GAWDA Joins Letter to Senate on Changes to Hazmat Registration Fees. GAWDA has joined 26 other trade associations representing shippers and carriers of hazardous materials in a letter to the Chair and Ranking Minority Member of the Senate Committee on Commerce, Science and Transportation on proposed revisions to the annual Hazardous Materials Registration fees. The fee legislation under consideration is in response to the recent derailment of a Norfolk Southern train in East Palestine, Ohio, although the proposed fee revisions would affect all modes of hazmat transportation, including by truck.
The letter questions the need to raise the fees since the Department of Transportation does not currently spend all of the revenue collected by the existing fees. Also, the letter opposes a new 3 cents per ton fee on all hazmat shipped or carried in a year. The new fee is unacceptable for several reasons. The fee metric is too broad, covering all hazardous materials and all modes of transportation irrespective of risk. It has the potential to double and triple charges for the “same” shipment of hazardous materials because these products are often shipped and reshipped from point of origin to their final end-use destination. The per ton fee would exponentially increase recordkeeping burdens for shippers. The per ton charge discriminates against “heavy” hazardous materials of equal (or lesser) risk. And perhaps most important, the fee payment would be easy to evade, as there is no expectation that DOT will have the resources to identify and audit outliers in order to enforce this complex fee calculation. Thus, the per ton fee would raise far less revenue than anticipated.
This fee proposal is under consideration in the Railway Safety Act of 2023 before the Senate. At present there is no House companion bill.
NHTSA Begins Rulemaking on Side Underride Guards for Trailers and Semitrailers. As mandated by Congress in the 2021 Infrastructure Law, the National Highway Traffic Safety administration has issued an advance notice of proposed rulemaking to complete research on side underride guards to better understand their overall effectiveness, and to assess the feasibility, cost and benefits associated with installing side underride guards on new trailers and semitrailers.
There are currently no federal requirements for side underride guards on trailers. (No other country requires side underride guards on trailers or semitrailers, either.) NHTSA specifies requirements for rear impact guards on trailers in Federal Motor Vehicle Safety Standards Nos. 223 and 224 for vehicles with a GVW rating of 10,000 lbs. or more.
A 2022 NHTSA report estimates that 17.2 lives would be saved and 69 serious injuries would be prevented annually if all commercial motor vehicle trailers are equipped with side underride guards. The discounted annual safety benefits when side underride guards are equipped on all applicable trailers and semitrailers are estimated to range from $129 million to $166 million at 3 and 7 percent discount rates. The total discounted annual cost (including lifetime fuel cost) of equipping new trailers and semitrailers with side underride guards is estimated to range between $970 million and $1.2 billion at 3 and 7 percent discount rates. The resulting cost per equivalent life saved is in the range of $73.5 million to $103.7 million.
From NHTSA’s analysis of 184 relevant cases in the 2017 Fatal Accident Reporting System data files, the agency estimated that 19.9 percent of side underride fatalities occurred at impact speeds below 40 mph, the maximum impact speed at which the existing side underride guard considered in this analysis have demonstrated passenger vehicle occupant protection. Thus, even if side underride guards are mandated and installed on all new trailers, they will have little to no beneficial effect in over 80 percent of side impact crashes.
The notice requests comments on the agency’s assumptions on the benefits, costs, and other impacts of requiring side underride guards on trailers and asks whether there are other technologies or processes that might mitigate side impact collisions. Also, NHTSA requests input on the practicability and feasibility of side underride guards on trailer and semitrailer operations, i.e., whether side underride guards might scrape or snag on the road surface when the vehicle travels over humped surfaces such as a highway-rail crossing, or when the vehicle enters a steep loading dock ramp, and damage the equipment as a result.
FMCSA Officials Discuss Research, DACH Issues for 2023. Officials of the Federal Motor Carrier Safety Administration discussed two of the agency’s research projects for 2023 and also gave an update on the Drug and Alcohol Clearinghouse at the recent Mid-America Truck Show.
As required by Congress in the 2021 Infrastructure Law, FMCSA is sponsoring a study by the Transportation Research Board on driver compensation methods and their potential impacts on driver safety and employment retention. The main scope of inquiry is whether payment on some basis other than hourly, and failure to pay for detention time, leads to worse safety outcomes and higher driver turnover.
The study is expected to be completed by July 2024, and FMCSA intends to make recommendations to Congress in time of the next infrastructure reauthorization bill in 2026. At present, FMCSA has no authority to regulate driver compensation, but Congress could grant the agency that authority in the reauthorization legislation.
