Truckload Authority Staff

Despite the change in administrations and the fact that there is no clarity about where President Joe Biden and Transportation Secretary Pete Buttigieg stand on current and proposed rules and regulations, the Federal Motor Carrier Safety Administration has continued to move forward by naming a driver advisory committee, proposing a pilot program to study further flexibility in the hours-of-service rule, and issuing a final rule that will streamline the CDL procurement process by allowing third-party testers to provide applicants with both skills training and skills testing. FMCSA ASSEMBLES ADVISORY PANEL OF 25 COMMERCIAL DRIVERS The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has named 25 commercial motor vehicle (CMV) drivers from all sectors of the industry to serve as a new panel to the agency’s Motor Carrier Safety Advisory Committee (MCSAC). “FMCSA believes in listening to our drivers and hearing their concerns directly,” said then-FMCSA Deputy Administrator Wiley Deck. “We know that many of the solutions to the challenges we face don’t come from Washington — they come from the hard-working men and women who are behind the wheel all over our nation. This new subcommittee to MCSAC will further help us hear from America’s commercial drivers.” This new panel, led by the Owner-Operator Independent Drivers Association (OOIDA) President Todd Spencer, will provide direct feedback to FMCSA on important issues facing the driving community — such as safety, hours-of-service regulations, training, parking, and driver experience. This new panel is comprised of 25 drivers from all sectors of the CMV industry, including tractor-trailer drivers, straight-truck drivers, motorcoach drivers, hazardous-materials drivers, agriculture haulers, and more. According to a statement from FMCSA, the agency wants to hear directly from commercial drivers and then incorporate their opinions and concerns into FMCSA’s safety initiatives. The panelists include: Todd Spencer, OOIDA — Chair; William Bennett III, UPS Freight; Teddy Cranford, Waste Management of Maryland Inc.; Debra Desiderato, Walkabout Transport; Douglas Feathers, URS Midwest Inc.; Steve Fields, YRC Freight; JoAnne Forbes, MBT Worldwide Inc.; Gerald Fritts Jr., American Overland Freight; John Grosvenor, McKiernan Trucking; Attila Gyorfi, RSP Express Inc.; W. Scott Harrison, K Limited Carriers; Rhonda Hartman, Old Dominion Freight Lines; Darwin Hershberger; Hershberger Livestock LLC; Daniel Kobussen, Kobussen Buses Ltd.; Deb Labree, Castle Transport LLC; Alphonso Lewis, YRC Freight; Don Logan, FedEx Freight; Kellylynn McLaughlin, Schneider National Inc.; Tina Peterson, Ravenwood Transport; Stephen Pryor, Greyhound Lines Inc.; H. Kevin (Brandy) Russell, Transport America; Douglas Smith, Ralph Smith Co.; Kevin Steichen, Steichen Trucking; Angelique Temple, Atlantic Bulk Carrier; and Desirée Wood, Real Women in Trucking. FMCSA PROPOSES NEW SLEEPER-BERTH PILOT PROGRAM The Federal Motor Carrier Safety Administration (FMCSA) has announced a new proposed pilot program for commercial motor vehicle (CMV) drivers to evaluate two additional options for splitting sleeper berth periods — a 6/4 split and a 5/5 split. “FMCSA continues to explore ways to provide flexibility for drivers, while maintaining safety on our roadways,” said then-FMCSA Deputy Administrator Wiley Deck. “This proposed pilot program will provide needed data and feedback for the agency to use now and in the future. Gathering more data on split-sleeper flexibility will benefit all CMV stakeholders. We encourage everyone to review this proposal and provide their public comments.” During the proposed pilot program, participating drivers would have the option to split their 10 hours of sleeper berth time into two periods — as long as each of the two periods is at least four hours, and the combined time of the two periods equals at least 10 hours. Drivers participating in the program would also be free to choose whether to operate under the exemption based on their schedule. Carriers and drivers desiring to participate would apply to FMCSA for acceptance in the pilot program. As part of its rulemaking process on hours-of-service reform, FMCSA asked for public input regarding potential split periods of 6/4 or 5/5 to gather data on the two options. The agency did not receive any additional data during the comment period; this pilot program would help provide empirical data on potential split sleeper periods. According to a statement from FMCSA, the agency has worked closely with motor carrier stakeholders on the issue of sleeper berth periods. Both motor carriers and organized labor have supported efforts to explore additional options. The International Brotherhood of Teamsters stated that “the majority of Teamster team drivers … indicated they preferred having more flexibility in the time that they can obtain restorative rest periods.” INSPECTOR GENERAL: FMCSA FALLS SHORT IN OVERSIGHT OF REGISTRY OF MEDICAL-CERTIFICATION EXAMINERS A report released in January by the U.S. Department of Transportation’s (DOT) Office of Inspector General revealed that the Federal Motor Carrier Safety Administration (FMCSA) has fallen short in meeting oversight requirements while rebuilding the National Registry of