Transportation law



Regulatory and Legislative UpdateAugust 2019ContentsRegulation and EnforcementFMCSA proposes expanded crash preventability determination programLabor Department: Sleeper berth time may be excluded from driver work time FMCSA issues ANPRM on revising agricultural commodity, livestock definitionsELD exemption denied for carriers with fewer than 50 employeesFMCSA plans to extend some driver training rule deadlinesFlexibility proposed for CDL knowledge test locationsFMCSA proposes to adopt inspection and audit certification practices as regulationCMV drivers convicted of human trafficking permanently banned from drivingFMCSA to study assaults against minority and female truck driversComment period extended regarding broader younger driver pilot programComment period extended regarding automated drivingWestRock’s limited exemption renewedDOT adjusts civil penalties for inflationLegislationHouse bill would raise minimum carrier liability insurance to $4.9 millionBill would mandate automatic emergency braking systems on CMVsBill would require passenger motor carriers to notify and mitigate trip delaysAdvocacy and Comment HYPERLINK \l "preventability" COMMENT: Crash preventability determination program HYPERLINK \l "REMINDER" REMINDER: FMCSA requests feedback on driver detention left45720Regulation and Enforcement020000Regulation and EnforcementFMCSA proposes expanded crash preventability determination programBased on its two years’ experience with a demonstration program, the Federal Motor Carrier Safety Administration announced that has decided to operate a crash preventability demonstration program that would use a streamlined process and exclude from Safety Measurement System metrics those crashes found to be not preventable. In an August 5 Federal Register notice, FMCSA also said that it would tweak the existing list of reviewable crashes slightly and would begin reviewing additional crash types to determine whether they, too, are predominantly not preventable. Crashes through July 2019 would be reviewable under the demonstration program, which will continue through September. Also, crashes reviewed during the demonstration program would remain in the calculation of the SMS Crash Indicator BASIC.FMCSA invited comments on the proposal by October 4. However, the published document is not a formal notice of proposed rulemaking (NPRM). In June, the Motor Carrier Regulatory Reform (MCRR) coalition of 10 trucking-related organizations submitted a petition to FMCSA for a rulemaking in the event it planned, as publicly announced, to change how it analyzes and publishes data on motor carrier crashes. A major problem with FMCSA’s approach is that the term “preventability” does not equate to carrier fault or a systemic violation of safety violations, the MCRR coalition argued. Although FMCSA plans to make changes in the allowable crash types and in the review process in October, the agency said proposed SMS changes would go into effect only after review of comments.FMCSA is modifying the existing crash types under the demonstration program slightly. The most significant change is to expand “motorist under the influence” to “individual under the influence” to allow for non-preventable findings of crashes involving impaired pedestrians and bicyclists. The agency also plans to test eight additional crash types that frequently were submitted during the demonstration program but did not qualify under the terms of the program. In a couple of cases, FMCSA will test non-preventability determinations for crashes where another driver involved in the crash – but not the one striking the CMV – was under the influence or driving in the wrong direction. Other crash types FMCSA plans to test include those where the CMV is struck:On the side in the rear;By a vehicle that did not stop or slow in traffic;By a vehicle that failed to stop at a traffic control device;By a vehicle that was making a U-turn or illegal turn;By a driver who experiences a medical issue that causes the crash;By a driver who admits falling asleep or to distracted driving.The agency said it planned to review the new crash types for 24 months, but it may cut that short if it gathers enough information to discontinue the type or make further changes.FMCSA acknowledged that because SMS is a relative system, removing crashes from the Crash Indicator BASIC may increase the percentiles of other carriers, potentially resulting in a higher percentile for a carrier that had no additional crashes. The agency noted, however, that the Crash Indicator BASIC percentiles are not publicly available and can be accessed only by the motor carrier, FMCSA, and law enforcement users. “This change would not change any carrier’s safety fitness rating or ability to operate, not would it establish any obligations or impose legal requirements on any motor carrier.”For the Federal Register notice, visit . Labor Department: Sleeper berth time may be excluded from driver work timeAddressing a newly controversial issue due to court action and state regulation, the U.S. Department of Labor (DOL) on July 22 issued an opinion letter declaring that employers do not have to count as truck drivers’ work time periods when drivers have been relieved of all duties and are permitted to sleep in a sleeper berth without any interruption from the employer. For the exclusion to apply, the driver cannot have any responsibilities – i.e., remaining on call or doing paperwork, for example – during the sleeper berth period.Prior guidance from DOL was more complex. For sleeper berth time to be excluded, the prior guidance required that “adequate facilities” had to be available. Also, only up to 8 hours of sleeper berth could be excluded in a trip 24 hours or longer, and no sleeper berth time could be excluded for trips under 24 hours.The earlier DOL guidance apparently had not been much of a factor in most carriers’ driver compensation practices, but it became a big issue in October when a federal judge in Arkansas refused to dismiss a lawsuit against P.A.M. Transport that alleged that the carrier had violated the Fair Labor Standards Act by failing to pay for sleeper berth time. However, in that