Safety-Related Rule Proposals For 2014

There are currently two major safety rule proposals pending for trucking: electronic logs and a searchable database with the results of driver drug and alcohol tests. The logging proposal is awaiting clearance from the White House Office of Management and Budget (OMB). It was supposed to be published before the end of the year, but will not show up until next month at the earliest. As for the drug and alcohol database, this proposal, which is also at the OMB, will create a national database containing driver drug and alcohol test results. Let’s look at these two important issues, and a few others, as well.

Details are under wraps but, in general, the e-log proposal will call for near-universal use of electronic logbooks. It will set technical and communications standards for the devices and it will contain prohibitions against fleets using the devices to harass drivers. It also will contain requirements for hours-of-service (HOS) supporting documents. The proposal has been years in the making at the Federal Motor Carrier Safety Administration (FMCSA).

The agency initially planned to require e-logs just for habitual violators of the HOS regulations, to be followed eventually by the near-universal mandate, but as they worked on the initial proposal, the rule-writers found they still had complex technical issues to resolve. Then, owner operator interests sued to make sure that the final proposal would contain protections against harassment. Ultimately, the agency decided to drop the phased approach and go straight to the near-universal mandate after working out the technical issues and doing more research on the harassment issue.

Throughout this process, the agency has been working with trucking interests, e-log suppliers, the enforcement community and safety advocates on the technical issues and details. When the agency posts its proposal it will ask for comments. Carrier interests such as The Trucking Alliance and the American Trucking Association have strongly supported e-logs, arguing that they will level the playing field for compliance with the HOS rules. Owner operators have deep reservations about e-logs, however. Barring more rewrites or court action, a final rule should be published in 2014.

In regards to the drug and alcohol results data clearinghouse, this proposal will create a national database containing driver drug and alcohol test results, a safety management tool that the trucking companies have been seeking for years. The proposed rule will require the employers to report positive test results and refusals and prospective employers to query the database, with the applicant’s permission. The idea is to give carriers a way to make sure that the applicant has completed the return-to-duty process, and to ensure that carriers are doing the required testing. Details of the proposal are still not yet available, but Congress spelled out what it wants the clearinghouse to do in last year’s highway bill.

The bill says that the database should be maintained by a third party contractor and have security protections to ensure driver privacy. Employers would pay a nominal fee to use the system. There would be no charge for drivers to request their own information. Employers would have to make sure that a driver applicant has been tested within the past three years. If the test was positive, the driver must have completed the required return-to-duty process. The employer could also check to see if a driver has refused to take a test. Lastly, the employer would be required to check the database once a year after hiring the driver.

An employer would have to get the driver’s consent before looking at his/her record. The clearinghouse administrator would be required to notify a driver when they receive a record, when a record has been modified or deleted, and when a result has been released to an employer. Drivers would be able to make sure that their records are accurate, and could make updates if necessary. There would be a dispute procedure, including an appeal process. The proposal was scheduled to be published back in December, so it could show up any day now. There will be a comment period, followed by an agency review, leading to a final rule in 2014.

Another major proposal that is pending is probably the most-challenging one on the FMCSA’s list – figuring out how to produce a standard for determining a carrier’s safety fitness. This is the rule that will in effect codify the enforcement mechanism the agency started to establish with its CSA program (Compliance, Safety and Accountability). It will use data in the Behavioral Analysis and Safety Improvement Categories (BASICs) to determine whether or not a carrier is fit to operate. The agency has been working on this proposal since 2007. It is scheduled to be passed to the DOT secretary’s office for review this month. From there, it is supposed to go directly to the OMB. Publication for this rule is scheduled for May.

Another important item that is in the works is a joint proposal with the National Highway Traffic Safety Administration (NHTSA) to require 68 mph speed limiters on heavy-duty trucks. This is scheduled to go to the OMB this month and then be published in June. The agency is also working on a proposal to test the trucking knowledge of would-be carriers, brokers and freight forwarders with a proficiency exam. This idea has been on the agency’s to-do list for several years now, but Congress finally got the clock ticking in earnest when it included this requirement in last year’s highway bill.

On a final note, the Obama Administration has again turned-up the heat on independent contractor misclassification. For any employer, independent contractors can be a valuable tool. They can provide skills that the company’s employees do not possess, and they can be used for short time periods without having to hire a new employee for just one project. This arrangement also benefits the independent contractor, as they are able to work on their own schedule, perform a variety of tasks, and work for multiple companies at once. The entire system seems to be equally-balanced for each party and, in fact, the use of independent contractors is becoming a standard practice in many other industries, as well.

Unfortunately, this form of relationship is also being threatened by the many instances of worker misclassification rampant across the country. If your company uses the services of independent contractors, I urge you to pay close attention in the coming months to the actions of the new Wage and Hour Administrator at the Department of Labor, Dr. David Weil. Called a “subcontractor expert” by those in the know, I can only imagine how tough life is going to get for the owner operators – stay tuned!