Truckload Authority

Regulations take the spotlight in this edition of Capitol Recap. The Entry Level Driver Training rule has been delayed; the FMCSA has decided that that the percentage of drivers undergoing  random drug testing should be set at 50%, twice the current rate; and the Insurance Institute for Highway Safety expresses concern over portions of the proposed hours-of-service regulations. The following articles appear as they were published in the March-April issue of Truckload Authority. ELDT rule delayed The Federal Motor Carrier Safety Administration (FMCSA) has released an interim final rule that calls for a two-year delay in implementation of the Agency’s Dec. 8, 2016, final rule “Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators,” more commonly known as the ELDT final rule. FMCSA asked for comments on the delay. The interim final rule extends the compliance date for the rule from Feb. 7, 2020, to Feb. 7, 2022. The notice, announced by FMCSA on Jan. 29 and posted in the Federal Register on Feb. 4, said the delay in the compliance date would provide FMCSA additional time to complete development of the Training Provider Registry (TPR). The TPR will allow training providers to self-certify that they meet the training requirements and will provide an electronic interface that will receive and store ELDT certification information from training providers and transmit that information to the state driver-licensing agencies (SDLAs). FMCSA said the extension also provides SDLAs with time to modify their information-technology systems and procedures, as necessary, to accommodate their receipt of driver-specific ELDT data from the TPR. FMCSA said it was delaying the entire ELDT final rule, as opposed to a partial delay as initially proposed, because of delays in implementation of the TPR that were not foreseen when the proposed rule was published. The Federal Register notice was not a surprise to the trucking industry because in late November, FMCSA announced it was preparing the notice but did not know when it would be published. “Following a careful review of the public comments regarding the Entry-Level Training (ELDT) rule, FMCSA is extending the rule’s implementation for two years,” said an FMCSA spokesperson in November. “This extension is reflective of the Agency’s continued efforts to develop a secure and effective electronic trainer-provider registry for the new rule. The Agency remains committed to making the implementation of the rule as efficient and effective as possible.” Truckload Carriers Association Vice President of Government Affairs David Heller expressed concerns. “As an original member of the Entry-Level Driver Training Advisory Committee (ELDTAC), I am particularly concerned over the additional two-year window needed to promulgate a rule that was finalized almost three years ago in an effort to create a safer, better-trained driver,” he said. IIHS Concerns About HOS The Insurance Institute for Highway Safety (IIHS) has expressed concerns about portions of the proposed changes to the hours-of-service (HOS) rule that the organization believes would extend the daily work period under certain circumstances. IIHS, an independent, nonprofit scientific and educational organization dedicated to reducing deaths, injuries, and property damage from motor-vehicle crashes, said federal regulators’ plans to relax rules governing the hours professional truck drivers can spend behind the wheel raises concerns about safety. IIHS acknowledged none of the proposed changes would extend the 11-hour driving window. “Driver fatigue is a major risk factor in large-truck crashes,” said IIHS Senior Statistician Eric Teoh. Truckload Carriers Association Vice President of Government Affairs David Heller said flexibility in the hours-of-service rule is important to the trucking industry. “Right now, drivers only average six or seven hours of drive time each day,” he said. “So, at this point in time, whether they view the day being longer or continuous is pointless because we as an industry aren’t even averaging anywhere near those numbers anyway.” IIHS noted that in a study of large trucks involved in crashes with injuries or deaths, researchers from the organization and the University of North Carolina Highway Safety Research Center found drivers using a short-haul exemption had a crash risk nearly five times higher than those who did not. Specifically, professional truck drivers who reported driving beyond 12 hours since an extended sleep period were 86% more likely to crash than drivers who had been awake for less than eight hours. Drivers who reported driving more than five hours without stopping were more than twice as likely to crash as those who drove one to five hours. Another change FMCSA is proposing would allow drivers to expand the standard 14-hour window in which driving must be completed to 16 hours if they encounter adverse conditions, such as bad weather or unexpected traffic. Currently, drivers may extend their driving time under adverse conditions, but the window remains 14 hours. FMCSA said extending the driving window would encourage drivers to wait out the adverse conditions or drive slowly through them, rather than attempting to drive quickly to move beyond poor driving conditions. However, it theoretically creates a longer work period and could therefore increase fatigue, IIHS said. Another proposed change noted by IIHS is an option to stop the clock on the 14-hour driving window for an off-duty break of between 30 minutes and three hours. “FMCSA says that a three-hour rest in the middle of a shift would offset any potential downside of a 17-hour day, but that’s far from certain,” argued Teoh. Drug-testing increases The Federal Motor Carrier Safety Administration (FMCSA) has announced it will increase the annual percentage rate for random controlled-substances testing for CDL holders to 50%. The percentage increase takes effect for the calendar year 2020 and is double last year’s 25%. Under federal law, the testing percentage must increase “when the data received under the reporting requirements