

Data Transmission . To gather the data suggested in the UID ANPRM, FMSCA would need to develop sophisticated technology that is interoperable with all tractors and trailers and backward compatible with the oldest equipment in use.

Unless all carriers participate in a UID system, the ruling would create inequity in the trucking industry. Carriers that can afford new trucks with a UID device would benefit. But carriers that could not afford new equipment would be required to pull into weigh stations.

Data Protection . Companies struggle now to secure onsite computer systems. The idea of securing information transmitted from a truck to roadside enforcement adds another layer of complexity to data security.

The sensitive nature of UID data would likely require sophisticated encryption systems that are difficult to deploy and execute on a truck moving at highway speeds. Transmitting driver PII also creates a significant privacy risk because once bad actors know trucks broadcast that information, they will develop systems to intercept it.

Safety Benefits . Identifying a truck offers little to no direct safety benefits. In fact, UID would increase the number of trucks entering weigh stations, which would heighten crash risks as more trucks enter and exit the highway. Plus, preclearance programs already identify and match truck data for motor carriers that voluntarily provide that information.

In return, those carriers save time, fuel, and money because they bypass weigh stations. This motivates them to improve their safety scores to bypass more weigh stations. UID offers no such exchange benefit.

Cost Concerns . What is the cost of electronic ID equipment for states, carriers, and drivers? No one knows how UID will be executed, so there is no way to calculate costs. The costs are already known for preclearance programs, such as those offered by PrePass. These programs are inexpensive to motor carriers and already identify trucks as they drive down the road.

A motor carrier can save up to $8.68 every time it bypasses a weigh station, according to FMSCA data. In addition, states would bear the cost to build, maintain and upgrade a new UID system, when a similar system already exists. The PrePass Safety Alliance has invested over $900 million to build and maintain the world’s largest connected vehicle infrastructure.

The trucking industry and state enforcement agencies have a vital interest in the UID and Level VIII inspection concepts. They should remain engaged with FMSCA and other stakeholders to address their concerns before deploying these new systems.

Ultimately all groups involved in the UID/Level VIII discussion have the same goal – to improve highway safety. The question that remains unanswered is whether developing a costly new system to identify and gather information about drivers and trucks is the best way to achieve it.

Minnesota Joins Growing Number of States Banning Non-Competes with Employees

Mon, 11 Sep 2023 20:00:31 GMT

From our friends at Godfrey & Kahn

I n January, the Federal Trade Commission (FTC) proposed a new rule that would ban non-compete agreements across the United States. While the FTC’s proposed rule (or an altered version of it after a lengthy and extended comment period) has yet to become law, state non-compete laws continue to impact how employers do business. Effective July 1, 2023, Minnesota will join a growing number of states, including California, North Dakota and Oklahoma, banning the use of non-competes in employment agreements.

Specifically, MN SF 3035 prohibits agreements that restrict an employee, after termination, from performing:

work for another employer for a specified period of time;
work in a specified geographical area; or
work for another employer in a capacity that is similar to the employee’s work for the previous employer.

Notably, Minnesota’s new law does not prohibit non-disclosure agreements, non-solicitation agreements (both of customers and employees), or agreements designed to protect trade secrets or confidential information.

Some Covenants Not to Compete Still Enforceable

While Minnesota’s new law aims to protect employees’ interests in obtaining employment after termination, it also appears to prioritize fair business dealings in the sale and/or dissolution of a business. To do so, MN SF 3035 permits a covenant not to compete as valid and enforceable if:

the covenant not to compete is agreed upon during the sale of a business. The person selling the business and the partners, members, or shareholders, and the buyer of the business may agree on a temporary and geographically restricted covenant not to compete that will prohibit the seller of the business from carrying on a similar business within a reasonable geographic area and for a reasonable length of time; or
the covenant not to compete is agreed upon in anticipation of the dissolution of a business. The partners, members, or shareholders, upon or in anticipation of a dissolution of a partnership, limited liability company, or corporation may agree that all or any number of the parties will not carry on a similar business within a reasonable geographic area where the business has been transacted.

Other Notable Aspects of the Minnesota Law

Although the bill uses the word “employee,” employers that conduct any work within the state should be aware that “employee” includes any individual who performs services for an employer, including independent contractors. As a result, companies should review their independent contractor agreements to ensure that they comply with the new Minnesota law. Furthermore, as the bill does not include a salary threshold, the state’s ban on non-competes in employment agreements will apply equally to executive and other C-suite employees.
Notably, the law is not retroactive. Employers with previous agreements that do not conform to the new law do not need to revise, rescind, or amend any such non-competition agreements entered into prior to July 1, 2023.
In addition, while employers must take this law seriously—as violation of the Minnesota law grants an employee access to injunctive relief, reasonable attorney fees, and “any other remedies available”—a provision that is found to constitute a non-compete will not sink an entire agreement. Only the provision containing a covenant not to compete will be deemed void and unenforceable.
Lastly, the Minnesota law voids choice of law or venue provisions that select applicable law other than Minnesota or venue outside of the state, if the worker in question resides or works in Minnesota.

Conclusion

Even if you do not have employees in Minnesota, the implementation of the new law should be a reminder to multi-jurisdictional employers that they should be mindful of state-specific laws governing restrictive covenants when using non-competes, non-solicits, non-disclosure and/or anti-piracy agreements across their workforce.

FMCSA mulls ‘proficiency exams’ for new entrant carriers

Wed, 06 Sep 2023 19:41:31 GMT

A rulemaking that has been dormant since 2009 is back on the Federal Motor Carrier Safety Administration’s radar.

In the Department of Transportation’s latest regulatory agenda, a date has been added to a potential rulemaking that would consider methods for ensuring a new applicant carrier is knowledgeable about the applicable safety requirements before being granted New Entrant authority. FMCSA is considering whether to implement a proficiency examination as part of its revised New Entrant Safety Assurance Process, as well as other alternatives.

FMCSA said in a statement it could not provide additional information as to whether the supplemental advance notice of proposed rulemaking (ANPRM) would also include information related to a proficiency exam for brokers.

The 2009 carrier-related ANPRM said that a 2003 rulemaking establishing the 18-month audit program did not include a proficiency exam, but instead required applicants to certify, on Form MCS–150A, that they were knowledgeable of the federal safety regulations and hazmat regulations. The fact is, in reality, most people lied when it came to this section.

The previous ANPRM sought information on the feasibility of establishing a proficiency exam, recommendations on testing protocols and how the test would be administered, which carrier employees should be required to take the exam, and more.

FMCSA on-site Audits are Surging Back in 2023

Before social distancing, off-site investigations were already becoming a more significant part of the FMCSA’s auditing strategy for time and cost-saving advantages compared to traditional on-site auditing.

Recognizing the benefits, the FMCSA’s off-site audits grew by 300 % between 2018 and 2019. As staying apart became necessary to reduce the spread of Covid-19 in 2020 and 2021, it made more sense to request carriers to submit their documents electronically to conduct the investigation remotely.

In 2022, there was a return to in-person investigations, with the total number of on-site audits increasing by 54% from 2021 and the FMCSA walked back its off-site audit focus by 31% for a total of 3,400 audits.

Out of the 12,500 total investigations, there wee 3,600 on-site comprehensive reviews, an increase of 54%, and 5,400 on-site reviews for an increase of 7%.

Violations found during an audit can also contribute to higher scores and result in higher fines. Last year, the FMCSA collected $25.7 million, an increase of 40% from 2021. The “average” settlement was $7,100.

The top FMCSA fines for 2022 were as follows:

Hour of Service violation $91,620
Log violation $88,450
Drug & Alcohol and Vehicle violation $75,080

Prepping for an Audit

Self-audit. One of the best ways a carriers and/or private company can do is to identify any gaps in their safety program thru a self-audit. If the carrier and /or private company is not up to speed with the applicable industry knowledge, then they should join an applicable association for the most cost-effective results such as the NorthAmerican Transportation Association (NTA)
Focus on digital records. Electronic recordkeeping offers the easiest way to stay organized and spot any problems. NTA helps companies stay compliant and successfully pass both off-site or on-site audits.
Evaluate driver qualification files, drug/alcohol testing, HOS and inspection/maintenance files. These are the areas where most of the violations are commonly found.
NorthAmerican Transportation Association offers PassBook software that should take care of your DQ files and Maintenance files. NTA, as the only transportation association in the US which has its own ELD service, also offers the NTA ELD at below market pricing.

NLRB Targets Noncompete Agreements at Union and non-union Companies

Fri, 01 Sep 2023 19:46:01 GMT

Compliments of Christopher Foster and Brian Mead – The National Law Review.

In Memorandum GC 23-08 (Memo), Jennifer A. Abruzzo, General Counsel of the National Labor Relations Board (NLRB), announced that her office would target for prosecution both union and nonunion employers for offering, maintaining or enforcing noncompete agreements. The Memo does not carry the force of law but signals the General Counsel’s prosecutorial intent.

There is, however, no reason to scrap all post-employment covenants.

BACKGROUND

Non-competes have received substantial attention of late, much of it negative. This includes a proposed rule from the Federal Trade Commission and a slew of state laws, most recently in Minnesota, which just banned non-competes in a new statute effective July 1, 2023.

Noncompete contracts ban working for a defined universe of “competing companies” for a certain period of time after leaving the employment. Non-solicitation contracts are distinct types of agreements that ban soliciting either customers or coworkers for a certain period of time after leaving the employment.

As a matter of common law, post-employment agreements typically require three key elements to be enforceable: (1) a protectable business interest warranting post-employment protection; (2) a limitation that is reasonable in time given that interest; and (3) a limitation that is reasonable in scope (geographic and otherwise) given that interest.

ANALYSIS

The National Labor Relations Act (NLRA) became law in 1935. In the ensuing 88 years, that statute has not been applied to regulate non-competes. So, the NLRB is late to the party on non-competes and—perhaps as a result—the Memo criticizes non-competes in general but proposes only hyper-limited regulation of those agreements.

First , the Memo stands entirely silent on non-solicitation agreements, tacitly accepting without mentioning the current state of the law on those agreements. So, non-solicitation agreements that are properly drafted to be enforceable under state law lie outside the realm of the NLRB’s current prosecutorial interests.

Second , the Memo accepts that non-competes “narrowly tailored to special circumstances justifying the infringement on employee rights” are perfectly proper, citing “Restatement (Second) of Contracts § 188 cmt. b (1981) (post-employment restraint on competition ‘must usually be justified on the ground that the employer has a legitimate interest in restraining the employee from appropriating valuable trade information and customer relationships to which he has had access in the course of his employment’)” to illustrate and define what is proper.

This acceptance of the Restatement is huge because it cabins the scope of the NLRB’s interest to “overbroad non-compete” agreements. This is re-emphasized in the very next paragraph of the Memo where the General Counsel asserts that her prosecution targets are those non-competes lacking a protectable business interest ( i.e. , those already unenforceable under state law):

It is unlikely an employer’s justification would be considered reasonable in common situations where overbroad non-compete provisions are imposed on low-wage or middle-wage workers who lack access to trade secrets or other protectible interests, or in states where non-compete provisions are unenforceable.

