Washington Roundup: Highlighting the Latest Transportation Legislative and Regulatory Initiatives

In the trucking industry, there are many legislative and regulatory activities underway in Washington that will affect Commercial Motor Vehicle (CMV) drivers, both short and long term.

This all points to 2022 being a challenging year to effectively balance the tension between government and the private sector in addressing driver issues. The information below presents various legislative and regulatory initiatives either underway or being contemplated that will impact CMV drivers.

Supply Chain Challenges and Driver Shortage

Congress and the various modal agencies have been contemplating supply chain constraints to help address the logjam. Some of these initiatives may help address the driver shortage problem, while others may exacerbate this issue.

FMC Fact Finding 29:The Federal Maritime Commission issued eight Interim Recommendations to address detention and demurrage challenges and clarify Commission and industry processes, encouraging shippers, truckers and other stakeholders to assist enforcement efforts and bolster dispute resolution.

Supply Chain Disruptions Task Force: In June, the Biden administration formed a task force to address bottlenecks in the semiconductor, construction, transportation, and agriculture sectors. As detailed in a 250-page report, the goal is to increase domestic manufacturing, limit shortages of vital goods and reduce a dependence on geopolitical competitors such as China.

Younger Driver Apprenticeship Program: Legislation has been introduced to establish an apprenticeship pilot program to determine if younger drivers (ages 18-20) can safely operate commercial vehicles in interstate commerce. The legislation also directs the Federal Motor Carrier Safety Administration (FMCSA) to conduct a driver compensation study.

Younger Driver Pilots: FMCSA has a pilot program underway to study whether younger drivers (18-20) with military experience can safely operate a CMV interstate. The Trump Administration proposed a similar pilot for civilians, but the program hasn’t been finalized.

Detention Practices: This has been an ongoing priority for FMCSA. The House of Representatives included a provision in its version of the Highway Bill requiring DOT to collect data on delays experienced by drivers in the loading and unloading of goods and to make the data publicly available.

It also would have required a rulemaking to establish limits on the amount of time that a driver may be reasonably detained, unless compensated for the time. While this provision is unlikely to be included in the final legislative package, FMCSA may decide to study the issue independently.

Women in Trucking Advisory Board: The Highway Bill being debated in Congress would establish a board of up to eight individuals representing all sizes of trucking companies to encourage more women to enter trucking.

Truck Leasing Task Force: The Highway Bill also requires a study of lease-purchase agreements between motor carriers and owner-operators and their impacts on the compensation of CMV drivers, the maintenance and repair of vehicles, and whether they incentivize safe operation and compliance. The outcome could be to discourage the use of these agreements which would negatively impact carriers that rely on this model.

Motor Carrier Safety Advisory Committee: The group is discussing driver compensation, transparency in hiring practices, and pay strategies that don’t incentivize speeding or working long hours. Some have advocated to remove the trucking exemption from the Fair Labor Standards Act.

AB5 and PRO Act: The Independent Contractor model is being challenged. AB5, which codifies the use of the “ABC” test in California that may make it virtually impossible for independent contractors from continuing to operate as contractors, has been passed in California, but is not being enforced while a lawsuit is under consideration by the US Supreme Court.

The PRO Act—a Bill modeled after AB5—has been passed by the US House of Representatives. It is unlikely to pass the Senate, but the National Labor Relations Board may consider implementing stricter policy approaches to target driver misclassification by motor carriers.

Technology—Focusing on the Future While not Losing Sight of Today

Autonomous vehicles continue to grab the headlines, but how close are they to implementation? There are many who believe we are 5–10 years until there is any significant market penetration.

Even once they are here, deployment will be phased in over years and there still will be a need for CMV drivers. In the short run, safety assistance technologies are a primary focus in government, as they work to lay the foundation for the future.

Automatic Emergency Braking: The Highway Bill would require AEB systems on new large commercial vehicles and to conduct a study on smaller CMVs. The AAA Foundation has found that if all trucks had these systems, more than 5,000 crashes would be avoided, along with 2,800 injuries and 55 fatalities.

