Recently, the Federal Motor Carrier Safety Administration ("FMCSA") released its 2012-2016 strategic plan, which lays out the agency's safety-focused initiatives over the next five years. The strategic plan is built around a three-pronged approach to truck and bus safety: raise the barrier to entry to the industry; enforce high safety standards; and eliminate high-risk carriers and drivers.
Among other things, the agency plans to development a smartphone application called the "SaferBus App" in order to assist consumers in selecting a particular carrier. Additionally, the FMCSA hopes to increase accessibility to its data management system. The FMCSA plans to complete rulemaking revisions to the Safety Fitness Procedures, in accordance with the CSA. Through this rulemaking FMCSA would establish safety fitness determinations based on safety data from crashes, inspections, and violation history rather than the old compliance review. The intention is to permit the FMCSA to assess the safety performance of a greater segment of the motor carrier industry with the hope of reducing large truck and bus crashes, injuries, and fatalities. The FMCSA will also work on rulemaking revisions to the Electronic On-Board Recorders for Hours of Service Drivers to require motor carriers to install and operate Electronic On-Board Recorders (EOBRs).
Further, the FMCSA will create a single comprehensive safety ranking system that covers all regulated carriers (ie, passenger, HAZMAT property, and HHG carriers, as well as shippers, including intermodal freight, brokers, drivers, and cargo tank manufacturers or repair facilities.) The Agency hopes to expand CSA and the number of carriers with SMS BASIC scores.
On December 27, 2011, the Federal Motor Carrier Safety Administration published the final rule regarding the revised hours of service ("HOS") regulations. FMCSA's new HOS final rule reduces by 12 hours the maximum number of hours a truck driver can work within a week. Under the old rule, truck drivers could work on average up to 82 hours within a seven-day period. The new HOS final rule limits a driver's work week to 70 hours.
In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window.
The final rule retains the current 11-hour daily driving limit. FMCSA will continue to conduct data analysis and research to further examine any risks associated with the 11 hours of driving time.
The rule requires truck drivers who maximize their weekly work hours to take at least two nights' rest when their 24-hour body clock demands sleep the most - from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule's "34-hour restart" provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty. The final rule allows drivers to use the restart provision only once during a seven-day period.
Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Trucking companies that allow drivers to exceed the 11-hour driving limit by 3 or more hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.
The effective date of the final rule is February 27, 2011. Commercial truck drivers and companies must comply with the HOS final rule by July 1, 2013. The rule is available on FMCSA's Web site at http://www.fmcsa.dot.gov/HOSFinalRule.
In a letter yesterday, Department of Transportation ("DOT") Secretary Ray LaHood defended the work of the Federal Motor Carrier Safety Administration in drafting the revised Hours of Service regulation and urged senators, particularly Sen. Kelly Ayotte, to not amend the revised rule. Ayotte's amendment would cut off funds to enforce or implement the new rule.
He told Ayotte that the amendment would prevent the agency from applying comprehensive and up-to-date data and analysis to the issue of driver fatigue and hours of service. Additionally, he said that the new rule might grant some sectors of the trucking industry new operational flexibility, but did not explain what he meant by that.
On Sunday, the amendment was in line to be considered as part of the 2012 transportation appropriations bill. As of that night the Senate had not yet taken it up and it was not clear when, or even if, it would be taken up. There are numerous amendments awaiting action, and this one is likely to face opposition from safety groups that are committed to changing the hours of service rule.
The rule is scheduled to be published Oct. 28, but it appears unlikely that the agency will meet that deadline. With just seven days to go, it still must be vetted by the White House Office of Management and Budget ("OMB"). As Sunday night, it still had not been sent over to OMB from the DOT.
The Federal Motor Carrier Safety Administration (FMCSA) has revised the DOT regulations to establish new minimum federal standards for States’ issuance of commercial learner’s permits (CLPs). At the same time, it modified some requirements relating to commercial drivers licenses (CDLs). Among the provisions:
• A CLP holder will have to meet virtually the same requirements as those for a CDL holder, and will be subject to the same driver disqualification penalties. • States will be required to check FMCSA databases and verify driver social security numbers of CLP applicants (most already do the latter), to recognize each others’ CLPs, and to create a CDLIS (Commercial Driver’s License Information System) record for each CLP issued. • The CLP is to be issued for 180 days after passage of the general and endorsement knowledge test, and may be renewed for another 180 days without retaking the test. • A CPL holder must wait at least 14 days to take the CDL skills test. • A CDL may not be issued for more than 8 years (states may lower that period). • States will be required to use the FMCSA’s endorsement and restriction codes as licenses are next issued or renewed. • Testing in languages other than English is prohibited.
