As November nears, a race to the regulatory finish line from the Trump-led Department of Transportation is expected. A second Trump term will likely continue to focus on regulatory reform, while a Biden-led administration could roll back new HOS changes.
As uncertainty teems across the nation and at the top of federal agencies just a few months before the presidential election, the trucking industry can expect to see a race to the policy finish line from the Trump administration—particularly as it relates to federal hours of service (HOS) rule changes.
Dave Osiecki, president and CEO of Scopelitis Transportation Consulting, broke down what the industry could expect from Washington before and after the Nov. 3 election during Trimble’s 2020 virtual in.sight user conference and expo.
Referring to the brain drain concept, a substantial exodus of individuals due to political turmoil or the existence of more favorable professional opportunities elsewhere, Osiecki pointed out that political appointees before any presidential election face an uncertain job future.
“They don’t have much certainty as to whether they will remain in their position if the other side wins the presidential election,” Osiecki explained, adding that some will make a move before the election.
For instance, the Federal Motor Carrier Safety Administration’s (FMCSA) Acting Administrator Jim Mullen announced his departure from the agency in August. Osiecki advised the trucking industry to keep an eye on other key players within the Department of Transportation (DOT).
“I would anticipate at least one more probably jumping ship,” he said.
A race to the policy finish line
Whether there are policies found in bills or legislative or regulatory initiatives, there is always a race to the policy finish line in any presidential election, Osiecki pointed out.
In the first six to 12 months of President Trump’s term, the administration placed a significant amount of focus on regulatory reform and relief, and on many issues that the trucking industry cares about.
The Trump administration, for instance, pulled the safety fitness rule off the table, and stopped both the trucking insurance limit rulemaking and sleep apnea ruling in their tracks. In addition, the administration focused on making commercial driver’s license (CDL) rules more driver friendly for those trying to obtain their CDLs. The Trump DOT also developed the addition of the permanent crash preventability program under the Compliance, Safety, Accountability (CSA) program, and revised federal HOS rules to make these programs more business and industry friendly, explained Osiecki.
The HOS rule changes, which were published in the Federal Register on June 1, are scheduled to take effect on Sept. 29, 2020. Typically, with a change like this, there is a range of six to 12 months between the date of the rule change and the effective date of the rule change, or the compliance date, Osiecki pointed out. In this case, the Trump administration chose four months.
“They shortened that implementation window for one obvious reason: to try to protect those changes,” Osiecki said. “In other words, to try to protect them from the changing administration and protect them from the Congressional Review Act, which allows Congress to take a hard look at rules that were published late in the administration. That’s one of the major reasons why they picked late September.”
There are currently four HOS petitions up for consideration. The Advocates for Highway and Auto Safety (AHAS) petitioned the FMCSA for reconsideration of the final rule, arguing that “the changes will further exacerbate the already well-known threat of fatigue among commercial motor vehicle drivers by significantly weakening current HOS and electronic logging device rules.”
The Commercial Vehicle Safety Alliance (CVSA) and National Private Truck Council (NPTC) petitioned for relatively minor modifications to the HOS rules, explained Osiecki. “I don’t know how FMCSA is going to deal with them, but what I think I do know is that it will not change the Sept. 29 effective date,” he said. “This administration wants that to happen, and they are going to do everything they can to make that happen.”
The final petition came from an individual citizen claiming the rule changes were no good.
There is typically a 60-day window for litigation after a rule is changed, and that 60-day window has closed with no litigation filed. Osiecki said he expects the petitions to be addressed, and at least two of them—from the individual citizen and AHAS—to be denied.
“CVSA and NPTC petitions could be addressed in some way,” he added. “No matter what, the HOS rule change will very likely go into effect in late September 2020.”
Before the election, Osiecki also said the industry could expect to see changes on how to improve CSA data and the scoring methodology.
“There has not been much outreach from FMCSA on this particular topic since 2018. Having said that, we know this administration wants to put its stamp on the program,” explained Osiecki. “We know they are very likely to make some sort of announcement before the election outlining the change.”
He added that any CSA announcement will likely address severity weights of certain violations, peer groupings, and regional enforcement disparities.
If President Trump wins a second term, the administration will focus on filling key vacancies as quickly as possible, Osiecki said. The Trump administration will also continue its focus on infrastructure, he added.
“I say that a bit skeptically because, let’s face it, this administration said we are going to focus on infrastructure and spend $2 trillion, and this administration hasn’t been able to get that done,” Osiecki said, adding that a second term of President Trump will continue to focus on regulatory reform.
However, Osiecki pointed out that the polls are clearly leaning toward the election of former Vice President Joe Biden. “But the polls have been wrong before,” he said.
What if Biden wins?
If Biden does win the upcoming election, there will be a transition and a building out of the management team’s agenda and agency review teams. Biden and his team will look for rules that don’t meet their criteria and will to look to stop those rules through an executive order shortly after inauguration, Osiecki said.
Looking ahead, what does a President Biden DOT and trucking policy agenda look like?
“You don’t have to look very far or much beyond the House-passed INVEST Act,” explained Osiecki. “It was passed at the House and is dead on arrival at the Senate, so I actually don’t think it will be passed by the U.S. Congress and make it to President Trump’s desk before the election. That bill is chock-full of Democratic transportation priorities. If Biden wins in November, these things will likely be on his DOT policy agenda no matter who he puts in the seat at the FMCSA or Department of Transportation.”
Highlights from the Democratic-led House infrastructure bill include:
- Insurance limit increase: An amendment would raise the minimum insurance requirements on commercial vehicles from $750,000 to $2 million.
- Speed limiter mandate: The attempt to mandate speed limiters will quickly come back around, Osiecki explained. “The Trump administration stopped that in its tracks,” he said. “They did not want to see a speed limiter mandate go forward. I think a President Biden would want to see a speed limiter mandate move forward because Democrats view that as a genuine safety initiative.”
- Regulating driver detention time and pay
- Upgraded rear trailer underride guards
- Side underride guards on trucks and trailers
- Making CSA public
- CSA safety fitness ratings
- Sleep apnea screening criteria
- A rollback of HOS changes
Even if the HOS rules become effective in late September, if Biden wins, the Democrats will likely roll back changes made by the Trump administration, Osiecki noted.
“It’s just a reality of this topic; hours of service is a political football,” he explained. “When the Democrats are in charge of the White House, they typically try to make these rules more conservative, meaning less flexible. When the Republicans are in the White House, they typically try to make the hours of service rules a little more liberal and flexible, which is exactly what they tried to do with what is going to take effect in September.”