2019 May - June Highlights: Motor Regulatory

Hours of Service Notice of Proposed Rulemaking May be Released Soon  

The Federal Motor Carrier Safety Administration (“FMCSA”) has indicated that a Notice of Proposed Rulemaking that changes driver hours of service requirements will be published on June 7, 2019. While these dates often change, it is an indication that the proposed rule will be published soon.  The FMCSA provided the Office of Management and Budget a copy of a proposed rule for its review on March 29. The details of that proposal were not made public, but as previously detailed in Highlights, the FMCSA issued an Advance Notice of Proposed Rulemaking (“ANPRM”) on Aug. 23, 2018 seeking input on changes to the following rules:

  1. Short-haul Operations.  Extending the window of time during which the short-haul exemption from the hours of service recording requirement may be used from 12 hours to 14 hours. 
  2. Adverse Driving Conditions. Extending the driving window during adverse conditions to up to 16 hours rather than 14 hours. 
  3. 30-minute Break.  Drivers must take an off duty break lasting at least 30 minutes within the first 8 hours of driving in order to drive longer than 8 hours in a day (except for drivers using a short haul exemption, which are not subject to the break requirement).  The Owner-Operators Independent Driver Association (OOIDA) has petitioned to eliminate the 30 minute rest break and instead allow a rest break that would pause the maximum 14 hour on-duty period.  TruckerNation.org petitioned the FMCSA to  eliminate the 30 minute rest break and instead allow driving up until 14 hours on duty have been accumulated.  The FMCSA solicited comments on these and other alternatives to the rest break requirement several potential revisions, including eliminating the break requirement, allowing the driver to remain on duty but not drive during the break, or any other alternatives that would add flexibility but achieve the safety benefits of the current 30 minute break.  
  4. Split Sleeper Berth.  Drivers who drive trucks with sleeper berths may use them to pause the on-duty clock, so long as the driver takes at least 8 consecutive hours off duty in the sleeper berth. Taking an additional break of at least 2 hours restarts the hours of service clock as of the end of the first break.  The FMCSA announced a pilot program to allow more flexibility in sleeper berth use, and sought comment on how the sleeper berth provision could be further modified.

83 FR 42631 (Aug. 23, 2018).

There were more than 5,200 comments to the ANPRM.  According to Jim Mullen, chief counsel for the FMCSA, most responders recommend eliminating the rest break requirement, while some would just like more flexibility regarding when to take the rest break.  Many requested an extension of the 100 air-mile “shorthaul” exemption to the hours of service logbook requirement to 150 air-miles.  Most commenters support the ability to split sleeper birth time, although some medical groups have been more cautious.  Most commenters also support adding driving time in the case of adverse conditions. 


FMCSA Allows Alternative Loading for Agriculture

The FMCSA has issued an exemption that allows alternative cargo securement rules for agriculture.  Ever since new cargo securement rules were published by the FMCSA in 2002, agricultural haulers have complained that these rules do not work well for their commodities. Following years of testing by the FMCSA and others, a 2008 report called for a better way to secure fruits, vegetables and bales of hay, straw and cotton.  For the past several years, agricultural haulers in California have been using annual exemptions to use previously existing cargo securement methods for hauling agricultural products.  The FMCSA has issued a five-year exemption for agricultural commodities transported in wood and plastic boxes and bins and large fiberglass tubs, and hay, straw, and cotton bales that are grouped together into large singular units, so long as these commodities are secured using the alternative securement methods provided in the docket at https://www.regulations.gov/document?D=FMCSA-2017-0319-0004


DOT Concurs with Recommendations On Rear and Side Underride Guards, While CVSA Requests that Labeling Requirement for Rear Underride Guards be Removed

More than 200 fatalities from crashes in which a car slides under a large truck trailer are reported on average each year.  The actual number of such fatalities might be higher since some states do not include a field for collecting such data on their crash report forms and police training regarding underride crashes is limited.

The National Highway Traffic Safety Administration (NHTSA) requires rear underride guards -- which help prevent a car from sliding underneath a trailer and makes such a crash safer -- although the guards are not required to be inspected under FMCSA-mandated annual inspections.   Side underride guards are being developed, but their weight may stress trailer frames, which would need to be studied further before wide implementation is adopted.  The National Transportation Safety Board (NTSB) has recommended front guards.  NHTSA intendeds to study this recommendation, however the bumper and lower frame of most trucks are already lower to the ground than the rear of larger commercial trucks and trailers, which may mitigate the front underride risk.