FMCSA is also studying driver detention time, which is defined as any time spent at a shipper or receiver facility not involving loading and unloading or related activities such as vehicle inspections, preparation of bills of lading, load securement, etc. The study is updating prior research and is examining the frequency and severity of detention time, and whether it varies based on the type of driver (owner-operator versus private or for-hire employee), type of facility, or type of carrier.
The study is also attempting to quantify the percentage of detention time to time spent on loading/unloading and related tasks. The analysis will address the cost and productivity repercussions of detention times, and whether there are mitigation strategies that might reduce the hours spent waiting.
Like the compensation study, the study will review any potential connections between detention time and adverse inspection results or crash data. The report is scheduled for release in July 2025.
Additionally, the FMCSA reported on its Drug and Alcohol Clearinghouse, which has been in operation for over three years. There are over 3.7 million drivers and 400,000 employers registered in the Clearinghouse. Since its inception, over 200,000 violations of the drug and alcohol rules have been reported. The most frequently reported violation is a positive test for marijuana.
The agency also has issued a “Clearinghouse 2” rule that will go into effect in November 2024. This rule will connect the DACH database to State motor vehicle agencies so that a driver who is prohibited from driving in the DACH will also have his/her CDL suspended by the State licensing agency. Thus, a prospective employer who fails to check the DACH will still have notice from the State that the driver is not eligible to drive.
FMCSA Updates Studies at Analysis, Research, and Technology Forum. The Federal Motor Carrier Safety Administration recently held its annual Analysis, Research, and Technology Forum to update the status of several agency research projects.
Topics included the agency’s driver compensation study, Safe Driver Apprenticeship Pilot Program, impact of detention time on safety and operations, effect of the length of driver medical certification on safety, effectiveness of tire safety screening systems, effectiveness of third-party CDL testing, and crash causal factors. Copies of the presentation materials from the 2023 and prior years forums are available here.
FMCSA Denies Hours of Service Exemption to NPGA for Peak Service Periods. The Federal Motor Carrier Safety Administration has denied a request for an exemption from the National Propane Gas Association for an exemption from the driver hours of service regulations to handle service requests in peak demand periods and in response to emergencies.
NPGA sought an exemption from various hours-of-service (HOS) requirements to enable the propane industry to prepare and respond to peak periods of consumer demand among residential, agricultural, and commercial consumers in anticipation of, during, and to recover from emergency conditions. NPGA requested that the exemption apply on a per-driver, per-route basis, and that each company that elects to use it must maintain appropriate documentation to demonstrate the presence of peak consumer demand conditions within the scope of the exemption.
The FMCSA analyzed the exemption application and public comments and determined that the exemption would not achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. Specifically, the agency said that NPGA’s application does not provide an analysis of the safety impacts the requested exemption from the HOS regulations may cause. It also does not provide countermeasures to ensure that the exemption would likely achieve an equivalent or greater level of safety.
Also, FMCSA found that the applicant’s examples of what constituted an emergency were highly fact-specific and inappropriate for an HOS exemption.
EPA Proposes Aggressive Vehicle Emissions Requirements. The Environmental Protection Agency has proposed new aggressive standards to force adoption of electric vehicles at significant rates by 2032, as illustrated by this EPA chart:
The proposed standards are split into two rulemakings: one affecting light- and medium-duty vehicles including cars and light trucks (EPA hopes to issue final rule in early 2024), and the other affecting heavy-duty vehicles including short- and long-haul trucks (EPA hopes to publish final rule in late 2023). NEFI will review these proposed rules, particularly the heavy-duty vehicle standards.
EPA has announced a proposed rule for more stringent standards to reduce greenhouse gas emissions from heavy-duty (HD) vehicles beginning in model year 2027. This is Phase 3 of EPA’s GHG reduction program for heavy duty trucks. The new standards would be applicable to HD vocational vehicles (such as delivery trucks, refuse haulers, public utility trucks, transit, shuttle, school buses, etc.) and tractors (such as day cabs and sleeper cabs on tractor-trailer trucks).
EPA is proposing new GHG standards for heavy-duty highway vehicles starting in model year (MY) 2028 through MY 2032 and to revise certain GHG standards for MY 2027 that were established previously under EPA’s Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles – Phase 2 rule (“HD GHG Phase 2”). EPA is also proposing to eliminate the last model year (MY 2027) of advanced technology incentives for certain electric highway heavy-duty vehicles, initially established under the HD GHG Phase 2 rule. EPA is further proposing to add warranty requirements for batteries and other components of zero-emission vehicles and to require customer-facing battery state-of-health monitors for plug-in hybrid and battery electric vehicles.
