When trucking regulations run amok

Regulations have been my profession, my life, for many years. Trucking regulations, to be precise. I’ve devoted my career to helping fleets better understand and comply with the hundreds of safety-related regulations that govern their operations. And I step in to defend those fleets when they inevitably run afoul of the rules.

Trucking is a heavily regulated industry, understandably so. It’s dangerous. Thousands of people die in the U.S. each year in accidents involving large trucks and buses, not to mention those seriously injured.

Is it always the truck driver’s fault? No. In fact, data suggests it is rarely the commercial driver’s fault. Does it matter? Not really.

We know that large trucks and buses tend to do much more damage in crashes than passenger vehicles, just by virtue of their mass. So, regardless of whether the commercial driver is to blame for the circumstances of the accident at hand, the consequences are exacerbated by the mere presence of the truck or bus.

Assuming we’re a society that prefers fewer and less serious accidents of this variety, the question is how. How do we achieve that? Whether we like it or not, one of the solutions is regulation.

But what happens when those regulations go too far? Or perhaps not far enough? What happens when regulations or the lack thereof lead to bigger problems?

I was disappointed—but not really surprised—when I read the results of a recent study, which concluded that not only had accidents not decreased since the implementation of the Electronic Logging Device (ELD) rule in 2017, but they have actually been on the rise. Regulators assured us, after all, the ELD mandate would avoid 1,844 crashes and save 26 lives annually.

So will the ELD rule be repealed now that studies disprove one of their key underlying assumptions? No chance! This begs the question, what happens when regulations run amok?

Why do we regulate?

“Society cannot exist without law. Law is the bond of society: that which makes it, that which preserves it and keeps it together. It is, in fact, the essence of civil society.” – Joseph P. Bradley (Justice, U.S. Supreme Court).

The United States—like virtually all modern societies—is a nation of laws. Our founding fathers, in their aversion to tyrannical monarchies, saw fit build the country on a so-called rule of law. Thomas Jefferson said “the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived." Madison added, "A government without the means of executing its powers is a government without power." And Alexander Hamilton observed that "The purpose of government is to promote the general welfare."

In short, laws and regulations serve as the backbone of a well-functioning society, ensuring order, stability, and the protection of individual rights and the common good. In the U.S., regulations play a vital role in various aspects of life, including governance, the economy, public safety, and the protection of individual liberties.

What’s clear is that our founders believed government has a role to play in protecting the people, promoting the general welfare, and ensuring that the government is able to function effectively. Regulation is a tool to achieve these goals.

There’s no question that laws and regulations, used appropriately, can have desirable effects. But they can also go too far. The founders also believed in limited government. They didn’t want government to hold too much power, and they were concerned about the potential for government to abuse its power. That balance between regulation and limited government is complex. It’s one we’ve debated for centuries.

There’s just no easy answer to how much regulation is the right amount. But there are signs, hints that the government has gone too far or not far enough in its attempts to protect the people. We see some of these signs in trucking regulation today.

A brief history of trucking regulation

To fully appreciate the current regulatory landscape in trucking, we must first look to its historical context. The trucking industry in the U.S. experienced rapid growth throughout the 20th century, driven by technological advancements and increased demand for the transportation of goods.

But as trucks and buses began to flood our nation’s highways, some concerns emerged, primarily in the areas of safety, competition, and the environment. In response to these challenges, the U.S. government began regulating trucking in the 1930s.

• Safety Concerns and the Motor Carrier Act of 1935: In the early 20th century, as trucks became more prevalent on American roads, safety concerns emerged. Poorly maintained vehicles, unqualified drivers, and inadequate working conditions led to many serious accidents and fatalities. In response, the U.S. government enacted the Motor Carrier Act of 1935, which granted the Interstate Commerce Commission (ICC) authority to regulate trucking operations across state lines. The act aimed to ensure safety by establishing minimum standards for equipment, driver qualifications, and operating practices.

• Economic Regulation and the Motor Carrier Act of 1935: In addition to safety concerns, economic factors also played a role in the regulation of the trucking industry. The Motor Carrier Act of 1935 introduced economic regulation to address issues such as price fixing, predatory pricing, and unfair competition. The ICC was tasked with setting rates and ensuring reasonable practices among carriers, aiming to protect consumers and promote fair competition.

