Transportation Legislation Update from Washington: Certain Uncertainty
When a new presidential administration, particularly when changing political parties, comes into town, the Washington, DC, housing market starts heating up while the pace of government tends to slow down. Nearly 4,000 political appointees begin packing their bags and head for the private sector while a new cadre trickles in to take their place.
A total of 1,200 of these appointees require Senate confirmation, further slowing (and sometimes completely preventing) the process from moving forward. Meanwhile, career civil servants dutifully review all the work they recently completed to ensure it is consistent with the priorities of the new administration. While this happens, almost nothing else does. That leaves plenty of uncertainty for businesses whose future planning and decisions are often tied to actions the government may or may not take.
President Biden’s transition is no exception. The trucking industry looks to the Federal Motor Carrier Safety Administration (FMCSA), which marshals significant influence over trucking operations, for guidance on how operations might need to adapt in the future.
Sadly, with no Administrator appointed little new information is emerging on what the administration’s priorities will be, leaving us to use experience as a guidepost on what to expect. There’s no regulatory agenda or significant rulemaking report yet on which to rely.
Fortunately, if we look closely enough, we can point to a few items whose immediate future seems certain:
1. Entry-Level Driver Training (ELDT)
Beginning in February 2022, all drivers seeking a commercial driver’s license (CDL) for the first time, or hoping to update their license class or endorsements, will need to take some version of ELDT.
The roll-out of this rule was originally scheduled for early 2020 but technical challenges forced FMCSA to delay implementation. Fortunately, this change enjoys widespread support among typically opposed stakeholders, meaning it is not expected to get caught up in any political wrangling.
Meanwhile, FMCSA has been full steam ahead on the IT build that delayed the first implementation and has indicated they will be prepared. They’ve recently hosted several webinars to update market participants, particularly truck driver training organizations. They already published a development tool kit that provides trainers and states the information they need to begin their required integration and are expected to begin accepting training provider registrations this summer.
2. Clearinghouse CDL Down-Grade Final Rule
When FMCSA began crafting its Drug & Alcohol Clearinghouse rules, it envisioned a program that prevented drivers from operating a commercial motor vehicle (CMV) while disqualified for a drug or alcohol violation by requiring state licensing agencies to check the Clearinghouse before issuing, renewing, transferring or upgrading a CDL.
When the rule was finalized States resisted efforts to require them to take licensing action against the driver, saying the Clearinghouse final rule merely required they check the Clearinghouse, but did not specify what action should be taken. FMCSA responded by initiating a rulemaking to give more specific instruction. A notice of proposed rulemaking was published in April 2020, so expect a final rule sometime this year, though significant runway is likely to be provided for states to update their processes.
3. State Integration with the National Registry of Certified Medical Examiners (NRMCE)
Sadly, this is one area where all available signs point to another delay of a long-awaited safety process improvement. The industry has been waiting, sometimes impatiently, since 2015 for the NRCME to be fully integrated with state licensing systems. This integration, which took effect on June 22, 2021, will create a virtual connection between the examiner issuing a medical certification and the state licensing agency.
This connection was originally laid out as a three-step process. First, the medical examiner would upload the results of a medical exam to FMCSA. FMCSA would then transmit it to the state licensing agency, which would update the driver’s motor vehicle record with new certification information. So far, only the connection between the medical examiner and FMCSA has been completed and drivers are still required to deliver their med card to their state of licensure to have their records updated. Those that don’t, face the unnecessary prospect of having their license downgraded or suspended and being put out of service on roadside, despite being fully qualified to operate a CMV.
In January 2021, the USDOT’s Inspector General issued a report that did not shine a favorable light on the prospects of an on-time rollout. In it, the IG cited technical challenges, including a hacking attempt that shut the system down for several months in 2018, as reasons FMCSA has not fully implemented random periodic monitoring requirements.
But the real news is that it is unclear when the NRCME will be updated and that, once the technical problems are repaired, states will need between six and 18 months to update their systems to interact with the new Registry. That means truck drivers are going to be left holding the bag, again and for the foreseeable future.
Soon, we’ll begin to get a better sense of precisely what will be the trucking-related priorities of this administration. Until then, we can only rely on our experience and intuition to guide us on future government action. Expect positive near-term action on ELDT and the Clearinghouse, and a step backward on the NRCME, and keep a close eye out for President Biden’s first unified regulatory agenda.
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