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Upcoming Regulation Updates Discussed by Trucking Industry Experts

September 1, 2021 by Levinson and Stefani Leave a Comment

Motor carrier regulations are expected to see major changes regarding some of the more pressing issues within the industry that the Biden administration has prioritized–but with so many regulation updates in the works, it has been hard to tell when exactly we may see these shifts.

Legal experts discussed this topic at a recent conference hosted by Scopelitis, Garvin, Light, Hanson & Feary, P.C. This three-day Transportation Law Seminar took place on August 26th in Indianapolis, and many professionals throughout the trucking industry made sure to attend.

“If you look at the Unified Regulatory Agenda that the administration released in the spring–the official timeline for rule-making–it’s highly aspirational,” explained American Trucking Associations deputy general counsel, Richard Pianka, during one session of the conference. “Very rarely does anything happen on the timeline that the Unified Agenda suggests.”

For example, the Department of Transportation was expected to implement an updated oral fluid drug testing regulation by May of this year. This rule was one item that was highly-discussed during the conference and is one that has been focused upon by many federal trucking regulators, Pianka explained.

“We saw a pretty major development in 2019 when the Department of Health and Human Services updated the federal workplace drug testing program to include oral fluid drug testing,” he said.

For truck driver drug testing to regularly include oral fluid drug tests, the regulation already in place by the Department of Transportation would need to be changed to include the allowance of fluid testing in general, which, according to Pianka, may take place in the “not too distant future.” This kind of testing could be extremely helpful during accident-related drug tests, as oral fluid drug testing can only detect recent drug use in one’s system.

“Oral fluid drug testing is something we have been waiting on for a very long time, but has been moving at a very slow pace,” added Pianka.

Congress first brought into effect a mandate for a final federal rule regarding hair drug testing at the end of 2015–a mandate expected to be made final by early 2022. This kind of testing has been explained as an alternative to urinalysis drug testing; however, this potential final rule has received criticism by a variety of motor carriers.

This proposal, which has been deemed to be “highly problematic” by Pianka, would urge medical review officers to not solely utilize hair drug testing and to not immediately report findings showing a positive test result from a hair sample.

“What they do is run an alternative specimen, which would–right now–be urinalysis, and report the results of the alternative specimen,” Pianka explained, noting that this kind of testing would present more challenges than intended.

“What this creates is a false negative problem,” he continued. “This would make hair testing in the trucking industry pretty much useless.”

In addition to driver drug testing methods, industry experts at the conference discussed the Federal Motor Carrier Safety Administration’s ability to review the current hours-of-service regulations in place. This discussion comes as the Biden administration has been working to pass a bill requiring FMCSA to analyze the recent changes around this rule and the update’s overall effects on truck drivers and the industry itself.

“The fact that it was in the House bill is an indication that there is a constituency for revisiting the hours-of-service rules,” Pianka said. “It’s certainly a potential issue we’ll see on the horizon.”

Another regulation in the works could urge federal regulators to implement a new rule requiring all new commercial truck models to have automated emergency braking–a rule that would need to be issued within a two-year period.

“This has already been on the National Highway Traffic Safety Administration’s agenda for some time,” said Pianka. “So, we think this has a good chance of becoming law.”

Fleets and independent truckers may see a rise in the minimum insurance requirement, as well, according to Pianka. Additionally, a proposal to remove the current requirement for drivers to immediately report road violations will likely see a final rule in the near future.

“They thought it was redundant that drivers report their motor vehicle records,” explained general counsel for American Trucking associations, Jennifer Hall. “So, you’ll be getting that information from your own queries.”

Screening criteria is also in the works by the National Transportation Safety Board for drivers required to be tested for obstructive sleep apnea, Hall added.

“We anticipate that this could be an issue that we will see coming forward for regulation,” she said.

Tips for Truckers to Stay Hydrated and Healthy During These Heat Waves

August 30, 2021 by Levinson and Stefani Leave a Comment

Temperatures are high across the country, and even potentially dangerous for some truck drivers.

As truckers work to deliver goods throughout the nation, some areas are seeing temperatures as high as 100 degrees during the extreme heat waves taking place this year. Some truckers may not be able to acclimate their bodies to high humidity and temperatures quickly enough during these heat waves, which can be detrimental.

“There’s a fine line drivers must walk between moving freight within the allotted transit times and avoiding heat-related illness during heat waves,” explained Trinity Healthcare owner and medical director, Dr. John Abraham.