Certified Medical Examiners. As part of its mission, the FMCSA oversees its medical-certification program and promotes safety through regulations, policies, and monitoring of certified medical examiners and driver examinations. The purpose of the National Registry of Certified Medical Examiners, initiated in 2014, is to verify that medical examiners can effectively determine if interstate commercial drivers meet FMCSA’s physical qualification standards. In 2019, as fatalities in crashes involving large trucks or buses increased by 10.6% over a five-year period, an audit of FMCSA’s oversight was initiated due to the significant safety risk posed by drivers who do not meet physical qualification requirements. The audit analyzed FMCSA’s procedures in validating and maintaining data quality in the registry and monitoring medical examiner eligibility and performance and reviewing driver examinations. “FMCSA’s ability to oversee whether drivers meet physical qualification standards to safely operate a commercial vehicle is limited because of a lengthy outage of the National Registry and a resulting backlog of driver examination reports that were not entered into the Registry,” the Office of Inspector General noted in a January 13 statement. The report also notes that the effectiveness of FMCSA’s oversight is hampered by data that is not fully accurate or complete. “FMCSA has not fully implemented requirements for random periodic monitoring of medical examiners’ eligibility and performance,” the statement continued. Initial certification reviews have been conducted to verify medical examiners’ eligibility, but FMCSA has not implemented annual audits. These periodic audits could result in the FMCSA missing fraud indicators or other risks. FMCSA has been advised of the following recommendations following the audit: Implement Agency plans for eliminating the backlog of driver examination results held by medical examiners; Develop a plan to allocate resources to the Medical Programs Division to fully implement requirements for medical examiner eligibility audits and random selection performance monitoring; Update Agency processes for conducting periodic medical examiner eligibility audits and random selection performance monitoring as needed to incorporate upgraded National Registry tools; and Reinstate the conduct of eligibility audits and random selection performance monitoring of medical examiners. According to the January 13 statement, FMCSA concurs with these recommendations to improve oversight of the National Registry of Certified Medical Examiners. FMCSA ISSUES FINAL RULE STREAMLINING CDL SKILLS TESTING The Federal Motor Carrier Safety Administration (FMCSA) has issued a final rule to streamline the process for men and women interested in entering the trucking industry. The new rule will allow states to permit a third-party skills test examiner to administer the commercial driver’s license (CDL) skills test to applicants for whom the examiner also provided skills training. “During the COVID-19 public health emergency, truckers have been American heroes — and the department is committed to helping our economy by reducing unnecessary barriers for those interested in obtaining jobs in the trucking industry,” said then-Secretary of Transportation Elaine Chao. Federal rules previously prohibited a third-party CDL skills instructor who is also authorized by the state to administer the CDL-skills test from performing both the instruction and the qualifying testing for the same CDL applicant. The final rule, announced in mid-December, eliminates that restriction, and permits states, at their discretion, to allow qualified third-party skills trainers to also conduct the skills testing for the same individual. This new rule is designed to alleviate testing delays and eliminate needless inconvenience and expense to the CDL applicant without compromising safety. “Under Secretary Chao’s leadership, the Trump administration has continued to examine ways to provide common-sense regulatory reform and help individuals seeking to enter the commercial driver industry,” shared then-FMCSA Deputy Administrator Wiley Deck. “This new rule will provide states more flexibility during the ongoing public health emergency to test CDL applicants and allow more drivers to safely enter the industry.” DOL ISSUES FINAL RULE CLARIFYING DEFINITION OF ‘INDEPENDENT CONTRACTOR’ The Department of Labor (DOL) published a final rule in the Federal Register that clarifies the standard for employee versus independent contractor status under the Fair Labor Standards Act (FLSA). The rule defines “independent contractors” as people who are, in fact, in business for themselves and are not economically dependent on a single potential employer for work. “This rule brings long-needed clarity for American workers and employers,” said then-U.S. Secretary of Labor Eugene Scalia. “Sharpening the test to determine who is an independent contractor under the Fair Labor Standards Act makes it easier to identify employees covered by the act, while recognizing and respecting the entrepreneurial spirit of workers who choose to pursue the freedom associated with being an independent contractor.” The final rule includes the following clarifications: Reaffirms an “economic reality” test to