ANALYSIS: Your 'CliffsNotes' version to upcoming regs

By Jami Jones, Land Line managing editor | Thursday, July 23, 2015

With some high-profile regulations on the horizon for the trucking industry, there is a lot of confusion about what regulations are out there and where they are in the process.

To help discern the fact from the fiction, and arm truckers with what they need to know as the agency moves forward, here’s the down-and-dirty on “which regulations are where” with the Federal Motor Carrier Safety Administration.

Electronic Logging Devices
and Hours of Service Supporting Documents
Stage:
Final Rule
What it is: The agency isn’t disclosing a lot of specifics about the final rule. What we do know is the final rule will establish minimum performance and design standards for the logging devices; requirements for mandatory use of the devices; requirements on supporting documents drivers have to retain; and measures to address concerns about harassment resulting from the mandatory use of the devices.

Pros/Cons: The Owner-Operator Independent Drivers Association has long been opposed to the mandated use of electronic logging devices. Research fails to prove that the electronic devices improve highway safety or hours-of-service compliance over the use paper logs. The devices cannot distinguish off-duty not-driving and on-duty not-driving activities – thereby rendering the devices useless in determining actual compliance with the regulations.

The Association successfully defeated in court a limited mandate that would have required the use of electronic logs by motor carriers with serious hours-of-service noncompliance. The Association presented three arguments to the court. The court only got through consideration of the first argument – harassment via the devices – when it vacated the rule and forced the agency to withdraw the mandate. The remaining two arguments, a Fourth Amendment-based warrantless search argument and the cost-benefit analysis fails to prove worth to the mandated use of the devices, have yet to even be tried in court.

Where it is in the process: The final rule was submitted June 1 to the Office of the Secretary of Transportation, where it remains to this day. This step in the process is to determine if the final rule is in line with the agency’s agenda. It’s expected to go for a cost-benefit review at the Office of Management and Budget any day now. (Editor's note: The final rule was submitted to OMB on July 30.)

When will it be public? FMCSA estimates it will publish in the Federal Register on Sept. 30.

Next steps: When the final rule publishes there will be a phase-in period for compliance (usually two to three years). In that time, the agency may have petitions for reconsideration and even legal challenges to fight in order to keep the mandate alive.


Prohibition on Coercion
Stage:
Final Rule
What it is: What could easily be a true game changer for all truck drivers, the FMCSA has been tasked by Congress to draft a regulation that prohibits the coercion of drivers into violating the regulations.

Pros/Cons: Faced with (in many cases, daily) damned-if-you-do, damned-if-you-don’t scenarios, drivers are often pressured into violating regulations like hours of service. A typical scenario is running out of hours at the dock and being forced to drive and leave the facility with no place to go.

This regulation is intended to target coercion tactics by motor carriers, shippers, receives or transportation intermediaries (brokers for example) used to force drivers into operating their trucks in noncompliance with the federal regulations.

The devil will be in the details on how FMCSA approaches enforcement. If the agency relies heavily on whistleblowing without any assurance of follow-through, the rule could be very weak.

Where it is in the process: The final rule is at the Office of the Secretary of Transportation, submitted May 6. If it passes the Secretary’s review, it should go to OMB soon. (Editor's note: The final rule was submitted to OMB on July 30.)

When will it be public: The agency is projecting publishing the final rule Sept. 25.

Next steps: When the final rule publishes there will be a phase-in period for compliance (again, usually two to three years). Along with any final rule, it is subject to petitions for reconsideration and possible litigation.


Heavy-Vehicle Speed Limiters
Stage:
Proposed regulation
What it is: This is a two-agency rulemaking with both FMCSA and the National Highway Traffic Safety Administration proposing the joint regulation. The regulation was prompted by a petition from the American Trucking Associations and Road Safe America asking for a speed limiter mandate.

Starting with the latter agency, NHTSA will have jurisdiction over newly manufactured trucks and could, through this rulemaking process, mandate that all new trucks be equipped with activated speed limiting devices.

While not publicly disclosed, FMCSA’s ability to regulate speed limiters would be limited to trucks currently on the road. While mandating retrofits or activation of the device would be a stretch of the agency’s authority, the agency would be able to prohibit trucks without activated speed limiting devices from operating in interstate commerce. The proposed regulation should shed light on what exactly FMCSA has up its sleeve for trucks currently on the road.

