DOT funding plan light on trucking policy, heavy on FMCSA power

May 1, 2014 Avery Vise

From a controversial proposal to mandate detention pay for truck drivers, the Dept. of Transportation’s (DOT) surface-transportation funding proposal, the Grow America Act, contains little in the way of new policy initiatives or programs specific to trucking that will require major rulemakings. For the trucking industry’s leading policy analyst, that’s a good thing.

The Federal Motor Carrier Safety Administration (FMCSA) is still working through all of the policy changes and rulemakings required by the current transportation reauthorization known as MAP-21, Dave Osiecki, executive vice president of the American Trucking Assns. (ATA), told FleetOwner. So the fact that DOT isn’t pushing a whole new set of major changes is welcome.

“The industry needs to catch its collective breath,” Osiecki said. “This bill would slow down the regulatory pipeline.”

Instead of policy, many of the more than 30 motor carrier provisions in the DOT proposal would increase FMCSA’s power and flexibility in dealing with carriers and drivers in enforcement matters, Osiecki said. “They call it the Grow America Act. I would call it the Grow DOT Authority in Trucking Act.”

DOT’s reauthorization proposal represents a wish list of additional authorities and powers for FMCSA, Osiecki argued. “It makes it clear that FMCSA is an enforcement agency not a safety agency.”
Rather than focus on the best ways to achieve improved highway safety FMCSA takes a much more limited approach, he said. “What we find with FMCSA is that they are falling more and more into a ‘We’re going enforce the regulations and punish violators’ mindset.”

A number of federal agencies– including the National Highway Traffic Safety Administration (NHTSA)- – take a broader view of their mission and treat their regulated industries as partners rather than targets, remarked Osiecki.

Grow America Act provisions that would increase FMCSA’s authority include those that would:
• Prohibit a vehicle, driver or employer barred from operating in interstate commerce due to an imminent hazard order or failure to pay a civil penalty from operating or being operated “in any manner affecting interstate commerce.” (Sec. 5102)
• Require that requests for administrative review of imminent hazard out-of-service orders be filed by the carrier or driver within 15 days after the order. (Sec. 5106)
• Clarify DOT’s jurisdiction over international transportation while traveling through the United States. (Sec. 5107)
• Prohibit states from issuing commercial driver’s licenses to individuals who would immediately be disqualified from operating a commercial motor vehicle upon the issuance of the license. (Sec. 5201)
• Disqualify an individual from operating a commercial vehicle for 1 year for the first violation or life for committing two or more violations if he is discovered operating a commercial motor vehicle after his commercial driver’s license has been revoked, suspended or canceled based on offenses committed while operating a non-commercial motor vehicle. (Sec. 5202)
• Require states to disqualify drivers that have been federally disqualified for the duration of the federal disqualification and to record the violation in the Commercial Driver’s License Information System. (Sec. 5203)
• Disqualify an individual from operating a commercial motor vehicle when that individual has not paid a civil penalty. (Sec. 5204)
• Provide that an individual who receives a verified positive USDOT drug test is disqualified from operating a commercial motor vehicle and remains disqualified until he completes the return-to-duty process (Sec. 5205)
• Give FMCSA more discretion to impose safety standards that arguably might have a limited negative impact on driver health. (Sec. 5301)
• Allow FMCSA to revoke a carrier’s USDOT number for failing to comply with a subpoena. (Sec. 5304)
• Provide DOT the authority to ensure that federal contractors that exercise operational control over motor carrier operations comply with FMCSA safety regulations. (Sec. 5506)
• Impose criminal penalties for violating an imminent hazard out of service order. (Sec. 5509)
• Clarify that in assessing the maximum penalty for operating in violation of an out-of-service order each day of operation constitutes a separate offense. (Sec. 5510)
• Expand FMCSA’s right to access the motor vehicle driving record of any individual in connection with a safety investigation (Sec. 5514)
• Grant FMCSA the authority to require the recall of electronic logging devices that fail to meet certification requirements. (Sec. 5504)
• Clarify DOT’s authority to enforce commercial regulations under part B of subtitle IV, title 49, through an administrative adjudication process in addition to civil action in federal courts. (Sec. 5513)
• Place requests by DOT for the Attorney General to bring an enforcement case for violations of subchapter III of chapter 311 and chapters 313 and 315 on equal footing with requests to enforce violations of chapter 5. (Sec. 5508)
• Amend the definition of commercial motor vehicle to include vehicles operated by passenger carriers that are subject to FMCSA’s safety jurisdiction but are not covered by the current vehicle definition. (Sec. 5101)
• Give DOT jurisdiction over brokers for motor carriers of passengers. (Sec. 5302)
• Close a loophole in the Secretary’s jurisdiction over certain small bus operations. (Sec. 5103)

Not all the motor carrier provisions in the Grow America Act are aimed at expanding FMCSA’s safety and enforcement powers and authority. However, a number of them appear aimed at freeing up the agency’s resources to focus on other more important issues. Some even provide some relief to motor carriers.

The Grow America Act would also:
• Allow FMCSA to suspend rather than revoke the authority of a carrier or broker whose financial security has been cancelled (Sec. 5305)
• Give FMCSA discretion in deciding whether new entrant safety audits are necessary (Sec. 5105)
• Revise and streamline FMCSA’s grant programs for state partners (Sec. 5401)
• Repeal the self-insurance option for motor carriers (Sec. 5503)
• Establish the Unified Carrier Registration Plan as a not-for-profit corporation outside the U.S. government (Sec. 5502)
• Repeal the motor carrier financial reporting requirement (Sec. 5505)
• Codify FMCSA’s obligation to maintain the Motor Carrier Safety Advisory Committee (Sec. 5501)
• Continue the requirement that FMCSA conduct safety reviews of motor carriers that pose the highest safety risk while eliminating obsolete terminology (Sec. 5104)
• Make various technical corrections to MAP-21 (Sec. 5511)
• Remove the requirement that audits of Mexico-domiciled carriers be conducted onsite in Mexico (Sec. 5512)
• Eliminate two FMCSA reporting requirements that have become obsolete (Sec. 5515)