by: William B. Cassidy and Reynolds Hutchins
Trucking in the U.S. was deregulated, in economic terms, in the 1980s and 1990s. When it comes to safety, however, trucking is more regulated now than it has ever been. Truck safety rules are reshaping how trucking companies operate and serve shippers, and carriers, drivers and shippers alike will face more regulation soon. From 2009 through 2014, former Federal Motor Carrier Safety Administrator Anne S. Ferro rewrote her agency’s regulatory playbook, focusing FMCSA on three key initiatives: implementing the Compliance, Safety, Accountability, or CSA, program, changing driver hours-of-service rules, and replacing paper driver log books with electronic logging devices. The CSA and revised HOS rules are still with us, although some HOS rules have been suspended, and a final rule mandating ELDs is expected within months. Throw in additional rule-makings from FMCSA and other agencies and the number of pieces in the regulatory puzzle multiply fast. Here’s a look at some of the more significant rule-makings underway or on the drawing board that have the potential to change the trucking landscape in the months and years to come.
1. Compliance, Safety, Accountability program (FMCSA)
In terms of its scope and potential impact, the CSA is probably the most important truck safety initiative since the introduction of the Commercial Drivers License in 1986. The program is widely credited with tightening the driver pool by discouraging carriers from hiring drivers with poor safety records. Surprisingly, the CSA program has yet to include an actual rule-making, though one to craft a new safety fitness determination or “safety rating” tied to CSA data is expected. The CSA is designed to help the Federal Motor Carrier Safety Administration and state law enforcement proactively enforce regulations in a closer to real-time basis, using data collected by states and transmitted to federal databases. But trade groups have criticized the CSA since its rollout five years ago, claiming its scores do not reflect true crash risks or carrier safety. What’s worse, in some eyes, is that the CSA BASIC “scores” are being shared with the public and misused by shippers and attorneys. The FMCSA does not call its Behavior Analysis Safety Improvement Category readings scores, but refers to them as “percentiles” and warns they are not official safety ratings. Nevertheless, the BASICs are widely viewed and used as scores. Trucking companies were especially incensed earlier this year after those percentiles were included in a new FMCSA smartphone app: QCMobile. Today, the FMCSA is under renewed pressure to overhaul its key safety initiative after a 2014 study only recently made public found CSA safety metrics don’t always align with the real risk of accidents
2. Hours-of-service (FMCSA)
The trucking industry and its shipper allies fought a long battle over Ferro-era changes to the truck driver house-of-service rules. Last December, Congress suspended changes to the 34-hour restart provision introduced by the FMCSA in July 2013. That rule required drivers to include two 1 a.m. to 5 a.m. off-duty periods in a 34-hour restart, which in practice made it difficult to use the restart to begin a new workweek after 34 hours’ rest. The rule also limited use of the restart to once within seven days. Both requirements were suspended, but Congress may have to act soon to keep that suspension on the books. It will expire with the expiration of the 2015 spending bill Sept. 30. The American Trucking Associations has argued the 2013 restart wasn’t based on sound research and created more safety risks by putting drivers onto roads in morning rush hours, while carriers and shippers complained the restricted restart sapped productivity and raised costs. Safety advocates claim the rules aren’t tough enough, and want shorter daily hours. A $4 million study must be completed before the suspended provisions of the 34-hour restart are reinstated.
3. Electronic logging devices (FMCSA)
In many ways the capstone of the FMCSA’s regulatory program, mandatory use of ELDs or onboard computers to complete driver logs is meant to help the agency enforce its driver HOS rules and, through cleaner inspection results, improve the accuracy of the CSA. The FMCSA is expected to issue a final rule this fall mandating the use of ELDs for all applicable motor carriers (over 100 miles), with full implementation scheduled for 2017. Although those devices can help fleets improve productivity, many truckers expect an initial hit to productivity as they install the devices and learn to use them. It is expected the new technology will cut some capacity by forcing those who customarily violate HOS rules off the road. However, the ELDs will also provide trucking companies and shippers with a wealth of data — a “data explosion,” one technologist said — that will help better manage drivers and get more utilization from trucks, increasing productivity over time. The rule, therefore, could have far-reaching implications for truck capacity, rates and costs.
4. Driver coercion (FMCSA)
The days when a shipper or consignee could tell a trucking company to deliver a load within a certain narrow time window or face penalties or loss of business are coming to an end. Under a driver coercion regulation now on the federal drawing board, that shipper or consignee could be accused of “coercing” the truck driver to violate federal safety rules in order to make that on-time delivery, and coercion will carry stiff financial penalties. The rule-making in question would hit offenders, including motor carriers, logistics operators and shippers, with penalties of up to $11,000 per incident, and possible revocation of the operating authority of a carrier, freight broker or forwarder. Still in the works, the coercion rule would open a Pandora’s Box of legal questions and issues if put into effect as proposed. Its impact could be as broad as that of the CSA, HOS rules or the ELD mandate.