determine whether an individual is in business for him or herself (independent contractor) or is economically dependent on a potential employer for work (FLSA employee. Identifies and explains two “core factors” that are most probative to the question of whether a worker is economically dependent on someone else’s business or is in business for him or herself, notably (1) the nature and degree of control over the work, and (2) the worker’s opportunity for profit or loss based on initiative and/or investment. Identifies three other factors that may serve as additional guideposts in the analysis, particularly when the two core factors do not point to the same classification. The factors are (1) the amount of skill required for the work, (2) the degree of permanence of the working relationship between the worker and the potential employer, and (3) whether the work is part of an integrated unit of production. The actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible. Provides six fact-specific examples applying the factors. The Biden administration is expected to pause the implementation of this final rule for further review. The rule could also fall victim to being overturned by the newly Democratic Congress. In mid-January, the DOL’s Wage and Hour Division released an opinion letter clarifying that motor carrier safety requirements for owner-operator drivers do not affect independent contractor status. The opinion letter, which came after a request from American Trucking Associations, specifically asks the DOL to allow motor carriers to provide or require various types of safety training and safety equipment to drivers without endangering their status as independent contractors. This opinion letter, along with several others, was later withdrawn by the Biden administration. The Wage and Hour Division noted the letters were, “issued prematurely because they are based on rules that have not gone into effect.” NEW ADMINISTRATION CAN REVERSE SOME FINAL RULES Almost buried in the flurry of news surrounding President Joe Biden’s infrastructure plans is the Congressional Review Act (CRA) that empowers Congress to review, by means of an expedited legislative process, new federal regulations issued by government agencies and, by passage of a joint resolution, to overrule a regulation. Once a rule is thus repealed, the CRA also prohibits the reissuing of the rule in substantially the same form or the issuing of a new rule that is substantially the same. The law, passed in 1996, had been invoked only once before former President Donald Trump and the Republican Congress used it 16 times to repeal Obama-era rules. Final rules released in the last 60 legislative days of the previous Congress are impacted. For the current session of Congress, that date is August 11, 2020. According to George Washington University’s (GWU) Regulatory Studies Center, just short of 1,400 federal regulations fall within that 60-day legislative window. Of that number, 319 come from the Department of Transportation (DOT) — the most of any department. GWU said 224 “significant” rulemakings are on the list; DOT leads with 33. Truckload Carriers Association Vice President of Government Affairs David Heller said one rule that is on the list from the Federal Motor Carrier Safety Administration (FMCSA) is a final rule clarifying agricultural commodity and livestock definitions in hours-of-service (HOS) regulations. One piece of rulemaking from the Department of Labor (DOL) on the list that impacts trucking is a final rule that clarifies the standard for employee versus independent contractor status under the Fair Labor Standards Act (FLSA). The rule defines “independent contractors” as people who are in fact in business for themselves and are not economically dependent on a single potential employer for work. A final FMCSA rule to streamline the process for men and women interested in entering the trucking workforce was issued during the time, but it was not published in the Federal Register during the last 60 days of the previous session. Thus, the rule is not subject to the CRA but will instead receive internal review at DOT before it moves forward. The rule will allow states to permit a third-party skills test examiner to administer the Commercial Driver’s License (CDL) skills test to applicants to whom the examiner has also provided skills training. FMCSA and other agencies have other rulemakings in various stages. “A new administration will not take action through the CRA against anything other than a final rule,” said Heller. “Rather, a new administration simply won’t move forward in the rulemaking process.” GHSA CALLS UPTICK IN TRAFFIC FATALITIES ‘TROUBLING’ The Governors Highway Safety Association (GHSA) said that an uptick in traffic fatalities during the third quarter of 2020, despite a decline in vehicle miles traveled (VMT), is a “troubling trend” as traffic volumes return to normal, according to an article published by The Journal, the official publication of the American Association of State Highway and Transportation Officials. Early estimates issued by the National Highway Traffic Safety Administration (NHTSA) indicate that 11,260 people died on U.S. roadways in the third quarter of 2020, which is a 13.1% increase compared to the same period in 