2021 ATA Safety Regulatory Update

The transportation industry’s continuously changing landscape has led to several regulations and compliance changes: many taking place as a result of the pandemic alone. It’s vital for employers to remain in the loop with such a fast-paced and ever-changing industry to avoid fines/fees and meet compliance standards. From 2020-2021, DISA Global Solutions is covering the latest and greatest with an all-encompassing American Trucking Association (ATA) safety regulatory update.

On May 13, 2021, our very own Steven Spencer, General Manager of DISA Transportation Compliance, partnered with Dan Horvath, Vice President of Safety Policy at ATA, to give a comprehensive overview of the recent updates in the transportation industry. The presentation covered changes made due to the COVID-19 pandemic, Electronic Logging Devices (ELD) and Hours of Service (HOS) updates, drug and alcohol testing, entry-level drivers, and more!

View the full presentation here!

The COVID-19 pandemic led to significant changes to businesses and daily life across the country, including many federally mandated regulations. As the transportation industry continues working through the changing landscape, here are the current waivers and exemptions set to expire on August 31, 2021.

• Hours of Service National Emergency Declaration
• CDL, CLP, and Medical Certificate Validity Waiver
• CLP Holder Accomlianied by CDL Driver in Front Seat; Out-Of-State Testing
• Third-Party CDL Skills Test Examiners Waiver

This list is not all-inclusive. Additional waivers and guidance can be found at fmcsa.dot.gov. The individual states may choose to follow different expiration periods, and the DOT’s expiration dates are subject to change with any subsequent waiver.

Additionally, the FMCSA issued guidance on random drug and alcohol testing on July 6, 2020, which is still relevant in the case of an audit. The Notice of Enforcement Discretion Determination for Random Controlled Substance and Alcohol Testing outlined the protocol for employers who faced difficulties getting drivers drug and alcohol tests due to the pandemic and how to document such incidents in the event of an audit. The waiver declared the following:

• Allows FMCSA enforcement discretion "to determine not to enforce the minimum annual percentage random testing rates for drugs and alcohol" and;
• "The requirement that each employer ensures that dates for administering random drug and alcohol tests are spread reasonably throughout the calendar year."
• Employers should maintain the specific reasons for non-compliance
  • i.e.: document closures or restricted use of testing facilities
• Employers capable of meeting these requirements must continue to do so.

Since becoming required in the United States, the use of ELDs have proven to show a significant reduction in Hours of Service (HOS) violations, including the top five violations:

1. False Report of Drivers Record of Duty Status
2. RODS Violation (form and manner)
3. No RODS (ELD Required)
4. ELD cannot transfer ELD records electronically
5. Drivers record of duty status not current

Canada has also issued an ELD rule which will take effect June 12, 2021, and has a lot in common with the U.S., except they will require third-party certification. Employers who have drivers operating in Canada need to ensure with their ELD provider that they are certified with the Canadian rules.

Unlike past rules, the HOS Final Rule that went into effect September 29, 2020, created more flexibility and are as follow:

• Short Haul- Changes the short-haul exception by lengthening drivers' maximum on-duty period from 12 to 14 hours and extending the distance limit from 100 to 150 air miles. Increases the number of drivers able to take advantage of the exception and shifts work and drive time from long to short-haul.
• Adverse Driving Conditions- Modifies the adverse driving conditions exception by extending by 2 hours the maximum window during which driving is permitted. Likely increases use of the adverse driving conditions provision.
• 30-Minute Break- If property-carrying CMV driver has driven for 8 hours without at least a 30-minute interruption, they must take a break of at least 30 minutes which can be satisfied by a non-driving period (off-duty or in sleeper berth) or on-duty not-driving; minimal impacts on fatigue.
• Split-Sleeper Berth- Permits drivers to split the required 10 hours off duty into at least 7 consecutive hours in the sleeper-berth and no less than 2 consecutive hours, either off duty or in the sleeper-berth. Both periods must equal 10 hours. Neither period counts against a driver's 14-hour driving window. Drivers may use sleeper berths more frequently.

On September 10, 2020, the U.S. Department of Health & Human Services (HHS) published a proposed notice to add hair testing to its federal drug testing program. Medical Review Officers (MROs) would have the ability to report;

For certified laboratory-reported positive hair tests, where there is no legitimate medical explanation for the positive result, HHS’ proposal would require an alternative specimen (urine or oral fluid) to be collected, either simultaneously (during hair testing collection) or when directed by the MRO after confirmation of a laboratory-reported result for the hair specimen. This alternative specimen would be tested and reported in place of a donor’s positive hair specimen. The ATA filed comments voicing concerns in the proposed alternative specimen collection process, leaving room for many flaws, including:

• Likelihood of a large number of positive hair test results being reversed due to hair testing's longer window of detection period compared to urine or oral fluid testing.
• Fails to meet the Congressional mandate for making hair a "true" alternative testing specimen for DOT drug testing purposes.
• Would discourage the wider adoption of hair testing within the trucking industry.

January 2021 marked the one-year anniversary of the Drug & Alcohol Clearinghouse, which has identified and help close the loophole of drivers who test positive at one company to get jobs at others. Since April 1, 2021, there were a total of 69,100 drug violations and 1,552 alcohol violations caught in the clearinghouse. Out of 64,846 drivers in the clearinghouse system with at least one violation, 10,609 of those have completed the Return-to-Duty (RTD) Process and are in a non-prohibited status, meaning they are eligible to return back to work.

As we near the ELDT compliance date of February 7, 2022, it’s important to familiarize yourself with the current requirements. Training providers must upload ELDT training certifications into the TPR, and SDLAs can confirm a CDL applicant’s completion of ELDT through CDLIS.

Requirements:

• Theory instruction

  • Requiring an overall score of at least 80 percent during the assessment

• Behind the Wheel (BTW) instruction

  • *No minimum hours; student must demonstrate proficiency through repetitive successful completion of all require BTW skills, including range and road driving.

Additionally, the ATA and the DOT continue to advocate for young drivers. The FMCSA currently has an Under-21 Military CDL Pilot Program, which allows a limited number of individuals ages 18, 19, and 20 to operate CMVs in interstate commerce. A similar program has been proposed for non-military by the DOT and is still pending. The ATA has advocated for the Drive Safe Act, which will allow 18–21-year-old CDL holders to operate a CMV across state lines during and upon completion of a two-step program. The guidelines for the program are as follows:

• Period 1: 120-Hour Probationary Period

  • 80 hours must be "driving time" accompanied by an experienced CMV driver

    Performance Benchmarks: interstate, city, rural, evening, HOS, turns, etc.

    May not operate a CMV with placarded hazardous materials

• Period 2: 280-Hour Probationary Period

  • 160 hours must be "driving time" accompanied by an experienced CMV driver

    Performance Benchmarks: backing and close quarters, pre-trips, cargo securement, navigation, permits, weight distribution, hazardous materials

As the transportation industry continues to modify and change regulations, it’s vital for employers to remain in the loop of the most recent news and updates. DISA’s Transportation Compliance (DTC) can assist employers with maintaining compliance during these unprecedented times. Regardless of the DOT agency you report to, we can offer assistance with FAA, FRA, FTA, FMCSA, PHMSA, and USCG.

DISA can help! Get answers directly from DISA’s subject matter experts with ‘Ask DISA’

Visit www.askdisa.com to ask your questions today

Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background check, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.