FLEETS SIT SQUARELY IN THE REGULATORY SIGHTS
As humorist Will Rogers once famously observed, “…in every war they kill you in a new way.” And so it goes this year in the endless war for survival and ultimately profitability that is trucking in America.
In 2012, besides warring anew with our nation's still sluggish economy, fleet owners and truck operators will be slugging it out with an onslaught of government regulations being unleashed at a pace not seen — or, more to the point, felt — in some 16 years.
According to David Osiecki, senior vice president of policy & regulation for the American Trucking Assns. (ATA), despite 19 proposed rules impacting trucking from eight different federal agencies being introduced in 2011 as well as 13 rules being finalized last year, “there will be no let-up on the regulatory side in 2012.”
And what of new laws? Regs promulgated by federal agencies are laws, the result of the administrative-lawmaking power of the Executive Branch of our government. But the main function of the Legislative Branch — the House and Senate — of course, is to enact laws, which are then enforced by federal executive agencies.
However, thanks to circumstances seemingly beyond anyone's control, there's good news for trucking on the Congressional front. Because this year, once again, the partisan polarization that has come to characterize both activity on Capitol Hill and Congress's relations with The White House, will all but ensure that few, if any, new regulations will arrive via legislation.
But the goings on up on Capitol Hill must nevertheless be kept in sharp focus by fleet owners and trucking lobbyists. That's because the debate over transportation funding reauthorization is far from finished.
Following is a set of 10 primers on the top regulatory and legislative issues facing trucking in 2012, as determined by experts Fleet Owner spoke with at several trucking lobbies, including ATA, the Truckload Carriers Assn. (TCA), and the Owner-Operator Independent Drivers Assn. (OOIDA).
HOURS OF SERVICE
The big one
The Federal Motor Carrier Safety Administration (FMCSA) has proposed revisions to the existing HOS rules that may call for such draconian changes as:
Cutting driving time from 11 to 10 hours per shift
Adding two 12 a.m. to 6 a.m. rest periods to the current 34-hour restart provision
Limiting use of restarts to once every seven calendar days
Adding mandatory rest breaks once every seven hours
Limiting drivers to 13 hours of on-duty time in each 14-hour shift.
If implemented as proposed, these reforms together will deepen the already yawning shortage of long-haul truck drivers. That in turn will force fleets to hire additional drivers — leading many to no doubt resort to bringing on more inexperienced and thus potentially unsafe hires.
And some existing long-haul drivers — who are hard enough to hold onto now — may exit the industry in the face of receiving less wage-earning time per workday. That would put yet more pressure on carrier recruitment and retention efforts, raising those costs.
The topper is the resulting pass-along increase in freight costs — pegged by one expert as costing U.S. consumers up to $1.4 billion — from dealing with the new rules would land a blow on the still fragile chin of the U.S. economy.
The status of this rulemaking as of press time in early December was that it was slated to be released on Dec. 22. Yet even so late in the game, at this moment in time no one outside FMCSA knows what will be in the final rule and that naturally worries everyone in trucking as it makes planning for possible contingencies — especially transit times for shippers — nigh impossible to do.
The hard-to-swallow changes noted above are in the proposed rulemaking FMCSA initially put forth. But since that first notice, the agency has received a mountain of feedback about the costs and impracticalities of the proposed measures from industry stakeholders.
The hours-of-service rule's final stop before being released is at the Office of Management & Budget (OMB), an agency within the White House that analyzes the costs and benefits of new regs and completes the final vetting.
It is not likely to do so, but OMB does have the power to send a rule back to the issuing agency for further revisions before it can be released.
So until the rule is actually released in final form, it remains anyone's bet as to whether the agency listened any better this time around to what the industry has tried to tell it for years about HOS vs. the realities of trucking.
The timing that will really matter will be the effective date for enforcement of the new HOS rules. That, of course, also remains to be seen at this juncture. But there is strong speculation that when FMCSA issues the final rule, it may delay the effective date of enforcement beyond the typical six months.
The agency may even extend enforcement of the new HOS rule to sometime after the 2012 elections — due to the concerns raised by trucking about over-regulation as well as the rule's potential impact on the economy.
The long-awaited and much-anticipated reauthorization of surface transportation funding is the biggest piece of federal legislation that trucking will be lobbying about this year.
Bills to accomplish the reauthorization began wending their way through both the House and Senate last year, but are “caught up in all that is happening in Washington, including the fiscal challenges,” observes Rod Nofziger, OOIDA chief of staff. “There will likely be more action on it this year, but whether it gets signed into law [anytime soon] may be another issue.”
The final legislation will cover highway funding, including construction and maintenance, and also the funding of everything under the FMCSA umbrella.