EPA notes that California and other states have adopted the Advance Clean Trucks program that includes a manufacturer requirement for zero-emission truck sales. This program would require that “manufacturers who certify Class 2b-8 chassis or complete vehicles with combustion engines would be required to sell zero-emission trucks as an increasing percentage of their annual [state] sales from 2024 to 2035.” In addition, 17 states and the District of Columbia have signed a Memorandum of Understanding establishing goals to support widespread electrification of the HD vehicle market.
The EPA has also published a proposed rule that would impose more restrictive emissions standards for light duty passenger cars and medium duty vehicles up to 14,000 lbs. GVW for model years 2027-2032. The proposal discusses advancements in market penetration for light and medium duty EVs and State requirements (led by California) to require manufacturers to sell an increasing percentage of Zero Emission Vehicles over the next decade. EPA notes that many commitments to purchase all-electric medium-duty delivery vans have been announced by large fleet owners including FedEx, Amazon, and Walmart, in partnerships with various Original Equipment Manufacturers.
For light-duty vehicles (up to 8500 lbs. GVW), EPA is proposing nonmethane organic gases (NMOG) plus nitrogen oxides (NOX) standards that would phase-down to a fleet average level of 12 mg/mi by MY 2032, representing a 60 percent reduction from the existing 30 mg/mi standards for MY 2025 established in the Tier 3 rule in 2014.
For medium duty vehicles, EPA is proposing NMOG+NOX standards that would require a fleet average level of 60 mg/mi by MY 2032, representing a 66 percent to 76 percent reduction from the Tier 3 standards of 178 mg/mi for Class 2b vehicles and 247 mg/mi for Class 3 vehicles. For both light-duty and all medium-duty vehicles, EPA is proposing a particulate matter (PM) standard of 0.5 mg/mi and a requirement that the standard be met across three test cycles. The agency projects the standards will reduce tailpipe PM emissions from ICE vehicles by over 95 percent.
Comments will be due 60 days after the proposal is published in the Federal Register, which should occur in the next few days.
White House Issues Executive Order to Revise Regulatory Reviews. The White House has issued a new Executive Order to revise its regulatory review process. The Office of Management and Budget, part of the Executive Branch, must review and approve all proposed regulations that meet a certain threshold dollar amount of impact on regulated entities.
The EO adjusts the definition of a significant regulatory action requiring heightened scrutiny and approval from $100 million to $200 million in annual effect on the economy and allows it to be adjusted every three years for inflation. This means that fewer proposed regulations will have to go through the OMB review process.
The EO also limits the ability of representatives of regulated entities from seeking meetings with the OMB Office of Information and Regulatory Affairs to discuss proposals while the review process in ongoing.
FMCSA Proposes Modified Standards for Crash Preventability Determination Program. The Federal Motor Carrier Safety Administration has issued a notice proposing to modify the standards it uses in its Crash Preventability Determination Program.
This program reviews 16 specific crash types and modifies information in a motor carrier’s Safety Measurement System to distinguish preventable from non-preventable crashes. The existing program was an expansion of the agency’s previous demonstration program that reviewed eight specific crash types. Through the incorporation of this information into SMS, FMCSA asserts it is better able to identify unsafe carrier and driver behaviors and prioritize carriers for interventions, by excluding non-preventable crashes when calculating a motor carrier’s Crash Indicator Behavior Analysis Safety Improvement Category measure and percentile ranking.
FMCSA is proposing modifying existing crash types to allow more crashes to be eligible for review, removing the distinction between direct and indirect strikes, and differentiating some types for improved reporting and use of the data to identify ways to reduce crashes involving non-motorists, in alignment with the Department of Transportation’s National Roadway Safety Strategies at www.transportation.gov/NRSS.
In addition, FMCSA proposes that four new crash types be included in the program. FMCSA seeks comments on these proposed changes. FMCSA will respond to comments it receives on the proposal and announce the start of the updated CPDP through a subsequent Federal Register notice.
The four additional crash types proposed are:
- CMV was struck on the side by a motorist operating in the same direction. Currently, the crash type is limited to side strikes at the very rear of the vehicle (e.g., 5:00 and 7:00 points of impact).
- CMV was struck because another motorist was entering the roadway from a private driveway or parking lot.
- CMV was struck because another motorist lost control of their vehicle. FMCSA reviewed many PARs that included this information but were ineligible for the program under the current crash types.
- Any other type of crash involving a CMV where a video demonstrates the sequence of events of the crash.