SHzoom’s Monthly Minute
New, Pending, and Possible Rules and Regulations Facing Fleets in 2023
Volume 2 Issue 2 | This article was originally published on FleetOwner.
With a new year comes new laws and regulations. The trucking industry could see some changes to vehicles, how drivers are drug tested, and how carriers work with owner-operators. Here are some issues fleets should follow in 2023.
After the Republican Party narrowly retook control of the House of Representatives to start 2023—splitting control of Congress with the Democrat-run Senate—don’t expect much major legislation to make it out of Capitol Hill this year. Instead, the trucking and other business industries could be at the mercy of rule-makers running various federal agencies and departments already focused on environmental and workforce regulations.
“It’s unlikely that you’re going to get the kinds of significant legislation through in the next two years that you’ve seen in the past two years,” Richard P. Schweitzer, general counsel for the National Private Truck Council, told FleetOwner. “The House leadership’s not going to go along with substantial environmental or tax-related legislative provisions.”
The most significant bill that affects the transportation sector expected to come out of the 118th Congress is the next Farm Bill. Like the federal surface transportation reauthorization bill, which was most recently approved in 2021, the farm subsidies are renewed every five years. The current Farm Bill expires in September.
“It’s generally a bipartisan bill,” Schweitzer said. “There may be some transportation provisions on agricultural commodities and some directives to DOT on adjusting guidance for agricultural commodities.”
Here are some other federal government decisions and topics that could affect the trucking and transportation industries:
Emissions Tied to Costs and Tax Credits
Late last year, the Environmental Protection Agency finalized its latest heavy-duty engine rule, which goes into effect for model year 2027 commercial vehicles. This is going to impose manufacturer requirements that could increase the cost of diesel trucks by $42,000, Schweitzer said.
The final rule would lead to lower emissions of NOx and other air pollutants, according to EPA. This reduction increases over time as more new, cleaner vehicles enter the market.
New IRS guidelines tied to 2022’s Inflation Reduction Act would give carriers up to $40,000 in tax credits for non-diesel or -gasoline commercial vehicles. The Commercial Clean Vehicle Credit is divided between vehicles under 14,000 lb. GVWR (which qualify for up to $7,500 in tax credits) and larger zero-emission vehicles (which can get up to $40,000). According to the IRS, there is no limit on how many credits fleets can claim.
“So, on the one hand, you’ve got a $40,000 subsidy to purchase electric vehicles. On the other hand, you’ve got a $42,000 penalty for purchasing a diesel vehicle,” Schweitzer said. “It’s pretty clear that the administration is trying to force the market to electrification. This is just one of many, many examples of how this is working right now.”
Drug & Alcohol Clearinghouse Gets Proactive
It’s been three years since the Federal Motor Carrier Safety Administration’s Drug & Alcohol Clearinghouse debuted. Since 2020, more than three million drivers and 425,000 employers—including 227,000 owner-operators—registered with the clearinghouse. The FMCSA said that 4.5 million CDL holders were queried within the system, with more than 172,000 drivers cited for violations.
“These numbers represent near full deployment and should help ease concerns about missing data,” according to Scopelitis Transporation Consulting.
After a positive test, a truck driver goes into return-to-duty status and can’t get behind the wheel until they’ve cleared that status, which includes a regimen of counseling and more testing that can go on for months or even years. More than 89,000 drivers haven’t completed this process, meaning they’ve given up on using their CDLs or are driving illegally.
Prospective fleets hiring new drivers no longer have to ask driver applicants or their previous employers for their drug and alcohol testing history. As of Jan. 6, carriers can now conduct a free employment query within the clearinghouse.
FMCSA is also working toward creating a system within its Drug & Alcohol Clearinghouse that would notify fleets if any driver records they’ve looked at in the past year have new driver information, such as a failed drug test. “Right now, there’s no automatic notification,” Schweitzer said.
He expects that proactive function to begin later this year.
What about Hair Testing?
FMCSA on Dec. 23 turned away an application from a coalition of mostly large trucking companies and other stakeholders, the Alliance for Driver Safety & Security (known as the Trucking Alliance), to permit positive results from testing of drivers’ hair follicles to be reported to the Drug & Alcohol Clearinghouse.
FMCSA denied the application on a technicality, telling the alliance and all proponents of the drug-screening method that the agency doesn’t have statutory authority to grant the request—not even after public commenters on the Federal Register from August through October came out mostly in favor of and sometimes forcefully for the “actual knowledge” exemption to allow results from hair testing into the Drug & Alcohol Clearinghouse.
The federal Department of Health and Human Services must still decide—probably this year—whether hair testing is an acceptable screening method for results submitted to federal agencies, including the clearinghouse, which itself had its inception late in 2019 after years of often-contentious debate.
“Once those final rules come out from Health and Human Services, I fully expect FMCSA to begin a rulemaking to adopt the use of hair samples as a voluntary alternative to testing urine samples for drug use,” Schweitzer said. “I don’t think it’s going to be mandatory but I would expect that they would allow this as an alternative because carriers are asking for it.”
Only results obtained via urinalysis are accepted into the clearinghouse, though the DOT also has sanctioned oral fluid testing. The efficacy and fairness of hair testing have been debated for years, and major stakeholders such as the Trucking Alliance and the Owner-Operator Independent Drivers Association have drawn battle lines over the issue, with studies favoring one viewpoint or another.
Many freight carriers already use hair testing to supplement their DOT drug-screening processes—and often turn away driver applicants that flunk hair tests—and they report much more accurate results with the method, especially long-term or habitual use of certain illicit substances. The Trucking Alliance and these stakeholders believe hair testing, because of its longer detection window, is more reliable and accurate and that the sanctioning of only urinalysis by the government has led to significant and unsafe underreporting of harder drug use by truck drivers.
Opponents, however, don’t exactly see it that way. Marijuana is by far the most prevalent among those with positive urine test results submitted to the clearinghouse. In 2022, for example, more than 21,000 tested positive for pot, compared to more than 5,500 who popped positive results for cocaine, the next leading drug of choice.
Many prospective drivers already are falling by the wayside because of drug screenings, so the system is going some distance toward doing its job while also contributing to the driver shortage.
Independent Contractor Rules
Among the labor regulation concerns within the trucking industry is the Department of Labor’s focus on how independent workers, such as owner-operator truck drivers, are classified by the federal government.
More than 50,000 comments were filed late last year in response to the Labor Department’s Wage and Hour Divisions’ worker classification proposal. The Biden administration attempted to withdraw a Trump administration rule that made it easier to classify workers as independent contractors—but a federal court upheld the rule.
The DOL’s latest rulemaking attempt discards the Trump regulation’s focus on nature and degree of control over the work and the worker’s opportunity for profit or loss. Instead, the current Labor Department proposes to weigh six of its proposed factors more equally.
The department believes the new rule would preserve fundamental worker rights and provide consistency for regulated entities. Several trucking associations have registered concern over these changes upending the longstanding role independent contractors play within freight movement in the U.S.
In comments filed in December through the Federal Register, the Alabama Trucking Association wrote that the Labor Department’s “proposal would harm our industry, the independent entrepreneurial men and women who work with our members as owner-operators, our nation’s supply chain, and most importantly, the general public. In fact, the proposal will only drive up litigation and court costs as well as overwhelm judicial dockets by blurring the lines so badly that virtually every case has to go to trial.”
In 2022, FMCSA filed a notice of intent to propose that commercial vehicles with a gross vehicle weight over 26,001 lb. be equipped with an electronic engine control unit to govern speed limits. FMCSA indicated it plans to file a notice of proposed rulemaking on this speed limit in June 2023.
The proposal was met with opposition from independent drivers, who have noted that slower trucks can lead to road rage from passenger vehicle drivers and slower-moving traffic can make highways less safe. As a result, many major carriers and fleets already impose a speed limit for their trucks and tractors.
“The issue truly falls to FMCSA to decipher current industry practices and find the right fit that reduces speed-related accidents,” Dave Heller, SVP of safety and government affairs for Truckload Carriers Association. “The role speed plays in accidents and fatalities on our highways is one that needs to be addressed in a manner that is constructive in its development and beneficial for everyone who shares the road.”
Schweitzer said that most private fleets already use speed limiter devices. “The concern that we have over this proposal is not that you shouldn’t use them,” he said. “We’re concerned about the possibility of a one-size-fits-all national speed limit. What’s an appropriate speed limit on I-95 in Connecticut during rush hour is a lot different than somewhere in Wyoming or Montana, where there’s very little traffic.”
Electronic Truck IDs
The Commercial Vehicle Safety Alliance last year proposed requiring motor carriers to install electronic identification on trucks. The electronic ID would allow one-way wireless communication from vehicle to commercial vehicle inspectors, allowing them to know the IDs of all trucks in their vicinity.
That ID would then be used to identify details on the motor carrier and specific vehicle. The inspector would be able to see the vehicle and carrier’s safety records. This would, according to CVSA, allow safety personnel to assess which trucks in their area are most likely to need safety inspections, letting inspectors focus on the highest-risk vehicles while allowing lower-risk vehicles to continue undisturbed. It would also, according to CVSA, encourage safety compliance by enabling carriers to avoid inspections, saving time and fuel.
Transponder and app-based technologies are currently used by only about 13% of interstate carriers, according to FMCSA. FMCSA doesn’t require electronic IDs or transponders to be assigned to trucks but does provide grant funding to states for technology projects to do so.
Critics of the proposal cite cost, privacy, and cybersecurity concerns as to why the FMCSA should not mandate electronic IDs for trucks. In an advanced notice of proposed rulemaking filed late last year in the Federal Register, FMCSA seeks feedback from industry stakeholders.