If it seems curious for the NLRB’s General Counsel to threaten to prosecute only non-competes that cannot be enforced anywhere at all, that may be due to failing to read the General Counsel’s memos and Lewis Carroll’s Alice’s Adventures in Wonderland concurrently because both embrace parallel thinking in prosecutorial theories:

“Rule Forty-two. All persons more than a mile high to leave the court. ” Everybody looked at Alice. “I’m not a mile high,” said Alice. “You are,” said the King. “Nearly two miles high,” added the Queen. “Well, I shan’t go, at any rate,” said Alice; “besides, that’s not a regular rule: you invented it just now.” “It’s the oldest rule in the book,” said the King. “Then it ought to be Number One,” said Alice.

Here, the General Counsel aims to broaden the scope of what constitutes an unfair labor practice under the NLRA by applying the General Counsel’s flexible theory of “chilling” employee rights. According to the Memo, noncompete provisions may chill employees’ exercise of their rights under Section 7 of the NLRA by inhibiting their ability to:

Concertedly threaten to resign to demand better working conditions;
Carry out those threats to resign or otherwise concertedly resigning to secure improved working conditions;
Concertedly seek or accept employment with a local competitor to obtain better working conditions;
Solicit their coworkers to go work for a local competitor as part of a broader course of protected concerted activity; or
Seek employment, at least in part, to specifically engage in protected activity with other workers at an employer’s workplace.

But that “chill” is merely the first step in the proper analysis and oversimplifies the NLRA—a critical defect that the federal appellate courts will likely, in time, correct upon reviewing cases employing this new interpretation (if the NLRB actually adopts this theory being advocated by its General Counsel).

Rights under the NLRA are not unlimited, and so the required analysis must include balancing all countervailing employer interests. Textile Workers Union of Am. v. Darlington Mfg. Co. , 380 U.S. 263, 269 (1965) (“[I]t is only when the interference with [Section] 7 rights out-weighs the business justification for the employer’s action that [Section] 8(a)(1) is violated.”).

The Memo is yet another in a series that seeks to change business behavior merely by announcing that prosecutions may be coming. Such memos are not self-executing. And, apart from the internal flaws that make this a threat of limited force, there is also pending litigation challenging these memos on constitutional grounds. Associated Builders and Contractors of Michigan v. Abruzzo , No. 1:23-cv-00277 (W.D. Mich. Mar. 16, 2023), ECF No. 1.

NEXT STEPS

The Memo is applicable to noncompete agreements involving employees as that term is defined under the NLRA. Managers and supervisors are excluded from that definition but included are many high-paying positions, such as physicians or salespersons in nonsupervisory or nonmanagerial jobs. In addition, “true independent-contractor relationships” are also excluded.

While the Memo aspires to induce employers into abandoning all post-employment restrictions on their employees to avoid having to litigate charges before the NLRB, there are other and better options given the hyper-limited regulation of such agreements proposed by the Memo. Those better options include the following:

Employers should ensure that post-employment covenants comply with any applicable state-specific requirements;
Employers should determine which post-employment covenants (non-solicits versus non-competes versus confidentiality and nondisclosure agreements) are needed;
Employers should ensure that post-employment covenants are reasonably tailored in time and scope ( e.g. , a hedge fund has a legitimate business interest in preventing a financial analyst from performing identical work for a rival hedge fund, but no such interest in preventing that analyst from working for a competitor as a janitor); and
Employers should seek post-employment covenants only where there is a legally protectable interest in doing so (and should typically identify such interests in the written documents incorporating those post-employment covenants).

Post-employment covenants remain alive and well for those who understand the applicable laws.

FMCSA Revokes Three (3) More ELDs

Fri, 18 Aug 2023 20:00:18 GMT

FMCSA has removed electronic logging devices (ELDs) from its list of registered devices — and this time it’s more than just one.

While many companies remove their devices from the list voluntarily, FMCSA has the authority to remove any ELD that does not comply with the regulations in 49 CFR 395, subpart B, appendix A.

Revoked ELDs

Because of failure to meet minimum requirements, the following three devices were added to the Revoked Devices list:

ALL TRUCKERS ELD,
PRIMELD, and
SECURE ELD.

GOLDEN ELD was also previously listed, but has since been reinstated on FMCSA’s list of registered devices. Review the full list of revoked devices at https://eld.fmcsa.dot.gov/List/Revoked .

ELD providers who correct device deficiencies are placed back on the list of registered devices. FMCSA informs the industry, FMCSA field offices, state motor carrier safety offices, and on-road officers when revoked devices are compliant again. Review the full list of registered devices at https://eld.fmcsa.dot.gov/List .

What carriers should do next

Motor carriers and truckers who use ELDs on the revoked list must:

Stop using the device and revert to paper logs or logging software to record the required hours-of-service data, and
Replace the device with a compliant ELD before September 23, 2023.

Motor carriers have 60 days to replace revoked ELDs, and safety officials are urged not to cite drivers during this time. Instead, safety officials should ask for alternative methods to review hours-of-service data, including logging software, paper logs, and the ELD display.

NorthAmerican Transportation Association is the only transportation association in the U.S. that has been approved by the FMCSA and remains the most cost-effective product on the market today .

ATRI Research Documents Critical Role of Association Membership in Motor Carrier Safety

Fri, 11 Aug 2023 15:30:58 GMT

Washington, D.C . – The American Transportation Research Institute (ATRI) today released foundational new research that statistically corroborates that motor carriers who are active in state and national membership associations are safer than both former association members and carriers who have never been association members.

It has always been anecdotally assumed that association membership supports safety through a variety of association services and resources, but the necessary industry safety data and methodology had never before been assessed. This new empirical research processed public safety data from the Motor Carrier Management Information System (MCMIS) through a series of statistical tools to confirm the relationship between association membership and safety performance.

More specifically, the research compared motor carrier MCMIS crash and violation data for trucking fleets that held a membership status of either Current, Former or Never members. Carrier status data came from a geographically representative sample of state trucking associations as well as from the American Trucking Associations.

The Welch’s Two-Sample T-Test outputs confirm that among the three carrier groups, Current members have fewer overall crashes and violations than Former members, who also had fewer crashes and violations than Never members. Almost all results were significant at the 95 percent or 99 percent confidence levels. Due to the rarity of fatal truck crashes among all carriers, this specific crash type was not significant for either state or national membership.

“All safety stakeholders in the trucking industry are looking for strategies and solutions for improving large-truck safety,” noted Dr. Brenda Lantz, Associate Director of the Upper Great Plains Transportation Institute. “This new ATRI research confirms that association membership is another important and proven safety tool for trucking companies.”

The ATRI association safety research also provides some guidance on how the findings might be applicable to commercial transportation insurers, enforcement agencies and academic researchers.

There are over 900 different violations that professional drivers have to cope with on a daily basis.

Just another reason to join the NorthAmerican Transportation Association , a nationwide association open to private and for-hire companies that are under the auspices of the U. S. DOT’s regulations.

A copy of the full report is available through ATRI's website here .

Nineteen States Sue EPA Over California Heavy Truck Phaseout; Iowa Leads Opposition to Action Promoting EVs

Tue, 08 Aug 2023 18:02:18 GMT

Iowa is leading 19 states in a lawsuit against the U.S. Environmental Protection Agency for backing California’s future ban on heavy diesel vehicles in a purported attempt to regulate traditional trucking “out of existence through mandating net-zero emissions standards.”

The 51-page legal action against the EPA and its administrator, Michael Regan (in his official role), was filed June 5 in the U.S. Court of Appeals of the District of Columbia by Iowa Attorney General Brenna Bird and her peers from Alabama, Arkansas, Georgia, Kansas, Kentucky, Indiana, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Ohio, South Carolina, Utah, West Virginia and Wyoming.

“Iowa isn’t going to take a back seat as the EPA and California try to regulate truckers out of business. We’re pushing back,” Bird announced. “The EPA and California have no right or legal justification to force truckers to follow their radical climate agenda.”

Pointing out that only 2% of heavy trucks sold in the United States are electric, she contended President Joe Biden’s administration gave California the authority to force most buses, vans, trucks and tractor-trailers to be electric by 2035.

“America would grind to a halt without truckers who deliver our food, clothes and other necessities. But rather than support our hard-working truckers, Biden continues to empty their wallets and force them to drive electric trucks for his radical climate change agenda,” Bird said.

On March 9, 2022, Regan declared EPA reinstated California’s authority under the Clean Air Act to implement its own greenhouse gas emission standards and zero-emission vehicle sales mandate — paving the way for other states to mimic California’s green regulations.

Regan said the EPA proudly reaffirmed “California’s long-standing authority” to lead efforts to combat truck and car pollution.

“Our partnership with states to confront the climate crisis has never been more important. With today’s action,” he said, “we reinstate an approach that for years has helped advance clean technologies and cut air pollution for people not just in California, but for the U.S. as a whole.”

Then on April 28 this year, California Air Resources Board approved a regulation mandating diesel medium- and heavy-duty on-road vehicles (with a gross vehicle weight rating over 8,500 pounds) to be gradually replaced by zero-emission vehicles.

Eight other states have already adopted California’s truck ban as others ponder following its example, Bird said.

“Costs for electric trucks already start at about $100,000 and can reach the high six figures. And even worse — California’s new regulations are setting the standard for the rest of the country. That makes California a major decision-maker for the future of the national trucking industry,” she said.

EPA’s actions backing California’s diesel truck ban also “will not only increase costs, but it will devastate the demand for liquid fuels, such as biodiesel, and cut trucking jobs across the nation,” Bird predicted. “Iowa’s trucking industry currently provides almost 100,000 jobs — that is almost one in 13 jobs in the state.”

A ready replacement to lower diesel truck emissions, biodiesel is produced in Iowa and more states in greater quantities as it gains in popularity. The renewable fuel is made in the United States from vegetable oils, animal fats or recycled restaurant grease and also helps the nation’s farmers.

Nearly all heavy-duty diesel vehicles can run on biodiesel blends. All original equipment manufacturers approve the use of a B5 biodiesel blend, while the B20 blend is most common.

The attorney generals from the 19 states fighting the diesel trucking ban contend that California’s Advanced Clean Trucks regulation violates the Clean Air Act and other federal laws. Their lawsuit is petitioning the court to review the EPA’s actions.

“Biden’s EPA is attempting to use the California truck ban to force his radical climate change agenda onto the rest of the country. This disastrous Biden policy would devastate Kansas industries, destroy Kansas jobs and dramatically increase the cost of consumer goods for Kansas families,” said state Attorney General Kris Kobach.

He noted 70,000 Kansas jobs depend on the trucking industry. “California’s truck ban is reckless, and that’s why I am once again challenging a Biden policy,” Kobach said June 7.

Also issuing a statement that day was Utah Attorney General Sean Reyes, who linked 21,000 Utah jobs to his state’s trucking industry.

Alan Wilson, South Carolina’s attorney general, had strong words against the diesel truck ban.

“There were more than 13 million trucks on U.S. roads in 2020, carrying the goods we all buy. Either we won’t be able to get the things we need, or the cost of those goods will be astronomical. This ban is another example of prioritizing the climate change agenda above everyday people,” Wilson said June 8. “If you think prices have been bad during the Biden administration because of inflation, imagine how crippling they’ll be if this illegal truck ban is allowed to stand.”

