The new requirement, which FMCSA Administrator John H. Hill says “will give truck drivers additional skills needed to keep our roads safe,” means that three years after the rule takes effect all applicants for a CDL or upgraded CDL would be required to provide a valid certificate from a truck driving program or institution accredited by the U.S. Department of Education or the Council on Higher Education Accreditation. The rule does not cover current CDL holders.

For a Class A CDL, 76 hours of classroom instruction and 44 hours of BTW training would be required, while drivers of Class B and Class C CDLs would need a minimum of 58 hours of classroom instruction and 32 hours of BTW training. The training curriculum includes CDL safety regulations, vehicle operation and safe operating practices.

Eisenhart points out that the proposed rule would require a CDL applicant to obtain and hold a learner’s permit for 30 days before applying for a CDL. “They would have to pass the CDL knowledge test before they could get a learner’s permit. All of this will simply lengthen the time that it takes to get people behind the wheel,” he says.

In addition, the measure would require background checks and formal training for all driving test examiners and establishment of “oversight systems” for all examiners and testers, including third-party individuals. It also would disallow the use of language interpreters for the knowledge and skills test, and would impose new standards on document security and recordkeeping. States would be required to verify the applicant’s Social Security number with the Social Security Administration.

“A lot of testing and training is currently done in-house at many companies, so they will have additional requirements to meet,” adds Eisenhart. “Those individuals will have to be background-checked against immigration and terrorist watch lists. It’s another employer burden.”

Some of the security requirements are meant to comply with the Real ID Act of 2005, which requires states to establish procedures for secure identification cards for their residents. FMCSA has said that since the Department of Homeland Security’s rules for driver’s licenses exceed those proposed in the Real ID Act regulation, further action may be necessary to harmonize those requirements.

Motor carriers would be prohibited from using a driver who does not hold a commercial learner’s permit or CDL in compliance with the regulation.

Hours of Service
FMCSA is currently working on a final regulation governing the number of hours that drivers may operate commercial trucks within a specified day or week.
In late February, the U.S. District Court of Appeals denied a petition by Public Citizen and the Teamsters to invalidate an interim HOS regulation that had been announced last December by the agency.

Under that rule, commercial motor vehicle drivers would be allowed up to 11 hours of driving time within a 14-hour, non-extendable window from the start of the work day, following 10 consecutive hours off duty. The rule also allows motor carriers and drivers to restart calculations of the weekly on-duty time limits after the driver has at least 34 hours consecutive hours off duty. Those provisions were previously vacated by the same court last July.

But by reinstating them in its interim regulation, FMCSA said carriers would have a familiar and uniform set of national rules to work with while it considers an appropriate final regulation that addresses issues raised by the court. Hill said the agency is committed to issuing a final rule in 2008.

During testimony before the Senate Surface Transportation Subcommittee last December 19, Hill said that 93 percent of all large truck crashes were not related to driver fatigue.

“Some commenters have challenged the basis for FMCSA allowing drivers to drive one hour longer per shift, when combined with the longer rest periods required,” he acknowledged. But Hill told senators that between 1991 and 2002 only nine large trucks were involved in fatigue-related fatal crashes in the 11th hour of driving. More recent data shows there was one such “involvement” in 2003, none in 2004, and one in 2005.”

More fatal crashes were caused, he said, by illegal lane maneuvers, traveling to fast for conditions, inattention, inadequate surveillance, and following too closely. “Wise stewardship requires us to use our resources most effectively to reduce crashes and fatalities,” Hill said. “We continually assess how to best reduce roadway deaths.”

In the court’s decision, it vacated both the 11-hour driving limit and the 34-hour “restart” provision, saying FMCSA had failed to provide opportunity for comment on the methodology it used in developing the rule and that the agency’s explanation of operator fatigue factors was inadequate.

“The rule’s opponents have argued consistently in favor of reducing the allowable driving time from 11 hours to 10 hours and eliminating the 34-hour restart,” Hill said. “However, the information available at the time we published our 2005 rule and the subsequent (rule) did not support that position.” He said the agency will pursue any evidence that suggests those provisions are resulting in any increase in commercial motor vehicle fatalities.