decision, the judge suggested that his decision was based on the language in 29 CFR 785.22(a) and would have been the same even if the DOL interpretation had contradicted the court’s own view. For a copy of opinion letter FLSA2019-10, visit The DOL opinion letter on sleeper berths is the second issued by the Wage and Hour Division since April that has a potentially significant impact on trucking. The first was not specific to truck but concerned the important issue of worker classification. (See Regulatory Update, May 2019.)FMCSA issues ANPRM on revising agricultural commodity, livestock definitionsFMCSA issued an advance notice of proposed rulemaking (ANPRM) seeking comment on whether and to what extent the agency should revise or clarify the definitions of the terms “agricultural commodity” or “livestock” in the hours-of-service regulations. During harvesting and planting seasons as determined by each state, drivers transporting agricultural commodities, including livestock, are exempt from hours-of-service (HOS) requirements from the source of the commodities to a location within a 150-air-mile radius from the source. FMCSA said the ANPRM was prompted by indications that the current definitions of the terms may not be understood or enforced consistently.The scope of the agricultural commodity exception has generated considerable interest since implementation of the electronic logging device mandate as precise compliance is now essential. It is an area that also has generated quite a bit of interest in Congress in the form of bills introduced and questions at hearings, but the only tangible result of this interest so far has been an ELD exemption for livestock haulers that has been in place for over a year. Comments are due September 27. For the Federal Register notice, visit exemption denied for carriers with fewer than 50 employeesFMCSA has rejected the application of the Small Business in Transportation Coalition (SBTC) for an exemption from the electronic logging device (ELD) requirements for all motor carriers with fewer than 50 employees, including, but not limited to, one-person private and for-hire owner-operators of CMVs used in interstate commerce. The agency said the SBTC application does not meet the regulatory standards for an exemption because SBTC failed to provide the name of any individual or motor carrier that would be responsible for CMV operations or an estimate of the total number of drivers and CMVs that would be operated under the terms and conditions of the exemption. Nor did SBTC explain how an exemption would achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained by complying with the regulation. For the Federal Register notice, visit . FMCSA plans to extend some driver training rule deadlinesCiting information technology challenges, FMCSA is proposing to extend the compliance date by two years for two provisions of its entry-level driver training rule. All elements of the rule currently are slated to take effect February 7, 2020, but the agency said more time is needed to develop the electronic interface that will receive and store training certification data from training providers and transmit the information to state driver licensing agencies (SDLAs). The delay also would give SDLAs more time to modify their IT systems as needed to accept driver-specific data from the Training Provider Registry (TPR), FMCSA said. Other provisions of the rule would be implemented as scheduled. By February 7, 2020, training providers must be listed on the TPR, and drivers seeking a commercial driver’s license (CDL) or endorsement on or after February 7, 2020, must complete the required training established in the rule. Comments on the NPRM are due August 19. For the Federal Register notice, visit proposed for CDL knowledge test locationsFMCSA issued an NPRM to allow driver applicants to take the CDL general and specialized knowledge tests in a state other than the applicant’s state of domicile. Under the proposal, a state would not be required to offer the knowledge tests to out-of-State applicants. However, if the testing state elects to offer the knowledge tests to these applicants, it would transmit the results to the state of domicile, which would be required to accept the results. Comments are due September 27. For the Federal Register notice, visit . FMCSA proposes to adopt inspection and audit certification practices as regulationIn a move that would implement a requirement of the Fixing America's Surface Transportation Act (FAST Act), FMCSA issued an NPRM to incorporate by reference the current policy and practices for FMCSA employees, state or local government employees, and contractors to obtain and maintain certifications for conducting driver or vehicle inspections, safety audits, or investigations. The FAST Act requires FMCSA to incorporate by reference in its regulations the Commercial Vehicle Safety Alliance’s (CVSA) “Operational Policy 4: Inspector Training and Certification.” The CVSA policy is currently an attachment to FMCSA’s certification policy for employees performing inspections, investigations, and safety audits. The proposed rule also would replace an interim final rule in place since 2002 that referenced the certification procedures published on the FMCSA website. Comments on the NPRM are due September 6. For the Federal Register notice, visit . CMV drivers convicted of human trafficking permanently banned from drivingFMCSA issued a final rule implementing statutory changes in the “No Human Trafficking on Our Roads Act,” which prohibits an individual from operating a CMV for life if that individual uses a CMV in committing a felony involving a severe form of human trafficking. The rule adds such crimes to the list of offenses in the Federal Motor Carrier Safety Regulations (FMCSRs) permanently disqualifying individuals from operating a CMV. The final rule sets a September 23, 2019, effective date, although states have up to three years to come into full compliance. For the Federal Register notice, visit . FMCSA to study assaults against minority and female truck driversFMCSA said in a Federal Register notice that it plans to study of the prevalence and seriousness of