National Private Truck Council Washington Report 2016

1. NPTC’s Washington Report
Legislative and Regulatory Update
June 15, 2016
Presented by
Rick
Schweitzer,
NPTC’s General
Counsel

2. Topics for Discussion
• SFD proposal; NPTC comments deadline; FMCSA
statement to delay rule until study completed
• HOS 34-hour restart study; legislative fix for
restart
• Meal and rest break preemption
• Status of other FMCSA rulemakings

3. FAST Act CSA Provisions
• Requires NAS to conduct 18 month study of CSA and SMS
to analyze accuracy of BASICs in identifying high risk
carriers and predicting future crash risk, severity
• Review methodology used to calculate BASIC percentiles,
weights assigned to violations, ties between crash risk
and specific violations, use of non-fault crashes
• Corrective Action Plan to be submitted to Congress 120
days after report; how will FMCSA address deficiencies
• DOT IG to assess whether plan complies with February
2014 IG Report on CSA

4. FAST Act CSA/SFD Provisions
• FMCSA may not make publicly available info on analysis of
violations, non-fault crashes or BASIC percentiles until IG
concerns are addressed
• Also may not use CSA data on alerts or relative
percentiles for safety fitness determinations until IG
concerns are addressed and report to Congress
completed, but may still use data to identify carriers for
enforcement actions
• As of Dec. 4, 2015, BASIC data for property carriers off
CSA website; restored absolute scores March 7, 2016

5. Safety Fitness NPRM
• On January 21 FMCSA published proposed rule to revise
safety fitness rating determinations
• Only one rating—”UNFIT”; all others considered fit
• Monthly carrier assessments using absolute standards
rather than percentile ratings against peers
• Revised list of critical and acute regulations; violations
would result in failing a BASIC
• Will use all investigation results (including roadside), not
just compliance reviews, to rate carriers

6. SFD NPRM
• NPRM has different standards for failing a specific BASIC,
based on correlation to crash risk
• Crash, Drug/Alcohol BASICs will only use investigation
data
• Three ways to be declared unfit:
– Fail two or more BASICs using roadside data (must have 11 or
more inspections with violations over 24 months to fail a BASIC);
– Fail two or more BASICs due to critical or acute violations
identified during an investigation; or
– Fail two or more BASICs based on combination of data from
roadside and investigations

7. NPTC Comments
• NPTC said proposal was premature due to FAST Act study
and corrective action plan
• House FY 2017 DOT appropriations bill would withhold
funding for SFD rulemaking until CSA study is completed
and DOT IG certifies that remedial steps in corrective
action plan have been taken
• Rep. Barletta (R-PA) and 35 other House members sent
letter to FMCSA seeking delay in rulemaking until reforms
are completed; FMCSA agreed to delay rulemaking
• Senate support less certain

8. HOS 34-Hour Restart
• DOT appropriations enacted for FY 2016 requires certification by
DOT IG that restart changes show improvement in all outcomes
related to safety, operator fatigue, driver health and longevity, and
work schedules before agency may revert to prior rules
• But law removed statement that 34-hour restart would remain in
place, just without once every 168 hrs. and 1:00 a.m.-5:00 a.m.
requirements
• FMCSA report to Congress has been drafted; once submitted,
FMCSA would remove the HOS 34-hour restart entirely (revert back
to 2003 HOS rules); all drivers would need to do rolling restart
every 7 or 8 days to determine available on duty time

9. HOS Restart Fix
• Senate DOT appropriations bill for FY 17 would place a
cap on driving after total weekly on duty hours (73
hrs./week) in exchange for 34-hour restart without once
every 168 hrs. and 1:00 a.m.-5:00 a.m. requirements
• Approved by full Senate
• House DOT appropriations bill contains similar language;
reported out of House committee
• Question of whether DOT appropriations bill will pass
separately, or be part of omnibus appropriations bill

10. Meal and Rest Break Preemption
• House appropriations bill would preempt state and local laws from
prohibiting drivers whose hours of service are subject to federal
regulation from “working to the full extent permitted or at such
times as permitted” under those HOS regulations, “or imposing any
additional obligations on motor carriers if such employees work to
the full extent or at such times as permitted” under those
regulations
• Would preempt California and others from imposing additional
meal or rest break requirements on drivers subject to the federal
HOS requirements
• Senate not likely to support this approcch

11. ELD Rule Court Challenge
• OOIDA petitioned for review of electronic logging
device in U.S. Court of Appeals
• March 31 brief argues that final rule did not require
ELDs to automatically record changes in duty status,
as set out in statute; still requires manual insertion of
duty status changes, like paper logs (would require
an impossibility)
• Also argues harassment, privacy issues
• DOT responsive brief due June 15

12. Speed Limiters
• Joint NHTSA/FMCSA proposal to affect all class
7 and 8 vehicles, new and used
• In response to ATA/carrier petition to set
limiters no higher than 65 mph
• Most comments to NHTSA on petition in
support of proposal
• NPRM sent to OMB May 19, 2015; publication
expected sometime this year

13. Entry-Level Driver Training
• FMCSA completed negotiated rulemaking on driver training
curriculum, hours of instruction, self-certification standards
• NPRM published March 7, 2016
• Applicants for Class A CDL would be required to obtain a
minimum of 30 hours of behind-the-wheel training from an
instructional program that meets FMCSA standards, including
a minimum of 10 hours of operating the vehicle on a practice
driving range
• Applicants for Class B CDL would be required to obtain a
minimum of 15 hours of behind-the-wheel training, including
a minimum of seven hours of practice range training.

14. ELDT NPRM
Required course of instruction must be provided by
an entity that:
• Meets the minimum qualifications for training
providers;
• Covers the curriculum;
• Is listed on FMCSA’s proposed Training Provider
Registry; and
• Submits electronically to FMCSA the training
certificate for each individual who completes the
training

15. Sleep Apnea ANPRM
• Joint FMCSA/FRA ANPRM on March 10 seeking
comments on possible highway and rail
rulemakings; comment deadline now June 8
• Seeks data on prevalence of moderate-to-severe
obstructive sleep apnea in personnel
• Requests info on costs and benefits from
regulatory actions that address associated safety
risks, e.g., mandated evaluation and treatment
for those with noted risk factors for OSA

16. Drug and Alcohol Clearinghouse
• On-line clearinghouse of data on CDL drivers
with positive drug or alcohol tests or refusals
to take tests
• Final rule sent to OMB May 20; publication
expected in summer 2016
• Carriers would have to submit positive results
and refusals to database
• Eventually, FMCSA will eliminate inquiries to
prior employers (perhaps after three years of
data collected in clearinghouse)

17. Unified Registration System
• Effective December 31, 2016, all hazmat
private fleets must file evidence of insurance
and all fleets must file agents for service of
process with FMCSA (extension from October
23, 2015 deadline)
• MCSA-1 form will be used for new and
updated registration info as of Sept. 30, 2016;
replaces MCS-150
• MC numbers will no longer be used by DOT; all
carriers identified by USDOT number

18. Contact Info
1717 K Street, N.W. Suite 900
Washington, D.C. 20006
(202) 223-3040
rpschweitzer@rpslegal.com
Presented by
Rick
Schweitzer,
NPTC’s General
Counsel