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D.C. Circuit Denies Public Citizen Motion To Invalidate HOS Interim Final Rule The United States Court of Appeals for the District of Columbia Circuit issued a terse order on 1/24/08 denying Public Citizen’s request to invalidate the recently issued hours-of-service (HOS) Interim Final Rule (IFR). Public Citizen claimed that the Court’s prior decisions in the case effectively prohibited the agency from issuing an IFR that included an 11-hour daily driving time limit and a 34-hour restart provision. ATA, the Federal Motor Carriers Safety Administration (FMCSA), and shipper interests all filed briefs opposing the Public Citizen motion. Those filings highlighted the need for retention of the 11 and 34-hour provisions in an IFR to avoid significant disruptions to the industry and to law enforcement and the significant safety gains achieved under the current HOS rules. The decision means that the 11 and 34-hour provisions will remain in place pending further FMCSA consideration of a final HOS rule. The Court did expressly note that its denial of the motion did not preclude Public Citizen from challenging the IFR in a separate legal proceeding. However such a proceeding would, even if expedited, take many months to pursue, with a final HOS rule likely to be issued before the litigation could be completed.
12/11/2007 FMCSA Interim Final Rule on Hours of Service Today, FMCSA released its long-awaited Interim Final
Rule on hours of service. We are very pleased to report that FMCSA’s
rule retains the 11-hour maximum driving limit and the 34-hour
restart provision, along with the rest of the HOS rules that have
been in place since October 2005. The IFR keeps the existing Hours of Service regulations in effect and provides the public with a 60-day comment period. FMCSA is hopeful that the IFR answers the DC Circuit Court of Appeals' concerns expressed in their July 24, 2007 decision. In the IFR FMCSA has provided additional crash data analysis and more details of the methodology they used in establishing the rules. The 60-day comment period will commence once the IFR is published in the Federal Register. After the comment period has ended FMCSA will evaluate the comments and will make a determination at that time what will be contained in a Final Rule. From what we understand this rulemaking action supersedes the Court's July 24, 2007 decision to vacate the 11-hour driving time and 34-hour restart provisions of the regulations. However, the existing parties to the lawsuit may choose to challenge the Agency on this action, in which case the Court may choose to intervene once again. 10/1/07 U.S. COURT OF APPEALS GRANTS 90 DAY STAY FOR HOURS OF SERVICE U.S. Court of Appeals has granted a 90 day stay for the Hours of Service. In an unusually quick response, the court of appeals has granted “in-part” the ATA’s request for a stay of the mandate in the Hours of Service Case. “In part’ refers to the time for the stay. ATA had requested 8 months and FMCSA had requested 12 months. It is believed that this 90 days could be sufficient for the FMCSA to issue an interim final rule which would include the 11 hour driving and 34 hour restart. At this time we have not heard anything definite from FMCSA. We will keep you posted as events occur. ATA 9/27/07 Member Only Call - Hours of Service Update Realistically expect a court decision mid to late October. It could be sooner. There are 3 possible outcomes: 1. The Court could accept the stay for 8 -12 months. Future updates will be forthcoming. FMCSA Strongly Supports ATA Motion to Stay HOS Decison The Federal Motor Carrier Safety Administration (FMCSA) filed a memorandum with the D.C. Circuit Court of Appeals today strongly supporting ATA’s request that the Court’s vacating of the 11- and 34-hour provisions of the hours-of-service (HOS) rules be stayed pending their reconsideration by the agency. Agreeing with ATA that a stay was needed to “prevent substantial disruption of trucking operations,” the agency cited timing concerns and significant transition costs to the industry related to a rule change, costs it noted that could “have to be incurred again.” FMCSA also pointed to disruptions and confusion in HOS enforcement if the rules were changed. Moreover, the agency expressly stated that it “agrees with ATA that maintaining the status quo will not harm public safety or driver health.” In support of that statement, improving safety statistics were cited including a declining trend in fatigue-related accidents. The agency also noted that the Court had invalidated the 11- and 34-hour provision “on procedural grounds only” and that the “Court’s decision did not