2019: The road ahead

December 2018/January 2019

Land Line Staff

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Here are five issues drivers should keep their eyes on as we enter 2019.

The past year was an eventful one in the trucking industry.

April marked the start of full enforcement for the electronic logging mandate, and OOIDA led the charge toward reforming the hours-of-service regulations.

Rather than focusing on the past, however, Land Line’s eyes are locked on the road ahead. As 2018 comes to a close, we look at the five issues that could affect truck drivers the most in the year ahead.

1. Hours of service

From the outside looking in, reforming hours-of-service regulations feels like a game of hurry up and wait. But, again, that’s from the outside.

Inside the headquarters of the Federal Motor Carrier Safety Administration, it looks very different.

“For now, the process is as tedious as it seems,” said Joe DeLorenzo, director of enforcement and compliance for FMCSA. “We’re going through all the comments that we have received. We’re looking at the data we got.”

The comment period on the advance notice of proposed rulemaking generated more than 5,200 comments. That is one of the largest comment periods in recent history for the agency. The contentious electronic logging mandate only received 2,200-plus comments, for perspective.

“We’re going to keep working as quickly as we can,” DeLorenzo said.

At this stage of the game, the agency is sifting through all of the information provided during the comment period to decide if there is justification to proceed to the next step in the regulatory process.

“The first step in this process is to decide if we have enough information and data to go forward with a rule. And if so, then what would that rule look like,” DeLorenzo said.

That information analysis period will set the stage, if there is one for the next steps.

“Once we get further along and decisions are made as to how to go forward, then that timeline will become more apparent and public for everybody,” he said. “The next step in the process, with the ANPRM, we asked for general thoughts and data. What people will see next, if we decide to go forward with something, is an actual proposal to comment on.”

What that step will look like is a notice of proposed rulemaking. It will lay out specific changes to the rule as opposed to the general questions presented in an advance notice of proposed rulemaking. Normally, that step could be years out. However, Administrator Ray Martinez has put his foot on the gas in this reform effort and wants to move as quickly as possible.

DeLorenzo did not commit the agency to proposing a rule because it’s simply too early in the data evaluation phase, as of press time, to even hint if there will be one. However, he emphasized that if it happens truckers need to turn out en masse once again and comment.

“To some extent when you get to the notice of proposed rulemaking stage – well, it’s always important to comment – but then you’re really talking about how is this going to affect me as a driver or me as a company. Commenting again at that point in time when we have a specific proposal to look at is also super important,” DeLorenzo said.

But for now, the public will have to be patient and wait and see.

“At this point it is a very unglamorous task of just going through those comments and trying to make some decisions about how to go forward,” DeLorenzo said.

2. Parking

Parking has been an issue for truckers for years. Will the situation improve in 2019? Probably not.

There are several factors that lead to this dismal conclusion. To start, the NIMBY crowd is not going anywhere anytime soon. In 2018, several proposed truck stops were shot down by local residents who were afraid of noise pollution, air pollution and crime. This is not a new phenomenon.

In 2015’s Jason’s Law Survey Results, the U.S. Department of Transportation identified the NIMBY problem. In the “Summary of Workshop Results,” one bullet point states: “Address negative perception among the public and policy makers regarding activities at rest stops through measures and data.” More than three years later, we’re not seeing much of a difference in public perception.

Speaking of the Jason’s Law Survey, we do have one thing to look forward to in 2019 when it comes to truck parking: another survey. That’s right. The U.S. DOT will begin round two of the Jason’s Law Survey. Apparently, the first round did not make it clear enough.

In fact, a second survey is indicative of where the federal government is on truck parking: Still at Point A. Despite a wealth of knowledge gleaned from the first survey and potential solutions, very little has changed. Instead, we’re getting another survey.

More than likely, any steps forward to better parking will come from state and local governments. As mentioned above, local governments have to overcome negative public perception. As far as state governments are concerned, there has been a trend the past few years: intelligent transportation systems. Essentially, technology that will let you know how many public spots are available up ahead. Unfortunately, this does two things:

1) Tells truckers what they already know (few spaces available), because

2) It does not add a single space.

