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House Bill 7095 / Section 4202

By Dan Boaz | Jun 16, 2020

House panel to vote on bill with measures on CSA, SFD, HOS

The Democratic leadership of the House Transportation & Infrastructure Committee on June 4 introduced legislation (H.R. 7095) to reauthorize transportation programs following the expiration of the FAST Act on September 30. Title IV of the bill addresses motor carrier safety and includes several significant provisions related to Federal Motor Carrier Safety Administration (FMCSA) regulation and enforcement. The committee plans to mark up the bill on June 17.

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Regulatory and Legislative Update - June 2020

By Dan Boaz | Jun 3, 2020

Contents

Note: FMCSA’s emergency declaration related to COVID-19 currently runs through July 14, but the latest extension curtails the coverage of the relief. For latest version, visit https://www.fmcsa.dot.gov/COVID-19.

Legislation

Regulation and Enforcement

Advocacy & Comment

 

Legislation

Congress extends PPP through August 8

President Trump on July 4 signed legislation (S. 4116) that extends the application period for the Paycheck Protection Program through August 8. The program, which provides forgivable loans to businesses with 500 or fewer employees and certain other categories of businesses affected by the coronavirus (COVID-19) pandemic, had been scheduled to expire June 30, but Congress at the last minute extended the program. As of July 6, the Small Business Administration said that nearly $132 billion remained to be loaned. For more information on PPP and other SBA lending programs related to COVID-19, visit www.sba.gov/coronavirus.

House passes infrastructure bill with major motor carrier provisions

In a highly partisan vote, the U.S. House of Representatives on July 1 passed a large package of infrastructure legislation (H.R. 2) that incorporates the highway reauthorization language approved on June 18 by the House Transportation & Infrastructure Committee. The bill addresses investments in a wide range of activities beyond transportation, including housing, broadband, drinking and wastewater systems, clean energy, health care, and more.

During a marathon two-day session, the T&I Committee rejected Republican members’ attempts to strip out various controversial provisions regarding motor carrier regulation and enforcement, including those that would push the Federal Motor Carrier Safety Administration (FMCSA) to accelerate restoration of public Compliance, Safety, and Accountability (CSA) metrics and delay the upcoming changes to hours-of-service rules. (For other provisions included in the bill as introduced, see the June 2020 Regulatory and Legislative Update addendum distributed on June 12.)

The committee did, however, adopt a couple of important amendments, including one that would increase motor carriers’ minimum insurance coverage to $2 million from the current $750,000. The panel also adopted a measure that would require FMCSA to establish screening criteria for obstructive sleep apnea – an idea that even the Obama administration had relegated to a low priority before the Trump administration withdrew the rulemaking altogether in 2017.

Further Democrat-sponsored motor carrier-related measures were added to the bill during floor consideration. For example, the House adopted an amendment sponsored by Rep. Conor Lamb (D-Pennsylvania) requiring a study on the operational and safety performance of small commercial vehicles used in interstate commerce. Specifically, the study would address package delivery of goods moving in interstate commerce using vehicles with gross vehicle weight ratings below 10,000 pounds. Rep. Alan Lowenthal (D-California) sponsored an amendment that requires newly manufactured commercial motor vehicles (CMVs) to be equipped with universal electronic vehicle identifiers to be used by roadside inspectors. The bill also establishes a structured reporting system for data regarding the testing of automated commercial vehicles.

H.R. 2 contains a wide range of provisions that would be unacceptable to the White House or the Republican-controlled Senate, so the prospects for further action are unclear. The closest Senate counterpart to H.R. 2 is S. 2302, which was approved by the Senate Environment and Public Works Committee in January. However, that legislation focuses solely on transportation infrastructure and does not address motor carrier regulatory and enforcement, which is under the jurisdiction of the Senate Commerce Committee. Nor does it address the wide range of non-transportation provisions included in H.R. 2. Given how far apart the House and Senate are and how little time remains in the legislative session, the most likely outcome is either no action at all or a simple short-term extension of the FAST Act, which is set to expire September 30.

For more on H.R. 2, visit https://www.congress.gov/bill/116th-congress/house-bill/2. For more on S. 2302 visit https://www.congress.gov/bill/116th-congress/senate-bill/2302.

