U.S. regulator wonders if some Covid-19 waivers could become permanent

John G Smith

TORONTO, Ont. – U.S. regulators have introduced a series of waivers in response to Covid-19, to ensure that freight continues to move south of the border. Now they’re looking at whether selected waivers could become a permanent fixture.

Federal Motor Carrier Safety Administration (FMCSA) acting administrator Jim Mullen admitted the state appetite for some discussed licensing changes is not as strong as expected. But the administration continues to look at things like the off-site reviews for safety ratings, he said on Tuesday during the Truckload Carriers Association’s virtual safety and security meeting.

FMCSA’s Jim Mullen (lower left) joined the Truckload Carriers Association’s Dave Heller (lower right) during an online presentation on a wide range of regulatory issues. (Screen capture: TCA)

Many recent U.S. regulatory waivers have focused on licensing issues – such as the timing required to offer proof of medical certification, letting states administer skills tests to out-of-state CDL applicants, and allowing CDL examiners to administer knowledge tests. Those with a learner’s permit can currently drive without a CDL holder in the front seat of the vehicle, as long as the CDL holder is still elsewhere in the cab.

Other waivers have included things like certain drug and alcohol testing requirements for furloughed truck drivers, and hours of service rules around specific pandemic-related relief supplies.

The changes have been part of the agency’s response to U.S. President Donald Trump’s call for federal agencies to be responsive during the pandemic.

“Time sensitivity was paramount,” Mullen said of the order.

“I think we have seen the best of government during this time.”

Hours of Service changes

A key example of that came in the quicker-than-expected rollout of hours of service changes, set to take hold on Sept. 29.

Dave Heller, the Truckload Carrier Association’s vice-president of government affairs, admitted that the industry was surprised to see the change so quickly.

“We’re in the midst of this pandemic, and all of a sudden we have hours of service upon us,” he said, noting that about two years were trimmed from the traditional regulatory review process. “This might have been record speed to get a rule out.”

Central to the updated rules is the way a 30-minute break can include anything other than a driving task rather than a full break from work. It simply has to be logged as on-duty-not-driving.

“We’re in the midst of this pandemic, and all of a sudden we have hours of service upon us … This might have been record speed.”

– Dave Heller, TCA

Other changes have included a modified sleeper berth exemption to allow drivers to split 10-hour off-duty time into 8/2 or 7/3 splits, with neither period counting against the driver’s 14-hour driving window. Adverse driving conditions exceptions are to be extended by two hours. And the short-haul exemption will increase from 12 to 14 hours, with its mileage limits extending from 100 air miles to 150 air miles.

“Just getting a break from that task alone provided benefits,” Mullen said. “That time off task is beneficial on the safety side.”

“The vast majority of the industry has responded very favorably to the 30-minute change,” he added.

Heller agreed the approach to the 30-minute break could prove to be an effective way to deal with detention time.

There is other work to do, of course. A document of answers to frequently asked questions is being prepared, and there’s plans for more outreach.

Taking questions from viewers of the TCA session, for example, Mullen explained how short moves that last a few minutes in a truck yard could be marked as personal conveyance depending on the reasoning. Moving the truck back into the shade would count as that. Repositioning a trailer for unloading wouldn’t fall into that category.

“There’s more to come on that,” he said. “There will be some more guidance on the personal conveyance.”

And the agency continues to move forward with the Sept. 29 rollout despite language in the Invest in America Act, an infrastructure bill, which has proposed a delay.

“We’re obviously proceeding as if there will be no delay because that’s our task in hand,” Mullen said.

Drug and Alcohol Clearinghouse

The recent regulatory changes have hardly ended there. A new Drug and Alcohol Clearinghouse, established as a repository for drug testing files on truck drivers, has recorded 24,000 individual positive tests since being launched.

“They’re not able to circumvent the system,” Mullen said of the records that are now available to all employers. “That obviously was the intent.”

Admittedly, the rollout wasn’t perfect. “We had some IT issues the first 48 hours or so,” he said, noting that most of those issues were addressed within a week or so. “A lot of that stuff, guys, came down to people couldn’t remember their passwords.” Still, he added, “It shouldn’t be that hard.”

“It didn’t go as we wanted, but I think we now have the folks and resources to make sure those things are corrected.”

“We do like where the clearinghouse is right now,” Heller said, referring to trucking as a zero-tolerance industry. “We have the ability to see what kind of drivers we’re bringing on.”

Now, the agency is considering the use of limited queries for pre-employment of drivers. And there’s already been an exemption introduced for the motion picture industry.

Broker Transparency

Still, Mullen said there are limits to what can be done to address friction around broker relationships.

The Owner-Operator Independent Drivers Association (OOIDA) has been demanding an electronic copy of a transaction record within 48 hours of a service being completed, and prohibiting brokers from including provisions that require carriers to waive rights to access transaction records.

For its part, FMCSA is investigating about 10 specific allegations in which the rules were not followed, Mullen said.

“But the regulation says what it says.”

John G Smith

John G. Smith is the editorial director of Newcom Media's trucking and supply chain publications -- including Today's Trucking, trucknews.com, TruckTech, Transport Routier, Canadian Shipper, Inside Logistics, Solid Waste & Recycling, and Road Today. The award-winning journalist has covered the trucking industry since 1995.

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