Contents

Regulation and Enforcement

• DOT to allow oral fluids testing for controlled substances
• FMCSA forms task force on truck leasing
• FMCSA says states may grant CDLs or CLPs to Mexican citizens under DACA program
• California mandates zero-emissions vehicles by 2042
• Comment periods closing soon on SMS changes, crash preventability program
• Propane industry denied broad HOS exemption
• Alaskan ice road school seeks skills test exemption
• FMCSA renews exemption for lighting during towing
• CVSA International Roadcheck to be held May 16-18

Legislation

• Congress likely to vote down EPA rule on truck emissions but not overturn a veto
• Cuellar bill addresses staged collisions, disclosure of lawsuit funding
• House bill would bar FMCSA from implementing a speed limiter rule

Advocacy and Comment

 

Regulation and Enforcement

DOT to allow oral fluids testing for controlled substances

The U.S. Department of Transportation issued a final rule that will allow employers in industries regulated by the department’s modal agencies, including FMCSA, to use oral fluid testing in lieu of urine testing for controlled substances. The goal of the rule is to give employers an option that could help combat employee cheating on urine drug tests and provide a less intrusive means of achieving the safety goals of the program.

Although DOT has cleared oral fluid testing, in practice that option will not be available until the U.S. Department of Health and Human Services certifies at least two laboratories for oral fluid testing, which has not yet been done. The Federal Register notice is available at https://www.federalregister.gov/d/2023-08041.

FMCSA forms task force on truck leasing

As mandated by the 2021 law known as the Infrastructure Investment and Jobs Act (IIJA), FMCSA has established and appointed members to the Truck Leasing Task Force (TLTF). The TLTF, which was supposed to have been established by May 2022 according to the IIJA, will evaluate lease agreements in trucking and their potential safety and financial impacts on owner-operators. The members of the TLTF are:

• Tamara Brock, Brock Logistics, LLC and Lewis & Lewis Logistics, LLC (Independent owner-operator)
• Paul Cullen, The Cullen Law Firm, PLLC (Attorney)
• Troy Hawkins, TTOH Consulting & Logistics, LLC (Independent owner-operator)
• Jim Jefferson, Owner-Operator Independent Drivers Association
• Joshua Krause, OTR Leasing, LLC (Business)
• Kaitlyn Long, International Brotherhood of Teamsters
• Steve Rush, Carbon Express Inc. (Carrier)
• Lesley Tse, Of counsel to Getman, Sweeney & Dunn, PLLC (Attorney)
• Steve Viscelli, Ph.D., University of Pennsylvania (Economic sociologist)

For more information on the TLTF, visit https://www.fmcsa.dot.gov/tltf.

FMCSA says states may grant CDLs or CLPs to Mexican citizens under DACA program

FMCSA has determined a state driver’s licensing agency may issue a non-domiciled commercial learner’s permit (CLP) or commercial driver’s license (CLP) to an individual is present in the U.S. under the Deferred Action for Childhood Arrivals (DACA) immigration policy as a citizen of Mexico subject to conditions. The two conditions specified by FMCSA are that the individual (1) meets the requirements of 49 CFR § 383.71(f)(2) and (2) has never held a Licencia Federal de Conductor issued by Mexico. For this and other FMCSA guidance documents, visit https://www.fmcsa.dot.gov/guidance.

California mandates zero-emissions vehicles by 2042

The California Air Resources Board voted in late April to finalize its Advance Clean Fleets (ACF) regulations, which would require that all medium- and heavy-duty vehicles operating in the state meet zero-emissions (ZEV) standards by model year 2042. The rule also bars truck manufacturers from selling any vehicle in the state that does not meet ZEV standards by model year 2036.

The CARB rule sets differing deadlines for fleet conversion based on the type of operation. The most aggressive is for drayage operations, which cannot add any non-ZEVs to their fleets beginning on January 1, 2024. Fleets deemed to be “high priority” – those with $50 million in revenue or 50 trucks – are subject to similar rules, although they have the option of adding diesel trucks to their fleets provided that they achieve certain milestones for the percentage of ZEVs in the total fleet. Under that option, sleeper cab trucks would have until 2042 to achieve 100% ZEVs. Day cab tractors and heavy-duty work trucks would have to be 100% ZEV by 2039. For more information, visit https://ww2.arb.ca.gov/our-work/programs/advanced-clean-fleets.

As reported last month, the Environmental Protection Agency has proposed its own phase-in schedule for ZEVs, although the proposed regulations run only through MY 2032 and do not mandate 100% ZEV compliance by then. EPA formally published its proposed rule on April 27 with a comment due date of June 16. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-07955.

Comment periods closing soon on SMS changes, crash preventability program

Interested parties have until May 16 to submit comments on FMCSA’s proposed changes regarding the Safety Measurement System. Comments are due May 16. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-02947. For supporting documents and to file or review comments, visit https://www.regulations.gov/docket/FMCSA-2022-0066. Motor carriers can view how the revisions would affect their SMS performance by logging in at https://csa.fmcsa.dot.gov/prioritizationpreview.

In a related realm, comments are due June 12 on FMCSA's proposal to broaden the scope of existing crash types within the Crash Preventability Determination Program (CPDP) and to add four new types of crashes to the program. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-07818.

Propane industry denied broad HOS exemption

FMCSA has rejected an application requested by the National Propane Gas Association (NPGA) for an exemption from various hours-of-service (HOS) requirements to enable the propane industry to prepare and respond to peak periods of consumer demand among residential, agricultural, and commercial consumers in anticipation of, during, and to recover from emergency conditions. The exemption would have applied on a per-driver, per-route basis subject to appropriate documentation to demonstrate the presence of peak consumer demand conditions within the scope of the exemption.

FMCSA said that it could not conclude that the exemption would provide an equivalent level of safety. It also said that what constitutes an emergency is a fact-specific inquiry and that the categorical exemptions sought by NPGA were not appropriate. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-08192.

