transportation industry news Winter
2016 FMCSA Publishes Final ‘Driver Coercion’ Rule 3 The Road Ahead - Team Updates 5 Making Tracks 6 Team Directory 7
Ding Dong, the Witch is Dead! Or Maybe She’s Just Sleeping On December 4, 2015, President Obama signed into law a “Highway Bill.” Rob Moseley rob.moseley@smithmoorelaw.com
the Federal Motor Carrier Safety
The “Highway Bill” brings with it
entire Safety Measurement System
many changes to Motor Carrier Transportation. The 1,300-page compromise bill is named Fixing America’s Surface Transportation Act or the FAST Act; the name didn’t match the process. CSA Changes In response to the Highway Bill,
Administration took down the website. The removal of Compliance, Safety, Accountability scores and the raw data has created a conundrum for many. For example, insurance underwriters have become accustomed to looking at this data in order to make underwriting and premium pricing decisions for motor carriers. Without this information,
underwriters will be writing from a vacuum beyond loss runs. Motor carriers may still access their raw data through the carrier portal using their PINs. Because the agency was prohibited from sharing its SMS scores, it pulled all of the data. The FMCSA has recently reinstated the public view of the raw data. The FAST Act charged the agency with working with the government accountability office to resolve the failings of the scoring system and to develop a plan for resolving these deficiencies. The Act gives FMCSA 18 months to carry this out. Continued on Page 2
D ru g T e st i n g
crashes from FMCSA consideration.
The FAST Act opens the door for hair follicle drug testing. The Department of Health and Human Services has been ordered to produce guidelines for hair testing within 12 months.
Another study would require the FMCSA to review the effects of personal conveyance commuting of 150 minutes or more. Certainly, there has been a lot of discussion about how long drivers are allowed to drive from their homes before their on-duty time should be limited.
A dd i t i o n a l S tud i e s The FAST Act requires FMCSA to conduct studies on driver detention and the effects on driver hours of service. The FAST Act also requires a study regarding minimum limits of motor carrier insurance. The FMCSA was also directed to review the treatment of non-preventable crashes under the crash indicator Behavior Analysis and Safety Improvement Category. The FMCSA is to make a recommendation on the process that would allow carriers and drivers to remove non-preventable
Y o u n g e r C D L D r i v e rs The FAST Act also directs the Department of Transportation to establish a pilot program to study the feasibility, benefits, and safety impacts of allowing 18 to 21-yearold drivers to operate commercial vehicles in interstate commerce. B e y o n d C o mp l i a n c e There has been a lot of discussion about motor carriers receiving credit for their efforts by being early adopters of safety technology. For example, collision mitigation systems will prevent or lessen the effect of
accidents. Therefore, a carrier should receive some sort of regulatory credit for document technology. Congress has directed the FMCSA to develop a program to recognize carrier efforts in this regard. W h at D i d N o t M a k e t h e C ut 1. National Hiring Standard. Noticeably missing from the FAST Act was the carrier hiring standard that had been advocated by several industry groups. At one point in the legislation, there was a provision that would have created a safe harbor for anyone who hired a motor carrier with a satisfactory safety record. There was discussion about adding unrated and maybe even conditional carriers to the safe harbor, but all of this was scrapped in the conference committee. This is an issue that will continue to be a major priority for the industry. This is logical and needed. If the FMCSA certifies a carrier as authorized, no shipper or broker should be penalized for using that carrier. 2. Clarification of FAAAA Preemption. Because of the numerous California state laws that are creating a burden for interstate commerce, many interests had sought a clarification of preemption. Things like California meal and rest break laws did not affect interstate truck drivers. This also died in the conference committee.
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FMCSA Publishes Final ‘Driver Coercion’ Rule Rob Green rob.green@smithmoorelaw.com
Joseph Rohe Becomes Licensed U.S. Customs Broker Joseph recently became a licensed U.S. Customs broker to support his growing global trade practice. In his practice, Joseph advises transportation-industry clients on various aspects of regulatory compliance, tariff classifications, duty drawbacks, protests, bonding, and Foreign Trade Zones. View Joseph’s Global Trade Update at smithmoorelaw.com/GlobalTrade-Update.
