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The Year's Top Trucking Stories from Washington

December 23, 2014

By Oliver Patton

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The political slugfest over the 34-hour restart dominated the news from Washington, D.C., in the second half of 2014, but that obscure provision of the hours of service rule is not nearly as important as other developments during the year.

The biggest story was what didn’t happen: Congress failed to produce a long-term highway bill, thereby continuing the gradual downward spiral of U.S. infrastructure.

The American Society of Civil Engineers grades American infrastructure as a D+. It also says that if the U.S. does not reinvest in transportation, businesses will pay an extra $430 million in transportation costs by 2020.

Last year a senior Caterpillar executive told Congress that his company routes 40% of its exports through Canadian ports because they’re faster than U.S. ports – even though they’re farther away.

But Congress is not yet engaged on the issue the way it will need to be in order to overcome resistance to raising the necessary money.

“We will have to have a fundamental debate in a more serious way than we have,” said former Transportation Secretary Jim Burnley. “The Highway Trust Fund has collapsed … and we are at a point where issues have to be decided.”

Burnley said Republicans in the House are overwhelmingly opposed to raising fuel taxes and there is no political consensus on an alternative.

The fact is, as President Obama said, it is exceptionally difficult for Congress to vote for a fuel tax increase. Among the alternatives: take one-time proceeds from corporate tax reform, or transfer the fuel levy from the retail pump to the refinery.

But all of the alternatives are complex and difficult in their own ways.

The next chance to reverse the spiral will come in May when the current subsistence-level highway program comes due for renewal. Transportation interests persistently hope that Congress will find the political will to raise the money, but the degree of difficulty will go up as the 2016 presidential election gets closer.

For trucking, a controversial item in the next highway bill will be yet another run at updating federal limits on sizes and weights. Some carriers and shippers want Congress to give the states permission to raise the limits as they see fit, but other carriers, safety advocates and the rail industry are adamantly opposed.

The Department of Transportation was supposed to finish a comprehensive study of the issue last fall but has pushed it back until 2015.

Electronic Logging

Another major 2014 story was the Federal Motor Carrier Safety Administration’s closing moves on an electronic logging mandate.

The agency proposed a rule in March and is now reviewing comments in preparation for a final rule to come next September.

The mandate will require most drivers to use electronic logs to keep track of their hours of service. This will force the industry away from the flexible logging practices that have been commonplace for years and lead to stricter and more uniform compliance with duty rules.  

The industry is divided over the rule. Some are outraged and disdainful of what they see as Big Brother government, while others applaud what they see as a sensible and long-overdue safety rule.

The Big Brother objection lost some of its heft when FMCSA posted a survey showing that drivers who use ELDs feel no more harassed than drivers who use paper logs.

“The evidence in this survey research does not support concluding that harassment occurs due to being in a situation where (hours of service) are logged using ELDs,” the agency said.

Meanwhile, the Owner-Operator Independent Drivers Association signaled that it is considering the possibility of a legal challenge when the rule finally comes out.

“Without providing for the due process rights of truck drivers, the proposed rule’s imposition of electronic monitoring is an unconstitutional deprivation of a driver’s freedom of movement,” OOIDA said.

34-Hour Restart

Congress’s decision to suspend the 34-hour restart while FMCSA studies its impact is a victory for American Trucking Associations’ lobbying team.

ATA went after the provision of the 2013 hours of service rule that required drivers who want to use the restart to take off two successive periods between 1 a.m. and 5 a.m. The provision also limited use of the restart to once a week.

ATA contended that these restrictions are unproductive and do not improve safety, and Congress agreed to suspend them while FMCSA studies their impact.

The law spells out the requirements for the study, which will come on top of several other studies the agency already has under way.

Not all carriers use the restart, but industry-wide, the suspension boosted productivity by about 0.8%, according to Noel Perry, senior consultant and managing director of FTR.

But the suspension also prolongs uncertainty about hours of service: Maybe the restrictions will go back into effect next fall, or maybe they won’t – Congress didn’t say one way or the other.

And the enforcement community is annoyed about having to retrain its personnel possibly twice in the space of a year – for no clear safety benefit, said Stephen Keppler, executive director of the Commercial Vehicle Safety Alliance.

“Anyone who thinks that they know (the safety outcome) is not telling the truth,” Keppler said. “No one can say that with any sense of confidence across the entire industry, because the analysis just hasn’t been done.”

Industry People

Anne Ferro stepped down after five years as chief of FMCSA, with the departing message that the cost of truck and bus safety needs to be distributed more evenly through the supply chain.

Too much of the burden falls on drivers who are not paid for all the time they work, Ferro said.

“It is essential to recognize that professional drivers should be compensated for all time on duty. That’s integral to achieving the overall safety mission.”

This was in in reference to a provision in the Obama administration’s highway bill that would require carriers to pay drivers at least the federal minimum wage for time spent waiting to be loaded or unloaded.

In other people news, the Senate confirmed Mark Rosekind to the top job at the National Highway Traffic Safety Administration, Dave Osiecki was appointed to run ATA’s lobbying shop on Capitol Hill, and Lane Kidd left the Arkansas Trucking Association to head up the Trucking Alliance’s office in Washington, D.C.

And the transportation community lost a dedicated veteran legislator with the death of former Rep. James Oberstar. Oberstar’s encyclopedic knowledge of transportation helped shape generations of policy during his 36-year career in the House.

