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NASSTRAC Key Issues
Since its founding in 1952, through the 1980s and into the 21st Century, NASSTRAC has represented shippers on a wide range of transportation issues, at various levels, with varying degrees of success. Whether the issue involved deregulation in the 1980s or the Negotiated Rates Act leading to the current NMFC Uniform Straight Bill of Lading or more recent issues such as proposed changes to hours of service rules, NASSTRAC is the “voice of the shipper” in Washington.
Listed below are examples of legislative and regulatory issues addressed by NASSTRAC through advocacy.
Safety Fitness Determination: FMCSA has proposed a rule that would update its safety fitness methodology by integrating on-road safety data from inspections, along with the results of carrier investigations and crash reports, to determine a motor carrier’s overall safety fitness. The proposed new system would replace the current three-tier federal ratings of Satisfactory, Conditional and Unsatisfactory with a single determination of “unfit,” which would require the carrier to either improve or cease operations. FMCSA claims the rule will permit FMCSA to assess the safety fitness of approximately 75,000 companies a month.
On May 5, NASSTRAC attended a U.S. Small Business Administration (SBA) Office of Advocacy roundtable on the potential impacts an SFD rule could have on small business. FMCSA remains committed to moving forward with the rule despite concerns about the accuracy of data it will use to determine which carriers are “unfit.”
NASSTRAC submitted comments to FMCSA on May 23, 2016. NASSTRAC noted the ongoing challenges with using the Compliance, Safety, Accountability (CSA) program’s Safety Measurement System (SMS) in selecting carriers. However, designating carriers Potentially Unfit, or Unfit and subject to out of service orders or monitored service under FMCSA-approved compliance agreements, may simplify the process of choosing carriers.
Hours of Service: Progress is being made to fix the 34-hour restart requirement. On May 19, the Senate approved a potential solution. The changes are part of the FY 2017 Transportation, Housing and Urban Development (T-HUD) spending bill that would provide transportation funding through September 30, 2017.
As approved by the Senate, if the pending FMCSA study determines the restart rules in place prior to July 2013 were safer than those in effect between July 2013 and December 2014, drivers would have a maximum of 73 hours of on-duty time in a 7-day period following the use of the 34-hour restart, and have no restrictions on the number of times they use a restart in a 7-day period.
However, the Senate T-HUD spending bill also states that if the pending FMCSA study finds that there were “significant benefits” from the restart requirement in place between July 2013 and December 2014, commercial truck drivers could still use the 34-hour restart requirement but would require consecutive 1 a.m. to 5 a.m. rest periods during the restart, and there could be only one restart per week. The new 73-hour cap would not take effect.
On May 24, the House Appropriations Committee approved its own version of the FY 2017 T-HUD bill. That bill is expected to be considered by the committee on May 24. It would permanently repeal the 34-hour restart rollback and does not tie the changes to the FMCSA study.
Driver Coercion Rule: On January 29, 2016, the Driver Coercion rule took effect prohibiting motor carriers, shippers, receivers, or intermediaries from coercing drivers to operate commercial motor vehicles in violation of certain FMCSA rules including HOS limits; commercial driver’s license (CDL) regulations; drug and alcohol testing rules; and the Hazardous Materials Regulations. As part of the rule, a driver may file a coercion complaint without documentation to FMCSA within 90 days of the alleged incident, even if the attempt to coerce failed.
The final rule does not impose on shippers, intermediaries or receivers a ‘duty to inquire’ whether drivers can comply with all safety requirements for the services requested. In addition, it drops the ‘respondeat superior’ legal theory under which shippers, intermediaries and receivers might have been considered ‘employers’ of the drivers who work for the motor carriers. That theory could have caused a great deal of trouble for defendants in ‘negligent hiring’ lawsuits.
Pursuant to the FAST Act, certain information previously available on the FMCSA SMS website related to carrier’s compliance and safety performance is no longer available for public display.
Carrier data available to the public includes inspection and crash data, investigation results, and measures for all public BASICs, however, the Crash Indicator and Hazardous Materials Compliance BASICs remain hidden from public view. Measures are generated directly from safety data and not based on relative comparison to other motor carriers.
Electronic Logging Devices: On December 16, 2015, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) issued a final rule to require interstate commercial truck and bus companies to use Electronic Logging Devices (ELDs) in their vehicles to improve compliance with HOS rules, which restrict the number of hours drivers can operate commercial vehicles.
The ELD rule has four basic provisions that include: 1) the requirement to use ELDs, 2) protections against driver harassment 3) hardware specifications for the devices and 4) establishing new supporting document requirements to reduce paperwork requirements. The deadline to install an ELD is December 16, 2017. Trucks equipped with earlier similar technology have until late-2019, two years beyond the compliance date.
A previous version of the rule, originally called the electric on-board recorders (EOBR) rule, was finalized in April 2010. However, The Owner-Operator Independent Drivers Association (OOIDA) filed suit challenging the rule and the U.S. Court of Appeals for the Seventh Circuit agreed with OOIDA’s driver harassment argument and vacated the regulation. FMCSA was required to issue a new ELD rule as part of the previous highway bill, MAP-21, and has worked to alleviate concerns related to driver harassment.
Port Performance Freight Statistics: A provision in the FAST Act is intended to bring more transparency coming with respect to the nation’s busiest ports by establishing a Port Performance Statistics Program under the Department of Transportation’s (DOT) Bureau of Transportation Statistics (BTS).
It requires BTS to form a working group to include private and public sector participants in developing an agreed upon set of metrics on the nation’s 25 busiest ports that will be released annually. ATA nominated a person to be part of the Working Group, which has not yet been announced.
On a related issue, NASSTRAC supports the Ensuring Continued Operations and No Other Major Incidents, Closures, or Slowdowns” (ECONOMICS) Act (H.R. 3932), which puts in place specific “triggers,” so that when certain economic impacts surrounding a port labor dispute occurs, a Board of Inquiry must be convened. The bill currently makes reference to metrics as originally proposed in the Port Performance Act which was subsequently passed as part of the FAST Act.