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Don't count on major FMCSA reversals under Trump

November 9, 2016

Donald Trump’s surprise win has many scrambling to reassess what federal policy will be on a wide range of issues. It’s fair to say that we will see dramatic shifts in some areas – health care, labor, environment and trade policy, to name a few. For example, we likely will see a reversal of efforts by President Obama to favor employer-employee relationships over independent contractor status – a campaign that has put pressure on the use of leased owner-operators. The new overtime pay rule, which currently is subject to litigation, likely will be overturned as well.

 

One thing we probably will not see is a wholesale rollback of safety regulation and enforcement on motor carriers, especially in areas where the Federal Motor Carrier Safety Administration (FMCSA) has recently issued final rules. FMCSA has existed for about 17 years – a period split evenly between President Bush and President Obama plus the final year of President Clinton to kick things off. There isn’t that much difference between how FMCSA approached regulations under Republican and Democratic presidents and not much reason to think that will change under President Trump.

 

It’s worth noting that the Obama administration’s ability to force through new regulations at this stage is very limited. In general, any final rule issued less than 60 days before President Trump’s inauguration could be voided simply by announcing a "regulatory moratorium." At this point, only one regulation is poised to be finalized before November 21: A drug and alcohol testing clearinghouse. Even if that didn’t happen, though, it’s likely that the Trump administration would leave that rule in place. There is one controversial rule that FMCSA could theoretically publish by then, but it would require quick action.

 

Let’s look at the following FMCSA issues one at a time:

  • Electronic logging devices

  • Hours of service

  • Entry-level driver training standards

  • Speed limiters

  • SMS/safety fitness determinations

 

Electronic logging devices

While the Obama administration issued the electronic logging device (ELD) final rule, the push for ELDs began late in the Bush administration under FMCSA Administrator John Hill. Plus, it was Hill’s FMCSA that changed the longstanding policy (adopted during the Clinton administration) of not using satellite location reports to audit drivers’ logs. That change, which occurred on Christmas Eve 2008, accelerated the adoption of electronic logs by larger carriers, which made ELDs inevitable as big carriers began to push for a “level playing field.”

 

In addition, when Congress mandated ELDs in 2012 Republicans controlled the House and Democrats held the Senate. Republicans have held the Senate for two years already, and there has been no sign of a change in policy. You could argue that one reason is that Congress wouldn’t bother because a veto from President Obama would be likely. However, there is no sign that ELDs are a partisan issue, and the American Trucking Associations is solidly behind them anyway.

 

Bottom line: Althouth ELDs are not mandatory until late next year, the rule took effect in February, so it would not be subject to a regulatory moratorium. With the 7th Circuit’s October 31 rejection of the legal challenge don’t expect any change in the ELD mandate due to Trump’s election.

 

Hours of service

Here again, for the most part, the hours-of-service regulations we have today came from the Bush administration. The rules had to be revised several times due to court decisions, but only the final rewrite was under the Obama administration. To be sure, the latest version included three changes that have been controversial: (1) the 30-minute rest break; (2) the requirement that the 34-hour restart include two consecutive 1 a.m.-to-5 a.m. periods; (3) a limit of only one restart every 168 hours.

 

Due to Congressional intervention, however, however, the two HOS restart changes have not been enforced in a couple of years. The suspension of those provisions likely will continue indefinitely even if Congress doesn’t fix a glitch in the current legislation when it reconvenes next week for a “lame duck” session.

 

As for the 30-minute rest break, FMCSA has been fairly flexible in enforcement, granting numerous exemptions from the requirement. While it’s possible that an FMCSA under Trump could revisit the 30-minute rest break, that could subject the rule to still another round of litigation. Instead, expect more exemptions.

 

FMCSA is studying possible flexibility with sleeper berths, but it’s not on a fast track. It’s also worth noting that split rest for solo drivers was sharply curtailed under the President Bush, not President Obama.

 

Bottom line: Don’t expect any significant changes soon in the HOS rules as they are enforced today.

 

Entry-level driver training standards

(UPDATED November 17, 2016) The White House on November 15 completed its review of a draft final rule to establish minimum training standards for new commercial driver’s license holders as well as drivers seeking to upgrade their CDLs. It’s a controversial rulemaking that already is 20 years beyond the deadline Congress set in the 1990s.