for any calendar year indicates that the reported positive rate is equal to or greater than 1.0%,” according to the FMCSA’s Dec. 26 notice. The requirement stems from the “Controlled Substances and Alcohol Use and Testing” rule issued in 2001, which indicates that the decision on whether to increase or decrease the percentage rate would be based upon the motor-carrier industry’s overall positive random controlled-substance test rate, as reported by motor carrier employers to FMCSA. The FMCSA notice states that the estimated positive random controlled-substance test rate in 2018 was 1%. For 2016 and 2017, the estimated positive usage rate for drugs was estimated to be 0.7% and 0.8%, respectively. The notice further states that, based on the 2018 survey results, the estimated percentage of subject motor carriers with random controlled-substance and alcohol testing programs in place is 94%, and the estimated percentage of all CDL drivers participating in such programs is 99%. “This is a good thing,” shared Truckload Carrier Association Vice President of Government Affairs David Heller. “We had the 50% threshold a few years ago. It’s no secret this nation has an opioid epidemic and, quite honestly, marijuana seems to be legalized at the state level every day. However, it is still illegal in terms of federal regulations. The 50% random test-rate number where we were two years ago allows our industry the opportunity to continue with a zero-tolerance policy. We won’t stand for drugs or alcohol to be used behind the wheel of the truck.” Heller posed the question, “So, how does this relate to the Drug and Alcohol Clearinghouse? It certainly increases the opportunity for carriers to discover illegal activity that is going on within their driving population,” he said. “Growing from 25% to 50% for random testing allows for greater opportunities to test the majority of your fleet.” FMCSA estimates there are 3.2 million CDL holders operating in interstate commerce and 1 million CDL holders operating in intrastate commerce. Based on these numbers, at least 1.05 million random controlled-substances tests would be conducted with an annual random-testing rate of 25% of all driving positions. At a 50% annual random-testing rate, approximately 2.1 million random controlled-substances tests will need to be conducted. Requiring that more drivers be tested will set the industry back an additional $50 to 70 million dollars. The minimum annual percentage rate for random alcohol testing will remain at 10%. AB5 restraining order The federal judge who issued a last-moment restraining order preventing the State of California from enforcing its new AB5 law on motor carriers has granted another reprieve following a Jan. 13 hearing. Many industry stakeholders anticipated the judge would approve the California Trucking Association’s (CTA) request for a preliminary injunction in the case. Yet, at the close of the hearing, U.S. District Judge Roger Benitez extended the restraining order until he rules on the injunction request. On Jan. 16, he granted a temporary injunction indefinitely prohibiting enforcement of AB5 against motor carriers. A new development in California AB5 came early February when a bill that mirrors the California law was introduced in the Democratic-controlled U.S. House of Representatives. If the bill makes it to the Senate, Republicans say it will be defeated, Benitez’s initial decision followed lengthy arguments in which he questioned both CTA representatives and those from the State of California. The AB5 law is now in effect for most California employers other than motor carriers, although freelance writers and photographers, Uber drivers, and some construction-related businesses have filed separate lawsuits. AB5 requires employers to use an “ABC” test to determine if a worker is an independent contractor or employee of the company. Most problematic for the trucking industry is the “B” prong, which states a company cannot use independent contractors to perform work unless it is “outside the usual course of the hiring entity’s business.” In other words, according to the CTA and other industry stakeholders, AB5 prevents a motor carrier from working with independent contractors (i.e., owner-operators), an arrangement used by most motor carriers for decades. “This decision was important to the industry because the industry supports a business model that has been in place for decades,” said Truckload Carriers Association Vice President of Government Affairs David Heller. “TCA has a large number of carriers that use the independent contractor model. Our members actively work to uphold and surpass all associated rules and regulations to ensure owner-operators are treated fairly. We applaud the ruling that has come out of the courts, and hope AB5 never goes into place in California or any other state.” AB5 is intended to prevent companies from classifying “would-be” employees as independent contractors, relationships that save companies money as they do not have to offer benefits or paid time off, or pay a portion of the contractor’s payroll taxes. On the other hand, many independent contractors prefer such an arrangement for the flexibility it offers in accepting work, charging competitive fees, and allowing them to contract with multiple companies. Under AB5, thousands of California-based owner-operators (estimated to comprise over 25% of truck drivers in the state) would essentially be left unemployed, at least in California. Reports indicate at least one nationwide carrier, Prime Inc., has offered 6,000 independent contractors “relocation packages” to assist them in moving out of California, where the contractors would be exempt from the law. Such relocations will likely impact stakeholders throughout the trucking industry as truck sales, repair orders, diesel sales, and even advertising will likely decrease at a rate corresponding with the number of independent contractors who choose to move to another state. For the time being, carriers and independent contractors alike can sit tight. With a preliminary injunction in place, both are protected