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Regulatory and Legislative Update - January 2023

By Dan Boaz

Contents

Regulation and Enforcement

Legislation

Advocacy and Comment

 

Regulation and Enforcement

FMCSA proposes changes in broker and forwarder requirements

FMCSA has issued a notice of proposed rulemaking (NPRM) related to establish financial responsibility requirements for brokers and freight forwarders as required by the 2012 law known as Moving Ahead for Progress in the 21st Century Act (MAP-21). The NPRM proposes regulations in five areas. The following is a summary of those provisions.

Assets readily available – The NPRM proposes allowing brokers or freight forwarders to meet the MAP-21 requirement to have “assets readily available” by maintaining trusts that meet certain criteria, including that the assets can be liquidated within seven calendar days of the event that triggers a payment from the trust, and that do not contain certain specified assets.

Immediate suspension of broker/freight forwarder operating authority – The NPRM proposes that “available financial security” falls below $75,000 when there is a drawdown on the broker or freight forwarder’s surety bond or trust fund. This would occur when a broker or freight forwarder consents to a drawdown or does not respond to a valid notice of claim from the surety or trust provider, causing the provider to pay the claim. It also would happen if the claim against the broker or freight forwarder is converted to a judgment and the surety or trust provider pays the claim. FMCSA also proposes that if a broker or freight forwarder does not replenish funds within seven business days after notice by FMCSA, the agency will issue a notification of suspension of operating authority.

Surety or trust responsibilities in cases of broker/freight forwarder financial failure or insolvency – FMCSA proposes to define “financial failure or insolvency” as bankruptcy filing or state insolvency filing. The NPRM also would require the surety/trustee to notify FMCSA and initiate cancelation of financial responsibility if it is notified of any insolvency of the broker or freight forwarder. The agency also proposes to publish immediately a notice of failure in the FMCSA Register immediately.

Enforcement authority – FMCSA proposes that to implement MAP-21's requirement for suspension of a surety provider’s authority, the agency would first provide notice of the suspension to the surety/trust fund provider, followed by 30 calendar days for the surety or trust fund provider to respond before a final agency decision is issued. The agency also proposes to add penalties in 49 CFR part 386, appendix B, for violations of the new requirements.

Entities eligible to provide trust funds for BMC-85 filings – FMCSA proposes to remove the rule allowing loan and finance companies to serve as BMC-85 trustees.

The MAP-21 mandates for regulations on broker and forwarder responsibility have been incomplete for over a decade. FMCSA in 2013 implemented one element of the MAP-21 requirements by increasing the financial security amount for brokers to $75,000 and extending that minimum to freight forwarders, which previously had not been subject to financial security requirements. The agency issued an advance NPRM regarding further implementation of the MAP-21 requirements in September 2018 after having held an informal roundtable of stakeholders in May 2016.

Comments on the NPRM are due March 6. To view the January 5 Federal Register notice, visit https://www.federalregister.gov/d/2022-28259.

Exemption rejected for including hair testing results into drug clearinghouse

FMCSA has denied an exemption requested by The Trucking Alliance – a group representing 11 mostly large trucking companies – to amend the definition of actual knowledge of drug use to include the employer’s knowledge of a driver’s positive hair test. Because the Department of Health and Human Services (HHS) has yet to clear hair testing as an alternative to urine testing, hair test results cannot be reported to the drug and alcohol clearinghouse.

The agency had already indicated in its notice seeking comment that it lacked statutory authority to grant the exemption but that it also was required by statute to publish the exemption application. In denying the application, FMCSA confirmed that the agency lacked the authority to grant it as statutory law states that hair testing is not authorized as an alternative to urine testing until HHS establishes federal standards. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-27849.

FMCSA implements 10-year refresher training and certification for medical examiners

FMCSA announced implementation of the regulatory requirement that all medical examiners certified and listed on the agency's National Registry of Certified Medical Examiners maintain their certification by completing refresher training 4 to 5 and 9 to 10 years after certification and passing a recertification test 10 years after certification. The 5-year refresher training had already been implemented and FMCSA is now proceeding with the 10-year training and testing mandate. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-00385.

DOT modal agencies adjust civil penalties for inflation

As required by law, the Department of Transportation (DOT) has issued a rule implementing an annual inflation adjustment for civil penalties levied by DOT modal agencies, including FMCSA. Due to soaring inflation in 2022, the adjustment is much larger than typical at about 7.7%. For more information, including a civil penalty schedule, visit the Federal Register notice at https://www.federalregister.gov/d/2022-28580.

