NASTC's Requested Comments to Washington Concerning Regulatory Reconstruction
On behalf of the National Association of Small Trucking Companies (NASTC) and its 7,000+ member companies and their 71,000 drivers, we are delighted to participate in your request for input concerning current regulations that impact unfairly their respective viability as companies and professional drivers. Over the past six or seven years there has been an unprecedented avalanche of regulations coming primarily from The Federal Motor Carriers Safety Administration (FMCSA) that we feel strongly have questionable positive impact on truck safety, have been put into place with little or no regard for the Administrative Procedures Act, have little or no safety cost/benefit substantiation, and almost uniformly have been denounced as actions that damage small businesses and thwart competition. When called to account when these “guidances”, policies, or regulations prove to be faulty, prejudicial, nonefficient, costly, and poorly conceived, the agency relies on the excuses of “unintended consequences” or lack of funding and resources as rationality for failure. They never admit mistakes and they rarely make significant changes. As one high ranking FMCSA official’s tee shirt read at an agency function, “You may not agree with me, but don’t expect me to change my mind.” This level of bureaucratic, in your face arrogance to the industry it’s charged to support, is beyond over the top. Our challenge in making our response to your request is to somehow stay within the guidelines you specifically outlined and limit ourselves to our top five prioritized items.
My number one item is the one that I feel will make the most meaningful and immediate impact on safety, compliance, and productivity and a change the entire industry has voiced almost unanimously in every hours of service (HOS) listening session and comment session I’ve attended.
1. Fix the hours of service (HOS) rule by not only putting the 34-Hour restart back in its 2013 form, but by also eliminating the meaningless thirty minute forced break in each eight hours on duty, which has the effect of exacerbating the already obnoxious 14-hour rule into a more compact 13 hour rule. Almost every driver and every industry safety person I’ve talked to since 2004 has agreed that the 14-hour rule creates a meaningless dead line mentality that forces a driver to drive when fatigued and doesn’t allow him to stop and take a break when needed. It has been described as the most dangerous feature of the HOS. NASTC maintains , as it has since 1999 that a simple and easily understood SPLIT SLEEPER BERTH allowance that moves the fourteen hour window would fix this problem immediately, eliminate log infractions and violations, improve the safety of the driver and the driving public, reduce crashes, and save lives.
The Agency has stone-walled the entire industry on this request for 15 years claiming that drivers’ Circadian Rhythms will be upset – another example of the agency trying to use a shift-work concept in over-the-road trucking where it will never properly apply. They hide in the shadow of driver fatigue and sleep medicine despite the fact that, according to Col. Belenky (Doctor) who is a 30 year+ fatigue expert said, “Unequivocally, I have never found any evidence in all my studies that a two hour nap wasn’t as restorative as a full night’s sleep.”
In addition, the agency has been thwarted for years in its attempt to have any knowledge of how a driver spends his off-duty 10 hour rest period. In this instance, i.e., logging split sleeper berth periods, the driver will have to spend and log those totaled 10 hours as sleeper berth time.
Remedy:
Simplify the 14-Hour Driving Window Rule by making 14 hours mean 14 hours, at the discretion of each truck driver. This requires removing the word “consecutive” from 395.3(a)(2) in every instance. As long as 10 hours of rest are logged, that would suffice. Further, amend the sleeper berth rule to allow each driver to log split sleeper berth time, counted toward hours of rest, by similarly removing all instances of “consecutive” in 395.1(g), as it pertains to property-carrying commercial vehicles. That is, add a provision to provide that a driver may split the 10 hours in the sleeper berth as deemed appropriate by the driver, such as 8/2, 3/7, 4/6, and clarify that the split sleeper berth hours logged must total 10 hours in a 24-hour period, and the splits may be different from day to day. The 30-Minute Mandatory Rest Break (Federal Motor Carrier Safety Regulations, 49 CFR Section 395.3 (a)(3)(ii) Promulgated by the Federal Motor Carrier Safety Administration, citing 76 FR 81133 as authority, under the Hours of Service rule has proven unworkable and should be repealed. The mandate generally costs truck drivers far more than the half hour. Additional time is spent meeting the daily mandate finding available parking, preparing and securing the vehicle before beginning the 30 minutes and more time preparing to take the vehicle back on the road following the 30 minutes. Also, what effectively costs drivers an hour a day can prove disruptive to the total available hours for the day. The added layer of complexity is disruptive and not easily accommodated in real-world situations over-the-road truckers encounter. The costs of lost time and inefficiency of operations harm both drivers and carriers, as well as add to the costs of the shipping public.
Repeal Section 395.3(a)(3)(ii)
2. Background: The FMCSA created a certified medical examiner’s register to be the exclusive administrative arm to provide the essential DOT physicals required for CDL holders to drive in interstate commerce. This regulation went into effect in May, 2014. The agency, specifically trained CME’s to use STOP BANG protocol in an attempt to address the sleep apnea issue and required training and certification to quality as a CME. The primary rationale for this over-reach was based on the belief that MD’s in rural areas were taking kickbacks and/or bribes to pass questionable or marginal cases or in other words, a “pay to play” for a medical card. The obvious absurdity of this rationale notwithstanding, this registry laid the groundwork for the sleep community to hijack the medical driver qualification process, eliminated thousands of rural MD’s who traditionally had been performing this necessary and required function, and established a network of nurse practitioners, chiropractors, and urban doctors connected with sleep labs who dominate the registry. The “unintended consequences” were:
a. Demographically disastrous for small carriers (most CME’s are not found in rural America where our drivers are).
b. Lowering of medical credentials for CME’s (fewer M.D.’s and more practitioners and chiropractic’s).
c. No truck parking
d. Discriminatory practices based on STOP BANG protocol that practically insured that all males over 50 years old would be required to get a sleep study.
