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Driver Rules: On the hot seat

Nov. 11, 2013

The life of a truck driver is no Sunday drive in the park.  Nor is it any picnic for the fleet owner who must stay on top of the rules that affect how that driver makes his or her living and how that impacts the trucking operation.

Industry experts who closely track regulatory matters report there are significant changes in driver-related rules in the works.  And the next spate of federal regs could include some rules that will be more onerous for fleet executives than for the drivers they manage.

The road ahead

Driver rules on the horizon at the top of the watch list include those around:

  • Requiring sleep-apnea evaluation/treatment
  • Mandating the use of electronic logging devices (ELD)
  • Revising scoring aspects of the Compliance, Safety, Accountability (CSA) program
  • Determining entry-level driver training standards
  • Establishing a clearinghouse for drug/alcohol-use violations
  • Eliminating the need to create/retain driver vehicle-inspection reports (DVIR) when no defects are noted

But also keep an eye out for developments on rules that would:

  • Further change hours-of-service (HOS) regs
  • Mandate truck-speed limiters
  • Allow persons with insulin-treated diabetes to drive without a medical waiver
  • Prohibit “driver coercion”

Trucking lobbyists have cheered the recent passage of legislation that will require the Federal Motor Carrier Safety Administration (FMCSA) to follow its full rulemaking procedure—rather than merely furnish a “guidance”—when it addresses the issue of sleep apnea’s impact on commercial drivers.

This means FMCSA will have to hold hearings and review comments about the costs and benefits of sleep-apnea regulations before devising any.  Yet fleet owners may lose sleep themselves once rules are issued because the costs to comply with them may be nightmarish. 

Weighing in on that cost factor will be crucial for fleets, as industry stakeholders contend that screening, diagnosing and treating the estimated 28% of drivers afflicted with some degree of apnea could cost trucking about $1 billion annually.  A notice of proposed rulemaking (NPRM) on this is expected to come out sometime next year.

Despite technology’s rapid development, a rule mandating the use of ELDs in place of handwritten driver logs has been a long time coming.  Specifically, per FMCSA, this rule would set minimum performance standards for ELDs and establish requirements “for the mandatory use of the devices by drivers currently required to prepare handwritten records of duty status.”

“A supplemental notice of proposed rulemaking (SNPRM) now at the Office of Management and Budget (OMB) is currently for review,” advises David Heller, director of safety & policy for the Truckload Carriers Assn. (TCA).  “We should expect it to hit this fall as the agency continues to seek information for its rulemaking.”

Logging time

“The proposed ELD rule is in its final review process,” points out Dave Kraft, director of industry affairs for Omnitracs.  “This rule was originally scheduled to be published [this month], but there is a possibility that with the government shutdown [in October] that it will be delayed.  FMCSA has also indicated it plans to lengthen the comment period.  But we won’t know more details until the proposed rule is actually published.”

According to Richard P. Schweitzer, general counsel for the National Private Truck Council (NPTC), the language of the SNPRM will mandate the adoption of ELDs by all carriers in interstate commerce, except those employing only short-haul drivers.

He says the final ELD rule is on track to be issued in 2014.  Phase-in would come within two years after the effective date of the final rule—meaning no earlier than sometime in 2016.

Since being rolled out over three years ago, FMCSA’s CSA safety-compliance program has seen its share of so-called “planned improvements.”  But expect yet more tweaking ahead of this complex regulatory structure.
TCA’s Heller notes that trucking stakeholders are awaiting the results this fall of two studies under way, including one by the General Accounting Office (GAO), on how CSA scores the safety performance of carriers.

Visual changes

“FMCSA is planning to make changes to the CSA safety-management system site,” relates Omnitracs’ Kraft.  “These changes will affect how information is presented on the website.

“They will also provide additional information that will help improve the understanding of the CSA safety measures,” he adds, which, of course, would be welcome news for fleet executives.

NPTC’s Schweitzer points out that along with the GAO, CSA is now under review by FMCSA itself as well as by lawmakers on Capitol Hill and by federal courts. 

“The CSA issues under scrutiny,” he advises, “include the controlled substance, driver fitness and crash BASIC (Behavior Analysis and Safety Improvement) segments.

“The controlled substance BASIC is viewed as having a negative correlation to crash risk,” he continues, “while the driver fitness BASIC is regarded as having a weak correlation to crash risk.  And the crash BASIC is getting looked at because it uses data from all crashes—not just those in which the carrier is at fault.”

As to driver training, TCA’s Heller relates that the recent withdrawal of the entry-level driver training rulemaking occurred because FMCSA decided to “start fresh on this—after working on it for six years, during which it held two listening sessions and received over 700 submitted comments.”

There is no timetable as to when a new rule may be proposed.

Long sought by trucking is a national database that would function as a clearinghouse for drug/alcohol-use violations by CDL holders.  “That rulemaking is also currently at OMB and is delayed in the review process,” advises TCA’s Heller.

“The clearinghouse rule would create an online database for positive drug and alcohol test results of CDL drivers, as well as track refusals to submit to those tests,” says NPTC’s Schweitzer.  “The rule would require carriers to report positive tests and refusals into the database so that prospective employers could query the database—with written permission from the driver—regarding the applicant’s [drug/alcohol testing] record.”

The DVIR withdrawal rule is another one that will be welcomed by fleets.  “The proposed DVIR rule published in August will eliminate the requirement to create and retain driver vehicle-inspection reports when no defects are noted by a driver,” explains Schweitzer. 

He notes that vehicle-inspection requirements will remain unchanged and that the driving force behind this rule was the acceptance by FMCSA that only 5% of the inspections denoted defects.  Once the DVIR withdrawal is in effect, the Obama Administration estimates it will save trucking $1.7 billion in labor and administrative costs annually.

TCA’s Heller sees HOS in a holding pattern, but only because both “Congress and the industry are awaiting the results of a study conducted by FMCSA about the rule’s restart provisions.”

Although no one is predicting more adjustments immediately to the HOS rules, rest assured attempts will be made to adjust these regs.

“Despite back-to-back judicial decisions overturning the rule in each case, FMCSA refused to make changes to the maximum daily and weekly driving and work-hours allowed by the current HOS rule,” Joan Claybrook, consumer co-chair of the nonprofit Advocates for Highway & Auto Safety, argued before a House committee this summer.

Down the road

Then there’s the one about how fast trucks will get to go.  “FMCSA and the National Highway Traffic Safety Administration are working up an NPRM on truck-speed limiters,” says Omnitracs’ Kraft.  “There is no schedule for this rulemaking yet, but [the proposed rule] can be expected in late 2014.”

There’s also good news for some drivers.  An NPRM defining a diabetes-permissible standard is expected to come out late in 2014.  Per FMCSA, this action would allow drivers with insulin-treated diabetes mellitus to operate trucks without seeking an exemption.

Last, but certainly not least, there’s the NPRM due soon that would prohibit what FMCSA terms “driver coercion.”  Under such a rule, explains Omnitracs’ Kraft, it would be “illegal for a driver of a commercial motor vehicle to be coerced by a motor carrier, shipper, receiver or transportation intermediary to operate said vehicle in violation of a regulation.”

Click for more on:

General Business: Health & taxes

Equipment: Regulatory curve

Drivers: Hot seat

Operations: Cat’s cradle

Maintenance: Double-edged sword

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