from AB5 for now, and the wheels of justice turn slowly. Help stop trafficking In January, U.S. Department of Transportation Secretary Elaine Chao announced a series of efforts that aim to combat human trafficking in the transportation sector. Congressional leaders, state government personnel, and transportation-industry stakeholders, joined Secretary Chao in her call to action. “The U.S. Department of Transportation is committed to working with our public and private partners to fight human trafficking on America’s transportation system,” said Chao. Among the initiatives announced by Chao is a renewed focus on the “Transportation Leaders Against Human Trafficking” pledge to train the transportation workforce and raise public awareness on the issue of human trafficking across all modes of transportation. Secretary Chao is challenging the transportation industry to commit to “100 Pledges in 100 Days.” The Department anticipates more than 1 million employees across all modes of transportation will take part in this initiative. “Secretary Chao’s announcement certainly continues to place this problem at the front and center as one of the biggest issues that plagues our nation,” said Truckload Carriers Association Vice President of Government Affairs David Heller. “What’s worse is that a majority of the victims are put in these scenarios against their will. They’re not choosing to be in this situation. What makes trucking so prominent in this initiative is the proverbial size of our industry and the eyes and ears that we possess in order to report problems and help people in need. We as an industry have always taken a stance against this heinous crime and we will continue to do so. And this human trafficking event just emphasizes that.” Human trafficking is modern-day slavery, affecting millions of adults and children in the United States and worldwide. Victims are of every age, race, gender, background, citizenship, and immigration status. Some are trafficked within their own communities on various forms of transportation, while others are transported to new locations. Truckers Against Trafficking (TAT), through its educational programs, plays a key role in the trucking industry’s efforts to curb trafficking. TAT statistics show that to date 845,115 professional truck drivers are registered as TAT trained, 2,496 have made calls for the National Human Trafficking hotline, 663 likely indicators have been generated, and 1,230 victims have been identified. If you see or suspect a case of human trafficking during your travels, call 911 or the National Human Trafficking hotline at (888) 373-7888. If you cannot call, text 233733.

2019 brought predictions of a looming recession, tariffs and trade wars, overcapacity in the freight market, and fears of diesel fuel price increases. As the calendar turned to 2020, despite the potential pitfalls, 2019 turned out to be an OK year for many carriers. So, what’s next? Will the economy slide into the predicted recession, or will the longest period in U.S. history without a recession continue? “The United States economy will look about the same in 2020 as it did in 2019, but will improve in 2021,” is an opinion by Conerly Consulting Economist Bill Conerly, Ph.D. published in a recent Forbes magazine. “International trade presents the greatest uncertainty to the economic outlook,” he continued, “and if that clears up, 2020 will be even better.” Indeed, the worrisome predictions of a recession simply have not materialized. “The risk of an economy-wide recession that was a growing concern through the third quarter of 2019 has largely faded, with healthy consumer fundamentals expected to provide sufficient momentum to get through the slow patch in industrial activity,” said ACT Research President and Senior Analyst Kenny Vieth. “This is not a poor business environment,” said FTR Transportation Intelligence CV Equipment Expert Don Ake. “Freight levels are high after a couple of years of vibrant growth. Rates took a hit from the high prices in 2018 but have started to recover some. There is plenty of freight to haul, so well-managed fleets will be profitable, as poorly managed fleets go bankrupt due to the slowing of freight growth.” The U.S. Bureau of Economic Analysis (BEA) reported the fourth quarter gross domestic product at an annualized rate of 2.1%, bringing the 2019 total growth to 2.3%. It wasn’t as good as the 2.9% achieved in 2018, but it was still positive. Tariffs played a role in the 2019 GDP. Reduced exports meant fewer sales opportunities, adding downward pressure. At the same time, reduced imports meant more opportunity for U.S. manufacturers, pushing the GDP upward. How those pressures impacted trucking depends on the segment served. Those who haul a lot of import-export freight may have experienced a downturn, while those who haul mostly domestic freight may have seen a benefit. A trade agreement between the U.S. and its largest trade partner China has been signed. The agreement covers about 25% of the products involved in the tariff dispute, but it paves the way for more agreement. Another agreement that bodes well for trucking is the United States-Mexico-Canada Agreement (USMCA) that was signed into law Jan. 29. “This is a colossal victory for our farmers, ranchers, energy workers, factory workers, and American workers in all 50 states,” said President Donald Trump in a Rose Garden ceremony. “Today we are finally ending the NAFTA nightmare.” NAFTA, the North American Free Trade Agreement, was the predecessor of the USMCA. The new agreement clarifies rules of origin for vehicles and other products that are assembled outside of the U.S. and sets limits on the number of parts that can be imported. The amount of cash Canadians can spend through U.S. online vendors without paying tariff was increased, and Canadian markets were opened to U.S. agricultural products. There was some fear of fuel-price increases as the year turned over, both from the International Maritime Organization mandate for low-sulfur bunker oil (fuel) for ocean-going ships and from escalating tensions with Iran. Neither