PHMSA Announces Future Office of Hazardous Materials Safety Meetings
On April 24, the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) Office of Hazardous Materials Safety announced it will host three public meetings throughout the remainder of 2024 in advance of certain international meetings. Specific information for each meeting will be posted online and will include the public meeting date, time, remote access login, conference dial-in number and details for advance registration.
FMCSA Requests Comments on FRS ICR
On April 19, the Federal Motor Carrier Safety Administration (FMCSA) requested comments on its FMCSA Registration System (FRS) information collection request (ICR). FMCSA is replacing its Unified Registration System with a new, online registration system which will allow all persons required to register to do so online. Comments are due by June 18.
PHMSA Publishes Updates on Special Permits
On April 18, PHMSA published updates on special permit applications:
- List of Applications for Special Permits – Comments are due by May 20.
- List of Applications for Modification of Special Permits – Comments are due by May 3.
- Notice of Actions on Special Permit Applications – Comments are due by May 20.
NHTSA Requests Comments on Two New FMVSS for Motor Vehicles Using Hydrogen as a Fuel Source
On April 17, the National Highway Traffic Safety Administration (NHTSA) requested comments on its proposal to establish two new Federal Motor Vehicle Safety Standards (FMVSS) specifying performance requirements for all motor vehicles using hydrogen as a fuel source. FMVSS No. 307, Fuel System Integrity of Hydrogen Vehicles, would specify requirements for the integrity of the fuel system in hydrogen vehicles during normal vehicle operations and after crashes. FMVSS No. 308, Compressed Hydrogen Storage System Integrity, would specify requirements for the compressed hydrogen storage system to ensure the safe storage of hydrogen onboard vehicles. Comments are due by June 17.
NHTSA Requests Comments on Replacement to FMVSS No. 305, Electric-powered Vehicles: Electrolyte Spillage and Electrical Shock Protection
On April 15, NHTSA requested comments on its proposal to establish FMVSS No. 305a to replace FMVSS No. 305, Electric-powered Vehicles: Electrolyte Spillage and Electrical Shock Protection. No. 305a would apply to light and heavy vehicles and would have performance and risk mitigation requirements for the propulsion battery. Relating to a National Transportation Safety Board recommendation, FMVSS No. 305a would also require manufacturers to submit standardized emergency response information for inclusion on NHTSA’s website that would assist first and second responders handling electric vehicles. Comments are due by June 17.
FMCSA Requests Comments on Generic Clearance of Customer Satisfaction Surveys ICR
On April 15, FMCSA requested comments on its Generic Clearance of Customer Satisfaction Surveys ICR, which allows FMCSA to continue collecting feedback on its service delivery. Comments are due by May 15.
PHMSA Releases Interpretation on Shipping Papers
On April 4, PHMSA released a clarification to the Hazardous Materials Regulations (HMR) related to shipping papers and whether a shipping paper may include a company slogan or other non-regulatory information directly below the shipping description. PHMSA shared that in response to the specific question, the additional non-regulatory information would not be a violation of the HMR.
PHMSA Releases Interpretation on Placarding Requirements for Transportation of Nitrogen
On March 27, PHMSA released a clarification to the HMRs related to placarding requirements for transportation of nitrogen, refrigerated liquid in insulated cargo tanks. PHMSA shared that placards are not required on the insulated cargo tanks used for carriage of nitrogen, refrigerated liquid when transported in accordance with the conditions of § 173.320(a).
PHMSA Releases Interpretation on Transportation of Carbon Dioxide
On March 27, PHMSA released a clarification to the HMRs related to the transportation of carbon dioxide. PHMSA responded while CO2 is listed in the § 172.101 hazardous materials table as a Division 2.2 gas, CO2 does not meet the definition of a Division 2.2 gas when transported as described in the request for interpretation.
PHMSA Releases Interpretation on Transportation of Phosphine
On March 27, PHMSA released a clarification to the HMRs relating to the transportation of phosphine and whether the quantity described in the request is a reportable quantity. PHMSA shared that a hazardous substance is a material listed in Appendix A of § 172.101 in a quantity contained in one package that equals or exceeds the reportable quantity for the material listed in Appendix A to § 172.101 and satisfies the applicable criteria for “hazardous substance” as defined in § 171.8.
Mark Schedler
Dash cam use among commercial and business fleets is exploding, and those who haven’t yet invested in this cab technology are missing out on significant risk reduction and operational benefits. If you’re one of the fleets still on the dash cam sidelines, consider these myths cited frequently.
Myth #1: If I get dash cams, my drivers will quit.
