Politicking is one thing; governing quite another. Politicians may toss off promises willy-nilly to run up votes. But once elected, delivering on those commitments requires them to exquisitely manipulate the levers of governance — skillfully engaging in everything from harnessing public opinion and legislative horse-trading to forcing power plays and forging intricate compromises.
President-Elect Donald Trump has promised to eliminate two regulations for every one enacted. How hard will it be to keep his promises of removing overly burdensome regulations — and which trucking regulations are most likely to be affected?
It would seem easier to accomplish political promises when control of the White House, the Senate, and the House ends up in the hands of one political party, as it did spectacularly in November. When a party scores that trifecta and has a well-defined agenda to pursue under the leadership of a president elected with a popular-vote mandate, remarkable change can be effected in short order.
On the other hand, the majority leaders of any party on Capitol Hill in any year can be counted on to protect the fiefdoms afforded them by the Constitution’s separation of powers principle. For them, the only election that really matters is the next one.
So the Speaker of the House and the Senate Majority Leader may not march in lockstep with a president of the same party if, like Trump, he largely does not share their political orthodoxy. That’s because doing so could cost them control of one or both chambers in the 2018 mid-term elections. Even with the Trump effect bolstering their candidates last November, the Democrats still managed to pick up one seat in the Senate and several in the House.
It’s unknown how well Trump will work with GOP leaders on Capitol Hill. “Political deadlock could continue,” says Bill Witte, senior consultant at transportation forecasting firm FTR. “It could occur between Trump and the Republican Party [in Congress] with House Republicans fracturing, or there could be a breakdown of relations between Republicans and Democrats in the Senate,” which would make it hard to pass GOP-favored bills.
Then there’s President Donald Trump’s precarious position. Yes. He won the election in large part by running as a fierce agent of change. But he was not carried into office by a tidal wave. Trump lost the popular vote by nearly 2.9 million votes. More Americans voted for Hillary Clinton than for any other losing presidential candidate in U.S. history. In other words, Trump is starting out with little political capital to burn. What’s more, most of his supporters are expecting nothing less from his leadership than clear-cut results they can literally take to the bank in terms of better-paying jobs right now.
What all this points to for those in trucking and business in general is that President Trump and his fellow GOP leaders on Capitol Hill will undoubtedly work to curtail burdensome federal regulations. But they may disagree on what new laws and rules should be written and on what existing ones should be rolled back or simply delayed. In addition, rulemakings still in the pipeline, such as the greenhouse gas Phase 2 fuel economy rules, could be delayed or even abandoned outright.
There’s also the not-so-little matter of how slowly the wheels of government turn, even when everyone is pushing in the same direction. Just as it’s seldom easy to put in place a new rule, it’s not always easy to rewrite or discard one on the books.
“I believe there will not be a ton of regulations that will go 180 degrees due to the change in administration,” says Bill Sullivan, executive vice president for advocacy of the American Trucking Associations. “Certainly, some around the edges will be addressed.”
“It is reasonable to say that every president who has transitioned into the Oval Office with the promise of a regulatory rollback has not dramatically changed any of the regulations that have been bestowed upon our industry,” says David Heller, vice president of government affairs for the Truckload Carriers Association.
President Trump has pledged to issue a temporary moratorium on new agency regulations that are “not compelled by Congress or public safety.” He also has 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 Trump is not expecting Congress to give up its authority to mandate rulemakings. And his policy statement does not define what constitutes “public safety,” which could well include rules aimed at improving highway safety.
Even with a presidential moratorium 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, that are legislated into law as Congressional mandates will have to be enacted by the Trump administration.
Larry Gross, FTR partner and senior consultant, figures that if implementation of the electronic logging device mandate “gets sticky because of the FMCSA’s slowness in publishing complete technical standards,” the Trump administration is likely to postpone the December 2017 deadline. “That said, trucking regulation will not be a priority,” he adds. “Still, the coming [regulatory] wave may be reduced and occur later.”
“I would imagine the issue of speed limiters could be placed on one of the rear burners,” says TCA’s Heller, “if only because the ambiguity of the proposed rule released by the agency made agreement [on its provisions] difficult.”
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 in the last months of the Clinton Administration.
CRA is an oversight tool, but no magic wand.
Under CRA, before a rule issued by an executive agency can take effect, the agency must submit the rule to Congress and the Government Accountability Office. Once the rule is received, members of Congress have a specified time period in which to submit and take action on a joint resolution disapproving the rule. If both houses pass the resolution, it is sent to the president for signature or veto. If the president vetoes the resolution, Congress could vote to override the veto.
All this is easier said than done, says ATA’s Sullivan. There’s a critical time clock built into the CRA. A resolution can be used to overturn a rule only if the rule was enacted within 60 “legislative days,” which in this case means rules that were enacted going back to the end of May 2016. He says this means rules that could be undone by a CRA resolution signed by President Trump include the Phase 2 GHG requirements and rules that require contractors for federal business to follow specific pay or wage standards.