Rejecting comments that larger carriers could be unfairly penalized on a proportional or violation-per-driver, the FMCSA added a new ‘‘acute violation’’ to the DOT Safety Ratings process-- knowingly allowing operation of a CMV [Commercial Motor Vehicle] by an employee who does not have a current CLP or CDL with the proper class or endorsements, or in violation of any restriction. To comments regarding availability of information about drivers, the agency replied, “Carriers are in the best position to determine that their own drivers are properly licensed. Implementation of a central database for monitoring and notifying carriers of status changes to CDL holders is beyond the scope of this rulemaking.”
The final rule is effective July 11, 2011, but some of the changes have different effective dates. The FMCSA's release is available at 76 Fed. Reg. 26854 (May 9, 2011).
In August of 2011, the Federal Motor Carrier Safety Administration will ask a panel of advisers for recommendations on how it might deal with the concern of sleep apnea in truck drivers. The FMCSA has scheduled an August meeting between its Medical Review Board (which has recommended tougher regulations) and its Motor Carrier Safety Advisory Committee, a panel of 19 officials from the industry, including the enforcement community and labor and safety advocacy groups. A public meeting is tentatively scheduled for August 29, 2011, in the Washington, D.C. area. The agency will consider the committee's recommendations in deciding whether or not to move forward with a rulemaking.
Rob Abbott, vice president of safety policy at American Trucking Associations, applauded the move stating that there is confusion in the medical community about sleep apnea because the Medical Review Board made recommendations several years ago and the agency has not yet acted on them.
The Medical Review Board's recommendations on several driver health concerns can be found at www.fmcsa.dot.gov.
Pursuant to SAFETEA-LU and a petition for rulemaking from the American Moving and Storage Association, the FMCSA has amended its freight broker regulations by adopting new final consumer protection rules governing brokers of household goods shipments moving in interstate or foreign commerce. The final rules become effective January 28, 2011.
Under the new regulations, household goods brokers must provide their DOT and MC numbers on advertisements and web sites (the FMCSA is planning to notify affected brokers of their future DOT numbers under the new URS), furnish estimates of expected moving charges and brokerage fees, give customers FMCSA pamphlets containing tips for successful moves and detailing the consumer’s rights and responsibilities, and disclose the broker’s policies concerning deposits, cancellations, and refunds. Brokers' estimates for consumers must be in writing, must be made on behalf of a specific household goods motor carrier pursuant to a written agreement containing specified provisions, and must (unless waived) be based on a physical survey by the motor carrier on whose behalf the estimate is provided if the goods are within 50 miles of the motor carrier’s or its agent’s location. The household goods motor carrier is required to ensure that brokers' estimates meet all the requirements of the consumer disclosure rules that apply to the motor carrier's own estimates.
Finally, household goods brokers must increase their surety bonds or trust funds from the current requirement of $10,000 (which applies to all brokers of freight) to the new minimum of $25,000 by January 1, 2012.
Recent changes by the U.S. Department of Transportation (“DOT”) to its federal drug and alcohol testing regulations will likely require motor carriers to revise their written drug and alcohol policies on or before October 1, 2010. Specifically, the DOT adopted revisions to the Mandatory Guidelines for Federal Workplace Drug Testing Programs proposed by the Department of Health and Human Services. The primary revisions to the drug and alcohol testing regulations relate to changes to the laboratory analysis of urine specimens, including the following:
1. Lower initial screen and confirmation cut-off levels for cocaine.
2. Lower initial screen and confirmation cut-off levels for amphetamines.
3. Initial screening for 6:00 a.m. abuse (Acetylmorphine, a heroine-specific metabolite).
4. Initial screening for MDMA (Ecstasy).
These changes are effective on October 1, 2010, and likely require revisions to motor carriers’ DOT-mandated written policies in order to advise the drivers as to the initial screening for these two new drugs.
Final revisions to the DOT regulations governing drug and alcohol testing requirements have been announced. The revisions require testing for additional substances and lower a number of existing thresholds for positive results.
