Expected regulations on sleep apnea and electronic logging are among the legal issues likely to garner greater attention from trucking firms in the near future, a transportation attorney told fleet executives.
Rob Moseley of Smith Moore Leatherwood predicted a sleep apnea regulation from the Federal Motor Carrier Safety Administration could represent a “billion-dollar investment” for the trucking industry.
“Sleep apnea is going to be a big deal for the industry, and we’re going to have to watch that one closely when the regulation comes out,” he said here Oct. 21 during a session at American Trucking Associations’ Management Conference & Exhibition.
Moseley said he expects mandatory screening for drivers based on body mass index, with a threshold of perhaps 35 BM!. The screening and testing process likely will represent a “huge dent in productivity,” he said. “We’ll see what process they come up with, but it may very well involve an actual night at the facility to be tested for a sleep disorder.” Moseley also said there are multiple diagnoses that may be included within a sleep-apnea regulation, “so who knows what diagnoses they’re going to put in there and how it’s going to work.”
Regulation on electronic logging also is coming, Moseley said.
“When you do go to [electronic onboard recorders], if you haven’t already, you’re going to see an uptick in your unsafe driving score because the drivers have to transition into that,” he said. “When they see their hours starting to click off on the electronic log, they’re going to drive faster. They’re going to be more aggressive.” Meanwhile, the industry continues to face inconsistent truck enforcement from state to state, which is problematic for the federal Compliance, Safety, Accountability program, Moseley said.
For example, some states issue more speeding warning tickets than others, he said. “If you’re trying to find something that’s statistically relevant, that is a problem.” Plaintiffs’ attorneys also are looking at carriers’ CSA scores, Moseley added. “They want to bring up all the garbage they can throw against the wall and try to use that against you.” Moseley also reminded attendees that under new requirements included in MAP-21, last year’s transportation reauthorization law, motor carriers no longer have the “inherent ability” to broker freight and must have brokerage authority for freight that they never “touch.”
He said legal action on this front could come from a company’s competitors rather than FMCSA.
‘Whoever didn’t get the freight that you’re moving might be the party that’s suing you, saying that you’re illegally brokering and claiming damages,” he said. In August, FMCSA proposed eliminating the requirement that drivers submit vehicle inspection reports when they don’t find any problems.
The agency said the move would save the industry more than 47.2 million driver hours and $1.7 billion.
Moseley, however, recommended that fleets continue to keep those reports even if the requirement is lifted because they may need the reports in litigation. “You can’t prove the driver actually did the inspection unless you have the form, so thank you; FMCSA, but no thanks, we’re going to keep our DVIRs,” he said. “I would not be too quick to stop keeping those, because you’re going to need them.”
Thanks
Leave a Reply