5. Drug and alcohol test database (FMCSA)
The FMCSA in February said it would prepare an official clearinghouse of driver drug and alcohol test data. Today’s driver recruiters only have access to their own company’s drug tests, so drivers can evade inquiries by switching employers and getting retested. In addition to reporting failed and refused drug and alcohol test results, the new protocol requires carriers to query the database on an annual basis for current drivers and report traffic citations for drivers cited for driving under the influence. Industry insiders say it seems reasonable to expect many exits from the driver’s seat once this new protocol is implemented, tightening truck capacity by another notch. Expect an even greater impact if hair follicle drug testing replaces the current testing regime based on urine samples.
6. Greenhouse gas emissions standards (EPA/NHTSA)
After decades of technical research and innovation spurred by diesel emissions regulation, today’s Class 8 trucks are much less polluting than those of the 1980s and 1990s. They are also much more expensive, with post-2010-model-year trucks priced at a premium compared to those from before 2007. Several initial rounds of emissions rules focused on reducing nitrogen oxide and particulate emissions, with the latest Environmental Protection Agency standards introduced in 2010. Since 2011, however, the Environmental Protection Agency and National Highway Transportation Safety Administration have targeted greenhouse gases such as methane, carbon dioxide and hydrofluorocarbons. Standards introduced for model years 2014-2018 are expected to save $50 billion in fuel costs, 530 million barrels of oil, and 270 million metric tons of carbon emissions over the lifetime of the heavy-duty vehicles. In June, the EPA and NHTSA published Phase 2 GHG and fuel economy standards for heavy trucks that will be implemented in model years 2021-27. Those rules will make even deeper cuts in emissions and improve fuel economy, but raise the cost of trucks by tens of thousands of dollars, putting a new cap on the availability of truck capacity.
7. Speed limiters/electronic stability controls (FMCSA/NHTSA)
The FMCSA and NHTSA have been working on a speed limiter proposal for several years. The American Trucking Associations, which has been calling for speed limiters on trucks since 2006, wants tractor-trailers limited to a top speed of 65 miles per hour. Many large truckload fleets already limit truck speeds. The Owner-Operator Independent Drivers Association, however, has said not so fast. The group, which represents small trucking businesses, is skeptical about the safety benefits of limiting truck speeds, and concerned about the cost of the speed limiters. OOIDA has argued different speeds for cars and trucks would raise the risk of crashes. In any case, limiting truck speeds will undoubtedly cut into driving times, productivity and capacity. In June, the NHTSA issued a final rule requiring electronic stability controls on heavy trucks by 2017. Those ESC controls will save up to 49 lives and prevent up to 1,759 crashes a year, the NHTSA said.
8. Driver training (FMCSA)
Federal regulators are proceeding with a negotiated rule-making on minimum national truck driver training standards. The Federal Motor Carrier Safety Administration earlier this year closed its comment period for developing new driver training regulations that would apply to new drivers working on their commercial driver’s license or existing drivers updating their licenses. The negotiators as a committee will consider minimum training requirements, including length of classroom instruction and on-the-road experience; accreditation versus certification of commercial drivers license training programs and schools; curricula for passenger, property and hazardous materials carriers; instructor qualifications, and more, the FMCSA said.
9. Food Safety Modernization Act (FDA)
The Food and Drug Administration isn’t the agency shippers and carriers most often associates with trucking, but the FDA rules written to meet the 2011 Food Safety Modernization Act requirements will have an impact on supply chains, and the companies that move foods and other temperature-sensitive goods. The first set of seven new FDA regulations under the FSMA take effect Aug. 30. In general, those FDA rules will require much tighter control of foods, including ingredients, and monitoring of temperature-controlled conditions as foods move through the supply chain, from origin to consumer. The impact is expected to be significant. The rules require carriers, shippers and receivers of food intended for animals and humans to use proper refrigeration during shipment; thoroughly clean containers, trailers or railcars between shipments; ensure that food shipments are properly segregated from non-food shipments; maintain adequate records; and provide proper training. These are all good procedures, but they will come at a cost.
10: Driver pay (FMCSA)
There is no rule-making on the books or on the table concerning driver pay, but the FMCSA is studying the topic. Why? The agency believes that how a driver is compensated may affect his or her behavior in a way that could compromise highway safety. This study is opposed by trucking companies and organizations that fear it will lead to an outright ban on per-mile pay in favor of hourly wages. Most interstate truck drivers in the U.S. are paid by the mile, and some safety advocates argue that compensation model encourages drivers to violate federal hours-of-service rules that limit driving time and work while fatigued in order to rack up miles and earn more pay. Trucking interests, including the American Trucking Associations, fear the study could lead to “an unnecessary intrusion into the business relationship between motor carriers and drivers.” Those concerned should take a close look at the course pursued by regulators in Australia, which in 2012 created a Road Safety Remuneration Tribunal that linked pay with safety performance. The regulatory agency is pursuing a broad review of Aussie truck driver pay in several industries.