FMCSA Rulings Drive Changes

Talk About March Madness! The Federal Motor Carrier Safety Administration was very busy the last weeks of March. Rulings and proposed rulings were released on the use of Electronic Logging Devices for driver-hours-of-service compliance; an online clearinghouse for information on CDL drivers’ drug and alcohol test results and refusals to test; the use of certified medical examiners for medical qualification exams; medical card requirements; and legislation that extends exemption from certain safety regulations for deliveries of propane. Phew!

FMCSA Releases ELD Proposed Rule

The Federal Motor Carrier Safety Administration has released its proposed rule to mandate the use of Electronic Logging Devices for driver-hours-of-service compliance. The proposal will be published in the Federal Register in the next few days. The mandate would become effective 2 years after the effective date of a final rule. But the FMCSA would allow continued use of Automatic On-Board Recording Devices, installed under 49 CFR § 395.15 before the compliance date, for an additional 2 years beyond the compliance date of a final rule.

As expected, the proposed rule would mandate that interstate motor carriers install ELDs in all CMVs operated by drivers who are now required to prepare paper Records of Duty Status, subject to a limited exception for drivers who are rarely required to keep RODS. If a driver is required to use an ELD, the motor carrier must not require or allow the driver to operate a CMV in interstate commerce without using the device. Drivers in operations not requiring RODS may use ELDs to document their compliance with the HOS rules, but are not required to do so. Furthermore, under the proposal, drivers currently allowed to use timecards to document HOS compliance could continue that practice.

Drivers who need to use RODS infrequently or intermittently would be allowed to continue using paper RODS, provided they are not required to use RODS more than 8 days in any 30-day period. For example, a driver who is exempt from completing a paper log because he does not operate beyond the 100 air-mile limit and returns to the normal work reporting location within 12 hours would still be exempt from the ELD requirement and would complete a paper log for each day that he goes beyond the 100 air-mile limit or is on duty for more than 12 hours, as long as he did not exceed the exemption limits more than 8 days in any rolling 30 day period.

The proposed rule would prohibit carriers from using the information provided in ELDs to harass drivers, including drivers being pressured to exceed HOS limitations and inappropriate communications that affect drivers’ rest periods. But the FMCSA said that carriers may use the devices “to improve productivity or for other appropriate business practices.”

Manufacturers of ELDs would have to certify that their devices meet FMCSA technical requirements, and register certified devices with the agency. The FMCSA would publish a list of certified devices on its website, and carriers would only be able to use certified ELDs listed on the FMCSA website. In addition, the proposal would limit the supporting documents that a motor carrier must maintain by specifying the number, category and required elements for a supporting document and, subject to a limited exception, would not require supporting documents that reflect driving time. Carriers would still need to retain documents to certify a driver’s on-duty, not driving periods, however.

For every 24-hour period a driver is on duty, the motor carrier would be required to maintain not more than 10 supporting documents from the following five categories:

  • Bills of lading, itineraries, schedules, or equivalent documents that indicate the origin and destination of each trip;
  • Dispatch records, trip records, or equivalent documents;
  • Expense receipts;
  • Electronic mobile communication records, reflecting communications transmitted through an FMS for the driver’s 24-hour duty day; and,
  • Payroll records for the driver’s 24-hour duty day, settlement sheets, or equivalent documents that indicate what and how a driver was paid.

If the carrier does not create at least 10 supporting documents during a 24-hour period for a driver, the carrier would not be required to create additional supporting documents. In addition, motor carriers whose drivers use paper logs would also need to maintain toll receipts.

The proposed rule would also eliminate the former proposals that each motor carrier maintain an HOS Management System and that a motor carrier certify as to the lack of supporting documents showing required elements.

FMCSA Publishes Drug and Alcohol Clearinghouse Proposal

The Federal Motor Carrier Safety Administration has published a proposed rule to establish an online clearinghouse for information on CDL drivers’ drug and alcohol test results and refusals to test. 79 Fed. Reg. 9703 (February 20, 2014). The proposed rule would require FMCSA-regulated motor carrier employers, Medical Review Officers (MROs), Substance Abuse Professionals (SAPs) and consortia/third party administrators (C/TPAs) to report verified positive, adulterated and substituted drug test results, positive alcohol test results, test refusals, negative return-to-duty test results and information on follow-up testing. The proposed rule would also require employers to report actual knowledge of traffic citations for driving a commercial motor vehicle while under the influence of alcohol or drugs.