2019. Throughout the first nine months of 2020, NHTSA’s early data indicates that 28,190 people died in motor vehicle crashes — a 4.6% increase compared to the first nine months of 2019. Meanwhile, Federal Highway Administration data shows that VMT during the first nine months of 2020 dropped by about 355.5 billion miles or about 14.5%, meaning the fatality rate for the first three quarters of 2020 jumped to 1.35 fatalities per 100 million VMT. That number is up from 1.10 fatalities per 100 million VMT over the same period in 2019. “We can’t afford to compound the staggering loss of life from COVID-19 with additional preventable deaths caused by unsafe driving behaviors like speeding, driving under the influence or distracted, and not wearing a seat belt,” noted GHSA’s Executive Director Jonathan Adkins in a statement. “The vaccine for unsafe driving is available to every American right now — slow down, buckle up, stow your phone, and never drive impaired,” he said. “If we don’t inoculate ourselves against these dangerous driving habits, a lasting impact of this pandemic will be even more traffic deaths — an unacceptable outcome.” CVSA ANNUAL ROADCHECK SCHEDULED FOR MAY 4-6 The Commercial Vehicle Safety Alliance (CVSA) has announced this year’s International Roadcheck dates — May 4-6. Over this 72-hour period, commercial motor vehicle inspectors in jurisdictions throughout Canada, Mexico, and the U.S. will conduct inspections on commercial motor vehicles and drivers. “CVSA shares the dates of International Roadcheck in advance to remind motor carriers and drivers of the importance of proactive vehicle maintenance and driver readiness,” said CVSA President Sgt. John Samis of the Delaware State Police. “International Roadcheck also aims to raise awareness of the North American Standard Inspection Program and the essential highway safety rules and regulations in place to keep our roadways safe.” Inspectors will ensure the vehicle’s brake systems, cargo securement, coupling devices, driveline/driveshaft components, driver’s seat, exhaust systems, frames, fuel systems, lighting devices, steering mechanisms, suspensions, tires, van and open-top trailer bodies, wheels, rims, hubs, and windshield wipers are compliant with regulations. Inspections of motorcoaches, passenger vans, and other passenger-carrying vehicles also include emergency exits, electrical cables and systems in the engine and battery compartments, and seating. Inspectors will be looking for critical vehicle inspection item violations, outlined in the North American Standard Out-of-Service Criteria. If such violations are found, the vehicle will be placed out of service, which means that vehicle cannot be operated until the identified out-of-service conditions have been corrected. Also during an inspection, inspectors will check the driver’s operating credentials, hours-of-service documentation, seat belt usage, and for alcohol and/or drug impairment. A driver will be placed out of service if an inspector discovers driver-related out-of-service conditions. Each year, CVSA asks its member jurisdictions to capture and report data focusing on a certain category of violations during International Roadcheck. This helps bring awareness to certain aspects of a roadside inspection. This year inspectors will capture data on two categories, corresponding to the two main inspection categories of the North American Standard Level I Inspection — driver operating requirements and vehicle mechanical fitness. For the driver category, hours of service will be highlighted this year, and for the vehicle category, inspectors will be paying special attention to lighting. As was the case last year, in consideration of COVID-19, law-enforcement personnel will conduct inspections following their departments’ health and safety protocols during 2021 International Roadcheck. Last year, more than 50,000 inspections were conducted. The overall vehicle out-of-service rate in North America, for Level I, II and V Inspections combined, was 20.9%. The top two categories for violations were brake system with 3,163 violations (25.8%) and tires with 2,326 violations (19%). Because of the pandemic, last year’s International Roadcheck was held in September.

While the aftermath of the general election and Joe Biden securing the presidency have taken the spotlight, trucking news continues to come out of the nation’s capital. This is highlighted by the release of the Federal Highway Administration’s updated version of its Jason’s Law truck parking survey that offered a picture of the status of what drivers say — based on a survey published in October — is the top concern among their ranks. Additionally, the Federal Motor Carrier Safety Administration has solidified a final rule clarifying agricultural commodity and livestock definitions in hours-of-service regulations, while the Commercial Vehicle Safety Alliance’s report on Brake Safety Week showed 12% of the 43,565 commercial motor vehicles inspected were placed out of service. FHWA RELEASES UPDATED JASON’S LAW PARKING SURVEY The Federal Highway Administration (FHWA) recently released an updated version of its Jason’s Law truck parking survey that offered a picture of the status of what drivers ranked — based on a survey published in October — as