Pros/Cons: What pros? Aside from increased fuel economy from driving slower – which can be achieved equally effectively without a speed limiting device by drivers – there is nothing in the way of legitimate scientific proof that speed limiters will improve highway safety.

Speed limiters will actually make the roads less safe by increasing speed differentials, vehicle-to-vehicle interactions (read: cars whipping in and out and around slower moving trucks), and hamper the overall efficiency of traffic flow.

NHTSA does not track speed limiter data on crashes and fatalities. The agency does not know what trucks involved in wrecks have the devices activated and what trucks do not. FMCSA has a study that it tortured into submission to prove some safety benefit. But, all in all, common sense is when trucks move slower than the rest of traffic, there are more wrecks and (unscientifically and just commonsensically speaking) more road rage.

Where it is in the process: The final rule is at the Office of Management and Budget going through its cost-benefit review. It was submitted in May and is expected to clear sometime in August.

When will it be public: The agency is projecting publishing the proposed rule on Aug. 20.

Next steps: The agency will accept comments for two months and then take those comments into consideration before moving forward to a supplemental notice of proposed rulemaking, a final rule or tanking the proposal altogether.


Carrier Safety Fitness Determination
Stage:
Proposed regulation
What it is:
FMCSA is proposing to change how motor carriers receive their “safety fitness determination.” Right now, motor carriers are given a “carrier safety rating” of satisfactory, conditional or unsatisfactory that reflects the carrier’s compliance with the regulations.

To get the rating, the motor carrier must go through a safety audit. So, there are lots of motor carriers out there without a safety rating. To counter this, the FMCSA is proposing to change the method of assigning those safety ratings. The agency proposes to tie the “carrier safety fitness determination” to the motor carrier’s monthly safety rankings in CSA, an investigation or a combination of roadside data and investigations.

Pros/cons: It’s hard to get excited over anything that is going to automatically label a motor carrier’s performance via the flawed CSA program. Drivers, motor carriers and law enforcement all agree that CSA is not achieving its intended goal. There are studies pointing out its flaws. And Congress has legislation pending to remove CSA from public view. Adding another labeling mechanism on top of the embattled program is just doubling down on stupid.

Where it is in the process: The proposed regulation is currently at the Office of the Secretary of Transportation. The office will sign off on the proposal if it is in line with the agency’s prescribed agenda. It then moves on the Office of Management and Budget at the White House for a cost-benefit review.

When will it be public? Estimates by FMCSA have the proposed regulation publishing in the Federal Register the end of September.

Next steps: The agency will accept comments for two months and then take those comments into consideration before moving forward to a supplemental notice of proposed rulemaking, a final rule or tanking the proposal altogether.


Entry-Level Driver Training
Stage:
Proposed regulation
What it is: This proposed regulation will be the result of a negotiated rulemaking process in which 26 industry stakeholders got together and agreed upon the framework for the first-ever driver training regulations.

The framework proposes to require persons applying for new or upgraded CDLs to complete classroom, range, and behind-the-wheel training from a training provider listed on a National Registry

Pros/Cons: To be viewed as first steps toward a comprehensive driver training mandate in the making, the proposal makes strides to ensuring a minimum level of training all new CDL holders must acquire and demonstrate proficiency at before getting their licenses. The rulemaking will also seek to establish a National Registry of training providers and trainers, enabling FMCSA to track the success of trainees and the adequacy of training.

The framework agreed upon by the committee also allowed owner-operators and small trainers a chance to train up to three individuals in a 12-month period, giving them the chance to continue to train family and friends as many small companies do.

Where it is in the process: The proposed regulation is expected to go to the Office of the Secretary of Transportation in early August. The office will sign off on the proposal if it is in line with the agency’s prescribed agenda. It then moves on the Office of Management and Budget at the White House for a cost-benefit review sometime later in August.

When will it be public? Estimates by FMCSA have the proposed regulation publishing in the Federal Register in mid-October.

Next steps: The public will be able to comment for two months and then FMCSA will take those comments into consideration before moving forward to a supplemental notice of proposed rulemaking, a final rule or abandoning the proposal altogether.

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