FMCSA to begin work on vehicle crash causation study

In a preliminary step toward conducting a Congressionally mandated study of commercial vehicle crash causation, FMCSA announced plans to collect certain information from states and local jurisdictions. The study was required by the 2021 Infrastructure and Investment Jobs Act. The agency said that in order to plan and execute the study, it needed to collect information on state and local jurisdictions’ interest and ability to participate in the study. It also plans to obtain information on the jurisdictions’ existing crash data collection processes, systems, and resources and their commercial motor vehicle enforcement funding mechanisms and sources. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-28045.

Stevens Transport receives CDL-related exemption

FMCSA has granted an exemption to Stevens Transport, Inc. to allow a commercial learner’s permit (CLP) holder who has passed the skills test but not yet received the CDL document to drive a Stevens commercial motor vehicle accompanied by a CDL holder who is not necessarily in the passenger seat. Exempted drivers must provide documentation of passing the skills test. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-28235.

FMCSA grants two driver training exemptions, denies three

In separate actions published in January and December, FMCSA has granted exemptions from portions of the entry-level driver training regulations in two situations but denied three other applications for exemptions. The exemptions that were granted were to the State of Alaska (https://www.federalregister.gov/d/2022-28242) and Railsback HazMat Safety Professionals, LLC (https://www.federalregister.gov/d/2023-00444). The exemptions rejected had been requested by the National Ground Water Association (https://www.federalregister.gov/d/2023-00445); Western Area Career and Technology Center (https://www.federalregister.gov/d/2022-27848); SBL Truck Driving Academy, Inc. (https://www.federalregister.gov/d/2022-27775).

 

Legislation

Congress passes fiscal 2023 appropriations law

Shortly before the end of the 117th Congress in December, Congress passed the consolidated appropriations act (H.R. 2617), which funds the federal government through September 30, 2023. President Biden signed the bill into law on December 29. As it applies to FMCSA, the law makes no changes in law that were not already included in prior appropriations acts. The law continues the exemption from electronic logging devices held by livestock haulers and the requirement for annual underride guard inspections as recommended by the Government Accountability Office. The law also requires FMCSA to use certified or registered mail to notify new entrants placed out of service under expedited action. For more information on the legislation, which is now Public Law 117-328, visit https://www.congress.gov/bill/117th-congress/house-bill/2617.

On Tuesday, January 17, a group of 13 Stakeholders filed a response in the FMCSA’s “Notification of Interim Guidance: Definitions of Broker and Bona Fide Agents” at https://www.federalregister.gov/d/2022-24923.

While endorsing the Agency’s decision to make no new ruling on dispatch services, Stakeholders pointed out that the Agency’s piecemeal addressing of broker malfeasance does not address the major issue – the lack of any policing, investigation, and prosecution of double brokerage scams and frauds which is victimizing the industry. Stakeholders pointed out that FMCSA has acknowledged it lacks the resources or the mandate to address this major problem.

Stakeholders pointed out that at the DOT level, the Office of Inspector General has the mandate and personnel to establish a task force and has, in fact, recently investigated and prosecuted a major systemic fraud and won a conviction against its principal which involves substantial jail time, restitution and a fine. Stakeholders expressed their willingness to work with the Department and the Agency to implement this proposal and to seek additional earmark funding from Congress as needed.

Otherwise, this holiday month has been relatively quiet as the above summary of events shows. The new year will obviously result in treating unresolved issues including: (1) The Agency’s effort to reboot SMS and the use of data to issue safety ratings; (2) Efforts to promote increased on-truck technology to reduce crashes and insurance premiums; (3) New litigation aimed at overturning AB5 based upon the dormant Commerce Clause – an argument not previously made in the California trucking case; (4) Increased activity before the U.S. Department of Labor and state agencies concerning the future viability of the owner operator model; (5) New efforts to increase minimum BIPD insurance requirements and the potential adverse effects on the cost to small carriers; and (6) Legacy supply chain issues and in particular, the cost of uncompensated detention.