problem has materialized, and fuel prices remain steady. Perhaps the largest factor impacting trucking for 2020 was the increase in fleet capacity. New trucks sold in record numbers during some months of 2019, and the year was the second-best ever. When strong growth in the 2018 economy increased, both freight availability and the rates to haul it, carriers increased capacity to maximize the revenue potential. Standard safety features and improved fuel economy of the newer models helped drive sales, too. The result was that the U.S. fleet of Class 8 tractors grew much faster than available freight did, slowing rate increases and eventually pressuring rates downward. The overcapacity situation resulted in dire predictions for the last quarter of 2019 and into 2020. Instead, orders for new Class 8 equipment slowed considerably as prior orders were filled, tempering the overcapacity situation. Going into 2020, rates haven’t improved, but they haven’t fallen as far as some thought they would, either. So where does that leave truck sales? “Flat freight growth means fleets do not need to expand,” said FTR’s Ake. “A growing economy and high freight volumes enables them to replace old units with minimal risk. So, we are left with only replacement demand.” For carriers that are well run and who don’t overbuy new equipment, 2020 can be a profitable year. FTR is forecasting GDP growth of 1.7% for 2020, a few points below the 2019 level. ACT Research is slightly more generous, predicting 1.8% GDP growth. Conerly, in his Forbes piece, predicts GDP growth to closely resemble 2019’s result, possibly growing to as much as 2.6% before expanding to 3% in 2021. All of the forecasters look to manufacturing as a possible drag on the economy. Ake points out that the ISM manufacturing index of 46.8% is the lowest it has been in 10 years. Of course, any economic predictions for coming months can be impacted by events. Trump has announced unilateral tariff increases at various times in 2019, and he may not be finished. Ake quipped, “One tweet can change everything in a moment.” The U.S. and China may not come to agreement on the 75% of products not yet resolved. Tension between the U.S. and Iran remains high and could escalate. The impeachment trial of President Trump ended in his acquittal, but it’s doubtful that the hateful rhetoric coming from both sides will subside. As if the political climate wasn’t stormy enough, it’s an election year. Congress could remain deadlocked on a majority of issues, or it could see a sudden burst of cooperation as the two major parties attempt to get something done for their constituents. One item that is seeing increased attention is a replacement for the Fixing America’s Surface Transportation (FAST) Act, set to expire this year. Competing infrastructure proposals are in committee in both houses of Congress with a resolution expected prior to the November election. Neither proposal contains an answer to the question of how funds will be raised, but another bill currently in the House proposes a 25-cent raise in fuel taxes phased in over five years. Whether Congress has the stomach to consider a tax increase during an election year remains to be seen. In closing, another cloud has appeared on the horizon and is growing fast. The Coronavirus is spreading rapidly, with no known method of immunization. While the coronavirus itself is a common cause of cold and flu symptoms, a strain originating in Hubei Province, China, is proving to be exceptionally virulent. Already impacting international travel, the virus could conceivably impact shipping and even manufacturing. No one knows how far it will spread or if the current form of the virus will evolve into a pandemic or simply a brief disruption. Time will tell if 2020 ends up great or poor in economic terms, but most of the forecasters are anticipating a year that’s somewhere in between, right around “OK.”

The Anatomy of a Hearing: Senate Subcommittee on Transportation and Safety David Heller Vice President of Government Affairs, Truckload Carriers Association The overall theme of the hearing was the safety ramifications of all the topics being discussed in today’s trucking environment. The presentations were really well done; each directly addressed the pertinent topic while giving committee members the opportunity to tell their side of the story. I was especially glad to see the two senators — Deb Fischer, R-Neb., and Tammy Duckworth, D-Ill. — who chaired the committee had done their homework and were well versed on the industry. There was quite of bit of discussion both for and against proposed changes to the hours of service, and one presenter encouraged senators to pick up the pace in our effort to recognize the positive aspects of hair testing and come forth with proposed federal guidelines for hair testing. Some carriers are using hair testing in both pre-employment and random screening, and are showing positive results in eliminating drug use from the workforce. Trucking has, and always will, maintain a zero-tolerance policy. Jake Parnell Manager, Cattleman’s Livestock Market Livestock Marketing Association The majority of livestock hauls can be concluded within the timeframe outlined by hours-of-service regulations without significant stops, which limit airflow. However, unfortunately for livestock located in or heading to states outside the center of the country, this is not the case. When drivers “run out of time” while hauling live animals, they are given the grim prospect of unloading the livestock or leaving it on the trailer for a 10-hour stretch. Unlike the haulers of nonliving products, livestock haulers cannot merely find a safe place to park for their 10-hour rest and leave the cargo on the trailer. Leaving animals on a trailer to suffer from the elements, lack of ventilation, and probable injury is unacceptable. Simply unloading the animals for 10 consecutive hours of rest is also not a good option. With respect to biosecurity, facility and livestock owners, as well as state and federal animal-health officials, spend significant time creating and