 

Due to the controversy, FMCSA convened various stakeholders to hammer out a deal under what’s known as a negotiated rulemaking, or “reg neg.” The proposed rule, which presumably is very close to the draft final rule, requires far fewer hours of behind-the-wheel training than FMCSA’s earlier proposal during the Obama administration. Even so, some in the trucking industry felt they were presented with a take-it-or-leave it proposition and would prefer to see the pared-down plan die. Also, ATA dissented from what was clearly the advisory committee's most important recommendation: A minimum number of hours for behind-the-wheel training.

 

 

Bottom line: The fate of entry-level training standards is unclear. Unless FMCSA finalizes it by November 21, its fate rests squarely with the Trump administration. However, even if FMCSA makes this deadline, Congress could pass a resolution of disapproval under the Congressional Review Act once President-elect Trump is inaugurated. Given the effort involved to date, FMCSA staff probably would like to see the rule proceed, but if FMCSA doesn't make the November 21 deadline the smart money probably is on the rule quietly fading away despite a Congressional mandate.

 

Speed limiters

As practically everyone in the trucking industry knows, FMCSA and the National Highway Traffic Safety Administration have jointly proposed a rule to require speed limiters on newly manufactured Class 8 trucks.  Comments on the highly controversial plan are due December 7 after a 30-day extension, and already more than 5,400 comments have been filed.

 

The Obama administration did not exactly rush to adopt speed limiters; the petitions for rulemaking were submitted more than a decade ago. So it’s not clear that this is really a partisan issue. However, the Senate version of the DOT funding bill includes a provision to require a rule within six months to mandate speed limiters. That measure will be considered in the coming weeks as Congress tries to hammer out funding for the federal government through September of next year. Meanwhile, the American Trucking Associations, which petitioned for the rule in 2006, says it opposes the proposed rule as currently written.

 

One of ATA’s concerns is shared especially by trucking interests in Western states: The speed differential that could be created between large trucks and automobiles. This is significant because Republicans tend to be more concerned about states’ freedom to adopt regulations that fit their circumstances. Perhaps more to the point, Republicans are more closely tied politically than Democrats to the states that have expressed the most concern so far over the impact of speed limiters.

 

Bottom line: Congress will decide before the end of the year whether NHTSA and FMCSA must adopt a rule. Without a legislative deadline – and perhaps even with one – don’t expect any progress on the rule soon and expect it to be look different if it is ultimately finalized.

 

SMS/Safety fitness determinations

The Safety Measurement System (SMS) and FMCSA’s proposed rule to change the process carrier safety fitness determinations are separate topics but closely related. A Republican-controlled Congress last year ordered FMCSA to pull down SMS alerts and relative percentiles on property carriers pending a thorough review by the National Academy of Science (NAS). So you would not expect the Trump administration to be any more favorable toward SMS than the Obama FMCSA is.

 

On the other hand, like ELDs and HOS, what is now the Compliance, Safety, Accountability program, which is intertwined with SMS methodology, began in the Bush administration under FMCSA Administrator Annette Sandberg. In other words, the program’s support or opposition does not seem to be partisan.

 

One issue that complicates things, though, is the use of SMS by trial lawyers in crash litigation. Even with the prohibition against publishing alerts and percentiles, FMCSA has taken great pains to ensure that as much information remains as possible. Would this change under a Trump administration given that unlike Democrats, Republicans are no friends of trial lawyers?

 

A related issue is the proposed rule on carrier safety fitness determinations. The SFD rulemaking does not appear to be especially partisan, so the change in administration might have little to no effect. However, carriers of all sizes have expressed serious concerns with the plan, and it is possible that Congress will block a rule as part of a funding deal next month. Such a provision was in the House version of the DOT appropriations bill, which stalled last summer before it could be considered by the full House.

 

Another consideration is a shift in opinions about SMS since FMCSA launched it in late 2010. Despite immediate legal action by some small carrier interests, initially, ATA and others supported or at least did not oppose CSA/SMS. Over time, however, most of the trucking industry has come to accept serious flaws in SMS methodology.

 

Bottom line: Don’t FMCSA to express stronger support for SMS and the proposed SFD rule under the Trump administration than the Obama FMCSA has. Given the political winds, it’s possible that FMCSA would back away from SMS somewhat, but it’s hardly a sure thing.

 

 

Avery Vise is president of TransComply and a longtime analyst and editor who has covered regulation and legislation in the trucking industry for nearly 20 years.

 

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