Drivers Face Host Of New Regulations

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has proposed a number of new regulations applicable to delivery truck drivers. Several of these proposals will become final rules in 2010, and all of them will go into effect within the next couple of years.

Driver Hours of Service

In order to settle the litigation over the current driver hours of service regulations, the FMCSA has agreed to reconsider its November 19, 2008, final rule that imposed the 11-hour daily driving limit and the 34-hour weekly on-duty reset provision. As part of the settlement, the FMCSA agreed to submit a new notice of proposed rulemaking to the White House Office of Management and Budget for review within nine months (by July 2010) and to publish a new final rule within 21 months (by July 2011). During that time, the current hours of service rules will remain in effect.

The FMCSA and Public Citizen, along with the other parties challenging the rule, filed a joint motion with the U.S. Court of Appeals for the D.C. Circuit to approve the settlement agreement and to stay the appeal while the new rulemaking is pending. The court approved the motion for stay.

This settlement is the latest indication from the Obama Administration of a new focus on regulatory enforcement and less cooperation with regulated industries. Although it is not certain that the new hours of service rulemaking will change the current requirements, the FMCSA’s decision to reconsider the rule indicates that the agency is willing to take a different approach than the Bush Administration on motor carrier safety. The fact that commercial motor vehicle accidents and fatalities have fallen significantly in the years since the new hours of service rules have been in effect will weigh against any wholesale changes, however.

Electronic On-Board Recorders

The Obama Administration withdrew a Bush Administration draft final rule on electronic on-board recording (EOBR) devices for hours of service compliance from review at the Office of Management and Budget on January 23, 2009. The Bush draft would have established standards for EOBR design and operation that would go into effect for devices manufactured two years after the effective date of the final rule. In addition, the draft would have continued the current policy of voluntary use of EOBRs by companies unless they had a record of significant hours of service violations or serious recent vehicle collisions.

The Obama version of the final rule is expected to contain a broader mandate for EOBR use by companies operating commercial motor vehicles, if not a complete mandate for every company using CDL drivers. In addition, Democratic leadership in Congress wants to include a statutory requirement for an EOBR mandate in the next highway program bill. DOT is expected to publish its final rule sometime in the middle of 2010.

Supporting Documents for Hours of Service Compliance

This is a 14-year-old rulemaking to reconsider the documents (such as fuel receipts, meal tickets, timecards, etc.) that employers must use to cross-check driver log entries for compliance with the hours of service regulations. At present, there is no required list of documents—employers may use whatever records they keep in the ordinary course of business. Many commenters on the proposed rule have asked to be relieved of the requirement to cross-check supporting documents if they use electronic on-board recorders, as those devices are considered more reliable than paper driver logs.

If the supporting documents issue is not considered in the EOBR final rule, then a new proposed rule will likely be issued sometime late in 2010.

Entry-Level Driver Training

This rulemaking would require behind-the-wheel and classroom training for persons who must hold a commercial driver’s license to operate commercial motor vehicles. This action is in response to the U.S. Court of Appeals for the District of Columbia Circuit’s December 2005 decision remanding the May 21, 2004, Final Rule, “Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators,” back to the FMCSA for further consideration. The rulemaking will consider the effectiveness of CMV driver training in reducing crashes, the appropriate types and levels of training that should be mandated, and related costs.

A proposal published in December 2007 set out minimum hours and curriculum topics for training for Class A, B and C license holders. The requirements would apply to all new applicants and anyone who wanted to upgrade a CDL to a higher level. A final rule is expected late in 2010.