The Move to Shield CSA Safety Data

Safety enforcement officials joined the industry effort to get FMCSA to hide CSA safety data from public view.

CVSA told Transportation Secretary Foxx that Safety Measurement System scores should be available to police but not to the public.

CSA is “a very good program with tremendous potential,” said CVSA’s Keppler.

But the data that are available to the public are being used incorrectly and this is affecting the enforcement community’s work, he said.

This move put CVSA in company with trucking interests that have been saying for some time that the data should be withheld from the public.

The industry has been pressing its case on Capitol Hill, pushing a bill by Rep. Lou Barletta, R-Pa., that would shield the information from the public until the agency corrects shortcomings in the system.

FMCSA’s response has been that the SMS system has improved safety by making carrier violations and safety records publicly available. Carriers that have high scores in some SMS categories are more likely to be involved in a crash, the agency says.

Fuel Economy and GHG regulations

President Obama pushed the start button on the next phase of medium- and heavy-duty fuel economy standards.

He told the Environmental Protection Agency and the National Highway Traffic Safety Administration to propose a rule by March 2015, and finish the rule by March 2016.

The first round of greenhouse gas emission rules, posted in 2011, set standards for model years 2014 through 2018. It focused on efficiencies obtained by refinements to tractors and engines. This next round of rules is likely to be more ambitious.

The agencies will assess engine and powertrain improvements, aerodynamics, weight reduction, improved tires, automatic engine shutdown and improving accessories such as water pumps and fans, as well as hybrid technologies.

They also will look at trailers as well as power equipment.

Trucking interests responded positively. The Heavy Duty Fuel Efficiency Leadership Group, an alliance of carriers and manufacturers, said the move is an important milestone.

“Finalizing new fuel efficiency standards for medium and heavy duty trucks will be an important milestone that should result in significant benefits to our economy, the trucking industry and the environment,” said Douglas W. Stotlar, president and CEO of Con-way Inc.

Cross-Border Trucking and Other Top Stories

FMCSA granted normal operating status to the Mexican truck lines that have been providing long-distance, cross-border service under a federal pilot program.

The 13 carriers received either provisional or standard operating authority for 55 trucks.

The DOT Inspector General was working on an audit to see if the program it is preserving safety and ensuring compliance.

Owner-operators and the Teamsters quickly registered objections to the decision. They have been fighting the border opening ever since Congress approved it in the 1994 North American Free Trade Agreement.

The National Highway Traffic Safety Administration signaled strong interest in vehicle-to-vehicle communications systems in trucks.

The agency has been field-testing the technology in cars and trucks and plans to begin work on a regulatory proposal that would require V2V systems in cars some years in the future.

This move is seen as a precursor to a similar requirement for heavy trucks.

And President Obama’s move to let some undocumented immigrants stay in the country clears the way for them to become professional truck drivers, although that path is neither simple nor quick.

Other FMCSA Matters

The agency published a final rule saying that truck drivers no longer have to file inspection reports when there are no defects in the truck.

Formerly, drivers were required to do pre-trip and post-trip inspections and file a report to the carrier even if there were no defects. Now, no-defect reports are not required. Drivers will still have to turn in reports of defects.

The agency also is looking for comments its plan to raise insurance minimums for carriers and establish insurance requirements for brokers and freight forwarders.

The minimums have not changed in almost 30 years and the agency says they need to be reevaluated.

The proposal could lead to a significant jump from the current minimums of $750,000 for general freight, $5 million for the most dangerous hazmats and $1 million for other hazmats.

One possibility the agency is considering is to peg the minimums to the Consumer Price Index. In that case, the general freight requirement would jump to $1.6 million, dangerous hazmats would go to $10.8 million and other hazmats would go to $2.2 million.

The agency has had considerable difficulty coming up with a rule covering entry-level driver training.

It has opted to bring together carriers, driver groups, trainers, state agencies, safety advocates and insurance companies to negotiate the details.

In response to congressional concern about sleep apnea training for examiners, the agency said it will notify examiners and trainers that they should not use federal rules and advice as guidance for apnea screening and testing.

Acting FMCSA Administrator Scott Darling also said the agency will commence a rulemaking on sleep disorders soon. Specifically, the agency plans to request comments on the costs and benefits of a rule.

The agency is projecting that it will publish a final rule on its drug and alcohol clearinghouse next October.

The clearinghouse, which has been on the safety wish list for 15 years, is designed to prevent commercial drivers from hiding drug or alcohol violations and ensure that carriers are meeting their responsibility to test for substance abuse.

There were indications that the agency may eventually want to restrict drivers who use prescribed narcotics.

The doctors who advise the agency recommended such restrictions, signaling deep concern in the medical community about the risks of driving while using Schedule II medications.

Any change in the current rule, which permits drivers to use the medications as long as a doctor familiar with the driver’s condition prescribes them, would take years.

In another driver-related development, the agency said it has begun to study the relationship between safety and driver pay.

It wants to find out if there is a connection between industry pay practices and safe driving.

The issue arises from concern that drivers who are not paid for time waiting to load or unload are forced into unsafe practices in order to make a living.

Yet another driver issue on the agency’s agenda is a proposal to protect against coercion.

The proposal aims to prevent carriers, shippers, receivers or brokers from forcing drivers to violate requirements such as hours of service or other regulations.

Shippers are not entirely comfortable with the idea: it could make them responsible for drivers they do not control, they said.

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