“I bet a number of CRA resolutions will be introduced in the House,” Sullivan says, “but then they have to pass the Senate. There is a unique window for this approach because the Obama administration pushed out so many rules at the end.” He notes that ATA, or any lobby for that matter, can influence a CRA resolution by “supporting it or coming out against it or by suggesting modifications” to what is proposed by members of Congress.
In other words, most rules are not just going to be rolled back by the stroke of a pen.
Following is a recap of the most important regulations affecting trucking this year.
Hours of service
In December, President Obama signed a bill containing 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 that it left confusion about what was to happen upon the conclusion of a mandated Department of Transportation study (still under way) on the effectiveness of the restart provisions. If the study finds 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 have been eliminated. Those restrictions were suspended while DOT performs the study. So the CR provision makes it clear that the pre-July 2013 restart would be in effect if the DOT study throws out the controversial restart restrictions.
Electronic logging devices
The Federal Motor Carrier Safety Administration announced a final rule in December 2015 mandating the use of electronic logging devices for all trucks model-year 2000 or newer engaged in interstate commerce. Carriers and drivers must transition to ELDs by Dec. 17 of this year. However, carriers and drivers that were using automatic onboard recording devices prior to Dec. 18, 2017, may continue using AOBRDs through Dec. 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 this 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 violated a truck drivers’ Fourth Amendment rights of privacy. OOIDA’s latest petition calls for a full court to hear the case.
“There is no sign that ELDs are a partisan issue on Capitol Hill,” says Avery Vise, president of compliance consultancy TransComply. He adds that even though the rule won’t kick in until late this year, it would not be subject to a regulatory moratorium imposed by Trump.
“If your fleet has not started down the ELD transition road yet, it is time to start,” recommends TCA’s Heller. “The first place to start would be FMCSA’s website. There, carriers can find a growing list of companies that offer FMCSA-compliant ELD devices, which means that the specifications that the agency outlined in its rulemaking are contained within the products listed.”
GHG Phase 2
The Phase 2 greenhouse gas/fuel efficiency rule 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, Congress could now opt to either roll it back or slow down its implementation. Several truck and engine makers contacted by HDT about whether they will now lobby to roll back or modify the Phase 2 rules did not reply or declined to comment.
“We’re still reviewing GHG Phase 2,” says ATA’s Sullivan. “We were at the table with EPA working on it and there are pieces we do not love. However, we’d prefer to see a national EPA rule vs. one driven by California.”
Meal/rest break exemptions
Trucking lobbyists this year will again attempt to score 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 last year.
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.
Shortly after the election, ATA President and CEO Chris Spear said that the association intends to again fight for this reform, noting that it might be possible to secure a “full remedy” on state preemption that would include piece rates as well.
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 trucks. 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, according to Jerry Robertson, chief technology officer for Bolt, a provider of fleet-management systems.
“Carriers must also be capable of exchanging information with shippers about prior cargos and keep copies of their compliance records for up to 12 months. They must also provide enforcement officers immediate access to data for the last six months,” Robertson says.
What’s more, he advises that reefer units on trailers with separate compartments for refrigerated and frozen items may not be able to properly monitor each compartment. That could lead to fleets needing to replace those units much sooner than planned.
While FDA will be the primary enforcer, carriers could see enforcement by state DOT inspectors once they become more familiar with the requirements. In addition, Robertson notes, since shippers are ultimately responsible for their products, “they will likely require carriers to make any necessary changes to bring themselves into compliance or risk losing their business to those carriers who can.”
Compliance, Safety, Accountability
“FMCSA is still committed to making fixes to its Compliance, Safety, Accountability program,” says TCA’s Heller, “even though its data is out of the public eye.” In the fall, the agency 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 assign 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.
FMCSA’s Safety Measurement System could come under fire by the Trump Administration due to concern over the use of SMS by trial lawyers in crash litigation, says TransComply’s Vise.
Vise also says to keep in mind the shift in opinion on SMS since it was launched in late 2010. “Despite immediate legal action by some small carrier interests, initially, ATA and others supported or at least did not oppose CSA/SMS. Over time, however, most of the trucking industry has come to accept serious flaws in SMS methodology.”
After a decade-long push by trucking and safety advocates, last August, the National Highway Traffic Safety Administration and FMCSA jointly proposed a rule that would require heavy-duty vehicles to 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 actual speed limit was proposed for the devices. DOT only proposed discussing “the benefits of setting the maximum speed at 60, 65, and 68 mph” and that it “will consider other speeds based on public input.”
ATA’s Spear slammed the proposal for its lack of specificity and the dearth of research backing it up. “The various differentials in speed from what this rule proposes and what state speed limits are is dangerous.”
More than 5,400 comments were filed on the proposal, after a 30-day extension because of high interest. Given that, it’s unlikely this rule will move forward very quickly.