their top concern. The report revealed new statistics but no real solutions. According to the latest Jason’s Law survey, there are about 313,000 truck parking spaces across the nation, including 40,000 at public rest areas and 273,000 at private truck stops, an increase of 6% and 11% between 2014 and 2019, respectively. The survey report found new shortages among the entire Interstate 95 corridor, Pacific corridors, and states surrounding the Chicago region, as well as other major freight corridors. Not many new parking areas are being developed, the report said, because of challenges in planning and funding. Some states reported fewer public spaces compared with 2014. Among them were Arizona, Colorado, Kentucky, Mississippi, New Jersey, New Mexico, South Dakota, Utah, and Washington state. On the other hand, Delaware, Florida, and Tennessee all showed increases in the number of parking spaces available. Of the nearly 11,700 truck drivers participating in the survey — a 43% increase from the first Jason’s Law survey — 98% reported problems finding safe parking. Issues with truck parking were reported in every state and region. According to the survey, the highest rate of parking issues was found along major freight corridors in states along Interstate 95, the Chicago region, and Interstate 5 in California. Time frames when truck parking is most difficult to find include at night from 4 p.m. to 5 a.m., during the week Monday through Thursday, and in the colder months of October through February. Among the other findings based on driver responses, it was noted that drivers need a variety of parking types; design is important in truck parking; safety and security is valued; public rest area closures present challenges; receivers should offer parking on site; and truck spaces need to be reserved for trucks. State commercial motor vehicle (CMV) safety agencies show the states with the highest rate of unofficial or unauthorized truck parking are typically those with major freight-generating areas, major ports, and intermodal facilities. California, Florida, Texas, and Illinois are among the states with high numbers of unauthorized parking, the report said. According to the survey results, most of the unauthorized truck parking occurs on ramps (58%) and shoulders (34%), most often between 7 p.m. and 9 a.m. CMV safety agency respondents reported that unauthorized truck parking is related to limited spaces and inclement weather, especially snowstorms in the Rocky Mountain states. Illegal parking also occurs when trucks park to stage while waiting for deliveries. Based on that information, FHWA claims dynamic messaging signs and other technologies are needed to send out information about parking availability. Truck stop owners also participated in the 2019 Jason’s Law survey. According to the survey, more than 87% of identified truck parking is at private truck stops. The average number of truck parking spaces per truck stop is 143 spaces. Truck stops reported being over 100% capacity overnight, on weekdays, and from May to October. Nearly three-quarters do not monitor parking. Those that do monitor spaces do so manually. More than three-quarters of truck stop respondents do not offer reservations, and 75% do not charge for parking. Of those that do charge for parking, 3% waive the fee for drivers who buy amenities or food. Despite the need for parking and reports of operating over capacity, 79% of truck stop respondents said they do not plan to add more truck parking. Jason’s Law is named in memory of professional truck driver Jason Rivenburg who was murdered for $7 while parked overnight at an abandoned gas station. LIVESTOCK, AGRICULTURE DEFINITIONS PUBLISHED The Federal Motor Carrier Safety Administration (FMCSA) has published a final rule clarifying agricultural commodities and livestock definitions in hours-of-service (HOS) regulations. The agency said it had worked closely with the U.S. Department of Agriculture (USDA) on the rule in an effort to provide clarity for the nation’s farmers and commercial drivers. “The agriculture industry is vital to our nation, and this new rule will provide clarity and offer additional flexibility to farmers and commercial drivers, while maintaining the highest level of safety,” said the U.S. Secretary of Transportation Elaine L. Chao. Currently, during harvesting and planting seasons as determined by each state, drivers transporting agricultural commodities, including livestock, are exempt from HOS requirements from the source of the commodities to a location within a 150-air-mile radius from the source. The agricultural commodity rulemaking from FMCSA was prompted by indications that the current definition of these terms may not be understood or enforced consistently when determining whether the HOS exemption applies. “I applaud Secretary Chao for recognizing these obstacles and working with USDA to come up with common sense definitions for agricultural commodities and livestock that meet both the needs of agricultural haulers and public safety — critical concerns for all of trucking,” said Secretary of Agriculture Sonny Perdue. FMCSA published an advanced notice of proposed rulemaking in July 2019 to solicit feedback from the agriculture community. Based on a review of public comments, FMCSA