In this post-COVID and possible recession environment, there has been a lot of federal regulation discussions that may make 2023 a big year for the trucking industry.
There are 12 DOT Trucking Regulation topics that you should be aware of as we approach the new year.
- COVID HOS Waiver
- Virtual SAP
- Drug and Alcohol Clearinghouse
- California AB5
- FMCSA to Limit Emergency Relief
- Electronic Identification
- ELD Changes
- Revised Medical Examiner Handbook
- Broker and Freight Forwarder Changes
- Safety Fitness Procedures
- Automatic Emergency Braking
- Automated driving systems
- Speed Limiter
This is a lot to cover, so let’s get right into it.
What DOT Regulations are Ending?
COVID HOS Waiver
For nearly two-and-a-half years, truckers hauling relief loads have received an exemption from some of the hours-of-service regulations under a federal emergency declaration.
FMCSA is ending the exemption and associated regulatory relief in accordance with 49 CFR § 390.25 on October 15, 2022.
Although motor carriers have utilized this waiver for thousands of trips during that span, the Federal Motor Carrier Safety Administration (FMCSA) is aware of only two crashes related to the declaration. Both were single-vehicle crashes, and neither yielded major injuries.
While HOS waiver ended, FMCSA did issued a three-month waiver extension for commercial learner’s permit (CLP) holders seeking to take a skills test for a commercial driver’s license (CDL) and for states administering CDL skills tests until Feb 28, 2023.
On April 4, 2020, ODAPC provided supplemental information specific to performing remote evaluations by Substance Abuse Professionals (SAP) of an employee who has violated DOT drug and alcohol regulations.
In other words, SAPs could voluntarily choose to conduct a remote “face-to-face” evaluation and assessment. But this temporary policy ends December 31, 2022.
Will this eventually become a permanent option? Only time will tell.
What DOT Regulations are Coming?
California Trucking Association is pushing for another injunction with final briefs due Dec. 2, 2022. After that, the court will decide whether to schedule any hearings. On Dec 7, 2022, OOIDA requests preliminary injunction against AB5. The state must file its response in March, and a hearing on the preliminary injunction is scheduled for May.
The CTA and OOIDA are in negotiations over their legal rights to try and protect the independent contractor model. Some options being discussed:
- Business as usual and wait and see what law enforcement does
- Carriers cancel leases and report drivers as employees
- Two-check model—One check for the use of the truck and another check for the driver. Driver must declare truck income separately, and
- A carrier may become a broker and use owner-operators with their own operating authority
For now, the brokerage model is the most likely solution. This will be interesting to watch next year.
FMCSA to Limit Emergency Relief
As a result of the pandemic, FMCSA wants to limit emergency regulatory relief in 5 areas to prevent constant waiver extensions when it may not be necessary. For example, Presidential declarations of emergency will trigger a 30-day HOS exemption but Governors, or their authorized representatives, would trigger for only 5 days.
This change would both shorten the time the automatic regulatory relief is in place as well as limit the scope of relief provided, ensuring that any impact on safety continues to be minimized during the period of the automatic regulatory relief.
FMCSA determined that the period of 5 days for automatic relief was appropriate for regional declarations of emergency, as its experience in monitoring emergency declarations demonstrated that in most cases, the actual emergency (e.g., the specific weather event or highway accident) is over within 5days.
Drug and Alcohol Clearinghouse
Effective January 6, 2023, the FMCSA clearinghouse will become the sole query source for employers to meet the requirement to identify prospective drivers with drug and alcohol violations.
Right now, carriers must request previous employment for drug testing history and query the Clearinghouse database.
While this saves time, employers are still required to reach out for other DQ file required history. DOT Rule 49 CFR Part 391.23 describes what is required by DOT on an employment verification report.
Generally, within 30 days, the DOT requires employers to verify an applicant’s safety performance history with their past employers for at least the past three years including commercial driving history.
Automated driving systems
This notice proposes to amend certain regulations to ensure the safe introduction of automated driving systems (ADS) equipped commercial motor vehicles.
The proposed changes to CMV operations, inspection, repair, and maintenance regulations prioritize safety and security, promote innovation, foster a consistent regulatory approach to ADS-equipped CMVs, and recognize the difference between human operators and ADS.
The proposed publication date is January 18, 2023.
Broker and Freight Forwarder Financial Responsibility
When should a dispatch service be considered a bona fide agent? What role do bona fide agents play in the transportation of freight? The FMCSA has considering stakeholder comments and have an interim guidance in place.
Since there are differences in the definition of a broker in different sections of federal regulations, the FMCSA is aiming to stop certain dispatch services that claim to qualify as “bona fide agents” of motor carriers who are likely to be engaged in unauthorized brokerage.
In June, the Agency asked for help to inform future guidance on the definitions of broker and bona fide agents, while also clarifying the level of financial penalties for unauthorized brokerages.
