IDAHO-BASED BROKERS AND FORWARDERS: HIRING TRU COMPLIANT CARRIERS FOR CALIFORNIA REFRIGERATED / HEATED LOADS
Effective January 1, 2013, the California Air Resources Board, pursuant to Cal. Code Regs., tit. 13, § 2477.8, will require brokers and freight forwarders to hire, or contract with, only compliant TRU carriers for the transport of loads of perishable goods that are hauled into, out of, or through California on reefer-equipped trucks, tractor-trailers, shipping containers, or railcars.
This Regulation states that brokers or freight forwarders (including those based outside of California) must:
(1) require the carriers they hire or contract with for (the) transport of perishable goods, to only dispatch TRU-equipped trucks, trailers, shipping containers, and railcars or TRU gen sets that comply with section 2477.5(a) if they travel on California highways or railways (and)
(2) provide the following information to the carrier for their dispatched driver who will be traveling on a California highway or railway:
a. the freight broker's or freight forwarder's business name;
b. the freight broker's or freight forwarder's street address, state, zip code;
c. the freight broker's or freight forwarder's contact person's name; and
d. the freight broker or freight forwarder contact person's business phone number.
The Regulations further declare that carriers, under Cal. Code Regs., tit. 13, § 2477.9, must provide this information to its drivers, who, under Cal. Code Regs., tit. 13, § 2477.87, must provide this information to authorized enforcement personnel upon request.
Given that a citation may be issued to a broker or freight forwarder found to be in violation of Section 2477.8, one of the considerations in hiring a carrier should be to require it to provide proof of its compliance with the Regulations.
December 12, 2012.
MECHANIC LIEN FOR CARRIER OF CONSTRUCTION MATERIALS
The lien that a carrier may have under either Federal Law, 49 USC Sections 80109 and 80110, or State Law, Idaho Code Section 28-7-307, is generally lost upon relinquishment of possession of the cargo; however, a carrier, that is a subcontractor that has delivered construction materials to a job site in Idaho that are used in the construction of the structure, may be able to assert a materialmen (mechanic) lien for its freight charges against the real property after delivery under Idaho Code Section 45-501.
100 years ago, the Idaho Supreme Court in the case of Hill v. Twin Falls Salmon River Land & Water Co., 22 Idaho 274 (1912), decided that a carrier that was found to be a subcontractor that had hauled cement from the railroad station to the site for the construction of a dam and which cement was used in the construction of the dam had a materialmen lien upon the real property upon which the dam was built. The Court recognized that the carrier, under the materialmen lien statute, was a person who had contributed labor for the construction, alteration, or repair of a building or structure upon real property.
In Idaho, to perfect or complete such lien, the claimant must record a written claim of lien with the recorder for the county in which the real property lies within 90 days after the completion of the labor and serve a copy on the owner, or reputed owner, if known of the real property within 5 business days. However, the lien expires unless a lawsuit is filed within 6 months after the claim was recorded to foreclose the lien as against the property owner and other parties who may have interests in the real property.
The details for the necessary information to be included in the claim of lien, the procedures, the deadlines, and the relative priority of the lien should be reviewed with legal counsel. Although this Idaho statute presents a short time frame within which to pursue this non-possessory lien, if any, this strategy may be an alternate collection tool that should be considered if payment has been delayed.
December 23, 2012
POTENTIAL FEDERAL REGULATORY CONSEQUENCES OF AN IDAHO TRAFFIC INFRACTION WHEN OPERATING A COMMERCIAL MOTOR VEHICLE
Being stopped for an alleged traffic violation by an officer of the Idaho State Police, who is also certified as a "Commercial Vehicle Safety Administration Officer"[n1], may have the following outcomes for the driver of a commercial motor vehicle (the "truck driver"):
1. the issuance a traffic citation under the Idaho criminal code (the "offense") which could result in a conviction and a fine;
2. upon conviction of the offense, the collection of points against the driver’s license of the truck driver (the "Commercial Driver License" or "CDL") under the Idaho Department of Motor Vehicle System besides the fine;
3. upon conviction of the offense and under the Federal Motor Carrier Safety Regulations, the accrual of a first offense that may trigger disqualification of the truck driver upon the conviction of a second offense or disqualification if the conviction is the second conviction; and
4. the conduction of a Driver and/or Vehicle Inspection and the issuance of federal regulatory violation(s) (the "Driver / Vehicle Examination Report") resulting in the accumulation of points [n2] under CSA ("Compliance, Safety, Accountability"), which is an regulatory safety program of the Federal Motor Safety Administration ("FMCSA"), whereby a driver is "scored" in categories (the Driver Safety Measurement System or "DSMS") related to the risk of engaging in unsafe operations that may result in accidents; and
may have the following outcome for the motor carrier for which the truck driver is operating:
5. resulting from the above Driver / Vehicle Inspection and the concomitant issuance of federal regulatory violation(s), the accumulation of points under CSA whereby a motor carrier (the "trucking company") is scored in categories (the CSA Safety Measurement System Methodology or "CSMS") related to the risk of engaging in unsafe operations that may result in accidents [n3].
