2003 proved to be busy for the U.S. Department of Transportation (DOT), and activity surrounding transportation issues promises to be just as intense for 2004 and 2005 on federal and state levels. Drivers' hours of service (HOS), commercial driver's license (CDL) disqualifications and hazardous material (hazmat) endorsements, hazmat security plans and masking of violations by states are some areas affected by recent or imminent DOT rule changes. (Masking is the practice of concealing convictions issued to CDL drivers so the convictions do not appear on records inspected or requested by other states' law-enforcement agencies.) These changes may dramatically affect how the roofing industry conducts business.
HOS rule changes had been considered by DOT for 10 years before the publication of the proposed rules in May 2000.
Driver fatigue was identified early as a major safety issue and the leading impetus for HOS rule changes. Similarly, a 1999 DOT report to Congress documented several vulnerabilities in the current CDL program that impeded highway safety and subsequently were addressed in the Motor Carrier Safety Improvement Act of 1999.
New rules related to hazmat security plan requirements and Transportation Security Administration (TSA) review of CDL hazmat endorsements originated after the Sept. 11 attacks.
Across the entire U.S. work force, highway traffic accidents continue to be the No. 1 cause of workplace deaths. They account for about one-quarter of all work-related fatalities. In the roofing industry, the highway fatality rate is about 11 percent—less than half the national rate but nonetheless significant.
HOS amendments are expected to result in saving 24 lives to 75 lives each year by addressing a critical causal factor in traffic fatalities—driver fatigue. The amendments that went into effect Jan. 4 reflect science-based revisions to HOS rules, resulting primarily from a Federal Highway Administration research program that began in 1989 involving the causes of driver fatigue and dynamics of sleep.
A commercial motor vehicle (CMV), for purposes of HOS rules, includes any vehicle used in interstate commerce with a gross vehicle weight rating or gross combination weight rating of 10,001 pounds (4536 kg) or more. The rules also apply to any driver of a vehicle used to transport hazmat in an amount that requires placarding (generally more than 1,000 pounds [454 kg] of hazmat in nonbulk packaging). It is possible a pickup truck loaded with a sufficient quantity of propane or flammable single-ply adhesive or small truck towing a kettle easily could fall within the CMV definition for purposes of HOS rules.
HOS rules in the Federal Motor Carrier Safety Regulations limit the amount of time a CMV driver may drive in a 24-hour period and prohibit driving after a driver has been on duty for 14 hours. On-duty time includes all time from when a driver begins work until the time he is relieved from work and all responsibility for performing work.
Under the new rules, a CMV driver may drive for 11 cumulative hours within the 14-hour on-duty time frame following 10 hours off duty. Prior law allowed 10 hours of driving after eight hours off duty with no driving after 15 hours from first coming on duty. However, there are extenuating situations, such as the use of sleeper berths, that require a more in-depth review of the regulations.
There also are some exceptions retained from the prior version of HOS rules that provide some relief from the rules in certain instances. The adverse driving condition exception allows a driver to continue to drive two additional hours to complete a run or get a vehicle and its load to a secure location. Under this exception, a driver cannot drive more than 13 cumulative hours subject to the 14- and 10-hour restrictions already mentioned. Adverse driving conditions are weather-related conditions such as snow, sleet or fog that were not known at the time a driver's run started.
An on-duty period extension of two hours (from 14 hours to 16 hours) is available once every seven days if a driver, on his previous five on-duty tours, has returned to his normal work reporting location and then has been released (gone off duty). This exception for short-haul drivers (local drivers who return to their home city each day) does not extend the 11-hour maximum driving time within the extended 16-hour on-duty period.
In addition, an emergency provision allows a driver to complete his run though it extends beyond HOS limits if the run would have been completed within the limits had an emergency not occurred.
