Federal Motor Carrier Safety Administration (FMCSA) acting administrator Jim Mullen touched on a number of important trucking industry issues during a recent Virtual Safety and Security Meeting held with the Truckload Carriers Association (TCA).
One of the main issues discussed during the hour-long session with Mullen involved allegations that brokers are not being completely transparent when dealing with carriers. Specifically, they are accused of not providing the data which is required by FMCSA regulation 371.3.
Brokers have been attempting to thwart this rule by forcing carriers to waive their rights to receive this information. Included in the data should be the total amount “of any freight charges collected by the broker” and that each party “has the right to review the record of the transaction.”
Mullen said, “The brokers are trying to circumvent the process by requiring the waiver and if the motor carrier doesn’t waive it, they get blackballed. I understand the concept, but the regulation says what it says, and I think most people understand that the regulation is very specific.”
The Owner-Operator Independent Drivers Association (OOIDA) has asked that data required by 371.3 be transferred automatically within 48 hours after the completion of a load and that the provisions of the regulation cannot be contractually waived. In response, the FMCSA will soon be posting a Federal Register notice on the issue.
Mullen admitted, “I know there are some differences in opinions on this. I know some folks are dissatisfied at the pace by which the agency is working on this. I know some folks are dissatisfied that we aren’t already taking action against those brokers that do have this in their broker agreement, and I would say this is what the process is for. Hence why we are going to do the notice of comment period.”
Another issue of importance to drivers concerns the new Drug and Alcohol Clearinghouse. Mullen said his agency is considering including positive drug tests resulting from hair follicle testing as part of Clearinghouse data.
Mullen said, “There’s an issue with those motor carriers that use hair testing in addition to urine testing and whether those positives ought to be under the Drug and Alcohol Clearinghouse, and we’re looking very closely whether that’s permitted and if not, ought it be permitted.”
Mullen indicated the Clearinghouse has uncovered nearly 24,000 positive tests since beginning in January. He said, “Its good news in that 24,000 individuals that have tested positive are not able to circumvent the system by not telling a future employer they tested positive at a former employer.”
During the meeting, TCA Vice President of Government affairs Dave Heller responded to a new proposed law working its way through the U.S. House of Representatives—INVEST in America Act—which would increase the minimum insurance coverage for a driver to $2 million. Heller indicated that while TCA supports such minimums, he felt the $2 million number was “arbitrary.” Mullen said he could not comment on current Congressional actions.
But Mullen did say that the FMCSA is temporarily ignoring the provision in the INVEST Act which would delay the agency’s new hours-of-service changes set to go into effect at the end of September.
“We are proceeding as if there will be no delay because that’s our task at hand. As far as we are concerned, no disrespect to the INVEST Act, or what the Hill is doing, but our agency has to proceed as if there will be no delay and we are going effective in September,” said Mullen.
Mullen hopes the rule changes will provide the type of flexibility which will please drivers and shippers without sacrificing safety. Of note is the split sleeper provision. Mullen said the agency was still open to allowing a 6/4 or 5/5 provision. The current rule adds a 7/3 to the existing 8/2 split.
He said, “An option is to do a pilot program and allow 6/4 or 5/5, to study it that way. There are some sleep studies that talk about restorative sleep and six-plus hours being the bogey. But the flip side of that is truck drivers lead a very different life than your 9-to-5er. No, the door is not shut, but I don’t want to get too ahead of ourselves on anything. But a pilot program would probably be the best way to study the effects of that.”
Finally, Mullen weighed in on whether the current waivers that went into effect due to the COVID-19 pandemic could become permanent. The crisis has prompted a third-party testing waiver that lets driving schools administer skills testing and a waiver which allows commercial learner’s permit holders to carry loads once they pass a skills test even though they have not yet received their credentials.
Mullen said, “The appetite was not as strong on some of those provisions as I thought it might have been. You had some state DMVs that were closed for 60 days-plus and unable to do credentials; I would have thought the appetite for things such as out-of-state knowledge tests might have been stronger, and some of the other waivers that we actually implemented.”