foreclose issuance of a new rule that contains the 11-hour and 34-hour provisions, assuming the agency provides the requisite notice and comment and adequately explains its reasoning.” FMCSA suggested that the Court grant a 12-month stay during which it would conduct a new rulemaking to consider new data and address the procedural shortcomings identified by the Court. It is expected that Public Citizen, who led the challenge to HOS rule, will file a memorandum opposing the stay later today. ATA Files with DC Circuit Court of Appeals ATA Files with DC Circuit Court of Appeals asking it to stay its decision to vacate the 11 hr driving and the 34 hour restart provisions. Due to time restraints, the ATA was forced to file the request on Thursday evening September 6, 2007 without knowing what the response (if any) was going to be by the FMCSA. The filing of this motion will act as a temporary stay until the Court responds. Normally the court then has a 14 day period to allow for further filings from interested parties at which time the court would then make a ruling. This ruling could be as early as a few days or weeks. Until then the 11 and 34 hour rules will remain in effect. It is our understanding that the courts could vacate the 34 hr restart without any proposed rulemaking since it is an exception to the regulations. However it is being argued that the 11 hour rule could not be vacated without proposed rulemaking since it is an actual regulation. FMCSA has apparently chosen not to take the lead on upholding these regulations. It is hoped that they will join in during the response period. ATA Filing for stay on Sep 6, 2007 Citing the potential for “widespread disruption in the industry and the supply chain,” ATA submitted a petition on 8-31-07 asking the Federal Motor Carrier Safety Administration (FMCSA) to retain the 11-hour daily driving limit and 34-hour restart provisions of the Hours-of-Service (HOS) regulations. The request is in response to the July 24 Court decision which vacated the two HOS provisions, citing various procedural issues identified during the rulemaking process. The petition also asks the agency to establish a firm, expedited notice of proposed rulemaking process for addressing the issues identified by the Court.
ATA's petition argues that it will be impossible for the trucking industry to adapt to immediate changes in the daily driving limit and restart provisions without significant and costly impacts to carriers' operations. ATA also argues that the inability of many states to immediately adapt to the new requirements will result in a patchwork of enforcement which could undermine the agency's safety efforts.
ATA stated that a recent decline in fatalities in truck-involved crashes demonstrates that continuation of these provisions will not degrade highway safety. ATA argued further that FMCSA's acceptance of the petition will provide the industry with the stability and operational certainty that it needs while the agency responds to the Court.
The petition asked the agency to publish an
Interim Final Rule by Sept. 14, re-adopting the 11-hour driving
limit and 34-hour restart, followed by a proposed rule which addresses
the issues identified by the Court within 60 days following issuance
of the IFR, and publication of a final rule within 180 days of
the notice of proposed rulemaking’s publication
WI PARS Program WI has made the Employer Notification program and the DOTI program online tools. The new program is called PARS, Public Abstract Request System has incorporated these two programs into one. Through the employer notification program within PARS, carriers with CDL drivers receive notification of new activity on an enrolled driver's record. PARS now has an email features that electronically notifies the company administrator of any new activity on the CDL's holder's record. The MVR previously mailed to the carrier is now replaced with the general email notice to look for new activity within the online program. This feature meets the requirement in FMCSR 391.25 and therefore, allows the motor carrier to be waived of the yearly need to obtain driving records for drivers enrolled in this or a similar type program. The motor carrier still is required to have the driver complete the certification of violations form and annual review process. If utilizing this program, ensure the driver list stays accurate. In addition to WI, the following states have similar type programs: Arkansas, California, Illinois, Michigan, Nebraska, New York, North Carolina, Oregon, and Virginia. California has a mandatory program for Commercial Driver License (CDL) holders. Please contact your HNI service team with any questions.
