The Ohio senate seeks to draft a new bill that would reverse a recent Ohio Supreme Court decision that allows officers to issue speeding tickets by estimating a vehicle's speed. The Court stated that independent vertification was not necessary if the officer is trained, certified by a training academy, and experienced at watching for speeders. The senate bill-SB280-would reverse the decision by requiring verifiable evidence of speeding, such as radar or a laser.
The Indiana Department of Revenue updated its Public Transportation Information Bulletin #12 (effective July 1, 2010) with a new section II to clarify the factors necessary for a trucking company to qualify for a sales and use tax exemption on trucking-related purchases, e.g. vehicles, repair parts and fuel. Although a number of the factors are directed specifically at a trucking company that serves a parent company, any trucking company that claims the exemption should review its operations for compliance with the factors set forth in Information Bulletin #12, which can be accessed at http://www.in.gov/dor/reference/files/sib12.pdf).
The Federal Motor Carrier Safety Administration has clarified its use of records generated by mobile communication/tracking technology with respect to the hours of service regulations and in doing so announced its intent to issue a notice of proposed rulemaking regarding the hours of service regulations by the close of 2010. The FMCSA updated a list of supporting documents used to verify driver records of duty status. While deleting a few items from the list, the FMCSA added "electronic mobile communication/tracking records." Inspectors have authority to demand these records in an audit if the carrier uses such technologies. In addition, the FMCSA announced that it would be issuing a notice of proposed rulemaking that would: (1) propose that electronic on board recorders be required for more carriers and drivers; (2) propose that motor carrier be required to develop and maintain systemic oversight of driver compliance with hours of service regulations; and (3) propose new requirements for retaining supporting documents. The notice is expected by the end of 2010.
The Federal Motor Carrier Safety Administration ("FMCSA") has issued regulatory guidance regarding drivers record of duty status under the hours of service regulations. Under the hours of service regulations, drivers are required to prepare records of duty status in duplicate. Motor carrier regulations already allow those records to be maintained electronically. Some motor carriers require their drivers to complete logs manually and then the motor carrier scans those logs and retain the electronic copies. In that circumstance, the FMCSA no longer requires the driver to prepare records of duty status in duplicate. Instead, the driver can now prepare one copy of the logs, scan and send it to the carrier, and retain the original for seven days as required by regulation.
Starting Friday, June 11, West Virginia's anti-idling rule will take effect. The rule applies to diesel-powered vehicles weighing over 10,000 pounds. Such vehicles will be limited to idling for no more than 15 minutes and violators will face a fine from $150 to $300. Owners and/or operators could be subject to the fines, including those at locations where trucks load or unload.
Exceptions to the anti-idling rule include idling while sleeping or resting, while in traffic, when required by law to stop, or when it is necessary "to operate defrosters, heaters, air conditioners or cargo refrigeration equipment."
May 21, 2010, Obama signed a presidential memorandum that directs the DOT and EPA to develop national standards for fuel economy and greenhouse gas emissions for heavy- and medium-duty trucks. The memorandum effectively endorses the recommendation made by ATA Sustainability Task Force. The ATA's 2008 recommendation called for national fuel economy standards for trucks in order to reduce greenhouse gas emissions. The president stated that the new regulations should be completed by 2011 and will go into effect in 2014.
On Friday, June 4, Florida Governor Charlie Crist signed House Bill 1271, which increases the permitted truckload for tractor-trailers traveling on designated routes on intrastate highways. The permitted truckload is increased from 80,000 to 88,000 pounds; however, the 80,000-pound limit still applies to interstate roads. In addition, trucks equipped with auxiliary power units (APUs) are allowed to run 400 pounds over the weight limit. Currently, the penalty for overweight truckloads is a 5% fine for every pound over the limit.
Crist also vetoed a provision in another transportation bill that would have authorized the reallocation of $160 million from the State Transportation Fund to the state budget in order to help cover the deficit.
OSHA has published a notice of proposed rulemaking regarding a revision to its Walking-Working Surfaces and Fall Protection standards at 29 C.F.R. Part 1910. Prior versions of these regulations specifically excluded motor carriers from having to implement fall protection devices for employees working on top of motor vehicles. The current version neither specifically excludes nor includes motor carriers. The proposed rule seeks comment on whether to require motor carriers to implement these safety measures. Moreover, OSHA seeks comment on how exactly to define "motor vehicle" for purposes of the proposed rule.
