By David Cullen, Truckinginfo.com, December 29, 2016
Donald Trump has yet to be sworn into office as the 45th President of the United States, so it’s still far too soon to confidently predict how his stated goal of reducing the federal regulation of American business will be met in 2017.
Trump has already pledged to issue a temporary moratorium on new agency regulations that are “not compelled by Congress or public safety.” He has also stated that all department heads will “submit a list of every wasteful and unnecessary regulation which kills jobs, and which does not improve public safety, and eliminate them.” So, he is not clearly not expecting Congress to roll over on its authority to mandate rulemakings. What’s more, Trump’s policy statement does not define what constitutes “public safety,” which could well include rules aimed at improving highway safety.
Even if a presidential moratorium is put in place, major lobbies, such as the American Trucking Associations, will keep pushing their respective agendas on Capitol Hill. Any new safety-related rules sought by the trucking industry, such as hair-testing for driver drug use, legislated into law as Congressional mandates will have to be enacted by the Trump Administration.
The other main avenue for regulatory rollback is the rarely used Congressional Review Act. Although enacted in 1996, it has been leveraged but once. In March, 2001, CRA was used to overturn an OSHA ergonomic rule issued the year before in the last months of the Clinton Administration. CRA is an oversight tool, but no magic wand.
CRA is of limited use because it has a critical time clock built into it. Under CRA, a resolution can be used to overturn an executive rule only if the rule was enacted within 60 “legislative days,” which in this case covers only rules that were enacted by a federal agency going back to the end of May, 2016.
Here then, in no particular order, are summaries of the status of seven trucking-critical rules that may come into effective or change this year:
1 – Hours of Service
President Obama signed a bill in mid-December that contains language to permanently fix a glitch in previous legislation that threatened use of a 34-hour restart as part of the hours-of-service rule. The Continuing Resolution was passed by Congress to avert a year-end government shutdown.
The provision in the CR requires DOT to follow the “existing 34-hour restart Hours of Service rule for truck drivers to ensure continuity in federal rest regulations, should the report on the rule (mandated in prior Acts) not meet the criteria set by Congress.”
A policy rider attached to an earlier bill had been so poorly written it inadvertently added requirements to a mandated Department of Transportation study (still under way) on the effectiveness of the restart provisions. As a result, language was cut on which HOS rule would apply if the goals to be weighed by the study were not met.
If the study was to find that some restrictions on the restart imposed by DOT in 2013 do not provide specific health and safety benefits to drivers, the entire restart– not just the restrictions- could be eliminated. Those restrictions were suspended while DOT performs the study. So, the CR provision simply reinstated the pre-July 2013 restart.
2 – Electronic Logging Devices
FMCSA announced a final rule earlier this month that mandates the use of electronic logging devices for all trucks of model-year 2000 or newer used in interstate commerce. Carriers and drivers must transition to ELDs by December 17, 2017. However, those carriers and drivers using automatic onboard recording devices prior to December 18, 2017, may continue using AOBRDs through December 16, 2019. Suppliers of ELDs must conform to technical specifications, certify their ELDs, and register them with FMCSA.
Given that the ELD rule was mandated under a GOP House majority (in 2012), it is highly improbable the new Congress will move to roll it back. It’s just as unlikely that the latest legal challenge to the rule brought by the Owner-Operator Independent Drivers Association will succeed. In October, a three-judge panel ruled against OOIDA in its lawsuit against FMCSA, which claimed the rule violation truck drivers’ Fourth Amendment rights of privacy. OOIDDA’s latest petition calls for a full court to hear the case.
3 – GHG Phase 2
The Phase 2 greenhouse gas/ fuel efficiency sets CO2 limits for Model Year 2021 to 2027 trucks and tractors and Model Year 2018 to 2027 trailers as entire vehicles. The rule also sets separate engine fuel-efficiency standards for each category of commercial vehicle and, for the first time, also regulate trailers.
Taken as a whole, the rule requires engine manufacturers to reduce CO2 emissions by 4%-5% from 2017 through 2027 and to attain fuel efficiency improvements of 16% or better for vocational and heavy-duty vehicles.
Because the rule was initiated by federal agencies, the incoming Congress could opt to roll it back or slow down its implementation.
4 – Meal/Rest Break Exemptions
In 2017, trucking lobbyists will again seek a legislative provision that would prevent individual states from enacting their own meal and rest break rules for CDL drivers as well as to prohibit states from requiring that those drivers be paid certain types of added compensation, such as detention pay. That effort failed on Capitol Hill no less than three times in 2016.
Proponents of the reform measure have been pushing hard for Congress to more directly address state preemption of federal driver rules ever since a Supreme Court ruling in May 2015 upheld a California statute requiring a paid 10-minute rest break every four hours and a paid 30-minute meal period every five hours for truck drivers.
5 – Sanitary Food Transportation
A final rule issued by the Food and Drug Administration will require motor carriers that haul human and animal food to use certain sanitary practices. The rule will take effect on June 6 for carriers with revenues over $27.5 million and private fleets with more than 500. Smaller carriers will have to be compliant a year later.
The rule aims to prevent practices that create food safety risks, such as failure to properly refrigerate food and inadequate cleaning of vehicles between loads. It will require carriers to constantly monitor temperatures and humidity levels inside reefer and dry trailers and vans when they haul certain perishable food for human or animal consumption.
While FDA will be the primary enforcer, carriers could see enforcement by state DOT inspectors once they become more familiar with the requirements.
6 – Compliance Safety Accountability
In the fall, FMCSA announced a set of proposed changes to CSA. These would increase the minimum number of crashes needed for determining whether a carrier receives a score in the Crash Indicator BASIC from two to three and assigning BASIC percentile ratings only to carriers that have had an inspection with a violation in the past year vs. within the current 24-month period.
In addition, FMCSA’s Safety Measurement System could come under fire by the Trump Administration due to concern over the use of SMS by trial lawyers. That concern fits under the tort reform posture favored by many GOP lawmakers— by contrast, Democrats on Capitol Hill tend to favor the right of accident victims to sue.
7- Speed Limiters
After a decade-long push by trucking and safety advocates, back in August NHTSA and FMCSA jointly proposed a rule that would require that heavy-duty vehicles be equipped with speed-limiting devices.
The rule would require each vehicle, as manufactured and sold, to have its device set to a speed not greater than a specified speed and to be equipped with means of reading the vehicle’s current speed setting and the two previous speed settings through its onboard diagnostic connection. And carriers would be required to maintain the speed-limiting device for the service life of the vehicle.
But no speed limit has been proposed yet for the proposed limiters. DOT has only proposed discussing “the benefits of setting the maximum speed at 60, 65, and 68 miles per hour” and that it “will consider other speeds based on public input.”
Final comments on the proposal, after a 30-day extension because of high interest, were due on Dec. 7. At that point, more than 5,400 comments had already been filed. Given that, it’s unlikely this rule will move forward very quickly and if it is ever finalized, it will be with the speed-differential issue addressed.
Time and, above all, politics will tell what happens to each of these rules– and whatever new ones may pop up– as 2017 plays out.
By David Cullen, Truckinginfo.com, December 29, 2016