2020 Trucking Regulations Update: How much is too much?

To hear trucking executives tell it, one of the enduring strengths of the Trump administration has been its more relaxed, sensible approach to regulations covering everything from how many mandated rest breaks a driver must take to the amount of emissions a heavy truck emits.

Top trucking executives contend that the hands-off approach strikes the correct balance between safety and efficiency while allowing carriers input into the process. This current sentiment comes after eight years of what some trucking leaders felt was regulatory overkill by the Obama administration.

“It’s a clear-cut deviation from what was in place prior,” says Derek Leathers, vice chairman, president and CEO of Werner Enterprises, the nation’s sixth-largest truckload carrier. “This has not been an administration that waives all regulations, but they listen and talk to stakeholders. They want your input.”

To top it off, says Leathers, Trump’s regulators have been accessible. “You can get people on the line. They get input from people from owner-operators to large carriers, and they make decisions based on moving the economy forward, but not at the expense of safety.”

In summing up the trucking industry’s general feeling about the Trump administration’s regulatory approach, Leathers added: “It has been refreshing, to say the least.”

Others big truckers agree. Greg Orr, president of CFI, the truckload unit of $5 billion Canada-based TFI International, told Logistics Management that allowing input and best practices from the top players in the industry makes more regulatory sense than a top-down approach from Washington. “Sometimes, when you force someone to do something, they struggle to manage it effectively,” he says. “If they manage it, they become a lot more productive and safer at the same time. I think it’s been favorable.”

With this new, more agreeable attitude as a backdrop, let’s take a deeper dive into the regulatory environment as we prepare to roll into 2021. We’ll examine the latest changes in hours of service (HOS), take a look at what’s happening with tougher drug testing for drivers, and we’ll explore how some state regulations are threatening the efficiency of interstate commerce.

It’s all about hours

Last June, the Federal Motor Carrier Safety Administration (FMCSA) amended its HOS regulation covering some 3.5 million long-haul drivers. Those changes were quite welcomed by the industry and went into effect in late September.

Specifically, FMCSA said it was revising its HOS regulations “to provide greater flexibility for drivers without adversely affecting safety.” The latest changes altered the following four areas.

Short-haul exception. This expanded the short-haul exception to 150 air miles and allows a 14-hour work shift to take place as part of the exception.

Adverse driving conditions exception. This expanded the driving window during adverse driving conditions by up to an additional two hours.

30-minute break requirement. This required a 30-minute break after eight hours of driving time (instead of on-duty time) and allows an on-duty/not driving period to qualify as the required break.

Sleeper berth provision. This modified the sleeper berth exception to allow a driver to meet the 10-hour minimum off-duty requirement by spending at least seven—rather than at least eight—hours of that period in the berth and a minimum off-duty period of at least two hours spent inside or outside the berth, provided the two periods total at least 10 hours, and that neither qualify period counts against the 14-hour driving window.

“This is a reasonable approach that will be well received by both drivers and carriers,” says Mark Rourke, president and CEO of Schneider, the nation’s second-largest truckload carrier. He says that the short-haul sleeper berth changes will not have much effect on his business, but that the revised 30-minute break rule change was reasonable.

“It will help productivity,” says Rourke. “We should not force drivers to do things that they don’t want to do. This is just a more driver friendly way of managing body and fatigue.”

In general, FMCSA is receiving high marks from trucking officials. They say that the agency has been responsive to industry input, and provided relief from HOS regulations during the first weeks of the pandemic as well as Hurricane Laura, which struck the Gulf Coast in August.

During such emergencies, FMCSA immediately issued regional emergency declarations in the affected areas. It allowed both expanded hours of service as well as exemptions for longer combination vehicles in areas that may not accommodate them in non-emergency conditions.

So, considering the Trump administration’s generally favorable reviews from trucking executives in a few areas, where are the continued pain points for carriers concerning regulations? Let’s examine a couple.

Drug testing

The trucking lobby was counting on the Trump administration to mandate tougher hair follicle testing to weed out chronic drug abusers in the trucking industry. However, in late summer, the industry was disappointed when Department of Health and Human Services (HHS) more or less punted on the issue.