A 2019 co-sponsored FreightWaves/J. J. Keller survey (1) reported that among fleets with dash cameras, 74% said that turnover has stayed the same or improved, while the remainder experienced a minimal or insignificant increase relative to industry norms. Many drivers now see dash cameras as protection against frivolous lawsuits and proof that they are doing their job. Pairing dash cam use with clean and concise policies and procedures, driver coaching, training and reward programs, carriers create an effective countermeasure to driver attrition.
To convince drivers to accept dash cameras requires a significant effort into communicating the ‘why’ of dash cams. The message is, “we want to improve skills and protect our drivers and the company from a wrongful lawsuit.”
Myth #2: Insurance will cover the cost if we have an accident.
The FMCSA regulations and individual state laws require insurance. Interstate for-hire operations of any property-carrying commercial motor vehicle must have $750,000.00 minimum coverage. Hazardous materials carriers are required to carry a $5,000,000.00 minimum. Unfortunately, carriers could find themselves in the red if they merely adhere to the federal minimum levels for liability coverage, as those minimums have not kept up in the era of nuclear verdicts.
Transportation providers should assess their actual exposure to risk, as it’s not uncommon for multi-million dollar lawsuit awards. Organizations have to provide for the amount their insurance provider does not cover. Smaller operations are at greater risk of losing everything in litigation.
Forty-nine percent of survey respondents who had installed dash cams stated they had seen a decrease in the average value of insurance claims. Sixty-one percent said they had seen a decline in the number of insurance claims.
Myth #3: Dash cams could hurt me in court if my driver is at fault for an accident.
False. Even if your driver is in the wrong, the dash cam footage provides indisputable evidence so you and your lawyers can work toward a quick settlement. Dash cams also often help reduce the insurance claims process time because video evidence helps investigators quickly determine fault, which results in lower costs, demonstrating once again that time is money.
American Transportation Research Institute (ATRI) released the study “Issues and opportunities with driver-facing cameras” in April 2023. The study found that legal experts estimated:
- Driver-facing camera footage helps exonerate drivers in 49 percent of cases, and
- Road-facing camera footage helps exonerate the driver (and carrier) approximately 63 percent of the time.
Dean Croke, FreightWaves’ Chief Insights Officer, stated, “When a claim is underway, lack of evidence is one of the biggest issues underwriters face.” Croke, who spent several years leading an insurance provider shared that, “One of the things we always credited companies with was having technology that could help exonerate them in the event of an accident.”
Survey results showed that 45% of fleets with dash cameras identified lower legal fees and risks of litigation as a benefit.
Myth #4: The cost of cameras is too high, and the ROI takes too long to secure.
This is simply not the case. It’s no secret that fleets run on small operating budgets and margins. However, dash camera costs have come down substantially over the last few years while innovation and technology capabilities have drastically improved, ensuring that most fleets see a return on investment in less than a year. The ROI is immediate if they have an accident and their driver is exonerated.
Additionally, carriers and organizations that coach drivers against observed risky behaviors can reduce cell phone use and distracted driving in a few days! Dash cams help uncover everything from failure to use a seatbelt to distracted driving, following too closely and hard braking — allowing carriers to address and effectively reduce the risk of future accidents. These efforts reduce violations, accidents, and CSA BASIC scores.
Fleets even offer monetary rewards to reinforce proper driving behaviors, using dash cam metrics to generate healthy competition among drivers. Turning learning into a game provides drivers with a quantitative and measurable sense of achievement, encourages training and focus on the tasks at hand, and delivers an engaging learning experience.
Don’t forget that you can also use dash cam footage as part of the Crash Preventability Determination Program to remove a non-preventable crash from the Compliance, Safety, Accountability (CSA) calculations used to create your Crash Indicator BASIC score.
Myth #5: There are too many rules for mounting hardware, and installations are complex.
Not the case. Federal Motor Carrier Safety Association (FMCSA) revised rules in May 2022 to give drivers and carriers more flexibility in mounting their tech hardware on the interior of their windshields. Now, dash cameras, GPS devices, and other safety technologies can be mounted up to 8.5 inches below the upper edge of the area swept by the windshield wipers or up to 7 inches above the lower edge. The FMCSA also expanded the definition of “vehicle safety technology” in §393.5 to include almost any “system” or “item of equipment” that uses cameras, lidar, radar, sensors, and/or video to promote driver, occupant, or roadway safety.
Tyson Fisher
New academic research reveals how vulnerable ELDs are to cyberattacks made by hacking into a truck’s system in seconds while driving alongside it.
Jeremy Daily, associate professor of systems engineering at Colorado State University, is no stranger to truck cybersecurity. He co-founded the CyberTruck Challenge in 2017 and has published numerous research papers related to the topic. However, his latest research exposes an alarming truth: Some electronic logging devices are easy to hack.
