Transcript Regulatory Review: Issues Involving Distribution Fleet

Regulatory Review: Issues Involving
Distribution Fleet Management
Earl Eisenhart
Government Relations Services
202-898-1050
[email protected]
www.insidefmcsa.com
www.grservices.com
It Ain’t Getting Any Easier!
• Fleet and compliance managers face greater
challenges often with fewer resources
• Compliance costs as much as $10,000 per
driver per year according to some estimates
• Is fleet distribution “collapsing” under
regulation? No, but…
Driver Hours of Service
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“The issue that never dies”
Subject to rulemaking and litigation since
2000
Rule changes July 1, 2013 despite nearly
universal industry opposition
“34-hour restart” limited to once in seven
days and must include two periods between
1:00 and 5:00 am.
Minimum 30 minute break before you can
drive again once on-duty for eight hours
Driver Hours of Service
• August 2 DC Circuit throws out 30-minute break
requirement for “short haul”
• Regs contain two definitions of short haul:
1. Drivers (CDL and non-CDL) that operate within 100
air-miles of their normal work reporting location
2. Non-CDL drivers that operate within a 150 air-mile
radius of the location where the driver reports for
duty
• Both are effectively covered by the court ruling
Driver Hours of Service
DC Circuit’s action also important because of what
it says about distinctions between long and short
haul trucking:
1. Short-haul trucking has “far more” in common
with other occupations than it does long-haul
2. Short haul is “greatly under-represented” in
fatigue-related accidents
3. FMCSA did not “offer one word” to justify the
requirements for short haul
Driver Hours of Service
So why does what the court said about short
haul matter?
If you operate short haul, the court’s opinion
might be read as an invitation to challenge the
application of the broader HOS rules to short
haul trucking either in Congress or through
additional litigation
Driver Hours of Service
Where do we stand now with HOS?
• Despite efforts in Congress to “defund” the
July 1 changes as a part of the “CR”, the
changes are likely to stand at least for the near
term
• Question: Now that the new rules are in place
and fleets have adjusted is it better to go back
to pre-July 1 or stay as is?
Electronic Logging Devices (ELDs)
(formally known as electronic on-board recording
devices or EOBRs)
• Notice of Proposed Rule at OMB
• Four elements:
(1) Mandatory requirements for use of ELDs by drivers
subject to HOS
(2) Minimum performance standards for ELDs
(3) HOS supporting documents
(4) Ensure that the use does not result in “harassment”
of drivers.
Obstructive Sleep Apnea
• Issue of “sleepy drivers” – significant cause of
crashes?
• Data is questionable, especially as it relates to
regional and short haul
• Nonetheless has captured the attention of
policymakers
• Years-long effort to add clarity and definition
to existing OSA guidance (directed to medical
examiners that perform DOT physicals)
Obstructive Sleep Apnea
• February 2012 report by an FMCSA-appointed
committee
• Main point of departure: specific BMI of 35
trigger for testing (as much as 30% of drivers!)
• Other factors include age, neck size, crash
history, gender and hypertension.
• New guidance “imminent” (for months!)
Obstructive Sleep Apnea
• Industry concerns about “guidance” as opposed
to rulemaking; costs of screening, treatment ($1
billion a year by 1 estimate!)
• Legislation introduced 9/9 requires any changes
be done via rulemaking.
• FMCSA does about-face same day bill is approved
by House committee – Coincidence??
• 9/26 House passes bill 408-0!
• Proposed rule sometime “soon”
CDL – Medical Certification
• May 10 NPRM – integration of medical
certification information into driver’s CDL status –
latest in series of reforms
• Examiners required to report exam results to an
FMCSA database electronically by close of
business on day of the exam (new report form)
• FMCSA transmits to state DMVs where it is
supposed to be entered into CDLIS (Allows CDL
data to be shared electronically among state
licensing and enforcement agencies)
• Final rule??