Congress has instructed FMCSA that they can’t make apnea policy through guidance – they must go through a formal rule-making. However, they had already done so de facto with their CME training. This has created chaos and confusion by drivers and CME’s as to what should happen with the required DOT physical examination. The pertinent provision in the regs is found in section 391.41, physical qualifications for drivers, which states: “(the driver) has no established medical history or clinical diagnosis for a respiratory dysfunction likely to interfere with his/her ability to control and drive a commercial motor vehicle safely.”
Our interpretation of the above is that a medical examiner may query an applicant as to prior medical history or clinical diagnosis regarding apnea, but may not subjectively go forward with forced diagnosis as a qualifier. In other words, the driver’s age, gender, neck size, level of obesity, or body mass index cannot be used as leverage for a sleep study or further diagnosis.
Also, we respectfully request that the following verbiage be restricted from the rule: “(The medical examiner) using clinical expertise, (may) disqualify a driver when evidence shows a driver has a medical condition that in his opinion will likely interfere with the safe operation of a CMV.” This instruction means everything and nothing, but indicates that the examiner can disqualify the driver using any ambiguous criteria whatever.
Solution: Remove the certified medical examiners’ ability to order drivers to undergo a sleep study; require examiners to perform a Mallampati test and only if the score is the highest indicator of obstructive sleep apnea may the examiner refer the driver to seek further medical counsel with his own medical doctor to determine if a simple oximetry screening test for apnea is appropriate. The examiner must issue no less than a 6-month medical card unless other medical concerns dictate otherwise. The examiner must carefully document the Malampati exam and results. If the score is at the next-highest level, the examiner must explore any and all alternative potential causes of excessive daytime sleepiness with the driver, refer the driver to consult his own physician, and issue a 6-month medical card. At no time shall the CME use any of the STOP BANG protocol unless symptoms of narcolepsy are presented.
If these changes are made, there would be no need for FMCSA to attempt to practice medicine with a rule-making on apnea.
3. Compliance Safety Accountability
a. Restrict CSA to an internal FMCSA enforcement tool exclusively for prioritizing its enforcement efforts
b. Prohibit any CSA data from being publically available
c. Recognize that SMS methodology is not supportable to measure carrier performance in its current form particularly through its Bell curve basis that implies that 20% to 35% of all carriers are deficient or marginal performers all of the time.
d. Recognize that the entire method criminalizes all small carriers inappropriately.
e. Rate carriers on accidents only if it is reportable accident and the driver is cited for a moving violation and found to be at fault.
f. Since 80% of all carriers are unrated in the system, insure that “un-rated” is considered a satisfactory rating.
Remedy:
Consider scraping CSA as un-fixable and go back to the Safe Stat system.
4. Request
a. Require FMCSA to strictly adhere to existing safety fitness determination rules and 49 C.F.R. and to cease using SMS methodology “focused audits,” enhanced investigative techniques, delays in acting on petitions for upgrade, judicially unapproved “consent decrees.”
b. Reason for request:
i. Agency has steadfastly refused to affirm its role as a sole arbiter of highway safety.
ii. The agency has attempted to implement SMS methodology and abandon longstanding rules governing the issuance of safety fitness determinations prejudicing small carriers.
iii. Fair, objective and established procedures for issuing safety ratings have been abandoned.
iv. Focused audits do not produce satisfactory safety ratings. Small carriers are improperly profiled for “enhanced investigative techniques.” Enforcement officials are trained to use focused audits as a basis for issuing crippling fines and/or assigning unsatisfactory safety ratings.
v. Small carriers are deprived of due process and without due consideration of corrective action or assigned adverse safety ratings which deny them access to freight.
vi. The SFD issued by the agency in January of 2016 in contravention of the FAST Act proves that no further funds should be spent on implementing SMS methodology.
vii. Any safety fitness procedures which violate strict adherence with the compliance review standards set forth in 49 CFR 385 should be prohibited.
The Agency should be directed to complete long delayed congressional mandates including publishing evidence of insurance and agents for all carriers and to cease enforcing unapproved deviation from existing regulations in the exercise of its safety fitness determination responsibilities. Finally, Congress should affirm the FAST Act provision which says,
“Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 CFR Part 385, or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation’s roadways."
A carrier which the FMCSA has found as safe to operate on the nation’s roadways is authorized for use by the shipping public.
5. There is a lack of due process in many of the rule makings that have come forward. The Data Q process serves as a great example of the agency attempting to satisfy an appeal process to fix errors and/or correct mistakes. It is a miserable mess, poorly designed, non-functional, and needs to be totally scraped.
(Anyone want to elaborate?)
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