DOL’s Proposed FLSA Independent Contractor Rule: Investment as Indicative of Profit and Loss

Tue, 08 Aug 2023 17:52:54 GMT

By Seyfarth Shaw LLP

By: Andrew McKinley , Kyle Winnick & Alex Simon

A hallmark of independent contractor status is the ability to exercise entrepreneurial opportunity to effectuate a profit (or loss). Independent contractors do this by making capital investments in their businesses, including through marketing, hiring others, purchasing equipment (or software), expanding capacity, or any number of things to increase their competitiveness. If these investments fail to attract new customers or to reduce inefficiencies, they may lead to a loss. In other words, independent contractors can increase their profits, or risk a loss, through investments.

It may seem odd, therefore, that some courts analyze a workers’ opportunity for profit-or-loss separately from their investments when determining if a worker is an employee or independent contractor under the Fair Labor Standards Act (“FLSA”). But others, such as the Second Circuit and D.C. Circuit, recognize that the profit-or-loss and investment inquiries are inherently intertwined and best analyzed together. As the Second Circuit explained in Saleem v. Corporation Transp. Group, Ltd . , “[e]conomic investment, by definition, creates the opportunity for loss, [and] investors take such a risk with an eye to profit.”

In 2021, the DOL under the Trump Administration promulgated an interpretive regulation defining employee versus independent contractor status under the FLSA (the “2021 Rule”), which would have adopted the approach of the Second and D.C. Circuits. More specifically, as part of the profit or loss inquiry, the 2021 Rule considered the “management of [a worker’s] investment in or capital expenditure on, for example, helpers or equipment or material to further his or her work.”

The DOL has now reversed course. In its most recent notice of proposed rulemaking (“NPRM”), the DOL seeks to return to analyzing investments separately from profit or loss. The DOL justifies doing so by citing cases that have historically analyzed the two inquiries separately, which according to the DOL, “have found both opportunity for profit or loss and investment to be independently probative.” For example, the DOL cites Fifth Circuit authority finding workers did not have any meaningful investment but did have an opportunity for profit or loss.

But the very cases that the DOL cites highlight the dangers of unmooring the investments inquiry from the profit or loss inquiry. The Fifth Circuit and other courts, for example, consider the “relative” investment made by the worker compared to the investments made by the putative employer. The NPRM adopts this approach. But this type of comparison will almost always result in the investment prong favoring employee status: businesses tend to be much larger than the contractors they engage. This begs the question why a factor which will almost invariably tilt in favor of employee status should be used to determine employee status. Such a standard will either improperly tilt the analysis in favor of employee status or be ignored. Indeed, in the very Fifth Circuit case the DOL cites, the Court gave the investment factor “little weight” because the plaintiffs were small businesspersons who necessarily worked for much larger companies. It therefore did not help the ultimate inquiry of ascertaining whether the workers were economically independent of or dependent on the putative employer.

There is the added problem of the DOL’s lack of guidance on how to calibrate the relative investments inquiry. Consider an independent contractor with multiple clients. Is a court supposed to compare the relative investments between the contractor and each client? Or should it do so on a pro rata basis? Or should it compare the contractor’s investments with the collective investments of his or her clients? In the case of an employer with multiple product service lines (PSLs), do investments in all PSLs count? Or does just the one to which the putative employee provides services? These unaddressed questions are likely to add confusion, not clarity, to the analysis.

Assessing investments apart from profit or loss also risks overlooking that many independent contractors have made minimal capital investments. As Judge Easterbrook remarked decades ago, “possess[ing] little or no physical capital . . . is true of many workers we would call independent contractors. Think of lawyers, many of whom do not even own books. The bar sells human capital rather than physical capital, but this does not imply that lawyers are ‘employers’ of their clients under the FLSA.” This statement is doubly true today, where freelancers and “gig” workers often invest in themselves—their training, skills, and experience—as opposed to physical capital.

There is also the related problem of what specific investments are probative of independent contractor status. Tying investment to profit or loss would sharpen the inquiry by focusing on those investments—and only those investments—which are designed to return a profit (or risk a loss), which will generally be probative of contractor or employee status. Indeed, it is hard to imagine a relevant investment that will not affect profit or loss. The NPRM appears to take the position that only those investments which further the independent contractor’s work for the putative employer are relevant. But that is just another way of saying investments which relate to profit or loss within the relevant line of business. At best, then, the NPRM creates a duplicative inquiry. At worst, it opens the door for consideration of investments that have nothing to do with whether or not a worker is economically dependent on a particular business. One of the NPRM’s stated goals is to bring clarity to determining employee status under the FLSA. But by returning to a standard which analyzes investments separate and apart from profit or loss, it risks the opposite.

Labor Board Now Attacking Most Non-Compete Agreements

Tue, 08 Aug 2023 17:41:28 GMT

As this newsletter has often stated, almost every month the National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo comes out with some controversial and unprecedented NLRB position. On May 30, 2023, she announced that the NLRB would consider most non-compete agreements to violate federal labor law, with only extremely narrow exceptions.

The theory is that non-compete provisions unreasonably tend to chill employees in the exercise of Section 7 rights, as such agreements could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities.

Generally speaking, this denial of access to employment opportunities chills employees from engaging in Section 7 activity because: employees know that they will have greater difficulty replacing their lost income if they are discharged for exercising their statutory rights to organize and act together to improve working conditions; employees' bargaining power is undermined in the context of lockouts, strikes, and other labor disputes; and an employer's former employees are unlikely to reunite at a local competitor's workplace, and thus be unable to leverage their prior relationships to encourage each other to exercise their rights to improve working conditions in their new workplace.

She thus considers the proffer, maintenance, and enforcement of a non-compete provision to violate Section 8(a)(1) unless the provision is narrowly tailored to special circumstances justifying the infringement on employee rights.

She says that it is unlikely that an employer's justification would be considered reasonable in common situations, and that employers may protect training investments by less restrictive means, such as by offering a longevity bonus.

She notes that the employer's legitimate business interest in protecting proprietary or trade secret information can be addressed by narrowly tailored workplace agreements that protect those interests.

She also states that provisions that clearly restrict only individuals' managerial or ownership interests in a competing business, or true independent-contractor relationships, may not violate the Act, and that there may be circumstances in which a narrowly tailored non-compete agreement's infringement on employee rights is justified by special circumstances.

A few months ago, the Federal Trade Commission (FTC) announced a policy against restrictive covenants, but its rulemaking will likely take another year or more and likely be the subject of legal challenge. In contrast, the NLRB has already challenged an employer's non-compete agreement in a complaint against an allegedly unlawful agreement that forbid low-wage workers from getting a job with another company in the same business in the entire state for two years after separation.

The complaint also attacked bans on working for a competitor and soliciting customers, which are common in non-compete agreements. In short, the NLRB intends to attack most common noncompete agreements.

Federal government studies have found that about one in five American workers are covered by non-compete agreements, and most will be affected by this new NLRB policy. It should be noted that NLRB policy is limited to agreements involving rank-and-file employees, as the Labor Act does not apply to managerial employees, confidential employees, and supervisors. However, it should be noted that there have been mechanisms set up between the FTC and the NLRB to coordinate information on enforcement activities.

Note: The NLRB announcement has far-reaching and immediate impact. The policy is not based on the existence of any type of ongoing union organizing campaign or anything of that nature, and it is very easy for an applicant or employee to file an unfair labor practice charge with the NLRB.

The NLRB could quickly issue a complaint, and the employer would be in a position of defending litigation and/or dropping a non-compete clause in some type of settlement agreement.

Most employers, however, will choose to see how the law develops, before dropping what they consider to be critically important non-compete agreements. Other employers may choose to narrow the type of employees they subject to non-compete agreements and to assert more narrow protective provisions, and possibly consider some type of "garden leave" approach, in which employees are paid during the term of their non-competition in some way.

This development should not lead to a panic situation until the law becomes developed before the NLRB, and the courts, or otherwise. There is a possibility that so many charges will be filed that the cases will be held in abeyance pending NLRB determination of a selected "lead" case. Such a procedure was followed a number of years ago concerning secondary boycott cases.

Another idea is to reserve the right in new employment agreements to rescind - to the extent permitted by law - payments and benefits given in consideration for a worker's non-compete promise, in the event the non-compete is required to be rescinded.

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Department of Labor’s Proposed Independent Contractor Rule: Control and Scheduling

Tue, 08 Aug 2023 17:31:38 GMT

On October 11, 2022, the Department of Labor (DOL) issued a notice of proposed rulemaking (“NPRM”) defining employee versus independent contractor status under the Fair Labor Standards Act.

Previously the way the NPRM proposed to shift the analysis of the control factor, particularly as related to legal, safety, contractual, and other similar requirements, while simultaneously putting a thumb on the scale in favor of employee status. This new post looks at the manner in which the NPRM similarly shifts considerations related to scheduling and worker flexibility.

Flexible scheduling is—and has always been—one of the main draws for independent contractors. Particularly with the growth of the gig economy, independent contractors have enjoyed an ability to accept, reject, and structure work opportunities as they see fit; to reserve the ability to pick between projects that are the most lucrative for them; and ultimately to determine when and how they perform their work. Indeed, it is this independence in structuring their work that is a core element of independent contractor status.

At odds with this defining characteristic of independent contractor status, citing a “totality-of-the-circumstances” approach, the NPRM announces a new standard that “scheduling flexibility is not necessarily indicative of independent contractor status where other aspects of control are present.”

That, however, conflates what is indicative with what is dispositive . True enough, scheduling flexibility alone cannot establish independent contractor status, and other individualized facts may limit the weight attached in the overall analysis. But the suggestion that scheduling flexibility may be afforded no weight simply because other indicia of control are present fundamentally misunderstands the purpose of a balancing test—i.e., to balance all relevant facts.

Although the NPRM overreaches in its characterization of scheduling flexibility generally, the underlying concern appears to be with “sham” flexibility—i.e., claims of flexibility that, in reality, give a worker no true autonomy.

The NPRM indicates that it would not be impressed by a putative independent contractor’s ability to dictate his or her own hours if:

The ability to pick one’s shift is offset by the limited hours provided by the employer;
The employer exerts so much control over the amount or pace of the work as to negate any meaningful scheduling flexibility;
The work is arranged in a way that makes finding other clients impossible; or
The worker can be disciplined for turning down work.

This thin veneer of “examples,” however, gives little in the way of guidance as to when any why these scenarios are truly evidence of a lack of choice. For example, a homeowner who tells his electrician that she may perform the work only between the hours of 12-3 p.m. in a day might be said to have offered the electrician only “limited hours.” But the reality is that the electrician is still able to either accept or decline this job, choose the days on which she works, and schedule the rest of her assignments in a way that optimizes for her own interests in maximizing profit and setting her own schedule.

Similarly, the NPRM provides no guidance as to when an employer has too much control over the “amount or pace” of work. Business-to-business agreements, after all, regularly dictate a scope of work and deadlines for the same, which a contractor is free to accept or reject. The NPRM provides no guidance as to what would be an arrangement of work that “makes finding other clients impossible.” And it wholly fails to account for when that arrangement is a consequence of the worker’s exercise of his own business initiative.

These examples indicate that the Department of Labor is currently proposing to evaluate “employment” from the perspective of the employer , rather than the worker . That is, it limits inquiry into whether the worker is acting in a manner that is consistent with her own economic independence.

In the end, the NPRM attempts to minimize the well-established importance of flexible scheduling to independent contractors’ status, while providing little in the way of useful guidance as to when, how, and why that minimization should occur. Thus, courts will be left to fill the gaps, while businesses face increased uncertainty as to their independent contractor workforce.

