Note: FMCSA has extended the emergency declaration related to COVID-19 through June 14. For the latest FMCSA guidance related to COVID-19, visit https://www.fmcsa.dot.gov/COVID-19.
Regulation and Enforcement
- Changes in HOS rules to take effect September 29
- FMCSA temporarily allows remote compliance reviews
- OOIDA seeks changes in broker disclosure regulations
- FMCSA rejects carrier’s bid for sleeper berth flexibility
- Carrier seeks exemption for alternative securement on metal coils
- Entertainment industry group wins limited relief on clearinghouse queries
- Bus operations get exemption from CMV interchange marking rules
- Fireworks firm gets holiday exemption from 14-hour rule
- Grote seeks exemption to allow pulsating warning lamps
- Laydon gets exemption for repositioning of lamps
- Lytx gets exemption for windshield placement
- House passes bill to loosen restrictions on PPP
- Senate panel approves bill giving states flexibility in spending FMCSA grant funds
Advocacy and Comment
Regulation and Enforcement
Changes in HOS rules to take effect September 29
The Federal Motor Carrier Safety Administration (FMCSA) issued a final rule, effective September 29, to provide more flexibility to truck drivers in several aspects of the hours-of-service (HOS) regulations. As with all prior HOS changes, the new rule is certain to draw a judicial challenge from safety advocates and, perhaps, the Teamsters union, which also has publicly opposed the rule.
The final rule adopts FMCSA’s proposed rule with one major exception and one minor one. The final rule changes HOS regulations in four areas: The short-haul exception to electronic logging devices (ELDs); adverse driving conditions; the 30-minute rest break; and use of sleeper berths for split rest. The rule:
- Extends the maximum duty period allowed under the short-haul exception (which allows use of time sheets instead of ELDs) from 12 hours to 14 hours and extends the maximum radius in which the short-haul exception applies from 100 to 150 air-miles;
- Modifies the adverse driving conditions exception by extending by two hours the maximum window during which driving is permitted and by revising the definition of prior knowledge. Current regulations allow two more hours of driving, but not another two hours for the window;
- Requires a break after 8 hours of consecutive driving (instead of the current 8 hours on duty) and allows a driver to satisfy the requirement using on-duty, not driving status, not just off-duty status; and
- Expands the sleeper berth option for split rest to allow a 7-hour/3-hour split as well as the current 8-hour/2-hour split and – perhaps more important – excludes the shorter period of the split from the calculation of the maximum 14-hour driving window.
The changes from the notice of proposed rulemaking (NPRM) include withdrawal of a proposed change in the mechanics of the 14-hour driving window and a tweak to language related to adverse driving conditions. The agency chose not to adopt a provision that it had proposed initially to allow a pause in the 14-hour driving window of up to three hours if drivers took an off-duty break. Although FMCSA said it did not necessarily agree with opponents on the merits, it conceded that the issue warranted more study. Several groups had argued that the provision could lead to greater detention time given that there would be fewer consequences on drivers’ productivity during a given shift.
The other change from the NPRM is closer to a clarification than a major change. Under the longstanding adverse driving conditions exception allowing more driving time under certain circumstances, a key qualification has been that the qualifying condition was not known to the dispatcher before the trip. FMCSA said that because of changes in availability and use of technology, drivers on the road often can evaluate situations that could not be foreseen before dispatch or the start of a duty day. As revised, the definition allows the exception under conditions that are unknown, or could not reasonably be known, to the driver immediately before the start of the duty day or before resuming driving after a sleeper berth break, or to the motor carrier immediately before dispatching the driver.
Petitions for reconsideration are due July 1. For the June 1 Federal Register notice on the final rule, visit https://www.federalregister.gov/d/2020-11469.
FMCSA temporarily allows remote compliance reviews
FMCSA on May 19 said that until the president revokes COVID-19 national emergency it will conduct compliance reviews and issue safety ratings even if they do not include an “on-site” component in order to limit exposure risk for the regulated community and safety standards. The agency said in a guidance document that since adopting the safety fitness rating methodology (SFRM) in 1997, the mechanisms and tools it uses to access information from motor carriers has evolved.
“Although the definition of “compliance review” in 49 CFR 385.3 describes these reviews as ‘on-site,’ in practice, the advent of electronic recordkeeping and other technology now allows FMCSA to perform the same investigative functions remotely that it could perform previously only by in-person reviews of the motor carrier’s files,” FMCSA said. “FMCSA has determined that because safety investigators are able to follow all of the procedures in 49 CFR part 385 without physically visiting the motor carrier’s business premise, compliance reviews that do not include an ‘on-site’ component will limit exposure risk to COVID-19, consistent with current regulations, without compromising FMCSA’s safety mission.
