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Trucking regulatory update: What to watch in 2017

Washington, D.C. attorney Richard P. Schweitzer, PLLC, delivered an overview and update on regulatory items affecting commercial motor carriers.

CINCINNATI. Attendees of the National Private Truck Council's (NPTC) Annual Conference got a rundown of the regulatory items motor carriers need to be aware of this year.

That included updates and status insight on carrier safety fitness determination, driver training standards, proposed speed limiters for heavy trucks and of course, the electronic logging device mandate taking effect in December.

Washington, D.C.-based transportation law and policy attorney Richard P. Schweitzer, PLLC, addressed those items and more in NPTC's latest Washington Report.

34-hour restart

Schweitzer touched on the U.S. Congress' "fix" to the Federal Motor Carrier Safety Administration's (FMCSA) 34-hour restart rule reverting to pre-July 2013 restart for commercial drivers' hours of service.  

FMCSA studied the 34-hour restart and found no significant improvement with the rule regarding driver health, fatigue, safety or longevity, he noted, and the U.S. Dept. of Transportation (DOT) Inspector General confirmed that finding upon review of the study.

"By the language in the fiscal year 2016 DOT appropriations bill, the 34-hour restart remains as-is, and we don't have to talk about it anymore," Schweitzer said. "Just keep doing what you've been doing, and I don't expect there to be any further changes to the Hours of Service rules in the near future."

Safety fitness determination rulemaking

In March, FMCSA withdrew the Obama administration's proposed rule on safety fitness determination standards and processes. The proposed rulemaking would have determined when a carrier is unfit to operate a commercial motor vehicle based on compliance investigations as well as on-road safety data.

The proposed rule would have established a system that instead of having three rating levels — satisfactory, conditional and unsatisfactory — would've been simply one rating of "unfit," with everyone else presumed to be fit.

The problem with that, Schweitzer said, "is that you wouldn't have known whether a carrier had actually been rated or not," such as if a carrier didn't have enough compliance reviews and roadside inspections to provide sufficient data to give the carrier a rating.

"So you'd have just assumed them to be safe, but that would not be a good assumption," he noted.

Congress mandated a study by the National Academy of Sciences (NAS) of the safety methodology behind carriers' Compliance, Safety and Accountability (CSA) scores, which underlies the safety fitness rating methodology that was going to be in this rule.

"That study has begun, and they're looking at whether the methodology really is predictive of crash frequency and crash severity," Schweitzer explained. "And they've been asking the FMCSA some very, very pointed questions about the underlying assumptions and conclusions reached in developing the current CSA program."

One of the largest — though not the only — issues regarding the methodology NAS will address in a report from that study is that FMCSA includes in those scores crashes that were not the commercial motor vehicle driver's fault.

"The expectation is that there's going to be a fairly pointed report that comes out of NAS that's going to look at some serious problems with the Safety Measurement System methodology," he noted. That NAS report is expected sometime this summer, and FMCSA will come up with a corrective action plan within 120 days once it is issued.

Entry-level driver training standards

"We've got a final rule, and there's not a whole lot to say about this at this point," Schweitzer told listeners.  The final rule addresses driver training curricula and has a three-year phase-in period, with compliance mandatory in February 2020.

"This eventually is going to require any applicant for a Class A or B CDL or anyone who wants to upgrade — if you want to get a HAZMAT endorsement or a passenger or school bus endorsement — you'd have to complete a designated knowledge and behind-the-wheel training program from an instructional program that meets the FMCSA standards," he said.

Minimum requirements for how many hours those knowledge and training components would need to comprise were removed from the proposed rule to the final rule.

"The training entities have a number of requirements that they must meet, and the training entities could be motor carriers, they could be driver schools, they could be part of a vocational tech school," Schweitzer added. "But any entity that wants to certify drivers to this curriculum have to certify that they comply with the standards and will be listed in the FMCSA training registry."

Electronic logging devices (ELDs)

"The one final rule that everyone has to deal with this year is the electronic logging device rule," he said. With the ELD mandate taking effect Dec. 17, 2017, with a few exceptions, commercial motor vehicle drivers who are now required to keep paper logs recording their hours of service will need to be using either an ELD or a device meeting older requirements for automatic on-board recording devices, or AOBRDs.

In that latter case, AOBRD users get an automatic two-year extension before they, too, must be using a device that meets ELD requirements.

"All of that's going into effect in December, but we still have a problem with short-term rental vehicles," Schweitzer noted. The problem in that case — with "short-term" being defined as 30 days or less — is that fleets will need to rent a truck that will have an ELD system that doesn't match their own, which is what their drivers will be trained to use.

"So for instance, if you have a fleet that you normally lease or even if you own that fleet and you have an electronic logging device system, you will have a software program in that system. If you have an accident or a repair or seasonal variations in your fleet needs and take short-term rental vehicles, quite often, the ELDs in those short-term rental vehicles are not going to match the ELDs and telematics that your company uses," Schweitzer explained.  

As a workaround to the problem, the Truck Rental and Leasing Assn. (TRALA) has asked FMCSA for a waiver for short-term rental vehicles that would simply let drivers of those vehicles use paper logs.

"FMCSA talked about this during the rulemaking process, but they sort of assumed that the market was going to take care of it," Schweitzer pointed out. "Well, the market's not going to take care of it — at least not in the short-run."

NPTC has supported TRALA's proposed exemption, he said, adding, "I do expect that FMCSA will grant that [TRALA] petition in time for the December deadline."

However, Schweitzer noted that he hasn't heard of any move under the Trump administration to push back the current Dec. 17, 2017 effective date of the mandate.

Speed limiters for Class 7 and 8 vehicles

DOT has proposed speed-limiting devices for all new Class 7 and 8 vehicles, and that technology already has been present in those vehicles "probably since the early 1990s," Schweitzer said.

"The question is whether to require carriers to use these speed-limiting devices, and if so, what speed you're going to require them to set it at," he said. DOT proposed setting upper speed limits of 60, 65 or 68 mph and sought comments on those or some other limit.

"Well, that's really not a proposal — that's just, 'Give us some thoughts,'" Schweitzer contended. DOT's proposed rule would only apply to new vehicles and would not require existing ones to be retrofitted — although that's also a point on which DOT asked for comments. Several U.S. senators have requested that existing vehicles be included.

"What's going to result from this? I think nothing, frankly," Schweitzer posited. "This rulemaking came out of a proposal from [the American Trucking Assns. and a number of motor carriers back around 2007. They thought it was good government at the time; they thought most carriers are using this anyway.

"It made sense, but then when this proposal finally came out, I think a number of carriers looked at it and said it doesn't really make sense to have a single, nationwide upper limit for [commercial motor vehicle] speed," he continued. "What would apply on I-95 in Connecticut with the traffic you have there at 5 o'clock on a Friday afternoon really doesn't apply to someone who's hauling across Montana or Wyoming."

Because of differences in geography, differences in traffic and differences in operation, he concluded, "it makes sense for carriers to limit themselves on a carrier-by-carrier or operation-by-operation basis, but it doesn't make sense to have a one-size-fits-all."

This article was originally published on FleetOwner.com, May 2, 2017.

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