Electronic on-board recorders
According to Eisenhart, who carefully tracks federal transportation policy developments for numerous industry clients, FMCSA is currently considering “a more expansive mandate” on EOBRs rather than requiring them only for companies with a pattern of HOS violations.

In its current proposal, the agency would require EOBRs to record basic information needed to track a driver’s duty status, including identity of the driver, date, time and location of the vehicle, and distance traveled. It would also require the use of Global Positioning System (GPS) technology or other location tracking systems to automatically identify the location of the vehicle, which the agency said “further reduces the likelihood of falsification of HOS information.”

FMCSA estimated that within the first two years of the regulation that approximately 930 carriers with 17,500 drivers would be required to use EOBRs. To expand use of the devices among the more than 650,000 motor carriers in the U.S., the rule provides some record-keeping incentives by loosening some documentation to support HOS requirements.

During hearings last year, Sen. Frank Lautenberg (D-NJ), chairman of the Senate Surface Transportation Subcommittee, made it clear that if the agency did not propose a more comprehensive regulation he would pursue additional legislation.

In fact, the Senator said the devices need to be installed in every truck on the road in order to combat the problem of drivers regularly exceeding the maximum hours they are permitted to drive under the law and to reduce risk of fatigue-related crashes. He said surveys show that as many as one in five truck drivers regularly exceed the maximum allowable hours they may drive. EOBRs could help prevent accidents by giving trucking companies and law enforcement officials a better way to enforce hours-of-service regulations, he said. Lautenberg’s position has been echoed by influential lawmakers in the House of Representatives.

While requiring the devices could pose an additional expense for distributors, they could also provide valuable information – pro or con – in the case of an accident.

Costly mistake
It’s hard to believe federal legislation could actually be drafted, discussed in committee in both houses of Congress, debated on the floor, negotiated in conference, and then signed into law – and then somebody discovers a “drafting mistake” that will affect thousands of workers and employers alike.

But that apparently is exactly what happened in 2005 when the SAFETEA-LU bill was enacted.

“In December 2005, somebody in the Department of Labor sent an email to the chief counsel at the Department of Transportation and said these drivers now must be paid overtime if they drive more than 40 hours per week,” Eisenhart recalls. “It was like something fell out of the sky and into their laps.”

At issue was a long-standing exemption from the Fair Labor Standards Act (FLSA) for “any employee with respect to whom the Secretary of Transportation has the power to establish qualifications and maximum hours of service.” SAFETEA-LU repealed that exemption, meaning that employees who were previously subject to Department of Transportation regulation are now subject to the U.S. Department of Labor regulation under the FLSA.

Thus, businesses of all sizes are now exposed to lawsuits for overtime pay dating back to August 15, 2005, when SAFETEA-LU became law. Moreover, the DOT, which now supports a return to the pre-highway bill status quo, has said that without that change it will be impeded in its safety mission because it no longer has authority to regulate those commercial vehicles.

Shortly after the “mistake” was uncovered, some business groups representing companies that employed such drivers, like direct-store-delivery operations, lobbied the then Republican-controlled Congress to fix the law. However, those efforts were unsuccessful, the Democrats gained control, the Teamsters became involved, and the legislative remedy became impossible.

At press time, Congress was finalizing the DOT Technical Corrections Bill (H.R. 1195), which included language providing a “safe harbor” period of one year after passage of SAFETEA-LU (August 10, 2005) so employers could not be subjected to legal action for failure to comply with a requirement of which they were unaware. The safe harbor would be for a shorter period of time if the employer had “actual knowledge” of the change in law before that time.

“Every company that has drivers in that weight class must pay those drivers overtime under the provisions of the FLSA,” Eisenhart cautions. “Those companies may need to revise their pay structures to accommodate that.”

Now – who’s got the ball?

Bob Gatty is a food industry writer based in Sykesville, MD, and founder of Gatty Edits.