Federal Update
The regulatory road ahead in 2013
FMCSA, NHTSA set stage for launching game changing rulemakings

By Jami Jones, managing editor

Truckers didn’t face a lot of regulatory change in 2012. Neither the Federal Motor Carrier Safety Administration nor the National Highway Traffic Safety Administration made any significant movements toward rulemakings.

In fact, throughout the last half of 2012, both agencies were punting potential rulemakings that could affect the lives of truck drivers time and time again.

Initially, it looked as though things would heat up quickly in 2013. However, yet another report on upcoming rulemakings from both agencies showed pushed back release dates. Nevertheless, 2013 looks to be the year that the regulatory machine will once again start churning out regulations targeting truckers – one potentially good, but others mostly troublesome.

Prohibition of coercion
Stage: Notice of proposed rulemaking
Federal Register publication: August 2013

As teed up by the agency, and mandated by the new highway funding law Moving Ahead for Progress in the 21st Century dubbed MAP-21, this regulation is intended to target the root of many compliance issues in the industry – coercion to violate the regulations.

The agency has long been unable to reach beyond the trucking community to take enforcement action against others who willingly press truck drivers into driving dangerous equipment, violating hours of service, routing illegally ... the list goes on and on.

The agency plans to move quickly (in regulatory terms) on this rulemaking because of the far-reaching implications it could have on countless other rulemakings. In fact, in the FMCSA’s report on rulemaking, it states that “future rulemakings would need to consider whether coercion of drivers is a concern.”

While it’s actually set to start through the process later this year than some of the other notable regulations coming out of FMCSA, the far-reaching-implications of this regulation could actually affect the timelines for the other regulations.

Speed limiters
Stage: Notice of proposed rulemaking
Federal Register publication: May 2013

This rulemaking brought to you by NHTSA is in response to a petition submitted to both FMCSA and NHTSA by the American Trucking Associations and RoadSafe America. NHTSA is taking the lead on the regulation after opening a comment period in which “thousands of comments supporting the petitioner’s request” were received.

The abstract on this rulemaking reads more like the petitioners’ propaganda and less like an agency’s well-researched position. Claiming any sort of good research is also suspect, given the agency’s study into speed limiters did an about-face between its preliminary draft and final draft. Initially, research showed no benefit to activating speed limiters. And, when compared side by side, the final report essentially just changed the conclusion – without any significant change to the underlying data.

Good thing this has a ways to go before becoming a final rule, with ample time to submit comments. So save up your speed-limiter horror stories.

Drug and alcohol clearinghouse
Stage: Notice of proposed rulemaking
Federal Register publication: June 2013

The rulemaking has been on the FMCSA’s agenda for some time. Now, it is also mandated by MAP-21.

It would create a database for verified positive controlled substances and alcohol test results of all CDL holders. It will also record refusals to submit to the test. The agency’s intent behind this regulation is to make it somewhat easier on motor carriers to do the required drug- and alcohol-testing background check on prospective drivers.

This rulemaking should raise the eyebrows of every commercial truck driver. While noble in the intent of keeping people with drug and alcohol problems off the road, FMCSA is already under heavy fire for bad data in the Motor Carrier Management Information System – the database that feeds CSA and the Pre-Employment Screening Program. And the lack of a quantifiable system for correcting that data does little to instill confidence that data quality will be paramount in the agency’s mind before launching this program and unduly labeling a compliant CDL holder as a drug user.

That concern is just the tip of the iceberg. But for now we’ll have to wait and see what the agency proposes.

Fortunately, this is early in the regulatory process and there will be plenty of opportunity to comment on issues such as data quality, privacy, etc.

Electronic logging devices and hours-of-service supporting documents
Status: Supplemental notice of proposed rulemaking
Federal Register publication: September 2013

This regulation is proving to be a bit tricky for FMCSA. To quickly recap, a different regulation mandating the use of on-board recorders for motor carriers with particularly bad track records of non-compliance was thrown out by the U.S. Court of Appeals for the Seventh Circuit after OOIDA sued the agency. The court only ruled on the first of OOIDA’s three arguments: harassment.

Now the agency must consider harassment of drivers via the electronic devices before it can move forward on any sort of regulation mandating the electronic on-board recorders.

Before the court ruling, FMCSA was already moving forward with an industry-wide mandate. The ruling forced the agency to pull back and basically start over, and that’s why it is now at the supplemental notice of proposed rulemaking stage.

In the end, this rulemaking is a long way from happening. And if the agency manages to issue a final rule, OOIDA has two more arguments the court hasn’t even considered yet. LL