A high ranking based upon aggregate scores in the categories is cause for FMCSA to audit or investigate the operations of the motor carrier which could ultimately result in the imposition of a civil penalty or being declared out of service.
To illustrate these concerns briefly and by way of a non-inclusive example, a driver, who has been stopped for exceeding the posted speed limit by 15 miles and hour, may amass the following points or predicate, respectively, in these two different legal and administrative systems:
6. an infraction citation for excessive speeding which may be challenged in the state criminal court;
7. in addition to the fine, four (4) points against his driver’s license under IDAPA 39.02.71.100.05 upon conviction;
8. upon conviction, the first prong towards a future 60 day suspension under 49 CFR § 383.51(c) – disqualification for serious traffic violations, if there is a second conviction of any combination of the following offenses in a 3 year period:
a. exceeding posted speed limit by 15 miles per hour;
b. driving recklessly under state law;
c. making improper or erratic traffic lane change;
d. following too closely;
e. violating a state of local law relating to traffic control (other than a parking violation) arising in connection with a fatal accident;
f. driving a CMV without obtaining a CDL;
g. driving a CMV without a CDL in the driver’s possession [n4]; and
h. driving a CMV without the proper class of CDL and/or endorsements.
9. Ten (10) points under the DSMS (Section 393.2-SLLS4) that are weighted 30 for the first 12 months; and
the motor carrier may accumulate the following points in the federal regulatory system:
10. Ten (10) points under the CSMS (Section 393.2SLLS4) that are weighted 30 for the first 6 months.
The imposition of the corresponding penalty for the first three circumstances, above, is dependent upon the outcome of the criminal prosecution; however, a favorable result there does not automatically remove or lessen the regulatory violation under CSA. The driver and the carrier continue to operate with the assessed points until they are reversed by the state agency that issued the points in the first place, if at all, or lessened or eliminated by the passage of time.
The current method of challenging the CSA regulatory violation is to submit a "DataQ" to FMCSA which will then ask the state police to review the violation who may or may not drop the violation. However, there currently are no administrative rules of procedure for this process [n5].
Even if the resulting traffic points against the driver’s license are not enough to cause the running total to cause a suspension of the driver’s license under state law, the infraction conviction may trigger a disqualification of the driver from operating a commercial motor vehicle under state law as a consequence of the federal regulations [n6] and may cause a potential employer to decline to hire a driver when reviewing his or her driving history because the carrier may obtain with the applicant’s consent a Pre-Employment Screening Program Report from FMCSA showing the most recent five (5) years of crash data and the most recent three (3) years of roadside inspection data, including serious safety violations. As such, the purportedly quick or cost efficient answer for the truck driver may not be to plead guilty to the infraction and pay the fine due to its temporal facial appearance of being a "minor" offense under state law. The federal regulatory consequences must also be analyzed.
[n1] Not all Idaho State Police patrol officers are certified to conduct CSA Inspections and to issue CSA Reports and Violations besides issuing criminal citations. Additionally, city police officers and county deputies are not authorized to conduct CSA Inspections and to issue CSA Violations except that in the City of Boise and the County of Ada, there is currently one officer in each agency who is certified as a "Commercial Vehicle Safety Administration Officer" and who may conduct a CSA Level III Inspection of the driver of a commercial motor vehicle. The officers may also conduct Level I Inspections.
[n2] The points resulting from violations of regulations discovered during inspections and crash investigations against the driver are triple weighted for the first 12 months, double-weighted for months 13-24, and single weighted for months 25-36. After 3 years and 1 day for a driver under CSMS, a violation essentially ceases to exist, for CSA purposes.
[n3] The points resulting from violations of regulations discovered during inspections and crash investigations against the carrier are triple weighted for the first 6 months, double-weighted for months 7-12, and single weighted for months 13-24. After 2 years and 1 day for a carrier under CSMS, a violation essentially ceases to exist, for CSA purposes.
[n4] See Footnote in the Regulation -- If the driver, by the date of the hearing, provides proof that he held a valid CDL as of the date of the citation, the driver shall not be guilty of this regulatory offense.
[n5] Idaho is working on administrative procedures and there is a hearing officer to review unresolved DataQ’s.
[n6] Idaho Code Section 49-335(1)(4) – A person is disqualified for the period of time specified in 49 CFR part 383 if found to have committed two (2) or more of any of the offenses specified in subsection (1) or (2) of this section, or any combination of those offenses, arising from two (2) or more separate incidents.
October 12, 2013
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