Regulatory and Legislative Update - June 2023

Contents

Regulation and Enforcement

• Labor Department nominee concedes federal ABC test is up to Congress
• Volpe Center supporting FMCSA in test of wireless inspections
• CVSA announces Operation Safe Driver Week for July 9-15
• Women of Trucking Advisory Board to meet June 29
• FMCSA launches anti-human trafficking campaign
• Brenna Marron to head FMCSA’s government affairs office

Legislation

• House T&I Committee approves package of bills related to trucking
• House bill would expand carriers’ access to driver safety data
• House bill would allow expanded use of G.I. Bill benefits for CDL training
• President Biden vetoes Congress’ disapproval of EPA rule on truck emissions

Advocacy and Comment

Regulation and Enforcement

Labor Department nominee concedes federal ABC test is up to Congress

President Biden’s nominee to be U.S. Secretary of Labor told a House committee on June 7 that the department has no intention of imposing a federal ABC test such as that contained in California’s AB 5 law and that it could be imposed only if Congress decided to do so. Deputy Secretary Julie Su, who has been acting secretary since the departure of Marty Walsh in March, noted under questioning before the House Committee on Education and the Workforce that the department already has a proposed rule concerning independent contractors that does not include an ABC test. “Bona fide independent contractors will always have a place in our economy,” Su said. A recording of the hearing on DOL policies and priorities is available at https://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=409217.

Su’s views on AB 5 and the ABC test are under scrutiny because she previously served as secretary for the California Labor and Workforce Development Agency during a period when the LWDA was challenging what the agency considered to be misclassification of workers as independent contractors. The House committee before which Su testified on June 7 plays no official role in her nomination, but her confirmation appears to be in danger due to the razor-thin margin Democrats hold in the Senate and reservations already expressed about her nomination from a few Democrats. Moreover, Su’s nomination has been widely opposed by business groups within trucking, including several within trucking.

While DOL says it does not have authority to impose a federal ABC such as that contained in AB 5, it is part of a package of pro-labor legislation contained in the so-called PRO Act, which the Biden administration and Democrats in Congress support. However, the PRO Act has no chance of passage in the current Congress given Republican control of the House.

Volpe Center supporting FMCSA in test of wireless inspections

The U.S. DOT Volpe Center announced in May that it is supporting FMCSA in developing and implementing the Level VIII Inspection Program Operational Test, which will involve wireless inspections of commercial vehicles and drivers while the vehicle is in motion. Under the program, in-motion inspection results would be entered into a carrier’s safety record. Carriers identified by the wireless inspection would be required to stop for a conventional inspection. The Volpe Center’s role is providing program management, communications, data analysis, and stakeholder engagement.

The Commercial Vehicle Safety Alliance announced the Level VIII electronic inspection protocol in 2017. A Level VIII electronic inspection must include, where applicable:

• A descriptive location, including GPS coordinates;
• Electronic validation of who is operating the vehicle;
• Appropriate driver’s license class and endorsement(s) for vehicle being operated;
• License status;
• Valid Medical Examiner’s Certificate and Skill Performance Evaluation (SPE) Certificate;
• Current driver’s record of duty status;
• Hours-of-service compliance;
• USDOT or (Canada) NSC number;
• Power unit registration;
• Operating authority;
• Unified Carrier Registration (UCR) compliance; and
• Federal out-of-service orders.

The project will run at least through May 2024. For more information on the program, visit https://www.fmcsa.dot.gov/level-viii-inspections.

CVSA announces Operation Safe Driver Week for July 9-15

The Commercial Vehicle Safety Alliance (CVSA) will hold its annual Operation Safe Driver July 9-15. Throughout the week, law enforcement officers in the U.S., Canada, and Mexico will target commercial motor vehicle drivers and passenger vehicle drivers engaging in unsafe driving behaviors. Each year, Operation Safe Driver Week focuses on a specific unsafe driving behavior to call attention to the dangers of that behavior. This year, the focus will be on speeding.

Women of Trucking Advisory Board to meet June 29

FMCSA announced a June 29 meeting of the Women of Trucking Advisory Board. The purpose of the meeting, which will be open to the public virtually, will be consideration of ways to expand existing opportunities for women in the trucking industry. For more information, see the Federal Register notice at https://www.federalregister.gov/d/2023-12470.

FMCSA launches anti-human trafficking campaign

FMCA recently launched a campaign called “Your Roads, Their Freedom” aimed at increasing awareness of commercial motor vehicle drivers about human trafficking and at providing information needed to identify and report suspected trafficking. For more information and links to shareable resources, visit https://www.fmcsa.dot.gov/stophumantrafficking.

Brenna Marron to head FMCSA’s government affairs office

FMCSA has named Brenna Marron director of governmental affairs. Most recently, Marron served as deputy executive director of the House Democratic Policy and Communications Committee. She previously served within the Department of Transportation as an advisor with the Federal Railroad Administration and director of scheduling within the Office of the Secretary of Transportation during the Obama administration.