Another Bad Verdict; Werner Enters., Inc. v. Blake

Tue, 08 Aug 2023 17:16:23 GMT

As many of you may or may not know, one of my many jobs is to review court cases that involve motor carriers and independent contractors. If I see a case that is interesting, I save it in an applicable state folder so that if any NTA Member in that state who thinks they may have a problem doesn’t make the same mistake of others and gets dragged into court.

With that in mind, here is a case where a passenger vehicle lost control and crossed over the roadway in front of a tractor-trailer. One would think that the passenger vehicle even after admitting they were at fault would win this case hands down but no, the motor carrier wound up the guilty party.

I found that this case shows the depths that some plaintiff’s attorneys will go to, to spin things around and to the deepest depths to win a case against the motor carrier when their client seems to be at fault.

Every private and for-hire motor carrier in the U.S., no matter how small or large, should take note of this case. Because this is why driver qualification files, background checks & written policies play an important role in your business operations.

Werner Enters., Inc. v. Blake, 2023 WL 3513843, C.A. No. 14-18-00967 (Tex. Ct. App. May 18, 2023). In this appeal, the en banc panel of the Court of Appeals of Texas affirmed the jury verdict against a motor carrier and its driver for $116 million in a case resulting in the death of a seven-year-old and TBI/quadriplegia to a twelve-year-old, as well as other injuries to the occupants of the passenger vehicle that collided with the Werner tractor-trailer during an ice storm in December 2014.

In the Accident, the passenger vehicle lost control on ice and crossed the roadway in front of the tractor-trailer . Specifically, the appellate court found the evidence presented at trial was sufficient to establish the verdict. It found the driver of the tractor-trailer owed a duty to the plaintiffs and breached that duty by driving “more than a crawl” during the ice storm.

The court further found that the defendants failed to preserve certain objections to jury instructions presented at trial. The court affirmed the trial court’s refusal to provide a sudden emergency instruction where the court provided, as an alternative, an unavoidable accident instruction.

The court rejected appellant’s(Werner) arguments that the plaintiffs could not pursue direct liability claims of negligence against the motor carrier because it had admitted it was vicariously liable for the negligence of the driver of the vehicle, with the court noting that the “respondent superior admission rule” has not been recognized in that District at the time of the jury verdict, and moreover, even assuming it did apply, the motor carrier’s gross negligence would be enough to avoid application of the rule.

The court then found there was sufficient evidence to support the jury’s findings against the motor carrier on the direct liability claims, finding that the motor carrier placed an inexperienced and unskilled driver in a situation that was reasonably likely to result in foreseeable harm to members of the motoring public.

Specific evidence cited by the appellate court included the following:

(1) Werner actively denied [the driver] access to devices which would have conveyed relevant information concerning the weather and road conditions into which he was driving during a Winter Storm Warning while traveling at approximately 50 miles per hour on a [just-in-time “JIT”] delivery;

(2) [the driver] received the second lowest score possible on his driving exam;

(3) [ the driver] was nonetheless entrusted with a JIT run through a Winter Storm Warning without access to relevant information or a supervisor who was awake;

(4) Werner’s director of safety was unfamiliar with Werner’s practice of pairing student drivers with trainers on JIT deliveries ;

(5) it is “really important for the driver to monitor the outside air temperature … because we know once it drops below 32, that’s the condition that creates freezing water and therefore, freezing rain and black ice”; and

(6) despite this importance, [the driver] was actively and knowingly prevented from monitoring the outside air temperature. The court went on to hold that the evidence was sufficient to establish the motor carrier failed its duty to properly train the driver.

The appellate court further affirmed various evidentiary rulings made by the trial court, over the objection of defendants. Notably, there were two dissenting opinions to the majority en banc decision.

NorthAmerican Transportation Association supplies more knowledgeable information twice a week to keep America’s private and for-hire motor carriers up-to-date on matters that could affect their profit & lost report than any other association. Helping others in Safety is our business.

Maryland License Plates contain a Gambling Site

Fri, 04 Aug 2023 15:31:11 GMT

It’s a lesson that States need to be more careful about what they put on a license plate.

It's not uncommon for license plates to bear some kind of web address. Often it leads to a state government website or the local DMV. In Maryland, though, things have gone awry, with around 800,000 license plates now advertising a gambling site from the Philippines. www.starspangled200.org

As covered by Vice magazine , the issue came about when Maryland redesigned its license plates to celebrate the bicentenary of the War of 1812. The plate became standard issue in mid-2010. It was initially intended for the design to be issued until June 2015, but instead remained Maryland's standard plate until September 2016. The plate bears a design featuring the US flag, and a silhouette of Fort McHenry, along with the URL "www.starspangled200.org." This was all well and good, until recently, when the registration of the URL lapsed.

Up until late 2022, that URL led to a website with historical information on the Star-Spangled Banner National Historic Trail. However, according to ICANN records, the domain's registration lapsed sometime around September 2022, when it was registered by a new anonymous owner.

Now, the URL redirects to "globeinternational.info," which hosts a website promoting online casinos based in the Philippines. The issue first surfaced on Reddit, before later coming to the attention of state officials.

Since the plates were standard issue in Maryland for several years, there are plenty of cars in the state now essentially advertising online gambling. An official for the Department of Transportation told Vice that there are approximately 798,000 active registered plates currently bearing the War of 1812 design.

The issue may prove difficult to rectify. The URL used on the plates was registered by the War of 1812 Bicentennial Commission, not the Maryland Department of Transport. Beyond that, the domain's new owner is under no obligation to return the site. Potential solutions aren't attractive. The state could purchase back the domain, but would have to pay whatever sum the new owner demands.

Alternatively, it could reissue new plates and eat the cost of doing so.

Realistically, it's not a major issue that causes anyone great harm. However, it's a good lesson for transport officials going forward. Don't slap some random URL on a license plate unless you're confident the state will have control over it for the foreseeable future.

Brake Safety Week is scheduled for Aug. 20-26, 2023.

Tue, 01 Aug 2023 14:00:01 GMT

During this campaign, commercial motor vehicle inspectors conduct brake system inspections, primarily Level IV Inspections , on large trucks and buses throughout North America. Brake Safety Week is one of two components of CVSA’s Operation Airbrake Program.

Properly functioning brake systems are crucial to safe commercial motor vehicle operation. However, brake-related violations comprise the largest percentage of all out-of-service violations cited during roadside inspections. Improperly installed or poorly maintained brake systems can reduce the braking capacity and stopping distance of trucks and buses, which poses a serious risk to driver and public safety.

Commercial motor vehicle inspectors in Canada, Mexico, and the U.S. inspected 38,117 commercial motor vehicles during Brake Safety Week in 2022. Of the total number of commercial motor vehicles inspected, 13.3% were placed out of service for brake-related critical vehicle inspection item violations.

The other part of Operation Airbrake is an unannounced one-day brake safety enforcement initiative, which may be held at any time. More than 3.4 million brakes have been inspected since the program’s inception in 1998.

TSA Tightening Screening Rules for Air Cargo Exports

Mon, 31 Jul 2023 17:25:24 GMT

For those carriers that deal in Air Cargo, you already know that since June 30, 2021, all air cargo offered for export from the United States must be screen, regardless of whether the cargo flies on passenger or all-cargo aircraft. Because some cargo is impractical to screen (referred to as ITS cargo), the Transportation Security Administration (TSA) has allowed air forwarders and air carriers to export ITS cargo under an amendment to their security programs. However, TA recently announced that this amendment will expire for all parties on October 31, 2023.

Thereafter, ITA cargo can only be exported by air if it is accepted from a shipper that participates in the Certified Cargo Screening Program (CCSP). TSA has published guidance to shippers on joining the CCSP. Air forwarders, in particular, are advised to socialize this issue with customers who tender ITS cargo. Apart from diverting ITS cardo to other modes (which is often not feasible), TSA’s position is that those customers will need to join the CCSP by no later than October 31, 2023, a process that can take 90 – 120 days to complete.

Is Your Interstate Fleet Exposed to a Use Tax Assessment?

Tue, 11 Jul 2023 13:47:19 GMT

On March 23, 2023, the Massachusetts Department of Revenue released a Commissioner’s Directive addressing the application of Massachusetts use tax to “rolling stock.” This guidance describes rolling stock generally as tractors and trailers that are pulled by tractors. Rolling stock owned or leased for at least 12 months is deemed subject to Massachusetts use tax if it is stored or used in the state for more than 6 days during a 12-month period.

Each 12-month period is considered separately. A use tax liability can be overcome or reduced if the rolling stock was previously subjected to Massachusetts or another state’s sales or use tax (via a full or partial credit). Interstate motor carriers operating rolling stock (or other types vehicles) in Massachusetts should consider an internal fleet review for use tax liability.

The Commissioner’s Directive imposes use tax if an interstate vehicle is stored or merely operates more than six (6) days during a 12-month period in and through Massachusetts. This is an extreme position. The more typical approach taken by state tax authorities is to impose use tax if an interstate vehicle is based in that state (e.g., at a terminal).

Under this more typical approach, potential use tax audit exposure may arise on an interstate vehicle purchased, titled, and/or registered exempt from sales and use tax in one state, but is based in another state. Interstate carriers with vehicles based in multiple states should regularly review internal sales/use tax compliance to ensure exemptions ae properly claimed, and potential use tax exposure is identified and addressed.

Employers in Illinois Required to Provide Paid Leave

Tue, 11 Jul 2023 13:45:22 GMT

In less than a year from now, Illinois employers with one or more employees must provide at least forty (40) hours of paid leave on an annual basis. The new law, known as the “Illinois Paid Leave for All Workers Act”, becomes effective January 1, 2024 , and will require covered employers to allow covered employees to accrue one hour of paid leave for every 40 hours worked, capped at 40 hours per 12-month work period. Covered employees can start taking paid leave after their 90th day of employment, regardless of other employer-mandated waiting periods.

While the Act is broad, the term “covered” excludes (among others) independent contractors, individuals employed less than full time, employees covered by some union contracts, and employers subject to local paid sick leave ordinances (e.g., Chicago and Cook County). Employers can set a minimum incremental use for the time off not to exceed two hours per day and may require no more than seven (7) days’ advance notice for foreseeable leave.

Unless employers “front load” the required 40 hours on the employee’s first day of employment or the first day of the 12-month period, employees are permitted to carry over up to 40 hours of any unused paid leave, but employers will not have to provide more than 40 hours of paid leave in each 12-month period. Finally, employers will be required to post the requirement of the Act and can obtain compliant posters and notices from the Illinois Department of Labor (IDOT).

A TSA Hazmat Endorsement Security Check in Five Steps

Tue, 11 Jul 2023 13:43:29 GMT

Getting a hazmat endorsement on a commercial driver’s license takes more than just completing entry-level driver training and passing a knowledge test. Drivers seeking a hazmat endorsement also are subject to a federal background check.

State driver’s licensing agencies cannot issue, renew, upgrade to, or transfer an HME until the Transportation Security Administration determines that the individual does not pose a security risk. TSA draws its conclusions through a security threat assessment.

It can take up to 60 days for TSA to complete the required background check. You can help minimize the wait time by understanding the steps in the assessment process.

1. Confirm the Need for a Hazmat Endorsement

For the hazmat endorsement requirements, consult the Federal Motor Carrier Safety regulations, as commercial driver’s licenses are a federal requirement. Section 383.5 defines hazardous materials as “any material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.”

