Under review

July 1, 2011
The Dept. of Transportation (DOT), following through on an executive order from President Barack Obama, released a retrospective review and analysis of existing rules in an effort to streamline and clarify current regulations, and also to offer the public an opportunity to suggest new proposals. After holding a public hearing and reviewing submitted comments, DOT released a list of 70 rules/regulations,

The Dept. of Transportation (DOT), following through on an executive order from President Barack Obama, released a “retrospective review and analysis of existing rules” in an effort to streamline and clarify current regulations, and also to offer the public an opportunity to suggest new proposals. After holding a public hearing and reviewing submitted comments, DOT released a list of 70 rules/regulations, offering its own comments in addition to petitioner comments.

Among the list are a number of transportation-related issues as well as aviation, infrastructure, and general highway issues.

“Anytime the agency wants to reassess a rule as to whether it benefits the industry, it is a positive,” said Rich Moskowitz, vice president and regulatory affairs counsel for the American Trucking Assns. (ATA). “It is an opportunity for the industry.”

ATA offered several comments on current regulations, including one that the Federal Motor Carrier Safety Administration (FMCSA) agreed needs a rulemaking.

ATA asked that FMCSA eliminate the requirement that CDL holders convicted of violating traffic laws in a state other than the one that issued the CDL notify the issuing state. According to FMCSA's response, it agrees that ATA's concerns are valid and said it will consider “whether it is necessary to retain the requirement for drivers to self-report out-of-state convictions. A rulemaking to rescind the requirement would reduce the paperwork burden on CDL holders without decreasing safety.”

FMCSA also agreed with ATA on two other regulations, but did not indicate immediate action on either issue. The agency agreed to review regulation 49 CFR 392.7, which addresses driver vehicle inspections. ATA said the rule has a number of redundancies and asked the agency to “consider a single pretrip inspection requirement within” the rule. While FMCSA agreed with ATA on this, it believes the additional language “does not result in an unnecessary regulatory burden on the industry.” It did say, though, that as time permits it would review the rule for clarity.

ATA also asked the agency to rescind regulation 49 CFR 396.5(b), which deals with general maintenance requirements. FMCSA said it would review whether the “regulatory language should be revised or amended. However, the rulemaking would not relieve motor carriers of their maintenance responsibility or any associated information collection burdens for maintenance records.”

FMCSA also commented on the state of several of its own rules, including the requirement of electronic signatures. The agency has already issued a regulatory guidance concerning the use of e-signatures, but a proposed rulemaking “would provide significant paperwork reductions and be less burdensome to the industry than the paper records we currently require,” it said.

“That's a perfect example of where changes in processes and technologies have changed” requirements, said Moskowitz.

The Owner-Operator Independent Drivers Assn. (OOIDA) proposed a two-tier controlled substances testing program. OOIDA recommended that drivers who test negative for controlled substances on five consecutive random tests, and who have never had a positive test, “be removed from the pool of drivers subject to a 50% random testing pool.” A separate pool would be created for these drivers subjecting them to a 25% random testing rate.

Because there is no existing evidence that such a program would be successful, OOIDA suggested a pilot program. FMCSA responded by saying it saw no need to consider a rulemaking to change the standards and because a pilot program would not address the difficulty in administering such a program on an industry-wide basis, it did not agree with that suggestion either.

“I suspect they have dismissed that suggestion without looking at the merits closely,” said Todd Spencer, OOIDA executive vice president, told Fleet Owner.

Spencer said that a review of current drug testing results indicates that 99% of all drivers test negative. “There has never really been anything in trucking to show that there is a drug problem,” he said. “How many times does a person need to demonstrate they don't take illegal substances?”

According to Spencer, OOIDA has a number of members who haul for several companies, and by law must be listed as a driver for each, subjecting them to each individual company's drug testing policies. “We have had members who have had six different drug tests in a single year,” he added. “This [proposal] rewards people for complying.”

Bendix submitted comments as well, recommending that NHTSA “increase requirements in its air brake standard in three areas.” Those areas include requiring more trailer axles to be controlled by ABS; require additional monitoring for low air brake pressure, parking brake status, brake adjustment, and tire pressure monitoring on trailer brakes; and require an automatic system to control liftable axles instead of driver control.

According to Fred Andersky, director of marketing-controls for the company, the submission was about clarification of existing regulations related to ABS.

“We're really focusing on helping clarify the regulations that exist [to ensure] that as technology improves [the regulations keep up],” he said.

NHTSA indicated that its next major review of the current regulations is slated for 2018 and Bendix's concerns would be addressed as part of that review.

While the Bendix submissions faced a cool reception from NHTSA, Andersky believes the overall review process is a positive one for ensuring future requirements work for the industry.

“We always appreciate the opportunity to comment on regulations,” he said.

FMCSA also said it would consider the elimination of the requirement for “certain for-hire motor carriers of property to file the annual Form M concerning their revenues, profits, and losses.” The form was a requirement of the old Interstate Commerce Commission, which was eliminated in 1995. According to FMCSA, while DOT still requires the form, it is not used for any data purposes and as such, the agency believes the burden of filing it can be removed from carriers.

There is also a notice of proposed rulemaking (NPRM) that was filed in response to the review that would amend brake system requirements, allowing carriers to “disconnect the brakes on the last axle of a truck tractor being transported as the third unit in a saddle-mount arrangement.” FMCSA said the NPRM was filed on behalf of the industry based on test track data that showed it would have no adverse effect on vehicle safety.

In May, FMCSA issued a final rule on commercial driver's licenses (CDL) and CDL learner's permit (CLP) standards that strengthened the current requirements. “The final rule establishes the minimum information that must be on the CLP document and the electronic driver's record. It also establishes maximum issuance and renewal periods, a minimum age limit, addresses issues related to a driver's state of domicile, and incorporates previous regulatory guidance into the regulations,” the agency wrote.

One interesting aspect of the initiative was the ability of the public to submit suggestions. One such submission came via IdeaScale, an online portal for the general public to submit ideas to DOT. The individual wanted to know why rear cameras are not mandated on commercial refuse trucks. In its response, NHTSA said it is in the process of conducting a rulemaking in the area of improved rear visibility on commercial vehicles and expects to have a final rule ready by Dec. 31, 2011.

About the Author

Brian Straight | Managing Editor

Brian joined Fleet Owner in May 2008 after spending nearly 14 years as sports editor and then managing editor of several daily newspapers.  He and his staff  won more than two dozen major writing and editing awards. Responsible for editing, editorial production functions and deadlines.

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