Lawsuits and delays dog regulatory/legislative process

The National Private Truck Council’s general counsel, Rick Schweitzer, provided attendees at the organization’s Annual Management Conference and Exhibition this week with an update of the regulations and legislation that may (or may not) impact truck fleets in the future. The long list of proposed and pending rules and Congressional actions is tangled with lawsuits, delays, surprising reversals and even the disappearance of proposed rulemakings from the roster.

 Cincinnati. The National Private Truck Council’s general counsel, Rick Schweitzer, provided attendees at the organization’s Annual Management Conference and Exhibition this week with an update of the regulations and legislation that may (or may not) impact truck fleets in the future. The long list of proposed and pending rules and Congressional actions is tangled with lawsuits, delays, surprising reversals, and even the disappearance of proposed rulemakings from the roster. If fleets are feeling some uncertainty about what lies ahead, it is no wonder.

The perpetually besieged Hour of Service rulemaking, for instance, is being challenged in two separate lawsuits, Schweitzer explained. The American Trucking Associations are challenging the new clock reset period, while a public citizens’ group is going after the 11-hour daily driving limit, arguing that it is still too long to be safe.

“The current rule holds until July of 2013,” he told attendees, “but a lot could happen before 2013.”

NPTC is also hoping to enter the fray, according to Schweitzer. If the court allows it, the organization intends to file a “Friend of the Court” brief in order to support ATA’s suit and back FMCSA’s (the Federal Motor Carrier Safety Administration’s) defense of the current 11-hour limit.

“We want to inform the court that this is not just a trucking industry issue,” he said. “It affects distribution operations everywhere and increases the cost of transportation.”

The courts also vacated the proposed EOBR (electronic onboard recorder) rule in response to a lawsuit, this time from OOIDA (the Owner-Operators’ and Independent Drivers’ Association), which successfully challenged the regulation for failing to address required anti-harassment protections. In response, FMCSA “just withdrew that rule and moved on with another version,” Schweitzer noted. “The problem is that this anti-harassment language also applies to this rulemaking.

“We do expect a supplemental notice of proposed rulemaking to address this issue,” he added. “It will probably be published early next year.”  In the meantime, ATA’s lawsuit asking for an order to implement the current supporting documents portion of the EOBR regulation has yet to be heard. It would give fleets currently using EOBRs some relief from having to maintain both electronic and paper supporting documents. 

The proposed rulemaking on entry-level training requirements for new commercial vehicle drivers and those seeking CDL upgrades falls into the “mysterious disappearances” category, according to Schweitzer.  “Last month, this rulemaking just disappeared [from the list],” he said. “My guess is that it was vacated as ‘arbitrary and capricious’ because FMCSA could not defend the specific hours of training it would have required. [I expect it will be reintroduced at some point, however.]”

The CDL proposed rulemaking also contained language changing the definition of liquid bulk tanker to include vehicles carrying a total of over 1,000 gallons of a gas or liquid (hazmat or other) even if it is divided into smaller tanks. ATA and others had petitioned for reconsideration of this portion of the rule which broadens the requirement for tanker endorsements.

When it comes to the existing ban on texting and cell phone use, Schweitzer advised fleets to be proactive. “Companies should have cell phone policies in place for all drivers,” he said. “Fleets should make it apply to everyone who drives a company vehicle, not just to truck operators. Make it as strict as you think you can stomach.”

The ban does not apply to CBs or two-way radios. It also permits drivers to dial a cell phone if they can do it by touching just one button.

A rule requiring carriers, not medical examiners, to report positive drug or alcohol test results and refusals to be tested was also expected to become final on April 12, Schweitzer noted. However, it missed a prior deadline so the timeline is uncertain for now. “This will be a big benefit to fleets when it arrives,” he said.

Speed limiting devices for all Class 7 and 8 new commercial vehicles and those manufactured after 1992 are the subjects of yet another proposed rulemaking. The limit would be 65 mph—slightly lower than the originally proposed 67 mph thanks to a petition by ATA.

On April 20, FMCSA came out with new proposed standards for screening commercial motor vehicle drivers for sleep disorders, including sleep apnea. The rule would have revised existing 2008 guidelines, but it was withdrawn one week after its introduction. Schweitzer said he expected to see it reissued sometime in the fall.

“Fleets are looking at this as part of a driver wellness program—an investment in their labor force,” he said.

When it comes to CSA, Schweitzer noted that “it still has a couple of problems,” most notably that accident data is still not restricted to at-fault accidents only and that the separate BASIC for hazmat carriers has yet to be issued.

“They also have to come up with a new rating methodology for carrier fitness,” he said, noting that he did not expect to see it before late next year at the earliest. According to Schweitzer, it is a question of whether CSA has, in fact, already imposed new fitness standards illegally without the required notification and opportunity for public comment.

By next year, Schweitzer said the industry will probably also see the “Wet lines” rule that would prohibit external piping on tank trucks. “The retrofit cost could be upwards of $8,000 per vehicle--- that is if the technology to do it works,” he noted.

A rulemaking by OSHA this spring was also targeted to tankers. It is intended to bring U.S. hazardous communications practices for labeling and classification into line with the United Nations system, which uses icons or symbols rather than words. While the changes will be phased in, all affected employees are required to be trained on the new system by December 1, 2013.

Schweitzer also reviewed the messy and mired Highway Funding program which has been surviving on temporary extensions. “It is probably going nowhere until 2013 after the election,” he predicted, noting that the ban on so-called earmarks has, ironically, made it tougher to pass.

“I am starting to come around to the idea that those earmarks were good,” he commented. “I think they were the reason things got passed. [Everybody used to have a project of their own tucked into the proposal that they wanted to see funded.]”

A measure calling for repeal of the federal excise tax is also expected to “go nowhere,” at least for now. [end]

 

 

 

 

 

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