In November, the Federal Motor
if they refuse to violate certain
Carrier Safety Administration
provisions of the FMCSR. These
published the final “driver coercion”
provisions include drivers’ hours-of-
rule designed to protect commercial
service limits, the commercial drivers’
truck drivers from being pressured or
license regulations, associated drug
coerced to violate the Federal Motor
and alcohol testing rules, and the
Carrier Safety Regulations. This
hazardous materials regulations.
new rule provides the FMCSA with authority to go after carriers, as well as shippers, receivers, brokers, and other transportation intermediaries for acts of coercion against drivers. The driver coercion rule is set to take effect January 29, 2016.
Rob Green recently joined the firm’s transportation practice in the Greenville office. Green’s practice will be primarily focused on transportation litigation, as well as regulatory compliance and commercial litigation. His experience includes defending clients on a broad variety of matters including employment claims, contractual agreements, real property disputes, regulatory investigations, products liability, software license, and transportation accidents.
expansion of an existing rule that already prohibited motor carriers from encouraging or coercing drivers to violate FMCSA regulations. Under 49 C.F.R. 390.13, a motor carrier or its employees cannot
From a policy standpoint, one
aid, abet, encourage, or require
should realize that our society is
its drivers to violate the federal
built upon “coercion.” Coercion is
regulations. The new rule expands
defined as making someone do
coercion restrictions to a broader
what they would not otherwise do
range of parties involved in the
through pressure or threat. People
transportation and logistics process.
go to work because they are coerced
Rob Green Joins Transportation Group in Greenville, SC
The new rule is essentially an
with a paycheck. Citizens don’t murder their enemies because they are coerced to avoid potential jail sentences. Therefore, coercion is what makes our society orderly and not nasty, brutish, and short; coercion in itself is not a bad thing. However, this regulation prohibits the wrong kind of coercion.
In formulating the rule, the FMCSA considered testimony from drivers alleging that some motor carriers, shippers, receivers, and brokers insist that a driver deliver a load on a schedule that would be impossible to complete without violating the hoursof-service regulations or other regulations. Drivers further
The FMCSA’s stated goal in enacting
alleged that they are sometimes
the new rule is ensuring that no
pressured to operate vehicles with
shipper, receiver, or broker threatens
mechanical deficiencies.
drivers with fewer miles, fewer loads, or other economic harm
To Read more about the Final Rule go to smithmoorelaw.com/TNLDriverCoercion Smith Moore Leatherwood
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more articles online... Spreading Liability for Cargo Losses: No, It’s Not That Kind of Escort Service smithmoorelaw.com/TNLCargoLoss When a high-value cargo loss occurs, the shipper or owner of the goods oftentimes has to face the fact that the carrier does not have insurance coverage adequate to compensate for the loss. Even where such coverage exists, the carrier and its insurer will usually seek to subrogate all payments they have made against other responsible parties.
The Plaintiff Was Contributorily Negligent; What Do You Mean I Had the Last Clear Chance? smithmoorelaw.com/TNLScheffer North Carolina is one of the last bastions of contributory negligence; only 3 other states still apply a pure contributory negligence standard. Contributory negligence acts as a complete bar to a plaintiff’s ability to recover damages in a negligence or personal injury lawsuit. If a plaintiff is responsible for the accident in any way, even just 1%, then there is no recovery.
Georgia’s Direct Action Statute Speaking of That Which Normally Cannot Be Spoken smithmoorelaw.com/TNLGADirectAction In most automobile-related personal injury lawsuits across the country, the fact that the defendant is covered by liability insurance is inadmissible at trial. The rationale behind this rule is that evidence of a defendant’s insurance policy to cover the cost of a judgment in a tort case is unfairly prejudicial to the defendant.
