On 3/2/16, the Department of Transportation (DOT) Inspector General (IG) released preliminary results of the DOT study on the Federal Motor Carrier Safety Administration’s (FMCSA) hours-of-service restart rule. In his statement, the DOT IG indicated that the study “did not explicitly identify a net benefit on driver operations, safety, fatigue, and health.”

The much-maligned provision required a 34-hour restart with two consecutive 1 a.m. to 5 a.m. rest periods. The rule went into effect in July 2013 but has been suspended since December 2014. On 12/9/16, Congress issued a clarification of the hours-of service rule in a short-term continuing resolution funding bill signed by former President Obama. Specifically, the provision restored the restart rules to pre-July 2013 mandates pending the outcome of this DOT study.

The study used a significant sample of drivers from all fleet sizes and covering various industry sectors to assess drivers’ fatigue, alertness, and health outcomes by using electronic and hard-copy duty records. The DOT IG stated that although the reliability of underlying records was not analyzed, the study plan provided sufficient reliability to validate the results.

On 1/30/17, President Trump signed Executive Order 13771 directing agencies to repeal two existing regulations for every new regulation in a way that does not increase the total cost of regulations. On 2/24/17, Executive Order 13777 directed heads of agencies to appoint Regulatory Reform Officers (RROs) to oversee implementation of the administration’s regulatory reform. The RRO will be the head of a Regulatory Reform Task Force, which is responsible for reviewing regulations considered for repeal under Executive Order 13771. Due to the implementation of these two executive orders, DOT rulemakings are in the process of reevaluation. The DOT has yet to publish a monthly calendar of significant rulemakings for 2017 as many rulemakings, including those discussed in this here, are expected to be delayed.

On 2/1/17, the FMCSA responded to President Trump’s 1/20/17 60-day regulatory freeze by announcing a postponement of the entry-level driver training final rule effective date. The final rule, which was published on 12/8/16, was slated to go into effect 2/6/17 with a compliance date of 2/7/2020. No new effective date has been announced. The long-awaited rule does not have required minimum hours for classroom or road-training but CDL applicants must receive an overall score of 80% on the classroom or “theory” portions of driver training and show proficiency with road training.

On 1/12/17, the FMCSA announced that it would likely publish a Supplemental Notice of Proposed Rulemaking to address comments received related to the 1/21/16 Notice of Proposed Rulemaking (NPRM), which sought to revise current methodology for motor carrier safety fitness determination based on the agency’s Behavior Analysis and Safety Improvement Categories (BASICs). The rulemaking schedule was expected in January 2017, but the proposal has not come out of the agency’s Regulatory Reform Task Force process.

On 1/19/17, the DOT issued a notice of proposed rulemaking offering amendments to pre-employment drug screening to include heavily abused opioids – hydrocodone, hydromorphone, oxymorphone, and oxycodone. According to a 2014 survey, over 2 million Americans misused or were dependent on these prescription opioids. The proposal also removes the requirement for employers and consortium/third party administrators to submit blind specimens.

On 12/13/16, the FMCSA announced that it will maintain random drug testing rates at a minimum of 25% of drivers for 2017. Federal regulations mandate that if a Management Information System survey reveal positive test rates less than 1% for two consecutive calendar years, the FMCSA has discretion to lower mandatory minimum testing rates to 25%. If positive test results rise above the 1% threshold, the minimum testing rate automatically increases to 50%. The most recent survey, conducted in 2014, estimated positive drug usage rates at 0.9%. For 2012 and 2013, the positive usage rate for drugs was estimated to be 0.6% and 0.7%, respectively. Alcohol usage (BAC of .04 or higher) is significantly lower at .08% for 2014 and .03% and .09% for 2012 and 2013, respectively.

On 11/30/16, the FMCSA announced proposed changes to the qualification process for physicians employed with the Department of Veterans Affairs (VA) to be listed as a Certified Medical Examiner. The physicians must be employed by the VA, be familiar with the FMCSA standards for commercial motor vehicle (CMV) operators and physical requirements for drivers, and must never have acted fraudulently with regard to CMV certifications.

On 10/31/16, the 7th Circuit Court of Appeals denied the Owner-Operator Independent Drivers Association’s (OOIDA) challenged the electronic logging device (ELD) mandate, which is scheduled to go into effect 12/17/17. Among other issues, the Court held that the FMCSA was not required to perform a cost-benefit analysis for the rule. Further, that the ELD rule did not violate any 4th Amendment privacy rights against unconstitutional search and seizure on drivers. The FMCSA estimates that improved hours-ofservice (HOS) compliance will annually result in 1,844 fewer crashes, 26 lives saved, and 562 injuries avoided.

On 10/24/16, the Motor Carrier Safety Advisory Committee and Medical Review Board (MRB’s) issued recommendations related to moderate-to-severe obstructive sleep apnea risk factors that the FMCSA is likely to use to enact a requirement for at-risk drivers to take diagnostic sleep studies. These recommendations closely follow the MRB’s recommendations that we reported previously. Among the recommendations, drivers with a body mass index (BMI) of 40 or higher would be given a 90-day window to complete a sleep study if diagnosed with sleep apnea. Drivers would also need to certify 30-days of treatment. Drivers who experience excessive fatigue or sleepiness while driving, have been in a sleep-related crash or have been observed drowsy behind the wheel will be disqualified. Additionally, the MRB has asked the FMSA to instruct medical examiners to consider the effect of opioid pain medication and certain benzodiazepines when certifying drivers.

After a contentious debate, the Advisory Committee and MRB recommended that drivers with body mass index (BMI) of 33 to 40 should be required to take sleep studies if 4 of 11 risk factors are present. This is a change from the MRB’s August recommendations, which only required the presence of 3 risk factors. The relevant risk factors include:

• Hypertension (treated or untreated),

• Type 2 diabetes (treated or untreated),

• A male neck greater than 17 inches or a female neck size greater than 15.5 inches,

• A history of stroke, coronary artery disease or arrhythmias,

• Loud snoring,

• Micrognathia or retrognathia,

• Witnessed apnea symptoms,

• Hypothyroidism,

• Age 42 or older, Male or post-menopausal female, and • Mallampati Scale score of class 3 or 4 (small airway).

• Male or post-menopausal female, and• Mallampati Scale score of class 3 or 4 (small airway).

• Mallampati Scale score of class 3 or 4 (small airway).

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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