Federal forecast
In June, the U.S. Department of Transportation unveiled an agenda that includes dozens of rulemakings applicable to truckers.
Let Land Line guide you through some of the good and the bad, including the ones in your immediate path and those to expect later down the road.
Broker issues
The agenda includes a pair of rulemakings aimed at improving transactions with brokers in the trucking industry.
The first one will be a notice of proposed rulemaking regarding broker transparency.
The Federal Motor Carrier Safety Administration’s proposal, which was scheduled to be released in June but still hadn’t been released as of press time in July, was prompted by a May 2020 petition from the Owner-Operator Independent Drivers Association that asked the agency to begin the rulemaking process for more transparency in trucking transactions with brokers.
OOIDA’s petition asked the agency:
- To require brokers to automatically provide an electronic copy of each transaction record within 48 hours after the contractual service has been completed.
- To explicitly prohibit brokers from including any provision that requires a carrier to waive their rights to access the transaction records.
Regulation CFR 371.3 already requires that brokers keep records of each transaction with a carrier and that each party to the transaction has a right to view these records. OOIDA asked the agency to begin enforcing that regulation and to eliminate any loopholes that allowed brokers to sidestep the rule. The Small Business in Transportation Coalition also petitioned the agency.
OOIDA Executive Vice President Lewie Pugh relayed some of the broker transparency issues that truck drivers encounter routinely during the Mid-America Trucking Show in March.
“I see (problems with broker transparency) in our office every single week,” Pugh said. “One big broker, in particular, is guilty of this but from others as well. Our guys are getting chargebacks after they go to a customer and get a clean bill of lading and leave. A week or two later, they get a bill saying there’s a claim, and they always charge an even number like $500 or $1,000 … Because they don’t have broker transparency, they don’t even have to tell what the charge is for The sooner we can take care of these things, the better it will be for everybody.”
As of press time, it remained unclear exactly what FMCSA would propose, but the regulatory agenda provides a synopsis.
“This rulemaking would amend FMCSA property carrier broker rules in response to petitions for rulemaking from the OOIDA and SBTC,” the agency wrote in the agenda.
FMCSA also plans to issue a final rule regarding broker and freight forwarder financial responsibility early next year.
In January, the Federal Motor Carrier Safety Administration published a notice of proposed rulemaking about modifications to broker and freight forwarder financial responsibility requirements. Prompted by 2012’s Moving Ahead for Progress in the 21st Century Act, FMCSA previously implemented a requirement to increase the financial security amount for brokers to $75,000.
FMCSA proposed regulations involving assets readily available, immediate suspension of broker/freight forwarder operating authority, surety or trust responsibility in cases of insolvency, enforcement authority and entities eligible to provide trust funds.
OOIDA said an update to the broker security regulations is welcome but that FMCSA’s proposal doesn’t go far enough.
“The final rule must be strengthened to ensure that FMCSA, along with industry stakeholders, can readily identify when available financial security falls below $75,000,” OOIDA wrote in formal comments filed in March. “The notice of proposed rulemaking falls short of providing the necessary transparency and accountability from brokers and freight forwarders to absolutely know if and when there has been a drawdown on the bond below $75,000.”
Without these changes, OOIDA said the current issues that allow a bond to be in effect until a claim is actually paid on the bond will persist.
According to the regulatory agenda, FMCSA is scheduled to publish a final rule on the matter in February.
Speed limiters
A highly anticipated notice of supplemental proposed rulemaking involves a proposal to require speed-limiting devices on most commercial motor vehicles.
According to the regulatory agenda, FMCSA was set to publish the notice in June. However, FMCSA Administrator Robin Hutcheson told Land Line Now’s Scott Thompson in May that the proposal won’t be released until late summer or early fall.
While the topic has been in the spotlight for a while, interest in FMCSA’s forthcoming proposal is high as the agency is expected to announce the proposed top speed for heavy trucks.
Last year, FMCSA issued an advance notice of supplemental proposed rulemaking that considers requiring commercial motor vehicles with a gross vehicle weight of 26,001 pounds or more to be equipped with speed-limiting devices. The advance notice did not include a top speed, but 60, 65 and 68 mph have been floated in previous proposals.
The notice garnered about 15,600 comments, with the majority coming from truck drivers opposed to a mandate. Hutcheson said the overwhelming amount of comments prompted the delay in the release of FMCSA’s proposal.
OOIDA strongly opposes any attempts to mandate speed limiters, pointing to concerns about dangerous speed differentials the requirement could cause. Safety groups have advocated for a top speed of 60 mph. Considering that some states have speed limits as fast as 85 mph, opponents contend that the speed differential would lead to increased interactions and road rage among frustrated drivers of passenger vehicles.
“Small-business truck drivers strongly object to any speed limiter mandate for several reasons based on their own experiences,” OOIDA wrote in its 2022 comments. “Speed limiters take control of the truck away from drivers, denying them the ability to avoid accidents and unsafe road/traffic conditions. Speed limiters increase driver stress and make drivers more fatigued, because they must operate longer hours in order to complete the work expected of them, and they must also operate at the maximum allowed speed for more of those hours.”
Although FMCSA’s proposal is expected this year, it could still be a long time before the agency would be able to move forward with a final rule. If the agency receives thousands more comments in this next stage of rulemaking, it could easily be late 2024 before a final rule is issued.
