Trucking Regulations in the Pipeline: Update from NPTC

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Heavy Duty Trucking  /  April 25, 2016

It took him all of an hour and a half, but Rick Schweitzer, general counsel for the National Private Truck Council, gamely managed to get across the key elements of the sweep of regulatory changes coming down the pike for trucking.

Speaking to a standing-room-only audience attending NPTC’s annual meeting at the Duke Energy Center here on April 25, Schweitzer first sorted out the complicated tale of the yet-to-be-determined fate of the 34-hour restart provisions of the Hour of Service rule.

“The previous THUD bill [that includes 2016 fiscal-year appropriations for the Department of Transportation] stated that before DOT could reinstate the [suspended] restart provisions, it had to complete a study to show they improved safety and operator fatigue and driver health and longevity and work schedules, and [the results] had to be certified by the DOT Inspector General.

“But that law removed the statement that the 34-hour restart would remain in place, just without once every 168 hours and the 1 a.m.-5 a.m. [rest-break] requirements,” he continued. “The FMCSA report to Congress is expected in 2Q 2016; once submitted, FMCSA would remove the 34-hour restart entirely – revert back to 2003 HOS rules — and all drivers would need to do a rolling restart every 7 or 8 days to determine available on-duty time.”

Noting that the American Trucking Associations has been leading a coalition to attain a legislative fix so there will be no reversion to the 2003 rule, he said that a political sticking point had been the view held by Sens. Cory Booker (D-NJ) and Richard Blumenthal (D-CT) that drivers could end up being allowed to work too many hours.

“They did not like the hypothetical maximum number of hours [that would exist for drivers],” Schweitzer explained. “But now a deal has been struck [in the Senate] to get that fixed with a cap on on-duty driving after a total of 73 hours weekly in exchange for a 34-hour restart without it being once every 168 hours and without the 1 a.m.-5 a.m. requirements.”

That solution was approved last week by the Senate Appropriations Committee for its 2017 THUD bill. Schweitzer said the legislative repair must also be addressed by the House Appropriations Committee, where he said approval is expected.

Schweitzer advised that, separately, the Commercial Vehicle Safety Alliance petitioned the Federal Motor Carrier Safety Administration in late October to eliminate the 30-minute break provision of the HOS rule. “CVSA said the break rule is difficult to enforce, as an inspector does not know if driver is off duty or performing other tasks. In addition, FMCSA has already granted nine exemptions and there is no evidence that the break rule improves operational safety by reducing fatigue.”

Schweitzer reviewed all the measures within the FAST Act highway bill with an eye to reforming certain existing FMCSA rules, as well as how the agency formulates all future rulemakings:

FAST Act’s CSA Provisions

• The National Academies of Science is to conduct an 18-month study of CSA and SMS to analyze the accuracy of BASICs in identifying high-risk carriers and predicting future crash risk and crash severity

• The study will review methodology used to calculate BASIC percentiles, weights assigned to violations, ties between crash risk and specific violations, and use of non-fault crashes

• A Corrective Action Plan is to be submitted to Congress 120 days after the report. The plan must tell how FMCSA will address deficiencies identified in the study

• DOT IG is to assess whether the plan complies with the February 2014 IG Report on CSA.

FAST Act on CSA Data Reform

• FMCSA may not make publicly available information on analysis of violations, non-fault crashes, or BASIC percentiles until IG concerns are addressed

• Also, the agency may not use CSA data on alerts or relative percentiles for safety fitness determinations until IG concerns are addressed and report to Congress completed. However, FMCSA may still use data to identify carriers for enforcement actions

• As of Dec. 4, 2015, BASIC data for property carriers was taken off CSA website; the agency restored absolute scores on March 7, 2016

FAST Act impact on Beyond Compliance initiative

• On April 19, FMCSA announced it is seeking input on implementation of the FAST Act requirement that FMCSA must offer a credit or improved SMS score for any carrier that: installs advanced safety equipment, uses enhanced driver fitness measures, adopts fleet safety management tools technologies, and programs, or satisfies other standards determined to be appropriate by the agency