Trinity serves as Prime Inc. truckload carrier’s wellness provider, and Prime Inc. works to keep truckers as healthy and safe as possible by educating them on the importance of hydration and urging them to drink plenty of water while they’re on the road.

“When temperatures spike, the primary concern is about the amount of fluid and water that’s in the driver’s system,” said Abraham. “Heat exhaustion and dehydration can cause organ failure and can even lead to death if allowed to go too far.”

Additionally, drivers should focus on the heat index in the area in which they’re driving for a more accurate understanding of weather conditions, as the heat index considers humidity and temperature alike, Abraham added.

“The higher the heat index, the hotter the weather feels,” he said. “That’s because, with the higher humidity, the higher moisture content in the air doesn’t allow sweat to evaporate and cool the skin.”

According to Abraham, as a driver acclimates to hot temperatures, his or her body will become more tolerant and sweat around two to three more liters every hour to expel heat. If the body is unable to properly rid itself of excessive heat, the driver may experience heat exhaustion.

The key, of course, is to stay hydrated with water, as opposed to energy drinks that often contain high amounts of caffeine or sugar, added president of Rolling Strong, Stephen Kane. A hydrating beverage should provide the minerals a driver’s body might lose when sweating in high temperatures.

“Because once you start to become dehydrated, it’s really tough to get back [to being hydrated],” Kane noted.

One’s body temperature also rises quickly when metabolizing large or unhealthy meals, so truckers should do their best to avoid fast food and instead bring lighter meals on the road that are rich in vitamins and minerals. Additionally, sufficient rest is especially helpful for a driver’s body to be able to handle high heat levels, so Kane recommends that drivers understand how much sleep they need for their bodies to perform at their best while on the road.

Wellness and health programs dedicated to truck drivers, like Rolling Strong, have a lot of tips for drivers to stay hydrated and cool while working. Rolling Stone suggests drivers keep coolers in their cabs filled with water bottles and other health drinks, as well as with fruit, cucumber, or other healthy, hydrating snacks to munch on while they drive or take a break.

“Having been dehydrated when I served in the military…[I] had to be taken to the hospital and have an IV put in my arm and two liters of saline solution pumped into me because I got dehydrated,” said Sage Truck Driving School instructor and trucker, Scott Douglas. “I know from experience just how fast [dehydration] can hit you and how bad the results can be when it finally hits you,” he said.

Some signs of heat exhaustion or dehydration can include headaches, nausea, dry mouth, dizziness, or confusion, and drivers should immediately stop operating their vehicles when experiencing any of these symptoms and reach out to their dispatchers, Trinity Healthcare’s Abraham noted. Drivers who tend to drink caffeinated beverages like coffee or soda to stay awake and alert while on the road should counterbalance those drinks with their equivalent amount in water. This amount of water intake should also be in addition to the recommended intake of 90 ounces of water per day for women and 125 ounces of water per day for men.

With Autopilot Capabilities Ramping Up, Public Trust is Imperative

August 27, 2021 by Levinson and Stefani Leave a Comment

Experts are claiming that the progress of safety innovations that come with new vehicle technology may be hindered by the public’s lack of trust or understanding regarding automated driving systems.

“Whether it’s Tesla or anyone else, it is incumbent on these manufacturers to be honest in what their technology does and does not do,” said chairwoman of the National Transportation Safety Board, Jennifer Homendy.

Homendy took over as chairwoman of the agency as Tesla Inc. faced backlash regarding its Autopilot capabilities following the opening of an investigation by the National Highway Traffic Safety Administration on car crashes involving Autopilot-equipped vehicles.

Although Homendy noted that Tesla has been easy to work with during NTSB investigations, she did note that various TV advertisements for Autopilot-equipped Teslas do allude to the idea that these vehicles can brake and steer on their own, although drivers must still be alert and monitoring these systems at any given time while a vehicle is being operated.

Homendy added that some officials even said they themselves believed some of these Tesla models were self-operating during a recent state highway safety conference.

“I was stunned,” Homendy said of those comments. “No, we do not [have self-operating models].”

She also explained in her first address to NTSB staff as chairwoman that she would make it a priority to–within the next 100 days–rename NTSB’s Office of Aviation Safety for it to better reflect its role in analyzing incidents occurring within commercial space travel.