Some construction industry organizations have sought to carve out a construction driver exception to the new rules that would have allowed for 12 hours of driving with a 16-hour on-duty period. They also argued to exclude loading and unloading from the definition of on-duty time, which would have expanded the amount of time a driver could drive during a day. Neither proposal was included in the final rules largely because of comments from safety groups strongly opposed to an increase to 12 hours of driving time and expanded on-duty time.
DOT's cost savings estimate to the economy from HOS changes is $628 million per year. Some industry groups refute this claim, predicting an average loss of productivity of 17 percent with costs more than five times the benefits and avoided fatalities of 19 per year versus the government figure of 75 per year. The effects of the new HOS rules remain to be seen. Increased loading and unloading times, delays in the receiving process and long-distance transit time increases are just a few issues cited by some industry groups to monitor as the new HOS rules are enforced.
DOT sets rules for interstate driving, and states can adopt HOS rules applicable to driving within their borders. Many states completely adopt the federal regulations while others enact hybrid provisions. For example, many states allow exceptions from HOS rules for the transportation of construction materials and equipment. Roofing contractors must be aware of the HOS rules that may be applicable to driving within their states, as well as the rules affecting interstate driving if their operations take them across state lines.
The federal government establishes tolerance guidelines that set the deviations permitted from the federal rules for a state to remain eligible for federal grants. Compliance is critical because states receive a portion of federal grant money under the Motor Carrier Safety Assistance Program (MCSAP). In fiscal year 2003, nearly $163 million was distributed to states under MCSAP. States are limited in the extent they may alter intrastate HOS rules and not jeopardize MCSAP funding.
For example, a 12-hour intrastate driving limit is permissible provided on-duty time does not exceed 16 hours. However, states may not exempt any CMV that transports placarded amounts of hazmat. States have until Jan. 4, 2007, to meet required minimum standards related to HOS or face forfeiture of a portion of MCSAP grant funding.
Another area that has seen some significant changes in DOT regulation is the provisions relating to CDLs. Disqualifications, record keeping and masking of violations are the most notable measures amended or added by the new rules. As with HOS rules, states that cannot meet compliance requirements related to the new CDL provisions face the possible loss of a percentage of federal highway funds in addition to MCSAP grant money. A three-year tolerance period applies to most of these revisions—Sept. 30, 2005, looms as the critical date for states to ensure compliance.
As of Sept. 30, 2005, states will be required to report convictions of traffic violations by CDL drivers licensed in another state to the licensing state within 30 days of the conviction. This time period will shrink further after Sept. 30, 2008, which is when states will have to report convictions within 10 days. These reporting requirements have raised some serious concerns among states troubled by their abilities to report convictions in such an expedited manner. Even more concerned are state law-enforcement agencies that stand to lose valuable MCSAP grant money usually earmarked for training because reporting mandates are not followed by other agencies within the state.
The new rules prohibit states from masking, or using diversion programs similar to "court supervision" or "traffic school," to block a conviction from appearing on a CDL driver's record. Many diversion programs act to clear traffic court calendars of a large volume of cases while providing revenue in the form of fines and offering the traffic offender the benefit of no conviction appearing on his driving record.
Roofing contractors who employ CDL drivers with hazmat endorsements can expect a more involved administrative process as drivers' licenses come up for renewal. Drivers should be aware that states likely will require more detailed background information, including a criminal history with fingerprints.
TSA was given responsibility to conduct security screenings of CDL drivers with hazmat endorsements scheduled to start Nov. 3, 2003. The origin of this mandate was the USA PATRIOT Act of October 2001. Under one of the act's provisions, a state cannot issue a hazmat endorsement for a CDL unless the state collected biographical and criminal history information about the driver. This information, along with fingerprints of a CDL driver renewing, transferring or applying for a hazmat endorsement for a CDL, now must be forwarded by states to TSA starting April 1. The background checks will verify citizenship or lawful resident alien status, ensure no driver has any convictions for certain felonies, check various databases for fugitive status and assess applicants' mental competencies.
TSA has delayed the compliance date after receiving comments from nearly 25 states regarding development of an administrative infrastructure needed to carry out the security checks. States have asked for federal funds to hire and train personnel and purchase fingerprinting equipment to institute the security screening process.