The Motor Carrier Regulatory Reform Coalition previously has recommended that FMCSA conduct remote audits of all regulated motor carriers every two years rather than the current practice of conducting a very small number of compliance reviews triggered by unreliable Safety Measurement System metrics.
For the guidance on compliance reviews and other information related to COVID-19, visit https://www.fmcsa.dot.gov/COVID-19.
OOIDA seeks changes in broker disclosure regulations
The Owner-Operator Independent Drivers Association has filed a petition for a rulemaking that would require brokers to routinely provide transaction records to carriers and would bar brokers from demanding that carriers waive their rights to the information. Current regulations at 49 CFR 371.3 require brokers to maintain records of each freight transaction and to make those records available to parties to the transaction. OOIDA contends that brokers make it difficult to obtain the information in practice or require carriers to waive their rights under 371.3 as a condition of taking loads. The rule sought by OOIDA would:
- Require brokers to automatically provide an electronic copy of each transaction record within 48 hours after the contractual service has been completed; and
- Explicitly prohibit brokers from including any provision in their contracts that requires a carrier to waive their rights to access the transaction records as required by 49 CFR §371.3. The OOIDA petition has not been docketed, but it is available at https://bit.ly/OOIDA-371
FMCSA rejects carrier’s bid for sleeper berth flexibility
FMCSA has denied an application from PTS Worldwide, Inc. (PTS) for an exemption that would have allowed its team drivers to obtain mandatory rest through a combination of sleeper berth and off-duty times in which the shorter period is at least 4 hours. PTS, which noted that its work for the Defense Department requires team drivers for security reasons, wanted to use sleeper berth/off-duty splits of 4 hours/6 hours, 5 hours/5 hours, and 6 hours/4 hours. Until the new rule change takes effect in September allowing splits of 7 hours and 3 hours, regulations allow only one option for use of the sleeper berth for split rest: At least 8 hours in the sleeper berth and at least 2 hours off-duty. FMCSA said that the application lacked evidence that would ensure an equivalent level of safety or greater would be achieved absent such exemption. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-10592.
Carrier seeks exemption for alternative securement on metal coils
FMCSA requests comments by June 15 on an exemption application from K & L Trucking, Inc. to allow the company to secure large metal coils to its trailers for transport using a securement system that differs from that required by the Federal Motor Carrier Safety Regulations (FMCSRs). K & L’s requested exemption would allow it to use a securement system consisting of (1) a specialized metal carrier permanently affixed to the flatbed trailer designed to secure the coil and prevent it from rolling, and (2) a single, two-ply, nylon-Kevlar tie down strap routed through the eye of the coil that secures the coil to the coil carrier. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-10322.
Entertainment industry group wins limited relief on clearinghouse queries
FMCSA granted an exemption to Motion Picture Compliance Solutions (MPCS) to allow its members to hire commercial driver’s license (CDL) based only on a limited drug and alcohol clearinghouse query, provided that limited queries do not indicate that information about the driver exists in the clearinghouse. MPCS serves as a consortium/third-party administrator (C/TPA) for employers involved in transportation related to theatrical, commercial, television, and motion picture production. FMCSA said that the terms and conditions of the exemption, “coupled with MPCS's unique safety protocols,” will achieve a level of safety equivalent to that achieved through compliance with the applicable regulation.
The “unique safety protocols” includes a DOT violation database that MPCS and its member motor carriers implemented 10 years ago, including detailed information related to positive drug tests and return-to-duty tests. “In the Agency’s judgment, MPCS's process for identifying qualified drivers for its member employers is uniquely designed to accommodate safety concerns related to drug and alcohol testing violations,” FMCSA said. For the Federal Register notice on the exemption approval, visit https://www.federalregister.gov/d/2020-11742.
Bus operations get exemption from CMV interchange marking rules
FMCSA has granted an exemption to commonly owned motorcoach operators Adirondack Transit Lines, Pine Hill-Kingston Bus Corp., and Passenger Bus Corp. from the commercial motor vehicle (CMV) marking rules under certain circumstances involving the exchange of equipment and/or drivers.FMCSA said it has determined that the terms and conditions of the exemption likely ensure a level of safety equivalent to, or greater than, the level of safety achieved without the exemption. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-11740.
Fireworks firm gets holiday exemption from 14-hour rule
FMCSA has granted Extreme Logistics, LLC an exemption applicable June 28 through July 8 each year from the requirement that all driving be completed within 14 hours of the beginning of the work shift. This exemption allows the applicant to exclude off-duty and sleeper-berth time, of any length, from the calculation of the 14-hour driving window. FMCSA said the terms and conditions of the exemption will likely ensure a level of safety equivalent to, or greater than, the level of safety achieved without the exemption. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-10590.