Instead of the requirement of hair follicle testing—which is said to be able to weed out up to 10 times as many positive tests as urine tests—HHS released for comment long-awaited mandatory hair-testing guidelines to screen drivers for drugs.

Its proposed “Mandatory Guidelines for Federal Workplace Drug Testing Programs” will allow hair specimen as part of drug testing programs. But, a federal agency that chooses to test hair specimens, such as the FMCSA, must collect at least one other specimen type, such as urine or oral fluid, authorized under the federal guidelines.

“It’s quite counterproductive,” says Schneider’s Rourke. “Having to do the second test defeats the entire purpose of hair follicle testing. It’s clearly not following science, so we’re back to seeking a legislative answer.”

The American Trucking Associations (ATA) blasted the compromise. “The HHS proposal undermines the effectiveness of hair testing and would have serious implications for carriers who currently utilize hair testing,” says Chris Spear, president and CEO of ATA.

According to Spear, the HHS proposal added a second, unnecessary test in cases where hair testing results are positive for drug use. He calls it a “tremendous disappointment” for the trucking industry. “Sadly, the positive impact this rule could have had to make both highways and truckers safer will have to wait,” he says. “ATA will be working again with Congress to fix what HHS has failed to do—its job.”

Werner has been using hair follicle testing on its drivers and potential drivers for five years. According to Leathers, the higher positivity rate through hair testing was worth it to make sure the carrier is operating a safe fleet. “Yes, there’s a tradeoff,” he adds, “but it’s a tradeoff that has to happen. We need to be committed to this as an industry. It’s the right thing to do.”

Role of the states

At the state level, California is in the vanguard of states whose regulations tend to keep trucking executives up at night. Specifically, the Golden State is potentially threatening to eliminate how owner-operators operate within the state.

Recently, the Ninth Circuit Court of Appeals heard oral arguments in the California Trucking Association’s challenge to AB5—that’s California’s recently enacted statute on the proposed reclassification of independent contractors as employees. It’s one state law that many trucking companies headquartered outside California, but still operating in all 50 states, are watching with dismay.

This past January, the U.S. District Court in San Diego entered an injunction against the California statute that barred its enforcement of AB5 against motor carriers. That court ruled AB5 was likely preempted by federal law, namely the Federal Aviation Administration Authorization Act.

An appeal at the Ninth Circuit is considering whether to uphold that decision. Meanwhile, the California Trucking Association—and most of organized trucking—is hopeful the Ninth Circuit will leave the injunction in place.

Schneider’s Rourke said the AB5 rule was so onerous that his company had to cease using California-domiciled owner-operators in that state. “We’ve made adjustments to our business model in California over time,” he says. “We’ve had many owner-operators move out of the state and serve us in a different way. It’s really untenable. We expected it to be a hindrance, but it’s worse than we expected.”

And California isn’t alone. Other states can offer up misguided regulations seemingly at a whim. Pennsylvania’s action in the early days of the pandemic in March was a good example. To help it prevent the spread of the virus, Pennsylvania closed all 17 of its rest areas along its turnpike.

Trucking officials “went ballistic,” stated Sid Brown, CEO of NFI, a national carrier with 14,000 employees based in Camden, N.J. “You gotta make sure the guys can go to the bathroom and take a break,” Brown told the
Philadelphia Inquirer.

Following an outcry by truckers and shippers, the Pennsylvania Turnpike Commission reversed the decision and reopened all 17 of its service plazas’ bathrooms and restored food service. Some 46 other rest stops that PennDOT had closed also reopened after objections by the industry.

Such seemingly well-intended regulatory overreach is typical of the way some states look at the trucking industry, officials said. “We had war rooms set up at our headquarters, and that Pennsylvania issue came within 24 hours of Werner stopping operations in that state,” adds Leathers. “I just cannot send drivers into areas where they can’t use facilities. It was not malicious, but the unintended consequences would have been severe.”