As it stands, the proposed rule neither excludes nor includes motor carriers, but this may change once the comment period closes on August 23, 2010. The full text of the proposed rule is available here.
Vermont has become the 27th state to pass a texting while driving ban. Vermont Gov. Jim Douglas recently signed an anti-texting bill and the law took effect June 1st. The new law is primary (meaning that a law enforcement officer can stop a motorist based solely on the suspicion of texting) and prohibits an operator of a motor vehicle on a public road from texting - imposing a $100 penalty for the first offense and $250 for each subsequent offense within a two year timeframe.
In April we reported that the Federal Motor Carrier Safety Administration is proposing to toughen the punishment under its current texting ban that was established in January. In addition to the steep fines now in place (up to $2,750 for each texting offense), the proposal would temporarily suspend commercial drivers caught texting while driving – at least 60 days for the second offense within three years and at least 120 days for three or more offenses within three years. In addition, part of the proposal seeks to add state or local anti-texting laws to the list of serious traffic violations that can lead to disqualification for CDL drivers so motor carriers operating through Vermont should keep this in mind.
On May 12, 2010, Wisconsin Governor Jim Doyle signed into law legislation concerning the misclassification of employees. Effective January 1, 2011, Senate Bill 672 requires the Department of Workforce Development ("DWD") to establish a system ensuring the proper classification of workers under unemployment insurance, worker’s compensation and labor standards laws. The Wisconsin bill is yet another example of the ever changing landscape of independent contractor/employee misclassification issues.
The DWD is charged with, among other things, educating employers, employees and the public about classification of employees and receiving and investigating complaints alleging misclassification. The bill further permits the DWD to require an employer to provide proof of maintaining proper employee records, including wage and hour information, and sufficient worker's compensation coverage for its employees. Failing to provide the requested information may result in the DWD serving a notice on the employer of the DWD's intent to issue an order requiring the employer to stop work at the locations specified in the notice. The employer will then have three business days to provide the requested information, and failure to do so may result in the issuance of an order requiring the employer to stop work at the location. The order is appealable.
Yesterday Kansas become the 26th state to pass a texting while driving ban, as Gov. Mark Parkinson signed an anti-texting bill into law. The new law prohibits an operator of a motor vehicle on a public road from texting. In the bill, “texting” is defined as using a wireless communication device to write, send, or read a written communication. The bill includes exceptions for law enforcement and emergency service personnel; receiving emergency, traffic, or weather related messages; reporting illegal activity to law enforcement; and using a wireless communications device to make or receive a phone call.
Note that law enforcement will be required to issue a warning citation for violations until January 1, 2011 and the subsequent fine for unlawful texting will be $60 per incident.
In April we reported that the Federal Motor Carrier Safety Administration is proposing to toughen the punishment under its current texting ban that was established in January. In addition to the steep fines now in place (up to $2,750 for each texting offense), the proposal seeks to suspend commercial drivers caught texting while driving. In addition, part of the proposal seeks to add state or local anti-texting laws to the list of serious traffic violations that can lead to disqualification for CDL drivers so motor carriers operating through Kansas should keep this in mind.
The Federal Motor Carrier Safety Administration ("FMCSA") just released new Unified Carrier Registration ("UCR") fees for 2010. The fees apply to interstate private carriers, for-hire carriers, freight forwarders, brokers, and leasing companies. Though the new fees are higher than in past years, they are lower than those proposed by the FMCSA last year. The new fee schedule for motor carriers is as follows:
- Up to two vehicles - the fee is raised from $39 to $76
- Three to five vehicles - from $116 to $227
- Six to 20 vehicles - from $231 to $452
- 21 to 100 vehicles - from $806 to $1,576
- 101 to 1,000 vehicles - from $3,840 to $7,511
- 1,001 to 200,000 vehicles - from $37,500 to $73,346
Brokers, freight forwarders, or leasing companies that are not also motor carriers pay a flat fee of $76. Enforcement on interstate motor carriers not in compliance with 2010 UCR fee payment begins July 15, 2010.