Grote seeks exemption to allow pulsating warning lamps
FMCSA The Federal Motor Carrier Safety Administration (FMCSA) requests public comment on an application for exemption from Grote Industries, LLC to allow motor carriers operating trailers and van body trucks to install brake-activated pulsating warning lamps on the rear of those vehicles in addition to the steady-burning brake lamps required by the FMCSRs. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-10116.
Laydon gets exemption for repositioning of lamps
FMCSA has granted Laydon Composites Ltd.’s requested exemption to allow motor carriers to operate certain CMVs that are equipped with Laydon’s OptiTail aerodynamic device with rear identification lamps and rear clearance lamps that are mounted lower than currently permitted by the agency's regulations. The agency has determined that locating the rear identification lamps and rear clearance lamps lower on the trailers and semitrailers at the same level as the stop lamps, tail lamps, and turn signals will maintain a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-10593.
Lytx gets exemption for windshield placement
FMCSA granted Lytx Inc. an exemption to allow its advanced driver-assistance systems to be mounted lower in the windshield on CMVs than is currently permitted. The agency has determined that lower placement of the ADAS would not have an adverse impact on safety. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-10971.
House passes bill to loosen restrictions on PPP
With only one lawmaker voting no, the U.S. House of Representatives on May 28 passed legislation (H.R. 7010) to grant flexibility in the rules Congress initially had set for the Paycheck Protection Program (PPP), which authorized forgivable loans to businesses with 500 or fewer employees. As passed by the House, H.R. 7010:
- Expands forgiveness period for expenses to 24 weeks. Because of lockdowns throughout the U.S., many small businesses were either not allowed to remain open or could open only with restrictions, making the original eight-week period for forgiveness unworkable for many companies. The bill would extend the period considered for forgiveness to 24 weeks.
- Allows non-payroll expenses loan forgiveness for up to 40% of loan proceeds. The current PPP legislation requires that 75% of loan proceeds go to payroll in order for loans to be forgiven. However, for many businesses, expenses like mortgage, rent, and utilities exceed 25% of total expenses. The justification for the change is that retaining employees might not be possible if a business cannot retain its physical location
- Extends PPP loan terms to five years. The current PPP requires repayment in two years, but lawmakers are concerned based on the economic contraction since mid-March that businesses would need more than two years to generate enough revenue to pay back their loans.
- Ensures full access to payroll tax deferment for businesses that take PPP loans. Sponsors of the legislation argued that because the purpose of PPP and the payroll tax deferment was to provide businesses with capital to weather the crisis, receiving both should not be considered double-dipping.
- Extends the rehiring deadline through 2020. Currently businesses can receive loan forgiveness under PPP only if they rehire employees by June 30. However, the enhanced unemployment benefits Congress provided meant that unemployment benefits are higher than the median wage in 44 states. Many businesses have reported difficulties rehiring employees that make more on unemployment, which has made complying with the June 30 deadline difficult.
Similar bipartisan legislation (S. 3833) has been introduced in the Senate. Although Congress likely will grant PPP flexibility ultimately, it is not yet clear whether that will come in the form of the Senate passing H.R. 7010, which would expedite the process, or through a negotiation over the terms of a PPP bill or a broader round of financial rescue and stimulus. For information on H.R. 7010, visit https://www.congress.gov/bill/116th-congress/house-bill/7010. For information on S. 3833, visit https://www.congress.gov/bill/116th-congress/senate-bill/3833.
Senate panel approves bill giving states flexibility in spending FMCSA grant funds
The Senate Commerce Committee on May 20 approved legislation (S. 3729) providing flexibility to states in spending FMCSA) grant funds in light of COVID-19 impacts. The Motor Carrier Safety Grant Relief Act would give states an extra year to spend funds awarded for fiscal years 2019 and 2020 through the Motor Carrier Safety Assistance Program, CDL program implementation, and high priority grants. The bill also would authorize FMCSA to keep and redistribute unallocated funds at the end of the grant period for FY 2019 and 2020. For more information, visit https://www.congress.gov/bill/116th-congress/senate-bill/3729.
Advocacy and Comment
Comments due soon on broker bond, clearinghouse proceedings
Comments are due soon in two FMCSA proceedings that were detailed in the May 2020 Regulatory Update. First, comments are due June 3 regarding a request by the Small Business Transportation Coalition for an exemption from the $75,000 bond requirement for all property brokers and freight forwarders. To read SBTC’s application and to comment, visit https://www.regulations.gov/docket?D=FMCSA-2020-0130. Second, comments are due June 29 on an NPRM that would require states to query the drug and alcohol clearinghouse before issuing, renewing, upgrading, or transferring a commercial driver’s license (CDL) or commercial learner’s permit (CLP). To read the NPRM and to comment, visit https://www.regulations.gov/docket?D=FMCSA-2017-0330.