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Regulatory and Legislative Update - December 2022

By Dan Boaz

Contents

Regulation and Enforcement

Legislation

Advocacy and Comment

 

Regulation and Enforcement

FMCSA issues interim guidance on definitions of broker and bona fide agents

In response to a mandate in last year’s infrastructure law, FMCSA has issued interim guidance regarding the agency’s definitions of “broker” and “bona fide agents” in the context of transportation by motor vehicle. Although the interim guidance was effective immediately, FMCSA requested comments on it by January 17 and said it might issue updated guidance if comments demonstrate a need. The agency in June had requested comments on various issues related to the topic.

Regarding brokers, FMCSA said that the prevailing view among commenters is that the current definition of “broker” is adequate, it clarified that definition in one area: The relevance of an entity's handling of funds in a transaction between shippers and motor carrier. FMCSA said that handling money exchanged between shippers and motor carriers is a factor that strongly suggests the need for broker authority, but it is not an absolute requirement for a person or entity to be considered a broker.

Regarding bona fide agents, FMCSA said an area of debate was whether representing more than one motor carrier required broker authority. FMCSA said that representing more than one motor carrier does not necessarily mean one is a broker rather than a bona fide agent. Determinations will be highly fact specific and will involve determining whether the person or company is engaged in the allocation of traffic between motor carriers, FMCSA said.

The more complicated area in the guidance was the role of “dispatch services,” when they are brokers or bona fide agents, and even how they are defined. FMCSA said that while there is no commonly accepted definition of a dispatch service, such services appear to have certain common features: (1) they work exclusively for motor carriers, not for shippers; (2) they source loads for motor carriers; and (3) they perform additional services for motor carriers that are unrelated to sourcing shipments.

FMCSA’s interim guidance states that when a dispatch service does not participate in the arrangement of freight, or when it represents only one motor carrier, it is not a broker. If a dispatch service arranges transportation on behalf of multiple motor carriers and engages in the allocation of traffic, however, then it is not a bona fide agent and must obtain broker operating authority registration. The agency noted, however, that this analysis is often highly fact specific and must be made on a case-by-case basis.

The analysis of whether a dispatch service is a bona fide agent is based on whether the service falls within the definition in 49 CFR 371.2(b), FMCSA said. However, if the dispatch service allocates traffic between two motor carriers, by definition it cannot be a bona fide agent, it added. The interim guidance further lists the situations in which a dispatch service would or would not require broker authority.

For the interim guidance in the Federal Register, visit https://www.federalregister.gov/d/2022-24923. To view comments in response to FMCSA’s June request for information along with other documents, visit https://www.regulations.gov/docket/FMCSA-2022-0134.

FMCSA plans to narrow scope of emergency declaration relief

FMCSA is requesting comments by February 6 on a notice of proposed rulemaking (NPRM) to narrow the scope of regulations from which relief is provided automatically for motor carriers providing direct assistance when an emergency has been declared. The agency also proposed revisions to the process for extending an automatic emergency exemption where circumstances warrant.

Federal regulations (Part 390.23) automatically create a 30-day exemption from 49 CFR parts 390 through 399 when a president, governor, or FMCSA issue a declaration of an emergency and a motor carrier or driver provides direct assistance to state and local emergency relief efforts. In the Federal Register notice, FMCSA said it believed that most emergencies justify relief from the normal hours-of-service (HOS) limits but that other safety regulations “often have no direct bearing on the motor carrier's ability to provide assistance to the emergency relief efforts.”

Under the NPRM, a presidential declaration of an emergency would continue to trigger a 30-day exemption from all Federal Motor Carrier Safety Regulations (FMCSRs) in parts 390 through 399, but the duration and scope of existing automatic relief would be limited in the case of regional declarations by FMCSA or governors. The automatic relief would apply for only five days and would exempt commercial motor vehicle drivers only from the HOS regulations in Parts 395.3 and 395.5. FMCSA said five days was appropriate in most actual emergencies. “Any emergency relief efforts extending beyond that time are typically geared to rebuilding and not to the emergency response scenarios envisioned when this rule was first issued.”

FMCSA also proposes to modify the definition of an emergency in the regulations to clarify that automatic relief does not apply to economic conditions that are caused by market forces, including shortages of raw materials or supplies, labor strikes, driver shortages, inflation, or fluctuations in freight shipment or brokerage rates, “unless such conditions or events cause an immediate threat to human life and result in a declaration of an emergency.” One exception would be states of emergency declared by governors due to a shortage of residential heating fuel. That relief is statutory under the Reliable Home Heating Act.

For the Federal Register notice, visit https://www.federalregister.gov/d/2022-26506.