Alaskan ice road school seeks skills test exemption

FMCSA is requesting comments by May 22 on an application from Alaska's Ice Road Driving School for an exemption from the skills road test portion of the behind-the-wheel (BTW) entry-level driver training (ELDT) requirements for driver trainees. The applicant contends that due to the unique road system and challenging terrain in Alaska, it is difficult to adhere to the driver training regulations. The Federal Register notice is available at https://www.federalregister.gov/d/2023-08336.

FMCSA renews exemption for lighting during towing

FMCSA has provisionally renewed for five years an exemption held by TowMate, LLC that allows motor carriers – during temporary towing operations – to operate rechargeable wireless temporary stop, turn, and tail lighting systems that do not meet the vehicle power supply requirements for all required lamps. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-08193.

CVSA International Roadcheck to be held May 16-18

As previously reported, the Commercial Vehicle Safety Alliance is holding its annual three-day International Roadcheck event May 16-18. Although any violation is subject to enforcement, CVSA each year focuses on a few specific safety issues. This year’s Roadcheck will stress anti-lock braking systems and cargo securement.

 

Legislation

Congress likely to vote down EPA rule on truck emissions but not overturn a veto

The U.S. Senate on April 26 passed by a 50 to 49 vote a joint resolution (S.J. Res. 11) that would disapprove a final rule published by the EPA in January that would establish new heavy-duty engine emissions standards for oxides of nitrogen and pollutants. Although Democrats theoretically control the Senate, the measure passed because Sen. Joe Manchin (D-West Virginia) voted for the resolution and an ailing Sen. Diane Feinstein (D-California) was absent.

S.J. Res. 11 now moves to the House where its passage would appear highly likely given Republican control of the House. However, the resolution of disapproval has essentially no chance of becoming law because President Biden is certain to veto it. Such a veto could be overridden only by two-thirds of the members of both the House and Senate, and Republicans do not have the votes. For more information on S.J. Res. 11, visit https://www.congress.gov/bill/118th-congress/senate-joint-resolution/11/.

Cuellar bill addresses staged collisions, disclosure of lawsuit funding

Rep. Henry Cuellar (D-Texas) has reintroduced legislation (H.R. 2936) originally introduced in 2021 that would make it a federal crime to intentionally cause a collision with a commercial motor vehicle or to arrange for another person to cause such a collision. The bill, which is co-sponsored by Rep. Mike Bost (R-Illinois) and Rep. Garret Graves (R-Louisiana) also would require that plaintiffs disclose in writing to the court and other parties the identity of any commercial enterprise that has a right to receive payment based on monetary relief through settlement or judgment. For more information on H.R. 2936, visit https://www.congress.gov/bill/118th-congress/house-bill/2936.

House bill would bar FMCSA from implementing a speed limiter rule

Rep. Josh Brecheen (R-Oklahoma) has introduced a bill (H.R. 3039) that would prohibit FMCA from implementing any rule requiring that vehicles over 26,000 pounds operating in interstate commerce be equipped with a speed limiting device set to a maximum speed. In May 2022, FMCSA published an advance notice of supplemental proposed rulemaking stating that it planned to proceed with the speed limiter rulemaking that had been proposed late during the Obama administration. The Trump administration had shelved the rulemaking but had not formally withdrawn it as it had several others. For more information on H.R. 3039, visit https://www.congress.gov/bill/118th-congress/house-bill/3039.

 

Advocacy and Comment

Two hot topics this month will be Comments to the Agency’s proposed changes to its existing safety management system and an industry-wide effort to address criminal fraud in trucking.

(1)  Comments Due. Comments are due on May 16th in the “Revised Carrier Safety Measurement System” referred to above. Involved is the FMCSA’s proposed changes to SMS methodology as an initial part of a new effort to revise the Agency’s safety fitness rules. This notice and comments require close scrutiny and addressing material issues of fact and law if the guidance is to be baked into a rule.  An analysis of the issues to be addressed by concerned stakeholders is attached.

Secondly, Comments are due on June 12th on the need to revise the Crash Preventability Determination Program. The proposed changes would increase the Agency’s future reliance on a revised DataQ system which raises a number of concerns which will need to be raised in that docket.

(2) Antifraud Initiative. The support for our antifraud initiative has been overwhelming. Senator Braun of Indiana and Congressman Bost of Illinois have prepared and are circulating a letter for bipartisan congressional approval. The letter would establish, within U.S. DOT’s Office of Inspector General, a special task force to investigate and prosecute supply chain fraud as a criminal matter utilizing the OIG’s existing authority and expertise.

The importance of this issue was raised on May 10th at the T&I hearing entitled, “Freight Forward: Overcoming Supply Chain Challenges to Deliver for America.” The initiative has been supported from the outset by our stakeholders and correspondence evidencing our support will be sent to the T&I Committee on May 18. Interested parties that have been victimized by fraud and wish to participate in this advocacy are welcome.

ANALYSIS OF FMCSA’S PROPOSED CHANGES TO SMS METHODOLOGY (COMMENTS DUE MAY 16)

1. What is the purpose of the Agency’s proposed changes to SMS methodology?

ANSWER: Proposals are billed as a “Notice,” but not a notice of anything in particular. Announcement on February 14 appears intended as internal guidance until the Agency can roll out the new program as a rule that might pass muster to replace safety fitness standards in 49 CFR Part 385.

2. Why is that needed?

ANSWER: Ultimately the FMCSA, after 13 years of trying, can only issue actual safety ratings to approximately 5,000 carriers per year, although there are 700,000 carriers.

3. What are the benefits of the new program?

ANSWER: It is billed as a kinder, simpler system for profiling carriers for audit at this point. Hidden agenda may be to defuse industry opposition, so that the program later could be slipped through as a revision to Part 385.

4. What is being proposed?

ANSWER: A restructure of SMS scoring to: (1) merge violations into fewer categories: (2) give dominance to “unsafe driving;” (3) establish new violation severity standards; (4) shorten the lookback period for inspections and violations from two years to one, which will only magnify the current problem of data insufficiency; (5) thus make it still more difficult to accumulate enough data for accurate profiling of small carriers. The vast majority of new and small carriers still will not be measured, but a new SMS algorithm not discussed by the Agency will ultimately be morphed into a new safety rating process.