• Deregulation and the Motor Carrier Act of 1980: Over time, concerns regarding the effectiveness and efficiency of economic regulation began to surface. Critics argued that regulated rates stifled competition and hindered innovation. As a result, the Motor Carrier Act of 1980 brought about significant deregulation in the trucking industry. This legislation removed many of the previously established economic regulations, such as rate-setting and entry restrictions. Deregulation aimed to foster competition, reduce prices, and increase efficiency within the industry. It was never intended, however, to displace safety regulations.

• Safety Regulations and the Motor Carrier Safety Act of 1984: While the Motor Carrier Act of 1980 focused primarily on economic deregulation, safety concerns remained a priority. To address these concerns, the U.S. Congress took significant steps with the enactment of the Motor Carrier Safety Act of 1984. This legislation played a pivotal role in enhancing safety regulations and paved the way for subsequent developments in trucking safety oversight.

  • Creation of the Federal Highway Administration (FHWA): Under the Motor Carrier Safety Act of 1984, the Federal Highway Administration (FHWA) was established as the agency responsible for motor carrier safety regulation. The FHWA assumed the role of overseeing and enforcing safety regulations for commercial motor vehicles engaged in interstate commerce.

  • Development of the Motor Carrier Safety Assistance Program (MCSAP): The Motor Carrier Safety Act of 1984 also laid the foundation for the Motor Carrier Safety Assistance Program (MCSAP). This program aimed to improve the safety of commercial motor vehicles by providing grants to states for the implementation of various safety activities, including roadside inspections, carrier compliance reviews, and driver training.

  • Evolution of the Federal Motor Carrier Safety Administration (FMCSA): While the Motor Carrier Safety Act of 1984 didn’t create the FMCSA, it set the stage for it. In 2000, the FMCSA was established as a separate agency within the U.S. Department of Transportation, assuming the responsibilities previously held by the FHWA. The creation of the FMCSA centralized and strengthened the oversight and enforcement of safety regulations for commercial motor vehicles. The FMCSA has since been the primary regulatory body responsible for ensuring the safe operation of commercial motor vehicles, with a focus on driver qualifications, hours of service, vehicle maintenance, drug and alcohol testing, and other safety-related areas. Through its regulations and enforcement efforts, the FMCSA continues to work towards reducing accidents, enhancing safety practices, and protecting the well-being of both truck drivers and the general public.

• Environmental Regulations and the Clean Air Act Amendments of 1990: In recent decades, environmental considerations have gained prominence in the realm of trucking regulation. The Clean Air Act Amendments of 1990 introduced stricter emission standards for heavy-duty vehicles, including trucks. The Environmental Protection Agency (EPA) worked in conjunction with the FMCSA to implement regulations that aimed to reduce pollution and improve air quality by requiring the use of cleaner fuels, catalytic converters, and other emission control technologies. With states like California pushing environmental regulations even farther, it’s likely we’ll see these regulations gaining steam over the next several years.

When have regulations run amok?

Regulations are undeniably essential for protecting certain interests, including public welfare; however, they can fail us, as we’ve seen play out in the U.S. many times over. When regulations become excessive or overly burdensome, they can hinder innovation, stifle economic growth, and impede individual freedom, to name a few. For these reasons, the U.S. Supreme Court has acknowledged that “[a]n initial agency interpretation is not instantly carved in stone”; on the contrary, an agency must consider varying interpretations and the wisdom of its policy on a continuing basis. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 863-64 (1984).

Excessive regulations can take a financial toll on individuals, businesses, and industries. Compliance costs, like administrative expenses, fees, and required investments in technology or infrastructure, can be overwhelming for smaller businesses. They can hinder entrepreneurship, and discourage market entry. Excessive compliance costs divert resources away from productive activities, reducing investment, innovation, and overall economic growth.

Regulations that are rigid, inflexible, or slow to adapt to changing circumstances can also hinder progress and innovation. As industries evolve and new technologies emerge, regulations must be nimble and responsive to accommodate advancements. Excessive regulations that fail to keep pace with technological developments can stifle innovation, discourage investment, and limit the potential for economic growth.

Excessive regulation can also lead to compliance fatigue, where individuals and businesses become overwhelmed by the sheer volume and complexity of regulatory requirements. This can result in a compliance-driven mindset that focuses on meeting regulatory obligations rather than pursuing meaningful outcomes. Excessive regulations can lead to bureaucratic inefficiencies, with layers of administrative processes and paperwork that impede productivity and innovation.

