The new year is expected to be a busy one for the Federal Motor Carrier Safety Administration (FMCSA), despite the absence of a confirmed, full-time administrator.
Participating in a Dec. 17 webinar hosted by PrePass, Warren Hoemann outlined the numerous rulemakings and critical decisions expected from the agency in the next 12 months.
In late October, Raymond Martinez stepped down as FMCSA administrator. He was confirmed by the full U.S. Senate in February 2018. Jim Mullen, who had served as FMCSA’s chief counsel, took over as deputy administrator after Martinez departed and assumed the role of acting administrator.
Hoemann, a former FMCSA deputy administrator and senior American Trucking Associations’ executive, said it is likely there will be action on hours-of-service (HOS) rule changes in 2020. However, he warned that regardless of what FMCSA decides, there is an expectation that some groups “are going to resist.” The end result is that the issue likely will be “tied up in court for a while,” he predicted.
Unlike HOS, the future of the drug and alcohol clearinghouse regulation is more clear. Starting on Jan. 6, motor carriers will be required to check with the clearinghouse before hiring new drivers and conduct at least one query per year on existing drivers.
The clearinghouse is a central repository for positive drug and alcohol test results and test refusals.
During the course of the year, FMCSA could also move forward on a rulemaking that would expand drug testing standards. Currently, a urine test is the only federally approved method, but employers can use additional methods as part of their regular hiring process.
Guidelines have been developed for fleets that want to conduct hair drug tests, which screen for illegal drugs over a longer period, or oral fluid drug tests, where saliva is collected from inside a person’s mouth with a mouth swab and can be used for roadside testing. FMCSA must first move forward with a formal rulemaking in order for these to become legally acceptable methods.
In September, a decision from FMCSA is expected on whether it will adopt a new model for evaluating the safety performance of motor carriers. Known as the “Item Response Theory,” it is a crucial piece in the ongoing revamp of the Safety Measurement System that is the foundation of the Compliance, Safety, Accountability (CSA) program.
Another piece of the CSA saga could be addressed through a potential 2020 rulemaking to formalize a crash preventability determination program. FMCSA has been using a temporary program for several years and found that more than 90% of reviewed crashes were non-preventable by the driver or motor carrier.
Also on the webinar was economist Donald Broughton, principal and managing partner of Broughton Capital LLC. He expressed a belief that while more government regulations are generally associated with lower profitability for business, the electronic logging device (ELD) mandate has proved to be an exception.
Broughton, speaking on the first day that commercial drivers were no longer allowed to use older automatic onboard recorders, said the requirement to use the technology has improved equipment utilization and overall efficiency.
One previously planned measure unlikely to move forward in 2020 is the entry-level driver training regulation.
Several provisions were already delayed until 2022, and Hoemann said there is wide speculation that implementation of the entire rule will be put off for 24 months.
The rule covers those seeking their first CDL, seeking a new endorsement to an existing CDL, or attempting to upgrade to a Class A license.
Hoemann also pointed out that while much of the concern about the October deadline for Americans to get “REAL IDs” involves being able to board domestic airplanes, there could be freight transportation implications.
These enhanced identification cards are generally “necessary to conduct business,” said Hoemann, who warned many states already have significant backups as millions of people make the switch.
He called this rule an “opportunity for more business,” especially for those who cross international borders and access security-sensitive areas such as nuclear facilities and ports.
Hoemann mentioned FMCSA will spend 2020 compiling information for possible future actions on issues, including driver detention and the possible harassment of female and minority commercial drivers.
FMCSA is also working with the National Highway Traffic Safety Administration to gather information for potential future actions on advanced driver assistance systems and automatic braking.
Hoemann added that the U.S. Dept. of Agriculture is studying the issue of shipping industrial hemp, which is legal in some states at the federal level, but illegal in others, and is likely to provide clarity to law enforcement agencies in 2020. There have been several cases where drivers and fleets have been charged for transporting hemp through states where cannabis remains illegal.