Intrastate Drivers Can Still Qualify for Exemption from Overtime if Moving Shipments in Stream of Commerce smithmoorelaw.com/TNLIntrastate The Fair Labor Standards Act obligates employers to pay one and onehalf times an employee’s regular rate for hours worked in excess of forty in a workweek. 29 U.S.C. § 207(a)(1).
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THE ROAD AHEAD • Catch the webinar on January 12 at 12 p.m. EST: FAST may significantly impact the way you do business. Register for the webinar today! smithmoorelaw.com/ TNLWebinarJan12 • Rob2 (Rob Green and Rob Moseley) will attend the Conference of Freight Counsel meeting in Nashville, TN on January 10–11. • Rob Moseley will present transportation contracts and cargo claims at the SMC3 Jump Start Conference in Atlanta, GA on January 19. To register for the conference, go to http://www.smc3jumpstart.com/. • Rob Moseley will be speaking at the SC Trucking Association’s Law Conference in Columbia, SC on January 29. Rob will be speaking on driver coercion and independent contractors. To register, see http://www.sctrucking.org/files/temp_file_2016_HR_and_ Law_Conference1.pdf. Peter Rutledge is attending to correct Rob’s misstatements on what the law is. • Rob Moseley will be in sunny, warm Miami, FL for the BB&T Capital Markets Transportation Conference on February 10–11. Rob will be on a panel discussing regulatory updates. • March 9 marks the TIDA Cargo seminar in Tempe, AZ. Rob Moseley will be part of the program speaking on something cargo related, or not. • Kurt Rozelsky will be a panelist discussing “The Perils of In-Fighting (with Primary and Excess Carriers) in the Defense of a Catastropic Loss” at the FDCC Winter Meeting in San Diego, CA on March 2. • March 15 at 12 p.m. EST: Save the date and watch for a link to register for the next webinar!
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Making tracks • October 1–2 was the Annual Meeting of the Motor Carrier Insurance Educational Foundation in Orlando, FL. Rob Moseley addressed the latest coverage issues facing underwriters and retail agents in the Transportation Sector. • Matt Stone, Rob Moseley, Shawn Kalfus, Stephen Cohen, the Georgia Motor Trucking Association, and friends sponsored “The CMV Collision: How to Protect Your Company” at the Georgia International Convention Center in College Park on October 6. • On October 7–8, Kurt Rozelsky traveled to Cleveland, OH to present two in-house seminars on South Carolina Law and Recent Trends in Transportation Law. • Marc Tucker joined Rob Moseley at the NC Forestry Association meeting in Myrtle Beach, SC on October 7–9. They spoke on how to contract for transportation services without taking on additional liability. • The City of Brotherly Love hosted the ATA Management Conference and Exhibition October 17-20. Rob Moseley spoke on a panel involving freight claims related to cargo theft. • Kurt Rozelsky and Matt Stone attended the TIDA Annual Conference in San Antonio, TX on October 26–28. • Marc Tucker attended a North Carolina Trucking Association Board of Directors meeting on October 27 in Greensboro, NC. • Fredric Marcinak attended the TLA’s Transportation Law Institute in Columbus, OH on October 30 where he moderated a panel on freight charge collections in broker bankruptcy scenarios. • On November 2–4, Rob Moseley spoke at The ATA Safety Management Council Conference about cargo theft and the issues presented. • On November 16–18, Rob Moseley attended the Commercial Carrier Journal Fall Symposium in Arizona. Rob told scary stories about independent contractor programs and the challenges in the current environment. • Rob Moseley attended the SC Trucking Association Board Retreat in Columbia, SC on December 1. He joined Dick Mahany, Director of Insurance Technology, Protective Insurance Company, speaking on the topic of technology and data in the trucking industry.