Along with research assistants Rik Chatterjee and Jake Jepson, Daily wanted to know how the ELD mandate affects cybersecurity for trucks. The researchers found they not only could access a truck’s accelerator pedal by simply driving by it but also could infect a fleet of trucks with malicious malware by hacking into just one ELD.
For this experiment, Jepson was able to take apart an ELD and do some reverse engineering. He found the default Wi-Fi password right away and from there spent several months developing a malicious version of the ELD’s firmware. Jepson told Land Line Now that this was his first time reverse-engineering a device and admitted a more experienced hacker likely could exploit vulnerabilities much faster.
Watch Land Line Now’s interview with Colorado State University researchers:
The researchers’ next task was to infect a truck – which proved remarkably simple.
Equipped only with a laptop and Wi-Fi range extender, they drove alongside a moving 2014 Kenworth T270. In just 30 seconds, they were able to access and infect the truck’s ELD with malicious firmware that allowed them to slow the truck down. Chatterjee, who was driving the Kenworth, said it would not speed up no matter how hard he pressed down on the pedal.
In this scenario, the researchers decided to slow down the truck for safety reasons. However, they just as easily could have forced the truck to speed up. And with access to the truck’s operating system, a hacker could access other functions, as well.
As if hacking one ELD were not bad enough, Daily and his team were able to infect several trucks by initially infecting just one.
The malicious firmware included what the researchers called a truck-to-truck worm. An ELD infected with this firmware can scan for nearby ELDs. Once a vulnerable one is identified, the truck-to-truck worm can spread the virus. The newly infected ELD then can repeat the scanning process, increasing the range of viral spread. This process can allow a hacker to infect an entire fleet of trucks that are close together, making truck stops, rest areas and yards prime targets.
ELD technology and regulations
Although only one brand of ELD was used, the researchers pointed out that manufacturers are using similar technology.
There are hundreds of certified ELDs available, but the research paper reported that there are relatively few distinct models. Essentially, companies are rebranding ELDs, rendering devices “clones of each other with minimal variations,” according to the study. Consequently, vulnerabilities present in one brand of ELD may be present in many others as well.
Another point of concern is the lack of regulation regarding ELD cybersecurity. Devices must meet technical specifications before registering with the Federal Motor Carrier Safety Administration, but manufacturers need only to self-certify.
The National Motor Freight Traffic Association has issued a list of recommended security requirements for ELDs. However, those recommendations appear to be largely ignored.
“I can say very confidently that if that guidance had been followed from the industry, then we wouldn’t have been able to demonstrate these exploits that Rik and Jake developed,” Daily told Land Line Now.
The researchers reached out to the ELD manufacturer before publishing the research. Daily said the manufacturer worked with him and his team to develop a firmware patch addressing the vulnerabilities.
What can truckers do to secure their truck?
There are measures truckers and fleet owners can take to mitigate any cybersecurity vulnerabilities.
First and foremost, truckers need to keep their ELDs updated. Like smartphones, ELDs may require periodic security updates that could include patches for newly discovered vulnerabilities. And if truckers have access to the device’s Wi-Fi password, they should change it to a stronger one.
Daily also believes in the power of the free market. If those in the industry – especially large fleets that buy in bulk – purchase only highly secured ELDs, it will force makers of less-secure ELDs to sink or swim.
The good news is that the industry has responded well to cybersecurity concerns in recent years. The truck used in this experiment was a 2014 Kenworth, a 10-year-old truck. In the past decade, truck manufacturers have improved security measures within their systems.
Click on links below to see videos on ELD vulnerabilities.
https://youtu.be/SEON7PMZwDM
https://youtu.be/IhsHIYh_haI
https://youtu.be/VV-EsrAsVRg
Doug Marcello
The prevalence of social media is indisputable. When there has been an accident, social media is an important litigation tool. Here are some key considerations:
- Check it early and often.
- Accidents grab attention, so claimants may post about them long before considering litigation, providing both information and material for a defense attorney to cross-examine or impeach.
- Updates and comments may be added or removed at any time by the claimant and others.
- So, what are you looking for?
- Anything related to this accident
- Anything related to prior or subsequent accidents and injuries
- Anything related to the claims being made, for example:
o If the plaintiff is claiming a loss of income or earning capacity, look for any posts regarding income, work, or job prospects.
o If the plaintiff is claiming a loss of life’s pleasures, look for pictures and posts about vacations, travels, celebrations, etc.
o If the plaintiff is claiming an inability to do physical activities, look for content relating to their physical activities.
- Save it.