following procedures to minimize risk of animal diseases spreading. This includes laws requiring that certain livestock crossing state lines travel with interstate certificates of veterinary inspection that detail where the load came from and where it is going. The trouble with unloading livestock at some waypoint along the trip is that it is almost impossible for drivers to know where they will need to stop in 11 hours with any measure of certainty. These movement documents and the disease-traceability programs associated with them are in place to track and prevent contagious-disease outbreaks in this country. Every time animals in transit are unnecessarily unloaded and penned next to other animals in transit, the risk of disease spreading increases. Lewie Pugh Executive Vice President, Owner-Operator Independent Drivers Association (OOIDA) If you ask most drivers what Congress has done recently to improve their profession, I regret to inform you the answer you’ll hear is “nothing.” In fact, most of our members would tell you that Congress generally enacts laws that not only drive people away from the industry but also decrease highway safety. This isn’t a partisan attack against Republicans or Democrats. Instead, this is an honest reflection of how truckers view the legislative branch as a whole. Don’t get me wrong. While Washington has contributed its fair share to the dysfunction in trucking, there is plenty of blame to go around. Too many drivers are forced to haul cheap freight; too many motor carriers mistreat and underpay drivers; too many shippers and receivers detain drivers for excessive periods of time; too many safety advocates seek mandates that don’t work; and too many motorists don’t even attempt to operate safely around big trucks. As Congress considers the next highway bill, there are several ways you can make a positive difference for American truckers. Repeal the failed electronic logging device mandate; repeal the overtime exemption for drivers in the Fair Labor Standards Act; provide dedicated funding for new truck-parking capacity; create a fair process for drivers to appeal inspection violations written in error; and fix the nation’s crumbling infrastructure in an equitable way. Do not mandate speed limiters; do not mandate front and side underride guards; do not mandate higher insurance minimums; do not enact a truck-only vehicle miles-traveled-tax or expand tolling authority; and do not pass the DRIVE-Safe Act. Tammy Duckworth D-Ill. Ranking Member, Subcommittee on Transportation and Safety Our global competitiveness is closely tied to a safe, reliable, and efficient transportation network. The nexus between interstate commerce and commercial trucking clearly demonstrates a close relationship between federal infrastructure investments and our nation’s economic prosperity. Of the 18.6 billion tons of freight goods that were moved across the United States in 2018, 12 billion tons — valued at more than $12 billion — were moved by truck. Investing in my state’s infrastructure keeps goods flowing through the entire system and delivers a tremendous return on investment for industries and customers in all 50 states. Yet the most important aspect of any efficient transportation network is safety. Unfortunately, safety remains a work in progress and we have a long way to go. Bottom line is that we can, and we must, do better. Our nation endured 36,560 roadway fatalities in 2018, including 4,951 fatalities involving large trucks. While it is technically accurate that large-truck fatalities declined 69 percent from 1980 to 2017, it is important to recognize that over the last decade, large-truck fatalities have increased by 47 percent. We need to keep an eye on evolving trends and their impacts on roadway users. And right now, safety trends are a reason for concern. Meanwhile, federal agencies like FMCSA, the National Highway Traffic Safety Administration, and the General Accounting Office are pursuing a number of data-collection efforts, including pilot programs and investigations to analyze the impacts of safety-related trucking initiatives. These agencies, and others like them, should have the opportunity to provide Congress with the technical analysis and stakeholder feedback needed to minimize uncertainty associated with untested initiatives. Deb Fischer R-Neb., Chairman Subcommittee on Transportation and Safety Both by weight and volume, trucks move more freight domestically in the United States than any other form of transportation. This includes first- and last-mile connections, long-haul transportation, and everything in between. The industry is also a major source of employment across our country. The trucking industry is a key component of our transportation network, and it is vital to our economy. Federal trucking policy has gone through many changes in the past decade, including both changes in the industry and regulatory changes at the Federal Motor Carrier Safety Administration. Of the many trucking issues I hear about from Nebraskans, hours of service is at the top of the list. The concerns I hear from truckers are consistent. These regulations are inflexible and do not reflect real-world situations. I’m encouraged the FMCSA is taking steps to revise these regulations and that interested stakeholders have made their comments known to the agency. One group in particular that has faced challenges with the hours-of-service regulations is our livestock haulers. They have the responsibility of moving live, perishable products. Some livestock haulers can find themselves in a regulatory bind between the hours-of-service requirement and animal-welfare laws. While the hours-of-service regulations have received significant attention, several other regulatory changes that were set to go into effect, including the Entry-Level Driver Training rule and the Drug and Alcohol Clearinghouse, both of which will improve safety have been delayed in part or in whole. Dawn King President, Truck Safety Coalition Board Member, Citizens for Reliable and Safe Highways My father, Bill Badger, was killed on Dec. 23, 2004, just