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.

Contents

Regulation and Enforcement

• FMCSA proposes to revamp SMS, rejects IRT as ‘overly complex’
• FMC judge rules in favor of motor carriers on intermodal chassis choice
• Further input sought on regulating autonomous trucking operations
• Three ELDs are removed from FMCSA’s list of registered devices
• CVSA International Roadcheck scheduled for May 16-18
• FMCSA rejects driver’s requested exemption from HOS, ELD requirements
• Multiple carriers seek exemptions to use pulse lighting systems

Legislation

• Bill reintroduced to establish a carrier selection standard
• House bill could allow heavier trucks in many situations
• Bill would allow younger drivers for intrastate port drayage

Advocacy and Comment

 

Regulation and Enforcement

FMCSA proposes to revamp SMS, rejects IRT as ‘overly complex’

FMCSA has proposed substantial changes to the Safety Measurement System (SMS), but the agency decided against incorporating a sophisticated statistical model based on item response theory (IRT) as recommended by the National Academy of Sciences in 2017. Although FMCSA developed an IRT model, it found it to be “overly complex” and less transparent than SMS without improving safety.

Proposed changes

FMCSA is proposing major changes in how SMS is organized and operates. Key changes include:

• Reorganizing the Behavior Analysis and Safety Improvement Categories (BASICs) by eliminating a stand-alone Controlled Substance/Alcohol BASIC, creating a separate Vehicle Maintenance BASIC for violations that drivers might observe during a pre- or post-trip inspection or while operating the vehicle, and segmenting Driver Fitness and HM Compliance into combination and straight vehicles;
• Consolidating violations into a much smaller number of groups in each BASIC to mitigate disparities resulting today from inspectors citing different violation codes for essentially the same violations;
• Greatly simplifying violation severity weights to eliminate the inherent subjectivity of the current 1 to 10 scale, adopting instead a severity of either 1 or 2 for each consolidated violation group;
• Adopting “proportionate percentiles” to eliminate sudden jumps in percentiles that can occur now when a carrier moves into a different safety event group;
• Raising the intervention thresholds for the Driver Fitness and HM Compliance BASICs, which have the lowest correlation with crash risk, according to FMCSA;
• Assigning percentiles to a carrier in a BASIC (HOS Compliance, Vehicle Maintenance, and Driver Fitness) only if it had at least one relevant violation in the past 12 months rather than 24 months currently;
• Extending the utilization factor in the Unsafe Driving and Crash Indicator BASICs to 250,000 vehicle miles traveled (VMT) per power unit (PU) per year, up from 200,000 currently.

Considered but rejected

FMCSA’s Federal Register notice acknowledges several potential changes that the agency considered but ultimately chose not to propose. For example, the agency considered removing severity weighting of crashes but found doing so had a minimal impact on the group of carriers identified for intervention. FMCSA also considered raising the minimum number of crashes required to assign a percentile in the Crash Indicators BASIC from two to three, but the agency’s analysis showed that carriers with exactly two crashes have a future crash rate that is more than twice the national average future crash rate.

One frequent complaint about SMS is that differences among states in inspection and violation rates are unfair to carriers operating in states with higher-than-average enforcement rates. FMCSA said it that during the IRT model design, it explored a statistical model to account for enforcement variation among states. Ultimately, FMCSA concluded that incorporating such a model would neither improve its ability to identify high risk carriers nor square with the goals of the Motor Carrier Safety Assistance Program (MCSAP).

“States face varying challenges to reducing crashes due to different road types, congestion, topography, and weather conditions, among other factors,” FMCSA said. “Applying a model that de-emphasizes enforcement in certain States would disincentivize FMCSA’s MCSAP partners from undertaking enforcement initiatives that are intended to address particular safety issues in their States.”

IRT model

The largest change FMCSA considered but rejected clearly is IRT. NAS had recommended that the agency develop and IRT model and replace SMS with it if it was demonstrated to perform well in identifying carriers for alerts. The agency’s work developing IRT model revealed “many limitations and practical challenges.”

One drawback with IRT is that it “is heavily biased towards identifying smaller carriers that have few inspections with violations and limited on-road exposure to crash risk,” FMCSA said. The safety event groups and data sufficiency standards used in SMS produced similar results. Also, IRT does not use VMT or PUs to adjust for differences in on-road exposure in the Unsafety Driving BASIC, so it identified carriers with much lower crash rates in that BASIC compared to SMS, the agency said.

Other problems with IRT were less about the model’s statistical efficacy. “IRT modeling is not readily understandable by most stakeholders or the public,” FMCSA said. Results are difficult for the public to interpret and for motor carriers to compute for their own operations, the agency concluded. “A carrier would not be able to identify how specific violations or areas of regulatory noncompliance impacted its prioritization status or how it could improve its status.” Another issue with IRT is its inflexibility as the IRT model takes four weeks to run as compared to two days for SMS.

Comments on the proposal, which is not a formal rulemaking proceeding, 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. FMCSA also said it would hold a series of question-and-answer sessions for the industry and public to be announced later.