HR3039, a bill introduced by Rep. Josh Brecheen, R-Okla., that would prohibit FMCSA from moving forward with any rule or regulation to mandate speed limiters, creates another hurdle for the agency.
Electronic IDs
Before the year is over, the FMCSA plans to publish a proposal to require electronic IDs on commercial motor vehicles.
The agency is scheduled to release a notice of proposed rulemaking in November.
“FMCSA requests public comment on potential amendments to the Federal Motor Carrier Safety Regulations to require every commercial motor vehicle operating in interstate commerce to be equipped with an electronic device capable of communicating a unique identification number when queried by a roadside system,” the agency wrote in a summary of the rulemaking.
In 2022, FMCSA opened the rulemaking process by issuing an advance notice of proposed rulemaking that asked the public to comment on the possibility of the requirement. The regulatory agenda indicates that the agency plans to move forward with a formal proposal aimed at “enabling enforcement agencies to focus their efforts at high-risk carriers and drivers.”
The advance notice of proposed rulemaking regarding electronic IDs on trucks garnered more than 2,000 comments. Many of the comments came from individual truck drivers opposed to the requirement, calling it another example of “government overreach.”
OOIDA formally opposed efforts to require electronic IDs in its November 2022 comments, calling the proposal an “unwarranted intrusion” on truckers.
“OOIDA and our members oppose this proposal in the strongest possible terms,” the Association wrote. “Our members have been extremely clear that this concept is an unwarranted intrusion into their privacy, as well as an overly costly and burdensome requirement that does nothing to improve their efficiency or safety.”
ELD revisions
Also in November, FMCSA plans to publish a notice of proposed rulemaking that would make updates to the current regulations requiring electronic logging devices.
Last year, the agency published an advance notice of proposed rulemaking requesting feedback from truckers about how it could improve the ELD mandate. FMCSA said it was considering changes relating to the applicability of pre-2000 engines, ELD malfunctions, removing an ELD from the list of certified devices, technical specifications and how the devices are certified.
FMCSA received about 1,300 comments to the advance notice. Many of the comments centered around the agency considering no longer exempting pre-2000 engines from the ELD mandate.
“Changing the rules for pre-2000 engine trucks is not necessary,” truck driver Joe McClellan wrote in comments to the agency. “Look at your safety data in regards of trucks involved in crashes. These trucks are not generally involved. Drivers who own these trucks are responsible and know how to drive in that manner. Not everyone needs the same oversight as others.”
OOIDA told FMCSA that the ELD mandate should have never been implemented in the first place.
“Our members have vigorously opposed the ELD mandate since its inception,” OOIDA wrote in comments signed by President Todd Spencer. “There was never sufficient research indicating the mandate would improve highway safety, and the agency still lacks data demonstrating any positive safety results since its full implementation.”
Although FMCSA’s advance notice provided paths the agency was considering, we will not know exactly what will be proposed until a notice is published in the Federal Register. And that is not expected until late 2023 or even into 2024.
Automated driving systems
Back in 2019, the FMCSA asked for feedback about what it could do to ensure the safe integration of automated driving systems on commercial motor vehicles. Then earlier this year, the agency issued a supplemental advance notice of proposed rulemaking for additional comments regarding possible regulations involving notification requirements, oversight for remote assistants and vehicle inspection and maintenance.
Now that all of those comments are in, the agency is targeting September for the release of its notice of proposed rulemaking.
The agency will propose “to amend certain Federal Motor Carrier Safety Regulations to ensure the safe introduction of automated driving systems-equipped commercial motor vehicles on the nation’s roadways.”
Although the details of the proposal are still unknown, the notice is expected to include possible changes to the commercial motor vehicle operations, inspection, repair and maintenance regulations as part of an effort to “prioritize safety and security, promote innovation, foster a consistent regulatory approach to ADS-equipped commercial motor vehicles, and recognize the difference between human operators and ADS.”
In its March 2023 comments, OOIDA cautioned the agency.
“Despite the various claims that autonomous vehicles will lead to zero deaths, there continue to be real-world situations in which automation has devastatingly failed,” OOIDA wrote. “While autonomous vehicles might improve safety under certain conditions, they create new risks with dangerous outcomes.
“Beyond ensuring that the (regulations) provide appropriate standards for the safe operation of autonomous vehicles, FMCSA must consider unforeseen concerns and practices that might offset the potential safety, mobility and sustainability benefits from the technology.”
New entrants
Renewing a rulemaking that started back in 2009, the FMCSA plans in August to issue a supplemental advance notice of proposed rulemaking on the new entrant safety assurance process.
“This rulemaking would consider methods for ensuring a new applicant carrier is knowledgeable about the applicable safety requirements before being granted new entrant authority,” FMCSA wrote in the rule’s summary. “The agency is considering whether to implement a proficiency examination as part of its revised new entrant safety assurance process as well as other alternatives. This rulemaking responds to issues raised in a petition from Advocates for Highway and Auto Safety regarding new entrant applicant knowledge.”
As it is projected to be issued as an advance notice, no formal proposal is expected this year. FMCSA will use the more up-to-date feedback to decide whether it wants to move forward with a notice of proposed rulemaking. LL