“We are doing a lot, but nobody knows it,” she explained of the Office’s responsibility in these investigations. “We need to demonstrate it to our partners–to our stakeholders–that we’re ready, because we are.”

Additionally, Homendy requested that agency staff complete a regulation draft regarding updated commercial space industry-governing requirements within 60 days. The NTSB has been analyzing and investigating commercial rocket- and space vehicle-related incidents for many years, although the need for these kinds of investigations isn’t especially common. One such analysis included that of the Virgin Galactic space plane’s destruction in 2014.

“I don’t want to be in a situation–God forbid–that something does happen and we don’t have adequate resources,” Homendy explained. “So, I do believe this is an area we do need to expand and include additional expertise.”

Investigation preparation has become vital across many sectors of air transportation, she added, as robotic flying devices and un-piloted drones are currently undergoing design efforts to become future air taxis, and other innovative new methods of aircraft transportation and recreation are also in the works–such as Jeff Bezos’ recent Virgin Galactic Holdings Inc. and Blue Origin LLC ride into space, which Virgin has announced would be a joyride available to others for $450,000 per ticket.

Because of the future of this kind of travel, Homendy is aiming to boost NTSB staff and its capacity budget, as the funding-setting safety board authorization is due for renewal in 2021. The exact number of budget increase that will be requested isn’t yet known, though, she explained.

“The things that the public relies on–timely reports, great recommendations, what’s happened on an investigation [being released] as early as possible–that requires resources,” she added.

A much larger NTSB staff will be necessary for the fast-paced innovations of transportation technology and all that these changes will entail.

“We are in a time of transformational change,” said Homendy. “But, you know, I hear a lot about innovation and a lot about investment. I’m not learning a lot about safety–that’s where we come in. Safety has to be the driver. That’s our role.”

For this purpose, Homendy has requested that NTSB fill the current 50 open jobs within the agency, which makes up more than 12% of all current staff. Still, though, Homendy’s overarching goal is to bring important changes to overall safety within transportation, as she says there is a “very long list” of actions she plans to take in order to do so–including the vast improvement of driver assist system safety. She has made clear her intent to urge Congress to increase agency funding and to help the agency focus on incoming tech capabilities regarding everything from space flight to automated passenger vehicles.

“I think we have a great past,” she said of NTSB, “but I think we have to be future-looking.”

$3.5 Trillion Budget Could Bring Climate Change-Fighting Policies

August 26, 2021 by Levinson and Stefani Leave a Comment

“The House must pass the budget resolution immediately,” said House Speaker Nancy Policy to U.S. House of Representatives Democrats this month. “Doing so will maximize the leverage of our caucus in the budget process, allowing us to proceed first in crafting the [budget] reconciliation bill.”

Pelosi has been working to gain Democrat support regarding a $3.5 trillion budget plan to boost the agenda of the Biden Administration–an agenda including major topics like greenhouse gas reduction and social aid programs and policies. Pelosi also says she’s working toward connecting the budget reconciliation legislation with a previously-passed $1 trillion infrastructure bill.

House Democratic leaders are expected to start discussions of these budget plans with their committees ahead of scheduled voting.

“Our caucus remains united in realizing President Biden’s vision to build back better: creating more jobs, cutting taxes, and lowering health care costs for working families,” Pelosi added. “While the bipartisan [Senate] infrastructure bill offers important progress, it is not reflective of the totality of Democrats’ vision.”

The chamber’s transportation committee is likely to help advance policies within these budget plans as they pertain to severe-weather resilience infrastructure, noted top transportation policymaker of the House, Representative Peter DeFazio of Oregon.

“I have consistently advocated for increased federal investment in America’s infrastructure,” he said. “By investing in our infrastructure, we can create good-paying jobs, support American manufacturing, stop sending jobs to China, and strengthen the economy.”

Safer infrastructure and climate crisis-fighting policies will be DeFazio’s main focus, he added.

“I’m committed to continuing to fight for transformational funding and policies in the [budget] reconciliation process that will reduce carbon pollution from the transportation sector, support American manufacturing and ingenuity, and create infrastructure that is smarter, safer, and made to last,” he said.

Committees will now work to configure a $3.5 trillion budget reconciliation plan after the Senate offered partisan budget package approval; committees will be expected to develop their budget bill portion by mid-September, Majority Leader Chuck Schumer noted. This bill in particular is also sponsored by Bernie Sanders, Budget Committee Chairman.

