January 5, 2021

What Will the FMCSA Prioritize in Biden Administration?

Holland & Knight Transportation Blog
Jameson B. Rice | William P. Byrne | Amanda Barbour Fantauzzo
Election Impacts on Transportation & Infrastructure with Transportation themes

The U.S. Department of Transportation (DOT) historically has been less prone to large shifts in policy between presidential administrations. Although President Donald Trump and President-Elect Joe Biden each nominated a Secretary of Transportation from his own party, before that, Presidents Barack Obama and George W. Bush each nominated a member of the opposing party. Within DOT, the Federal Motor Carrier Safety Administration's (FMCSA) leadership and policies do not generally break from this largely bipartisan approach.

For example, when the Trump Administration took control of the FMCSA, the Obama-era rule requiring that driver hours of service be recorded by electronic logging device (ELD), rather than paper logbook, had not yet gone into effect. The Owner-Operator Independent Drivers Association (OOIDA) – a group that generally comprises many members of President Trump's base – had fought vigorously against the ELD rule. Despite years of effort to implement the ELD rule, it was uncertain if the FMCSA would postpone, chip away at the rule or even reverse course on ELDs. Nonetheless, the agency held firm and implemented the rule.

This is not to say that there are not differences in philosophy and emphasis between administrations and parties. Every administration dating back to the Clinton Administration has proposed changes to the driver hours of service rules. The Republican-led FMCSA recently relaxed certain hours of service rules, in part as a tradeoff for more accurate reporting of hours of service compliance from ELDs. These changes are currently in effect, but are being challenged in court. Even if the most recent changes are not rolled back, the Biden Administration may reassess the hours of service rules.

During the Trump Administration's tenure, the FMSCA has declared that California and Washington meal and rest break laws, which are different than the rest breaks required by the FMCSA, are preempted by federal regulation, reversing the opinion of the Bush Administration FMCSA. These laws have been the subject of costly class action litigation for motor carriers for years. The FMCSA has stated that these state meal and rest break laws do not have a safety benefit, are incompatible with federal driver hours of service regulations and cause an unreasonable burden on interstate commerce (any one of which is sufficient for preemption). It is conceivable that the agency could reverse course again.

Potential Regulation of Lighter Vehicles

If the FMCSA were to make a broader change under the Biden Administration, one item it might take up is the issue of smaller trucks. Only property-carrying vehicles with a gross vehicle weight rating (GVWR) or gross combination weight rating (GCWR) of greater than 10,000 pounds are federally regulated. This is sensible in that bigger and heavier vehicles pose a greater safety risk than smaller and lighter ones. However, many trucks and vans are designed to remain just under the regulated threshold. With the proliferation of last-mile deliveries, large sprinter vans that are common in such deliveries are not federally regulated when carrying cargo (although they are federally regulated when carrying passengers). An advisory committee of the FMCSA discussed this issue this summer – so there is an indication that it could be on the table and that it may not be a purely partisan issue.

Regulating lighter vehicles would have the potential to add a significant amount of regulation and oversight. Regulated companies and drivers are subject to hours of service regulations, maintenance and inspection requirements, minimum insurance requirements, regular reporting to the FMCSA and the potential for audits, just to name a few. Such new regulations would likely primarily impact parcel carriers and those that have large fleets of vans and smaller trucks, as well as the relatively new entrants to the last-mile delivery market. In addition to the impact on large established entities, the prospect of new regulations could have a chilling effect on the rapid growth of this niche segment of logistics.

While last-mile parcel delivery may draw the attention of regulators, many other industries also use vans and trucks that are heavy compared to a traditional personal vehicle but not federally regulated. These industries include many trades such as plumbing and HVAC, caterers, florists, news organizations and mobile dog groomers, just to name a few. These businesses often are not operating in interstate commerce, but an expansion by the FMCSA to regulate smaller vehicles would have the potential to impact many businesses that are not currently regulated.

Of course, time will tell whether the FMCSA pushes to expand its regulations as the new administration unfolds. Visit Holland & Knight's Transportation Blog for updates and new developments as they occur.

20 Posts in 20 Days Leading to Inauguration Day on Jan. 20

Holland & Knight's Transportation & Infrastructure Industry Sector Group is prepared to assist industry clients in adapting to the anticipated changes by the new administration. Our team is writing new blog posts each day leading up to President-Elect Joe Biden's inauguration, with insights as to likely impacts on the various segments of the industry, including Aviation, Construction, Maritime, Freight Rail, Motor Carriers, Transit and Autonomous Transportation. Bookmark our Election Impacts on Transportation & Infrastructure resource page to follow along.

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