Now, after reviewing stakeholder comments, FMCSA released a notice that seeks to clarify the statutory and regulatory definitions of the terms “broker” and “bona fide agent” in response to a mandate in the Infrastructure Investment and Jobs Act (IIJA).
First thing first, the FMCSA says this interim guidance “does not have the force and effect of law and is not meant to bind the public in any way, and the document is intended only to provide information to the public regarding existing requirements under the law or agency policies.” Check out the details here.
Safety Fitness Procedures
In 2016, a proposed Safety Fitness Determination (SFD) rule would replace the current three-tier federal rating system of “Satisfactory, Conditional and Unsatisfactory.”
The rule would apply to any federally regulated commercial motor carriers with a single determination of “Unfit”, which would require the carrier to either improve its operations or shut down.
FMCSA plans to gather information on how it can more effectively identify “unfit” trucking companies and remove them from the nation’s roadways.
They will accomplish this by seeking public comment about the use of available safety data, including inspection data, in determining carrier fitness to operate and possible changes to the current three-tier safety fitness rating structure.
The proposed publication date is January 30, 2023.
Automatic Emergency Braking
NHTSA believes AEB systems represent the next wave of potentially significant advances in vehicle safety.
“Dynamic brake support and crash-imminent braking are AEB systems that potentially save lives and reduce moderate and less-severe rear-end crashes that are common on our roadways.”
The rulemaking is expected to propose performance standards for AEB systems on heavy trucks and accompanying test procedures to measure the performance in NHTSA compliance testing.
Among 20 carmakers that have pledged to install automatic emergency braking systems in all their cars by 2022, NHTSA said that by the end of 2019, four of those manufacturers have met that goal: Tesla, Volvo, Mercedes, and Audi with many others likely meeting this goal today.
The proposed publication date is January 30, 2023.
FMCSA has released a notice of intent to proceed with rulemaking to mandate speed limiters on most heavy-duty trucks, restarting a process that had been dormant for six years.
Right now, there is no suggestion on what the speed-limiter should be set for, such as 65mph, 68 mph, or 75mph and, if a rule is submitted, we will likely not see it affect drivers until 2024-2026.
The only consensus is most large-truck equipment manufacturers already added the technology needed for speed-limiters to become a reality since OEMs have been installing electronic engine control units (ECUs) in CMVs since 2003.
The FMCSA said they plan to proceed with the speed limiter mandate and will consider whether additional regulatory actions should be taken concerning CMV manufacturer requirements.
The agency has targeted June 30, 2023, as the planned date to release a supplemental notice of proposed rulemaking on “Heavy Vehicle Speed Limiters.”
FMCSA is considering a rulemaking to require all commercial motor vehicle (CMVs) operating in interstate commerce to have an electronic ID system capable of wirelessly communicating a unique ID number when queried by a Federal or State motor carrier safety enforcement personnel.
Electronic screening (e-screening) projects are designed to identify high-risk motor carriers/CMVs for roadside inspection, and to reduce operating costs for safe and legal motor carriers.
FMCSA is undertaking an operational test of Level VIII Electronic Inspections to enhance its current process for monitoring and enforcing motor carrier and driver safety compliance.
This test will provide insight into several of the issues being considered in this rulemaking.
FMCSA released a notice requesting truckers, motor carriers, and ELD providers to comment on 5 areas of the ELD regulations.
The 5 areas that the government is looking for comments on include:
- pre-2000 engine trucks,
- ELD malfunctions,
- ELD providers,
- ELD tech specifications, and
- the ELD certification process.
The agency is hoping to simplify, clarify, or improve the regulations.
But one question they want comments on may require more truckers, who tried to escape getting an ELD, to get one.
Also, ELDs will be enforced in Canada starting January 1st, 2023. Each jurisdiction can fine you if you do not have a compliant ELD that is on the Canadian-approved ELD list, which includes some Geotab, Motive, Omnitracs, and Pedigree ELDs. This means U.S. drivers who are or plan to haul into Canada must have a compliant ELD.
When it comes to enforcement, in March, the Ontario Court of Justice published a set of fines related to the electronic logging mandate:
- Exceeding maximum driving or on-duty time ($320)
- Failing to take required off-duty time ($320)
- Failing to retain ferry receipts ($250)
- Driving a commercial vehicle with no ELD solution ($250)
- Using more than one ELD ($250)
- Tampering with the ELD ($400)
Revised Medical Exam Handbook
The FMCSA is set to publish an updated version of the Medical Examiner “ME” Handbook after 7 years since a draft version was removed from public view.
The updated MEH and related Medical Advisory Criteria provide information about regulatory requirements and guidance for MEs to consider when making physical qualification determinations along with established best medical practices.
The issue the government is hoping to remedy is that the draft handbook has never been a final rule, which providers use “as guidance”. This caused a lot of confusion on what interpretations MEs can make.
The FMCSA Medical board has been fighting this for years to make a final version and hopefully offer some consistency with providers.
If you thought the government would be out of your hair, guess again!
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