June 1, 2020 – Safety & Compliance

FMCSA Implements New Crash Preventability Determination Program.  The Federal Motor Carrier Safety Administration has announced the start of the agency’s new Crash Preventability Determination Program.  85 Fed. Reg. 27017 (May 6, 2020).  Through this program, motor carriers and drivers may submit eligible crashes for preventability determinations through the FMCSA’s DataQs system. FMCSA will remove crashes that were not preventable by the motor carrier or driver from the Safety Measurement System (SMS) algorithm that prioritizes carriers and drivers for enforcement actions.

FMCSA will also note the not preventable determinations in the driver’s Pre-Employment Screening Program (PSP) record and will note not preventable, preventable, and undecided determinations in the motor carrier’s list of crashes on the public SMS website.

The agency had previously run a demonstration program from 2017-2019 to evaluate the preventability of eight categories of crashes through submissions of Requests for Data Review (RDR) to its national data correction system known as DataQs.  The agency has now streamlined the process and modified the SMS to exclude crashes with “not preventable” determinations.

FMCSA has established a new website with information on the Crash Preventability Determination Program, including the list of crash types eligible for review and how to submit a crash for review.  This website includes frequently asked questions and tools to help submitters complete the RDR process in DataQs. The website will be updated quarterly to provide information on the RDRs received and reviewed by the agency.

DataQs is now available to accept RDRs for eligible crashes occurring on or after August 1, 2019. Submitters must provide a Police Accident Report and are encouraged to provide other documents, photos, and videos to present compelling evidence that the crash is eligible and not preventable. The FMCSA may request additional information on the crash, which might include any documentation the carrier is required to maintain under the agency’s regulations. Failure to submit documents requested by the agency may cause the RDR to be closed without a preventability determination or with an undecided determination.

During the demonstration program, 4,089 unique motor carriers submitted more than 14,700 RDRs.  Carriers with not preventable crashes removed had a percentile drop of 9 points in the recalculated Crash Indicator BASIC score.

FMCSA Releases Final Rule on Driver Hours of Service.  The Federal Motor Carrier Safety Administration has released its final rule revising its driver hours of service regulations.  The new requirements give additional flexibility to drivers and motor carriers; the agency claims the changes will generate $273 million in annual savings in compliance costs.

The final rule will be published in the Federal Register sometime this week and will go into effect 120 days after publication.  The rule makes changes in four areas:

  • It will revise the 30-minute break rule by requiring a break after 8 hours of consecutive driving rather than 8 hours on duty and allowing the break to be satisfied by a driver using on-duty, not driving status, rather than off-duty status.
  • The rule will modify the sleeper-berth exception to allow drivers to split their required 10 hours off duty into two periods: an 8/2 split and a 7/3 split—with neither period counting against the driver’s 14-hour driving window.
  • The rule will modify the adverse driving conditions exception by extending by 2 hours the maximum window during which driving is permitted.
  • It will change 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. These drivers will be exempt from the requirements for driver logs and Electronic Logging Devices and the 30-minute break requirement.

To be eligible for the short-haul exception, a driver must still return to the work-reporting location and be released from duty within the 14-hour limit.  The FMCSA denied requests to allow the driver to end the work period at a different location than the starting point.  The agency also declined to include driver-salespersons in the same 14-hour, 150 air-mile rule as other short-haul drivers.

In addition, the FMCSA did not adopt a proposal to allow drivers to extend the 14-hour duty window by taking a break of up to three hours.  Instead, it retained the 30-minute break requirement, with the amendments noted above.

FMCSA Extends Emergency Declaration to June 14.  The Federal Motor Carrier Safety Administration has extended its Emergency Declaration through June 14, 2020.  The declaration exempts motor carriers and drivers from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations while providing direct assistance in support of relief efforts related to the COVID-19 outbreaks nationwide.

Direct assistance means transportation and other relief services provided by a motor carrier or its driver(s) incident to the immediate restoration of essential services (such as medical care) or essential supplies (such as food and fuel) related to COVID-19 during the emergency.

PHMSA Affirms Preemption of NYC Hazmat Truck Inspection, Fees.  The Pipeline and Hazardous Materials Safety Administration has affirmed its prior decision preempting an annual vehicle inspection requirement and fee for those wishing to transport hazardous materials in New York City.  85 Fed. Reg. 29505 (May 15, 2020).

The Fire Department of New York imposed the requirements, which were challenged in a petition for a preemption determination by the American Trucking Associations.  PHMSA ruled that the inspection and fees were preempted by federal law in a July 6, 2017 decision, but the FDNY petitioned for reconsideration.  This current decision affirms the effect of the previous ruling.

The agency determined that the Hazardous Materials Transportation Act preempts FDNY’s permit and inspection requirements with respect to vehicles based outside the inspecting jurisdiction (New York City).   Vehicles based within the City are still subject to annual inspections and permits, however.

In addition, PHMSA determined that the $105 annual permit fee is not “fair,” as required by federal law, because flat fees tend to discriminate against interstate commerce. Locally based companies will, on average, operate more miles in NYC than companies with non-local vehicles, and thus will derive more benefit from a flat fee structure.  As a result, the agency affirmed its determination that the permit fee is preempted.

The FDNY now has 60 days to appeal the decision to a federal court of appeals.  But unlike the PHMSA appeals process, if the FDNY wants to stay the PHMSA decision and continue to enforce the inspection requirements and fees while the appeal is pending, it must file an appeal and seek a stay from the appellate court.



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