published the new rule to clarify the meaning of these existing definitional terms to ensure that the HOS exemptions are utilized as Congress intended. “Our nation’s farmers and agriculture haulers will benefit from this clarification of the rules and will be able to deliver their products in a safer and more efficient manner,” said FMCSA’s Deputy Administrator Wiley Deck. “These improved rules will help farmers move commodities and get food to our grocery stores. We have heard the concerns from our farmers and ag haulers and we’ve worked closely with USDA and the industry to provide regulatory clarity and craft this new rule.” FMCSA said it is continuing to work closely with the USDA to eliminate confusion and further align the agencies’ interpretations of agricultural commodity definitions. DOES CALIFORNIA VOTE EXEMPT TRUCKERS FROM AB5? Proposition 22, which was designed to push back against AB5 in California for independent contractor drivers such as those at Uber or Lyft, passed comfortably in the November 3 general election. The role of AB5 in trucking in California remains in the balance as a federal appeals court considers a challenge to an earlier and ongoing preliminary injunction that cited a 90s-era federal law — the Federal Aviation Administration Authorization Act — as effectively blocking the provisions of AB5 in the trucking sector. Oral arguments in the appeal were heard in early September. The California proposition that was approved at the polls took ride-share drivers out of the state’s AB5 law. This should be a factor in whether the trucking industry remains exempt from it as well, according to a lawyer involved in key litigation. In a letter to the court, the attorney for the California Trucking Association (CTA), which brought the original lawsuit, said the victory of Proposition 22 takes a further whack at the idea that AB5 is a law of “general applicability.” Mayer Brown Attorney Andrew Tauber said AB5 was never a law of general applicability, which would cover a broad swath of economic activity. The CTA’s argument is that it was always targeted toward trucking, as well as ridesharing, and is even more so with the success of Proposition 22. Tauber noted that the original AB5 had several exemptions for various industries. That list of employee classifications grew with additional exemptions passed in September. “Now AB5 has been amended yet again and once again rendered even less generally applicable than before,” Tauber wrote in the letter to the court. “After passage of Proposition 22, AB5 is not a generally applicable law — not even in the transportation industry, much less more broadly.” According to published reports, in his arguments before the appeals court Tauber said the state of California — which is the CTA’s opponent in the case — had argued that AB5 can’t be preempted by F4A because it is a law of general applicability. In his arguments before the court, Tauber had described that as a “false characterization.” “AB5 is not a law of general applicability,” he argued. “It contains numerous exceptions for numerous industries and professions.” Further, he said, “it specifically targets the trucking industry.” This was Tauber’s second letter to the court about the matter. After the California legislature significantly widened the number of jobs that were performed by independent contractors that could be exempted from AB5, Tauber told the court that “truck drivers are notably absent from the long list of professions exempt from the ABC test under California law.” That omission, he said, helped make the argument that AB5 is a targeted piece of legislation and is not a law of general applicability. MEDICAL EXAM RULING FAVORS KNIGHT-SWIFT The Federal Motor Carrier Safety Administration (FMCSA) has granted Arizona-based Knight-Swift Transportation a temporary exemption from the requirement that motor carriers rely on motor vehicle records (MVRs) as proof of a driver’s medical qualifications as a condition of employment, according to a November 4 notice on the Federal Register. The exemption took effect December 4, 2020, and expires November 4, 2025. Under the exemption, Knight-Swift can require newly hired commercial driver’s license (CDL) holders to undergo a complete medical examination; the company would rely on the MVR for drivers’ later annual reviews. Knight-Swift first applied for the exemption March 8, 2016, citing the “prohibitive” cost of obtaining MVRs. According to a second application, submitted October 16, 2019, the 2016 application “languished for over three years” without being reviewed and processed. FMCSA on December 23, 2019, published a notice of the application, requesting public comments. According to the most recent Federal Register notice, FMCSA received three comments from individuals, all of which opposed granting the exemption. After reviewing the comments, along with the application, which included supporting data, FMCSA granted the exemption, noting that the agency believes that “allowing Knight-Swift to rely on its records of medical certificates for the first year of employment for newly hired drivers would not compromise safety or enforcement of the medical certification requirements for CDL holders.” In its application, Knight-Swift provided data on a sample