FAST Act and Regulatory Reform

• All regulatory impact analyses for proposed and final rules must consider the effect of rule on different segments of the motor carrier industry; use best available science to formulate estimates and findings; use data representative of CMV operators or carriers, and consider effects on various sizes and types of carriers

• All major rules (more than $100 million in costs) must begin with an Advance Notice of Proposed rulemaking (ANPRM) or as a negotiated rulemaking (with affected stakeholders) before FMCSA issues a proposed rule

• All guidance documents (including regulatory interpretations and statements of enforcement policy) issued by FMCSA must be dated and include the name and contact information of a person who can respond to questions on the guidance. In addition, the guidance must be posted on the FMCSA website for public view

• FMCSA must post a summary of all petitions for rulemaking, regulatory interpretation or clarification, on the agency’s website and decide within 180 days of receipt whether to accept, deny or further review the petition. It must also prioritize petitions based on their potential to reduce crashes, improve enforcement, and reduce unnecessary burdens

• Exemptions from the motor carrier safety regulations may be granted for up to five years and may be subject to renewal (the current limit is two years).

Also due to the FAST Act, FMCSA must exempt the voluntary mounting on a windshield of vehicle safety technology likely to achieve a level of safety that is equivalent to or greater than the level of safety that would be achieved absent the exemption. This final rule is required by June 2016.

And the FAST Act mandates that FMCSA must allow carriers to conduct pre-employment tests for alcohol and to use hair-testing as an alternative to urine-testing for pre-employment and random testing for controlled substances.

Safety Fitness Determination

Schweitzer also reported on progress on the Safety Fitness Determination rule that was published in January. “It provides for only one rating — ‘Unfit’ — with all others considered to be fit operators. It calls for monthly carrier assessments using absolute standards, rather than percentile ratings against peers.”

Other aspects of the SFD proposal he outlined were:

• Uses a revised list of critical and acute regulations; violations would result in failing a BASIC

• Will use all investigation results (including roadside), not just compliance reviews, to rate carriers

• The proposed rule has different standards for failing a specific BASIC, based on correlation to crash risk

• Crash, Drug/Alcohol BASICs will only use investigation data

He added that there will be three ways to be declared unfit: Fail two or more BASICs using roadside data (must have 11 or more inspections with violations over 24 months to fail a BASIC); fail two or more BASICs due to critical or acute violations identified during an investigation; or fail two or more BASICs based on combination of data from roadside and investigations.

Schweitzer noted that the SFD comment deadline has been extended to May 23. In addition, there is an effort under way to include a provision in the House version of the THUD bill to withhold funding for the SFD rulemaking until the CSA study is done and the DOT IG has certified that remedial steps in the mandated Corrective Action Plan have been taken.

ELD Details

He hit the highlights of the Electronic Logging Device final rule:

• It mandates adoption of ELDs by all carriers in interstate commerce

• Phase-in within two years (December 2017), but carriers already using electronic logs will have another two years to equip trucks with ELDs compliant with this rule

• Short-haul drivers (not subject to log books) will be exempt from the ELD rule. They may use paper logs up to 8 days in any 30-day period if they exceed short-haul limits

• Supporting documents required to verify on-duty “not driving” time and carriers must retain up to eight documents for each duty period

• Drivers must submit supporting documents to carriers within 13 days

• Documents must contain driver name or ID number, date, location and time

Prohibition of Coercion

Schweitzer also noted the main points of the final rule on Prohibition of Coercion. Issued last November, it prohibits carriers, brokers, receivers or others from coercing drivers to violate FMCSRs or HMRs. It went into effect Jan. 29. “For coercion to exist, a party must make a threat or take action against a driver’s employment or work opportunities.”

Speed Limiters

As for the proposed rule on truck speed-limiters, Schweitzer said this regulation will affect all Class 7 and 8 trucks — both new and existing vehicles. “In response to petition by ATA and carriers,” Schweitzer said, “it is expected the rule will set limiters no higher than 65 mph.”

Entry-Level Driver Training

The long-awaited — “it’s been around since the 1980s” – entry-level driver training proposal was published in March. Schweitzer said FMCSA issued its NPRM having completed a negotiated rulemaking with stakeholders on driver training curriculum, hours of instruction, and self-certification standards.