5. What will be the effect of the new proposal on carrier scores?

ANSWER:

Small carriers will fly under the radar and will not have SMS data. Due to not meeting data sufficiency standards, they will have no scores and will be unmeasured and presumably “unrated.” Carriers profiled for audit will be based on roadside inspection and crash data for only the past year. Presumably, a conclusion that only the most recent data is a predictor of safety will undercut the value of the thousands of carriers who enjoy satisfactory ratings issued prior to the one-year lookback.

(The one-year period corresponds to the current Part 385 parameters for issuing safety ratings – which is yet another predictor that the SMS reboot is intended for use as part of a new safety fitness rule.)

6. What are likely changes in the scores of the carriers profiled under the proposed SMS reboot?

ANSWER: Carriers can use their PIN to see the comparative scores. Data experts are finding little variation in the ultimate scoring. Due to the severity and timing of particular accidents and violations, some motor carriers may receive an increased number of alerts and some carriers may receive fewer alerts.

7. How then does the reboot allow the Agency to better profile carriers and conduct more audits?

ANSWER: No answer has been provided. Apparently there will be a Phase 2 or 3 of the proposed reboot in which more reportable accidents and adverse roadside inspections can be DataQ’d, but due process concerns about data quality will continue and were not mentioned in the Agency’s reboot notice. The recently proposed changes to accident reporting and DataQ processes, if adopted, will allow for more types of crashes to be reviewed for preventability.

8. How does the reboot compare with CSA 2010?

ANSWER: The Agency acknowledges at this point that the reboot scores cannot be published because of the FAST Act. There has been no significant correction of systemic flaws noted by Congress, the National Academies of Science and U.S.DOT, including such problems as enforcement anomalies, data sufficiency, data accuracy issues, and state and local/revenue-raising biases. (See Journal of Transportation Management, Fall 2018.)

9. If most small and new carriers are left unrated, why should they be concerned?

ANSWER: No red light-green light data. Scores, like now, will be independently calculated and used as an alternative vetting standard by insurers and the plaintiff’s bar. The important “unsafe driving” basket will be used as an alternative measuring stick with no due process. Due to data insufficiency for small carriers, and the widespread utilization of these carriers by the shipping and brokerage community, it is a total crap shoot as to whether such carriers are “safe or not.” If registered for authority, the carrier will be good to go and in most cases will be under the Agency’s radar screen with respect to both safety and fraud enforcement purposes.

10. Why is there a need for a red light/green light system?

ANSWER: Shippers and brokers fear up-supply chain liability and application of state negligence laws and feel they cannot rely on “fit to operate is fit to use” when named as defendants. Although the Agency has admitted that a carrier not found unfit or placed out of service is fit to operate, its continued reliance on SMS creates a felt need for alternative vetting.

11. What is the effect of this proposal and the likely ultimate rulemaking? Why should we be concerned now?

ANSWER: Unless the record is built here, the reboot will be touted as a new standard acceptable to industry.

12. In what sense will the reboot be a self-fulfilling prophecy?

ANSWER: FMCSA auditors use SMS profiling to target carriers for audit.

13. What cost-benefit analysis and due-process consideration has been undertaken by the Agency?

ANSWER: To date, none. The DataQ appeals process cannot meet judicial standards for due process. Carriers which have enough violations to be measured will have increased costs fighting each violation to avoid being targeted. Unrated status for small and new carriers will not be the red light/green light system that shippers and brokers need.

14. What industry factors exacerbate these concerns?

ANSWER: (1) Threat to owner operator model results in carriers with advanced telematics and safety procedures needing to hire small carriers; and (2) Plaintiff’s bar can and will use non-rated carrier status and carriers’ absence of speed limiters, front and rear facing cameras, etc. as evidence that hiring carriers were negligent in retaining unrated carriers that do not meet their standards.

15. What is missing from the Notice?

ANSWER: The industry cannot be lulled by any superficial appearances that the rebooted SMS is somehow fairer or less burdensome than CSA 2010. It is not. Comments are due May 16, and must demonstrate that the reboot is pervaded by the same flaws as the original. The proposal does not satisfy the requirements of the Administrative Procedure Act for a rebooted safety scoring system which – like CSA 2010 – will affect the outcome of safety fitness assessments determining whether a carrier can operate. While the proposal effectively would operate as a rule, the current notice is a perfect example of “rulemaking lite.” It does not articulate the basis and purpose of the new scoring system, let alone analyze the effects of the proposal on small businesses and other stakeholders, nor does it evaluate the proposal from a statistical or data quality standpoint. The proposal begs most of the unanswered questions raised by the industry, the National Academies and Congress regarding the unpublished scores generated by CSA 2010, including:

(1) data insufficiency for smaller carriers,
(2) prosecutorial bias when roadside inspections are revenue-driven rather than safety-driven,
(3) disparate enforcement priorities and inspection policies between States (which the Agency’s proposal explicitly refuses to consider),
(4) the impact of bad inspections being magnified by underreporting of clean inspections,
(5) the lack of statistical support or mathematical data to validate any new algorithms being used, and
(6) the absence of cost-benefit analysis for trying to make a rule out of enforcement data extrapolations when a CDL-like objective evaluation under a uniform standard would be fairer and more efficient.

16. Is there a better answer?

ANSWER: If the Agency’s goal is a new fitness rule, that rule should include (1) a certification that each carrier deemed fit to operate is fit to use, fulfilling the Agency’s job to police the industry for the benefit of the traveling and shipping public, and (2) guardrails against fraudulent use of carrier authorities (identity theft) by persons whose fitness has not been reviewed. Every carrier who is licensed to operate should have a desktop audit which acts like a driver’s license renewal, an identity check and a certification of fitness to operate. The current desktop audit for new entrants is touted as effective and cost efficient by the Agency. With modest additional costs (recouped through fees), and additional staffing by qualified non-agency personnel (as is currently the case with brake inspectors, CDL trainers/testers, MROs, professionals conducting driver physicals, and other state personnel utilized under MCSAC), biennial desktop audits could be used as evidence that carriers have been monitored and certified as meeting the “safe to operate is safe to use” standard needed by the shipping public.

