Consultants

March 15, 2020 – Safety & Compliance

TSA Shares Resources on COVID-19 Virus.  In a conference call this week with industry stakeholders, the Transportation Security Administration shared information on steps companies may take to address the threat of the COVID-19 virus.

The resources include EPA guidance on disinfectants to use when cleaning rolling stock, guidance for businesses from the CDC website that may be useful when addressing this outbreak, and information on risk management from the DHS Cybersecurity and Infrastructure Security Agency. 

FMCSA Final Rule on Hours of Service Heads to OMB.  The Federal Motor Carrier Safety Administration’s draft final rule to amend the driver hours of service regulations has been sent to the Office of Management and Budget for review and approval.  This is the final step before the rule may be published in the Federal Register.

Typically, this review takes approximately 60 days, unless OMB has significant questions or requires revisions to the rule.

The FMCSA’s proposed rule, published August 22, 2019, would make the following changes to the HOS rules:

  • It would revise the 30-minute break requirement by requiring a driver, after eight hours of driving time without an interruption, to take a break for at least 30 minutes, but the driver may record the time as “on duty, not driving”  or “sleeper berth” rather than “off duty.”  Thus, the driver could perform other non-driving work-related tasks during the break time.  Also, the current rule requires a break after eight hours since the last off duty or sleeper berth period of at least 30 minutes—the proposal would change this to require a break after eight hours of driving time without at least a 30-minute break.
  • The proposal would modify the sleeper-berth exception to allow drivers to split their required 10 hours off duty into two periods: one period of at least seven consecutive hours in the sleeper berth and the other period of not less than two consecutive hours, either off duty or in the sleeper berth. Neither period would count against the driver’s 14 hour driving window.
  • The agency proposes to allow one off-duty break of at least 30 minutes, but not more than three hours, that would pause a truck driver’s 14-hour driving window, provided the driver takes 10 consecutive hours off-duty at the end of the work shift.  This would permit a driver to work in up to a 17-hour window with a three-hour break during the duty period.  The driver still would not be able to drive a commercial motor vehicle more than 11 hours during this period, however.
  • The FMCSA proposes to modify the adverse driving conditions exception by extending by two hours the maximum window during which driving is permitted.  The regulations define “adverse driving conditions” to mean “snow, sleet, fog, other adverse weather conditions, a highway covered with snow or ice, or unusual road and traffic conditions, none of which were apparent on the basis of information known to the person dispatching the run at the time it was begun.”
  • Finally, the agency proposes a change to the short-haul exception available to certain commercial drivers by lengthening the drivers’ maximum on duty period from 12 to 14 hours and extending the distance limit within which the driver may operate from 100 air miles to 150 air miles (172.6 land, or statute, miles).  Any driver (whether a CDL or non-CDL holder) who operates within the 150 air-mile radius and returns to the work-reporting location and is released from duty within 14 hours would be exempt from the requirements to complete driver logs, use electronic logging devices to record hours of service, or take 30-minute breaks.

 TSA Issues Exemption Allowing TWIC Holders to Obtain Hazmat Endorsements.  The Transportation Security Administration has issued an exemption to permit the States to issue a Hazardous Materials Endorsement to an individual who holds a valid Transportation Worker Identification Credential (TWIC) without the individual undergoing a separate security threat assessment (STA) or paying an additional fee.

This exemption is an interim measure to conform the agency’s regulations to a recent statutory change in the 2018 TSA Modernization Act.  TSA intends to amend its regulations in the future to make this change permanent.

An HME is required for Commercial Driver’s License holders to operate a commercial motor vehicle transporting hazardous materials.

The PATRIOT Act requires TSA to conduct a security threat assessment consisting of criminal, immigration, and terrorism checks to determine whether an HME applicant poses a security threat. TSA’s implementing regulations prohibit States from issuing an HME unless the individual successfully completed the STA. The regulations require HME applicants to provide biographic and biometric information to TSA, and to pay a fee to cover TSA’s costs to conduct the HME STA.

The Maritime Transportation Security Act of 2002 requires TSA to conduct STAs of individuals who apply for unescorted access to certain maritime facilities and vessels. The STA must include criminal, immigration, and terrorism checks. Further, TSA must issue a TWIC to individuals who successfully complete the STA and collect fees from applicants to cover TSA’s costs to conduct the vetting and issue the credential.

Section 1978 of the TSA Modernization Act permits a State to issue an HME to an individual following TSA notification that he or she does not pose a threat, or if the individual holds a valid TWIC. The statutory language does not require States to collect information, biometrics, and fees from applicants who hold valid TWICs, or to conduct a new STA of these individuals.

This exemption implements sec. 1978 of the statute, effective March 1, 2020.  Thus, any holder of a valid TWIC may now obtain an HME from a State without a separate security threat assessment or an additional fee.

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