The key phrase in this definition is “required to be placarded.” If a hazardous material is required to be placarded, then the hazmat endorsement is also required .

There are two situations that often need clarification when it comes to the hazmat endorsement:

Transporting Class 9 materials. Class 9 materials do not require placards for domestic transportation. As a result, a hazmat endorsement is not required if the driver is transporting only Class 9 materials. Placards aren’t required; therefore, the hazmat endorsement is not required. Even if Class 9 placards are displayed, the hazmat endorsement is still not required.
Transporting diesel fuel in non-bulk packaging. Whether diesel is regulated largely depends on the type of packaging. Generally, combustible liquids such as diesel are not subject to the hazardous materials regulations when in non-bulk packaging. Therefore, when diesel is transported in non-bulk packaging (119 gallons or less capacity), placards are not required, and the hazmat endorsement is also not required.

2. Complete an Application

The security threat assessment application is submitted in one of two ways based on the state licensing agency of the driver.

A handful of states require drivers to visit the Department of Motor Vehicles for application and fingerprinting information. These states include:

Florida
Kentucky
Maryland
New York
Pennsylvania
Texas
Virginia
Wisconsin

Check with these states for additional details.

All other drivers are required to complete an application either at an enrollment center or through TSA’s website. Drivers are instructed to schedule an appointment either online or by calling (855) 347-8371. The application centers accept walk-in appointments, but those with appointments take priority.

3. Visit an Enrollment Center

When drivers visit an enrollment center, they must be prepared to:

Provide approved documents to prove identification and citizenship.
Submit fingerprints.
Pay an application fee.

Once the application is submitted, drivers can check their status online.

4. Wait on TSA’s assessment

TSA investigates the following when determining eligibility:

The driver’s citizenship or immigration status
Disqualifying crimes
Mental capacity (as determined by a court, board, commission, etc.)
Terrorist watchlists, Interpol, and other government databases

Drivers may also be ineligible due to incomplete or false application information.

If TSA finds potentially disqualifying information, it will send the driver a letter with instructions on how to proceed.

5. Follow up With the State

When a driver passes the investigation, TSA notifies the state (not the driver). The state verifies the driver’s eligibility when it issues a CDL with a hazmat endorsement. Each driver should check with his or her state licensing agency on how it handles the HME issuance process and status once TSA provides the results.

Last but not least, don’t forget if you are a NTA Member you can get access to our MEMBERS ONLY PORTAL where you will find eight (8) FREE Guides:

Hazmat Security Plan Guide
Hazmat Shipping Papers Guide
Hazmat Employer Guide
Hazmat Security Plan – Sample
Driver’s Receipt of Safety Regulations
Transportation Guide for Fireworks
Transporting Hazardous Materials
Guide for Reporting Hazmat Incidents Reports

FMCSA Wants to Broaden Crash Preventability Determination Program

Tue, 11 Jul 2023 13:40:32 GMT

The Federal Motor Carrier Safety Administration is proposing to again broaden the definition of crashes that it includes in its Crash Preventability Determination Program.

That program was developed to address industry concerns about all crashes being used in the FMCSA’s Safety Measurement System (SMS), even those that were clearly not preventable. One of the major complaints about the SMS system when the Compliance, Safety, Accountability program rolled out in 2010 was that all crashes counted against a motor carrier's scores. Why, people asked, should carriers be penalized for a crash caused by someone else running a red light, traveling the wrong direction, committing suicide by leaping from an overpass into the path of an oncoming truck, or numerous other scenarios?

The Crash Preventability Determination Program has been in operation since May 2020. Currently it reviews 16 specific crash types and modifies information in the SMS to distinguish not-preventable crashes. The existing program was an expansion of the agency’s previous demonstration program that reviewed eight crash types.

In a notice and request for comments published in the Federal Register, FMCSA proposes modifying existing crash types to broaden eligibility, removing the distinction between direct and indirect strikes, and differentiating some types for improved reporting and use of the data to identify ways to reduce crashes involving non-motorists.

In addition, FMCSA proposes that four new crash types be included in the program.

These proposed changes are expected to double the size of the current program and provide more data allowing the agency to analyze the effects of a carrier’s not-preventable crashes on its overall safety.

According to FMCSA data, between May 1, 2020, and December 30, 2022, the industry has submitted nearly 40,000 preventability determination requests through the agency’s DataQs system. Approximately 72.5% of those requests were “eligible,” meaning they fit within the 16 crash types identified by the agency. Of the eligible crashes submitted, 96% were deemed non-preventable on the part of the commercial driver.

More Crash Types

FMCSA wants to test the following four additional crash types:

CMV was struck on the side by a motorist operating in the same direction. Currently, the crash type is limited to side strikes at the very rear of the vehicle (e.g., 5:00 and 7:00 points of impact).
CMV was struck because another motorist was entering the roadway from a private driveway or parking lot.
CMV was struck because another motorist lost control of their vehicle. FMCSA reviewed many police accident reports that included this information but were ineligible for the program under the current crash types.
Any other type of crash involving a CMV where a video demonstrates the
sequence of events of the crash. FMCSA believes that the submission of videos could allow it to review crashes that are not in the 21 other types

If the FMCSA makes these proposed changes, the full list of the eligible crash types for the CPDP would be:

CMV was struck in the rear by a motorist
CMV was struck on the side at the rear by a motorist
CMV was struck while legally stopped at a traffic control device or parked, including while the vehicle was unattended
CMV was struck because another motorist was driving in the wrong direction
CMV was struck because another motorist was making a U-turn or illegal turn
CMV was struck because another motorist did not stop or slow in traffic.
CMV was struck because another motorist failed to stop at a traffic control device
CMV was struck because another individual was under the influence (or related violation, such as operating while intoxicated), according to the legal standard of the jurisdiction where the crash occurred
CMV was struck because another motorist experienced a medical issue which contributed to the crash
CMV was struck because another motorist fell asleep
CMV was struck because another motorist was distracted (e.g., cellphone, GPS, passengers, other)
CMV was struck by cargo or equipment from another vehicle, or debris (e.g., fallen rock, fallen trees, unidentifiable items in the road);
CMV crash was a result of an infrastructure failure
CMV struck an animal
CMV struck an individual committing or attempting to commit suicide
CMV was struck on the side by a motorist operating in the same direction as CMV
CMV was struck because another motorist was entering the roadway from a private driveway or parking lot
CMV was struck because another motorist lost control of the vehicle
CMV was involved in a crash with a non-motorist
CMV was involved in a crash type that seldom occurs and does not meet another eligible crash type (e.g., being struck by an airplane or skydiver or being struck by a deceased driver in another vehicle)
Any other type of crash where a CMV was involved and a video demonstrates the sequence of events of the crash.

The Carmack Amendment - What You Need To Know About Cargo Claims

Tue, 11 Jul 2023 13:37:22 GMT

The Carmack Amendment is a law applied to motor carriers by Congress in 1935. It was adopted to achieve uniformity in rules governing interstate shipment.

The Carmack Amendment spells out rights, duties and liabilities of shippers and carriers when it comes to cargo loss. Rail and motor carriers are governed by the Carmack Amendment.

The Carmack Amendment states that claimants have a minimum of 9 months from the date of delivery to file a freight claim and states that motor or rail carriers are liable for the full loss. It applies to shippers and carriers involved with interstate shipments of all commodities.

Plaintiff’s lawyers seeking recovery on behalf of their clients for cargo damage or loss incurred as a result of the interstate shipment of goods often file complaints alleging state law claims such as breach of contract, negligence and fraud. What Plaintiff’s counsel does not know is that such state law claims are preempted by a federal law known as the Carmack Amendment .

The Carmack Amendment is a uniform national liability system for interstate carriers which provides certainty to both carrier and shipper. It specifically allows a carrier to require that all claims for loss or damage by a shipper be made in writing within nine months from the date of the loss. It also allows a carrier to limit its liability if all prerequisites have been met.

The Carmack Amendment Preempts State Law Claims

The Carmack Amendment is presently codified at 49 U.S.C. Section 14706 et seq. The courts have uniformly held that the Carmack Amendment preempts all state and common law claims and provides the sole and exclusive remedy to shippers for loss or damage in interstate transit. Hughes Aircraft v. North American Van Lines , 970 F.2d 609, 613 (9th Cir. 1992). The purpose of the Carmack Amendment is to provide

“. . .a uniform system of carrier liability that would provide certainty to both carrier and shipper by enabling the carrier to asses its risk and predict its potential liability for damages.” The preemptive effect of the Carmack Amendment also applies to claims of damage or loss relating to storage and other services rendered by interstate carriers. Margetson v. United Van Lines, Inc. , 785 F.Supp. 917, 919 (D.M. 1991). Causes of action for negligence, breach of insurance contract, breach of contract of carriage, conversion, intentional misrepresentation, negligent misrepresentation, and negligent infliction of emotional distress are all preempted by the Carmack Amendment.

How does Carmack work?

The Carmack Amendment holds the carrier liable for damages to the goods it transported, without proof of negligence, unless it can prove it was not negligent and/or one of the exceptions to liability applies.

Under the Carmack Amendment to hold a motor carrier liable for cargo damage, the shipper must prove that:

a) The goods were in good condition when given to the shipper

b) The goods were damaged when delivered (or weren’t delivered)

c) The amount of damages

There are five exceptions outlined in the Carmack Amendment that a motor carrier can claim to deny liability for cargo damage:

1) an Act of God – weather, a tornado, flooding, acute driver illness

2) The public enemy

3) Act or Default of Shipper

4) Public Authority (the government)

5) The inherent vice or nature of the goods transported ( my favorite )

The Carmack Amendment limits the motor carrier’s liability to the actual loss or injury to the property. Courts have generally interpreted this to be the difference between the market value of the property in which it should have arrived at the destination, less the market value of the actual condition in which it arrives.

Hence there is an implied duty of the customer to mitigate its damages: they cannot simply sit back idly and do nothing. They have to make the most of the damaged cargo. This is an important defense carriers need to be aware of.

A Carrier May Require That Claims Be Made In Writing Within Nine Months .

Given that the Carmack Amendment provides a shipper with the sole remedy for interstate moves, all conditions precedent to bring a civil action under the Carmack Amendment must be satisfied. In particular, a carrier may, by contract, require that a claim be made to it by a shipper within nine (9) months of the shipment and that a civil action be instituted within two (2) years after the denial of such a claim. 49 U.S.C. Section 14706(e) .

The nine (9) month limitation is a condition precedent to bringing a civil action. Consolidated Rail Corp. v. Primary Industries Corp., 868 F.Supp. 566, 577 (S. D. NY 1994). A cause of action will simply not accrue absent strict compliance with the claims limitation.

The purpose of a claim period is to provide the carrier with knowledge that the shipper will be seeking reimbursement. Taisho Marine & Fire Insurance Co. v. Vessel Gladiolus, 762 F.2d 1364 (9th Cir. 1985). There, the court held that the carrier’s actual knowledge of damage to the property did not negate the requirement that written notice be given within the nine (9) month period.

The court granted the carrier’s motion for summary judgment on the ground that the shipper did not comply with the requirement that it file a written claim within 9 months. The main policy behind the nine (9) months claim period is to allow the carrier the chance to investigate the claim so as to protect its interest.

Carriers must incorporate these time frames (or their own more permissive standards) into the bill of lading or contract of carriage.