over the Georgia state border, by a tired trucker who fell asleep at the wheel and crashed into his car. At the time of the crash, Dad was on his way to the airport to fly to New Jersey and join me and my siblings for Christmas. The truck driver, who fell asleep and smashed into Dad’s car, said he had been driving all night in order to get to Atlanta by 7 a.m. so he could be assigned to another truck, which was headed to Florida, in order to be with his family for Christmas. In the end, however, neither my family nor his were whole that holiday. Now is not the time to weaken truck-safety rules and permit special-interest rollbacks of proven safety reforms. FMCSA should abandon efforts to weaken the hours-of-service rules. One unsafe and unwarranted change would allow drivers to extend by two hours the maximum window during which driving is permitted under the adverse-driving-conditions exemption to the HOS rules. In the Advanced Notice of Proposed Rulemaking, the FMCSA asserted that this proposed change to the adverse-driving-conditions exemption would not increase driving time or vehicle miles traveled (VMT); thus there would be no safety concern. Yet, this ignores the effect that longer shifts have on injury risks and error rates. There is compelling research that found lengthening a workday yields an increased injury risk to a worker. One study found that injury risks go up after eight hours on task, with a 30% increase on a 12-hour task. This validates the findings from an earlier major meta-analysis of relative risk of performance lapses over the course of different shift durations that found risk was approximately doubled after 12 hours of work and tripled after 14 hours of work. More recently, a study was performed to identify associated factors with multidimensional driving risks, specifically focusing on fatigue, sleep quality, daytime sleepiness, and health status among Korean occupational drivers. One of the key findings: “those working for longer than 12 hours per day … were a vulnerable group.” Even if a driver logs the same number of hours on duty or driving, this proposed change would result over a longer elapsed time, which would result in a longer day overall. Sgt. John Samis Delaware State Police | President, Commercial Vehicle Safety Alliance (CVSA) Clear, enforceable rules are the cornerstone of an effective regulatory framework designed to ensure safety on our roadways. Unfortunately, regulatory activity at the Federal Motor Carrier Safety Administration – one of FMCSA’s basic responsibilities – has come to a near standstill, and the necessary work of maintaining and updating the regulations is suffering. High-profile initiatives, such as implementation of the electronic-logging-device rule, can consume the agency’s resources, especially when those efforts are met with a high volume of exemption requests. One hours-of-service issue is the “personal conveyance” designation under the hours-of-service rules. To be able to log personal conveyance time as off-duty, drivers must meet several conditions as outlined in the regulatory guidance. These include being relieved of all on-duty activities and responsibilities and ensuring that the off-duty trip is personal in nature. Under the revised guidance, a driver could, in theory, drive hundreds of miles over the course of several hours, all under the designation of “personal conveyance.” This presents the opportunity for increased driver fatigue and risk on our roadways, as drivers may decide to travel in order to strategically relocate to an alternate location after driving a full day. CVSA has petitioned the agency to provide a clear, set distance that is permissible under the personal-conveyance designation. In setting clear guidelines on the use of personal conveyance, CVSA recommended that FMCSA look to the standard set in Canada, which allows drivers to use a vehicle for personal conveyance purposes for a maximum of 75 km per day (approximately 46 miles), unladen. Chris Spear President and CEO American Trucking Associations (ATA) An increasing number of motor carriers are conducting pre-employment and random drug tests using drivers’ hair as a testing sample. Hair tests provide a better, longer picture of an applicant’s past drug use and are more difficult than other testing methods to subvert. However, since urine is the only sample type permitted under DOT regulations, companies that voluntarily conduct hair tests must do so in addition to mandatory urine tests. This duplicated time and expense deters fleets from adopting this more effective testing method. To help eliminate this redundancy and incentivize more fleets to conduct hair testing, ATA strongly supports the recognition of hair testing as a federally accepted drug-testing method. The Substance Abuse and Mental Health Services Administration has long expressed an interest in recognizing hair testing as a federally accepted drug-testing method, and has been developing guidelines to recognize hair testing since the early 2000s. Unfortunately, progress has been inexcusably slow. The development of standards by Health and Human Services will pave the way for regulated employers to use this testing method and allow them to identify a higher number of safety-sensitive employees who violate both federal drug-testing and medical-qualification regulations. Additionally, having hair testing as a recognized alternative drug-testing method would give motor carriers the ability to report positive hair test results to drivers’ subsequent prospective employers through FMCSA’s now-implemented Commercial Driver’s License Drug and Alcohol Clearinghouse. ATA urges Congress and this subcommittee to apply further pressure on HHS to pave the way toward adoption of this important safety initiative. Unfortunately, while this country in recent years has seen prescription opioid abuse grow to an epidemic and a correlated uptick of drug-impaired driving, we continue to wait for these critical technical guidelines to be completed so that DOT can recognize the use of hair testing as a federally accepted drug-testing method.