On the other side of the coin, regulations can stop short of where they need to be to accomplish a particular goal. And this can be equally devastating.

So how do we know when the government has missed its mark with its regulations? I think there are a few tell-tale signs, some of which are playing out in trucking today:

When no one understands them

I posit regulation has gone too far when most of the regulated population cannot articulate the rule in plain English. If a rule is too difficult for most to understand, how can we possibly expect them to apply it to their lives and businesses?

I see this playing out in trucking in several areas but one in particular: personal conveyance. I’ve said in the past that personal conveyance is, in my view, the most amorphous concept in U.S. trucking regulation today. In fact, it’s not even baked into the regulations; it is what the FMCSA calls “regulatory guidance.”

Personal conveyance, for those unfamiliar with the concept altogether, refers to a scenario where a regulated driver operates a CMV for personal use (i.e., not at the direction of a motor carrier) in off-duty status, meaning that time is not counted against his/her available hours. In essence, personal conveyance is a limited exception to the requirement that all time spent at the operating controls of a commercial motor vehicle must be logged as driving time on the driver's records of duty status.

As you might imagine, the idea of logging driving time as off-duty is fraught with the potential for misuse in order to conceal hours-of-service violations. For example, if a driver has reached his/her 11-hour driving limit but is still 30 miles from the destination, there's certainly a temptation to flip over to off-duty personal conveyance status to complete the move.

The agency’s guidance on this topic is well-intentioned. It indicates the key to personal conveyance is that the driver must be "relieved from work and all responsibility for performing work by the motor carrier." Put another way, if a driver is operating a CMV at the direction of a motor carrier (e.g., to have the vehicle serviced) or to enhance the operational readiness of the carrier for the next load (e.g., bobtailing overnight towards the next shipper facility), the driver cannot log the time as off-duty personal conveyance. Notably, the current guidance clarifies that a driver is not necessarily disqualified from using personal conveyance if his/her vehicle is laden with cargo. This is a departure from the agency's earlier guidance, which had said that a laden CMV could not be used for personal conveyance.

Obviously, the agency's narrative guidance leaves the concept of personal conveyance open to interpretation in dozens of specific scenarios. For example, what if a driver completes his work for the day and then drives for the next two days to relocate to another state. Can that be logged as PC? The guidance goes on to include some of the most common examples of moves that qualify (and those that don't) for personal conveyance, but even these examples are open to interpretation and leave out many other common examples.

Where does that leave us? Well, in practice, violations for misuse of personal conveyance status rank near the top in terms of the most common violations discovered during roadside inspections and audits. And many of these violations, at least in my experience, are fringe cases—not fitting neatly within the FMCSA’s guidance on the topic. So, in essence, the agency is enforcing an extremely nebulous quasi-regulation as if it were clear as day and snaring hundreds of thousands of drivers and carriers in the process.

Canada deals with personal conveyance in a different way. There, drivers subject to the hours-of-service regulations are limited to 75 kilometers (47 miles) of off-duty personal conveyance use per day. To log personal conveyance, the driver’s vehicle has to be unladen and unhitched from a trailer. So rather than focusing on the motivation for the driver’s use of the vehicle, Canada’s rule is more of an objective limit to its use.

I see the appeal. A hard distance limitation takes away most of the subjectivity from which the U.S. version suffers. It leaves little room for interpretation either by the driver or by law enforcement. It’s just easier to understand. On the other hand, it restricts a driver from legitimately operating the vehicle for personal conveyance for longer distances. On balance, I believe the Canadian approach here is the better one, and it’s one I think the FMCSA should consider adopting sooner rather than later.

When they have unintended consequences

Through regulation, we want to curb bad behavior, but we must be careful that we don’t, at the same time, cause bigger problems. This is the classic “law of unintended consequences.” It’s my belief that if a particular regulation, no matter how virtuous, leads to bigger problems, then the regulation needs to be reworked or rescinded. That seems obvious.

I see one instance of this in trucking that causes me a lot of heartburn. It has to do with the FMCSA’s and the USDOT’s drug-testing regulations, which, for decades, have relied on urinalysis as the only approved methodology for DOT-mandated drug tests. Recently, the agencies have taken steps to authorize oral fluid testing as an additional approved test type.

