2014 Regulatory Agenda, Highway Fund Depleted, Patterns of Violations Rule

The proposed regulation creating a clearinghouse for drug and alcohol testing information has been approved by the Office of Management and Budget (OMB). Publication in the Federal Register is expected very soon. After that, once the comment period ends, FMCSA will make changes that they feel are appropriate and draft the Final Rule. It’s likely that publication of the Final Rule will take place in 2015.

Currently, without a central database, a motor carrier has no way to determine whether or not a driver has left information off of their application. A driver could, for example, fail a pre-employment drug screen and then simply leave that information off their next application. With a central database prospective employers will have access to all test information for each applicant.

Regulatory priorities for 2014:

The split sleep study results will be used to determine if changes should be made to the regulations regarding splitting sleeper berth time. A study completed in 2012 found that nighttime sleep is more restorative than sleeping during the day. However, sleep periods split between the two offered a good quality of rest as opposed to longer sleep periods occurring only during the day.

The study will involve drivers who have been granted an exemption from certain current rules so that they can participate in the study. Greater flexibility is something that the industry has wanted for some time. Final changes, if any, are still several years in the future.

Department of Transportation Secretary Foxx has reported that the Highway Trust Fund may run out of cash in August. Shortly after that the current transportation funding bill, MAP-21, expires on September 30th. There’s no signs yet that a comprehensive transportation bill is close to a vote in Congress or that legislators are crafting a plan to reverse falling highway revenues.

The good news is that cars and trucks in the U.S. are generating increasing fuel economy. That progress sets back revenue generation for highway projects which are funded by fuel taxes.

Previous shortfalls have been dealt with by transferring money from the general fund ($10 billion for 2014) but this doesn’t offer a long-term solution. Adding to the dilemma is that the Trust Fund also provides money for non-highway projects such as public transit.

The motor carrier industry as well as its suppliers have been calling for a comprehensive long term plan to adequately fund projects aimed at reducing congestion and upgrading aging infrastructure. At this point it doesn’t seem likely that Congress will be able to hit that mark with such a short deadline.

In a 2008 bus crash in Texas seventeen passengers died and the driver and 38 other passengers received minor-to-serious injuries. The investigations conducted by the Federal Motor Carrier Safety Administration (FMCSA) and the National Transportation Safety Board (NTSB) revealed that the motor carrier was operating without authority, was a reincarnation of another bus company that had been recently placed out of service for safety violations, and that both companies were under the control of the same person.

FMCSA recently published the Patterns of Safety Violations by Motor Carrier Management Final Rule. This rule enables FMCSA to suspend or revoke the operating authority registration of for-hire motor carriers that show egregious disregard for safety compliance, permit persons who have shown egregious disregard for safety compliance to exercise controlling influence over their operations, or operate multiple entities under common control to conceal non-compliance with safety regulations.

To apply this rule FMCSA first determines whether a motor carrier has failed to comply with FMCSA’s safety regulations or has attempted to conceal such noncompliance. If a motor carrier meets this initial threshold, the Agency then evaluates the motor carrier’s conduct to determine whether the motor carrier has engaged in a pattern or practice of safety violations or is using other entities under common control to avoid compliance or mask the noncompliance. If the Agency ultimately determines that the motor carrier has engaged in such conduct, the carrier may have its operating authority registration suspended or revoked and may be subject to civil or criminal penalties.

Will this rule help prevent occurrences such as the 2008 bus crash? Only if FMCSA steps up its motor carrier audit efforts. After one crash NTSB criticized FMCSA for not finding tell tale signs of non-compliance in an audit several months prior to a serious crash. Without evidence of egregious non-compliance this new rule cannot be utilized.