Moving Forward for the People. America’s Transportation Infrastructure Act. Build America Fund. These are proposals from Democrats, Republicans, and industry groups, working separately and — all too rarely — together to address the country’s deteriorating infrastructure. When something is finally accomplished, like the Fixing America’s Surface Transportation (FAST) Act signed into law in 2015, it’s often a case of too little too late. Proposals to replace the FAST Act suffer from the same malady. The most recent Report Card from the American Society of Civil Engineers (ASCE), issued in 2017, claims it will take $420 billion to bring the nation’s roads up to acceptable standards, plus another $123 billion for needed bridge repairs. While this is necessary work, it doesn’t address the bottlenecks, which cause massive travel delays, or safety innovations that could reduce accident risks. Add another $167 billion for system expansion and $126 billion for enhancements, according to ASCE. The needed total funding of $836 million is a far cry from the $305 billion approved in the FAST Act — and between monetary inflation and further deterioration, the total funding needed has undoubtedly risen. In his 2019 State of the Union address, President Donald Trump discussed the seriousness of the problem. “I know that the Congress is eager to pass an infrastructure bill,” he stated, “and I am eager to work with you on legislation to deliver new and important infrastructure investment, including investments in the cutting-edge industries of the future. This is not an option. This is a necessity.” The president also warned against partisan bickering. “Victory is not winning for our party,” he said. “Victory is winning for our country.” After a year, are the parties any closer to a dialogue about infrastructure? In his 2020 State of the Union address given on Feb. 4, Trump devoted a scant two sentences to highway infrastructure, saying, “We must also rebuild America’s infrastructure. I ask you to pass Sen. (John) Barrasso’s, R-Wyo., highway bill — to invest in new roads, bridges, and tunnels across our land.” Both sides of the aisle stood to applaud this sentiment in a rare mark of bipartisan approval during the address. Trump ended his address by stating, “Our spirit is still young; the sun is still rising; God’s grace is still shining; and my fellow Americans, the best is yet to come!” Meantime, progress on infrastructure spending grinds along in the slow lane. Barrasso’s bipartisan highway bill S. 2302, America’s Transportation Infrastructure Act (ATIA), was introduced to the Senate July 29, 2019. On July 30, the Environment and Public Works Committee unanimously advanced S. 2302, and it is now awaiting further action in the Senate. The bill calls for $297 billion in highway spending between 2021 and 2025; plus additional funding for critical Interstate projects ($5.5 billion); bridge repair ($6 billion); safety incentives ($500 million); and reduction of wildlife-vehicle collisions ($250 million). In a Nov. 19 op-ed piece for the Washington Times, cowriters Barrasso and bill cosponsor Sen. Tom Carper, D-Del., wrote, “Our highways and transportation infrastructure are critical to our country’s success. They are vital arteries of commerce, connecting rural areas to major cities. It’s time to make a significant investment in them.” Those comments are in stark contrast to an Aug. 15 editorial in the Washington Times in which author David A. Ditch called the bill “severely flawed, layering newly minted handouts on top of long-running policy problems.” Of particular concern is the Highway Trust Fund, which is presently inadequate to fund needed highway spending. Ditch criticized proposed spending on green initiatives such as carbon-emissions reduction, charging stations for electric vehicles, and funding for walking and biking trails. Another issue is determining the final cost of the bill. In a summary of the bill’s provisions issued by Barrasso and Carper, no total expenditure is specified. The bill lists $287 billion for highway spending over five years, stating that it’s a 27% increase over the FAST Act currently in effect. Other projects are listed, but it’s unclear if funding is to come from the $287 billion listed for highways or from other sources. Despite the ATIA being a bipartisan effort, House Democrats have their own bill. As January came to an end, House Transportation & Infrastructure Committee Chair Peter DeFazio, D-Ore., Ways and Means Committee Chair Richard Neal, D-Mass., and Energy and Commerce Committee Chair Frank Pallone, D-N.J., have introduced their own $760 billion bill to the House of Representatives. “Due to decades of underfunding and neglect, America’s infrastructure system is falling apart, and we’re falling behind our global competitors,” said Neal. “The deficiencies of our roads, bridges, transit, water systems, broadband, and electrical grids hold our nation’s economy back.” The House bill calls for $329 billion in highway and highway-safety spending. The highway spending includes funding for an increase of electric-vehicle charging stations and alternative fueling options. Additionally, $431 billion would be directed to nonhighway investment, such as $105 billion for mass transit upgrades; $55 billion for rail improvements, including investment in Amtrak; and another $30 billion for airport improvements. $34.3 billion would be directed toward clean energy; $25.4 billion toward clean drinking water; and $50.5 billion for water and wastewater infrastructure; with $98 billion slated for broadband and communications. One item missing from both infrastructure bills? How to pay for all of it. The Highway Trust Fund (HTF) and how it will be replenished is the elephant in the highway-spending room. It’s obvious that current funding methods won’t get the job done. The HTF is expected to be completely depleted by 2021, according to the Congressional Budget Office, which predicts a $138 billion shortfall by the year 2027. To eliminate the backlog of needed repairs, however, a fuel tax increase is the most likely solution — for now. Despite inflation, the federal fuel tax hasn’t been raised since 1993. One proposed solution from the American Trucking Associations (ATA), backed by the Truckload Carriers Association (TCA), is the Build America Fund (BAF). In its “7 Essentials to Understanding the Build America Fund,” the ATA points out that the federal government will need to raid the general treasury to complement what’s left in the HTF or risk cancellation or delay of critical transportation projects. TCA Vice President of Government Affairs David Heller is