The Federal Motor Carrier Safety Administration (FMCSA) may have less on its regulatory plate in 2018, but the agency will still have its hands full. Gone are proposals for a truck speed limiter mandate and a rulemaking related to obstructive sleep apnea among truck drivers and rail workers.
Efforts to advance the Compliance, Safety, Accountability (CSA) program stalled last March when the FMCSA withdrew a proposed rule that would have been the initiative’s capstone (and first rulemaking), creating a new system to assign safety fitness ratings to trucking companies.
But the electronic logging device (ELD) mandate, arguably the biggest regulatory change to hit trucking since the introduction of the commercial driver’s license (CDL) in the 1980s, and the hours-of-service (HOS) regulations that ELDs are meant to help enforce, certainly will keep the agency busy.
The ELD mandate is the federal rule most likely to have a broad effect not just on truck drivers and trucking companies, but shippers, freight brokers, third-party logistics companies, and, at the far end of the supply chain, the consignee or shipper’s customer.
How to implement the ELD mandate will be the biggest challenge for President Donald Trump’s pick to lead the agency, Raymond P. Martinez, chairman and chief administrator of the New Jersey Motor Vehicle Commission and former New York motor vehicle commissioner.
“Each year, the safety landscape on our roadways becomes more and more complex and challenging,” Martinez said at an Oct. 31 US Senate Commerce, Science, and Transportation Committee hearing. “FMCSA needs to do its part to keep our highways as safe as possible.”
That includes collaborating with industry stakeholders and safety advocates, groups that often differ widely on the appropriate level of regulation. Martinez said he oversaw efforts to bring all stakeholders to the table in his current role in New Jersey and in New York.
At his confirmation hearing, Martinez stressed that his goal would be to “drive the number of crashes, injuries, and fatalities down to zero.” In an aside, he made it clear that crashes are not “accidents.” “Crashes are preventable, they have causes,” he said. “We have to find them.”
When Sen. Ted Cruz, R-Texas, questioned whether the FMCSA should delay the Dec. 18 ELD deadline, Martinez replied, “My understanding with regard to ELDs is that they are now legally required,” but “the goal is not to cripple commerce, the goal is to make our roadways safer.”
Martinez said he would be willing to meet with those who oppose the ELD rule to hear their concerns. “It would be my intention to first and foremost abide by the law, but also to have an open-door policy and work with all the impacted stakeholders,” he told the senators.
Martinez had not yet been confirmed by early December, but the agency he hopes to lead was already working to lessen the blow of the ELD mandate. Federal regulators and state law enforcement are delaying penalties for drivers caught without ELDs after the Dec. 18 effective date for the law.
In August, the Commercial Vehicle Safety Alliance (CVSA) said state inspectors would delay — until April 1 this year — placing truckers out of service for failure to have an ELD. Instead, inspectors will issue citations to drivers “operating vehicles without a compliant ELD,” it said.
The CVSA’s action alleviated fears that thousands of truckers could be placed out of service for not having ELDs in December, potentially stranding freight a week before Christmas. That holiday logistical nightmare likely would have sent spot truckload rates through the roof.
The FMCSA softened the enforcement blow further in November when it revealed those citations will not count against a trucking company’s CSA score. The agency broke that news during a Nov. 17 public hearing in Birmingham, Alabama.
On Nov. 20, the FMCSA promised to publish guidance on ELD enforcement and on how motor carriers can best use the short-haul logbook exemption for CDL drivers working within a 100-air-mile radius and non-CDL drivers operating within a 150-air-mile radius.
That exemption frees drivers from paper or electronic logging requirements as long as they stick to that air-mile radius, starting and ending their workday in the same location, and work less than 12 hours a day. That makes it an option for local drayage and pickup and delivery drivers.
The agency also announced a 90-day temporary waiver from the ELD requirement for transporters of agricultural commodities, and said it would issue guidance for agricultural haulers and on the “personal conveyance” provision, which covers personal use of trucks.
The FMCSA earlier agreed to some exemptions sought by UPS that will affect all motor carriers, making it easier for companies to use portable ELDs and to put ELDs in a “yard move” mode when shuttling tractors between trailers and freight docks on a motor carrier’s property.
In October, the FMCSA granted a Truck Renting and Leasing Association (TRALA) petition asking for a limited exemption to the ELD mandate for businesses that make incidental use of trucks. Drivers renting a truck for eight days or less will not have to use ELDs to record HOS.
Those changes, coupled with soft initial enforcement, make it likely that what could have been a disruptive start to the ELD era will be less painful, although it still could be messy as tens of thousands of smaller carriers rush to purchase and install ELDs and learn to use them.
Opponents of the ELD mandate were still pushing for a delay or more exemptions in early December, although the odds of avoiding the regulatory deadline were considered slim.
The Owner-Operator Independent Drivers Association (OOIDA), which took an unsuccessful challenge to the ELD mandate all the way to the US Supreme Court and has backed a bill calling for a delay, asked the FMCSA for a five-year exemption for carriers classified as small businesses.
OOIDA on Nov. 21 said it wants that five-year exemption for truckers classified as small businesses according to the Small Business Administration and with no attributable at-fault crashes, and who do not have an “unsatisfactory” motor carrier safety rating.
Another group, the Small Business in Transportation Coalition, on Nov. 20 asked the Department of Transportation to exempt companies with fewer than 50 drivers from the ELD mandate and to reconsider the rule, saying it violates rights to “commercial free speech.”
As UPS’s and TRALA’s exemption requests show, targeted attempts to tweak portions of the mandate may have more success than a battering ram approach. Recent FMCSA decisions show it is possible to obtain changes in the way the mandate is enforced on trucking.
It would not be surprising to see the agency, under new leadership, spend more time trying to avoid “crippling commerce” while ensuring electronic logging does eventually replace paper logbooks that Martinez, in his testimony, noted are “susceptible to fraudulent entries.”
As the use of electronic logging expands, the HOS regulations that govern how long truck drivers can drive and how much rest they take and when could be revisited. The ELDs could highlight the need for more flexible work hours across different sectors of trucking.
“HOS standards are poorly designed and do not allow truckers to operate in the safest and most responsible manner,” Monte Wiederhold, an owner-operator and president of BL Reever Transport, a seven-truck company, told the US House Small Business Committee on Nov. 29 in a hearing on trucking. “Today’s HOS requirements effectively penalize drivers for stopping to rest, addressing equipment issues, or even eating. I have skipped meals on the road to ensure I am able to reach my destination without jeopardizing compliance.
“Unlike other issues that often generate contention among large and small motor carriers, efforts to modernize HOS requirements would likely garner broad support, as the current standards burden businesses of all sizes,” he said.
Other recent statements support that. “As the industry comes into compliance, ATA [the American Trucking Associations] is looking beyond the deadline, and addressing long-standing issues with HOS rules,” Chris Spear, president and CEO of ATA, said in a taped message to the JOC Inland Distribution Conference in early November.
Spear pointed to issues with the split sleeper berth provision of the rules and the impact of extensive detention time. “Shippers will need to be more cognizant of drivers’ time,” he said. “Keeping them moving will be more important than ever to comply with the HOS rules.”
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