However, despite years of clamoring from various interest groups, including some of the nation’s largest fleets, the FMCSA has yet to authorize hair tests as an approved test type. This is despite evidence suggesting that hair tests are more reliable and accurate than urinalysis. To date, the FMCSA has denied requests to expand its regulations to recognize hair test results on the basis that the Department of Health and Human Services has not yet approved those tests for workplace testing, which the FMCSA claims is a prerequisite to it moving forward with any such action.

From my perspective, the FMCSA’s inaction on hair testing has serious unintended consequences. We know that many carriers are currently hair testing their drivers voluntarily, going above and beyond what the regulations require of them. Because the FMCSA refuses to accept the results of those hair tests as valid for DOT purposes, this means those carriers’ hands are tied with what they can do with the results. They cannot, for example, report any positive hair test results to the Drug & Alcohol Clearinghouse.

Practically, this means there are drivers out there operating large trucks and buses on our roadways who have tested positive for drugs. Because of the FMCSA’s regulatory inaction, subsequent employers of these drivers are none the wiser, and these drivers get a free pass. How large is this population of drivers? Hard to say, but it wouldn’t surprise me if we are talking about thousands of drivers at this point. Perhaps they caught in a subsequent urine test, but that’s certainly not guaranteed.

Clearly, this is a big gap. One I believe the FMCSA needs to close sooner than later.

When they don’t accomplish their purpose

If the main purpose of regulation is to fix or avoid a particular result, it seems obvious we should be measuring progress at achieving that goal and making any necessary course corrections along the way. But that doesn’t always occur, as is too often the case in modern society. Too often, we end up regulating for the sake of regulating, without any real results to back it up.

In trucking, we see this play out in a few areas, including the ELD example I mentioned at the start. If ELDs aren’t minimizing fatigued driving, why are we mandating them? That was their purpose, was it not? Perhaps they accomplish other goals such as improved recordkeeping or smoother roadside inspections. And maybe those are legitimate reasons to keep them around. But if that’s the case, the FMCSA should make that clear and quit pretending its rules are more virtuous than they really are.

Another example here is the annual MVR requirement. As part of their driver qualification obligations, motor carriers have long been required to annually review the driving record of each of their commercial drivers. In practice, this usually means carriers are running MVRs once per year and placing them in their drivers’ respective qualification files.

The point of this regulation is to keep unqualified and improperly licensed drivers off the roads. A worthy goal to be sure. But is the rule actually accomplishing it? The data would suggest the answer is no. Improperly licensed drivers continues to be one of the most common violations discovered during roadside inspections and audits. Why is that?

In my experience, this problem is directly linked to the archaic way that we track driver qualifications and licensing in this country. Just because a driver has a valid and appropriate license today does not mean that will be true tomorrow. And therein lies the problem with the annual MVR regulation. MVRs are merely a snapshot of a driver’s qualifications as of the date and time they are run. They are stale the minute after. If a driver loses his license a day or two after his carrier ran the MVR, the carrier is completely blind to that fact for up to a year, unless and until the driver comes clean. And this leads to hundreds, possibly thousands, of disqualified drivers operating on our roadways each day.

What’s the solution here? Continuous license monitoring. A system that continuously monitors a driver’s license status and driving record and then notifies the employer of any changes to that driver’s qualification status. This type of system exists in the private sector, and many carriers voluntarily subscribe to it. It also exists in some states like California.

If we truly want to keep unqualified drivers off our roadways, then FMCSA needs to move towards a system like this. Maybe this is a heavy lift from an infrastructure and technology standpoint, but a very worthwhile investment, in my opinion.

When the exceptions swallow the rule

Another way we can be confident regulations have missed their mark is when their exceptions begin to swallow the rule. In other words, when regulators start to carve out so many different groups and situations from the scope of a particular rule, we should be asking whether the underlying rule is even necessary.

In trucking, I think we see this with the hours-of-service rules in Part 395 of the federal safety regulations. Those regulations, which have been in place in some form or fashion since the 1930s, are undeniably important. They ostensibly cut down on fatigued driving. However, over the years, the FMCSA and its predecessors have slowly chipped away at the rules and granted all kinds of exemptions.

Just look at 49 CFR 395.1 and you’ll find at least 20 separate exemptions from the broader hours-of-service regulations. There are exemptions for adverse driving conditions, short-haul operators, drivers of certain specially-constructed oil well servicing vehicles, drivers in Alaska and Hawaii, farmers, and operators of utility service vehicles, to name just a few. And these aren’t to mention the dozens of other case-specific HOS exemptions that are not baked into the rules themselves.