In a claim to carriers, the Carmack Amendment specifies that shippers must:

1) Use written or electronic communication

2) Include sufficient facts to identify the shipment or property involved

3) Assert liability against the carrier for loss, damage or delay

4) Demand a specified or determinable amount of money

Motor carriers can limit their liability under the Carmack Amendment .

Under the Carmack Amendment, a carrier can adopt a tariff that is applied to shipping rates based on the weight of goods, mileage required to transport, or the value of the goods. Shippers may agree to a lower shipping rate if they agree to limit the carrier’s liability for the cargo. The Carmack Amendment provides that a carrier may limit its liability “to a value established by written declaration of the shipper or by a written agreement.” 49 U.S.C. §14706(f).

In order to effectively limit its liability, a carrier must:

Maintain a tariff in compliance with the requirements of the Interstate Commerce Commission;
Give the shipper a reasonable opportunity to choose between two or more levels of liability;
Obtain the shipper’s agreement as to its choice of carrier liability limit; and,
Issue a bill of lading prior to moving the shipment that reflects any such agreement.

Although the filing of a tariff alone will not limit a carrier’s liability, the above requirements are satisfied when a shipper is given a “reasonable opportunity” to accept or deny the carrier’s proposed limitation. Hughes Aircraft, 970 F.2d at 612. A “reasonable opportunity” means that the shipper had both reasonable notice of the liability limitation and the opportunity to obtain information necessary to make a deliberate and informed choice.

In Schultz v. Auld , 848 F.Supp. 1497, 1505 (Idaho 1993), the court held that a signature on the contract evidencing an acknowledgment and receipt of the contract and its terms was sufficient evidence of a reasonable opportunity to select among liability limitations. In fact, one court has gone so far as to say that a signature on the bill of lading is not actually required in order to limit the shipper’s liability, but the shipper’s mere acceptance of the contract is sufficient. Johnson v. Bekins Van Lines Company , 808 F.Supp. 545, 548 (E.D. Tex. 1992).

How should motor carriers respond to a cargo claim?

Motor carriers essentially have three choices when faced with a claim that they caused damage to cargo. They can either pay the full value of the cargo claim by the shipper, claim one of the five “outs” listed above, or pay under a proper limitation of liability.

Update. Carmack does not contain the 9-month provision to file claim requirement. That is a contractual limit in the terms and conditions (“t&c”) of a bill of lading. The bill of lading t&c are not prescribed in the FMCSA regulations so it is up to every motor carrier and forwarder to have this term in the bill of lading AND a tariff.

The NMF has a form bill of lading and t&c and participants in the NMF - series tariffs can use the form and the t&c. This is highly recommended.

Many shippers will give the trucker their bill of lading and the t&c if there are any on the reverse side do not favor the motor carrier.

Pre-loaded trailers: Tips for avoiding liability issues

Tue, 11 Jul 2023 13:29:19 GMT

The following subject was just brought to my attention when I received a call from a trucker in the Midwest that prompted me to resurrect this article.

Apparently, he picked up a load that was already loaded from a shipper. The trailer had no seal. He delivered the load and had a clear signature. Thirty days later, he received a claim for $50,000 and he needed help. He said he had been in business for five (5) years and had never heard of SLC and doesn’t carry any standard Bills of lading with him nor does he carry some spare seals.

I asked him what does he think his defense will be – there was sheer silence.

I told him he should have never pulled that trailer until he put a seal on it and recorded the seal on the Bill of Lading. This is simple basics. I wished him good luck in that he did everything wrong and to look for an attorney.

This is a common problem carriers face is liability for damages on loads when a driver is not allowed on the dock to observe the loading of a shipment, or picks up a loaded trailer that already has been sealed. This situation is becoming much more prevalent due to structural changes in the trucking industry.

Increasingly, to prevent cargo damage, more product is shrink-wrapped prior to loading, and that makes piece count impossible, he noted. Driver hours-of-service changes have led to more spotting of trailers that are loaded and unloaded after delivery, without drivers being present.

Because of worker's comp claims, many warehouses are refusing to allow drivers to be present on freight docks when a shipment is loaded or unloaded. Moreover, the loading of shipments by pallet jacks and forklifts often precludes accurate count or confirmation of loading practices.

Additionally, the shipper, not the truck driver, is most familiar with fragility of the product and best loading procedures. As a result of all this shipper load and count should be the norm for truckload shipments.

Shipper responsibility

The matter of shipper load and count (SLC) is addressed under the Bill of Lading Act , within Statue 49 U.S.C. §80113, which states: “A common carrier issuing a bill of lading is not liable for non-receipt, misdescription or improper loading when (1) the goods are loaded by the shipper, and (2) the bill contains the words ‘shipper's weight, load, and count,’ or words of the same meaning indicating the shipper loaded the goods.”

Basically, the statue says that a carrier can't be responsible for a load's count and condition if a driver can't count the load or check the condition, said Seaton. “The presumption is that the load was in good order at time of pick-up, so the carrier is not liable for damage due to improper loading or shortages.”

In such a situation, it is very important that the driver put the words “shipper load and count,” or something to that effect, on the bill of lading before signing, he said. There also needs to be a chain of custody for the seal, showing that it has remained intact until removed by the consignee or under the consignee's witness.

If the term “shipper load and count” is omitted, it doesn't impose liability as a matter of law on the carrier for damage in transit, noted Seaton. However, it does shift the burden to the carrier to show that the damage was due to the fault of the shipper.

Trailer seals

While the statue doesn't mention the term “under seal,” the establishment of delivery with the seal intact is important to the shipper load and count statute, he explained, because continuation of the shipment under seal makes it more difficult for the shipper to reverse the presumption and show that the carrier was negligent.

That's because a seal eliminates the likelihood of pilferage, theft, or inadvertent shortage at a cross-dock, said Seaton. Plus, the possibility of damage due to top loading, rehandling, or tampering with cargo is removed.

Where SLC is listed on bill of lading, and the shipment is delivered with seal intact, the shipper is left to show upset in transit to overcome the presumption that the loss or damage was not the result of inherent vice, or an act or omission of the shipper in loading and counting the shipment.

Truckload carriers are advised to use, by contract and by tariff, the following provision or something similar: “Shipper Load And Count - All shipments shall be loaded by the consignor and unloaded by the consignee. Carrier's drivers are instructed to sign bills of lading as shipper load and count or ‘SLC.’ Inadvertent omission of this notation shall not result in a presumption of carrier liability for shortage or damage (in the absence of upset or accident) where the driver was either not present or not allowed to observe the loading and unloading.”

Truck drivers should be instructed to place SLC on every bill of lading in which they were denied the opportunity to count or observe the loading of freight. Why? Because many warehousemen break warehouse shortage over the carrier's back.

Seal integrity

Since 9/11, seal integrity has become even more important, particularly for the transportation of foodstuffs, for fear of contamination, especially on stolen cargo that is covered.

Shippers have an absolute duty to accept a shipment unless practically worthless. When one or two pallets have been pilfered from a 20-pallet shipment, for example, the shipper should accept the remaining 18 pallets.

Yet, shippers involved in the foodstuff supply chain wrongfully believe the USDA requires destruction of an entire truckload of product when seal integrity is compromised due to the fear of an act of terrorism.

There was a situation where a carrier delivered a load of pickles sealed in glass jars, packaged in boxes, and shrink-wrapped onto pallets on a trailer that had a broken seal. The freight clearly was intact, none of the pallets had been moved, the shrink wrap was not cut, the boxes were not open, and the lids were still on each pickle jar.

Nevertheless, the consignee rejected the load, and the shipper - out of fear of product liability or possible terrorist contamination - destroyed it, and demanded that the carrier pay for the unmitigated loss.

There currently is no federal mandate that foodstuff shipments be delivered with the seal intact, or that the absence of a seal requires destruction or quarantine of the goods. What's more, there has been no precedent for concluding that the compromising of seal integrity is indicative of anything other than petty thieves who could not fence the foodstuffs they discovered.”

To help carriers avoid problems, here are some suggestions:

Insist on shipper load and count.
Establish supply chain/seal integrity procedures, such as: Photographing shipments at time of loading; taking pictures of all shipments delivered short; establishing seal integrity records, including affidavits from drivers when seals are broken by police for inspection, etc.
Inspect wrongfully rejected product, including sampling and taking pictures of undisturbed containers, cartons, bottles and jars.
Use technology, such as trailer tracking and RFID (radio frequency identification) scanning, where appropriate.

On Damages:

Never let the receiving party state the exception taken on any damage. It is not their freight until they sign for it.
Never list “5 boxes damaged” Always itemize everything i.e. 5 cartons slightly crushed on the outside said to contain a certain amount of product which is intact. You get the picture.
Drivers should always contact their superiors for the exact wording for the exception.
Most drivers have cell phones – take pictures

Freight Claims 101 - How it Works & How to Fight it

Wed, 05 Jul 2023 19:43:13 GMT

If you have ever shipped something to someone and had it damaged en route, you know the pain that is a freight claim. On the other hand, if you own a shipping or freight company, then you definitely know the financial impact freight claims can make on your business. What is a freight claim? How does it work? How can I fight a freight claim? Let’s find out.

How do freight claims work?

A freight claim is a breach of contract claim that the shipper or consignee can make against the transporter or motor carrier for damage, loss, or shortage. The legal concept is for the shipper to be “made whole” or to be put into the same place he/she would have been, had the shipment occurred as planned.

That sounds really complicated and kind of vague. It makes me think of attorneys sitting around, smoking cigars and looking for ways to bill by the syllable.

Let’s see if we can clarify this concept enough that a law degree isn’t required to understand the ins and outs involved in freight claims.

What is a Freight Claim?

What exactly is a freight claim? We need to understand the concept before we can discuss how it works or how to fight it.

My friends at Merriam-Webster Dictionary have provided the following definition for the term freight claim. It is “a demand by a shipper or consignee upon a carrier (as for reimbursement of an overcharge or for loss or damage to goods accepted for transportation)”.

Other terms for freight claim include cargo claim, transportation claim, shipping claim or loss, and damage claim.

The legal concept behind a freight claim is to make the claimant “whole” again. That is to say, to put them in the position they would have been in had the loss never have occurred. Generally, speaking, that would be replacement costs on goods lost or damaged or reimbursement of excessive fees charged.

Understand, a freight claim is not based on negligence on the part of the carrier. A freight claim is based on breach of contract law . The contract between the transporter and the claimant reflects that the transporter will transport the goods, of whatever type, from location A to location B in the same condition in which they were put into the transporter’s care.

Should damage occur to the goods or part of the goods becomes lost or stolen, this breaches the foundation of the contract.

In order for a claim to be filed, the shipper or consignee must establish the following three (3) elements .

That the shipment was delivered to the carrier in good condition.
That delivery to the consignee was short goods, had goods damaged or was delivered unreasonably late.
The amount of damages incurred.

In order to win the claim, the carrier then must be able to show that they were not negligent AND one of the following five (5) affirmative defenses must apply.

Act of God
Act of the Public Enemy
Act of the Shipper
Act of the Public Authority
Inherent nature or vice of the goods themselves.

We will discuss this in much further detail later in this article.

What Type of Freight Claims Are There?

There are a myriad of freight claims out there. In this section, we’re going to look at the six (6) most common types of freight claims.