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Team Directory Erik Albright
Rob Moseley
Mike Bowers
Kristen Nowacki
Stephen Cohen
Bob Persons
Manning Connors
Mary Ramsay
Rick Coughlin
John Reis
Bennett Crites
Jack Riordan
Greensboro, NC | 336.378.5368 erik.albright@smithmoorelaw.com
Charleston, SC | 843.300.6633 mike.bowers@smithmoorelaw.com
Atlanta, GA | 404.962.1023 stephen.cohen@smithmoorelaw.com
Greensboro, NC | 336.378.5236 manning.connors@smithmoorelaw.com
Greensboro, NC | 336.378.5471 rick.coughlin@smithmoorelaw.com
Charleston, SC | 843.300.6653 bennett.crites@smithmoorelaw.com
*TEAM LEADER* Greenville, SC | 864.751.7643 rob.moseley@smithmoorelaw.com
Greenville, SC | 864.751.7753 kristen.nowacki@smithmoorelaw.com
Atlanta, GA | 404.962.1075 bob.persons@smithmoorelaw.com
Charleston, SC | 843.300.6659 mary.ramsay@smithmoorelaw.com
Charlotte, NC | 704.384.2693 john.reis@smithmoorelaw.com
Greenville, SC | 864.751.7638 jack.riordan@smithmoorelaw.com
Julie Earp
Joseph Rohe
Rob Green
Jennifer Rathman
Jay Holland
Kurt Rozelsky
Shawn Kalfus
Peter Rutledge
Fredric Marcinak
Matt Stone
Greensboro, NC | 336.378.5256 julie.earp@smithmoorelaw.com
Greenville, NC | 864.751.7617 robert.green@smithmoorelaw.com
Wilmington, NC | 910.815.7165 jay.holland@smithmoorelaw.com
Atlanta, GA | 404.962.1042 shawn.kalfus@smithmoorelaw.com
Greenville, SC | 864.751.7691 fredric.marcinak@smithmoorelaw.com
alex maultsby
Greensboro, NC | 336.378.5331 alex.maultsby@smithmoorelaw.com
Kevin McCarrell
Greenville, SC | 864.751.7652 kevin.mccarrell@smithmoorelaw.com
Greenville, SC | 864.751.7668 joseph.rohe@smithmoorelaw.com
Atlanta, GA | 404.962.1074 jennifer.rathman@smithmoorelaw.com
Greenville, SC | 864.751.7624 kurt.rozelsky@smithmoorelaw.com
Greenville, SC | 864.751.7610 peter.rutledge@smithmoorelaw.com
Atlanta, GA | 404.962.1057 matt.stone@smithmoorelaw.com
Marc Tucker
Raleigh, NC | 919.755.8713 marc.tucker@smithmoorelaw.com
75 SML Attorneys Named The Best Lawyers in America© 2016 75 SML attorneys have been selected by their peers for inclusion in The Best Lawyers in America© 2016, the oldest and most respected peerreview publication in the legal profession. Of the 75 attorneys honored, nine were named “Lawyer of the Year,” a designation given to a single lawyer in each specialty in each community. Included are attorneys from each of the firm’s key practice areas: Corporate, Financial Services, Health Care, Intellectual Property, Labor and Employment, Litigation, Real Estate, and Wealth Management and Taxation.
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Smith Moore Leatherwood LLP Attorneys at Law 2 West Washington Street Suite 1100 Greenville SC 29601 T 864.751.7600 F 864.751.7800 www.smithmoorelaw.com
Emergency Response Team As part of the array of transportation services provided to firm clients, our 24/7 emergency response team is standing by to serve clients with urgent needs following a catastrophic accident. The team has handled numerous night time and weekend emergencies for our clients. Members of the emergency response team take responsibility for preserving physical and electronic evidence, taking driver and witness statements, making arrangements for cargo salvage, and managing relations with law enforcement. Additionally, firm clients benefit from the team’s knowledge of substantive experts and criminal defense counsel. smithmoorelaw.com/emergencyresponseteam