FMC judge rules in favor of motor carriers on intermodal chassis choice

A Federal Maritime Commission judge ruled that chassis agreements requiring motor carriers to use specific chassis providers violate the Shipping Act of 1984 in situations when an entity other than the ocean carrier is paying for use of the equipment. The initial decision of Chief Administrative Law Judge Erin Wirth might not be the last word on the matter, however, as an appeal to the FMC itself would appear likely.

The judge’s order responded to a complaint filed in August 2020 by the Intermodal Motor Carriers Conference of the American Trucking Associations against the Ocean Carrier Equipment Management Association (OCEMA), Consolidated Chassis Management LLC, and 11 ocean common carriers. IMCC argued that requiring motor carriers to use OCEMA-member default chassis providers for merchant haulage movements was an unreasonable practice in violation of the Shipping Act.

The ruling represents a notable victory for motor carriers, but they did not get quite everything they requested. IMCC had also asked that the judge invalidate the concept of a default chassis agreement whereby motor carriers would be assigned to a presumptive chassis provider in the absence of a preference otherwise. “The assignment of a default provider where a motor carrier does not have another preference may serve the interests of the shipping public by ensuring that a system is in place to efficiently assign chassis to containers and incentivizing the efficient flow of cargo,” Judge Wirth said. The initial order and other document in the case are available at https://www2.fmc.gov/readingroom/proceeding/20-14.

As required by Congress in last year’s Ocean Shipping Reform Act, FMC in conjunction with the Transportation Research Board has begun to study and develop best practices for intermodal chassis pools. Congress required FMC to publish those best practices by April 2024.

Further input sought on regulating autonomous trucking operations

FMCSA is requesting comments by March 20 regarding factors the agency should consider in amending the Federal Motor Carrier Safety Regulations (FMCSRs) to establish a regulatory framework for automated driving systems (ADS)-equipped commercial motor vehicles (CMVs) operations. The supplemental advance notice of proposed rulemaking (SANPRM) follows a May 2019 ANPRM on the topic.

The latest document poses additional questions in three specific areas: (1) a potential requirement for motor carriers to notify FMCSA if they are conducting Level 4 or Level 5 autonomous operations; (2) oversight of remote assistants who might monitor autonomous CMVs; and (3) issues surrounding vehicle inspection and maintenance. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-02073. For comments on the May 2019 ANPRM, visit https://www.regulations.gov/docket/FMCSA-2018-0037.

Three ELDs are removed from FMCSA’s list of registered devices

In separate actions, FMCSA recently removed three devices from the agency’s list of registered electronic logging devices (ELDs) and placed them on the revoked devices list due to their failure to meet minimum requirements. 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. The revoked devices and dates of revocation are: (1) TMS One’s ELD ONE, January 31; (2) Nationwide Technologies Inc’s Nationwide ELD, February 3; and (3) ONE PLUS ELD’s ORS device (n/k/a 1 PL Logs), February 8. For a list of registered and revoked ELDs, visit https://eld.fmcsa.dot.gov/List.

CVSA International Roadcheck scheduled for May 16-18

The Commercial Vehicle Safety Alliance has scheduled this year’s International Roadcheck inspection event for May 16-18 with a focus on anti-lock braking systems (ABS) and cargo securement. ABS violations are not out-of-service violations, but they play a critical role in reducing collisions, CVSA said. Improper or inadequate cargo securement accounted for 10.6% of all vehicle OOS violations during the 2022 International Roadcheck.

FMCSA rejects driver’s requested exemption from HOS, ELD requirements

FMCSA has denied an application from truck driver Ronnie Brown III for an exemption from five provisions of the federal hours-of-service (HOS) regulations as well as the ELD mandate. Brown is a driver with Waterloo, Iowa-based Gray Transportation and has 15 years’ experience as a driver. Brown argued that the HOS regs create safety concerns because they do not always coincide with his natural sleep patterns. The agency said that Brown had failed to establish that he would maintain a level of safety equivalent to, or greater than, the level achieved without the exemption, adding that exempting one individual from the HOS regulations "could open the door for a huge number of similar exemption requests.” For the Federal Register notice, visit https://www.federalregister.gov/d/2023-00975.

Multiple carriers seek exemptions to use pulse lighting systems

In separately published notices, FMCSA has requested public comment on exemptions sought by seven individual motor carriers that would allow them to use a pulse lighting system module manufactured by Intellistop, Inc. for rear clearance, identification, and brake lamps. Current regulations require that such lighting be steady burning. The exemption applications were filed by

• Meiborg Brothers, Inc. (https://www.federalregister.gov/d/2023-02048);
• Gemini Motor Transport (https://www.federalregister.gov/d/2023-02053);
• DJS Fundraising, Inc. (https://www.federalregister.gov/d/2023-02049);
• JM Bozeman Enterprises, Inc. (https://www.federalregister.gov/d/2023-02054);
• Polytech Plastic Molding (https://www.federalregister.gov/d/2023-02050);
• Brent Higgins Trucking, Inc. (https://www.federalregister.gov/d/2023-02052);
• Encore Building Products (https://www.federalregister.gov/d/2023-01602);

Comments on all applications are due March 3 except for Encore Building Products, which are due February

 

Legislation

Bill reintroduced to establish a carrier selection standard

Reps. Mike Gallagher (R-Wisconsin) and Seth Moulton (D-Massachusetts) have introduced legislation (H.R. 915) that would establish an interim carrier selection standard for shippers, brokers and others until FMCSA completes a rulemaking to revise current safety fitness determination standards. FMCSA would be required to complete the rulemaking within 18 months of enactment. Gallagher and Moulton introduced the same bill in the prior Congress, but it did not advance beyond the introduction stage.