FMSCA Publishes UCR Fees Rulemaking The FMCSA has published a notice of proposed rulemaking (NPRM) to establish a fee schedule for 2007 registrants under the Unified Carrier Registration Plan. 72 Federal Register 29472 (May 29, 2007). Comments are due by June 13, 2007. The NPRM is attached. The notice sets out the proposed schedule for annual fees, based on the number of commercial motor vehicles (both power units and trailers) operated in interstate commerce by the registrant. The fee schedule was developed into a recommendation by the UCR Board of Directors. All private and for-hire motor carriers, leasing companies, brokers and freight forwarders must register and pay the fees. The proposed fees under the Unified Carrier Registration Plan and Agreement for Registration Year 2007:
You may submit comments, identified by DOT DMS Docket Number FMCSA–2007–27871, by any of the following methods: • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. • Agency Web Site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site. • Fax: 1–202–493–2251. • Mail: Docket Management Facility;U.S. Department of Transportation, 400 Seventh Street, SW.,Nassif Building,Room PL–401, Washington, DC 20590-0001. • Hand Delivery: Room PL–401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. Instructions: All submissions must include the agency name and docket number (FMCSA–2004–27871) or Regulatory Identification Number (RIN) for this rulemaking (RIN 2126–AB09). Note that all comments received will be posted without change to http://dms.dot.gov, including any personal information provided. Please see the Privacy Act heading for further information. Click here to see the FMCSA Federal Register FMCSA Proposes New Safety Rule for use
Read this article from the FMCSA regarding a recent proposal to both require and incent the use of electronic on-board recorders in more trucks and buses. New 2005 Hours of Service Rules Announced! On Friday, August 19th, The FMCSA issued new Hours of Services rules that spells out the length of time commercial drivers can operate trucks before they are required to take a break. Please reference the following links for more information and look for additional resources from HNI soon.
IMPORTANT CHANGE: FMCSA and the WI DOT Employer Notification Program According to the most recent update to Regulation 391.25, Wisconsin based motor carriers can now utilize the WI DOT Employer Notification Program in lieu of running annual MVR's. Below is the direct statement found in the most recent FMCSA Regulations Handbook. DOT Interpretations - 391.25 *Question 4 Does the use of a third-party computerized system that provides motor carriers with a complete department of motor vehicle report for every State in which the driver held a commercial motor vehicle operators license or permit when a driver is enrolled in the system, and then automatically provides an update anytime the State licensing agency enters new information on the driving record, satisfy the requirements of 391.25? Guidance: Yes. Since motor carriers would be provided with complete department of motor vehicle report for every State in which the driver held a commercial motor vehicle operator's license or permit when a driver is enrolled in the system, and the provided with an update anytime the State licensing agency enters new information on the driving record, the requirements of 391.25(a) would be satisfied. When the motor carrier manager reviews the information on the driving record, and the License Monitor system records the identity of the manager who conducted the review, the requirements of 391.25(b) and (c) would be satisfied. With regard to the requirement that the response from each State agency, and a note identifying the person who performed the review, may be maintained in the driver's qualification files, motor carriers may satisfy the recordkeeping requirement by using computerized records in accordance with 49 CFR 390.31. Section allows all records that do not require signatures to be maintained through the use of computer technology provided the motor carrier can produce, upon demand, a computer printout of the required data. Therefore, motor carriers using an automated computer system would not be required to maintain paper copies of the driving records, or a note identifying the person who performed the review, in each individual driver qualification file provided a computer printout can be produced upon demand of a Federal or State enforcement official. · Link to WI Employer Notification Program Details Five States Make Mandatory Changes to Their Labor Law Posters If you have locations in any of these states: Delaware, Minnesota, Rhode Island, Virginia and Washington DC new posters should be ordered from any vendor. Injuries and Illnesses
Summary to be Posted 2/1/05 – 4/30/05 Wisconsin Hazardous “H” Endorsement Changes January 31, 2005 the new security clearance checks
went into effect for any new applicant applying for an “H”
endorsement including the fingerprinting requirement. Renewals
will start 5/31/05. In Wisconsin the application will be $76.