Contractors may notice varying enforcement of the new procedures from state to state because TSA is not requiring complete compliance until Dec. 1. If a state cannot comply by April 1, it must submit a plan to TSA by that date outlining the system it will put in place to collect background security information and fingerprints starting Dec. 1. There also will be a fee increase for CDLs with hazmat endorsements to cover the costs to states and TSA to conduct security and fingerprint checks.
The final rule that imposed notification requirements on states related to violations by CDL drivers and sought to curtail masking of convictions also contained provisions related to disqualifications of CDL drivers for traffic offenses. Under the new rule, three new offenses have been added to the definition of "serious traffic violations" that require disqualification of a CDL driver by a state. The effective date of this rule was Sept. 30, 2002, and state compliance is required by Sept. 30, 2005, to avoid loss of federal funds.
The three new serious violations are: driving a CMV without obtaining a CDL; driving a CMV without a CDL in the driver's possession (commonly cited as "failure to display"); and driving a CMV without the proper class CDL or endorsements for the specific vehicle group or cargo. These violations join a list of five other serious violations, and the second conviction of these eight violations mandates a 60-day disqualification from operating a CMV. The five other serious violations are speeding (15 mph [24 km/h] or more over the limit); reckless driving; improper lane changes; following too closely; and any traffic violation arising in connection with a fatality.
Subsequent convictions are used in determining the disqualification if they arise out of separate incidents within a three-year period from the initial conviction. The significance of the "serious offense" definition change is that a conviction that takes place while operating a non-CMV now can be used in determining the CDL disqualification if the conviction results in the suspension of a driver's CDL or non-CMV driving privileges.
Disqualifications for major offenses mandate a one-year disqualification of a CDL upon a first conviction of any of the following:
Violation of the ninth provision mandates a lifetime disqualification of a driver's CDL. Second convictions of the first eight provisions result in lifetime disqualifications of a driver's CDL.
Immediate CDL disqualification can be made by the Federal Motor Carrier Safety Administration (FMCSA) of any driver it determines to be an imminent hazard. An imminent hazard is defined as the existence of a condition that presents a substantial likelihood of death, serious injury or illness or endangerment to health, property or the environment. A disqualification period cannot exceed 30 days unless the driver is given notice of the disqualification period and a hearing, and in no case may the period exceed one year. Drivers disqualified for 30 days or less may be allowed a hearing, and all have the option of filing an appeal with FMCSA.
Regulations addressing the operation of CMVs are becoming more complex as government agencies attempt to address traffic safety concerns and domestic security issues. NRCA encourages roofing contractors to review the full regulations to properly assess how the changes will affect their operations. The HOS rules can be accessed at www.fmcsa.dot.gov/Home_Files/revised_hos.asp.
Also, roofing contractors must impress upon their CDL drivers the critical fact that traffic violations committed while driving their personal vehicles now can result in the revocation of their CDLs. Added record-keeping burdens related to new HOS rules and CDL licenses pale in comparison to the effects bad driving decisions can have on a worker's livelihood and future, as well as the security of one's family, for years to come.
Harry Dietz is NRCA's director of risk management.
New minimum performance standards for securing cargo went into effect Jan. 1 for commercial motor vehicles operating in interstate commerce. These rules expand the existing rules for protection against shifting and falling cargo and provide commodity-specific rules for cargo, such as timber logs, concrete pipe, steel coils and heavy equipment. Specific acceleration forces that cargo-securement devices must withstand in forward, reverse and lateral directions are listed in the standards. Additionally, conformity with industry manufacturing standards for tie-down assemblies used to secure cargo now is mandated with regard to steel strapping, chain, synthetic webbing, wire rope and cordage.
The full text of the cargo securement regulations can be found at www.fmcsa.dot.gov/safetyprogs/cargo/cargosecurement.pdf addressing the operation of cmvs are becoming more complex.