The U.S. Government Accountability Office (GAO) conducted a study and released a report in March in which it made four recommendations.  “GAO recommends that DOT take steps to provide a standardized definition of underride crashes and data fields, share information with police departments on identifying underride crashes, establish annual inspection requirements for rear guards, and conduct additional research on side underride guards.”  Truck Underride Guards: Improved Data Collection, Inspections, and Research Needed, GAO Highlights, March 2019, available at https://www.gao.gov/assets/700/697585.pdf.

Meanwhile, the Commercial Vehicle Safety Alliance (CVSA) has petitioned the FMCSA and NHTSA to remove the requirement that rear underride guards have a manufacturer certification label, stating that: “Rear impact guard certification labels frequently wear, fade or are removed during repair . . .Since carriers are unable to acquire new certification labels from the original equipment manufacturer, there are no reasonable options to meet the certification requirement.”

A label only provides manufacturing information.  It does not indicate the condition of the guard.  When the requirement was put in place, there was a concern that trailer guards would be home-built, which does not appear to have been an issue to this point.  However, removing the labeling requirement could increase the likelihood that such trailers will not be built by a trailer manufacturer.

Last year, at the request of Sens. Kirsten Gillibrand (D-N.Y.) and Marco Rubio (R-Fla.), there was a one-day enforcement effort by CVSA inspectors to examine the condition of rear impact underride guards, which is a requirement of both Level I and Level V inspections.  The data collected that day showed that 72% of trucks did not have certification labels attached to their rear guards.  A missing certification label is not an out-of-service violation, but it does prohibit the inspector from issuing a CVSA decal.


Unpreventable Crashes May No Longer Impact a Driver’s CSA Score

For many years, carriers have complained that their Compliance, Safety, Accountability (CSA) score (which is used to identify unsafe carriers) should not be negatively impacted by crashes that were unavoidable, and not the fault of the carrier.  There are two primary reasons the FMCSA had included all crashes in the CSA score: (1)  studies have shown that crash involvement -- not just fault -- is a strong indicator of future crash risk; and (2) the FMCSA had been concerned that it could not reliably determine fault.  Nevertheless, there is an equitable argument for excluding the negative impact on a carrier’s CSA score when it is unavoidable.[1]  

For almost two years, as part of its Crash Preventability Demonstration Program, the FMCSA has been testing the feasibility of removing crashes from a carrier’s Safety Measurement System profile where the crash is determined to be “not preventable.”  A carrier must request that the decision be made by submitting a request for data review through the agency’s DataQs system, and attaching documentation that establishes the carrier could not have avoided the crash.

The FMCSA is looking to make this system permanent.  There are currently eight categories of crashes that can be challenged, although this may be expanded:

  • where a commercial motor vehicle (CMV) is struck by a motorist driving under the influence,
  • where a CMV is struck by a motorist driving in the wrong direction,
  • where a CMV is struck in the rear,
  • where a CMV is being struck when the commercial motor vehicle is legally stopped or parked,
  • where an individual attempts to commit suicide by stepping or driving in front of a CMV,
  • a crash that damages a CMV after striking an animal in the roadway,
  • a crash in which a CMV is struck by objects such as falling trees or rocks,
  • and instances in which a CMV is struck by cargo or equipment from another vehicle.

The crash also must have resulted in a fatality, bodily injuries requiring immediate medical treatment away from the scene of the crash, or a vehicle being towed from the scene of a crash.

As reported by Frieghtwaves, an FMCSA source told the publication that to make the program permanent “it would not have to go through rulemaking, as it feeds data into [FMCSA’s Compliance, Safety, Accountability] program, which itself was stood up as a tool within the agency to better identify high-risk carriers.”  Government rollout of truck crash preventability program could be quick, Freightwaves, Apr. 2, 2019, https://www.freightwaves.com/news/regulation/government-rollout-of-truck-crash-program-could-be-quick.


[1] It should be noted that avoidability and fault are not synonymous.  A fault determination is one often made by a jury.  The FMCSA has focused on the “preventability” of a crash.

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