Damage Claim

This is obvious, visible damage to the goods or the containers that hold the goods. For the claim to be considered valid, the damage should be noted on the proof of delivery document, bill of lading or other official documentation.

Typically, this type of claim needs to be filed within 9 months of the occurrence.

With visible damage, the invoice for the freight is paid upfront and then the loss is reimbursed as part of the claim settlement.

Should this type of loss occur, it is in the interest of all parties for photographs to be taken, wherever possible

Concealed Damage Claim

This type of damage is much more difficult to identify and more difficult for a settlement to occur. Concealed damage is damage to the goods that aren’t obvious at the time of delivery.

Perhaps the container held a fragile vase. The container was dropped or bumped into a wall. There is no visible damage to the container, but the vase inside is cracked.

As there is no visible damage to the container, there would be no notation on the delivery documents.

A claim like this should be filed within 5 days, as that is the window most freight carriers require. Photographs of the damage, including the undamaged packaging, are warranted.

Loss Claim

This claim is a little bit tricky. A loss is when a delivery shows it was made, but the recipient didn’t receive it.

An example. I recently placed a moderate-sized purchase from a vendor in Florida. I dutifully tracked the shipment to the day it stated it was delivered.

Nothing.

I contacted the shipper, who verified my address by phone. Turns out the bill of lading had a typographical error and the delivery was made to a wrong address. No signature was required on the packaging and the person who received my stuff denied the delivery.

A loss claim was filed, and after about 6 weeks, I did receive my order, which had been re-shipped.

Shortage Claim

This type of claim is exactly what it sounds like. You purchased 8 pallets of widgets. When delivery is made, the bill of lading shows 8 pallets of widgets. The truck has 6 pallets of widgets. Oops, someone lost some widgets.

If this occurs, note the correct number of widgets pallets on the bill of lading or delivery documents before signing. The driver will take a copy of that documentation with him, which will make the transportation company aware of the discrepancy. Have the driver sign the document with you, acknowledging the shortage of widgets.

You still need to contact the carrier and notify them of the 2-pallet loss, so they can begin their investigation and try to mitigate the loss. Perhaps the other 2 pallets are in the warehouse or erroneously put on another truck.

Concealed Shortage Claim

I’ll bet you have no idea what this is. Yeah, I know it’s pretty obvious, but let’s go over the example anyway.

Back to your widgets. You ordered 8 pallets. You received 8 pallets. 7 of the pallets have 8 boxes and 1 pallet, unseen due to the pallet wrapping, holds only 6 boxes. You now have a concealed shortage of 2 boxes of widgets.

This is a very difficult loss to prove or disprove. Most carriers offer a 5-day window for this type of claim, much like the concealed damage claim. Again, photographs are helpful, but this is a tough claim to win.

Refused Claim

This is a bit unusual, but let’s look at it anyway. If a shipment is delivered, but is the wrong merchandise, wrong address, damaged or whatever, the receiver can refuse to accept the shipment. This could result in a “refused” claim.

In that case, the transporter driver will take it back to his/her terminal and the shipper will be contacted. The shipper then has the option of deciding what to do with the refused merchandise.

The shipper can have the merchandise returned to them, sent to a different address or disposed of. What decision is made will depend primarily on the goods in question. Whether the shipping invoice is ever paid or is negated will be decided in the refused claim between shipper and transporter and will generally fall on what the shipper decides to do with the goods.

How to Fight a Freight Claim .

There are two participants in every disagreement. We are going to look at both sides of this fight and show the best methods to press your side of the freight claim, whether you’re the shipper, consignee or the carrier.

Shipper or Consignee

If you are a shipper or a consignee that has experienced a loss, here are 8 tips to help you get paid and get paid faster.

Document the damage. Immediately note any shortage or damage on the bill of lading, preferably before the delivery driver has left. Though this does not guarantee resolution, it goes a long way with the carrier to prove the loss. Use as much detail as possible, including photographs if you have a smartphone available. Inform the carrier of the situation as quickly as possible. The carrier has the right to mitigate the loss, meaning the right to try to recover any cost associated with it. Failing to give the carrier enough time to do so can cause a claim to be denied. Carrier mitigation options can include salvage, taking ownership, re-delivery or return of the goods involved.
Keep the freight . Never discard the freight, even when damaged. Keep it available for inspection by the carrier. Again, that carrier has the right to mitigate the loss. Tough to do if you’ve discarded the damaged goods. There are a few instances where the carrier’s right to mitigate is negated. Those include fresh foods or hazardous materials. Even in those situations, give the carrier every opportunity to reduce their loss. Notify them immediately.
Carmack Amendment. The Carmack Amendment is a law applied to motor carriers in 1935 by Congress. This amendment governs the rules in interstate shipment and spells out the duties, rights, and liabilities of shippers and carriers. Carmack requires that all parties to a claim mitigate in good faith. That includes the shipper, carrier, and consignee.
Pay the freight charges. You may be tempted to withhold payment on an invoice that involves damaged goods. Don’t. Those same regulations that state the timelines involved to establish the claim also state the claim must have a paid invoice attached. Nothing like shooting yourself in the foot simply because you’re irritated.
Understand your Bill of Lading . The Bill of Lading (BOL, FOB or COD) is the governing contract between the parties in lieu of any other form of contract. When shipments cross state lines, Carmack Amendment comes into play. The Bill of Lading also determines what rules will be applied. In interstate or international shipping, the originating location of the bill of lading has jurisdiction. Sound confusing? A shipment from Canada crosses the United States and is delivered in Mexico. A claim is filed. Each country has its own timelines and methods of managing the claim. Who has jurisdiction? Based on the origination of the bill of lading in Canada, you will follow Canadian guidelines.
Timeliness . Any claim needs to be filed ASAP. Under Carmack, for American carriers, a carrier must acknowledge a filed claim within 30 days. Final disposition of the claim must be provided in writing within 90 days of filing. The claimant has 2 years and 1 day to dispute the disposition. Did you see where I said how long you have to file? No? Because I didn’t. Carmack does not specify a timeframe. It does state they cannot enforce a time limit of less than 9 months . However, it is industry standard for a 9-month window to file that claim and is, in fact, written into most common carrier contracts. Those are American timeframes. Canada originated bills of lading offer a claim window of 60 days from delivery or 9 months in the event a delivery is not made.
Know the Maximum Freight Claims Liability Amount . Just like timeframes, each country has their own maximum liability amount per freight claim. In Mexico originating bills of lading, the maximum freight claim liability amount is 2.8 U.S. cents per pound. Canadian originating bills of lading have a maximum freight claim liability amount of $2.00 CAN per pound. The United States does not have a per-pound maximum liability amount. In the U.S., the carrier is liable for the actual value of the shipment, unless other agreements have been made with the shipper. But many carriers limit their liability through contracts.
Profit . Very important, please pay attention. YOU CANNOT PROFIT FROM FREIGHT CLAIMS. I hope I made this clear. This gets really complicated and the value is determined, in part, by ownership of the goods when the loss occurs. If a manufacturer ships goods to a distributor and the goods are damaged in transit, the party that “holds title” to the goods during that time frame will determine if the value is based on manufacturing costs or purchase costs. If the manufacturer is determined to hold the title, they are only entitled to the cost of manufacturing, not the profit that they would have made on the sale. Clear as mud, right?

Motor Carrier

If you are the carrier or transporter of goods and a freight claim has been made against your company, how can you fight it? There are a few options. Under the Carmack Amendment, there are five (5) liability exceptions. Understand, the burden of proof that one of these exceptions applies, unfortunately, falls on you.

Act of God . This is a significant, unexpected event, that leads directly to the loss in question. Example? A tornado in Kansas blew over the trailer containing television sets. All sets were damaged. Another example would be the driver having a heart attack while operating the vehicle. It is important to note that the guideline here comes from Standard Brands, Inc. vs. Nippon Yusen, where the decision states that the carrier may be held liable if they “failed to act as a reasonable prudent person would under the circumstances and failed to take reasonable available means to avoid or minimize the loss resulting therefrom.” If there have been 5 days of hurricane warnings in the area and an order to evacuate, damage incurred during that hurricane would not meet the Act of God criteria as there was adequate time to mitigate the damage and minimize the loss.
Public Enemy or Act of War . This is pretty straight forward. However, do not misunderstand the words “Public Enemy”. We’re not talking about the FBI Public Enemy list or a Mafia hit. We’re talking about governmental enemies. How a terrorism situation, particularly a domestic terrorism situation would fall into this category is still a big question. I’m sure future case law will address this.
Act or Default of Shipper. If it can be shown that the damage that occurred was the fault of the shipper rather than the carrier, this exception can be utilized. Perhaps the shipper packaged the goods improperly . Maybe they loaded the trailer and the load was not done correctly. These are the sort of shipper acts that could qualify. Errors in product provided can also fall under this exception, as well as errors in the way the contents of the load are described on the bill of lading.
Public Authority . If the cargo damage is the result of a public authority (translate to government), the carrier may not be liable. Examples would include quarantine, road closures, product recall or trade embargoes.
Inherent Vice . This sounds fun. This relates to goods that are naturally subject to breakdown or decay with the elapse of time. Examples include cheese, fruits, vegetables, dairy or tobacco. The carrier must be able to show that the inherently unstable aspect of the cargo caused the damage, not negligent handling on their own part.

Freight Insurance vs Liability Insurance

The two sound a lot alike to the uninformed ear, but they are very different, and we need to look at each individually to get a real feel for what is covered and by whom.

Liability Insurance

If you’re a carrier or a logistics person, you already know what liability insurance is. If not, prepare for a tutorial.

Liability insurance is purchased by the carrier. It covers, to a limited degree, the liability they face in the event of a successful cargo or freight claim. Coverage is determined by the carrier and varies depending on commodity or freight class of the goods. It is generally based on a specific dollar figure per pound of freight, much like the Canadian and Mexican exposure limits I discussed previously.

Liability insurance is an integral part of every shipping contract executed. In those contracts, the liability limitations are generally clearly spelled out, if anyone takes the time to read them.

The carrier’s liability is capped at those stated limits.

For the liability insurance to come into play, the following conditions must be met.

Claim must be filed within 9 months of delivery.
Delivery documents must note damage OR, if damage concealed, the carrier must be notified immediately of loss.
Proof of value and proof of loss must be provided.
Carrier must acknowledge the claim within 30 days and respond within 120.
The shipper/consignee must show carrier negligence, not their own, caused the loss.

Freight Insurance

Freight insurance, on the other hand, is purchased by the shipper or consignee, NOT by the carrier. It is an additional charge based on the value of the goods, rather than the weight of the goods.

If the value is higher than the weight, cell phones, for example, the value of the freight insurance will be substantially higher than the liability insurance would be.

Additionally, a claim on freight insurance has a much easier process to complete should a loss occur.

Proof of value and proof of loss must be provided.
Claims are usually paid within 30 days.
There is no requirement to prove carrier negligence.

Clearly, freight insurance could well be the seller’s best friend in the event of freight claims or loss. An example may be in order to outline the differences in a more concrete manner.

You are shipping cell phones from Mexico City to San Francisco. Each phone is worth $300. A box of phones contains 10 phones, for a value of $3,000. You are shipping 10 boxes, for a cargo value of $30,000. Each box weighs 20 pounds.

The carrier’s liability insurance is capped at $10 per pound. You have 20 pounds at $10 each, for a total of $200 per box, with your 10 boxes, the liability insurance caps at $2,000.