These exemptions beg the question: if we truly believe HOS regulations are critical to eliminating fatigued driving, why are we letting so many different categories of drivers avoid them? Are farmers or oilfield workers somehow less susceptible to fatigue than non-exempt drivers? Perhaps that’s the case in certain circumstances, but it seems most of these HOS exemptions are simply the result of the lobbying efforts of several interest groups. The agency has shot so many holes in the HOS rules that it’s hard to believe they can still float at this point.

I posit that this manner of rulemaking does nothing but erode public trust. If we are firm in our conviction that certain regulations are critical to public safety, then there should be no reason to deviate from them. If there is, then we either don’t need the regulation, or the regulation we have crafted is not tailored narrowly enough to address the concern.

What do we do about it?

So what do we do about excessive or broken regulation, particularly in our industry? Complaining about it only goes so far. But there are some proven approaches I think we should prioritize, some of which we are already doing but perhaps not so well:

Streamlining Compliance Processes:

This involves reviewing existing regulations and identifying areas where redundancies or unnecessary requirements can be eliminated. Simplifying paperwork, standardizing reporting formats, and leveraging technology for regulatory submissions and compliance tracking can significantly reduce administrative burdens for trucking companies.

To FMCSA’s credit, we have seen it do this on occasion. The most recent example was the 2019 elimination of the redundant annual certificate of violations requirement. But there are countless other examples of these types of requirements the FMCSA should be targeting for elimination or modification, including those mentioned previously.

Risk-Based Regulation:

Implementing risk-based regulation in the trucking industry can help allocate regulatory resources more effectively. Rather than applying the same level of scrutiny to all carriers and drivers, regulations can focus more on high-risk areas. By identifying risk factors, such as a carrier's safety performance history or driver violations, regulators can target their oversight efforts towards those who pose the greatest risk to public safety while reducing the regulatory burden on low-risk entities.

FMCSA tries to do this through its CSA program. Tools like the Safety Measurement System ostensibly prioritize the worst performing motor carriers for further enforcement. But what we know from studies over the years is that it doesn't always do a great job of this.

Collaboration and Stakeholder Engagement:

Encouraging collaboration and engaging stakeholders, such as trucking associations, industry experts, and law enforcement agencies, is vital in addressing excessive trucking regulation. Establishing regular channels for dialogue, including advisory committees or task forces, can facilitate the exchange of ideas, insights, and concerns. Engaging stakeholders in the rulemaking process and soliciting their feedback can help identify areas where regulations may be overly burdensome or ineffective.

To some extent, we have this currently. But from my perspective, participation by industry groups in the rulemaking process often becomes more adversarial than collaborative. Take the ELD mandate, for example, which resulted in years’ worth of publicly-funded litigation in federal court. We need a more collaborative approach to the rulemaking process than we currently have.

Harmonization and Interstate Cooperation:

Cooperation among states and regulatory agencies can help harmonize trucking regulations, reducing the complexity and burden faced by carriers operating across state lines. Encouraging interstate agreements and adopting uniform standards on key regulatory aspects, such as hours of service, vehicle inspections, and weight limits, can minimize compliance challenges and promote consistency in enforcement. Additionally, sharing best practices and collaborating on enforcement efforts can enhance regulatory effectiveness while minimizing additional burdens.

Data-Driven Decision Making:

Leveraging data and technology can enhance regulatory decision making in the trucking industry. By collecting and analyzing comprehensive data on safety performance, compliance rates, and industry trends, regulators can develop targeted and evidence-based regulations. Data-driven insights can help identify areas where regulations may be excessive or ineffective, allowing for a more tailored and impactful regulatory framework.

Conclusion

Combatting excessive and broken trucking regulation requires work on all sides. Governing bodies like the FMCSA need to be more open to criticism and self-reflection. If existing regulations aren’t working as intended, they need to admit defeat and work to fix the problem. At the same time, the industry needs to be more cooperative in the process. We need to admit when there are problems that require a regulatory fix, and we need to collaborate in the rulemaking process. Ultimately, the goal is a regulatory framework that promotes safe operations, supports economic growth, and maintains the vitality of the trucking industry. Anything short of that is a failure and needs fixed.

About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a monthly live show on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who have assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube.