Watch Now

Power Index: Top 10 Biden regulatory reviews affecting freight markets

Changes in trucking, railroad, maritime sectors on the table

Regulatory reviews affecting trucks, ships, trains. (Photo: Jim Allen/FreightWaves)

President Joe Biden’s election signaled a stark change in policies and priorities from those of the Trump administration — not uncommon when the White House flips political parties — highlighted by a flurry of executive orders that started just hours after Biden was inaugurated.

Included in those changes are a host of regulations that could also be reversed or altered (or already have been). Below are 10, in no specific order, that have the biggest ramifications for freight.

  • Regulation: FMCSA — Hours of service
  • Status: Under review

Why it matters: The Federal Motor Carrier Safety Administration (FMCSA) made four major changes to the hours-of-service (HOS) regulations in 2020 in an attempt to make them more flexible for drivers and carriers. The changes were largely in response to the FMCSA mandating electronic logging devices (ELDs) several years earlier, whereby HOS rules became more restrictive due to the tighter controls over drive time brought about by ELDs.

Safety advocates and the Teamsters union, however, contend that more drive-time flexibility allows carriers to pressure drivers into more service hours without proper rest, leading to fatigue-related crashes. They are suing FMCSA and asking the U.S. Court of Appeals for the District of Columbia Circuit to review the regulator’s changes with the goal of having them repealed.

  • Regulation: Department of Labor — Independent contractor rule
  • Status: Withdrawn

Why it matters: In the waning days of the Trump administration, the Department of Labor (DOL) attempted to revise its rules in a way that would have made it easier for companies to classify workers as independent contractors. On May 5, the Biden administration withdrew the proposed change before it had a chance to go into effect. Biden’s DOL considers the move a shield against abuse of gig workers — such as those driving for Uber and Lyft — by companies that otherwise would not have to pay what the administration considers fair wages and proper benefits, since such workers under Trump’s rule may not have been considered employees.

But for trucking companies that rely on the independent contractor model, a rule further clarifying the Biden administration’s position — which could be published within the next several weeks — will make defining a worker as an independent contractor much more difficult.

  • Regulation: HHS — Hair test guidelines
  • Status: Under review

Why it matters: Using hair samples to screen truck drivers for drug use is an issue where battle lines are drawn between large-fleet carriers and small-business owner-operators. Major operators have already incorporated hair testing to screen for drugs as a way to improve safety because it is considered more accurate than urine or saliva. Small owner-operators argue that — in addition to cost factors — there is not enough evidence proving hair testing does not discriminate based on racial differences.

The Trump administration issued proposed mandatory guidelines for hair testing that no one seemed to like — advocates said they were too weak and critics said they went too far. The Substance Abuse and Mental Health Services Administration, an agency within the Department of Health and Human Services, plans to meet in closed session later this month to review revisions made to the proposal based on comments received.

  • Regulation: Federal Maritime Commission — Shipping Act of 1984
  • Status: Review proposed

Why it matters: The Federal Maritime Commission (FMC), which regulates U.S. international liner container shipping, over the past year has been investigating claims by U.S. exporters of unfair treatment in pricing and service by ocean carriers, alleging that they are paying more attention to their import operations as a result of higher demand.

Frustrated by a lack of progress, the National Industrial Transportation League, an influential shipper group, is calling on Congress to modify the Shipping Act of 1984 in a way that would expand FMC’s authority to act on anti-competitive complaints against carriers and expand the FMC’s oversight of commercial contracts between the carrier and their customers.

  • Regulation: FHWA — Texas I-45 expansion project
  • Status: Under review

Why it matters: The $7 billion North Houston Highway Improvement Project (NHHIP) to widen Interstate 45 in and around Houston includes within its scope three of the top 100 truck bottleneck locations ranked by the American Transportation Research Institute in 2021. Three freight railroads located in the project area also stand to benefit from the expansion.

However, in March the Federal Highway Administration (FHWA) requested that a final record of decision signed by the Texas Department of Transportation in February be put on hold to allow FHWA time to review civil rights and environmental justice concerns raised by lawmakers and area residents affected by the project. The review is in line with racial equity priorities for infrastructure that have been underscored by Secretary of Transportation Pete Buttigieg.

  • Regulation: Pipeline & Hazardous Materials Safety Administration — LNG by rail
  • Status: Under review

Why it matters: On the day he was inaugurated, Biden signed an executive order, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” that included reviewing the Trump administration’s regulation allowing bulk shipments of liquefied natural gas by rail. The regulation was the result of Trump’s own executive order promoting LNG exports shipped via rail tank car. (LNG had previously been allowed over the rails through smaller intermodal shipments.)

The Trump-era regulation, issued by the Pipeline and Hazardous Materials Safety Administration, was opposed by some lawmakers and environmental groups contending that bulk rail LNG shipments were unsafe. Biden’s review comes at a time when demand for LNG exports, which took a hit in 2020 due to pandemic uncertainty, have made a comeback in 2021. That means unlocking transportation capacity could benefit producers and end users.

  • Regulation: Federal Communications Commission — 5.9GHz safety band
  • Status: Confirmed

Why it matters: After the Federal Communications Commission last year approved reallocating part of the 5.9 GHz spectrum reserved to enhance vehicle-to-vehicle communications safety for more consumer-based Wi-Fi services instead, there was speculation that the Biden administration might ask to review the decision.

The review never came. Instead, the FCC moved ahead with the decision by issuing a final rule in April — to the frustration of DOT officials as well as to some in the trucking industry concerned the reallocation could affect the rollout of autonomous truck technology. Companies like Volvo Trucks North America had noted that dedicated bandwidth within the 5.9 GHz spectrum was critical for deploying vehicle-to-vehicle applications such as truck platooning.

  • Regulation: Surface Transportation Board — Staggers Rail Act of 1980
  • Status: Pending

Why it matters: The changeover to a Democrat-led Surface Transportation Board (STB) — the agency tasked with regulating rail rates and service — was seen as an opportunity for rail shippers to place new pressure on the STB to use its authority to address rate reform.

A coalition of coal, chemical, fertilizer, steel and other commodity shippers that consider themselves captive rail customers wrote in February to newly appointed board Chairman Martin Oberman that the board’s 2019 Rate Reform Task Force called for modernizing STB policies to account for changes in the rail industry since The Staggers Rail Act of 1980 deregulated the industry. The new slate of board members may take the opportunity to streamline rate review procedures and modernize policies that captive shippers argue prevent them from accessing competitive service.

  • Regulation: FMCSA/NHTSA — Speed limiter proposed rule
  • Status: Pending

Why it matters: A proposed joint rulemaking mandating speed limiting devices for heavy-duty commercial motor vehicles was issued during the Obama administration, and the Trump administration did not rescind it before the Biden administration took control. If Biden’s FMCSA/NHTSA were to take up the proposal, potential increased costs could disproportionately affect small owner-operators due to increased delivery times, according to an agency analysis of the proposal.

“We have very limited data to predict how the affected owner-operators would deal with the increase in delivery times,” FMCSA/NHTSA state in the proposal. “We expect that some of the affected owner-operators would work for trucking companies as independent contractors. If all of the affected owner-operators worked for trucking companies as independent contractors, they would lose $54 million in labor income.”

  • Regulation: FHWA — Cordon congestion pricing
  • Status: Under review

Why it matters: The FHWA in March took action on a congestion pricing toll project that was stalled due to inaction under the Trump administration, paving the way for a tolling scheme that could end up costing trucks $25 to enter Manhattan. FHWA determined that an environmental assessment — as opposed to a more time-consuming environmental impact statement — should be the next step in the toll project’s approval process.

Under the proposal, New York officials would charge a once-daily variable toll for vehicles entering or remaining within the “Central Business District” — a cordoned area stretching from 60th Street in Midtown to Battery Park. The project would become the nation’s first cordon congestion pricing toll zone of this scale, according to FHWA.

Click for more FreightWaves articles by John Gallagher.

John Gallagher

Based in Washington, D.C., John specializes in regulation and legislation affecting all sectors of freight transportation. He has covered rail, trucking and maritime issues since 1993 for a variety of publications based in the U.S. and the U.K. John began business reporting in 1993 at Broadcasting & Cable Magazine. He graduated from Florida State University majoring in English and business.