On December 4, 2015, President Obama signed into law the Fixing America’s Surface Transportation Act highway bill (dubbed the “FAST Act 2015”). The five – year, $305 billion dollar highway funding bill includes several important trucking regulatory reforms and also represents the longest termed highway bill in decades. The Act mandates a series of long-term homework projects for the FMCSA with the goal of clearing the smoke and mirrors effect from certain issues such as CSA scores, driver detention issues, and insurance matters. To save you the trouble of perusing the approximately 1,300 pages of Act (unless you’ve been eagerly anticipating the read, then consider this a spoiler alert) we’ve highlighted some important changes that directly impact our industry:
• The infamous CSA scores are no more for the time being. Much of the information contained on the FMCSA website that was previously available and that related to carriers’ performance is no longer on display. Carriers’ percentile rankings and the seven SMS BASICS are among the bulk of the data that has been temporarily removed. The bill requires the FMCSA to perform in-depth studies on issues like carriers’ crash risk and the correlation between CSA scores and the carriers’ likelihood of crashes. This study is due to be produced to Congress within 18 months of the bill becoming law. Congress has required that the FMCSA implement a “corrective action plan” before it can allow public view of the carrier information previously contained on its website.
• The FMCSA must study and provide Congress with a report on how driver detention at shippers and receivers’ facilities impede the efficiency of US freight movement, as well as the impact the detention might have on drivers’ schedules or wages.
• The FMCSA must also provide a report to Congress concerning carrier liability insurance minimums and whether they should be raised from their current values. Liability for general freight carriers is $750,000.00.
• The Act allows carriers to use drivers’ hair as a source of material for drug testing, in lieu of urine tests, but only after the Department of Health and Human Services establishes a clear guideline for hair testing. The DHHS is expected to report to Congress with some guidelines within one year.
• The rulemaking process for the FMCSA has undergone new regulations, and the FMCSA must include a “regulatory impact analysis” for each new rule it institutes, which must show the effect the rule might have on carriers of various sizes. The Act requires the analysis to utilize data that represents the commercial motor carrier industry that would be impacted by the rule.
• The FMCSA must change the rules to allow military veterans with experience driving equipment that is similar to heavy-duty trucks to more easily obtain a CDL and drive a truck as a civilian. Specifically, the FMCSA must allow their military driving experience to count towards driving skills and tests and their medical certifications could be obtained from VA doctors rather than those in the FMCSA’s registry.
For as many things as the bill included, there exists a list of things notably absent from the final, signed draft:
• The final version does not contain a measure to permit 18-21 year old CDL holders to drive interstate. The preliminary House and Senate bills included measures to let states enter into a compact to allow 18-21 years olds to cross state lines. The final version, however, sets up a “controlled study” to be performed by the FMCSA to collect data on under-21 year old drivers who are former military members and study the benefits and safety issues.
• There is no provision allowing for an increase in federal weight limits. Trucking lobbyist groups pushed for an increase from the current 80,000 pounds to 91,000 pounds and increasing the maximum allowed length of tandem trailers to 33 feet from the current 28 feet.
• The Act provides no “hiring standards” provision (thankfully). The original House highway bill had criteria that encouraged shippers and brokers to hire only carriers with “satisfactory” safety ratings. Critics of the House highway bill balked, stating that the provision would wreak havoc on a majority of small trucking companies who are “unrated” by the FMCSA.
• The Denham Amendment, promulgated by Representative Jeff Denham (R-Calif.), sought to clarify a recent court ruling issued by a federal appellate court. The Federal Aviation Administration Authorization Act (FAAA) prohibits states from enacting laws that interfere with motor carrier prices, routes, or service. However, the federal ruling last year held that a California law mandating meal and rest break for workers in the states superseded FAA. The Denham Amendment would have explicitly provided that states cannot regulate truckers who fall under federal Hours of Service regulations.
• The final bill also eliminated the provision in the Senate’s original bill that allowed tolling on existing interstate lanes and the use of toll money for use outside of the US interstate system.
Overall, the Act shows promise in paving a way for a better future for those of us in the transportation industry. We are all painfully aware of the FMCSA’s need to take the CSA score concept back to the proverbial drawing board. Hopefully the new system will provide a less harsh view of some of the more (relatively speaking) benign issues that blemish some of our reports. Improvements in CSA reporting may also help defend trucking companies sued in litigation, as plaintiffs’ attorneys often exaggerate what would otherwise be seen as relatively minor disclosures. Of course the impact of this Act may hit more forcefully once the FMCSA generates the numerous reports it has been assigned to prepare and provide and that concern very important aspects of the transportation industry. The agency has been given a hefty homework assignment and it remains to be seen whether the curve is in its favor.
This article was written by Lesley Hall, JD, MBA, associate attorney at Roberts Perryman PC. Lesley focuses her practice on Transportation and Logistics as well as Trucking Litigation. Additionally, Lesley is third generation of a trucking family.
Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com