The California Court of Appeals in Arenas v. El Torito Restaurants, Inc. denied class certification to a group of restaurant managers who claimed to be misclassified as exempt from overtime wages with unpaid overtime due to them. The Court denied certification of the class because the managers did not share a common pool of interest to gain class entitlement to overtime, due to the wide variation in the different manager's duties. This is relevant because motor carriers in California and around the country are facing wage and hour claims by independent contractor drivers who seek to be reclassified as employees in order to be covered under the applicable wage and hour laws.
The IRS recently reminded motor carriers using owner-operators to include fuel surcharge payments in the Form 1099 report of compensation paid to the owner-operator. Correspondingly, the IRS urged owner-operators to confirm with the motor carriers that the compensation being reported in Form 1099 includes the fuel charge and to include any non-reported fuel surcharges in the income reported on their returns. Additional information is available at http://www.irs.gov/businesses/small/article/.
The Pennsylvania Department of Revenue is currently administering a Tax Amnesty Program that runs from April 26 to June 18, 2010. During this timeframe, the Pennsylvania Department of Revenue will waive 100% of the penalties and 50% of the interest charges upon payments of certain delinquent state taxes, including sales and use tax. Businesses and individuals with Pennsylvania tax delinquencies as of June 30, 2009 are generally eligible to participate in the Tax Amnesty Program. Additional information about the Tax Amnesty Program is available at
www.revenue.state.pa.us/.
Legislation recently introduced in both the House and Senate contemplates an amendment to the Fair Labor Standards Act ("FLSA") that would impose more stringent regulations regarding employee, and more specifically, driver classification. The Employee Misclassification Prevention Act seeks to deter employers from improperly classifying a driver as an independent contractor versus employee by:
- Ensuring that employers keep records that reflect the accurate status of each worker as an employee or non-employee and clarifying that employers violate the Fair Labor Standards Act when they misclassify workers.
- Increasing penalties on employers who misclassify their employees and are found to have violated employees' overtime or minimum wage rights.
- Requiring employers to notify workers of their classification as an employee or non-employee.
- Creating an "employee rights web site" to inform workers about their federal and state wage and hour rights.
- Providing protections to workers who are discriminated against because they have sought to be accurately classified.
According to proponents of the legislation, employee misclassification denies workers the benefits that they would otherwise be entitled to including minimum wage and overtime, workers' compensation, and unemployment insurance. The legislation would task the Department of Labor with monitoring the states' efforts in auditing and imposing penalties against employers that misclassify employees.
Consistent with press reports, the FMCSA formally announced the revised implementation date for the CSMS portion of CSA 2010 in today’s (4/9/10) Federal Register. The highlights:
· On November 30, 2010, the FMCSA plans to replace SafeStat with the new CSMS.
· Beginning this Monday, April 12, individual motor carriers will be able to preview their performance data at http://csa2010.fmcsa.dot.gov.
· On November 30, 2010, the FMCSA is planning on: (1) Replacing its current measurement system, SafeStat, with CSMS, (2) sending warning letters nationwide, and (3) implementing a revised nationwide Inspection Selection System for roadside inspectors that will be based on CSMS rather than SafeStat.
· The nine states currently operating in the operational model test - Colorado, Delaware, Georgia, Kansas, Maryland, Minnesota, Missouri, Montana, and New Jersey - will carry out the full array of CSA 2010 interventions after the test concludes in June 2010.
· For the remaining 41 States, the new CSA 2010 interventions will be phased in during 2011.
This announcement does not affect the safety fitness determination (SFD) methodology. Changing the SFD requires rulemaking, and the FMCSA stated it will be the subject of a Notice of Proposed Rulemaking to be published for comment at a later date during 2010. While the rulemaking is in process, the FMCSA will continue to issue safety ratings in accordance with the existing rules at 49 CFR part 385 - Safety Fitness Procedures.
The Federal Motor Carrier Safety Administration is proposing to toughen the punishment under the current texting ban that was established in January. In addition to the steep fines now in place (up to $2,750 for each texting offense), the proposal seeks to disqualify commercial drivers caught texting while driving. This will affect approximately 7 million commercial interstate drivers of trucks and other vehicles. In addition, part of the proposal seeks to add state or local anti-texting laws to the list of serious traffic violations that can lead to disqualification for CDL drivers. For example, if a driver commits a second offense within three years, he would be disqualified for at least 60 days. A 120-day disqualification results from three offenses within a three year period.
Notice of the proposed rulemaking was published in the Federal Register today with a request for comments due by May 3, 2010.
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