Under the legislation, until FMCSA finalizes a safety fitness rule, selection of a motor carrier shall be considered reasonable if the contracting entity verifies no earlier than 45 days prior to the date of the shipment that the carrier is licensed, registered, and insured and is not deemed unfit under existing standards. For more on H.R. 915, visit https://www.congress.gov/bill/118th-congress/house-bill/915.

House bill could allow heavier trucks in many situations

Rep. Dusty Johnson (R-South Dakota) introduced legislation (H.R. 471) that would allow states to issue permits for overweight vehicles and loads in a wide range of situations defined under the bill as emergencies. In addition to typical natural disasters leading to loosening of restrictions on trucking operations, H.R. 471 could apply if the Secretary of Transportation declares that supply chains in the U.S. “are functioning in a suboptimal manner in a State or regionally or nationally, either in terms of slow overall movement, freight traffic congestion, or otherwise.”

The bill also includes a pilot program to allow states to permit six-axle vehicles to operate on interstate highways and would expand regulatory relief for agricultural and livestock haulers. The bill would allow truck drivers to apply for Workforce Innovation and Opportunity Act grants and incentivize drivers to enter the workforce through targeted and temporary tax credits. Other provisions would loosen requirements for third-party administration of CDL tests and provide grants for truck parking and rest facilities for commercial drivers. For more on H.R. 471, visit https://www.congress.gov/bill/118th-congress/house-bill/471.

Bill would allow younger drivers for intrastate port drayage

Rep. Brian Mast (R-Florida) introduced legislation (H.R. 267) that would treat the transportation of goods from a port of entry to another location within the same state as intrastate transportation for purposes of CDL requirements. Under current law, port drayage is deemed to be interstate even if the final destination or distribution center to which the goods are hauled are located in the same state. The practical effect of H.R. 267 is to allow younger drivers to conduct drayage operations. For more information on H.R. 267, visit https://www.congress.gov/bill/118th-congress/house-bill/267.

 

Advocacy and Comment

Based on this month’s update, the regulatory and legislative agenda for the next two years is becoming more clear. The key issues to be addressed in trucking can be identified, but the outcomes cannot be predicted. They include:

• (1) The owner operator issues and Department of Labor related initiatives.
• (2) FMCSA’s proposed reinstitution of a modified SMS methodology and industry’s response to up-supply chain liability when using licensed, authorized and insured carriers.
• (3) The lack of standard service terms and conditions, pricing freight in the spot market, allocating risk between shippers, carriers and brokers commensurate with risk acceptance and insurability issues
• (4) The need to address systemic fraud in the spot market allocation of freight with better security and supply chain protocols.

Upcoming dates for submission of comments related to these issues are quickly approaching:

• (1) Broker and Freight Forwarder Financial Responsibility (Comments due March 6). See https://www.federalregister.gov/documents/2023/01/05/2022-28259/broker-and-freight-forwarder-financial-responsibility
• (2) SMS revisited – FMCSA has proposed repurposing of SMS methodology as prerequisite to reform of safety rules. See https://www.federalregister.gov/d/2023-02947. Comments due May 16, 2023.
• (3) Owner operator issues and DOL issues – Cases involving enforcement of AB5 in California and new appeals pending. Coalition comments made in DOL joint employer and Interim Guidance docket awaiting rulings. See https://www.regulations.gov/comment/NLRB-2022-0001-11601 and https://www.regulations.gov/comment/FMCSA-2022-0134-0103
• (4) Standard service terms and agreements – FMC ruling against predatory steamship pricing.

The recipients of this monthly update and the trade associations which provide it to members represent a broad-based cross section of the trucking industry including carriers, brokers, forwarders, shippers, and allied industries that share a common commitment to advocacy for limited but effective rules of commerce. Any recipient of this newsletter who wishes to participate in advocacy concerning one or more of the issues above should contact their sponsoring organization or send an email to info@transportationlaw.net.

Contents

Regulation and Enforcement

• FMCSA proposes changes in broker and forwarder requirements
• Exemption rejected for including hair testing results into drug clearinghouse
• FMCSA implements 10-year refresher training and certification for medical examiners
• DOT modal agencies adjust civil penalties for inflation
• FMCSA to begin work on vehicle crash causation study
• Stevens Transport receives CDL-related exemption
• FMCSA grants two driver training exemptions, denies three

Legislation

• Congress passes fiscal 2023 appropriations law

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.