House bill would establish carrier selection standard

Reps. Bob Gibbs (R-Ohio) and Henry Cuellar (D-Texas) on July 2 introduced a bill that would require entities to ensure that any carrier they contracted to transport a load of freight on behalf of their customer (1) is properly registered with FMCSA; (2) has obtained the minimum required insurance; and (3) has not been placed out-of-service at the carrier level for any reason. For more information on the bill, visit https://www.congress.gov/bill/116th-congress/house-bill/7457.

House bill would expand HOS exemption for agriculture

In the latest of many bills to loosen the restrictions on ag haulers, Rep. John Joyce (R-Pennsylvania) introduced legislation (H.R. 7102) that would allow the HOS rules exemption regarding maximum driving and on-duty time for drivers transporting agricultural commodities and farm supplies to apply year-round. Current law provides an exception from the federal hours-of-service rules for the transportation of agricultural commodities within a 150 air-mile radius of the normal work reporting location only during planting and harvest periods which are determined by each state. The bill also would require the Department of Transportation to amend the definition of agricultural commodity to include specific commodities that are covered by the exception. For more information on the bill, visit https://www.congress.gov/bill/116th-congress/house-bill/7102.

 

Regulation and Enforcement

Safety advocates/Teamsters, CVSA file petition for reconsideration of HOS changes

In a move that sets up an inevitable court challenge, several safety advocacy groups and the Teamsters union on June 30 submitted a petition for reconsideration of FMCSA’s final rule modifying HOS regulations in several areas. At it stands now, the rule takes effect September 29. (For details of the final rule, see the June 2020 Regulatory and Legislative Update.) The groups seek a stay of the rule pending a decision on the petition for reconsideration.

The Commercial Vehicle Safety Alliance (CVSA) also submitted a petition for reconsideration, albeit one that is much narrower in scope. CVSA is concerned that while FMCSA apparently intended to prohibit use of the 150 air-mile radius exemption in combination with the adverse driving provision, the rule does not do so. CVSA also wants FMCSA to change its current personal conveyance guidance, under which “a driver could, in theory, drive hundreds of miles over the course of several hours all under the designation of personal conveyance,” the organization said. Finally, CVSA asked that FMCSA review existing HOS exemptions before the rule takes effect as many of them will either become obsolete or require updating.

For the petitions for reconsideration (under Comments), the final rule, and other materials, visit https://www.regulations.gov/docket?D=FMCSA-2018-0248

MCSAC to address regulation of smaller vehicles, aging drivers

FMCSA’s Motor Carrier Safety Advisory Committee (MCSAC) will hold a videoconference meeting July 13-14 to discuss several issues, including potential regulation of companies using vehicles with gross vehicle weight ratings of less than 10,000 pounds to deliver goods. MCSAC also will address the aging of the CMV workforce and the impact of the legalization of hemp on the safety oversight of CMV drivers.

In a Federal Register notice, FMCSA said that “there appears to be a gap in safety oversight of both drivers and vehicles” in operations that use small vehicles. MCSAC members will hear from agency experts on trends in crash and highway safety data. This issue has received increasing attention in recent years as e-commerce purchasing has soared. Indeed, the House-passed infrastructure bill (H.R. 2) requires a study of the safety of such operations.

In considering the impact of aging drivers, MCSAC will consider data on the distribution of CMV drivers by age. Finally, FMCSA will brief members on how legal transportation of hemp could affect the agency’s view of what happens if drivers transporting hemp test positive for tetrahydrocannabinol.

The MCSAC videoconference is open to the public. For more information, visit the MCSAC’s webpage at https://www.fmcsa.dot.gov/advisory-committees/mcsac/welcome-fmcsa-mcsac. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-13709.

FMCSA finalizes changes to MCSAP

FMCSA issued a final rule finalizing its proposed changes to its financial assistance programs, including amendments based on the funding formula recommendations derived from the Motor Carrier Safety Assistance Program Formula Working Group. This rule, which is effective July 24, reorganizes the agency's regulations to create a standalone subpart for the High Priority Program and includes other programmatic changes to (1) reduce redundancies, (2) require the use of three-year MCSAP commercial vehicle safety plans (CVSPs), and (3) align the financial assistance programs with FMCSA’s current enforcement and compliance programs. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-11464.

Werner gets limited ELD data exemption for transition to new supplier

FMCSA has granted Werner Enterprises a one-year exemption from the requirement that certain data fields be included in electronic RODS files presented by ELDs. Werner had requested that, during the first eight days that each of its drivers transitions to an ELD from its new supplier, Platform Science, five specific data fields in the RODS files accessible through the in-cab ELD unit be left blank due to file compatibility issues between the suppliers' systems. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-14496.

FMCSA renews DOE, SCRA exemptions

FMCSA has renewed existing exemptions from the 30-minute rest break provision of the HOS regulation held by the U.S. Department of Energy and the Specialized Carriers & Rigging Association. For the DOE renewal Federal Register notice, visit https://www.federalregister.gov/d/2020-14497. For the SCRA renewal Federal Register notice, visit https://www.federalregister.gov/d/2020-13597.

 

Advocacy and Comment

Three recent regulatory and legislative issues are worth commenting on this month.

(1) SMS and its misuse by plaintiff’s bar is not a dead letter but it should be

The FMCSA has not complied with the FAST Act by submitting a corrective action plan. Both the NAS and the Inspector General declined to approve its efficacy. Even the Agency has acknowledged that data generated by the Agency for its own use is not admissible in court and a recent ATRI study highlights misuse of SMS as a significant contributing factor to nuclear judgments and higher insurance costs. Yet to date, the industry support has not coalesced in taking advantage of these findings.

In Section 7202 of its version of the new reauthorization bill, the House majority proposed to advance SMS as a new safety fitness rule, sunsetting the FAST Act requirements without explanation. The FAST Act terminates on September 30 but its unfulfilled requirements are not automatically otherwise trumped.

While the House initiative is unlikely to be law in an election year, the industry should not be caught off guard. Given the uncertain outcome of the Fall election, this issue cannot be left to partisan politics particularly when the facts and law are on our side and useful due process rules have been implemented by the Department of Transportation. It is time to insist the FMCSA move on and abandon SMS as a viable basis for a Safety Fitness Determination and to ensure it is not misused in crash litigation.

(2) Final Mile Issues

The rise of Amazon and Uber has highlighted a regulatory dilemma. Home delivery of freight which is a continuation of an inbound pool shipment is interstate freight. Yet, sprinters and vans which make home delivery which weigh less than 10,000 pounds gvw and are not subject to any FMCSA safety regulation other than the filing of $300,000 in auto liability insurance.

The abuses of the independent contractor model in the home delivery arena has made the regulatory dichotomy more apparent. The House of Representatives has expressed interest in the issue. On Monday July 13 and Tuesday July 14, the FMCSA’s Motor Carrier Safety Advisory Committee – presumably at the Agency’s urging – will consider the existing carve-out from safety regulations for smaller vehicles. This could prove interesting and divisive for vetting and credentialing purposes the industry uses the FMCSA to police carrier compliance. As one client said, home delivery is “the Wild Wild West.” Whether the FMCSA can or should become the new sheriff in town remains to be seen. For more information see https://www.federalregister.gov/documents/2020/06/25/2020-13709/meetings-motor-carrier-safety-advisory-committee-mcsac-public-meeting.

(3) Payroll Protection Program

The barn door did not shut on the Federal Government’s pandemic after big business grabbed up all the stimulus. There is money left in the Payroll Protection Program, small banks are now processing applications, and, as noted above, the time limits for qualifying for loan forgiveness have been extended for 24 weeks after the loan is received. Quite possibly there are more funds on the way.

Unfortunately, apparently carriers with independent contractors cannot qualify for loan forgiveness for using stimulus money to support independent contractors. Owner-operators must file their own application. Yet, sole proprietorships and owners of businesses who report Schedule C income can receive forgiveness by using loan proceeds as the Act requires.

Also, the government is under great pressure to answer for the hasty disbursement of large loans to businesses with no demonstrable need or necessity. As a result, the Administrator and SBA have continually issued interim rules making the loan process, and particularly the forgiveness program, more confusing, restrictive and complicated. Its most recent final rule was issued on June 26. See SBA-2020-0038-0001; Federal Register 2020-13782.