The list of additional substances to be tested for are derived from recently adopted HHS requirements, and add three amphetamine type substances--MDMA, MDA, and MDEA -- as well as 6–Acetylmorphine (6-AM), a marker for heroin use, to the list. In addition, the DOT is adopting the HHS-lowered laboratory testing cutoffs for cocaine, amphetamines, and methamphetamines. The DOT stated that it expects “a significant number of confirmed positive test results for cocaine” and “a 40% increase in screening and a 30% increase in confirmation rates" for amphetamines and methampetamines. The revised DOT regulations, contained in Part 40 of Title 49 of the Code of Federal Regulations, become effective October 1, 2010. The complete announcement appears at 75 Fed. Reg. 49850 (Aug. 16, 2010).
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.
The FMCSA has announced an additional public listening session as it prepares to issue a notice of proposed rulemaking on the DOT regulations governing hours of service requirements for property-carrying commercial motor vehicle drivers. The session begins at 10 a.m. local time Friday, March 26, 2010, in Louisville, Kentucky in conjunction with the Mid-America Trucking Show. Written comments may also be submitted. The announcement appears at 75 Fed. Reg. 9376 (Mar. 2, 2010).
On February 3, 2010, the Department of Transportation (“DOT”) issued a Notice of Proposed Rulemaking proposing revisions to the drug testing procedures found in the federal motor carrier regulations at 49 C.F.R. Part 40. By and large, the proposed revisions affect the operations of drug screening facilities, and are intended to bring the DOT regulations into conformity with certain regulations of the Department of Health and Human Services. However, the proposed rule also requires testing for MDMA (aka, ecstasy) and lowers the initial and confirmatory testing thresholds for amphetamines and cocaine. Comments to the rulemaking must be filed by April 5, 2010.
Most provisions of the DOT Regulations on commercial vehicle safety have been inapplicable to interstate commercial passenger vehicles with capacity between 9 and 15 passengers (including the driver) that operated only within 75 miles of their base location. The FMCSA has now amended these DOT Regulations to require, effective June 1, 2010, that such operations comply with the most of the commercial vehicle safety requirements, including vehicle identification, driver qualification requirements, prohibitions against use of alcohol, drugs and other substances, vehicle inspection, repair, and maintenance, and hours of service regulations. The FMCSA noted it expects that most, if not all, such operators will be covered by the short-haul provisions of the hours of service regulations. The commercial driver's license and controlled substances and alcohol testing requirements will not apply to these operations.
The FMCSA stated this action is required by the SAFETEA-LU legislation enacted in 2005. Its announcement appeared at 75 Fed. Reg. 4996 (Feb. 1, 2010).
On January 26, 2010, U.S. Transportation Secretary Ray LaHood announced federal guidance expressly prohibiting texting by drivers of commercial motor vehicles. The announcement was followed by publication in the Federal Register on January 27, 2010, of regulatory guidance issued by the Federal Motor Carrier Safety Administration interpreting section 390.17 of the motor carrier regulations to prohibit drivers from texting while driving a commercial motor vehicle. That section of the motor carrier regulations generally allows use of additional equipment or accessories, but prohibits the use of any such equipment or accessory that decreases the safety of operation of commercial motor vehicles. Since the ban against texting takes the form of an interpretation of an existing regulation, the ban is not subject to notice and comment rule making and is effective as of January 27, 2010.
The FMCSA has announced that its Motor Carrier Safety Advisory Committee (MCSAC) will hold a meeting on February 1-2, 2010, from 8:30 a.m. to 4:30 p.m. Eastern Standard Time “to complete its work of providing information, concepts and ideas to the [FMCSA] relating to the hours of service regulations. The conference call is open to the public by telephone. Oral comments will not be accepted at this meeting, but the FMCSA noted oral comments can be made at previously announced public listening sessions, and written comments can be submitted as noted in the announcement.
The meeting follows the FMCSA settlement agreement with the group Public Citizen and others. That agreement requires the FMCSA to submit proposed hours of service regulations within 9 months,and publish a Final Rule as part of the DOT Regulations within 21 months, after the October 26, 2009 settlement date.
For more information on this meeting concerning the development of new hours of service regulations, see Motor Carrier Safety Advisory Committee Public Meeting, 75 Fed. Reg. 2923 (Jan. 19, 2010).