8 minute read
FMCSA Chief Safety Officer Sets Out Agency Agenda, Priorities
BY RICHARD P. SCHWEITZER, ESQ.
GAWDA’s Government Affairs and Human Resources Legal Consultant Rick Schweitzer is president of Richard P. Schweitzer, PLLC in Washington, DC. He is also GAWDA’s general counsel. Members can reach him at 202-223-3040 and rpschweitzer@rpslegal. com. J ack Van Steenburg, Chief Safety Officer for the Federal Motor Carrier Safety Administration, set out the agency’s agenda and priorities in a presentation at a recent trucking industry meeting. He started by noting that there were 38,824 highway fatalities recorded in 2020, including 5,125 fatalities involving heavy trucks and buses. Both of these numbers are expected to increase when the 2021 numbers are final.
In addition, some 831 large truck occupants were killed in crashes in 2020, and 43% of them were not wearing seat belts.
Van Steenburg noted that the number of new motor carrier entrants has risen dramatically over the last two years, from 45,000 in 2019 to 111,000 in 2021. By law, FMCSA is required to conduct a safety audit of each new entrant within 12 months of the carrier beginning operations. He said that new entrants in the first two years of operations are overrepresented in crash statistics.
FMCSA now has 757,000 total motor carriers in its records; this includes 485,000 for-hire carriers and 202,000 private fleets. The crash rate for private carriers (like most GAWDA members) is substantially lower than the rate for for-hire carriers—private fleets average 1.09 crashes per million vehicle miles travelled, and for-hire carriers have 3.37 crashes per million VMT.
Van Steenburg said the out of service (OOS) rates were better for private carriers than for-hire carriers as well. For-hire carriers average 5.7% driver OOS and 20.1% vehicle OOS; private fleets average 4.9% driver OOS and 18.7% vehicle OOS.
He stated the Bipartisan Infrastructure Law (BIL) enacted last year will bring much needed new funding for highway and bridge improvements over the next five years. In addition, the Department of Transportation has established a number of priorities related to the BIL, including driver recruitment and retention, better pay for drivers, reducing detention time, and improved truck parking. FMCSA has been tasked with conducting studies on driver compensation and detention times at shippers’ and receivers’ facilities and plans to begin those later this year.
Although DOT currently has no authority to regulate driver pay, the study is intended to review whether payment by the mile or the delivery contributes to speeding and other unsafe behaviors. The conclusions could be used by Congress to consider driver pay issues, including whether to revoke or revise the overtime exemption for commercial vehicle drivers in the Fair Labor Standards Act.
FMCSA will be asking the States to do more roadside inspections and traffic enforcement, with emphasis on unsafe speeds, distracted driving, seatbelt usage and impaired driving. Van Steenburg noted the FMCSA is focused on interventions with the 3,700 “high-risk carriers” in the agency’s database; these carriers have a crash rate of 17 per million VMT.
The agency also plans to focus at roadside inspections on removing OOS carriers from the highways. Although these carriers have been declared out of service due to their unacceptable safety records, there are approximately 1,000 such carriers that continue to operate illegally.
Additionally, there are some 83,000 drivers who have drug or alcohol violations noted in the Drug and Alcohol Clearinghouse but have not completed the Return to Duty process. These drivers are prohibited from operating a com-
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mercial motor vehicle (CMV). Unfortunately, in the final rule establishing the Clearinghouse, FMCSA failed to require State driver licensing agencies to revoke or suspend a driver’s CDL automatically when a violation is noted in the Clearinghouse database. FMCSA recently completed a follow up rule that mandates State cancellation of CDLs for drug or alcohol violations, but States have three years (until November 2024) to adopt these requirements.
Further, Van Steenburg discussed ongoing problems with implementing the agency’s final rule requiring integration of the driver’s medical certificate into the CDL record. Although this rule was issued in 2015, implementation has now been delayed until 2025 due to problems connecting FMCSA databases with State driver licensing agencies. He also noted that the National Registry of Certified Medical Examiner database had been breached, and that the search engine of that database was recently not functioning. These issues have exacerbated the delay in implementing the medical certificate integration.
The entry-level driver training rule went into effective February 7, 2022, and the Training Provider Registry now has 11,000 providers listed with 18,000 training locations. Van Steenburg noted that although the providers self-certify they are complying with the FMCSA’s training requirements, oversight of training providers will rely on complaints from the public and FMCSA does have authority to remove a training entity from the Registry.
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The FMCSA is also preparing an apprenticeship program to allow 18-20-year-old drivers to operate CMVs in interstate and international commerce (such as drayage around ports). This program will include up to 3,000 younger drivers who have a clean driving record and are accompanied by an older CDL driver with at least 5 years of experience. Participating carriers will need crash rates and driver and vehicle OOS rates below the national averages, and the vehicles used must have speed limiters set at 65 mph or below, outward facing cameras, automatic transmissions, and automatic emergency braking systems. FMCSA expects to publish a notice seeking driver and carrier volunteers next month.
The BIL also requires FMCSA to conduct several rulemakings, including: • A rulemaking (with the National Highway Traffic Safety
Administration) to require automatic emergency braking on all new CMVs over 26,000 lbs. GVW; • A rule setting uniform national standards for autonomous vehicle (a notice of proposed rulemaking is expected later this year); and • A study on the effectiveness of Electronic Logging
Devices in improving hours of service compliance and reducing fatigue-related crashes. This study and report to
Congress could be the basis for revisions to the ELD rule.
FMCSA is also preparing two related rulemakings—an advance notice of proposed rulemaking on revising the agency’s Safety Fitness Determination standards (the current Satisfactory, Conditional and Unsatisfactory standards), and a proposal to revise the Compliance, Safety, Accountability (CSA) program for identifying noncompliant or unsafe motor carriers.
In 2017, the National Academies of Sciences issued a report to FMCSA recommending the agency adopt an Item Response Theory methodology to replace the CSA metrics for identifying high risk carriers in need of enforcement actions or other regulatory interventions. This IRT methodology is largely incomprehensible and, despite testing, the FMCSA has not been able to develop a plan for using it in its carrier evaluation process.
Finally, the FMCSA is working with a third-party vendor to develop a Certified High Speed Electronic Inspection Program to allow collection of vehicle and driver data on the highway without the vehicle stopping. Through the use of transponders, the program would uniquely identify the vehicle and collect data on driver hours of service compliance, CDL and medical card validity, carrier registration and insurance, vehicle inspection records, and other metrics. Concerns have been raised that this program could amount to a nationwide speeding enforcement program as well.
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