GAWDA Consultants Webinar DOT Issues May 21, 2012

1. GAWDA Consultants WebinarDOT IssuesMay 21, 2012 Rick Schweitzer General Counsel Gases and Welding Distributors Association

2. Topics • FMCSA Regulations—HOS, EOBRs, Driver Training, Tank Endorsements, Medical Exams, Cell Phone Ban, Drug and Alcohol Database • CSA Program; Safety Fitness • PHMSA Regulations—Special Permits, Fees and Fitness Standards • OSHA Hazcom Standards • Questions and Answers

3. Hours of Service Regulations • After settlement of litigation, FMCSA revisited 11-hour daily driving limit and 34-hour reset in new rulemaking • Final rule December 27, 2011 • New rules effective July 13, 2013: 30-minute break after 8 hours on duty; 34-hr. reset once a week, 2 periods of 1:00-5:00 a.m. • In meantime, all HOS rules remain the same

4. HOS Litigation • ATA sued to challenge 34-hour reset revisions and rule that 30-minute break must be all off duty time • Public Citizen sued to challenge 11-hour daily driving limit • ATA intervened in Public Citizen suit to argue for the 11-hour limit • Two cases are consolidated for hearing

5. HOS Schedule • Court has not yet set briefing schedule for cases • Reports to court due May 14; schedule will be set soon after • Oral argument held sometime late summer or fall 2012 • Decision late 2012 or early 2013

6. EOBR Rulemaking • Final rule on EOBRs published April 5, 2010 • If carrier has more than 10% of logs non-compliant in Compliance Review, FMCSA will order carrier to install EOBRs on all CMVs for 2 years for HOS compliance • Court of Appeals vacated rule for failure to consider anti-harassment requirements • FMCSA has withdrawn this rulemaking

7. EOBR Mandate Proposal • FMCSA also proposed rule to mandate EOBRs for all CMV drivers in interstate commerce in February 2011 • Proposed three-year phase-in after rule became effective • FMCSA will issue a supplemental NPRM in early 2013 to consider anti-harassment requirements, supporting document rules

8. Entry-Level CMV Driver Training • NPRM would require behind-the-wheel and classroom training to operate CMV with a CDL; also sets out curriculum requirements • Would apply to both new applicants and drivers who want to upgrade their CDL • For Class A, would require 76 hours classroom and 44 hours behind-the-wheel training • Final rule planned for 2012 publication; now withdrawn; cannot validate the standards?

9. Entry-Level CDL Learner’s Permits • Final rule issued May 2011; effective July 2011 • This rule revised CDL knowledge and skills tests and requires a learner’s permit for CDL applicants • Sets out minimum info for CDL learner’s permits, age limits for LPs, and addresses domicile issues • Also imposes fraud detection and prevention at state DMVs

10. Tank Vehicle Endorsement • Learner’s permit rule also changed definition of tank vehicle to include intermediate bulk containers of liquid or gas that total more than 1,000 gallons; now requires tank endorsement • ATA and others petitioned to reconsider; FMCSA has decided to reconsider the definition (but states still enforcing)

11. National Registry of Medical Examiners • Final rule April 20, 2012 • Established training, testing and certification standards for medical examiners (self-reporting); intent is to promote uniformity of exams nationwide; starting May 2012 • Creates on-line database of certified medical examiners; carriers may not use driver unless examined by certified examiner as of May 2014

12. Texting Ban, Cell Phone Limits • FMCSA/PHMSA have issued several rules to to ban texting while driving CMVs and also limit any cell phone use by CMV drivers • Rules allows CBs and two-way radios; also allow one-touch dialing and response; may not otherwise use hand-held devices • Companies should have cell phone policies in place already for all drivers

13. Drug/Alcohol Test Database • New rule would create database for positive drug and alcohol test results for CDL drivers (and refusals to submit to tests) • Would require carriers to report positive tests and refusals into the database • Prospective employers could query the database (with written permission from driver) re applicant’s testing record • NPRM expected August 2012; but missed deadline to send proposal to OST already

14. CSA Program • FMCSA changed its method for intervening with carriers on compliance with FMCSRs, beginning November 2010 • Menu of compliance tools for carriers and drivers: warning letters, targeted roadside and on-site inspections, voluntary compliance agreements, notices of violations • But problems with use of non-fault accident data against carriers • Will create a new Hazmat BASIC separate from cargo violations

15. CSA Safety Fitness • FMCSA will also replace SafeStat carrier fitness rating program with a new rating methodology • This requires rulemaking and will not be completed until late 2013 at the earliest • Question of whether CSA has illegally imposed new fitness standards already without notice and comment rulemaking

16. Special Permit Procedures • PHMSA has rewritten procedures for fitness determinations for SP applicants; some require site inspections; modal administrations will advise PHMSA on qualifications • FMCSR compliance record affects fitness • Industry requested SP procedures to be set out in rulemaking so we may comment--denied

17. OSHA Hazcom Standards • OSHA final rule published March 26, 2012 to conform hazcom standards with UN System of Classification and Labeling fro chemicals • Affects classes, labeling for many products requiring MSDSs (now known as SDSs) • New system of pictograms to be used on packages for worker notification • Employee training required by Dec. 1, 2013

18. Questions? • Richard P. Schweitzer, PLLC 1776 K Street, N.W. Suite 800 Washington, D.C. 20006 (202) 223-3040 phone (202) 223-3041 fax rpschweitzer@rpslegal.com