HOW TO MANAGE THE
“REGULATORY TSUNAMI”
A Logistics Management Webcast with
John Cutler, NASSTRAC General Counsel,
Candace Holowicki, Director of Global Transportation &
Logistics, TriMas Corporation, and Chair of NASSTRAC’S
Education Committee
Current Regulatory Environment
• Since 1980, economic regulation has largely been
replaced by health, safety, environmental and safety
regulation
• FMCSA is principal regulator of trucking, though
PHMSA, OSHA, EPA, law enforcement, CBP, etc., can
play roles
• FMCSA regulation under laws enacted by Congress can
be more vigorous or less vigorous, but regulation
should never do more harm than good
• Economic impacts on carriers and shippers seem to
carry less weight with regulators than in past years
This Webcast Will Focus on HOS and CSA
• Other regulatory issues are pending, including
driver health issues, independent contractor
issues, port drayage, carrier and broker
registration, driver pay, and hazmat issues, not
to mention regulation of rail, air and water
carriers
• Truck speed limiter and CSA Safety
Management System proceedings are due out
of FMCSA this year
HOS – Truck Driver Hours of Service Rules
• Current rules result from 15 years of regulatory and court
proceedings, during which safety advocates pushed for more
burdensome restrictions
• Driving time is 11 hours per shift out of 14 hours maximum onduty time, with a mandatory break, and a 34 hour “restart”
between work weeks
• Restart rules are most problematic. Rules specify two 1am-5am
“sleep” periods during the 34 hours. Depending on timing, the
34 hour restart can exceed 50 hours, and force drivers into
Monday morning rush hour traffic.
HOS – Truck Driver Hours of Service Rules
• Trucking industry calculates 3% to 8% productivity loss
just from HOS
• Restricted driving time affected by two other FMCSA
initiatives: ELDs, required by Congress, and speed
limiters, which FMCSA will call for
Hours of Service Developments
• Because of adverse impacts, Congress suspended
restart rules temporarily for completion of a study of
pros and cons
• FMCSA restart analysis has been criticized as flawed
and Congress is being asked to extend relief
• FMCSA also proposing rules with stiff penalties for
shippers and brokers who “coerce” drivers to violate
HOS rules
• Consider contract provisions clarifying that shippers
require carrier and driver compliance with safety
regulations
CSA – Compliance, Safety & Accountability
• FMCSA’s goals deserve our support
• The intent is to reduce truck and bus crashes by using
data to identify high-risk carriers
• Making substandard carriers and drivers shape up or
shut down serves the public interest. All of us benefit
from safer highways.
• BASICs scores on DOT website (safer.fmcsa.dot.gov)
and “golden triangles” should indicate whether carriers
operate safely or have one or more red flags
• However, FMCSA’s systems for achieving CSA’s
worthwhile goals need significant improvement, and
cause adverse impacts as currently set up
CSA Shortcomings
• ATA, GAO, NTSB, DOT’s own Inspector General, and
others have identified CSA flaws and called for fixes
with little result
• GAO looked at 750 regulations (which may be part of
the problem) and found that FMCSA data do not
correlate well with crash risk
• Carriers are blamed for crashes they could not prevent,
and FMCSA seems unable to remedy this obvious
unfairness
• Carriers in lax enforcement regions may appear safer
than competing carriers elsewhere which are actually
more safe
CSA Issues for Shippers
• Flawed data may lead shippers to choose less safe
carriers when looking to choose safer carriers
• Flawed data may penalize carriers in other ways
• CSA data being used in “negligent hiring” lawsuits
against brokers and shippers arising out of truck
crashes
• HR 1120, pending in Congress, would reduce exposure
to lawsuits if carriers involved in crashes have DOT
registration, federally mandated insurance, a safety
rating above “Unsatisfactory” and there is no gross
negligence
What Can Shippers do to Help?
• Engage in advocacy on your own, with a group or both.
NASSTRAC members recently met with FMCSA and visited
Congressional offices
• Keep in touch on key issues with corporate management, coworkers, representatives in Congress and regulators. Follow
news of regulatory developments in the trade press or with
associations like NASSTRAC (www.nasstrac.org).
• Support a new Highway Bill. We need more highway
infrastructure investment, and it’s our best hope for other
fixes, like HR 1120.
• Monitor carriers and contracts. Compliance is important when
contracts are signed or renewed and at other times. Discuss
issues with good carriers that serve you well. Corrective
action may be under way.