'Interpretive rule' clarifies applicability of regulations to passenger carriers

FMCSA issued an “interpretive rule” that adds appendices to the FMCSRs to explain existing statutes and regulations FMCSA administers related to the applicability to passenger carriers of the regulations related to safety, financial responsibility, and registration. Under certain conditions, motor carriers performing intrastate movements of passengers may still be operating in interstate commerce and – unless otherwise exempt – are subject to applicable FMCSA statutory and regulatory requirements, FMCSA noted.

Although the rule was effective November 15, FMCSA is requesting comments by January 15. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-24089. To comment or view comments, visit https://www.regulations.gov/docket/FMCSA-2021-0188. (Note: The original Federal Register notice contained an error regarding the docket number. The correct docket number is FMCSA-2021-0188.)

Withdrawal of passenger inspection rulemaking confirmed by FMCSA

FMCSA has confirmed its May 2017, decision to withdraw an April 2016 advance notice of proposed rulemaking (ANPRM) concerning the establishment of requirements for states to implement annual inspection programs for commercial motor vehicles (CMVs) designed or used to transport passengers. Last year’s infrastructure law had directed the agency to solicit further comment on the ANPRM. After doing so in June, FMCSA said that it had determined that there is not enough data and information available to support moving forward with a rulemaking action. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-24708.

Livestock stakeholders are denied broad HOS exemption

Nearly four years after publishing the application for comment, FMCSA has rejected an HOS exemption requested by several associations with members involved in the production and distribution of livestock and insects. The requested exemption would have allowed drivers to drive through the 16th consecutive hour after coming on duty and to drive for a total of 15 hours during that 16-hour period. Although the groups did not receive the exemption, they have received some of the requested relief through federal legislation.

FMCSA noted that livestock haulers are entirely exempt from all HOS regulations under the agricultural commodities exemption, which covers a 150 air-mile radius from the source of the commodity. Moreover, last year’s infrastructure law – enacted several years after the groups filed their application – exempted drivers transporting livestock from HOS regulations within a 150 air-mile radius from the final destination of the livestock. The agency also noted that livestock haulers are exempt from the requirement to use electronic logging devices. The exemption would allow drivers six or more hours driving time within the 150 air-mile exempt zones in addition to 15 hours of driving time outside the zone, FMCSA noted. “The Agency finds that allowing 21 or more hours of driving during a work shift would not likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent the exemption.” For the Federal Register notice, visit https://www.federalregister.gov/d/2022-25999.

FMCSA rejects owner-operator’s exemption from various HOS provisions

FMCSA has denied an application from a leased owner-operator for an exemption from five provisions of the federal hours-of-service (HOS) regulations. The application was submitted by Leland Schmitt, Jr., who was leased to Clearwater, Minnesota-based D&E Transport and had 30 years’ experience. Schmitt had requested a five-year exemption from (1) the 10 consecutive hour off-duty time requirement; (2) the 14-hour “driving window”; (3) the 30-minute break requirement; (4) the 60 hours-in-7-days limit; and (5) the 70 hours-in 8-days limit. Schmitt had told FMCSA that the mandatory 10-hour off-duty break goes against his natural sleep patterns and that his normal nighttime sleep while in the CMV is between five to seven hours.

The agency said Schmitt had failed to establish that he would maintain a level of safety equivalent to, or greater than, the level achieved without the exemption. “The Agency concurs with commenters that if it exempts one individual from the HOS regulations, it could open the door for a huge number of similar exemption requests,” FMCSA said. “Such a result would be inconsistent with a primary goal of the HOS regulations.” For the Federal Register notice, visit https://www.federalregister.gov/d/2022-24383.

Driver seeks broad exemption from HOS regulations

Several days before FMCSA denied a similar request from owner-operator Leland Schmitt, Jr., the agency requested comments by January 3 on an application from Wayne Moore, Jr. of Shelbyville, Indiana, 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 summarized the request as wanting the ability to split off-duty time into periods that are more conducive to proper rest and sleep without having to comply with the HOS regulations. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-26127.

New Hampshire Inmate seeks exemption from two driver training provisions

FMCSA requested comments by January 3 on Robert Towle’s application for an exemption from two requirements in the entry-level driver training regulations related to use of instructors who meet the definition of theory instructors and to the requirement for use of a provider listed on the Training Provider Registry. Towle, an inmate of the New Hampshire State Prison, wants to use a CDL training class provided by a special school district operated by the New Hampshire Department of Corrections. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-26129.