pool of 5,722 newly hired drivers with valid two-year medical cards. After undergoing the hiring process, 19% of the sample pool drivers were downgraded to a one-year certification and 2.1% were disqualified. Knight-Swift did not indicate whether it knew if these drivers (those holding a CDL) provided the new certification to the state driver licensing agencies (SDLAs) issuing their licenses. To ensure an equivalent level of safety, Knight-Swift proposes to include in the driver qualification file the newly hired driver’s medical examination report in lieu of obtaining a second MVR. Under the temporary exemption, Knight-Swift is subject to the following terms and conditions: The carrier must maintain the initial MVR reviewed prior to hiring the driver showing the driver was medically certified by a health care professional on the agency’s National Registry of Certified Medical Examiners; The medical examiner’s report the company will rely upon for the first year of employment must be prepared by a health care professional on the agency’s National Registry of Certified Medical Examiners and be available for inspection by federal or state enforcement personnel during an investigation or compliance review; and Knight-Swift must obtain reliable proof that the new medical examiner’s certificate was provided by the driver to the SDLA and include such proof in the driver qualification file. In addition, the carrier must provide a quarterly report to FMCSA about newly hired drivers whose two-year medical certificate is downgraded to a shorter term or are medically disqualified after completing the company-mandated medical exam. This report must include: Driver’s full name; CDL number and state of issuance; Medical examiner’s name and FMCSA-issued National Registry identification number for the examination recorded on the MVR prior to the Knight-Swift medical exam; Examination date and expiration date for the medical exam noted on the MVR; Knight-Swift medical examiner’s name and FMCSA-issued National Registry identification number; and Knight-Swift examination date and expiration date for the medical exam. TANK HAULERS GET OK FOR PULSATING TAIL LIGHTS Motor carriers hauling tank trailers can now install a red or amber brake-activated pulsating light on the rear of the trailers, according to a decision by the Federal Motor Carrier Safety Administration (FMCSA). The pulsating light must be positioned in the upper center position or an upper dual outboard position and be used in addition to the steady-burning brake lights required by Federal Motor Carrier Safety Regulations (FMCSRs). According to a notice on the Federal Register, FMCSA has granted a limited five-year exemption in response to a September 2019 application by National Tank Truck Carriers Inc. (NTTC), noting, “The agency has determined that granting the exemption would likely achieve a level of safety equivalent to or greater than the level of safety provided by the regulation.” The limited exemption will expire October 8, 2025. NTTC is an association that includes more than 200 tank-truck companies responsible for transporting more than 80% of the volume in the tank-hauling industry. According to the Federal Register notice, most of NTTC’s members are regional, family-owned businesses that specialize in bulk transportation of hazardous products, such as petroleum products, chemicals, gases, and hazardous wastes. These companies also haul nonhazardous materials such as bulk foods and dry bulk products such as cement or plastic pellets. In its application for an exemption from 49 CFR 393.25(e), NTTC contended the pulsating brake-activated light, used in conjunction with the required steady-burning light, will improve visibility and help prevent accidents. “Rear-end crashes generally account for approximately 30% of all crashes. These types of crashes often result from a failure to respond (or delays in responding) to a stopped or decelerating lead vehicle. Data collected between 2010 and 2016 show that large trucks are consistently three times more likely than other vehicles to be struck in the rear in two-vehicle fatal crashes,” noted NTTC. Additionally, NTTC cited a similar exemption granted by FMCSA to Groendyke Transport, Inc., based on real-world demonstrations of the pulsing lights’ effectiveness in reducing the frequency of rear-end collisions. NTTC also cited studies conducted by the National Highway Traffic Safety Administration on the issues of rear-end crashes, distracted driving, and braking signals. In granting the current exemption, FMCSA noted that while flashing, rotating, or pulsating red lights are usually only allowed on emergency vehicles, these vehicles use high-intensity lights that are visible on all sides of the vehicle, while the pulsating brake lights requested by NTTC are visible only from the rear of the vehicle, and only when the vehicle’s brakes have been activated. In addition, FMCSA said, the requested lights are similar in intensity and flash rate to rear-hazard lights currently allowed by FMCSRs. The Truckload Carriers Association filed comments with FMCSA in support of both the NTTC and Groendyke exemptions. FMCSA SEEKS OPINIONS ON AUTOMATED DRIVING SYSTEMS The Federal Motor Carrier Safety Administration (FMCSA) is seeking public input