Predicting the regulatory future is fraught with peril. Yes, we can turn to the Unified Agenda of Regulatory and Deregulatory Actions and see what federal regulatory agencies have in their plans. And we can go to Regulations.gov for the latest docket filing or comment on any rulemaking. More importantly, all federal regulation rises from the political environment of Washington, DC. Our form of government puts a premium on what is acceptable to Congress and the Administration – particularly in an election year. So any regulatory prognosticator should be apprehensive as to the outcome. What all can agree, though, is that the regulatory plate is full for the Federal Motor Carrier Safety Administration (FMCSA) in 2020.
Hours of Service — Top of the trucking and enforcement agenda is what changes FMCSA may propose for commercial vehicle driver hours of service (HOS). The word “propose” is used advisedly – after all, FMCSA has already laid out five key changes in HOS and taken public comment on them. The next step, though, is for FMCSA to send its proposed final rule to the Office of Information and Regulatory Affairs (OIRA) for scrutiny. That review can be daunting and time-consuming, particularly for an “economically significant” rule like HOS. Whatever OIRA deems legally, procedurally and politically acceptable as an FMCSA final rule may still be challenged in litigation. The history of HOS reform is replete with court cases. And remember, FMCSA itself has said that the effective date for the new HOS rules will be sometime in the future to allow updates to electronic logging devices (ELDs) and training for drivers and law enforcement.
CSA — FMCSA’s safety analysis program, Compliance, Safety, Accountability (CSA), will take its next step in September 2020. That’s when FMCSA says it will announce the findings of its internal review of Item Response Theory (IRT). This new approach to assessing the safety of motor carriers requires large data inputs, much of which FMCSA has not, to date, received. Here’s what is important to motor carriers: CSA is like a mirror, showing carriers what “safety” looks like. IRT may bring a different perspective and some motor carriers may need to adjust.
ELDT — Entry-Level Driver Training is the classic “ready-or-not” scenario. FMCSA has already delayed two aspects of the regulation until February 2022 to allow state and federal information technology systems to talk to reach other. Meanwhile, credible parties have asked FMCSA to delay the entire training rule – though, for now, the Feb. 7, 2020 start date is still on the books.
Drug and Alcohol Clearinghouse — What is definitely starting in 2020 is the FMCSA Drug and Alcohol Clearinghouse. As of Jan. 6, 2020 all motor carriers, third-party administrators, medical review officers (MROs) and substance abuse professionals (SAPs) must be registered with the clearinghouse and begin reporting drug and alcohol testing violations. Drug testing rule changes themselves may be proposed in 2020, as federal guidelines on oral fluids have been released and hair testing guidelines may follow.
REAL ID — Last but not least, Oct. 1, 2020 is the deadline for all states and territories to offer driver licenses that meet the REAL ID background and security requirements. After Oct. 1, non-REAL ID driver licenses will not be accepted for boarding commercial aircraft, accessing nuclear facilities or federal buildings while on business. Stay on top of what driver identification is required where.