Contents

Regulation and Enforcement

• FMCSA proposes to expand scope of crash preventability review program
• FMCSA plans rulemaking on broker disclosure of transaction records
• Hearing for Labor Department nominee Julie Su set for April 20
• EPA proposes minimum levels for zero-emissions vehicles
• All-Ways Track ELD removed from FMCSA’s list of registered devices
• FMCSA to reduce UCR fees by about 9% in 2024
• Docket on proposed SMS changes open until May 16

Legislation

• House, Senate bills would authorize $755 million for truck parking
• Florida enacts lawsuit reform legislation

Courts

• Appeals court upholds preemption of broker’s negligent selection
• Court’s ruling could reopen the door to trucking claims on AB 5

Advocacy and Comment

 

Regulation and Enforcement

FMCSA proposes to expand scope of crash preventability review program

FMCSA proposed to broaden the scope of existing crash types within the Crash Preventability Determination Program (CPDP) and to add four new types of crashes to the program. The agency said that the changes would improve the information in the Safety Measurement System (SMS) and better position it to identify unsafe carrier and driver behaviors.

The expansion is expected to double the size of the current program and provide more data for analysis of the impacts of a carrier’s not preventable crashes on its overall safety. FMCSA said it would analyze the changes to existing crash types and new crash types for 24 months but may announce changes earlier if certain crash types cannot be consistently reviewed or there is insufficient information to make eligibility and preventability determinations.

The principal change made to existing crash types in the CPDP is to eliminate the distinction between direct and indirect strikes in a crash. For example, one of the types of crashes currently deemed not preventable is when a commercial motor vehicle (CMV) “is struck by a motorist driving in the wrong direction.” FMCSA now proposes to treat a crash as not preventable if the CMV “is struck because another motorist was driving in the wrong direction.” The agency said the changes would allow it to further refine prioritization. The new types of crashes that are eligible for review are:

• CMV was struck on the side by a motorist operating in the same direction;
• CMV was struck because another motorist was entering the roadway from a private driveway or parking lot;
• CMV was struck because another motorist lost control of their vehicle; and
• Any other type of crash involving a CMV where a video demonstrates the sequence of events of the crash.

Comments on the proposal are due June 12. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-07818.

FMCSA plans rulemaking on broker disclosure of transaction records

FMCSA has notified the Owner-Operator Independent Drivers Association (OOIDA) and the Small Business in Transportation Coalition (SBTC) separately that it plans to initiate a rulemaking to consider changes in the regulations that govern brokers’ responsibility to disclose details of transactions to parties involved in those transactions. The two separate petitions for rulemaking were filed in May 2020 after spot rates plunged in the wake of pandemic lockdowns.

Current regulations require freight brokers to disclose transactional records upon request. The OOIDA petition sought a change in the rules to require brokers to automatically disclose such records within 48 hours of the transaction. OOIDA also proposed an explicit prohibition against brokers requiring carriers to waive their right to view records as a condition of doing business. Similarly, SBTC had asked in a separate petition that FMCSA modify the current rule to bar brokers from coercing or otherwise requiring carriers to waive their right to view transaction records as a condition of doing business.

Following the OOIDA and SBTC petitions, the Transportation Intermediaries Association (TIA) filed a petition in August 2020 to eliminate altogether the requirement that brokers maintain detailed transaction records and provide them to parties upon request. TIA argued that its proposed changes “would eliminate an outdated regulation that dates back to 1980 that is not applicable to the current marketplace.” Last month, FMCSA told TIA that its petition did not contain adequate justification to initiate rulemaking. “FMCSA believes that elimination of the disclosure provision would be contrary to the stated transportation policy goals in 49 USC 13101, including promotion of fairness and efficiency in the transportation industry,” the agency said in a March 17 letter to TIA.

Hearing for Labor Department nominee Julie Su set for April 20

The Senate Committee on Health, Education, Labor, and Pensions has scheduled an April 20 hearing on the nomination of Julie Su to be secretary of the U.S. Department of Labor. Su, who has been deputy secretary since July 2021, has been acting secretary since March 11 following the departure of Marty Walsh.

Before joining DOL, Su had served as secretary for the California Labor and Workforce Development Agency. One of Su’s focuses at the LWDA was challenging what the agency considered to be misclassification of workers as independent contractors. Su’s confirmation appears to be at risk as Sen. Joe Manchin (D-West Virginia) reportedly has expressed concerns over her nomination. If Manchin were to vote against Su, she would have to receive all other Democratic votes to be confirmed.

During Su’s tenure as deputy secretary, DOL has proposed regulations to undo the Trump administration’s loosening of restrictions on use of independent contractors. A day before Su’s Senate hearing, a subcommittee of the House Committee on Education & the Workforce has scheduled a hearing entitled “Examining Biden’s War on Independent Contractors.”

EPA proposes minimum levels for zero-emissions vehicles

The Environmental Protection Agency unveiled its proposed phase 3 greenhouse gas (GHG) standards for medium- and heavy-duty vehicles, beginning with model year (MY) 2028. EPA also proposes to tighten phase 2 standards for MY 2027 specifically for vocational vehicles and day cab tractors. Under EPA’s proposal, truck manufacturers would have to meet increasing percentages of total vehicles supplied that meet standards for zero-emissions vehicles (ZEVs). The standards are performance-based, but EPA presumes they will be met primarily through a combination of battery electric and hydrogen fuel cell technologies.

By MY 2032, 50% of vocational vehicles supplied to the market would be required to meet ZEV standards. Day cab tractors supplied would need to be 34% ZEV, and 25% of sleeper cab tractors would have to meet ZEV standards. EPA presumes a mix of battery electric and fuel cell for vocational and day cab tractors and principally fuel cell technology for sleeper cabs.

EPA will publish the proposal in the Federal Register and has scheduled a two-day virtual public hearing for May 2-3. For more information on the proposal, visit https://www.epa.gov/regulations-emissions-vehicles-and-engines/proposed-rule-greenhouse-gas-emissions-standards-heavy.

EPA’s proposal came just a couple of weeks after the agency granted several waivers from federal preemption to the California Air Resources Board (CARB) for regulations related to the state’s heavy-duty vehicle and engine standards. The most significant of those is the state’s Advanced Clean Truck regulation, which would mandate a different schedule for transition to ZEVs.

All-Ways Track ELD removed from FMCSA’s list of registered devices

Effective March 27, FMCSA removed the All-Ways Track ELD from the list of registered electronic logging devices (ELDs) and placed it on the list of revoked devices due to a failure to meet the minimum requirements established in 49 CFR part 395, subpart B, appendix A. Motor carriers using revoked devices must immediately discontinue their use and replace them within 60 days of the revocation. In the interim, carriers must revert to paper logs or logging software. For a list of registered and revoked ELDs, visit https://eld.fmcsa.dot.gov/List.

FMCSA to reduce UCR fees by about 9% in 2024

FMCSA has proposed to reduce the annual registration fees that states collect from carriers, brokers, forwarders, and leasing companies under the Unified Carrier Registration (UCR) Plan and Agreement. The fees for the 2024 registration year would be reduced below the fees for 2023 by approximately 9% overall, with varying reductions between $4 and $3,453 per entity, depending on the applicable fee bracket. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-05292.

Docket on proposed SMS changes open until May 16

Interested parties have one more month to submit comments on FMCSA’s proposed changes regarding the Safety Measurement System. Comments are due May 16. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-02947. For supporting documents and to file or review comments, visit https://www.regulations.gov/docket/FMCSA-2022-0066. Motor carriers can view how the revisions would affect their SMS performance by logging in at https://csa.fmcsa.dot.gov/prioritizationpreview.

 

Legislation

House, Senate bills would authorize $755 million for truck parking

Lawmakers in both the House and Senate have introduced legislation (H.R. 2367, S. 1034) to establish a competitive grant program for projects that expand the availability of CMV parking. The principal sponsors of the bills are Rep. Mike Bost (R-Illinois) and Sen. Cynthia Lummis (R-Wyoming). The bills would authorize $755 million total over fiscal years 2024-2026 to build or reopen rest areas with CMV parking or to add CMV parking capacity at existing facilities, truck stops or travel plazas, or publicly owned freight facilities, such as port terminals. For more on the House bill, visit https://www.congress.gov/bill/118th-congress/house-bill/2367. For more on the Senate bill, visit https://www.congress.gov/bill/118th-congress/senate-bill/1034.

Florida enacts lawsuit reform legislation

Florida Gov. Ron DeSantis in March signed legislation (House Bill 837) that enacts numerous reforms to civil litigation in a state. The law modifies the bad faith framework, eliminates one-way attorney’s fees and fee multipliers, and bars liabilities for damages if the person suing for damages is deemed to be at greater fault. One provision of particular interest in the trucking industry is one curtailing the ability of plaintiffs’ attorneys from introducing fictitious or inflated medical bills at trial. For more information on the new law, visit https://www.flsenate.gov/Session/Bill/2023/837.

 

Courts

Appeals court upholds preemption of broker’s negligent selection

The U.S. Court of Appeals for the 11th Circuit has ruled that the Federal Aviation Administration Authorization Act (FAAAA) generally preempts state-law negligent selection claims against freight brokers unless they fall within one or more of FAAAA’s exceptions. The opinion, which affirmed a U.S. district court’s ruling, further determined that FAAAA’s safety exception for state action was not applicable to negligence claims against a broker based on stolen goods. The litigation in question involved a load brokered by Landstar Ranger to a thief posing as a Landstar-registered carrier. The court’s opinion is available at https://media.ca11.uscourts.gov/opinions/pub/files/202210740.pdf.

The Landstar case appears to the be second in which a federal appeals court has considered the scope of FAAAA’s preemption against freight brokers for negligent selection under state common law. The U.S. Court of Appeals for the 9th Circuit ruled in September 2020 that a state common law claim against C.H. Robinson for negligent selection in a crash resulting in injuries fell within the safety exception of FAAAA’s preemption. The U.S. Supreme Court in June declined to review the 9th Circuit decision. Although the results are different in the C.H. Robinson and Landstar Ranger cases, they are not directly in conflict given that the Landstar case involved a commercial claim – stolen goods – rather than a claim involving the safe operation of motor vehicles.

Court’s ruling could reopen the door to trucking claims on AB 5

A court ruling in a case not directly involving the trucking industry could offer the industry another avenue for challenging enforcement of California’s AB 5 law. The U.S. Court of Appeals for the 9th Circuit in March ruled that a district court erred in dismissing the claims of food delivery service Postmates and ride hailing service Uber that the authors and supporters of AB 5 unfairly targeted app-based ride-hailing and delivery services while granting wide-ranging exemptions to other types of companies.

Postmates and Uber cited statements in opinion pieces and on social media by AB 5 sponsor Lorena Gonzalez and others. The appeals court said the plaintiffs had “plausibly alleged that their exclusion from the wide-ranging exemptions, including for comparable app-based gig companies, could be attributed to animus rather than reason.” Although the appeals court sided with the district court in all other respects, it reinstated the plaintiffs’ equal protection claims for further litigation. The appeals court did not necessarily agree with the merits of the plaintiffs’ equal protection claims, only that those claims were plausible. The 9th Circuit’s opinion is available at https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/17/21-55757.pdf.

Given comments by AB 5 supporters about the trucking industry as the legislation was being advanced and debated, the appeals court ruling potentially opens the door for new equal protection claims against application of the law against trucking. Claims of preemption failed when the U.S. Supreme Court refused in June of last year to review the 9th Circuit’s ruling in the case. Since then, new challenges have been filed against application of AB 5 to trucking based on the dormant Commerce Clause.

 

Advocacy and Comment

This month’s update involves three of our continuing hot topics: (1) The future of the owner operator and labor issues; (2) a proposed reboot of SMS methodology; and (3) the pervasive problem of organized and unchecked criminal fraud in the interstate trucking supply chain.

