Hours of Service Reg Likely to Take Effect As-Is, NPTC Legal Counsel Says
May 01, 2013
Revised hours-of-service rules being contested by trucking and outside parties will probably be adopted as presented by federal authorities, the National Private Trucking Council’s staff lawyer, Rick Schweitzer, told attendees at the group’s annual meeting this week in Cincinnati.
Court of Appeals judges did not seem inclined to change anything during a March 15 hearing considering the American Trucking Associations’ suit against a 30-minute break provision in the rule, he said. Nor did they seem sympathetic toward a complaint against the 11-hour driving period by the safety advocacy group, Public Citizen.
In a long legal saga, the Federal Motor Carrier Safety Administration had revised its Hours of Service proposals after suits from Public Citizen and others. The revisions issued last December by FMCSA failed to completely please anyone, thus the latest suits.
Public Citizen’s complaint had been consolidated with the ATA suit, and ATA, NPTC and other groups contested it, thereby supporting the 11-hour driving time.
One non-trucking group arguing for the 11-hour rule in the federal court proceedings was the United States Chamber of Commerce, which stated that shortening a driver’s time at the wheel would have adverse impact on the national economy, Schweitzer said.
“This is not just a trucking rule, but affects the cost of every product manufactured and distributed in the U.S.,” the Chamber argued in its brief.
“So,” Schweitzer said, “plan on the rules going into effect on July 1as written,” but keep in mind that it might change before then.
The HOS developments were among the NPTC staff legal counsel’s annual legislative and regulatory update to the group’s members. Other activities, he said, include:
- Electronic on-board recorders, or EOBRs – The agency is preparing regs that guard against harassment of drivers by inspectors and law enforcement people. Lack of harassment safeguards caused FMCSA to withdraw a proposed rule in the face of legal challenges.
- Electronic logging devices, or ELDs – ATA has sued over whether paperwork supporting off-duty time is required. As of now, FMCSA’s rule on ELDs does not require it. This is proceeding in court.
- Driver training – A proposed rule requiring minimum training for new drivers of heavy trucks would have required 76 hours of classroom instruction and 44 hours of behind-the-wheel training to earn a Class A Commercial Driver’s License. A final rule was to be published last year and go into effect in July of this year, but FMCSA has withdrawn it because it cannot show how the training would enhance safety.
“This agency is scrambling and, frankly, floundering, in trying to come up with a rule” that would accomplish its goals, Schweitzer said. Meanwhile, FMCSA is holding listening sessions with affected parties around the country to learn about training that actually works. And it is seeking advice from a safety advisory committee.
- National registry of certified medical examiners – Starting in May 2014, truck operators must use an examiner from this registry and not family doctors or other familiar physicians unless they are certified and on the registry.
- Drug and alcohol testing data base – A notice of proposed rule-making is due out this summer on this project, which will make testing results on prospective employees available to employers. This should reduce the chance of hiring drug and alcohol abusers because former employers declined to provide accurate information, which has become the norm as companies seek to avoid being sued by former employees.
- Sleep apnea – FMCSA is working on revised guidance involving drivers who might be suffering from the debilitating and possibly dangerous sleep disorder. First issued in 2008, the guidance will be aimed at medical examiners and employers for screening, testing, diagnosis, treatment and qualification or disqualification of driver applicants.
These won’t be rules, “but will have tremendous potential to affect your driver population,” Schweitzer said, because 20% to 40% of drivers may suffer from apnea.
- Speed limiters – Would be required on Class 7 and 8 commercial trucks built in 1992 or later under a rule being prepared by the National Highway Traffic Safety Administration. The limiters would be set at 65 mph, which should have fuel economy, safety and public image benefits for the industry, and that’s why ATA petitioned for it, he said. NHTSA is expected to issue a notice of proposed rulemaking this July and will set an effective date for some time next year.
- Compliance, Safety and Accountability – FMCSA has changed its methods for intervening with carriers over safety violations. CSA enforcement tools range from warning letters to targeted inspections, and allow voluntary compliance agreements. Among other things, carriers have complained about CSA rankings based on all accidents a company might have had vs. only those for which its drivers were at fault. Aside from at-fault data, carriers want information kept away from shippers and insurance companies.
There are some accident data that seem counterintuitive, Schweitzer said. For example, one of seven “improvement” categories under the so-called BASICs requirements is controlled substances; yet the accident numbers show that the more violations a company’s drivers have, the less likely it is to see crashes and the better it is as a safety risk.
Consequently, CSA rules are being reviewed by several agencies, Congress, and the courts.