Who covers the balance of the $28,000? Hope there was freight insurance involved.

Remember, the bill of lading originated in Mexico, so the freight claims fall under Mexican jurisdiction and is subject to their liability limitations.

Final Thoughts

Shipping goods is a complicated logistical nightmare. Timing, delays, costs, and yes, freight claims are all a part of the process.

Managing those claims, whether as a shipper, consignee or carrier, depends on paying attention to the details. Working in tandem with all involved to reduce or mitigate any loss suffered by any party.

No carrier goes out for the day with the intent to destroy the goods they are carrying. No driver intentionally crashes the truck or runs the pallet over the edge of the dock. However, sometimes stuff happens.

That is why liability insurance exists and that is why carrier’s pay for it. And it isn’t cheap.

However, some level of responsibility for covering the risk of loss does fall on the shipper and/or consignee, as well.

If you have a contractual arrangement with a carrier, READ THE CONTRACT. Make certain you understand the financial limits of their liability coverage and, if it is inadequate, buy freight insurance. It’s your investment and your goods, protect them.

When the worst happens and a loss occurs, all parties should try to mitigate the loss. This is so fundamentally the right thing to do that it is an actual step in the claim process. Failure to attempt to mitigate is enough to have a claim denied or substantially reduced.

If you are a shipper or consignee and a loss occurs, think for just a minute what information you would need if you were the shipper and PROVIDE IT. You can’t seriously expect them to cover a claim with no evidence of loss, can you? Take those pictures, notate that bill of lading, inform them so that they may begin that mitigation process.

Be cooperative. In business and society, there is a tendency to have an us vs. them mentality. There is no need in this arena. The shipper, carrier and consignee are all partners with the same end goal. They all want the goods moved from the shipper to the consignee in good condition, on time and as ordered. That’s the nature of the business.

When that “something” happens, remember they are still your partner. By acting in a professional and business-like fashion, reputations can be enhanced, and the business partnership strengthened. Failure to act professionally will damage that partnership beyond repair.

Freight claims are a pain for everyone involved, yet they cannot be avoided. They can, however, be managed with professionalism and serve as a conduit of respect between the parties involved.

Help Stop Speed Ticketing Cameras in California

Wed, 05 Jul 2023 18:55:35 GMT

Some of you may not know that I am also a lifetime member of the National Motorists Association. And as you all know, whatever starts in California spreads like a virus across the United States. Take for example, the AB5 or also known as the A B C rule that makes it almost impossible to utilize the services of Independent Contractors or the California Air Resources Board (CARB) making it impossible for you to keep your trucks.

I know a lot of you really hate California for all this, I can tell by all the one finger salutes I get in some emails. Well now is the time to throw the gauntlet on the ground and stamp this virus out before it spreads to your state. Tell the current administration that you have had enough. Just be sure to sign the petition .

Sign the petition to stop speed cameras in California . Assembly Bill 645 by Assemblymember Laura Friedman (Glendale/Los Angeles) would allow the use of speed ticketing cameras in LA and five other cities. If this bill becomes law, eventually the entire state will be overrun with ticketing cameras issuing hundreds of millions of dollars in tickets to unsuspecting motorists. This is the fifth or sixth iteration of this bill which we have previously scrapped. Unfortunately, this year it has a much better chance of passing. It already passed the Assembly and is currently being heard in the Senate. Just a few more votes will be taken before it goes to the Governor. We need your voice to tell California legislators – NO speed cameras in California!

AB-645 would authorize up to 125 ticketing cameras in LA for a "pilot program." Under LA’s reviled red light camera program, the city deployed cameras at 60 locations and issued over 60,000 tickets per year. With 125 speed cameras, the number of tickets that will be issued in LA alone would number in the hundreds of thousands, and fines would total in the millions.
How bad could it be? In the city of Baltimore, residents were issued 432,836 speed camera tickets from 144 cameras in 2021. In the city of Chicago, which deploys about 160-speed cameras, residents were issued 2.81 million citations in 2021. That’s one ticket every 12 seconds and more automated tickets in one year than there are residents in the entire city, costing residents $89 million. In addition to the fines and add-on penalties, drivers are often subjected to an average 21% increase in insurance rates when these tickets are issued.
The bill allows the cities to keep 100% of the revenue as long as they use the money to install the government’s desired roadway obstacles to driving, like road diets and bike lanes.
AB-645 makes the vehicle owner responsible for the ticket and only provides a photo of the vehicle license plate. The ticket will be heard in an “administrative hearing,” much like parking tickets, with no due process and little to no ability to fight the ticket.
The ticket would be prima facie evidence of the violation, meaning you are assumed to be guilty and must prove your innocence. The burden of proof would fall on the defendant, not the city, to prove their case.
Most all legal rights afforded to defendants in traffic court would be eliminated including your right to face your accuser, right to discovery, right to subpoena witnesses, etc. The standard of proof would be “preponderance of the evidence” (more likely than not) rather than the higher standard of “beyond a reasonable doubt” which is currently used in traffic court.
California’s speed trap law protections are eliminated with camera-issued tickets.
AB-645 specifically authorizes the cameras to be used on roadways designated as a “safety corridor” where previous legislation now allows cities to reduce the speed limit by up to 12 mph below the operating speed of the roadway as measured by the 85th percentile of vehicle speeds. AB-645 allows ticketing starting at 11 mph over the speed limit, so drivers traveling below the operational speed of the road based on how it was designed will be subject to ticketing. This alone will result in up to 90% of drivers passing the cameras being cited, resulting in hundreds of thousands of tickets and millions of dollars in fines issued.
AB-645 allows the use of speed cameras for millions of dollars in fines to times when children are going to and leaving school. The cameras would be allowed to run 24/7 including weekends and late nights, ticketing drivers when no one is around.
The bill is opposed by law enforcement groups (PORAC), union groups (Teamsters), motorist groups, motorcycle groups, independent truckers, and many social justice groups (ACLU, etc.). The fact that so many different groups that are barely on speaking terms with each other oppose this bill should tell you how toxic it is.

Click here to sign the petition to stop speed cameras in California or click on the button below.

New Proposed Rule for Brokers

Thu, 22 Jun 2023 13:53:52 GMT

Earlier this year, the Federal Motor Carrier Safety Administration published a proposed rule that would expand the financial security requirements for freight brokers and forwarders, as well as increase penalties if those parties fail to comply with provisions. The rule impacts bonds or trusts that are required to provide financial security to trucking carriers and shippers.

This rule would fall under the Moving Ahead for Progress in the 21st Century Act (MAP-21), a 2012 law that increased the financial security requirement for freight brokers and established a financial security requirement for freight forwarders for the first time.

How Existing Financial Security Requirements for Freight Brokers and Forwarders Work

Under existing rules, freight brokers and freight forwarders must provide evidence of financial responsibility before they can obtain operating licenses. They must either post a $75,000 BMC-84 bond or deposit $75,000 in a BMC-85 trust. Since this is a condition of licensing, prospective brokers and forwarders can't obtain licenses without first either posting a bond or opening a $75,000 BMC-85 trust. Brokers and forwarders must also maintain their surety bonds or trusts and renew them every year to keep their licenses in good standing.

Most freight brokers and forwarders opt to post $75,000 BMC-84 bonds instead of opening trusts. This is because depositing $75,000 in a trust means that the broker or forwarder won't be able to access the funds to use for other operating needs. With a bond, they can instead post a small percentage of the required amount based on their credit standing and financial stability.

What Fleets Should Know About Freight Broker Bonds

If brokers or forwarders allow their bonds to lapse, their operating licenses will be suspended. The bond or trust is required to provide financial security to the shippers and carriers that do business with the brokers and forwarders. If a forwarder or broker violates the law or engages in misconduct, a carrier that suffers losses can file a claim against the broker’s or forwarder's BMC-85 trust or BMC-84 bond to recover compensation up to the maximum amount of $75,000.

Bond claims are investigated and validated before they are paid. If a surety determines a claim is valid, the surety will pay it. However, the bondholder will be required to repay the surety in full for a validated bond claim because of an indemnity agreement. If they fail to pay a bond claim, the surety can pursue legal action against them and recover both the claim amount and any legal fees incurred.

Brokers and forwarders are supposed to reimburse BMC-85 trusts to bring them back up to $75,000 following valid claims. While reimbursing a surety company or a trust for paid claims is required, some brokers and forwarders fail to do so on a timely basis.

The existing rules also cover how claims against brokers that exceed $75,000 are handled. In those situations, the surety typically files an interpleader action in court to have the funds from the bond allocated between the claimants. This process can be time-consuming and costly for trucking carriers.

The proposed rule would make changes to address these problems.

How the Proposed Rule Would Change Financial Security Requirements

The new rule would require:

brokers and forwarders to immediately repay surety companies or replenish the funds in their BMC-85 trusts following valid bond claims.
freight brokers and forwarders to repay surety companies that pay claims within seven days to bring their available financial security back to $75,000.
those that have BMC-85 trusts to deposit money into the trusts to bring them back to $75,000 within seven days of a paid claim.

According to the FMCSA, brokers and forwarders that fail to maintain $75,000 in financial security would have their operating licenses suspended if they don't bring their security levels back up to $75,000 within seven days following a drawdown.

While some surety companies allow brokers and forwarders to repay paid claims through payments over time, the proposed rule would mandate repayment within seven days. If they don't do so, their operating licenses would be suspended, meaning they would have to cease operations immediately until they could repay the claim amount to the surety or trust in full.

This proposed rule would also potentially eliminate the need for the interpleader process when multiple claims are filed by different parties against a single broker. Since the broker would have to immediately replenish the funds for the surety bond or trust account, the newly deposited funds could then be used to cover additional claims when they total more than $75,000 in aggregate. As each claim is paid, the broker would then have to deposit additional amounts or re-up their bonds to cover other valid claims.

What’s Next?

The proposed rule is currently going through the rulemaking process based on an analysis of comments from stakeholders on the proposal, and it could be modified before becoming a final rule.

If the rule as outlined in the proposal is made permanent, it will incentivize freight brokers and forwarders to avoid bond claims by ensuring they comply with the laws, regulations, and contractual obligations that apply to them.

C H Robinson Introduces Digital Cash Advance for Motor Carriers

Global logistics company C.H. Robinson has automated the process for motor carriers requesting cash advances, making it more efficient and effective for them to get paid while on the road.

This used to be a manual process. Now carriers are able to instantly request 60% of their payment, 24/7, with the tap of a button through the Navisphere Carrier App. Carriers are paid instantly after they’ve confirmed load pick-up.

In today’s market of declining rates, high diesel prices and overall cash flow being squeezed, carriers are increasingly looking for convenient and quick access to payment. By automating the cash advance process, C.H. Robinson not only provides quick cash flow, but has created a more user-friendly experience, ultimately saving carriers time.

Carriers that request a cash advance get a code immediately delivered to their mobile phone, enabling them to receive digital payment within seconds.

C.H. Robinson has also automated the process for signing up for Quick Pay, which used to require filling out a PDF form.

“We are always looking for new ways to leverage technology to better the carrier experience,” said Cody Griggs, director of enterprise product management. “We all know that the last few years have been really challenging due to market conditions. By making it easier and faster for our carrier partners to access their money, we are adding another layer of efficiency and convenience for the trucking community. We listen to the needs of our carriers so we can continually innovate and introduce new ways to support the valuable work they do.”