This is a hammerhead.
This is a deck. It is a little bit longer in terms of words, but it is still very important so you should read it.
With a shift in party control of the House of Representatives, we rank the top pet issues of lawmakers as to what will likely see action and maybe traction in the 116th Congress and what the agencies are still considering.
Two years ago, an unprecedented event occurred on the regulatory front for truckers. Standing by an election promise, President Donald Trump signed the regulatory reform executive order that all but shut down the pipeline of regulations flooding the trucking industry.
It was crickets for the longest time. And while the regulatory agenda of the Federal Motor Carrier Safety Administration has remained at a trickle compared to the fire hose of new and retooled regulations of previous administrations, there are still plenty of issues to occupy a trucker’s attention.
Hours of service
Obviously, it’s the hottest of hot issues out there for truckers right now. Fortunately, it’s also “job one” for FMCSA now. At the time of this writing, the initial comment period on an advance notice of proposed rulemaking has closed. The agency is, in the words of Joe DeLorenzo, director of enforcement and compliance for FMCSA, going through the “tedious” task of reviewing the more than 5,000 comments filed.
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.
You don’t have to be able to read the tea leaves to know that FMCSA is fully prepared to do “something” with hours of service. The cancellation of the split sleeper berth pilot program is one of the many encouraging signs. But, more than using spiritual predictions, FMCSA Administrator Ray Martinez talks about HOS reform way too much for someone not fully prepared to make changes.
Martinez also has continued to press for truckers to stay engaged in the regulatory process.
“Just as safety on our highways and roads is a responsibility everyone equally shares and must participate in, so too is the regulatory process,” Martinez told Land Line. “I am determined to continue to engage and listen to everyone. I am determined to change the perception by too many individuals that their experience and viewpoints are not heard and not appreciated.
“Most of all, I am determined to broaden the involvement of all agency stakeholders – especially drivers – in everything we do at FMCSA. And the most direct way drivers can do that is by sharing their experience and their unique insights in comments to proposals for rulemaking.”
(Read more on Page 44 in OOIDA’s 2019 Grassroots Guide on how to be involved.)
But for now on hours of service, from the outside looking in, we’re on the “wait” part of hurry up and wait. For ranking purposes, this is a white-fire-hot issue that just requires a bit of patience right now.
A yearslong battle has waged over mandatory use of speed limiters. The American Trucking Associations started the battle back in 2006 when it petitioned the National Highway Traffic Safety Administration and FMCSA to issue a rule. The two-pronged approach ostensibly pressed NHTSA to require the devices on all new trucks and for FMCSA to prevent or restrict nonequipped trucks from operating in interstate commerce.
The proposal moved about as fast as speed-limited trucks. It took more than nine years before the agencies sent anything to the White House for review. Those reviews typically take 60 to 90 days. The speed-limiter notice of proposed rulemaking remained under review for more than a year – not really communicating confidence in the rule.
Eventually in September 2016, the notice was put out for comment. The 60-day comment period ended in November 2016, and there has been silence ever since. It dropped low enough on the administration’s priority list that it got moved to a list of long-term actions, effectively taking it off the stove and not even placing it on the back burner.
That’s not to say that the ATA and various safety groups won’t be rattling the cages of the new Democratic leadership in the House to try and get some congressional action toward a mandate. It’s a top issue that may return from the dead to be battled over again in this Congress.
We’ll say this is a sleep-with-one-eye-open issue. You can’t trust this one will ever really go away. It always has potential to heat up quickly.
Broker bonds and enforcement
From the “good news” category, FMCSA is continuing to look at unscrupulous practices in the freight brokerage industry. While there certainly are brokers who conduct themselves in a fiscally responsible manner, the setup of the industry itself allows for a lot of unlicensed, uninsured so-called brokers to insert themselves in the freight booking business. Many times that leaves truckers left unpaid.
A previous congressional action in MAP-21 required that a security bond of $75,000 be retained by brokers. FMCSA is now considering an approach where it would “immediately suspend” the authority of a broker or freight forwarder when it receives notice from the surety or trust fund provider that a payout has occurred to where the financial security is less than $75,000, as well as when a surety or trust fund provider gives reasonable notice of a claim to the broker, and the broker does not respond.
This one is in the warming-up, stay-tuned category.
Minimum insurance requirements
The move to increase the minimum insurance required by motor carriers is fueled – wait for it – by the trial attorneys and their lobbyists. Clearly energized by earth shaking and ground breaking multimillion dollar jury awards, going after truckers has long been a business model for ambulance-chasing attorneys.
While the required minimum for routine freight is $750,000, many motor carriers carry insurance policies higher than that. One report used to “justify” the increase stated only 74 crashes a year exceed the minimum – without accounting for fault. Industry stats show that between 75 percent and 85 percent of all crashes are not the fault of truckers. The cause could be the other driver, an animal, weather and so forth. Couple that with the fact that the average claim on truck-involved incidents is $18,000, any move to increase the required minimum is purely profit driven.
FMCSA pushed out an advance notice of proposed rulemaking in 2014. That’s where it pretty much stalled. In fact, the agency withdrew the proposal in 2017. It is nowhere to be found on FMCSA’s official radar. It has been mentioned by Administrator Martinez a couple of times, which hints it is not entirely dead either.
Further pause for concern is that there are lawmakers who – like Rep. Matt Cartwright, D-Pa., who introduced a bill in Congress years ago to raise the minimums to $4.2 million – are still in Congress.
This isn’t much of an issue right now. But, it is definitely one to watch for and worth making sure the spin machine doesn’t get control of the messaging here. Let’s just say it’s smoldering in the background.
This is a tricky one in some respects. Underride protections improved back in 2005, thanks to Canada. That’s when their heightened protection standards were increased. Because so many trucking companies engage in cross-border operations with Canada, many of the major trailer manufacturers opted to build to the Canadian standard and not complicate production. At a nominal cost difference of less than $100 per trailer, it simply made sense.
There is a group pushing for side and front underride guards in addition to an even stronger requirement on the rear underride bumper. They remain undeterred by issues like high centering and fault in such instances where those collisions would occur.
That relentlessness has continued to keep this topic on the radar, albeit unofficially. NHTSA does not have anything on its lists of upcoming rulemakings or listed on its near- or long-term regulatory agenda. That does not mean the issue is dead. It only takes one sympathetic lawmaker, who may not be completely informed on the topic, to introduce a bill.
This really should be a wet-match, nonstarter of an issue. But, again, like many others on the list it’s one to continue to watch, because it only takes a spark.
This & That
Of course, the buzzword right now is autonomous trucks. We’re just going to mark this on the “we’ll see” category and stay informed on the pitfalls drivers may face. However, a first cousin to this issue is driver-assist functions, also called crash avoidance systems. That’s one that just isn’t going away anytime soon or likely ever. We’ll leave this one simmering on the front burner, because it’s not at all unreasonable to see either an agency or a lawmaker to crank up the heat.
As part of the president’s regulatory reform initiative, we’re also seeing some movement by FMCSA to reduce paperwork burdens on trucking companies. For owner-ops, this could be a really good thing. How important is it to keep a driver file on the only driver of the fleet who is you? There’s not a lot of information on what the agency is planning, but some good stuff could be on the way in terms of reducing busy work.
Changes to CSA are also on the horizon. Not really going to venture much of a guess here, but to say there’s any confidence on real improvement would be an outright lie. LL