On 5/16/2018, the Fiscal Year 2019 transportation bill advanced through the House funding subcommittee and was debated by the full committee on 7/19/2018. The bill would de-fund Electronic Logging Device (ELD) enforcement for livestock haulers through 9/30/2019. The current exemption for livestock haulers expires on 9/30/2018. On 5/23/2018, Representatives Greg Gianforte (R-Mont.) and Collin Peterson (D-Minn.) introduced H.R. 5959, the Agriculture Business Electronic Logging Device Exemption Act of 2018, which would completely exempt agricultural carriers from the ELD and Hours-of-Service (HOS) rules. The bill was referred to the subcommittee on Highways and Transit on 5/24/2018.

Similarly, on 6/21/2018, Representatives Rick Crawford (R-Ark.), Bruce Westerman (R-Ark.),
and Sanford Bishop (D-Ga.) introduced the Honest Operators Undertaking Road Safety
(HOURS) Act that seeks a year-round HOS exemption for commercial carriers hauling livestock
or agriculture products operating within 150 air-miles of the load’s source. Currently, the exemption
only applies during certain seasons or on limited trips to/from wholesalers. In the Senate,
Ben Sasse (R-Neb.) introduced a companion bill, the Transporting Livestock Across America
Safely Act that would set a 300 air-mile radius within which HOS and ELD rules would not apply.

On 5/31/2018, the Federal Motor Carrier Safety Administration (FMCSA) announced
guidance on the HOS exemption for carriers of agriculture commodities traveling up to 150
air-miles from the source of agriculture goods during planting and harvesting seasons. The
FMCSA indicated that the HOS exemption applies to empty commercial vehicles traveling to
complete delivery or pick up of agriculture commodities as well as loaded vehicles. Further,
that “source” of commodities is broader than where the commodity is grown or raised and includes
points of origin where commodities may be aggregated for transport, such as grain silos.
Where multiple pick-ups are performed, the 150 air-mile radius starts at the first source or pick
up point and does not reset with additional stops.

On 5/31/2018, The FMCSA also issued guidance describing the circumstances a
commercial driver may operate the truck or bus for personal conveyance after the driver has
reached the daily HOS limit. The FMCSA will allow a driver to travel from a shipper or receiver
to the nearest safe resting area, even if the direction of travel is toward the next dispatch point,
as long as the purpose of the movement is solely to obtain a safe rest place. As a general rule,
drivers may not perform movements that improve operational readiness or provide commercial
benefit to the carrier once the HOS are exhausted. Travel en route to lodging/home, restaurants,
or entertainment facilities are examples of permissible movements. Additionally, movements
required by a safety official or law enforcement officer are exempt from the HOS rules.

On 7/2/18, the FMCSA denied the Owner-Operator Independent Drivers Association’s
(OOIDA) request for a five-year exemption to the ELD rule, which took effect December 2017.
OOIDA’s request specifically targeted motor carriers considered small businesses under the
Small Business Administration’s definitions and which had no at-fault crashes and a safety rating
higher than “unsatisfactory.” The FMCSA has previously granted waivers to Old Dominion
Freight Line and the Motion Picture Association of America. In Congress, H.R. 5948, the Small
Carrier Electronic Logging Device Exemption Act of 2018, was introduced on 5/23/2018 and
seeks to exempt carriers with 10 or fewer trucks from the ELD mandate. The bill was referred
to the Subcommittee on Highways and Transit on 5/24/2018.

On 6/21/2018, the Federal Motor Carrier Safety Administration (FMCSA) issued an interim
final rule that sets a three-year delay for implementation of a program to eliminate the need for commercial drivers to carry their medical certification cards. The new compliance deadline is
June 22, 2021. The final rule requires the FMCSA to electronically transmit to state agencies the
driver identification information, examination results, and restriction information. One cause of the
delay was an attempt by a hacker to compromise the medical examiner’s website. On 4/20/2018,
the FMCSA issued a statement that no personal information was stolen in the attempt.

On 5/22/18, the Senate’s Committee on Commerce, Science, and Transportation committee
approved a bill that would require the Department of Health and Human Services (DHHS)
to explain the 15-month delay in issuing mandatory federal hair testing guidelines. This bill further
requires the DHHS to report to Congress every 30 days and sets measurable benchmarks
for completing the guidelines. Currently, urinalysis is the only approved drug-testing method.

On 7/16/18, the FMCSA delivered its Correlation Study Corrective Action Plan to Congress
and has announced that the FMCSA will not complete enhancements to the SMS that were
previously proposed and that the preview is removed from the SMS website. The enhancements
were proposed by the FMCSA in June 2015 and again in October 2016. However, following the
June 2017 National Academy of Sciences (NAS) report critiquing the SMS, the FMCSA undertook
a review of its proposals. The SMS system will revert to its pre-June 2015 methodology
while the FMCSA works to implement the NAS report’s recommendations, including developing
a new statistical model to support the SMS. Specifically, the FMCSA is required to develop
and implement a small-scale Item Response Theory (IRT) model by September 2018 with a full-scale
IRT model by April 2019. IRT models are used in educational, psychological, and political
science research and would evaluate commercial carriers by determining the frequency of each
violation and whether the violation is a good marker for identifying a carrier’s safety culture. The
intention is that an IRT will provide a more accurate safety assessment for carriers based on the
types of violations committed.

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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. © 2018 Hedrick Gardner Kincheloe & Garofalo LLP