Driver Regulations Still In Flux

As Washington makes the change in administration, there are several rulemakings on commercial motor vehicle driver safety still in the works. The Department of Transportation (DOT) issued a new final rule on driver hours of service on December 17, 2008. The rule kept the 11-hour daily driving limit and the 34-hour weekly on-duty reset provisions that have been in effect since 2005. But Public Citizen, the Teamsters and other highway safety advocacy groups have twice challenged these rules in the federal court of appeals. Each time, the court has sent the rulemaking back to DOT, and each time, DOT has reinstated the same rules with additional justification from scientific research in the record.

This time, Public Citizen and its allies have decided not to go back to court. Instead, they have filed a petition for reconsideration of the final rule with the Federal Motor Carrier Safety Administration of DOT, hoping that the Obama administration will agree that the rules allow drivers to work too many hours. Yet the petition ignores the fact that fatalities have declined in each of the two full years the rules have been in effect, and that both drivers and management generally applaud the flexibility provided in the regulations. There is no deadline on when DOT must act on the petition, and in the meantime, the current rules remain in effect.

In addition, DOT has sent a final rule on Electronic On-Board Recorders (EOBRs) to the White House Office of Management and Budget (OMB) for review before publication in the Federal Register. The National Transportation Safety Board has long advocated mandatory EOBRs on all commercial motor vehicles to track driver hours. But the DOT rule is not expected to mandate EOBRs for all vehicles. Rather, the rule likely will continue to allow companies to use EOBRs on a voluntary basis unless they meet one of two exceptions:

  1. The company has two compliance audits within a two-year period in which more than 10 percent of their driver logs are non-compliant; or
  2. A company vehicle is involved in an accident resulting in a serious injury or fatality. In those cases, the company would be required to equip all of its truck fleet with EOBRs and use them for hours of service compliance for two years.

DOT also has drafted final rules for minimum training standards and for learner’s permits for Commercial Driver’s License (CDL) drivers. The proposed rules set out minimum curriculum standards and hours for training before a trainee may apply for a CDL. The certificate of completion of the training program will be a condition of qualifying for a CDL. The driver must also pass a written test to get a learner’s permit in order to take the training program.

These rules have not yet been sent to OMB for review, so it is likely that the Obama appointees within DOT will want to give them further consideration before finalizing the rules for publication. They probably will not be published in the Federal Register until late in 2009.

Finally, DOT has completed two rulemakings that will amend the commercial driver medical examination requirements. One rule would require interstate CDL holders to provide a current original or copy of their medical examiner’s certificates to their State Driver Licensing Agency (SDLA). The rule would also require the SDLA to record on the Commercial Driver License Information System (CDLIS) driver record the self-certification the driver made regarding applicability of the federal driver qualification rules and, for drivers subject to those requirements, the medical certification status information specified in the rulemaking.

The second rule would establish training, testing and certification standards for medical examiners responsible for certifying that interstate commercial drivers meet established physical qualifications standards; provide an online National Registry of medical examiners that meet the prescribed standards for use by companies, drivers and federal and state enforcement personnel in determining whether a medical examiner is qualified to conduct examinations of interstate truck drivers; and require medical examiners to transmit electronically to FMCSA the name of the driver and a numerical identifier for each driver that is examined. The rulemaking would also establish the process by which medical examiners who fail to meet or maintain the minimum standards would be removed from the National Registry.

OMB has completed its review of these two medical qualification rulemakings, and they will likely be published in the Federal Register in the very near future.

Gases and Welding Distributors Association
Meet the Author
GAWDA Government Affairs & Human Resources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC in Washington, D.C. Members can reach him at 202-223-3040 and at rpschweitzer@rpslegal.com.