the problem of harassment and assaults against minority and female truck drivers. The agency said it had gathered documentary and anecdotal evidence for a serious pattern of crimes against female and minority truckers and has retained research firm Battelle to develop and conduct a survey of truck drivers to gather additional information. FMCSA said it does not currently provide materials or training to truck drivers on how to protect themselves from being stalked, harassed, assaulted or robbed. FMCSA said it would not use the results of the study for rulemaking but rather to develop training and materials aimed at reducing assaults. For the Federal Register notice, visit period extended regarding broader younger driver pilot programFMCSA has extended until August 14 the deadline for comments on a potential demonstration program to study allowing 18- to 20-year-old drivers to operate in interstate commerce. This program would be in addition to the very limited one underway involving younger drivers with military experience operating heavy equipment. To view the request for comments and the comments submitted to date, visit period extended regarding automated driving changesFMCSA extended until August 28 the deadline for comments regarding Federal Motor Carrier Safety Regulations (FMCSRs) that may need to be revised or eliminated to facilitate the safe operation of commercial motor vehicles (CMVs) equipped with automated driving systems (ADS). The agency is considering changes to its rules to account for differences between human operators and ADS. To view the request for comments and the comments submitted to date, visit ’s limited HOS exemption renewedFMCSA has renewed the limited exemption from the 14-hour window and 10-hour off-duty rules for WestRock’s shipping department employees and occasional substitute CDL holders who transport paper mill products short distances between its shipping and receiving locations on a public road. The exemption is restricted to a specific route in Chattanooga, Tennessee. For the Federal Register notice, visit adjusts civil penalties for inflationThe Department of Transportation on July 31 published its annual adjustments to civil penalties for violations of certain DOT regulations, including those issued by FMCSA. For the 2019 civil penalty schedule, visit bill would raise minimum carrier liability insurance to $4.9 millionRep. Jesus Garcia (D-Illinois) and six co-sponsors on July 17 introduced legislation (H.R. 3781) to increase the minimum financial responsibility requirements for motor carriers from $750,000 to $4,923,154. The figure was arrived at based on government medical-cost inflation from 1980 when the liability insurance minimum was set at $750,000. The bill also would require DOT to adjust the minimum insurance levels for inflation every five years. For more information on H.R. 3781, visit . Bill would mandate automatic emergency braking systems on CMVsRep. Henry Johnson (D-Georgia) and six co-sponsors on July 17 introduced legislation (H.R. 3773) to require new CMVs to be equipped with an automatic emergency braking system. The bill also would require that such systems be used while the CMV is in operation. For more information on H.R. 3781, visit . Bill would require passenger motor carriers to notify and mitigate trip delays Rep. Bennie Thompson (D-Mississippi) and 25 co-sponsors on July 10 introduced legislation (H.R. 3628) that would require interstate passenger motor carriers to adopt contingency plans for dealing with excessive delays in service that involves motor coaches with 50 or more seats. The contingency plans would require providing food, water, and lavatory facilities and a full refund with complimentary travel to the destination in the event of a delayed arrival of 3 hours or more. Carriers also would be required to notify passengers of (1) delays of 1 hour or more; (2) cancellations; and (3) diversions. The bill sets out methods and frequency for notice and establishes a civil penalty of at least $50,000 for violations of the bill’s requirements. For more information on H.R. 3628, visit and Comment020000Advocacy and CommentCOMMENT: Crash Preventability Determination ProgramThis long regulatory update indicates a higher level of Agency and legislative activity to be commenced before the 2020 election cycle. The most important issue is the “preventability” notice discussed above. The Agency is attempting to avoid scrutiny of the program as required by rulemaking, the Administrative Procedures Act, the FAST Act, and administrative rulings. The preventability standard has not been vetted, the Agency has not provided for due process or judicial appeal or offered any justification for publishing preventability findings which the Agency itself cannot use or prove with any certainty affects carrier compliance. This is the most important issue because past experience has taught publication of roadside data using artificial standards and statistical flaws results in misuse by shippers, insurers and particularly plaintiff’s bar to the detriment of the vast majority of carriers who are unrated.MCRR has filed a formal Petition for Rulemaking well in advance of the Agency’s notice which to date has been ignored. Now is the time for the Agency to withdraw its Notice and Request for Comments. This issue is too important to allow the Agency to summarily avoid making findings of fact and conclusions of law in the required rulemaking process or the safeguard against bureaucratic overreach. Readers who are interested in this issue should email info@ and request participation with MCRR members in responding to this issue.REMINDER: FMCSA requests feedback on driver detention In the July Regulatory Update, we discussed the Request for Information published by the Agency concerning detention. Comments are due September 9. MCRR will be coordinating the filing of timely comments. Please contact us at info@ if you would like to be included. To view the Federal Register Notice entitled “Request for Information Concerning Commercial Motor Vehicle Driver Detention Times During Loading and Unloading,” visit . ................
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