Rosco Vision receives exemption for camera system to replace mirrors

FMCSA has granted a limited five-year exemption to grant a limited 5-year exemption to Rosco Vision, Inc. (Rosco) to allow motor carriers to operate CMVs with the company’s CV Digital Camera Monitor System installed as an alternative to the two rear-vision mirrors required by the FMCSRs. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-25983.

 

Legislation

Senate bill would fund truck parking expansion

Sens. Cynthia Lummis (R-Wyoming) and Mark Kelly (D-Arizona) introduced a bill (S. 5169) that would authorize $755 million over five years to build additional commercial truck parking facilities. The bill not only would cover construction of commercial truck parking spaces at rest areas and weigh stations along highways but also would cover expansion of parking adjacent to truck stops and travel plazas, at publicly owned freight facilities such as port terminals. S. 5169 is a companion bill to H.R. 2187, which was approved in July by the House Transportation & Infrastructure Committee. For more on the Senate bill, visit https://www.congress.gov/bill/117th-congress/senate-bill/5169.

 

Advocacy and Comment

Three end of the year issues forecast an interesting new year on the regulatory scene.

(1) Dispatch Services Interim Rules. The FMCSA, in initiating these interim rules, failed to address the significant issue of fraudulent double brokerage and identity theft which affects carriers, shippers and brokers and which ultimately allows the perpetrators of the fraud to steal millions and go unpunished.

In this interim rule, the Agency tries to reinterpret the broker regulations to create a carve-out for third parties which arrange for transportation but do not handle the funds or act as third party sales agents working for a single carrier only. This finding would exacerbate the problem, setting no reliable registry for determining the third parties’ bona fides or bringing the “dispatch service” within the MAP-21 and Section 14704 self-help provisions for enforcement purposes.

If third parties can claim to be a dispatch service operating for a sole carrier to book freight, simply bypassing its alleged principal in a bait and switch scheme, this ruling makes it simpler for identity theft to occur. Clearly, the Agency has no budget or appetite for enforcing rules of commerce, yet verification of licensed intermediaries and bonding information via its website is essential in the spot market.

Actually, the OIG, a division of U.S. DOT, has jurisdiction to police and prosecute fraud in interstate commerce. The time has come to seek funding for enforcement of the rules by the OIG using the full breadth of MAP-21 which extends liability for broker abuse automatically to any party who aids and abets a fraud.

(2) NLRB Joint Employer Rule. As presented, the rule could have far reaching effects across industries, particularly undercutting the use of contracted labor. With respect to trucking it can be viewed as an attempt to facilitate the unionization of truck drivers and owner operators serving customers, particularly in closed shop states. Our coalition of stakeholders filed comments in support of SBA’s opposition and explained that trucking has unique attributes which have not been examined. See https://www.regulations.gov/comment/NLRB-2022-0001-11601

(3) DOL Employee Misclassification NPRM. Finally, The Department of Labor’s Wage and Hour Board has re- tabled its employee misclassification initiative as proposed guidance for the courts in evaluating misclassification. The standard it proposes acknowledges that the decision is ultimately up to the courts where there is an existing “economic realities” test that the owner operator independent contractor meets.

Yet once again, the DOL fails to recognize the need for a carve-out for the owner operator model based on the unique economic realities of trucking and of Federal Laws which provide a blueprint for owner operator compliance under the truth in leasing regulations. Other than to suggest that independent contractors across industries need and deserve employee wage and hour treatment, DOL offered no analysis of the effect of possible reclassification of owner operators. Its unweighted multi-factor guidance offered less clarity.

While acknowledging that adoption of the AB5 structure was beyond its authority and the courts ultimately had the last word based on precedent, no analysis on the reclassification’s possible effect or cost of the proposal on small businesses or the trucking industry in particular were presented.

In filings made on the December 13th, 11 stakeholders pointed out that the owner operator / independent contractor model is a unique creation of federal transportation law designed (1) to provide contract protection against abuse and (2) to encourage blue collar entrepreneurship with flexible wage and hour compensation designed to facilitate productivity and use of the federal hours of service rule to trump overtime. See https://www.regulations.gov/document/WHD-2022-0003-0001/comment

The Stakeholders’ position which is shared by others as well, is that the owner operator / independent contractor model and the federal transportation statutes and regulations which support it cannot be ignored and deserve a carve-out from any new guidance or rule. Our point with the DOL, which it has yet to address is that a “one size fits all” approach applicable to shift workers does not fit the economic realities of the owner operator model.