Clearly, the pandemic is far from over and the effects on the motor carrier industry are yet to be fully recognized by many niche carriers. Time restraints for spending stimulus grants and filing for loan forgiveness have been extended. For carriers who have not filed, there are now small banks which are willing to help.

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Regulatory and Legislative Update - May 2020

By Dan Boaz | May 7, 2020

Contents

For the latest FMCSA guidance related to COVID-19, visit https://www.fmcsa.dot.gov/COVID-19.

Regulation and Enforcement

Advocacy and Comment

 

Regulation and Enforcement

FMCSA relaunches Crash Preventability Program

The Federal Motor Carrier Safety Administration (FMCSA) has decided to resume ruling on the preventability of certain categories of commercial motor vehicle (CMV) crashes in a new program that expands on the categories of crashes to be reviewed beyond those in the pilot program; excludes crashes deemed not preventable from the Safety Measurement System (SMS); and streamlines the review process. Motor carriers that have an eligible crash that occurred on or after August 1, 2019 may submit a request for data review (RDR) with the required police accident report and other supporting documents, photos, or videos through the agency’s DataQs website (https://dataqs.fmcsa.dot.gov).

Although FMCSA rejected the Motor Carrier Regulatory Reform Coalition’s (MCRR) position that the proposed changes be made through notice and comment rulemaking, the agency acknowledged in a draft Federal Register notice the concerns expressed by MCRR and the National Association of Small Trucking Companies (NASTC) that preventability would be conflated with fault and that this confusion could lead to negative outcomes in insurance rates and private litigation.

FMCSA emphasized that determinations on crash preventability do not establish legal liability, fault, or negligence by any party. “Fault is generally determined in the course of civil or criminal proceedings and results in the assignment of legal liability for the consequences of a crash,” FMCSA said in the draft notice. “By contrast, a preventability determination is not a proceeding to assign legal liability for a crash. Under 49 U.S.C. § 504(f), FMCSA’s preventability determinations may not be admitted into evidence or used in a civil action for damages and are not reliable for that purpose.”

In response to MCRRC and NASTC concerns about the potential conflation of preventability and fault – and the Commercial Vehicle Safety Alliance’s concerns about the impact on state criminal proceedings – FMCSA has added a disclaimer to the SMS website that states:

A crash preventability determination does not assign fault or legal liability for the crash. These determinations are made on the basis of information available to FMCSA by persons with no personal knowledge of the crash and are not reliable evidence in a civil or criminal action. Under 49 U.S.C. § 504(f), these determinations are not admissible in a civil action for damages. The absence of a not preventable determination does not indicate that a crash was preventable.

The agency also will provide language in its notifications to submitters, as it did in the demonstration program, that determinations are not appropriate for use by private parties in civil litigation and that they do not establish legal liability, fault, or negligence. The language also confirms that crash preventability determinations will not affect safety ratings or result in any penalties or sanctions.

For more information on the CPP, including a link to the draft Federal Register notice, visit https://www.fmcsa.dot.gov/crash-preventability-determination-program.

NPRM would downgrade CDLs, CLPs for positive drug tests

FMCSA is requesting comments by June 29 on a notice of proposed rulemaking (NPRM) that would require states to query the drug and alcohol clearinghouse before issuing, renewing, upgrading, or transferring a commercial driver’s license (CDL) or commercial learner’s permit (CLP). The agency would prohibit states from taking such actions for individuals prohibited from driving a CMV due to drug and alcohol violations.

FMCSA also proposes to change how reports of actual knowledge violations, based on citations for driving under the influence (DUI) violations are maintained in the clearinghouse. Under the NPRM, a driver who is issued a citation for a DUI would still be flagged in the clearinghouse as such even if the driver is not ultimately convicted of the offense. Although the citation would remain in the record, drivers who are not convicted of a DUI could petition FMCSA to add documentary evidence to that effect to their clearinghouse record.