1. Owner Operator / Labor Issue

The two cases cited above have an interesting but tangential effect on the owner operator model. Criticism of the 9th Circuit about the political influences in the handling of AB5 evidences the recognition of the statute’s purely political nature and the 7th Circuit decision makes clear that the safety carve-out in the FAAAA is not intended to permit the trumping of federal law where no direct nexus to safety is shown.

Arguably these decisions are of value in the ultimate reconsideration of AB5 by the Supreme Court which should find a compelling need for uniform treatment of owner operators and federal rules of commerce based upon existing statutes and federal preemption. It must be noted, though, that the Department of Labor as currently configured, offers no safe harbor for owner operators or small businesses. Although a coalition of small businesses was able to defeat the appointment of David Weil, a known pro labor advocate, as Secretary, Julie Su who has acted as the Secretary pro tem, has now been selected for appointment. Like Weil, Ms. Su’s vita portrays a pro labor bias and her nomination should be opposed in letters to the Senate.

2. SMS Reboot

Comments on the FMCSA’s proposed revisions to SMS are due May 16, 2023. While the proposal is gentler and more defensible in some respects than CSA 2010, it is offered not as mere guidance, but as part of a new rule which would have the ultimate effect of law. Accordingly, it must meet higher standards including due process and the Administrative Procedures Act which requires consideration of the effect on small businesses, a cost benefit analysis, and rulings on material facts and law which have not been addressed.

In this regard, major unanswered questions include:
(1) How does FMCSA plan to address the litany of unmentioned deficiencies such as data accuracy, data sufficiency, the law of large numbers and enforcement bias that were identified prior to the Agency’s withdrawal of SMS in 2016?

(2) How will the new rule effectively allow the Agency to issue more safety fitness ratings? Using SMS as a vetting system, it now issues only 5,000 safety ratings per year. Under its new calculations, safety performance will be based only on a carrier’s past year of operations. This begs the argument that only 5,000 of over 700,000 carriers will be vetted under current §385 standards annually.

(3) How can the Agency justify use of roadside data accompanied by an expensive extension of administrative appeals and DataQ when the data measurement standards are apparently insufficient to measure the vast majority of small carriers?

3. Momentum for Anti-Fraud Initiative

Consensus is building that additional anti-fraud measures are needed to address widespread and crippling criminal fraud, particularly in the spot market. Administrative, legislative and judicial advocacy is necessary to establish precedent, laws and effective enforcement to investigate and prosecute organized crime at the federal level. In addition, the time has come for all shippers and brokers, particularly, to establish better vetting procedures and security and supply chain protocols for identifying and preventing larceny by fraud, identity theft, and bait and switch scams. More to come on this issue in subsequent reports.

The shortcomings and problems with the FMCSA dispatch service and bond change proposals were re-emphasized in stakeholders’ filing on April 6. As a separate issue, the case must be made for a federal enforcement initiative to investigate and prosecute systemic fraud which plagues all segments of the trucking industry. The issue is not limited to bonding issues and includes produce and exempt shipments. The DOT’s Office of Inspector General has the authority and experience to investigate and enforce federal criminal fraud penalties. Supportive stakeholders should contact their U.S. Senators and representatives, share with them the gravity of the problem and urge support for congressional support and funding as necessary. Recipients of this newsletter should notify their trade association or send this monthly newsletter to register your support.

Contents

Regulation and Enforcement

• FMCSA extends deadlines in broker proceedings, sets March 31 session
• Earl Adams named FMCSA deputy administrator; Van Steenburg to retire as CSO
• Employers to be notified of drivers’ clearinghouse status changes
• FMCSA issues enforcement policy on actual knowledge of substance violations
• Pitt Ohio seeks relief from CDL requirement of younger driver program
• Autonomous vehicle firms seek relief concerning warning devices
• FMCSA denies carrier’s requested HOS relief for food product delivery
• FMCSA rejects another driver request for an HOS exemption
• Driver seeks personal exemption from multiple HOS requirements
• Driver seeks exemption to allow 5/5 split of sleeper berth time

Legislation

• Bill to repeal FET on trucks and trailers introduced in both Houses of Congress
• House bill addresses motor vehicle owners’ right to repair
• Bill would mandate video recording in federal CMV enforcement stops

Advocacy and Comment

 

Regulation and Enforcement

FMCSA extends deadlines in broker proceedings, sets March 31 session

FMCSA has extended or reopened the comment period in two proceedings related to brokers to accommodate a March 31 public listening session on broker-related matters to be held at the Mid-America Trucking Show in Louisville, Kentucky. In November, FMCSA had published interim guidance on the definitions of broker and bona fide agents. In January, the agency issued a notice of proposed rulemaking (NPRM) to regulate broker and freight forwarder financial responsibility as required by the Moving Ahead for Progress in the 21st Century Act (MAP-21). The comment period on the interim guidance closed January 17, and comments on the NPRM had been due March 6. Comments in both proceedings now will be due April 6.

The interim guidance, which responded to a mandate in the 2021 infrastructure law, was effective immediately. (For details on the interim guidance, see the December 2022 Regulatory Update.) The NPRM proposes regulations in five areas: (1) assets readily available; (2) immediate suspension of broker/freight forwarder operating authority; (3) surety or trust responsibilities in cases of broker/freight forwarder financial failure or insolvency; (4) enforcement authority; and (5) entities eligible to provide trust funds for BMC-85 filings. (For details of the NPRM, see the January 2023 Regulatory Update.)

Although the listening session is scheduled to address both proceedings, FMCSA has allocated only one hour to take comments. The event is scheduled for 10 a.m. Eastern in Room B104 of the Kentucky Expo Center. For registration information, visit https://www.federalregister.gov/d/2023-04720. For the Federal Register notice extending the NPRM comment period, visit https://www.federalregister.gov/d/2023-04716. For the notice reopening the comment period on interim guidance on the definitions of broker and bona fide agents, visit https://www.federalregister.gov/d/2023-04717.