What's more, at least two pieces of legislation favored by the industry overall — Jason's Law (H.R. 1803 and H.R. 2156) to increase and make safer public and private truck parking and the Fighting Fraud in Transportation Act (FFIT aka H.R. 2357) to raise the performance bar for freight brokers — will likely remain in limbo until they can be rolled into a final Surface Transportation Reauthorization Act.
FFIT is aimed at removing “bad actors” from the broker field. Among its requirements: Raising the broker surety requirement to $100,000, with a review after five years, and imposing a $100,000 surety requirement on freight forwarders.
In addition, it would mandate three years of relevant experience or certified training to obtain a license and require all current brokers and forwarders to come into compliance with the new regs not later than four years after enactment. It would also establish severe penalties for brokering without a license — including civil penalties of up to $10,000 for each violation and unlimited liability for payments.
Also in the same straits is a bill now in the House — H.R. 756 — that would direct the Dept. of Transportation “to prescribe standards for the maximum number of hours that an operator of a commercial motor vehicle may be reasonably detained by a shipper or receiver, and for other purposes.” This legislation calls for conducting a study and then mandating standards.
For checking the progress of these and all other bills and resolutions entered into the House and Senate, an excellent resource is this private website open to the public: www.govtrack.us/congress.
ELECTRONIC ONBOARD LOGS
Unveiled a year ago, the second proposed rule from FMCSA on electronic onboard recorders (EOBRs) would require nearly all motor carriers to install EOBRs or electronic driver logs (EDLs) to monitor drivers' hours of service as a mandated replacement for paper drivers' logs.
The current proposed rulemaking only exempts short-haul carriers with drivers who currently use time cards, primarily those of “property-carrying CMVs that do not require a CDL and that operate within a 150 air-mile radius of the driver's normal work-reporting location under the current provisions.”
The first version of the rule had been successfully derailed by a court ruling. According to ATA's Osiecki, FMCSA could finalize the new rule this year. “However,” he points out, “the agency may have to issue a supplementary proposal of rulemaking to deal with specifics of the court ruling as well as to address technical issues [about EOBRs raised by suppliers].”
The rule may be close to release since the Dept. of Transportation's Motor Carrier Safety Advisory Committee (MCSAC) issued its recommendations on the proposal to FMCSA early last month. Details on that had not been released as of press time, but MCSAC was to address 16 separate issues, including how a paperless log would be reviewed by law enforcement and the certification of EOBRs.
FMCSA is not bound by MCSAC's recommendations. But since its membership consists of 19 experts drawn from the motor carrier, safety advocate and law enforcement realms, its views should carry at least some weight with the agency.
The court case that had stopped the proposed EOBR rule in its tracks resulted from a petition by drivers and OOIDA that challenged a provision to require chronic violators of HOS rules to install EOBRs.
CARRIER FITNESS DETERMINATION
It's anyone's guess when the Carrier Safety Fitness Determination (CSFD) rule — the final piece of FMCSA's Comprehensive, Safety, Accountability (CSA) regulatory package — will be released. It is currently in the notice of proposed rulemaking stage, but on top of that, David Heller, director of safety & policy for TCA, relates that “the rule has been delayed; it's been taken off the Secretary of Transportation's desk.”
According to ATA's Osiecki, when it comes out of FMCSA, the rule is expected to have two key components: a carrier safety fitness scoring system and an explanation of how the scores will be used by the government.
Per a Federal Register filing, the rulemaking “would establish safety fitness determinations based on safety data consisting of crashes, inspections, and violation history rather than the standard compliance review.” It also stated this approach will enable FMCSA “to assess the safety performance of a greater segment of the motor carrier industry with the goal of further reducing large truck and bus crashes and fatalities.”
OOIDA's Nofziger regards the CSFD rulemaking as “very contentious since it will involve certain CSA BASICs, such as crashes and cargo securement. The agency's idea is to put the seven BASICs together and then rate each carrier in some way. This rule should have come out two years ago and we expect it will be released sometime in 2012.”
ENTRY-LEVEL DRIVER TRAINING
A final rule establishing entry-level driver training (ELDT) requirements is expected to be released by mid-year. ATA's Osiecki says it will “raise the training bar for new drivers and their training will have to be completed before they are issued a CDL.”
The ELDT notice of proposed rulemaking (NPRM) dates all the way back to 2007. According to TCA's Heller, the NPRM came in response to a 2005 court decision that held that FMCSA had been “arbitrary and capricious” in promulgating its previous training rule, issued in 2004, because that rule lacked a requirement for behind-the-wheel training.
Per the current NPRM, what is being proposed is a rigorous scheme for ELDT. Heller advises the notice calls for driver training schools and programs (including those operated by motor carriers) obtaining accreditation through select accrediting bodies. The NPRM also proposes that CDL applicants be required to successfully complete a specified minimum number of hours of classroom and behind-the-wheel training before their CDL is issued.