In a Release dated December 14, a number of Republicans have urged DOL to not move forward with any proposed rule due to its negative impact on workers and businesses across industries, its lack of clarity and the devastating consequences on the U.S. economy.

DOL’s proposal is an attack on the independent contractor model and affects more than just trucking. This is clearly a ripe issue for Congress and political action.

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Regulatory and Legislative Update - November 2022

By Dan Boaz

Contents

Regulation and Enforcement

Legislation

Advocacy and Comment

 

Regulation and Enforcement

DOL proposes to reverse Trump-era rule on worker classification under FLSA

The U.S. Department of Labor’s Wage and Hour Division last month proposed a rule to revise WHD’s analysis of determining worker classification under the Fair Labor Standards Act (FLSA). The notice of proposed rulemaking (NPRM) does not directly address trucking-specific issues, but it noted that a “high incidence of misclassification of employees as independent contractors has been documented in agriculture, construction, trucking, housecleaning, in-home care, stagecraft, and ‘sharing economy’ companies.”

The NPRM’s principal objective is to undo the final rule issued by WHD in January 2021 during the waning days of the Trump administration. That rule’s goal generally was to make it easier for employers to classify workers as independent contractors than had been the case under prior guidance and court precedent. WHD’s stated goal is to return to prior interpretations of the so-called economic reality test, which includes the following six factors:

  • The opportunity for profit or loss depending on managerial skill;
  • The investments by the worker and the employer;
  • The degree of permanence of the work relationship;
  • The nature and degree of employer control;
  • The extent to which the work performed is an integral part of the employer’s business; and
  • The worker’s use of skill and initiative.

One example of how the Trump and Biden administrations differ on classification relates to the question of whether the work is integral to the business. The Trump rule interpreted that to mean that the worker himself or herself was integrated into the day-to-day business process. Even under the Trump rule, some owner-operators in trucking might fail that factor. However, the Biden proposed rule looks at the question more broadly – i.e., whether the work performed is critical, necessary, or central to the employer’s business. This approach is closer to that in the ABC test codified in California’s AB 5 law. However, AB 5 essentially disqualifies independent contractor classification if the work is central to the employer’s business while in the economic reality test it is but one of multiple considerations.

Another issue relevant to trucking relates to the control issue. The January 2021 rule had stated that employer mandates that workers comply with safety and health standards were not to be considered an indicator of control. Moreover, on the final day of the Trump administration, WHD issued an opinion letter concluding that a motor carrier’s mandate that owner-operators use certain safety management technology or practices did not indicate control under FLSA.

The new Biden administration promptly rescinded that opinion letter, saying that it was premature since the January 2021 rule had not taken effect. The new NPRM states that safety and health standards are relevant to the analysis of control. However, it also notes that such standards would be only one consideration for the control issue and that control itself is just one of multiple factors and would not necessarily thwart or ensure an independent contractor relationship.

The NPRM had been expected for months and followed public forums in June on the issue. The Biden administration had tried to withdraw the Trump-era rule early in 2021, but a federal court earlier this year ruled that its process for doing so was invalid, thus requiring WHD to conduct formal rulemaking to reverse the Trump-era rule.

Comments on NPRM are due December 13 following an extension of the original November 28 deadline. For the NPRM, visit https://www.federalregister.gov/d/2022-21454. To comment on the proposal or review comments filed by others, visit https://www.regulations.gov/docket/WHD-2022-0003.

FMCSA’s COVID-19 emergency declaration ends

Without any formal announcement, the Federal Motor Carrier Safety Administration’s emergency declaration that had been in place since mid-March 2020 granting enforcement relief in transportation related to COVID- 19 relief ended October 15 when the latest extension expired. In September, the agency had requested comment by later that month concerning the extent to which motor carriers currently rely on the declaration to deliver certain commodities and whether there has been any impact on safety. FMCSA received 379 comments. To view comments, visit https://www.regulations.gov/docket/FMCSA-2022-0189.

