TrueNorth’s Transportation division and Scopelitis Transportation Consulting firm (STC) bring a regular legal webinar covering legislative, regulatory, administrative, and enforcement issues across the industry. The initiatives covered are led by Congress, the U.S. Department of Transportation, and certain sub-agencies of the USDOT including the Federal Motor Carrier Safety Administration (FMCSA), and the National Highway Transportation Safety Administration (NHTSA) that impact the trucking industry at large. Dave Osiecki, STC president, led this month’s webinar.
Hot Topics
Among the hot topics is President Trump’s signing of several 2019 funding bills and a Continuing Resolution (CR) in late September 2018. This keeps the federal government open and operating until December 7, 2018. Also because of this signing, USDOT funding is covered by CR, and the law also extends the ELD livestock and insect hauler exemption until December 7, 2018.
Another hot topic is the new FMCSA ELD home page. Without much fanfare FMCSA created a checklist that is helpful if you’re still trying to get compliant.
“Their new tool is great,” Osiecki says. “A second tool call Web eRODs that allows fleets to take a tour of exactly what an eRODS report looks like on a roadside inspector’s computer screen. And, fleets can load a driver’s actual ELD file into Web ERODS to show the driver what it looks like and how a potential violation is flagged for an inspector.”
A third new tool is an online form to request an extension of time to fix or replace a malfunctioning ELD.
Another hot topic is that the FMCSA has initiated the HOS change process. The comment period for this round end on October 10. The Agency is seriously considering changes to four provisions: (1) the mandatory 30-minute rest break; (2) the split sleeper berth provision; (3) the short-haul operations exemption; and (4) the adverse driving conditions exception.
“Lots of activity here,” observes Osiecki. “They seem to be serious about moving forward on this. HOS has become a political football. Each administration seems to come up with their own set of rules. This administration will try and take the ball across the goal line soon.”
Meanwhile, Congress again has failed to act to preempt state meal and rest break laws in its FAA reauthorization bill designed to preempt state meal and rest break laws impacting the trucking industry. “This has been a multi year attempt to get congress to pay attention to this issue, but it has been ignored again. The legislative movement on this issue for this year is past,” notes Osiecki.
Compliance & Enforcement Action and Information
Pipeline and Hazardous Materials Safety Administration of the USDOT (PHMSA) issued an administrative decision to preempt California meal and rest law break. In late September, the PHMSA issued a meal and rest break decision in response to a preemption petition field by the National Tank Truck Carriers, Inc. (NTTC) in 2017.
PHMSA found that California meal and rest break laws create unnecessary delays in the truck transportation of hazardous materials. The FMCSA is listening to the issue.
“It shows that when the FMCSA wants to move fast they can,” says Osiecki.
The FMCSA is also looking at expanding off-site interventions to all 50 states. FMCSA has been using an off-site compliance review process since the start of CSA in 2010, but only in 9 states (CO, DE, GA, KS, MD, MN, MO, MT, and NJ). In July 2018, FMCSA quietly announced that it was expanding its CSA-driven off-site interventions to all 50 states. Off-site reviews are typically initiated when a carrier has one or two BASICs requiring investigation and can be conducted in most compliance areas with the exeption of vehicle maintenance. Also, by Agency policy, off-site reviews are not conducted on motorcoach operators.
CVSA announced its results in September of its Operation Safe Driver Week initiative that took place in July. Over 51,000 law enforcement officers made contact with than 113,000 CMV passenger vehicle drivers, and issued 57,405 citations—10,709 citations were issued to CMV drivers, and 46,696 citations were issued to passenger vehicle drivers. Speeding and failing to use seat belt were the top violations.
The CVSA had a busy September. They also announced the results from the annual International Roadcheck. More than 67,500 inspections were conducted resulting in 21.6% of CMVs being placed out-of-service, and 3.9% of drivers being placed out-of-service. This year’s emphasis was on hours of service, and less than 2% of drivers were placed out-of-service for hours of service violations.
The CVSA also held Brake Safety Week initiative from September 16-22. The effort is intended to identify and remove CMVs with critical brake violations. Also, in what Osiecki calls an “unusal move,” they also collected rear guard data during the last week of August. The data collection effort is designed to help CVSA formulate a policy on a Congressional bill aimed at strengthening the rear impact guards on semi-trailers.
Legislative
Osiecki says there’s Drive Safe Act bill in the house and the senate and “has a little momentum.”
The Honest Operators Undertake Road Safety Act has bipartisan support. In June, representatives from Arizone and Georgia introduced a bill that would standardize the application of the Ag commodity exemption, expand and liberalize the short haul driver exemption from ELDs, reduce the burden of retaining ELD supporting documents, and allow FMCSA to skip and early rulemaking process step for a potential rulemaking on the split sleeper berth rules. Since then, no further action has been taken.
Also in June, two senators introduced the Modernizing Agricultural Transportation Act to stop implementation o the ELD rules for Ag commodity and livestock haulers until a new advisory committee makes, and the USDOT acts on, hours of service and ELD related recommendations. The bill has been referred to the Commerce Committee.
The Heavy Truck, Tractor and Trailer Retail Federal Excise Tax Repeal Act is “sort of a perennial issue that hasn’t taken much action in the year and a half that it’s been around,” says Osiecki.
Rulemaking & Related Activity
The final rule for FMCSA Military licensing and state CDL reciprocity was published in late September. This final rule allows, but does not require, the state licensing agencies to waive the CLP knowledge test for persons employed by the military within the last year in a position requiring the operation of a CMV. This rule, coupled with a prior rule, allows state licensing agencies to waive both the knowledge and skills tests for CDL applicants. The rule becomes effective November 27, 2018.
The NLRB is looking to rule on Standard for Determining Joint Employer Status. The comment period runs out November 13, 2018. In this proposal, the NLRB is proposing to establish a standard for determining joint employer status under the National Labor Relations Act. Under the proposal, “an employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.”
Finally, the FMCSA’s Broker and Freight Forwarders Financial Responsibilities comment period ends November 26, 2018. In this congressionally directed rulemaking (from MAP-21), FMCSA is considering eight separate areas for addressing the increasing financial security requirements for freight brokers and forwarders.