PROPOSED RULE EXPECTED
Hours of Service July 2011
EOBR Mid 2010
Hours of Service Documents Late 2010
Entry Level Driver Training Late 2010
Certified Medical Examiners Mid 2010
Driver Pre-Employment Screening Mid 2010
Texting, Cell Phone Restrictions Current
D&A Test Results Database Development

Entry-Level Driver Learner’s Permits

This rulemaking would establish revisions to the commercial driver’s license knowledge and skills testing standards as required by Congress, implement fraud detection and prevention initiatives at the state driver licensing agencies, and establish new minimum federal standards for states to issue commercial learner’s permits (CLPs). In addition to ensuring the applicant has the appropriate knowledge and skills to operate a commercial motor vehicle, this rule would establish the minimum information that must be on the CLP document and the electronic driver’s record. The rule would also establish maximum issuance and renewal periods, establish a minimum age limit, address issues related to a driver’s state of domicile, and incorporate previous regulatory guidance into the federal regulations. This final rule is also expected to be published by late 2010.

National Registry of Certified Medical Examiners

This rulemaking would establish training, testing and certification standards for medical examiners responsible for certifying that interstate commercial motor vehicle drivers meet established physical qualifications stand- ards; provide an online database (or National Registry) of medical examiners that meet the prescribed standards for use by motor carriers, drivers, and federal and state enforcement personnel in determining whether a medical examiner is qualified to conduct examinations of interstate truck and bus 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 that fail to meet or maintain the minimum standards would be removed from the National Registry. The December 2008 proposed rule is intended to facilitate uniformity in medical examinations for drivers nationwide. But some companies are concerned that strict standards in a final rule will discourage medical personnel from conducting exams and make it more difficult for drivers to renew their medical qualifications. DOT has indicated that a final rule is expected in mid-2010.

Driver Pre-Employment Screening Program

In October 2009, DOT announced a new Driver Pre-Employment Screening Program that will allow employers of commercial vehicle drivers to electronically access driver inspection and crash records as a part of the hiring process. The program was expected to begin in December 2009, but likely will not be operational until mid-2010.

The agency said that by using dri-ver safety information during pre-employment screening, motor carriers will be able to better assess potential safety risks of a prospective driver-employee, and drivers will have additional opportunities to verify the data in their driving history and correct any discrepancies. Commercial driver safety records are currently available to federal and state law enforcement personnel, and accessible to drivers through the Freedom of Information Act (FOIA). Once the Pre-Employment Screening Program is launched, driver safety records will be readily available to motor carriers regardless of state or jurisdiction. In accordance with federal privacy laws, drivers must first give written consent in order for their records to be released.

The Driver Pre-Employment Screening Program will be populated by FMCSA’s Motor Carrier Management Information System (MCMIS). The MCMIS comprises driver performance data, including roadside inspection and compliance review results, enforcement data, state-reported crashes and motor carrier census data.

Texting Ban, Restriction on Cell Phone Use in CMVs

In October 2009, U.S. Transportation Secretary Ray LaHood announced that his agency will issue a rulemaking to ban texting (sending or receiving of text messages) while operating a commercial motor vehicle, and also to restrict the use of any cellular telephone device while operating a CMV.

In addition, President Obama has signed an Executive Order directing federal employees not to engage in text messaging while driving government-owned vehicles; when using electronic equipment supplied by the government while driving; or while driving privately owned vehicles when they’re on official government business. The order also encourages federal contractors and others doing business with the government to adopt and enforce their own policies banning texting while driving on the job.

Drug and Alcohol Test Results Database

This rulemaking would create a central database for verified positive controlled substances and alcohol test results for CDL holders and refusals by such drivers to submit to testing, and would require employers of CDL holders and service agents to report positive test results and refusals to test into the database. Prospective employers, acting on an application for a CDL driver position with the applicant’s written consent to access the database, would query the database to determine if any specific information about the specific driver applicant is in the database before allowing the applicant to be hired and to drive a commercial motor vehicle.

A proposed rule is still in the developmental stage and will not be for comments until sometime in 2011 at the earliest.

Gases and Welding Distributors Association
Meet the Author

Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC in Washington, D.C., and GAWDA’s government affairs and human resources legal consultant. Members can reach him at 202-223-3040 and rpschweitzer@rpslegal.com