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January
11, 2005
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Headline
News
Questions About FMCSA Safety Performance History of New Drivers Rule?
You may recall that on March 30 of last year, the Federal Motor Carrier Safety Administration published a Final Rule on the Safety Performance History of New Drivers. This ruling mandated the minimum driver safety performance history data that new or prospective employers are required to seek for applicants under consideration for employment as commercial motor vehicle (CMV) drivers; where, and from whom, that information must be sought; and the minimum driver safety performance history information previous employers must provide.
By way of review, the rule requires the prospective employer to request information from all previous employers of the applicant that employed the driver to operate a CMV within the prior 3 years -- within a mandated period of 30 days of the date the driver's employment begins -- as follows:
- verifying a driver worked for a prior employer and dates of employment;
- the driver's three-year alcohol and controlled substances history;
- information indicating whether the driver failed to undertake or complete a rehabilitation referral prescribed by a substance abuse professional within the prior three years;
- information indicating when the driver illegally used alcohol or controlled substances after having completed a rehabilitation referral; and
- information indicating whether the driver was involved in any accidents as defined by §390.5 of the Federal regulations.
A common question that has been raised by a number of individuals since this new rule took effect is, “Do the new Safety Performance History regulations require an employer to provide information on a current driver employee?” Regarding this question, we recently received an interpretation from Derek Hinton, President of DOT Job History, an outfit that is partnering with driving schools and has knowledge in the areas of motor carrier screening, human resources, civil and criminal law, public records, recruitment law and practices, and information management. Mr. Hinton is also a former manager for DAC Services (now USIS). In Mr. Hinton's opinion regarding this question, current employers are required to provide the employment history information for current employees, as a new definition was added to §390.5 of the Federal regulations for Previous Employer that states as such. This definition reads, “means any DOT regulated person who employed the driver in the preceding 3 years, including any possible current employer .” A copy of Mr. Hinton's complete interpretation on this question can be accessed by clicking here (which please note is copy written by his company DOT Job History).
For further information on this issue, please contact Rich Clemente at (703) 838-8847 or by email: rclemente@truckload.org.
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TCA Files Comments Opposing Aspects of FMCSA’s HOS Supporting Documents Proposal
The Truckload Carriers Association (TCA) filed comments on January 3, 2005 with the Federal Motor Carrier Safety Administration (FMCSA) in response to their November 3, 2004 Federal Register Supplemental Notice of Proposed Rulemaking (SNPRM) on the Hours of Service of Drivers Supporting Documents. TCA told the agency “we believe that while the agency is statutorily required to implement an hours of service (HOS) supporting document rulemaking initiative, the scope of the November 3 SNPRM is too broad, does not meet the reasonable cost tests as required by the Hazardous Materials Transportation Authorization Act of 1994, and is fundamentally flawed in a number of other respects.” TCA went on to add, “we believe that the SNPRM is a considerable expansion of the current HOS recordkeeping requirements for motor carriers, and is another prime example of government over-regulation and rulemaking aimed at easing the agency's enforcement burden without regard to the cost implications for the trucking industry.”
Other specific concerns raised in our comments regarding the proposal included:
- the accuracy of the supporting documents;
- privacy and liability issues;
- there is currently no proof linking the proposal to the FMCSAs ultimate goal of reducing accidents and eliminating driver fatigue; and
- the current lack of agency resources and staff for performing Compliance Reviews of motor carriers.
In the November 3 SNPRM the agency stated that it was their intention to clarify that each motor carrier has the duty under the current rules to:
- verify the accuracy of driver's HOS and records of duty status (RODS) – and this obligation extends to the HOS and RODS of independent drivers or owner-operators while driving for the motor carrier;
- ensure that each driver collects and submits to the employing motor carrier all supporting documents with the RODS; and
- ensure all motor carriers know of the requirement to maintain supporting documents in a method that allows cross-reference to the RODS. The proposal also includes a provision for a supporting document based “self-monitoring system” that would be the carrier's primary method for ensuring compliance with the HOS regulations.
For a copy of TCA's January 3 filed comments please click here. In addition, if you wish to review the other sets of comments forwarded to this docket, they can be accessed at http://dms.dot.gov/ under the “Simple Search” option [Docket #3706]. TCA will keep you posted on developments with this important issue, if you have any questions, please contact Rich Clemente at (703) 838-8847, or email rclemente@truckload.org . Top
Clarification on Penalty Assessments of the Motor Carrier Safety Improvement Act
In the December 28 Federal Register the Federal Motor Carrier Safety Administration (FMCSA) published a notice of clarification concerning section 222 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA), which requires that maximum penalties be issued when three violations of the Federal Motor Carrier Safety Regulations have been committed within the past six years. Section 222, which went into effect on September 8, 2000 [with the issuance of an agency policy memo], requires the agency to assess maximum statutory penalties if a person is found to have committed a pattern of violations of critical or acute regulations, or previously committed the same or a related violation of critical or acute regulations. The primary purpose of the December 28 notice is the agency's clarification of the use of previous violations to assess maximum penalties under section 222.
The agency responds to a number of questions raised on the interpretation and implementation of their aforementioned policy memo with responses and clarifications as follows.