For the next 12 months, pay attention to local and state government action while the feds are busy at work with yet another survey.

3. Tolls

One of Benjamin Franklin’s most famous quotes is “But in this world nothing can be said to be certain, except death and taxes.” Since tolls are essentially a tax, drivers can be certain they will be seeing plenty of them

in 2019.

Franklin also signed the U.S. Constitution, a document that secures our democracy and freedom, including our right to sue the government for violating the document. That right will be the theme for truck tolls in 2019.

Development on the tolls front start immediately in the new year in Pennsylvania, as it has every year for the past 11 years. Effective, Jan. 6, Pennsylvania Turnpike tolls will increase by 6 percent. The most common toll for a Class 5 tractor-trailer will increase from $3.45 to $3.66 for E-ZPass customers and from $15.35 to $16.30 for cash customers.

However, there is something to keep your eye on in 2019 when it comes to Pennsylvania tolls. In March, the Owner-Operator Independent Drivers Association filed a lawsuit against the Pennsylvania Turnpike Commission. OOIDA is challenging the constitutionality of the imposition of excessive tolls by the Pennsylvania Turnpike Commission. OOIDA claims that tolls, or “user fees,” become an undue burden on commerce once the amount is greater than a fair approximation of the value of the use of the toll road.

Although this litigation may last many years, sparks could potentially fly in one direction or the other in 2019. Land Line will keep the industry updated on significant actions in the case.

Truckers may want to watch Rhode Island as well. The Ocean State officially launched truck-only tolls in June. Tolls are being collected, but the fight is not over. A lawsuit questioning the constitutionality of the tolls is pending. A win in Rhode Island can mean a win in – Indiana.

Yes, Indiana is another state with a new truck-only toll that went into effect in October. This toll was installed just a few weeks after being introduced to the public. As of press time, there is no lawsuit against Indiana’s toll authority. However, if Pennsylvania and Rhode Island are any indication, that may be something to look for in the coming months.

Also, Virginia’s I-81 Corridor Improvement Plan calls for looking into a truck-only toll. Several public meetings have been conducted, with many speaking in opposition to the restricting toll. As of early November, the state DOT was considering adding a toll on “autos” as well. Basically, anything can happen. Whatever happens will likely be decided on this year, so this is another potential truck-only toll to pay attention to.

4. Technology

Automated vehicles.

It’s a term that truckers are tired of hearing. Unfortunately, it’s a term truckers need to get used to, because it’s here to stay. Even worse, its presence will only get stronger in the coming years.

The big news out of 2018 regarding technology in the trucking industry was the U.S. Department of Transportation Automated Vehicles 3.0 guidance, which provided broad outline to industries and agencies regarding the testing and integration of automated driving systems.

In the first two versions, heavy trucks were purposely omitted. In the latest version released in October, trucks were included for the first time. The Federal Motor Carrier Safety Administration is directly involved in the process.

FMCSA has already been collecting comments aimed at identifying regulatory barriers to the implementation of automated driving systems on commercial motor vehicles. FMCSA Administrator Ray Martinez has expressed interest in continuing public outreach with more public demonstrations, so look out for those.

Also contained in AV 3.0 is a U.S. DOT plan to launch a joint initiative to evaluate workforce implications of AV technology. Something to keep in mind as the “job displacement” conversation continues.

For the most part, there will continue to be more testing and demonstrations of automated vehicles in the foreseeable future, including trucks. The keyword here is “testing.” Truckers should not worry about implementation of automated trucks in 2019. Not only is the technology not quite there, but the federal regulations have yet to

be tweaked.

Be prepared for a lot more testing sites and announcements from manufacturers and tech companies in addition to more advanced notice of proposed rulemakings by FMCSA seeking comments on the subject.