firmly in the raise-fuel-taxes camp. “Fuel taxes are the easiest and most efficient way of paying for roads and bridges,” he said, explaining that no other funding method puts a greater percentage of dollars collected into construction. Indeed, the BAF release claims that administrative costs for fuel taxes are less than 1% of revenue, leaving over 99% to go directly to the HTF. Toll operations take between 12% and 33.5% of revenues for administrative costs, according to the release. Another issue is the use of HTF dollars to fund nonhighway projects such as expanding broadband networks and public-transportation projects. “The purpose of the Highway Trust Fund is to pay for roads and bridges, but unfortunately, funds are continually siphoned off for other purposes,” said Heller. The TCA-supported proposal to fund the HTF calls for a $0.20 increase in fuel taxes, applied at the wholesale terminal rack, meaning the tax would be collected as the fuel is loaded on the delivery truck. The increase would be limited to $0.05 per gallon each year until the full $0.20 is reached. In 10 years, the fund is expected to generate $340 billion to the HTF, keeping it solvent while repairs are made and alternative forms of funding are explored. A similar proposal was introduced to the House of Representatives by Rep. Earl Blumenauer, D-Ore., on May 21, 2019. In a statement posted on his website, Blumenauer stated, “It is past time that we get real about funding our infrastructure needs. We can’t afford inaction any longer.” H.R. 2864, the Rebuild America Act of 2019, was quickly referred to the House Ways and Means Committee, where it remains. Like the BAF, Blumenauer’s bill proposes a $0.05 per gallon increase each year — but for five years, making the total tax increase $0.25 per gallon. The bill also presses Congress to replace the fuel tax with a more sustainable system by 2029. So, there is an infrastructure bill in each chamber of Congress, along with a bill in the house to raise fuel taxes to help fund repairs and growth. None of the proposals are moving quickly, but there’s hope. “The good news is that more people are talking,” said Heller. “That doesn’t mean that more people are finding a consensus, but discussion is occurring.” More discussion was expected at a bipartisan forum Feb. 16 at the University of Nevada in Las Vegas. The host of the event, United for Infrastructure, is a nonprofit, nonpartisan organization “dedicated to educating the public and policymakers about the importance of America’s infrastructure,” according to the group’s website. Sponsored by an assortment of organizations and labor unions, including ASCE, the “Moving America Forward Forum” is designed to give presidential candidates a platform for addressing infrastructure issues and their solutions. Whether within the halls of Congress or offsite at a sponsored forum, the talks should intensify as November looms closer. “Infrastructure is a fairly major political point right now. It’s being discussed in more and more committees in both houses,” said Heller. “As we get closer to the election, more politicians will want to be able to tell their constituents that they got something done.” One major discussion took place in the House Ways and Means Committee in January. Addressing the “On Paving the Way for Funding and Financing Infrastructure Investments” hearing, Madrus, LLC Founder DJ Gribbin, former General Counsel to the U.S. Department of Transportation, claimed that ownership of the infrastructure was part of the problem. “Even by the broadest definition, the federal government owns less than 7% of the nation’s public, nondefense infrastructure,” said Gribbin. For highways and streets, the percentage is only 1%. His point is that all tax dollars come from the community, but dollars that are collected and then distributed by the federal government are often wasted because of inefficiency. “While the collection of the gas tax is wonderfully efficient, the expenditure of those funds is not,” he said. New Jersey Department of Transportation Commissioner Diane Gutierrez-Scaccetti addressed the committee sharing, “There is no more important funding decision than that which involves this nation’s transportation network,” she said. Addressing fuel taxes, she said, “It is the single most important mechanism to generate significant revenue necessary to maintain and improve our transportation network.” eBooleant Consulting LLC Founder Dr. Phillip J. Fischer stressed the importance of making funds available for state and local governments to borrow for infrastructure projects, suggesting several avenues for issuing bonds to raise cash. As Heller said, “Discussion is occurring.” While Heller supports funding the HTF with fuel taxes, he also has an eye to the future. Sales of electric automobiles are on the rise, and truck manufacturers are getting closer to a feasible model for over-the-road use. “People are talking about a VMT (vehicle miles traveled tax) as a replacement for the fuel tax,” said Heller. “But I don’t think the country is ready for it.” Heller is addressing another infrastructure problem that looms on the horizon. Electric vehicles, including trucks, are limited by the range of their batteries. Most electric vehicles are limited to an area that allows them to return to their point of origin for a recharge. With government-provided incentives, stations that allow recharging without returning home may soon be as common as today’s gas stations. Incentivizing the building of a network of charging stations is easier than figuring out how to raise tax dollars from the stations. A VMT could be a solution. Technology exists to collect this tax in various ways. A simple method is to require owners to report mileage each time they renew registration on their vehicles, paying any taxes due at that time. However, paying a year’s worth of VMT at a time could be objectionable to many vehicle owners. Devices like those used in tolling and scale-bypass applications can be adapted to read a vehicle’s odometer at certain locations, like charging stations, adding VMT to the cost of charging. Similar systems have been used in Europe at gas and diesel pumps. No one knows for certain what will power trucking fleets a decade or two down the road, but one fact remains: A method of acquiring funding to maintain roads and bridges will need to be found and adapted. At the rate Congress is moving to approve current funding, more cooperation will be needed to implement a replacement strategy for fuel taxes. Until Congressional leaders replace bickering with bargaining and contention with consensus, the answers remain elusive.