Medical Examiner Certification and Training
April 2012 final rule:
Examiners must pass “core curriculum” training and be
tested and certified by a nationally accredited
institution, maintain competence through periodic retraining every 5 years and tested and recertified every
10 years
Deadline: May 21, 2014 (Drivers won’t be qualified
unless cleared by certified examiner)
Medical Examiner Certification and Training
• FMCSA claims it is on track to certify 40,000 examiners by May
21 2014 (Highly unlikely!)
• Process underway; some training and test delivery
organizations have qualified
• Some examiners have become certified, but the real question
is will there be enough?
• May be ok if you happen to be in a major metropolitan area,
but if you are in a rural area or even mid-sized city it could be
a problem.
• Website of certified examiners:
https://nationalregistry.fmcsa.dot.gov
Compliance Safety Accountability (CSA)
• New enforcement methodology under attack
(Safety Measurement System; Seven “BASICs”)
• Crux of the issue: What is the central purpose
and is the methodology “fair”?
• Is FMCSA’s job to determine whether a carrier is
“safe” or to go after bad actors?
• ASECTT lawsuit pending
• Most carriers remain “unrated”
• Question of “accountability” (FMCSA is studying)
• System a “work in progress”
Driver Training
Background:
• In 1991, Congress required DOT to produce an
entry level training rule
• Final rule in 1996 required instruction in four
areas: driver qualification requirements; hours
of service requirements; driver wellness; and
whistleblower protections. (Still with us today;
§ 380.503)
Driver Training
More Background:
• Safety groups sued on the grounds FMCSA had
disregarded congressional intent in failing to include
on-the-road training
• DC Circuit Court agreed and remanded the rule
• FMCSA responded with an NPRM in December 2007:
– Required mandatory classroom and behind-the-wheel
training on specific safety and operational elements
(standard curriculum)
– Training providers would need to be accredited by a
nationally-recognized educational accrediting institution
Driver Training
Yet more background:
• 2007 proposal met with an onslaught of
criticism from industry:
– Excessive costs
– Accreditation requirement
– Prescriptive “hours based” curriculum
– Cost analysis justifying the rule viewed as flawed
• Back to the drawing board
Driver Training
Which brings us to the recent history:
• MAP-21 (July 2012) required the rule be
completed by 10/1/13.
• Last month (right before the deadline) FMCSA
announced it was abandoning the 2007
rulemaking and starting all over! Coincidence?
• Suggested more study needed (FMCSA has
studied since the 1980s!)
Driver Training
Fundamental conundrum:
• FMCSA unable to craft a rule that both meets
congressional intent (as defined by court) and
comes close to justifying the costs
• Notoriously difficult to show significant causal
relationship between training and fewer
crashes
Driver Training
So where does this leave us?
• FMCSA will start a new rulemaking “soon”
• Supposedly based on some new research
• Educated guess:
– No accreditation
– Less prescriptive
Independent Contractor Status
Efforts to limit their use:
• Labor union political initiatives
• Obama Administration/Department of Labor
• State governments
Independent Contractor Status
“Misclassification” and “Right to Know”:
• Aggressive DOL/IRS enforcement
• Right to Know rulemaking
– Written analysis for every worker
– Substantiate classification and exemption status
– Provide to all workers
Independent Contractor Status
• Efforts to repeal or amend Sec. 530 (safe
harbor)
• Tax reform “bargaining chip”?
• State laws
Independent Contractor Status
New Jersey “Truck Operator Independent Contractor
Act” of 2013
• Created legal presumption that a commercial driver is
an employee (as opposed to an independent
contractor)
• Significant criminal penalties for noncompliance
• Passed both houses of state legislature spring 2013
• Lobbying effort by IFDA, AWMA and others
• Governor vetoed 9/9/13
• Expect more of the same!
All of which is to say:
It ain’t getting any easier…
But, help is available to you from organizations
such as IFDA and AWMA and forums such as this
Thank you!
Earl Eisenhart
Government Relations Services
202-898-1050
www.insidefmcsa.com
[email protected]
www.grservices.com