FMCSA rejects SBTC exemption related to the language skills requirement

FMCSA denied an exemption requested by the Small Business in Transportation Coalition (SBTC) for an exemption that would allow carriers to use drivers who are not capable of reading and speaking the English language sufficiently to communicate with the public, understand highway traffic signs in English, to respond to official inquiries, etc. FMCSA concluded that SBTC has presented insufficient evidence to establish that not complying with the driver qualification regulations relating to the English language proficiency requirements for CMV drivers would meet or exceed the level of safety provided by complying with the regulations. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-23891.

School bus group receives CDL testing exemption regarding engine compartments

FMCSA has granted an application from the National School Transportation Association (NSTA) for an exemption from the “under-the-hood” testing requirement for commercial driver’s license (CDL) applicants seeking a school bus endorsement. Drivers issued a CDL under the exemption are restricted to intrastate operation of school buses only. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-23346.

FMCSA renews UPS exemption from certain ELD requirements

FMCSA has renewed for five years an exemption requested by United Parcel Service, Inc. (UPS) from various provisions of the mandate to use electronic logging devices (ELD). The exemption allows (1) all motor carriers and drivers that use portable, driver-based ELDs to record engine data only when the driver is in a CMV and the engine is powered, and (2) all motor carriers to configure an ELD with a yard-move mode that does not require a driver to re-input yard-move status every time the tractor is powered off. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-23312.

FMCSA renews ELD exemption for motion picture-related drivers

FMCSA has renewed for five years the exemption requested by the Motion Picture Association that exempts from the electronic logging device (ELD) requirements all commercial motor vehicle (CMV) drivers providing transportation to or from a theatrical or television motion picture production site. Drivers instead are allowed to complete paper records of duty status (RODS). For the Federal Register notice, visit https://www.federalregister.gov/d/2022-23889.

 

Legislation

House bill would repeal entry-level driver training rule

Citing a shortage of truck drivers, Rep. Bob Good (R-Virginia) and five co-sponsors introduced legislation (H.R. 9153) to repeal the entry-level driver training (ELDT) rule that was finalized in 2016 and took effect earlier this year. A recently introduced Senate bill (S. 4861) does not go as far as a full repeal, but it waives the ELDT requirements for employees of small businesses as defined in the bill. For more information on H.R. 9153, visit https://www.congress.gov/bill/117th-congress/house-bill/9153.

Bill would allow workers to choose independent status with certain protections

A bill (H.R. 8442) introduced in July by Rep. Henry Cuellar (D-Texas) and two Republican co-sponsors would authorize use of a “worker flexibility agreement,” which would be a hybrid arrangement combining features of independent contractor and employee status. Workers and entities retaining them could declare the worker an independent contractor status for tax, wage, and overtime purposes while retaining worker rights typically offered to employees, such those related to privacy and nondiscrimination, workplace safety, and Family and Medical Leave Act protections. Under such an agreement, a worker would be free to reject offers of work from the entity and could perform the same services for competing businesses unless otherwise agreed to in a bargained-for non-solicitation sales agreement. For more information, visit https://www.congress.gov/bill/117th-congress/house-bill/8442.

 

Advocacy and Comment

We delayed sending this month’s update awaiting the outcome of the midterm elections and a Small Business Administration Roundtable with the Department of Labor to discuss its proposed new independent contractor rule mentioned above. Neither event provided any clarity. The results of the midterm elections are not likely to either exacerbate or improve the pending issues affecting trucking.

Our efforts at the SBA Roundtable were aimed at highlighting the distinct importance of the owner operator / independent contractor model to the trucking industry, the need for special treatment and a carve-out from any rule of general applicability DOL proposes. We highlighted the importance of the independent contractor model as a small business opportunity, pointing out that under a one-size-fits-all “control test” the safety obligations of hiring carriers are baked into Federal Regulations and do not count against finding independent contractor status.

We emphasized the importance of the independent contractor model as the backbone of long haul trucking, the dray industry and other niches and emphasized that under rulemaking requirements, the Department of Labor is required to consider the economic effects of any new rule on small businesses and, under the National Transportation Policy, on the shipper and broker community as well.

These issues are not adequately addressed in the Agency’s rulemaking for which comments are now due on December 13. Over 19,000 comments have already been filed, most of which are anecdotal complaints by disgruntled workers in other industries. It is important that we set the record straight and file a coordinated presentation which makes the case for recognition of the owner operator / independent contractor model as a unique essential small business and transportation issue which cannot be ignored.

Owner operators, affected motor carriers both large and small, and shippers and brokers which foresee supply chain interruption if the independent contractor model is lost should contact the sponsors of this newsletter for further information.

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