Alternative Options for Rearview Mirrors: NHTSA is pursuing a rulemaking to modify the safety standard for rear visibility to facilitate new designs of cameras replacing rearview mirrors.

Alternative Fuel and Autonomous Vehicles: The Highway Bill targets various aspects of alternative fueled and electric vehicles and charging infrastructure, as well as autonomous vehicles and related technologies.

Safe Integration of Automated Driving Systems: FMCSA is working on a rule to address regulations that may need to be updated, modified, or eliminated to facilitate the introduction of automated driving systems equipped CMVs.

Safety and Enforcement

Legislators and regulators continue to focus on licensing and drug and alcohol issues to crack down on violators and minimize loopholes. While these activities are grounded in safety, they are impacting the availability of drivers, and the path to rehabilitation is murky and challenging, causing some drivers to leave the industry. This may be good for safety; however, it creates gaps for filling the supply of drivers going forward.

SDLA Downgrade of CDL/CLP rule: This rule will prohibit licensing agencies from issuing, renewing, upgrading, or transferring a commercial driver's license for individuals prohibited from driving a CMV due to drug and alcohol program violations. Also, the rule changes how reports of actual knowledge violations, based on a citation for Driving Under the Influence in a CMV, are maintained in the Drug and Alcohol Clearinghouse.

Procedures for Transportation Workplace Drug and Alcohol Testing Program - Addition of Oral Fluid Specimen Testing for Drugs: This rulemaking would provide DOT-regulated employers the option of collecting an oral fluid specimen in lieu of a urine specimen when testing for drugs.

Entry Level Driver Training: This new rule establishes baseline training requirements for entry-level drivers effective February 7, 2022. It includes drivers applying to obtain a Class A or Class B CDL for the first time; upgrade to a Class A CDL; or obtain a school bus (S), passenger (P), or hazardous materials (H) endorsement for the first time.

Driver Health and Safety

An aging and largely sedentary workforce brings with it medical issues and concerns. FMCSA and the Medical Review Board are looking into these issues, along with Hours of Service, to see whether changes are necessary to shape safety impacts of drivers in the future.

HOS Lawsuit: A lawsuit filed in September 2020 in the DC Circuit Court by the International Brotherhood of Teamsters as well as several highway safety advocacy groups has been on hold but will soon be responded to by FMCSA.

Split Sleeper Berth and Split Duty Day Pilots: FMCSA published a proposal on January 21, 2021, to examine allowing sleeper splits of 5/5 and 6/4 hours. In addition, on August 31, 2020, FMCSA proposed to examine allowing a pause of the 14-hour clock for up to 3 hours without using the sleeper berth provision. It is yet unclear whether the agency will act on these proposals given their other activities, but of these two the split sleeper is the one most likely to get any traction.

Sleep Apnea: The Medical Review Board has debated this issue and was poised to issue specific guidance. The guidance was pulled which signals rulemaking activity may be forthcoming.

Medical Certification Length: The length of a driver’s medical certification is under review by the Motor Carrier Safety Advisory Committee and is the subject of a FMCSA research project. The project will assess whether drivers who are medically certified for less than 2 years influence safety performance.

Revising the Vision Standard: This rule would reduce the burden on monocular vision individuals seeking to operate CMVs by revising the current physical qualification standards related to vision.

Seizure Standard Review: FMCSA is examining the risk of seizure recurrence for CMV drivers who have experienced one or more seizures or have been diagnosed with a seizure disorder, such as epilepsy.

There are other initiatives the Biden Administration or Congress may act on in the coming months, to include changes to CSA and the Safety Rating process and speed limiter regulations. Two major policy issues being discussed inside the beltway are an increase to the minimum insurance levels and the availability of truck parking, though their outcomes are uncertain.

All signs point to a busy 2022 full of government action targeting driver safety and efficiency. But we can’t lose sight of their impacts on the supply side of the equation and the resulting costs to transportation and balancing this with industry initiatives in making safer, more efficient drivers without regulatory intervention.

Buckle up. 2022 could be a bumpy ride.