Earl Adams named FMCSA deputy administrator; Van Steenburg to retire as CSO

Earl Adams, Jr., was sworn in on February 27 as FMCSA deputy administrator, filling the position that had been held by Robin Hutcheson prior to her confirmation as FMCSA administrator in September. Adams previously had been FMCSA’s chief counsel since July 2021. Prior to joining FMCSA, Adams had worked with several law firms, most recently as a litigation partner with law firm Saul Ewing LP and managing partner of that firm’s Washington, DC, office. Other experience includes a decade on the board of the Metropolitan Washington Airports Authority and chief of staff to the lieutenant governor of Maryland.

In another personnel development, Jack Van Steenburg announced his retirement after 15 years with FMCSA, including about 12 years as assistant administrator and chief safety officer. Before joining FMCSA in 2008, Van Steenburg had served with the New York State Police for 25 years. The agency recently posted the position at https://www.usajobs.gov/job/709373700.

Employers to be notified of drivers’ clearinghouse status changes

Effective March 8, employers now will be notified by email if drivers have queried has new information – a new violation, removed violation, updated return-to-duty status, etc. – recorded in their clearinghouse records within 12 months of a pre-employment or annual query. Because the agency does not know what motor carrier employs a driver at any given moment, notifications apparently will go to any carrier that conducted either a pre-employment or an annual query on the driver within the past 12 months. Moreover, employers will still be required to obtain specific consent from the driver before obtaining details of the newly reported information.

Previously, if a driver tested positive for controlled substances in a pre-employment drug test while seeking a job at a different employer, the current employer would not be aware of the change in the clearinghouse record until it completed its mandatory annual query on that driver. FMCSA said that the change is allowed as a “routine use” of driver information under the Privacy Act and is addressed in a September 2022 Department of Transportation Federal Register notice (https://www.federalregister.gov/d/2022-19779).

FMCSA simultaneously issued further guidance aimed at mitigating the potential hassle and expense of conducting both follow-on queries in response to automatic notifications and annual queries of the same drivers. Under the revised guidance, if an employer receives a notification that a driver has a change in his or her clearinghouse record and completes a follow-on query, that query satisfies the annual query requirement, and the rolling 12 months will reset to the date of the follow-on query.

Links to the updated policies on regarding notification of changes to clearinghouse records and the annual requirement for employee queries are available on FMCSA’s Regulatory Guidance webpage at https://www.fmcsa.dot.gov/guidance.

FMCSA issues enforcement policy on actual knowledge of substance violations

Drivers whose citations for driving under the influence (DUI) of controlled substances or alcohol in a commercial motor vehicle (CMV) result in a non-conviction will be able to resume driving without completing a return-to-duty (RTD) process under guidance issued this month.

FMCSA on March 8 issued a national enforcement policy (NEP) regarding situations where a commercial driver’s violation is based on an employer’s “actual knowledge” of a traffic citation for DUI. If the citation later results in a non-conviction, FMCSA will not (1) prohibit the driver from driving based on his or her failure to complete the RTD treatment and testing process; (2) cite employers for using such drivers who have not completed the RTD process following non-conviction; or (3) enforce related reporting requirements for employers of such drivers.

The NEP states that “non-conviction” means that the charge of a DUI in a CMV is dismissed without the imposition of any fines, court costs or other punitive action or that there is an unvacated adjudicated finding of not guilty. However, the term does not include pleading guilty to a lesser charge, such as reckless driving.

Links to the NEP and FAQs concerning the policy are available on FMCSA’s Regulatory Guidance webpage at https://www.fmcsa.dot.gov/guidance.

Pitt Ohio seeks relief from CDL requirement of younger driver program

FMCSA is requesting comments by March 27 on an application from Pitt Ohio Express to exempt its drivers from one of the requirements in the agency’s Safe Driver Apprenticeship Pilot (SDAP) program. Specifically, Pitt Ohio believes it would have less trouble recruiting drivers for the program if it could use drivers under age 21 that have a commercial learner’s permit (CLP) to operate CMVs in interstate commerce. FMCSA currently requires that an apprentice already hold a CDL prior to enrolling in the program. If granted, Pitt Ohio estimates that 25 CLP holders would operate under the exemption per year. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-03783.

Autonomous vehicle firms seek relief concerning warning devices

FMCSA has requested comments by April 10 on an application from Waymo LLC and Aurora Operations, Inc., for an exemption from several requirements related to warning devices for stopped CMVs. The exemption would provide relief from the requirements that dictate placement of warning devices around stopped CMVs and that require warning devices to be steady-burning. The exemption also would allow use of a warning device for stopped vehicles not currently allowed by agency regulations. If approved, the exemption would allow CMVs operated by Level 4 automated driving systems (ADSs) to be equipped with warning beacons mounted on the truck cab in lieu of traditional warning devices placed around a stopped autonomous CMV.

FMCSA initially published a notice of the exemption application on March 3, but a March 9 notice clarified that the firms were seeking the relief on behalf of all motor carriers operating ADS-equipped CMVs and not just for Waymo or Aurora. That notice also extended the comment period to April 10. For the initial Federal Register notice, visit https://www.federalregister.gov/d/2023-04385. For the notice clarifying the scope and extending the comment period, visit https://www.federalregister.gov/d/2023-04841.

FMCSA denies carrier’s requested HOS relief for food product delivery

FMCSA has denied an exemption requested by Flat Top Transport LLC, a nine-truck carrier based in Holland, Michigan, for a four-month exemption from the hours-of-service regulations for “immediate and emergency delivery of dry and bulk food grade products to locations that supply stores and distribution centers nationally.” FMCSA said that supply chain issues alone are not a sufficient basis for exempting motor carriers transporting dry bulk food grade products from HOS regulations. The agency said that the carrier provided no basis on which it could conclude that granting an exemption from the HOS regulations would provide an equivalent level of safety. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-03564.

