INDIANAPOLIS — The deregulatory nature of the Trump administration threatens delay or elimination of several Obama-era trucking-related regulations, but those that remain on the books will continue to be aggressively enforced, panelists said at a law seminar here.
“That’s what I’m seeing in representing carriers all across the country in dealing with DOT audits,” Tim Wiseman, an attorney with law firm Scopelitis, Garvin, Light, Hanson & Feary, told nearly 600 attendees at a regulatory update session at the 2018 Scopelitis Transportation Law Seminar on June 4.
Wiseman said he believes there are indications that federal regulators are still “coming down hard” on motor carriers, truck drivers and executives of companies.
“I think that’s a good thing if they’re truly targeting unsafe motor carriers,” Wiseman said. “Unfortunately, for a dozen different reasons, trying to replace the current paperwork-driven audit system with Compliance, Safety, Accountability program data just doesn’t work the way the Safety Management System and CSA is currently structured.”
The 2016 Federal Motor Carrier Safety Administration’s Safety Fitness Determination proposal — which has since been withdrawn — likely will not resurface any time soon, he said.
“So we’re left with the antiquated paper-driven audit process that we’ve had for decades,” Wiseman added. “Because it relies so heavily on carrier safety scores to initiate audits, when auditors arrive they’re looking to find the paperwork to support what the SMS is telling them. So there’s a little bit of bias now in the audit process.”
“We’re supposed to be talking about what’s going on at FMCSA,” Richard Pianka, deputy general counsel for American Trucking Associations, told attendees. “But as several other speakers have alluded to, it’s almost easier to talk about what’s not going on at FMCSA.
“This administration, it’s no secret, is committed to reducing the regulatory burden on industry,” Pianka said.
So far, the Trump administration has put the brakes on the safety fitness determination rule and speed limiter rule, but also has been working to study requested exemptions for the electronic logging device rule that went into full effect April 1, Pianka said.
“A lot of the hostility toward ELDs really is about the hours of service,” Pianka said. “As a result of all the hostility, there is some appetite in Congress and the FMCSA to take some of the pressure off by adding some additional flexibility to hours-of-service rules.”
Pianka said he sees a few possible changes on the horizon. For example, relief on supporting documents, bringing the 100-air-mile CDL driver exemption into line with the 150-air-mile non-CDL exemption, and getting FMCSA’s split sleeper berth pilot program off the ground.
Jennifer Hall, ATA’s general counsel, said that the Department of Health and Human Services has been slow to respond to a congressional mandate to set a standard for hair-based drug testing of truck drivers. She added that Congress in recent weeks has been encouraging HHS to complete the mandate.
Hall said FMCSA has rescinded plans for adopting a plan for obstructive sleep apnea guidelines, and has been moving slowly on a rule to make it easier for diabetic drivers to get behind the wheel.
David Osiecki, president of Scopelitis Transportation Consulting, said one thing that has not changed with the new administration is the number of audits, adding that violations of carriers has remained about the same. But even though the number of audits aren’t increasing, the number of closed enforcement cases being generated is on the rise, he said.
“What’s not clear is why is this happening,” Osiecki said.
Scopelitis attorney Annette Sandberg, a former FMCSA administrator, said the ELD rule has gotten off to a “rocky start.”
“There’s been a real lack of training on behalf of drivers and on behalf of the enforcement officers out there,” Sandberg said. “Since January of this year, we’ve had over 35,000 violations cited on drivers for not having a device that’s registered.
“The reality of it is, drivers are getting cited for having an automatic on-board recording device, the old system. Those are not required to be registered, and enforcement doesn’t understand that.”
Sandberg said two regulations that have not been nixed by the Trump administration include the Entry Level Driver Training rule and the Drug and Alcohol Clearinghouse rule, both set to go into effect in 2020.
As directed by the 2015 FAST Act, CSA scores for property carriers have been kept out of public view since late 2015, Sandberg said, and they haven’t gone back up.
FMCSA officials currently are studying several recommendations of a special academic panel but have yet to announce any changes to CSA methodology.