Wisconsin's
Detailed Licensing Requirements for Getting an "H" Endorsement 2005 Single State Registration System (SSRS) States are comparing motor carrier filed fleet sizes through International Registration Program (IRP) with motor carrier entered info on the MCS-150 listed on SAFER. The number of units submitted by the carrier in the SSRS is now listed on the cab cards. Roadside inspectors are able to see the total number of trucks the carriers has said would be in any one state at one time. You have one truck listed for IA. Two drivers follow each other down and go through the scale. There could be an issue.
Summary: Changes to the CDL become effective September 2005. See the following links for specifics.
Hazardous Endorsement Checks 1/05 Summary: In conjunction with Federal requirements, Wisconsin will be requiring all EW hazardous endorsement applicants by 1/31/05 to complete the fingerprinting and background check required by Transportation Security Administration (TSA). Renewal and transferred hazardous endorsements expiring after 5/31/05 will be subject to the fingerprinting and background check. In Wisconsin the process will cost the driver $78.00 and will be good for five (5) years. Wisconsin will be working with the government-contracted vendor to have six fixed locations across the state. Drivers greater than 50 miles from the site will be able to set up an appointment with the vendor at a mobile site. TSA said it would not specify to companies why a driver was disqualified. Current HOS Rules Intact for 1 Year* Summary: Thursday, September 30th, 2004, President Bush signed the bill passing an eight-month extension to the federal highway bill. In addition to budget funding for agencies receiving funding from the Highway Trust Fund, the bill also included language extending the current hours of service regulation until *September 30, 2005 or until FMCSA completes rulemaking to comply with the federal court order. FMCSA Files Motion to Stay Issuance of the Court's mandate 8/30/04 Summary: The Federal Motor Carrier Safety Administration (FMCSA) filed a motion with the U.S. DC Circuit Court of appeals seeking to stay further action on the hours-of-service (HOS) lawsuit. Click here for the FMCSA's motion. FMCSA is asking the Court to extend the current rule for six months allowing the current (revised hours of service regulations implemented 1-4-04) regulations to continue to be enforced. If FMCSA is denied its motion, the regulations in place before January 4, 2004 would be effective. Click here for information regarding American Trucking Association's and the Truckload Carriers Association's similar motion. Hours of Service 7/16/04 Court Decision Vacating Rules Summary: The Federal Motor Carrier Safety Administration's (FMCSA) Hours of Service Regulations effective January 4, 2004, have been vacated by the United States Circuit Court of Appeals for the District of Columbia. The order is a result of a lawsuit filed by Public Citizen, Citizens for Reliable & Safe Highways, and Parents Against Tired Truckers. The decision sends the Hours of Service Regulations back to FMCSA for review. The Court's decision was based upon the view FMCSA had not fulfilled a statutory mandate to consider "the impact of the rule on the health of the drivers." Under the Court's rules of procedure, FMCSA has 45 days to review the decision and decide whether to seek other legal remedies. During that period of time, he current Hours of Service Rule, announced in April 2003, remains in effect.