“We will take on the existential threat of climate change by transforming our energy systems toward renewable energy and energy efficiency,” Sanders said. “With Democrats in control of the Senate, we will use reconciliation to benefit the working class.”

The reconciliation measure within the legislative packages presented by congressional committees will aim to require a simple majority for passage and avoid a Senate filibuster. The Senate’s budget assignment will require further investments in electric vehicle charging infrastructure, severe-weather infrastructure, environmental research programs, and emission technologies to be proposed by the panels which have jurisdiction over highways and freight affairs.

In fact, the Senate Commerce Committee, which has jurisdiction over trucking policy, will be urged to recommend investments of $83 billion in research, manufacturing, economic development, transportation technologies, and coastal infrastructure projects.

For fuel-efficient port construction, environmental justice projects, energy-efficient building construction, climate equity programs, and alternative energy vehicle investments, the Environment and Public Works Committee is also required to propose a $67 billion plan. The Environment and Public Works Committee has jurisdiction over surface transportation policy.

Significant Diesel Emissions Reduction Act funding has also received backing from the Environmental and Public Works panel, the leaders of which claim that this funding will be “a strong federal commitment to state and local air quality grant programs as a mechanism to assist state and local governments in implementing and complying with federal environmental requirements.”

These budget plans have received strong backing from the chairman of the Environment and Public Works panel, Senator Tom Carper of Delaware.

“We move forward with a budget that helps working families in Delaware and across the country, and we should pay for these investments with smart, common-sense policies that ensure that the wealthiest among us are paying their fair share,” he explained. “In the days ahead, we’ll need to get to work on legislation laid out in the budget that will tackle the climate crisis, create good-paying jobs, advance environmental justice, and build a better, brighter future for all Americans.”

UCR Plan-Violating Carriers Subject to Large Fees, Officials Getting Ready to Collect

August 25, 2021 by Levinson and Stefani Leave a Comment

A strict three-tiered plan to help officials identify and contact unregistered motor carriers has been approved by the Unified Carrier Registration Plan’s Board of Directors. The 44,000 motor carriers that have still yet to register with this new plan have either been issued penalties for previous violations or have failed to pay outstanding fees.

The UCR Plan was implemented by Congress in 2005, which includes 41 participating states that have agreed to be part of the plan collecting fees from leasing companies, private carriers of property, motor carriers, freight forwarders, and brokers. For these participating states, the agreement also allows for the allocation of more than $100 million in safety enforcement program funds each year.

“Our motor carrier registration percentages from non-participating states historically lag well behind those of participating states for various reasons,” explained the UCR Plan’s executive director, Avelino Gutierrez. “First, since non-participating states do not register their own UCR-eligible motor carriers for UCR, the non-participating motor carrier will not be actively solicited to register for UCR by anyone in their state. Second, few non-participating states enforce UCR roadside, which is certainly another effective method of getting motor carriers to register on their own.”

Additionally, if non-participating states have domiciled motor carriers that have Department of Transportation numbers, those carriers must still register and pay the related fees. According to Gutierrez, the nine non-participating states have around 35,000 unregistered carriers themselves. The categories of carriers required to pay UCR fees do not include private carriers of passengers, although Mexico- and Canada-based carriers operating within the United States are in fact otherwise subject to the UCR plan agreement.

The current nine states not participating in the UCR program are: Arizona, Florida, Hawaii, Maryland, Nevada, New Jersey, Oregon, Vermont, Wyoming, and the District of Columbia.

Commercial Motor Vehicle Alliance roadside inspectors have been checking the UCR registrations of carriers within participating states since 2013. Registration fees also align with the number of trucks within a carrier’s fleet–carriers with a fleet of over 1,000 need to pay $56,977 in annual fees, whereas carriers with only two trucks must pay $59 each year.

“We agree that great headway can be made if we contact those carriers in this pilot and attempt to register them,” Gutierrez explained. “So, the plan is to have one contractor full-time equivalent contact the motor carriers–about 50 a day–starting with those with the highest number of power units and moving to those with lower numbers of power units, to be more efficient in our return.”

A pilot project is in the works that would aim to help officials more easily contact motor carriers reporting a number of power units that is in contradiction with the number that is declared in their Federal Motor Carrier Safety Administration form (MCS-150), which mandates brokers or carriers accurately define all aspects of their operations. However, three other pilots are the main focus of the UCR plan at this time, and none of these pilots would be geared toward freight forwarders or brokers.

