Driver shortage continues to be a major concern facing the commercial transportation industry. For four years running, motor carriers rank this as the number one problem facing the industry. ATRI estimates the driver shortfall at 100,000 over the next five years. A significant contributing factor is the retirement of older drivers without enough younger drivers to replace them. The Federal Motor Carrier Safety Administration (“FMCSA”) continues to implement measures and entertain proposals aimed at increasing the pool of qualified drivers.
In 2019, the FMCSA commissioned a study by the Virginia Tech Transportation Institute (“VTTI”) to analyze the relationship between the age and safety of truck drivers. The study included information on more than 9000 truck drivers ages 21-24 and compared their safety performance levels to drivers of different ages. The research found that driver experience, rather than age, has a greater impact on driver safety risk. The study concluded that there is no safety-based reason not to use younger drivers when structured training, mentoring, and coaching systems are available. However, some members of the FMCSA’s Motor Carrier Safety Advisory Committee (“MCSAC”) disagreed about whether drivers age 21-24 could match the safety performance of older drivers, noting a positive correlation between driver maturity, experience, and safety. One member recommended exercising a high degree of caution when considering the Institute’s research. Still, the study findings may encourage more insurers and employers to provide opportunities to younger drivers.
To promote a larger pool of younger drivers, the FMCSA launched a three-year pilot program in June of 2019 that allows military veterans and reservists under the age of 21 to operate commercial trucks in interstate commerce. The program provides a limited number of individuals, ages 18-20, the opportunity to operate large trucks, provided they have the military equivalent of a commercial driver’s license and are sponsored by a participating trucking company. The FMCSA hopes the program’s benefits will be two-fold, (i) helping military personnel transition into well-paying jobs and (ii) addressing the driver shortage.
The FMCSA also took steps to ensure driver availability and to enable new drivers to continue to receive valuable mentoring during the COVID-19 pandemic. In April 2020, the FMCSA issued a three-month waiver to allow truck drivers with commercial learners permits to operate without a licensed commercial driver in the front seat, provided the driver was still in the truck. This allowed the new drivers to continue to receive necessary additional training while enforcing social distancing.
To reduce regulatory barriers to drivers obtaining their CDL’s, the FMCSA proposed eliminating a federal rule prohibiting state CDL skills instructors from teaching and testing the same applicant. The proposal would also grant states discretion to allow qualified third-party trainers to conduct skills testing for the same person. Research commissioned by the Commercial Vehicle Training Association (“CVTA”) found that the nation’s economy suffers $1.5 billion in annual losses due to delays in driver skills testing. The FMCSA reported that the rule change would expedite the skills testing process, helping to reduce that loss. The CVTA noted the importance of allowing aspiring licensees the chance to take the skills test soon after training, stating that fewer delays help to ensure higher pass rates.
In 2019, the FMCSA also entertained a petition from the National Association for the Deaf (“NAD”) to ease the rules for deaf and hard-of-hearing drivers. NAD contends that the hearing requirements were conceived at a time of misguided stereotypes about individuals with disabilities. It proposed ending the federal regulation requiring commercial motor vehicle drivers to pass a hearing exam as part of their medical evaluation and amending the requirement that deaf drivers be able to speak. NAD pointed to the fact that the FMCSA has granted five-year exemptions to the medical evaluation for more than 450 deaf drivers with good records. The petition faced strong opposition from the CVTA who argued that driving involves many tasks that require the ability to hear.
Though the FMCSA appears to be clearing the way for more drivers, especially younger drivers, the implementation of the Entry-Level Driver Training rule (“ELDT”) has been delayed, possibly until February 2022. The rule, finalized in 2016, specifies standards for new driver Class A and Class B CDL training programs. The rule also requires training providers to upload driver-specific training certification information into the Training Provider Registry, and for state driver licensing agencies to confirm that CLD applicants have complied with ELDT requirements before taking a skills test. The FMCSA pointed to a lack of technological readiness by the states to implement the new system as the reason for the delay. However, some training providers note that the federal Training Provider Registry is not up and running either. This delay halts the implementation of new standards and professional-level curriculum available to all new drivers nationwide.
One area of driver qualification where the FMCSA has not compromised is in its treatment of drug use. In the face of an overall increase in the use of marijuana and cannabidiol (“CBD”) products among American workers, the United States Department of Transportation (“DOT”) advised truck drivers to use CBD products at their own risk. Hemp, from which CBD oils and other products are derived, is now legal. However, marijuana remains a Schedule I drug not permitted for use by commercial drivers. Both contain levels of the psychoactive ingredient THC, but CBD product’s levels are usually much lower. In February 2020, the DOT issued guidance advising that the THC levels in CBD products are not monitored or regulated by the Food and Drug Administration and that certain CBD producers mislabel their product’s THC content level. CBD products containing more than 0.3% THC have been shown to result in positive marijuana drug tests for users. The DOT advised that drivers who test positive for marijuana will not be excused on the basis that they use CBD, and penalties for a positive drug test still apply.
The FMCSA has also taken a firm stance on the issue of human trafficking. On July 16, 2019, the FMCSA issued a final rule permanently banning the employment of commercial motor vehicle drivers who have been convicted of human trafficking. The Administration hopes that the rule will prove a strong and effective deterrent to this criminal activity.
Written by David A. Fraser, Esq.