Minimum Training Requirements for Longer Combination Vehicle (LCV) Operators and LCV Driver-Instructor Requirements Effective 6/1/04 Summary: The Federal Motor Carrier Safety Administration (FMCSA) establishes standards for minimum training requirements for the operators of longer combination vehicles (LCV's) and requirements for the instructors who train these operators. This action is in response to section 4007 of the Intermodal Surface Transportation Efficiency Act of 1991, which directed that training for the operators of LCV's include certification of an operator's proficiency by an instructor who has met the requirements established by the Secretary of Transportation (Secretary). The purpose of this final rule is to enhance the safety of commercial motor vehicle (CMV) operations on our Nation's highways. Safety Performance History of New Drivers Effective 4/29/04 Summary: The Federal Motor Carrier Safety Administration amends the Federal Motor Carrier Safety Regulations (FMCSRs) to specify: The minimum driver safety performance history data that new or prospective employers are required to seek for applicants under consideration for employment as a commercial motor vehicle (CMV) driver; where, and from whom, that information must be sought; and that previous employers must provide the minimum driver safety performance history information. This action will enable prospective motor carrier employers to make more sound hiring decisions of drivers to improve CMV safety on our nation's highways. New Hours of Service Regulations Effective 1/4/04
New Load Securement Regulation Effective 1/1/04 New Requirements for Georgia CDL Holders and ApplicantsBeginning July 1st, 2006, all drivers applying for or renewing a Commercial Drivers License in Georgia must complete the Highway Watch safety and security program, a mandatory safety awareness and anti-terrorism training program. After completing training, drivers will receive a Highway Watch Identification Card that they will need to present to the Department of Driver Services when applying for an initial CDL or upon renewing their CDL. Highway Watch began in 1998 as a safety awareness program for CDL drivers and since spring 2002, the program includes anti-terrorism training. This training is fully funded by the U.S. Department of Homeland Security and is available at no cost tot he CDL holder. The program takes approximately one hour, and a number of options, including live classes, DVD's, VHS tapes and audio CD's are available for the training. The training is a one-time only requirement. For Georgia CDL holders, training materials and more information are available by calling the Georgia Motor Trucking Association at (770) 444-9771 or by visiting the Highway Watch web site at www.highwaywatch.com. Interested Wisconsin CDL holders can find information by visiting the above web site or by visiting the Wisconsin Motor Carriers Association web site at www.witruck.org. ATA Files Brief Supporting Hours-of-Service RulesATA filed its brief, August 25th, 2006, as an intervener in Public Citizen's challenge to the 2005 revisions to the Federal Motor Carrier Safety Administration's hours-of-service regulations. ATA supported the agency's determination that the new rules do not adversely affect driver health and its decision to retain the 11 hour daily driving limit and 34 hour restart provision from the 2003 HOS rules. ATA explained that by reducing driver fatigue, the new rules addressed driver hearth concerns related to or caused by chronic fatigue. ATA also noted that drivers commenting to the docket believed the new rules positively impacted their health, and that fatigue rules were not the only, or the best, method the agency has or is pursing to promote driver health. With respect to the 11 hour daily driving limit, ATA cited recent studies that found no greater evidence of fatigue during the 11th hour of driving and explained that time awake (with 16 hours as the normal limit) is a far more reliable indicator of fatigue than time on task. Regarding the 34 hour restart, ATA noted that because of the expanded daily rest period, no significant cumulative fatigue should develop and noted that several scientific studies had concluded that a 34 hour break period was sufficient to allow drivers to zero-out any built up fatigue. Final briefs in the case are due by Sept. 29 and oral argument is expected to be set in October or November. Contact: Robert Digges, Jr., 703-838-1889 or rdigges@trucking.org. BRIEFING
COMPLETED IN HOS LITIGATION (from ATA Truckline 09/19/06) ATA and FMCSA each explained in their briefs that the 11 hour driving time could safely be utilized given the other pro-rest changes in the rules, including the expansion of the rest period from 8 to 10 hours, and that scientific studies had not shown any significant increase in the risk of fatigue related accidents in the 11th hour of driving. ATA and FMCSA also cited scientific studies showing that the 34 hour restart eliminated any accumulated fatigue, allowing drivers to start driving fresh under the provision and ATA emphasized the popularity of the restart rule among drives and how it significantly improved their quality of life and health. Finally, ATA and the agency defended the health related aspects of the rule, pointing out that by giving drivers the opportunity for adequate rest, health problems caused or exacerbated by fatigue are positively addressed and that other driver health risks are not adversely affected by the changes to the rule. Oral argument in the cases could be set anytime from November 2006 until February 2007, with a decision expected in three to four months after the argument.
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