Q: On the question of will the agency use enforcement cases closed before issuance of the policy memorandum to support assessment of the maximum penalty
A: they stated that they will not use enforcement cases closed before September 8, 2000 ;
Q: Regarding the question of how is the six-year period calculated for determining when the maximum penalty will be assessed
A: the agency says that the six-year period is determined by starting with the closing date of the Compliance Review or roadside inspection in the third enforcement case and determining whether there are two prior closed enforcement cases against the respondent involving violations of the same CFR Part during the immediately preceding six years;
Q: On the question of what extraordinary circumstances warrant assessment of less that the maximum penalty
A: the FMCSA says that requests to reduce the penalty based on “extraordinary circumstances” will be considered on a case-by-case basis, as section 222 of MCSIA does not specifically define the term “extraordinary circumstances”;
Q: Regarding the question of what type of notice will be required before assessing the maximum penalty
A: they say to address this issue they have:
1) modified their standard Notice of Claim to advise respondents of the requirements of section 222 of MCSIA; and
2) published this amended policy statement on their website at http://www.fmcsa.dot.gov .; and
Q: As for the question of whether the FMCSA Service Centers have authority to settle cases subject to section 222 for less than the maximum penalty
A: the agency states that to ensure uniformity in implementing section 222, FMCSA Service Centers will not at this time, be permitted to settle section 222 cases for less than the maximum penalty assessed.
A copy of the December 28 Federal Register notice can be found by clicking here for a PDF and here for an HTML.
For further questions or comments, contact Rich Clemente at (703) 838-8847 or email: rclemente@truckload.org .
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FRA Issues Final Rule on Reflectorization of Rail Rolling Stock, Rail Given Double the Time of Motor Carriers to Implement Changes
The Federal Railroad Administration (FRA) in the January 3, 2005 Federal Register issued a Final Rule on the Reflectorization of Rail Rolling Stock which requires that reflective materials (colored either yellow or white) be installed on the sides of certain locomotives and freight cars in order to make trains more visible to motorists at railroad crossings.
Of primary interest is the implementation schedule mandated by the FRA in the Final Rule, specifying that freight cars subject to it are to be equipped with retroreflective sheeting within 10 years of the effective date of March 4, 2005 , and all locomotives subject to the rule must be so equipped within 5 years of the rule's effective date. This is in spite of the fact that the trucking industry (both ATA and TCA), in filed comments to the November 6, 2003 proposal, pointed out to the agency that the final rule requiring truck trailers to be retrofitted with retroreflective tape was completed in less than three years. As indicated to the FRA, this was for all truck trailers, including railroad-owned and operated intermodal chassis to be in compliance with this requirement, and despite the fact that there are far more truck trailers in operation than rail cars. However, in response to this, in the preamble to the January 3 Final Rule the agency writes, “Although FRA understands the concerns of this commenter, FRA believes that, given the unique characteristics of the railroad industry, the five-and ten-year implementation periods are necessary to cost-effectively reflectorize the entire fleet of freight rolling stock subject to this rule.”
A copy of the January 3 Register notice can be accessed by clicking here for a PDF and here for an HTML.
Contact Rich Clemente at (703) 838-8847 or email: rclemente@truckload.org with any questions or concerns. Top
RSPA Issues Final Rule Amending HM Regs to Align with International Standards
The DOT's Research and Special Programs Administration (RSPA) issued a Final Rule in the December 20, 2004 Federal Register that amends the Hazardous Materials Regulations (HMR) to maintain alignment with international standards. These amendments include changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations and vessel stowage requirements. Because of recent changes to the International Maritime Dangerous Goods Code (IMDG Code), the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions) and the UN Recommendations on the Transport of Dangerous Goods (UN Recommendations), these Final Rule revisions are necessary to facilitate the transport of HM in international commerce. The effective date of the rule's amendments is January 1, 2005 , and compliance with the amendments is generally required beginning January 1, 2006 .
The continually increasing amount of HM transported in international commerce warrants the harmonization of domestic and international requirements to the greatest extent possible. The goal is to harmonize without diminishing the level of safety currently provided by the HMR and without imposing undue burdens on the regulated public. The amendments to the HMR include, but are not limited to the following:
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Amendments to the Hazardous Materials Table, which add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, passenger and cargo aircraft maximum quantity limitations, and vessel stowage provisions;
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Amendments to the list of Marine Pollutants;
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Revisions and additions of special provisions;
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A grandfather provision to allow the shipment of materials classified as corrosive to steel or aluminum under ASTM G 31-72;
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A provision to require that the word “overpack” be marked on overpacks to indicate that inside packages comply with prescribed specifications;
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An amendment to the criteria for classification of materials corrosive to metals;
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Revision of the limited quantity provisions for Class 6.1, PG II materials and for materials with a subsidiary hazard of 6.1, PG II;
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Amendments to the packaging requirements for materials classified as Division 6.1, Packing Group I, Hazard Zone A or Hazard Zone B; and
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Revision of the organic peroxide packaging requirements in order to have one consolidated packaging section for organic peroxides.
A copy of the complete December 20 Federal Register notice can be found by clicking here for a PDF and here for an HTML. For further questions or comments, contact Rich Clemente at (703) 838-8847 or email: rclemente@truckload.org .
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