2022 was a big year for trucking and a fairly busy one for regulators. We saw a lot of new rules come out of the Federal Motor Carrier Safety Administration (FMCSA) this year, including most notably the Entry Level Driver Training regulations from February. But with 2022 coming to a close, the question is what’s in store for 2023 from a regulatory perspective. That's what we're discussing in this article.
It's no surprise that highway transportation is very heavily regulated, at least from a safety standpoint. Carriers and drivers who are engaged in interstate commerce are generally subject to a body of laws known as the Federal Motor Carrier Safety Regulations, which govern driver qualification, hours of service, vehicle maintenance, drug/alcohol testing, and everything in between. And even if you’re only engaged in intrastate commerce in a particular state, well then you’re very likely subject to that state’s adoption of the federal rules, which usually pretty closely mirror the federal rules.
Navigating these rules can be tough, particularly when they change. That’s why it's important for carriers and drivers to stay on top of regulatory changes which could impact them. How do we know what’s changing? Well, the Department of Transportation, of which FMCSA is a part, periodically publishes its regulatory agenda which details what the various modal agencies are intending to do from a regulatory perspective in the short term. These agendas are typically pretty good indicators of what’s to come. So let’s take a look at some of the most significant changes that are likely to come next year for highway transportation.
Oral Fluid Testing
First up is a potential change to the federal drug testing rules for CDL drivers. In a notice published to the Federal Register in February of 2022, the USDOT proposed to revise its existing drug and alcohol testing rules in 49 CFR Part 40 to, among other things, expand the allowable methods for DOT drug testing to include oral fluids. As it stands, urinalysis is the only approved method for conducting DOT-mandated drug tests, so this rule will ultimately expand the options available to include mouth swabs. Although the agency proposed this change earlier this year, we’ve yet to see it actually implemented via a final rule. That said, it’s possible the FMCSA could issue a final rule on this topic in 2023.
Okay, next 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 2023. According to the FMCSA’s regulatory agenda, the agency intends to proceed with a motor carrier-based speed limiter rulemaking by preparing a Supplemental Notice of Proposed Rulemaking (SNPRM) to follow up on the National Highway Traffic Safety Administration's (NHTSA) and FMCSA's jointly issued September 7, 2016, Notice of Proposed Rulemaking (NPRM) on this subject. The new rulemaking will address whether motor carriers operating commercial motor vehicles (CMVs) in interstate commerce that weigh more than 26,000 lbs should be equipped with devices governing their maximum speed and if so, what that speed should be. According to the agenda, the agency is slated to tackle this issue in June of 2023.
Automatic Emergency Braking
Along similar lines, we could see some movement in 2023 on automatic emergency braking systems. This would be another joint rulemaking between FMCSA and NHTSA. According to its agenda, FMCSA could propose requiring and standardizing automatic emergency braking systems for heavy trucks, including performance standards and maintenance requirements. This is a rulemaking that’s slated for the end of January, 2023.
Next up are potential revisions to the electronic logging devices regulations. This was one of the bigger regulatory surprises from this past year, and we addressed it in-depth in another article. But in sum, the agency sought public comments over the past couple of months 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 and towards a process that would require the agency itself to certify these devices. Importantly, these types of changes are in the very early stages…for now, the agency is just soliciting comments from the public. Depending on the feedback it receives, we could see some rulemaking on the topic in 2023, but it’s certainly not guaranteed.
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.
Changes to SFDs
Next up, the FMCSA may be considering changes to its Safety Fitness Determinations or safety rating process in 2023. This process has been in place for more than a decade at this point and essentially dictates the manner in which the agency rates motor carriers’ compliance efforts through audits. There are currently three available safety ratings for carriers that have been through an FMCSA audit, which are Satisfactory, Conditional, and Unsatisfactory. These ratings are critical data points for carriers because they can significantly influence insurance premiums and customer relationships, and they can even lead to fleetwide shutdowns. According to its regulatory agenda, FMCSA will be seeking information on how it might use data and resources more effectively to identify unfit motor carriers and remove them from the Nation's roadways. FMCSA would seek public comment about the use of available safety data, including inspection data, in determining carrier fitness to operate. The Agency would also seek public input on possible changes to the current three-tier safety fitness rating structure. The action would also include a review of the list of Federal Motor Carrier Safety Regulations that the Agency uses in its safety fitness rating methodology.
Lastly, the agency will likely be publishing rules pertaining to autonomous vehicles in 2023. 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 the agenda, FMCSA plans to push forward with an NPRM to make these necessary changes in January of 2023.
2023 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 monthly live show 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 have 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.