2023 regulatory year-in-review & 2024 outlook
Updated: Jan 2
2023 was a big year for trucking and a fairly busy one for regulators. We saw a lot of new proposed rule changes from the Federal Motor Carrier Safety Adminstration (FMCSA), particularly around their various enforcement mechanisms like safety ratings and CSA scores. With 2023 coming to a close, we're taking a look back at the most significant DOT-related regulatory initiaves from the past year and looking forward to what's in store for next year.
2023 Year In Review
As noted, the FMCSA was fairly active in terms of its rulemaking activity in 2023. The agency published several notices throughout the year with a heavy emphasis on its enforcement programs. Most of the proposals have yet to take effect for one reason or another, meaning they will likely bleed over into 2024. Let's take a look back at the most significant FMCSA notices from 2023.
Safety Measurement System (CSA)
First up, in Februrary of 2023, FMCSA announced what will be fairly significant changes to its Safety Measurement System (SMS), a/k/a CSA scores. We broke down this proposal in great detail in another article and in one of our episodes of Trucksafe LIVE! In short, the agency is proposing changes to the way that it calculates carriers' CSA scores. These can be broken down as follows:
Reorganized and updated safety categories, including new segmentation, to replace current BASICs
Consolidated violations
Simplified violation severity weights
Proportionate percentiles instead of safety event groups
Improved Intervention Thresholds
A greater focus on recent violations
An updated Utilization Factor.
The agency opened these changes up for public comment early this year but has yet to implement them as of the date of this article. It also set up a preview website where carriers can log on and see exactly how the proposed changes will impact their scores. We anticipate the changes will go live sometime in 2024. Check out our in-depth article on the topic for all the details.
Clearinghouse Notifications
In March 2023, the FMCSA announced changes to the way its Drug/Alcohol Clearinghouse notifies employers of changes to CDL drivers' Clearinghouse statuses. Prior to March , the Clearinghouse did very little to automatically notify employers when the status of their drivers changed. For example, if a motor carrier ran a limited query on a driver on January 3rd that indicated the driver was "not prohibited" from driving but that driver was subsequently put into prohibited status the next day on January 4th, the Clearinghouse would not alert the carrier to that change in status. This was a problem because it meant that carriers were potentially blind to the fact that some of their drivers may be in prohibited status unless and until (1) the drivers specifically notified them of that fact; or (2) the carrier ran a subsequent query, which may not happen for another 12 months.
To address these gaps, the FMCSA overhauled the Clearinghouse notifications such that employers now receive automatic notifications anytime a driver's status changes within a full 12 months after the employers have run either a full or limited query. We broke down this change in detail in a prior article.
Expansion of Crash Preventability Determination Program
In April, the FMCSA notified the industry that it plans to broaden its Crash Preventability Determination Program (CPDP) to include several additional accident types to its eligiblity guide. The agency first stood up the CPDP in May 2020, following industry concerns about all crashes impacting motor carriers' Safety Measurement System scores, regardless of fault. In its original pilot form, the CPDP only considered a handful of crash types “eligible” for preventability determination. In other words, only those types of crashes that were very clearly not the commercial driver’s fault were eligible for consideration.
In its current form, the CPDP accepts 16 specific crash types as eligible for preventability consideration. But under the FMCSA's proposal, the program will soon accept 21 crash types. Although the agency opened this proposal up for industry comments in April, it has yet to implement the changes. We anticipate they will go live in 2024.
Oral Fluid Testing
In May 2023, the USDOT issued a Final Rule to expand the allowable methods for DOT drug testing to include oral fluids. To date, urinalysis has been the only approved method for conducting DOT-mandated drug tests. This new rule opens the door to an additional methodology, which, according to the DOT "will give employers a choice that will help combat employee cheating on urine drug tests and provide a less intrusive means of achieving the safety goals of the program.” Importantly, the USDOT noted in its Final Rule that before employers can begin utilizing oral fluid testing, the Department of Health and Human Services must first “certify at least two laboratories for oral fluid testing, which has not yet been done.” So although the Final Rule makes the necessary regulatory revisions to allow for oral fluid testing, such tests are not authorized quite yet. We anticipate DHHS will certify labs to clear the path for oral fluid testing sometime in early to mid-2024. Check out our prior article for a full breakdown of this rule change.
Automatic Emergency Braking
In June, the FMCSA and NHTSA proposed a joint rule which would mandate that all newly-manufactured heavy trucks and buses be equipped with Automatic Emergency Braking (AEB) systems. “Advanced driver assistance systems like AEB have the power to save lives,” said NHTSA Chief Counsel Ann Carlson. AEB systems rely on sensors to detect imminent crashes and then automatically apply to the brakes in attempt to avoid them. The proposed rule would require AEB to work at speeds ranging between low-speed (6 miles per hour) and high-speed (roughly 50 miles per hour) situations. Though the comment period for this proposal is now closed, we have yet to see a Final Rule. We anticipate that could happen sometime in 2024. We broke down this proposal in a prior article.