Legislation

House T&I Committee approves package of bills related to trucking

The U.S. House Transportation and Infrastructure (T&I) Committee last month approved a slate of measures aimed at strengthening the supply chain, including several related to trucking. The bills would still need to be passed by the House and Senate and signed by the president before becoming law. Trucking-related measures approved by the T&I Committee were:

• H.R. 915, which increases efficiency and highway safety in the supply chain network by requiring FMCSA to develop a new safety fitness determination (SFD) process to change the way a motor carrier is rated. The bill establishes an interim standard until the new SFD process is completed. That standard would consider selection of a motor carrier to be reasonable if the contracting entity verifies no earlier than 45 days prior to the date of the shipment that the carrier is licensed, registered, and insured and is not deemed unfit under existing standards. Visit https://www.congress.gov/bill/118th-congress/house-bill/915.
• H.R. 2948, which allows automobile transporters to continue carrying the same number of vehicles as they currently do despite increasing weight of newer vehicles. The bill allows a 10% weight increase for certain types of automobile transporters. Visit https://www.congress.gov/bill/118th-congress/house-bill/2948.
• H.R. 3013, which makes permanent two waivers issued by FMCSA during the pandemic to allow for more efficient CDL testing. Visit https://www.congress.gov/bill/118th-congress/house-bill/3013.
• H.R. 3372, which establishes a safety data collection program for certain six-axle vehicles and establishes a voluntary 10-year pilot program for states to increase truck weights on federal interstates up to 91,000 lbs. on six axles. Visit https://www.congress.gov/bill/118th-congress/house-bill/3372.
• H.R. 2367, which increases resources for the construction of new commercial motor vehicle parking, additional parking at current CMV parking areas, and improvements to existing CMV parking. It also requires CMV parking spaces built with those funds to be accessible to all CMVs without charge. Visit https://www.congress.gov/bill/118th-congress/house-bill/2367.
• H.R. 3318, which establishes a 10% axle weight variance for dry bulk without any increase in the overall federal gross vehicle weight limit. The bill makes an allowance for the fact that dry bulk can shift during transportation and redistribute a truck’s weight. Visit https://www.congress.gov/bill/118th-congress/house-bill/3318.
• H.R. 3447, which provides a 2,000-pound weight exemption to hydrogen-powered vehicles, similar to the exemption currently available for both battery-electric and natural gas-powered heavy-duty trucks. Visit https://www.congress.gov/bill/118th-congress/house-bill/3447.
• H.R. 1836, which allows the Federal Maritime Commission to review complaints about market manipulation and anti-competitive operations of maritime exchanges. Visit https://www.congress.gov/bill/118th-congress/house-bill/1836.

The committee also debated a bill (H.R. 3408) that would have modified the three-year pilot apprenticeship program for younger commercial motor vehicle drivers that was included in the Infrastructure Investment and Jobs Act. H.R. 3408 would bar some of the restrictions that the Biden administration placed on the program when it implemented the pilot program. Democrats on the committee uniformly opposed the bill, which alone would not have thwarted committee approval. However, the bill also was opposed by various groups – including some with Republican allies – that oppose the pilot program itself and, therefore, opposed the bill on the grounds that it would make the pilot program more attractive for drivers and carriers. Visit https://www.congress.gov/bill/118th-congress/house-bill/3408.

House bill would expand carriers’ access to driver safety data

Reps. Garret Graves (R-Louisiana) and Sharice Davids (D-Kansas) introduced legislation (H.R. 3356) that would give motor carriers access to the same data for existing drivers that they can access for prospective new hires under FMCSA’s Pre-Employment Screening Program (PSP). For mor information on H.R. 3356, visit https://www.congress.gov/bill/118th-congress/house-bill/3356.

House bill would allow expanded use of G.I. Bill benefits for CDL training

Reps. Check Edwards (R-North Carolina) and Chris Pappas (D-New Hampshire) introduced a bill (H.R. 2830) that would eliminate restrictions imposed on veterans’ use of G.I. Bill benefits to obtain a commercial driver’s licenses. The bill would exempt new branches of established CDL training facilities from the statutory two-year waiting period to accept benefits if the primary training facility has already been approved by the Department of Veteran Affairs and state approving agencies. For more information on H.R. 2830, visit https://www.congress.gov/bill/118th-congress/house-bill/2830.

President Biden vetoes Congress’ disapproval of EPA rule on truck emissions

President Biden on June 14 vetoed a joint resolution (S.J. Res. 11) that would have disapproved the final rule published by the Environmental Protection Agency in January to establish new heavy-duty engine emissions standards for oxides of nitrogen and pollutants. In May, the U.S. House of Representatives passed S.J. Res. 11 by a 221 to 203 vote following Senate passage earlier in the year. Republicans do not have the votes necessary to override the veto, so the EPA regulations will remain in place. For more information, visit https://www.congress.gov/bill/118th-congress/senate-joint-resolution/11.

Advocacy and Comment

The following topics are worthy of comment this month:

(1) The Congressional letter to the OIG has been sent with bipartisan support for consideration. It expresses the intent of Congress that the OIG set up a special enforcement operation to address the broader aspect of criminal prosecution of fraud in the supply chain. The time has come for stakeholders to support this initiative by writing Federal House and Senate representatives. For help in participating in this effort, please contact asectt@gmail.com.

(2) Among the numerous House initiatives discussed above is the red light-green light legislation which would confirm that “fit to operate is fit to use.” See H.R. 915. If passed, the legislation would establish that customers could rely upon fit to operate as a green light, at least until the FMCSA formalizes the new safety fitness determination. Carriers and their customers want the same thing on this issue. The carrier community has made clear, though, that “safe to operate is safe to use” is already the litmus test for determining the red light-green light issue. The Agency conceded this point 13 years ago but it steadfastly failed to abandon SMS methodology and to simply vet carriers under new entrant audit standards.

(3) The absence of carrier vetting is a real issue not only for safety but also for fraud detection purposes. The possible merits of the Volpe initiative in making a safety fitness determination is yet to be explained. Yet to the extent that the program could identify ghost carriers, double brokerage, and help identify fraudulent operators, the data might serve a useful purpose.

Finally, the FMCSA is going to release a Notification of Final Regulatory Guidance in “Definitions of Broker and Bona Fide Agents” on June 16, 2023. This issue will be covered next month. See https://www.federalregister.gov/d/2023-13080 for more information.