Can you predict regulatory changes in the future? The political environment in Washington, D.C. often determines which regulations move forward and which do not. Our form of government puts a premium on what is acceptable to Congress and the administration, particularly following an election year. So any regulatory prognosticator should be transparently uncertain as to the future. Here, though, are topics that should rise to top of mind for the Federal Motor Carrier Safety Administration (FMCSA) in 2021.
COVID-19. The pandemic dominated national life in 2020, including actions by FMCSA. In 2021, FMCSA will continue to evaluate what relief from hours of service (HOS) and other regulations may be necessary to assist in response to the pandemic. This coming year there will likely bring an important new factor for FMCSA consideration: how can regulatory relief facilitate the storage and distribution of vaccines.
Hours of service. Regulatory relief remains a fact of life (literally) during the pandemic. But past Democratic administrations have not exactly blazed new trails for regulatory relief. As COVID-19 concerns diminish, the new FMCSA leadership may choose to re-examine some of the HOS flexibility granted in 2020. In particular, FMCSA will likely reassert its role as a safety agency and move away from the “safety- and health-neutral” rationale adopted by the current administration. Whether in year 2021 or soon thereafter, a reversal of the extended workdays for short-haul drivers and those confronting “adverse road conditions” may occur. The proposed “Split Duty Period Pilot Program,” a pilot project to allow a one-time pause of the driving window from 30 minutes to three hours, may also quietly die on the vine.
Compliance, Safety, Accountability program. Will new leadership at FMCSA formally adopt Item Response Theory (IRT) as part of a revamped Compliance, Safety, Accountability program? IRT demands extensive data to prioritize carrier safety interventions. Some experts see the theory as bringing mathematical validity to what had been viewed as arbitrary assessments of fleets under FMCSA’s Safety Management System (SMS), such as severity weights for violations. So far, the trucking industry has resisted the release of proprietary and competitive data. Beginning in 2021, eyes will turn to the Federal Register to watch for an “Information Collection Request” from FMCSA that may seek to allow data gathering for IRT.
Minimum insurance requirement. To combat “nuclear verdicts” against motor carriers, the trucking industry wants tort reform. At the same time, members of Congress proposed significant increases in the minimum insurance trucking companies must carry. Figures up to $5 million in insurance are under discussion, compared to the $750,000 currently required of interstate carriers of non-hazardous goods. If the two chambers of Congress remain politically divided, they may reach a compromise on tort reform and increased minimum. FMCSA will likely follow the Congressional lead.
Rear and side underride guards. New vehicle standards come from the National Highway Traffic Safety Administration (NHTSA). FMCSA enforces their use on trucks. A requirement for stronger rear underride guards is under discussion. However, most new trailers meet the higher standards already. Side underride guards, which are stronger and much heavier than the aerodynamic devices often seen on trailers today, do not yet have a proven safety record. Critics say because of their weight, the new guards compromise fuel efficiency and load capacity. NHTSA will likely await direction from Congress.
Driver detention time. FMCSA has asked for data on the amount of time drivers are detained at shipper/receiver facilities. At the same time, FMCSA charter and laws passed by Congress constrain what it can regulate. Organized labor supports limits on driver detention time, along with paid detention. If Congress so directs, FMCSA may soon find itself overseeing shippers and receivers.
Keep in mind these are just predictions but the fact is a new administration takes over on Jan. 20, 2021. While that will likely result in a different direction when it comes to trucking regulations, the full impact may not be felt until results from two Georgia U.S. Senate races are decided, and control of the chamber becomes clear.