All of these potential pilots will likely “be the first step of the board in taking action on the enforcement side of the registration equation,” Gutierrez added.

According to Gutierrez, the first pilot will focus upon raising nearly $450,000 in collections from just 20% of carriers that will be contacted–a violation that will likely cost around $85,000 for each contractor.

The next pilot estimates that more than 5,600 new carriers entering the industry in non-participating states have failed to register, although many of them may not yet understand that this kind of registration is indeed necessary. Collections from these failures to register will likely bring in around $383,000, Gutierrez estimates.

Thirdly, the next pilot will focus upon other motor carriers who have already been cited for failing to register. With 1,800 of these kinds of violations having already been issued in 2021, the UCR Plan estimates that around 3,500 total motor carriers may be in violation of registering by December.

780,000 Driver Exam Results Requested by FMCSA

August 24, 2021 by Levinson and Stefani Leave a Comment

“FMCSA is aware that while many medical examiners have submitted results of examinations conducted while the National Registry was offline, others still have not done so,” said the Federal Motor Carrier Safety Administration in its pre-publication notice released in the Federal Register. “FMCSA estimates that approximately 14,000 medical examiners still have examinations results to upload.”

This statement comes as federal regulators are requesting around 14,000 medical examiners to submit missing truck driver exam results, an issue arising half a year after an inspector general audit was conducted by the Department of Transportation.

These results were said to be missing following a National Registry of Certified Medical Examiners system outage which occurred after a cyberattack effort. Now, The Federal Motor Carrier Safety Administration has formally requested this missing information, noting that it is now clear that a “significant number” of medical examiners have yet to submit their exam results from examinations taking place between December 2017 and August 2018, when the registry was down.

FMCSA has requested that examiners upload their missing information by the end of September of this year.

“FMCSA seeks up to 780,000 driver exams from [the] 2017 National Registry shutdown,” announced FMCSA in a recent tweet.

In the inspector general audit from January 15th, it was made clear that a myriad of data accuracy- and efficiency-related weaknesses were able to “limit the effectiveness of FMCSA’s oversight.” These holes in the monitoring methods of medical examiner qualifications by federal regulators showed that these efforts were not able to accurately determine whether or not a trucker’s physical and safety qualifications were up to standards.

Additionally, the entire registry system was removed from its online platform following a potential registry hack occurring in December of 2017.

“Unfortunately, during the outage, medical examiners were not able to access their National Registry accounts to upload results of examinations conducted,” explained FMCSA in its announcement. “Medical examiners were encouraged to continue conducting physical qualification examinations and issuing medical examiner’s certificates to qualified commercial motor vehicle drivers.”

The National Registry includes a list of all certified medical examiners, including more than 50,000 physicians that have been deemed qualified to conduct physicals on commercial vehicle drivers by the FMCSA. Additionally, all qualified medical examiners must be licensed within the state in which they conduct all of their examinations. They must also pass a mandatory test and meet all necessary requirements relative to training.

In FMCSA’s updated registry mandate, all medical examiners must now report each individual commercial driver’s physical exam results from June of 2018 on. These results must also include those regarding exams in which a driver was deemed not sufficiently qualified to operate a commercial motor vehicle safely.

At the time of FMCSA’s announcement, the agency also explained that it was made clear to all examiners that they would need to efficiently prepare and submit all examinations conducted throughout the outage separately, and that once the system was finally operating properly once again, these missing exam results would need to be uploaded as soon as possible.

A physical exam conducted by a qualified medical practitioner is valid through the Department of Transportation for up to two years. Additionally, the examiner is able to issue an exam certificate that would be valid for a shorter period of time if a particular condition in a driver requires regular monitoring. Typically, exam results must be submitted to the National Registry system by midnight of the day following the examination itself.

Because technology issues have apparently been an issue for FMCSA in the past, the agency has proposed delaying the redesign of its National Registry for four years, although the system is currently operating adequately. The National Registry website platform was first implemented by FMCSA in April of 2021, and medical examiners have since been required to upload a commercial motor vehicle Driver Medical Examinations Results Form (MCSA-5850) for every physical exam conducted throughout the entirety of the previous month. This is applicable for any examination of any driver required to undergo examinations by an examiner listed on the registry itself.

In 2015, this mandate was amended to require examiners to report their results by the next calendar day, including results in which a driver was not deemed qualified.