The long-awaited Electronic Logging Device (ELD) rule takes effect 12/18/17. In August, a bill presented by Brian Babin (R-TX) to delay the ELD mandate quietly gained traction in Congress with 43 cosponsors, including high-ranking Kevin Brady (R-TX), and from outside Capitol Hill with the support of the Owner-Operator Independent Drivers Association (OOIDA). Babin ultimately withdrew the bill but offered an amendment to the House Transportation, Housing and Urban Development Appropriations Bill (T-HUD) bill to delay the ELD mandate for 1 year by prohibiting the Department of Transportation (DOT) from funding any ELD regulation. The Amendment was ultimately rejected by the House 246-173 on 9/6/17 with 67 Republicans voting to reject the delay.

After 12/18/17, carriers using automatic onboard recording devices (AOBRDs) will be allowed to continue using the devices until 2020. ELDs are expected to decrease freight hauling capacity 2.5% – 5% across the industry but ultimately make carriers more efficient through improved logistical planning. The Federal Motor Carrier Safety Administration (FMCSA) is reminding carriers to register the ELDs and that carriers must repair or replace malfunctioning ELDs within 8 days of being alerted of an error.

On 9/6/17, the House passed the SELF DRIVE Act, a bill to increase federal oversight over non-commercial, self-driving vehicles. The bill calls for the creation of a Highly Automated Vehicle Advisory Council to make recommendations to the DOT on the capabilities and limitations of automated vehicles. The DOT will also be required to set rules of the road for self-driving cars within 1 year and to develop safety assessment protocols, including cybersecurity, within 2 years. This federal law will preempt state vehicle standards and regulations for these new vehicles. The bill has been received in the Senate and referred to the Committee on Commerce, Science, and Transportation.

On 8/17/17, the Environmental Protection Agency (EPA) issued a notice of its plan to revisit regulations regarding trailers and glider kits as a part of Phase 2 of the federal rule on greenhouse gas emissions. The Phase 2 rule, which was finalized in October 2016 (after Phase 1, for vehicles model year 2014-2018, took effect in 2014 and January 2017), tightens emissions standards and mpg requirements for medium- and heavy-duty trucks, including glider kits and trailers. Glider kits are primarily original equipment chassis and cab assemblies in which used engines and (pre-exhaust emissions standards) exhaust systems are installed. The Phase 2 rule would have capped the number of complete glider kits (complete vehicles) at the greatest number built between 2010-2014 and required used engines compliant with current emissions standards.  According to the EPA’s release, the agency intends to initiate the rulemaking process but did not provide a timeframe for doing so.

On 8/4/17, the FMCSA announced its withdrawal of the 3/10/16 advanced notice of proposed rulemaking (ANPRM) regarding standards to assess the risks of sleep apnea.  Citing over 700 comments to the ANPRM, including those from the National Transportation Safety Board (NTSB), the FMCSA will not issue a notice of proposed rulemaking at this time.  Instead, the FMCSA is satisfied that any issues with sleep apnea can be addressed through current safety programs and the Federal Railroad Administration’s (FRA) rulemaking addressing fatigue risk.  Currently, there are no regulations providing guidance for assessment of sleep apnea risks.  Medical examiners are left to make individual determinations based on their own medical judgment.

On 8/1/17, the FMCSA began its 2-year crash preventability demonstration program that will allow carriers to make requests for data review (RDR) for crashes on or after 6/1/17 to have crashes classified as “not preventable.”  Crashes that are ultimately found to have been not preventable will result in recalculation of a carrier’s Behavioral Analysis Safety Improvement Category (BASIC) score.  To be classified as not preventable, an accident must have resulted in a fatality or bodily injury requiring immediate medical treatment away from the scene or a vehicle being towed from the scene.  Accidents eligible for review must fit into one of eight categories:

1) A commercial motor vehicle (CMV) is struck by a driver under the influence.

2) A CMV is struck by a driver traveling the wrong way.

3) A CMV is rear-ended.

4) A CMV is struck while legally parked.

5) A suicide by CMV where a pedestrian steps onto the highway.

6) A CMV strikes an animal in the roadway.

7) A CMV is struck by infrastructure such as fallen trees.

8) A CMV is struck by equipment dropped from another vehicle.

Previously, on 6/30/17, the FMCSA announced that it would be following the recommendations of a National Academy of Sciences 12-member panel (“Panel”) to overhaul the FMCSA’s Compliance, Safety, Accountability (CSA) program’s Safety Management System (SMS).  The Panel concluded that the SMS scores lacked a “statistically principled approach” to measure the performance of drivers and carriers and recommended an “item response theory” (IRT).  The Panel defined the IRT only as a more detail data-oriented approach. The FMCSA will be left to interpret the scope of the Panel’s IRT approach and fashion regulations to meet the recommendations.  IRTs have been used with success in the medical industry with regard to hospital rankings. In March, the FMCSA withdrew a proposed motor carrier safety fitness rule pending the outcome of the Panel’s study.

On 7/27/17, the FMCSA announced a revision to a 2015, proposed rule eliminating the requirement that insulin-treated diabetics seek a one-year, formal medical exemption.  The current exemption process requires a medical examiner to automatically disqualify a diabetic driver and requires the driver to then seek exemption from the FMCSA, which can take up to 6 months.  The proposed rule would allow a full assessment by the driver’s treating physician to be considered by the medical examiner to determine whether the diabetes is treated and stable.  The applications for exemption to the FMCSA grew by 67% from 2013 to 2015 with the approval rate growing from 39% to 52% over the same period.  Public comments are due by 9/25/17.

Commercial freight brokers are beginning to see peer-to-peer competition with companies such as Uber Freight and the technology startup, Convoy, coming into the marketplace.  Convoy, first launched in 2015, is a mobile application that matches carriers and drivers with loads based on the type of haul and driver preferences.   Convoy currently has 300 shippers and 10,000 trucking companies registered with the app.

Please reach out to us if you have any questions or if you would like to discuss the contents of this article further.

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Allen Smith

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Austin Walsh

The information published in Hedrick Gardner Alerts is general in nature and not intended to take the place of legal advice on any particular matter. © 2017 Hedrick Gardner Kincheloe & Garofalo LLP