- Once claimants speak to an attorney, they will likely be instructed to make their social media private.
- Save or print content when you find it so it does not disappear forever – screenshots work well for this.
- Tell your drivers.
- Make sure drivers know to avoid posting ANYTHING on social media about the accident.
- Tell drivers to check their privacy settings regularly.
- Plaintiffs’ attorneys will look for anything they could show a jury that makes you look bad – even content that would seem irrelevant.
- While admissibility can be fought, it is better to not have it out there.
- Other key points.
- Never friend or otherwise reach out to plaintiffs to gain access to private portions of social media pages.
- Check for relatives or friends of the plaintiff who may post additional relevant content.
- Social media surveillance is cheap and can help to focus traditional surveillance if conducted.
- If the information that is accessible to the public suggests that there may be more relevant private content, some Judges may require production of that private content in discovery.
Allysa A. Adams
The moment an accident occurs is not the time to put your company’s accident response plan into place.
Having an accident response plan in place, including training your dispatchers on the policy, will allow you to act as soon as an accident occurs. The faster you act, the better prepared you can be to prevent a lawsuit or claim, and the better prepared you will be to defend yourself in the event of a lawsuit.
Also, by acting fast and taking a proactive approach, you can potentially save money and litigation fees. Even if a suit is filed, taking a proactive approach allows you to collect evidence from the scene, perform surveillance, gather statements, or examine social media evidence to use in your favor at trial. Keep in mind these top 5 tips when preparing to respond to an accident:
Act fast and be prepared. When an accident occurs, the faster you act, the better you can respond. To effectively do this, you must start well before an accident occurs. The best place to start is by training your dispatchers on how to respond when an accident call comes in and let them know what they should be asking the driver, what information to obtain, and what additional individuals – including attorneys or field adjusters – to contact to help with the response.
Do not take statements from your driver. Do not have your driver make any written or recorded statements regarding the accident. This will have to be produced to opposing counsel if there is any future litigation. These statements will be used against your driver if any inconsistencies pop up later. Also, advise your driver not to give any statements to anyone or talk to anyone else about the accident. One thing you can do to completely protect your driver’s version of events is to immediately have an attorney speak to the driver. Everything said to the attorney would be confidential and protected by attorney-client privilege and could not be used later against the driver.
Bring in outside help. You will want to hire an independent adjuster to help investigate the accident. I recommend in all accidents, both big and small, you hire an independent adjuster to call the other driver and witnesses to obtain their statement. If liability is not in your favor, you can take proactive steps to avoid a future lawsuit, like paying for the damages to their vehicle or resolving any claims for bodily injury before they engage an attorney. Payment to a claimant up front can save future attorney’s fees and any future judgment. It is also good to have both sides of the story so you can get a full view of the accident.
Depending on the situation, you can also hire an independent adjuster for further investigation. If you believe that there may be security cameras in the area, from other businesses or entities, you can have the adjuster go out to the scene to try to obtain any videos that have footage of the accident. I always ask drivers if they know if there was a camera in the area and if they had a dash camera. These videos can turn a disputed liability case into one that you can argue completely in your favor. Also depending on the accident, especially in serious accidents, you may want to hire an independent adjuster to go out to the scene and take photographs. Also depending on the situation, especially in serious cases, you may want to hire an accident reconstructionist to inspect the vehicle, do a download of the black box of the vehicle, and to review the accident site to determine how the accident happened.
Social media. When you find out about a more severe accident, you or your attorney’s office should look for information concerning the accident. You can find out a lot of information about an accident just by checking on Facebook and other social media. Family members of the person hurt in the accident may comment on news articles or post about their loved one’s injuries.
Another important thing to do in these cases is to have your attorney or independent adjuster run a public record search and a social media search for the claimant. Make sure to keep checking on social media to see if they mention their injuries. Usually, once the claimant retains an attorney, they will be told to take their social media down, so it is important to find it immediately if you think there could be future litigation. Social media is very important and can sometimes be the piece of evidence that you need to prove the claimant is not injured. However, you must act fast on this. If you wait until a lawsuit is filed, it may be too late.
Preservation of evidence. You should make sure to preserve any evidence from the accident. This would include pulling the driver’s logs for the week before the accident. If a preservation letter is received from the claimant’s attorney, make sure that you save anything that is included in the letter so that you are prepared in case of potential litigation. If not saved, you can be accused of spoliation and may have sanctions issued by the court. If a preservation letter is received, have counsel send your preservation letter to have the claimant preserve any evidence they have regarding the accident.
This is not an exhaustive list and assumes accident response measures are planned before the accident. Please contact me for questions your trucking company has on accident response or for free accident response packets, forms, and checklists.