FMCSA rejects another driver request for an HOS exemption

FMCSA has rejected an application from truck driver Wayne Moore, Jr., for an exemption from four provisions in the HOS regulations: (1) the 10 consecutive hour off-duty time requirement; (2) the 14-hour “driving window”; (3) the 30-minute break requirement; and (4) the 70 hours-in 8-days limit. FMCSA said that an exemption would not achieve a level of safety equivalent to, or greater than, the level that would be achieved without the exemption and that approval “could open the door for a huge number of similar exemption requests.” For the Federal Register notice, visit https://www.federalregister.gov/d/2023-03688.

Driver seeks personal exemption from multiple HOS requirements

FMCSA is requesting comments by April 3 on an application from truck driver John Olier for exemptions from the 11-, 14-, and 70-hour rules withing the hours-of-service regulations along with all mandatory rest periods, including the 10-hour and 30-minute breaks. Olier contended in his application that “current forced work/rest periods force me to drive outside my body’s healthy Circadian Rhythm,” creating “unsafe conditions not only for me but for other drivers and the general public.” FMCSA has rejected several similar requests. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-04384.

Driver seeks exemption to allow 5/5 split of sleeper berth time

FMCSA is requesting comments by March 27 on an application by truck driver Matthew Killmer for an exemption that would allow him to split his sleeper berth time into two 5-hour periods. Killmer argued in his exemption application that the exemption would allow him to be more alert and rested and would facilitate finding a safe place to park his CMV. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-03780.

 

Legislation

Bill to repeal FET on trucks and trailers introduced in both Houses of Congress

Legislation to repeal the 12% federal excise tax (FET) on heavy trucks and trailers was introduced in both the House and Senate in March. Sens. Todd Young (R-Indiana) and Benjamin Cardin (D-Maryland) introduced S. 694 while Rep. Doug LaMalfa (R-California) and three co-sponsors introduced H.R. 1440.

The legislation, called the “Modern Clean and Safety Trucks Act of 2023,” is essentially the same as bills that have been introduced but not advanced during the past several Congresses. The findings section of the bill states that the FET disproportionately affects electric and alternative-fueled trucks that have a higher upfront cost. For more information on S. 694, visit https://www.congress.gov/bill/118th-congress/senate-bill/694. For more information on H.R. 1440, visit https://www.congress.gov/bill/118th-congress/house-bill/1440.

House bill addresses motor vehicle owners’ right to repair

Rep. Neal Dunn (R-Florida) and eight co-sponsors have introduced a bill (H.R. 906) that would bar motor vehicle manufacturers from withholding data, critical repair information, or diagnostic or repair tools from vehicle owners or their designated repair facilities. Also, except for recall and warranty repairs, manufacturers would be prohibited from requiring vehicle owners from using any particular brand of parts, tools, or equipment. Although the bill does not specifically address CMVs it would establish a Fair Competition After Vehicles Are Sold Advisory Committee that would include a representative of the trucking industry. For more on H.R. 906, visit https://www.congress.gov/bill/118th-congress/house-bill/906.

Bill would mandate video recording in federal CMV stops

Rep. Eleanor Holmes North (D-District of Columbia) has introduced legislation (H.R. 843) that would require federal law enforcement officers to use body and in-car video cameras in numerous contexts, including CMV stops. In the context of CMV stops, the bill only addresses requirements for patrol vehicles equipped with in-car video cameras. For more on H.R. 843, visit https://www.congress.gov/bill/118th-congress/house-bill/843.

 

Advocacy and Comment

Several of the hot topic issues covered this month and in prior months are proceeding through the notice and comment phase.

1. Comments were submitted on the Agency’s proposal to alter the broker’s bond requirement and to more readily assure continuing bond availability. Although generally supportive of these changes, our coalition pointed out that the broker’s bond is no panacea for fraud and does not address the need in both regulated and deregulated commodities for federal investigatory and policing power. Comments were filed at https://www.federalregister.gov/d/2022-28259.

Our stakeholders believe that the extent and cause of the problem is unpoliced fraud which is particularly injurious to the use of the spot market in the booking of shipments. Left out of the bond issue is the felt need across the industry to avoid piecemeal treatment of the issue and address fraudulent schemes regardless of the commodities handled, including embezzlement of freight charges, bait and switch of carriers, identity theft and hijack by unauthorized reconsignment. The Agency has extended the time for filing comments until April 6, 2023, and the matter will be taken up in an open forum at the Mid America Trucking Show at the Kentucky Expo Center on March 31, 2023 from 10 am to 11 am ET. See https://www.regulations.gov/document/FMCSA-2022-0134-0114. The issue has become both chronic and acute and begs for federal enforcement remedy not currently available.

2. SMS Reboot. The FMCSA has made no systemic changes to SMS methodology in the past 7 years. While some of the flaws of the CSA 2010 algorithms have been removed in the recent proposal, the Agency’s goal seems unclear with respect to the Agency’s ultimate responsibility of assigning actual safety fitness determinations to the over 700,000 carriers it permits to operate.

In its first of three question and answer sessions, the Agency acknowledged that the FAST Act precluded it from presenting an ultimate safety fitness system without rulemaking and noted the new reboot calculations would be unpublished by the Agency but presumably readily calculable and available to plaintiff’s bars and insurers. In this regard the new proposal would not remedy the “fit to operate but not certified as fit to use” conundrum nor would it remedy a major cause of nuclear judgments and up-supply chain liability to plaintiffs’ bar’s delight. If the Agency’s unsupported conclusion that safety fitness data is only usable if less than a year old were adopted, unless shown to be more effective, only 1 out of every 140 carriers would actually be assigned a safety rating each year.

In the next two listening sessions, the Agency should address how the reboot affects the industry’s ability to rely on the “fit to operate is fit to use” standard and what, if any, effect the reboot would have on the Agency’s ultimate task of assigning safety ratings.

Taken together, the pending guidance issues noted above offer no remedy to the industry’s need for Agency vetting of carriers and brokers. The dispatch service and the bonding changes as proposed do not address the need for better monitoring and enforcement of federal anti-fraud statutes, particularly with respect to exempt as well as regulated shipments. The SMS reboot does not address how the changing criteria would affect the tens of thousands of new carriers applying for authority each year and how the proposed reboot would affect the shipping public’s intended use or consideration of the modified data in their carrier selection process.