on a survey questionnaire, Trucking Fleet Concept of Operations (CONOPS) for Managing Mixed Fleets, designed to collect opinions of automated driving systems (ADS) from industry professionals both before and after hands-on demonstrations with the technologies. The agency plans to use the survey to collect opinions from about 2,000 commercial vehicle drivers, fleet managers, industry engineers, vehicle-sales personnel, researchers, and state and federal government personnel at four roadshows. The roadshows will take place in conjunction with large conferences, such as the Technology Maintenance Council’s annual meeting, the North American Commercial Vehicle Show, the SAE COMVEC digital summit and the Automated Vehicle Symposium. Phase 1 of the study will be conducted before the roadshows to provide baseline opinions of ADS technologies; Phase 2 will consist of opinions gathered after participants take part in hands-on demonstrations of the technologies at the roadshows. “Although ADS-equipped trucks hold the promise of increased safety, productivity, and efficiency, it is not clear how these vehicles should be integrated into fleet operations with conventional trucks for mixed-fleet operations,” the notice reads. “Existing stakeholders in the road freight ecosystem (primarily for-hire and private truck fleets, but also shippers, brokers, truck manufacturers, and service and maintenance providers) do not have a clear picture of how they will implement ADS in their daily operations.” According to the notice, FMCSA hopes to use the program to help ADS technology gain traction in the nation’s trucking industry through hands-on demonstrations. Through these demonstrations, the agency hopes to familiarize industry insiders and the general public with ADS technology; collect participants’ opinions and perception of ADS; and use the data collected to make sure the resulting concept of operations covers major industry concerns. FMCSA is seeking comments on various aspects of the information-collection program, including the following: Whether the proposed collection is necessary for the performance of FMCSA’s functions; The accuracy of the estimated burden; Ways for FMCSA to enhance the quality, usefulness, and clarity of the collected information; and Ways that the burden could be minimized without reducing the quality of the collected information. TRUCKING FIRM OWNER CHARGED FOR FALSE STATEMENTS Tony Kirik, 39, of Rochester, New York, is facing criminal charges for allegedly making false statements to the Federal Motor Carrier Safety Administration (FMCSA) and the U.S. Department of Transportation and conspiring to do the same. The charges carry a maximum penalty of five years in prison and a $250,000 fine. Assistant U.S. Attorney John J. Field, who is handling the case, stated that according to the criminal complaint, Kirik owned and controlled a trucking business called Dallas Logistics. The company was put in the name of a nominee owner to conceal the fact that it was affiliated with another trucking company, Orange Transportation, that Kirik also controlled. Orange Transportation had received a negative rating from the Department of Transportation, and that negative rating would have been applied to Dallas Logistics had the true relationship between the two entities been disclosed to the FMCSA. To prevent the government from learning that the two entities were affiliated, Kirik directed his employees to create and present false documents and representations to the FMCSA. The defendant made an initial appearance in late November before U.S. Magistrate Judge Marian W. Payson and was released. The criminal complaint is the result of an investigation by special agents of the Department of Transportation, Office of Inspector General. The fact that a defendant has been charged with a crime is merely an accusation and the defendant is presumed innocent until and unless proven guilty. HIGHWAY DESIGN STANDARDS PROPOSED The Federal Highway Administration (FHWA) has published a Notice of Proposed Rulemaking (NPRM) to allow state departments of transportation more flexibility with design standards to repair the nation’s freeways and interstate highways. “The FHWA proposes to provide regulatory relief to states to address the immediate repair needs of our nation’s roadways without compromising safety and efficiency,” Federal Highway Administrator Nicole R. Nason said. The rule would allow states to develop design standards for resurfacing, restoration, and rehabilitation projects — commonly known as RRR — for freeways, including those on the interstate system, which has been a longstanding practice for non-freeway projects. Consistent with federal law, RRR standards would be required to preserve and extend the service life of the existing roads and enhance highway safety. This change would allow states to develop RRR freeway projects using a performance-based, flexible approach. The RRR standards developed by states would be subject to FHWA approval. FHWA would continue to work with state departments of transportation as they develop RRR design standards that integrate safety and cost-effectiveness. The rule also proposes to incorporate the latest versions of design standards and standard specifications that have been previously adopted.