Loosely related to technology is underride guards. Currently, only rear underride guards are required. However, the House and Senate each have pending bills that will require rear and side underride guards. Furthermore, the bills will task the U.S. DOT to complete research on the ability of front underride guards to prevent trucks from overriding a passenger vehicle.

Both of the bills, HR4622 and S2219, have been sitting in limbo since December 2017, but that does not mean the topic or the bills are completely dead.

5. Compensation

If there’s any issue in the trucking industry that is a constant year after year, it’s driver compensation. However, there are several recent developments in the industry that place the spotlight on wages even more entering 2019.

New leadership on the House Transportation and Infrastructure Committee, a surge in lawsuits regarding truck driver compensation, a proposal to allow 18-year-olds to operate in interstate commerce, and the development of automated vehicles could all play major roles in shaping how truck drivers are compensated in the coming years.

When the Democrats took control of the House in the Nov. 6 midterm election, it set the stage for Rep. Peter DeFazio, D-Ore., to become the chairman of the House Committee on Transportation and Infrastructure. The change in leadership is expected to lead to a renewed interest in detention time and other driver compensation issues.

“This could be a big step forward in addressing driver compensation,” said Nile Elam, OOIDA’s director of legislative affairs. “We expect to see this committee look at detention time and the Fair Labor Standards Act.

“Without predicting the future, I think there are a lot of OOIDA-related topics that we’re going to be able to look at going forward.”

In addition to potential legislation aimed at boosting driver pay and valuing a driver’s time, there have been numerous lawsuits alleging that trucking companies have failed to pay drivers a legal wage.

This past October, a federal judge in Arkansas made a significant ruling regarding driver compensation. As part of a class action lawsuit against Arkansas-based PAM Transport, the judge ruled that under the Fair Labor Standards Act truck drivers are entitled to be paid for up to 16 hours during a 24-hour work day.

While news of the ruling garnered headlines nationwide, Justin Swidler, an attorney for the plaintiffs, said the decision wasn’t as groundbreaking as it may appear. Even though the ruling set precedent that truck drivers should be paid for hours when the wheels aren’t turning, it only requires that a driver’s compensation for the week average out to at least $7.25 per hour, which is the federal minimum wage.

“It doesn’t drastically change what drivers are going to get paid,” Swidler said. “Companies can still pay by the mile, but they must make sure that the mileage pay is enough to average out to $7.25 per hour. All this is doing is making it to where someone who is driving an 80,000-pound vehicle is getting paid as much as someone who works at McDonald’s. That’s what we’re talking about here. To be clear, we think drivers should make a lot more than $7.25 per hour, but this is all the law requires. It’s hardly a radical concept.”

There are also several issues that could potentially have a negative effect on driver pay.

Claiming there is a driver shortage, American Trucking Associations is making a push for 18-year-olds to be allowed to drive in interstate commerce. Many groups, including OOIDA, oppose the proposal based on safety issues, but the Association points out that it could also hurt driver compensation as fleets could likely pay the young drivers less and then have a new crop of high school graduates to attract every year.

Meanwhile, the continued development of automated trucks could drastically change the way drivers are paid 10 or 20 years from now.

Steve Viscelli, a professor of sociology at the University of Pennsylvania, warns that automation could eventually steal nearly 300,000 of the top-paying trucking jobs.

The next couple of years should be critical in deciding the future of driver pay. OOIDA will continue to fight against the idea that there is a driver shortage and point to a turnover rate of nearly 100 percent for the large fleets. The Association also will continue to fight for legislation that values all of a driver’s time.

“Demands and responsibilities for drivers have increased, but pay has not kept up by any stretch of the imagination,” OOIDA President Todd Spencer said. “And on top of that, by only paying truckers for miles driven, it encourages customers to waste drivers’ time at loading docks. This inefficiency is nothing new in trucking, but it should not continue to pass as a business model. It’s unacceptable that carriers pay drivers the equivalent of less than minimum wage and then complain about a so-called driver shortage.” LL