Changes to Carrier Safety Ratings
In September, the FMCSA published an Advanced Notice of Proposed Rulemaking concerning potential changes to its Safety Fitness Determinations (SFDs), a/k/a safety ratings. According to its notice, "FMCSA is interested in developing a new methodology to determine when a motor carrier is not fit to operate commercial motor vehicles (CMVs) in or affecting interstate commerce." How exactly the agency intends to do so is not yet clear. It opened the matter up for public comment in late 2023 and it received several hundred comments in response. We anticipate the agency will propose a rule sometime in 2024 to implement changes to the current three-tier rating system. We broke down this proposal in a prior article.
DataQs Appeals Board
Also in September, the FMCSA notified the public that it is considering establishing an independent appeals board to review submissions made through its DataQs system. "Stakeholders from industry, CMV drivers, and the public have expressed concerns regarding the transparency and uniformity of addressing Requests for Data Review (RDRs), and specifically, RDR Reconsiderations. Stakeholders note that program offices do not have a uniform process for initial RDR reviews or for handling RDR Reconsiderations. They have also noted concern that RDR Reconsiderations are, in many instances, reviewed and decided by the same reviewer as the initial request. Users are calling on FMCSA to ensure an opportunity for an independent review, with consistently applied standards, for data correction requests." As a result of these concerns, the FMCSA is proposing to develop and implement an "independent FMCSA appeal process" for RDRs, allowing users to request the FMCSA itself to review and rule on RDRs that had been previously denied by a state agency. We anticipate the agency will provide additional details on this proposal in 2024. For additional details on the proposal, check out this article.
Broker Financial Responsibility
In November, the FMCSA made revisions to its regulations pertaining to property broker and freight forwarder financial responsibility. These changes will take place in mid-January 2024. Notably, the rule sets out a list of assets that brokers and freight forwarders must have "readily available" to cover draws from their surety bonds. It also details the situations when the FMCSA may initiate an action to revoke a broker's or freight forwarder's operating authority. The full details are available in this prior article.
2024 Regulatory Outlook
So now that we've broken down the most signficant FMCSA regulatory activity from 2023, the next question is what's in store for 2024? Aside from progress on the several proposals we mentioned previously, there are a few other noteworthy items on the agency's regulatory agenda for next year.
Speed Limiters
First up is a potential rule mandating the installation and use of speed limiting devices in certain commercial vehicles. This rulemaking has drawn a lot of criticism this past year, for good reason, but it’s likely we could see some movement on it in 2024. According to the FMCSA’s significant rulemaking report from September 2023, the agency originally intended to proceed with a motor carrier-based speed limiter rulemaking this December. This would be accomplished by preparing a Supplemental Notice of Proposed Rulemaking (SNPRM) to follow up on the NHTSA's and FMCSA's jointly issued September 7, 2016, Notice of Proposed Rulemaking (NPRM) on this subject. However, FMCSA Adminstrator Robin Hutcheson drew heavy criticism on this proposal from the U.S. Congress in a recent Congressional hearing, so we will have to wait and see how the agency responds.
ELD Revisions
Next up are potential revisions to the electronic logging devices regulations. This was one of the bigger regulatory surprises from 2022, and we addressed it in-depth in another article. But in sum, the agency sought public comments on potential revisions to its ELD mandate. Namely, the agency hinted at potentially doing away with or modifying its existing ELD exemption for older model year trucks. It also hinted at moving away from a self-certification process andtowards a process that would require the agency itself to certify these devices. The agency offered no additional details on these proposals in 2023, so it is unclear if it plans to move ahead in 2024.
New Entrant Audit Changes
Okay, next up on the list are potential revisions to the FMCSA’s New Entrant Safety Assurance Program. This is a program that requires all newly registered motor carriers to undergo a mandatory safety audit within the first 12 months of operations. This program has been in place and has remained relatively unchanged for the past several years. However, According to the FMCSA’s regulatory agenda, the agency is contemplating rulemaking that could mandate new entrants to demonstrate they are knowledgeable about applicable safety requirements before being granted New Entrant authority. More specifically, The agency is considering whether to implement a proficiency examination as part of its revised New Entrant Safety Assurance Process as well as other alternatives.
Autonomous trucks
Lastly, the agency will likely be publishing rules pertaining to autonomous vehicles in 2024. In mid-2019, the agency requested public comments on portions of the Federal Motor Carrier Safety Regulations that may require updates or modifications to facilitate the safe introduction of automated driving system-equipped CMVs. According to its agenda, FMCSA originally planned to move ahead with a proposed rule in December of 2023, but it has yet to do so.
Conclusion
2024 could be yet another year of important regulatory changes. It's important that carriers and their drivers stay on top of these changes to keep out of the crosshairs. If you have any questions about how these rule makings may impact your operations or need help crafting comments, please feel free to contact us. For even more in-depth information about these types of regulatory topics, be sure to check out our innovative online compliance courses for safety managers and drivers over at Trucksafe Academy. Also, be sure to follow us on our various social media pages for the latest highway transportation news and analysis.
About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a livestream podcast on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who've assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube. Or subscribe to Trucksafe's newsletter for the latest highway transportation news & analysis.