The proposed rule would establish the terms of access to the database, including the conditions under which information would be submitted, accessed, maintained, updated, removed and released to prospective employers, current employers and other authorized entities. Finally, it would require laboratories that provide FMCSA-regulated motor carrier employers with DOT drug testing services to report, annual summary information about their testing activities.

This rulemaking was mandated by Congress in MAP-21. Once the rule is final, it will allow prospective motor carrier employers to query the database (with the driver applicant’s written permission) about an applicant’s drug and alcohol test history. The proposal would not, however, eliminate the requirement under the current rules that employers also seek this information directly from the driver applicant’s prior employers.

According to the FMCSA, for each of the past three years, federal and state safety inspectors have conducted approximately 3.5 million random roadside inspections of commercial vehicles and of their drivers. In 2013, on 2,095 occasions, or in 0.23 percent of the unannounced inspections, a CDL holder was immediately placed out-of-service and cited for violating federal regulations governing alcohol consumption. In 2012, FMCSA records show that there were 2,494 violations of this regulation. In 2013, on 1,240 occasions, or in 0.13 percent of the unannounced inspections, a CDL holder was placed immediately out-of-service and cited for violating federal regulations governing controlled substances. In 2012, FMCSA records show that there were 1,139 violations of the controlled substances regulation.

Medical Examiner Certification Becomes Effective May 21, 2014

As of May 21, 2014, commercial motor vehicle drivers will only be able to use medical examiners who are registered on a federal certification database to perform their medical qualification exams. The National Registry of Certified Medical Examiners is a new Federal Motor Carrier Safety Administration program that requires all medical examiners who wish to perform physical examinations for interstate commercial motor vehicle drivers to be trained and certified in FMCSA physical qualification standards. Medical examiners who have completed the training and successfully passed the test are included in an online directory on the National Registry website. As of May 2014, CMV drivers will be required to be examined and qualified only by an ME who is listed on the National Register.

The core curriculum for the ME training and certification process focuses on those areas of 49 CFR Part 391 applicable to driver physical qualifications. In addition, the curriculum asks the examiners to inquire about a CMV driver’s history of any sleeping or respiratory disorders, including obstructive sleep apnea. Companies using certified MEs for their driver exams are already reporting an increase in drivers sent for sleep apnea screening.

There are concerns that not enough medical examiners will be certified by May 21 to meet industry needs. The FMCSA is monitoring the situation and has said that there will be enough certified examiners nationwide, but perhaps not in some remote areas. Thus, GAWDA members are encouraged to have their drivers whose medical cards will expire in the next few months seek medical exams before the May 21 deadline with currently qualified medical examiners in order to avoid a driver having to travel long distances to find a certified ME after May 21.

FMCSA Extends Medical Card Requirement for One Year

The Federal Motor Carrier Safety Administration has extended until January 30, 2015, the requirement that interstate drivers subject to: (1) either the commercial driver’s license (CDL) or the commercial learner’s permit (CLP) regulations as well as (2) the Federal physical qualification requirements under 49 CFR part 391, must retain paper copies of their medical examiner’s certificate when operating a commercial motor vehicle. The rule will be published in the Federal Register in the next several days. Interstate motor carriers are also required to retain copies of their driver’s medical certificates in their driver qualification files.

In December 2008, the FMCSA issued a final rule requiring that a driver’s medical certification record be merged with state-issued CDLs. States received support from FMCSA to implement the necessary IT system upgrades and merge the records into one, online database – the Commercial Driver’s License Information System (CDLIS). The FMCSA has now issued the one-year extension because some states are not yet in full compliance with the new system.

This rule does not, however, extend the compliance dates for the State driver’s license agencies to collect and to post to the CDLIS driver record the CDL holder’s self-certification about applicable standards and the medical examiner’s certificate.

State rules vary widely, however, and GAWDA members are encouraged to ask their state DMVs about the correct procedure for ensuring that a driver is medically qualified and licensed to drive a commercial motor vehicle.

President Signs Propane Exemptions until May 31, 2014

The U.S. House of Representatives and the Senate have passed, and President Obama has signed into law, legislation that extends the federal government’s exemption from certain safety regulations for deliveries of propane and other home heating oils through May 31, 2014. H.R. 4076, the Home Heating Emergency Assistance Through Transportation Act, extends the Federal Motor Carrier Safety Administration’s exemption from driver hours of service requirements and certain other regulations (but not CDL or drug and alcohol testing rules) for drivers who are providing emergency relief. The bill passed the House by voice vote, and then passed the Senate by unanimous consent without amendment. The bill was signed by President Obama on March 21, 2014.

Gases and Welding Distributors Association