QUICK UNION ELECTIONS
When fast is bad
In June, the National Labor Relations Board (NLRB) issued a proposal to change the rules governing union-representation elections. This rule would shorten the time within which employers can respond to representation petitions — cutting it at least in half. Currently, the allowable time elapse is 42 days. The rule would slash that to as few as 10 days and no more than 20.
“For fleets exposed to unionizing activities,” points out ATA's Osiecki, “this rule would make it easier to organize drivers as it would shrink the time between a representation filing and the actual election — giving employers less time to campaign.”
The rule would also require employers to turn over to NLRB such private employee information as home phone numbers and personal email addresses and, under certain circumstances, defer litigation of representational disputes, such as voter eligibility, until after an election.
But even as the NLRB crafts the final rule — expected to be published early this year — efforts are under way to parry it. On Nov. 30, the House passed the Workforce Democracy and Fairness Act (H.R. 3094) to counteract the quick-election rule and the Senate has a similar bill in the works.
In early December, two advisory panels to FMCSA — the Medical Review Board and the Motor Carrier Safety Advisory Committee — told the agency that it should issue a “guidance” to DOT-certified medical examiners that truck drivers with a body mass index (BMI) of 35 or higher be evaluated for obstructive sleep apnea (OSA). That specific recommendation should be no surprise as medical research has shown for some time that a higher BMI is associated with a higher prevalence of OSA.
The recommended guidance reportedly would require the presence of certain conditions to bring on the immediate disqualification of a driver. These would include falling asleep while driving or having a crash caused by fatigue. However, drivers could be issued a 60-day conditional card during evaluation and treatment for sleep apnea.
While the guidance is not a rule, it could well be the first step toward FMCSA issuing a sleep-apnea reg. Indeed, a joint recommendation by the two committees on such a rule is expected to reach FMCSA this spring.
Another white-coat issue that will impact trucking involves the industry's certified medical examiners themselves. A rule expected to be finalized early this year will “raise the knowledge bar” for physicians who perform DOT medical exams of drivers, points out ATA's Osiecki. “The issue here is some doctors will drop out of the program rather than deal with the hassle of this new rule.”
He says the likely upshot will be the supply of DOT medical examiners will go down even as the demand for their service will stay flat or rise. So the direct costs of the exams will go up and drivers may have to find a physician further away. “Some employers pay for these exams; so don't,” Osiecki adds.
DRUG & ALCOHOL CLEARINGHOUSE
Not yet in the proposed stage, according to TCA's Heller, is a rule that would establish a federal clearinghouse for information on truck driver drug- and alcohol-use violations. He advises that the measure is projected to arrive on the Secretary of Transportation's desk this month and likely reach the OMB review stage in May.
“This rule would give carriers a [legal] outlet to publish positive drug/alcohol results of drivers [as a means to prevent them from being hired to drive elsewhere],” Heller points out. The measure would add teeth to trucking's existing zero-tolerance efforts to remove drugged and/or drunk truck drivers from behind the wheel.
Although not known to be contemplated as part of this rule, Heller points out that some stakeholders are “also clamoring to have more than the federally required urine test put in place.
“For example, some favor testing hair as a more thorough method of drug/alcohol testing and one that can show a longer history [of it in a driver's system].”
ELECTRONIC STABILITY CONTROL
The National Highway Traffic Safety Administration (NHTSA) is reportedly working on a pair of proposed rulemakings for federal motor vehicle safety standards that would mandate electronic stability control (ESC) and speed limiters on new commercial vehicles.
ATA's Osiecki says to look for a proposed rule on ESC to come out in the first quarter or early in the second.
He says NHTSA is pursuing the ESC requirement because the agency has stated it has good data to support its rulemaking.
As for a rulemaking on mandating speed limiters on trucks, Osiecki says that is on a more accelerated timeline and to expect to see the proposed rule early this year. “Since this rule would eventually limit the top speed of trucks,” he notes, “ATA supports it.”
HANDHELD CELL BAN
Talk ain't cheap
Already on the books as of Jan. 3 is the reg issued jointly by FMCSA and the Pipeline and Hazardous Materials Safety Administration (PHMSA) prohibiting the use of handheld mobile telephones, including handheld cell phones, by drivers of commercial motor vehicles while operating in interstate commerce.
Truck drivers who violate the rule face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. What's more, companies whose drivers violate the law can be hit with a maximum penalty of $11,000.
“The asterisk to this rule,” notes ATA's Osiecki, “is it places liability on employers even if they have cell phone use policies and training in place. Even these carriers are liable if their drivers violate the rule and the fine is hefty.”