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Washington Roundup: How Will Government Action Impact Drivers?

The most important resource a trucking company has is its drivers. It’s a resource that is increasingly scarce and has created significant anxiety among fleet managers nationwide.

Many have been taking to Capitol Hill, the courts and state houses around the country to lobby for action before it’s too late. Here are several emerging actions in state and federal government that may impact the availability of this critical resource.

The Driver Shortage and the Hunt for Younger Drivers

The driver shortage has been the top issue facing the trucking industry now for four years running, as reported by the American Transportation Research Institute. Over the next decade the industry is projected to need around one million new drivers to meet the demand. Over the past few years, this problem has been exacerbated by the COVID-19 pandemic through limitations in processing new license applicants, as well as severely limited capacity of driver training schools.

In addition, the new Drug and Alcohol Clearinghouse has resulted in nearly 73,000 drivers either being temporarily or permanently removed from the driver pool due. It also is well documented that the average driver age continues to rise (the average age is now 55) when drivers begin to retire. Compounding these challenges has been a sharp increase in freight volumes with no apparent end in sight.

One problem identified by the industry is that federal rules prohibit truck drivers under 21 years of age from operating in interstate commerce. FMCSA currently has a Pilot Program to study if younger drivers with military experience can safely operate a CMV. It also had plans to expand this pilot program to younger civilian drivers, but those plans were shelved when the Biden Administration walked into the Oval Office. There is also a legislative effort to solve the problem. The DRIVE-Save Act, a bipartisan bill that aims to allow younger drivers to drive interstate through a two-step apprenticeship program. This legislation was introduced in the last two Congresses, and a version currently resides in the Senate Commerce Committee’s Highway Bill which awaits Senate action.

With the notion of automated trucks on the horizon, it may continue to be difficult to recruit enough drivers to the industry and to keep them. The challenge is substantial, but the industry gained valuable currency during the COVID-19 pandemic as the nation saw how important the trucking industry was (and is) to the safety and economic well-being of our country. As momentum builds to allow younger drivers to operate in interstate commerce, congressional action may be necessary to break the logjam. The DRIVE-Safe Act, if it survives the highway bill, may be just the vehicle to do that.

Autonomous Vehicles and Technology

On June 29, NHTSA issued a Standing General Order requiring manufacturers and operators of vehicles equipped with Level 2-5 autonomous driving technology report crashes to the agency. In its announcement, NHTSA indicated that by mandating crash reporting, it will have access to critical data that will help quickly identify safety issues that could emerge in these automated systems.

In the Department of Transportation’s Spring 2021 Regulatory Agenda, FMCSA and NHTSA have eight rulemaking activities related to these technologies in the pipeline. Adding to this governmental push on technology, FMCSA’s “Tech-Celerate Now” program is focused on education and promotion of the safety benefits of these technologies and enjoys support from several major industry associations.

In addition, the NTSB’s “Most Wanted List” calls for collision- avoidance and connected-vehicle technologies on all vehicles. Finally, the states of Maryland, Maine and Virginia just implemented automated electronic roadside inspections, and CVSA is discussing this concept and its impact on roadside enforcement.

Clearly, technology is front and center in the industry and in the eyes of the regulators and enforcement. These technologies promise increased efficiency and improved safety if widespread adoption materializes.

The Independent Contractor Model

AB5, which became effective on Jan. 1, 2020, codified into state law a previous California Supreme Court decision setting forth an “ABC” test to determine if a worker is an employee or an independent contractor. The “B prong,” which requires a contractor to deliver services “outside the usual course” of a motor carrier’s business, makes passing the test very difficult.

The California Trucking Association has challenged AB5 on the grounds that it is preempted by the supremacy and commerce clauses of the U.S. Constitution but ultimately lost the case on appeal.

On June 23, the US Court of Appeals for the Ninth Circuit granted CTA’s request for a stay of the mandate while it awaits Supreme Court review. As a result, AB5 cannot be enforced until the Supreme Court decides CTA’s petition. Although the Supreme Court only reviews a very small percentage of cases, the Ninth Circuit’s stay suggests agreement that the case fits within the criteria for cases to be heard by the Supreme Court.

The outcome of this case may have lasting impacts on trucking as several other states are closely watching the outcome with an eye toward emulating the California law.