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An August Regulatory And Enforcement Update From Washington For Trucking

The trucking landscape has been changing, both from within and through regulatory action taken on the outside. As enforcement actions change, part of our job is to keep you informed on anything that could impact the industry we all know and love.

This month’s regulatory update from Washington is no less full of intriguing information as past updates. Each month, new moves from Congress, the Trump Administration, states and/or other major players keep the industry on its toes. Motor carriers have learned to become quick on their feet in adjusting to a new normal.

Let’s first look at the ELD mandate and the new adjustment period announced by the Commercial Vehicle Safety Alliance (CVSA).

The New Adjustment Period

While commercial motor vehicle inspectors can still issue a citation to a truck driver who is not operating with an electronic logging device (ELD) beginning on December 18, they cannot place a vehicle out of service until at least April 1, according to the new guidance.

Of course, even if the vehicle is not taken out of service, the mark would still be notated under the Compliance, Safety, Accountability program and recorded in said carrier’s safety measurement system (SMS) profile.

According to the CVSA, the new phase-in timeframe is designed to encourage compliance, but not in an unreasonable way. While enforcement is still a tool, the agency wants to allow fleets to adjust without creating unnecessary traffic problems or supply chain disruptions.

It is also important to consider that certain aspects of the phase-in plan differ from state to state. When local law enforcement gets involved, it adds to the question of who has final jurisdiction.

Yet, when you’re at the receiving end of a violation, jurisdiction matters little. That this will be noted in the record and followed up on in future inspections matters far more. The last thing a motor carrier wants is a stain of a violation, no matter what that violation is for.

The issue of jurisdiction came up when the CVSA sent a letter to the Federal Motor Carrier Safety Administration raising the question. Specifically, they advocated for a phased-in approach to addressing jurisdiction.

In their letter, the CVSA used the 2004 cargo securement rule as an example of a phased-in approach to enforcement in this case, an approach that likely saved many lives.

Meanwhile, as is often the case in so many of these debates, other industry participants seek an altogether different outcome. In this debate, the Owner-Operator Independent Drivers Association (OOIDA) has come out openly petitioning the FMCSA to delay it even longer than April.

The group points out that many states – a full 26, to be precise – have not yet codified or incorporated the E-log enforcement language into state law. Until then, the OOIDA asserts that there is no enforcement mechanism in place.

According to OOIDA’s Todd Spencer, “We are concerned about numerous states issuing citations for the violation of non-existent state laws. State law enforcement should not be implementing the ELD mandate until they actually adopt the mandate into state law and train and equip their enforcement personnel to enforce it properly.”

It’s no secret that OOIDA has made many attempts in court to block the ELD mandate. Not only has it failed in federal courts, but the Supreme Court has also declined to review it. For these reasons alone, the FMCSA has confidently moved forward with ELDs and coming enforcement and fleets should be too, whether through a phased-in approach or not.

The CVSA asserts that the enforcement community is ready to begin enforcement of the rule on December 18, 2017. Still, will the ELD mandate even take effect?

If so, FMCSA will require that all interstate motor carriers use ELDs instead of paper logbooks. Fleets who are using older ELDs that don’t conform to the new standard – such as AOBRDs or automatic recording devices – will be forced to upgrade, but will have a two-year window in which to do so.

Since the ELD mandate is built upon a congressional component, any major changes to the mandate will have to be passed through Congress. The question now is: How likely is that?

Republicans Breathe New Life into An ELD Delay

Who would have thought, this close to the deadline, even as fleets prepare for it, the ELD mandate might be back on the chopping block? Yet here we are.

When we last reported on it, an ELD mandate was slowly making its way through committee. Now, it appears there is some taste in the House for such a stall after all.

Republican Reps. Brian Babin of Texas, Lloyd Smucker of Pennsylvania and Doug LaMalfa of California recently offered an amendment to the must-pass 2018 fiscal funding bill that would prohibit the Department of Transportation (DOT) from funding any regulation relating to or mandating ELD usage.

Congressman Babin has also recently proposed legislation that would delay the ELD mandate by two years and claims 43 co-sponsors on that bill. How likely is it that the Congressman’s efforts will bear fruit?

When he first introduced the amendment, Babin stated that, “If trucking companies want to continue implementing and using ELDs, they should go right ahead. But for those who don’t want the burden, expense and uncertainty of putting one of these devices into every truck they own by the end of the year, we can and should offer relief.”

Well, to see this amendment go anywhere, the House must first vote to adopt it and then advance the funding bill to the Senate. The Senate would then have to sign off on the House version of the bill and get it to President Trump’s desk for a signature.

If the Senate were to amend the legislation and leave the ELD mandate in place, the House would then have to clear the Senate’s version of the bill and send it on for a presidential signature.

Will It Happen?

While the legislative calendar looks bloated, Congress has until September 30 to get a government funding bill on President Trump’s desk and avoid a costly government shutdown. With House Speaker Paul Ryan recently admitting his conference would “need more time,” it increasingly looks like a stopgap measure will be adopted until something more permanent can be put into place.

President Trump himself has signaled that he would not be particularly opposed to a shut down if there is no funding in the bill to build a border wall with Mexico.

The only thing that is currently known are the number of unknowns. With the ELD mandate looming a scant 3 months away, the regulatory outlook needs to come into focus rather quickly.

A Look at Post-ELD Spot Rates

When the ELD mandate does go into effect in December, there is one thing that many analysts pretty much agree on and that’s a tightening spot market. What’s the result? A likely rise in rates, at least in the short-term.

Further analysis shows that the ELD mandate could result in up to a 7% loss of capacity in the for-hire carrier segment. Overall industry capacity loss is said to total almost 4%. The main driver of this change is the inability of motor carriers to fudge the numbers and spend less time on the road.

This essential “re-benchmarking” of the industry could result in a total of 5 to 15% increase in overall spot rates. Whatever the number is, almost everyone agrees that capacity and spot rates will tighten.

One online survey points to a 2 to 4% rate increase, with some over-the-top “doomsday” scenarios saying we could see a 20 to 25% year-over-year increase during peak season.

In fact, the ELD mandate is already having an impact on the spot market before the implementation deadline happens. As shippers and brokers do their best to procure more capacity, they find it in scarce supply.

The global supply chain has become so fragmented that disruptive events can have lasting impacts. While the ELD mandate – should it pass – could be one of those disruptors, it is likely the spot market would follow more long-term trends.

Motor carriers will become far more precise in how they operate. While some truck drivers and small companies may be priced out of the market, for the most part, large players and companies who have been in the game for a long time will be well-positioned to make the adjustment.

Fortunately, if you look at history as a guide, fluctuations in spot market pricing aren’t entirely new. As an example, tightened HOS rules in 2013 resulted in a 4% capacity squeeze. The polar vortex weather event earlier in 2014 created another capacity problem in the spot market.

Point is, the market has survived volatility before, so there’s no reason to think we won’t come out on the other side of this one in good shape. No matter how you look at it, from the ELD mandate to spot rates and more, it’s been a busy August. Thanks for taking this journey with us and we’ll see you next time with our next update from Washington.

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