The December 2016 final rule on the drug and alcohol clearinghouse required state driver’s licensing agencies (SDLAs) to query the clearinghouse before issuing, renewing, transferring, or upgrading a CDL. The American Association of Motor Vehicle Administrators (AAMVA) petitioned for reconsideration of that requirement, saying that the authority for acting based on federal clearinghouse records should remain with FMCSA and the employer. In response to AAMVA petition, FMCSA in December extended the compliance date for the mandate that SDLAs query the database until January 6, 2023 so that it could consider a rulemaking on what role SDLAs would play in the process.

In the NPRM, FMCSA proposes that SDLAs be required to downgrade CDLs and CLPs once notified by the clearinghouse that a driver is prohibited from operating a CMV due to a positive drug test. Under the rule in place today, such drivers are prohibited from operating CMVs, but there is no mechanism for changing their CDL or CLP status.

The NPRM also proposes to change how an employer’s report of actual knowledge of a driver’s drug or alcohol use is maintained in the clearinghouse. The current rule allows drivers to petition FMCSA to remove such notifications from the clearinghouse if a DUI citation does not result in a conviction. The NPRM instead would retain an employer’s report regardless of whether the driver is ultimately convicted, although drivers can petition FMCSA to add the fact that they were not convicted to the record. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-08230.

Safety technology firm seeks HOS relief for drivers using its systems

FMCSA is requesting comments by May 20 on an application by Pronto.ai, Inc. on behalf of its interstate motor carrier customers for an exemption from the 11-hour driving limit and 14-hour driving window in the hours-of-service (HOS) regulations. Specifically, Pronto requests that drivers operating CMVs equipped with the Copilot by Pronto advanced driver assistance systems (ADAS), the SmartDrive Video Safety Program, and operating under certain other safeguards, be allowed to drive up to 13 hours during a period of 15 consecutive hours after coming on duty following 10 consecutive hours off duty. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-08343.

SBTC seeks reconsideration of broker bond exemption denial

FMCSA is requesting comments until June 3 on an SBTC petition for reconsideration of the March 2015 denial of an application by the Association of Independent Brokers and Agents (AIBA) for an exemption from the $75,000 bond requirement for all property brokers and freight forwarders. In a Sept. 10, 2019 letter, SBTC submitted its current request for a five-year exemption from the $75,000 broker/freight forwarder financial responsibility requirement for those brokers and freight forwarders with revenues under $15.01 million.

The initial April 10 Federal Register notice requested comments until May 11, but that notice included an incorrect docket number. A May 4 Federal Register notice corrects the docket number (FMCSA-2020-0130) and extended the comment period to June 3. For the original Federal Register notice, visit https://www.federalregister.gov/d/2020-07539. For the correction and extension of the comment period, visit https://www.federalregister.gov/d/2020-09467.

FMCSA again denies SBTC’s bid for ELD exemption reconsideration

FMCSA on April 13 rejected the Small Business Transportation Coalition’s (SBTC) request for reconsideration of its application for an exemption from electronic logging devices (ELDs) for all motor carriers with fewer than 50 employees. The agency, which denied the application in July 2019, said that after reviewing the petition for reconsideration and public comments received it “has determined that neither the applicant nor the commenters provided information that would change the Agency’s previous decision to deny the exemption.” For the Federal Register notice, visit https://www.federalregister.gov/d/2020-07730.

Pipeline services company seeks ELD exemption

FMCSA is requesting comments by May 28 on an application from pipeline services contractor Right-A-Way, LLC for an exemption from the requirement that its short-haul drivers use electronic logging devices (ELDs) when they are required to prepare records of duty status (RODS) more than eight days in a 30 consecutive day period. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-09013.

Werner seeks limited ELD data exemption for transition to new supplier

FMCSA is requesting comments by May 13 on Werner Enterprises’ application for an exemption from the requirement that certain data fields be included in electronic RODS files presented by ELDs. Specifically, Werner requests that, during the first eight days that each of its drivers transitions to an ELD from its new supplier, Platform Science, five specific data fields in the RODS files accessible through the in-cab ELD unit be left blank due to file compatibility issues between the suppliers' systems. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-07731.

Samsara seeks windshield placement exemption for dash camera

FMCSA is requesting comments by May 13 on the application by Samsara Networks Inc. for an exemption to allow its AI Dash Cam to be mounted lower in the windshield on CMVs than is currently permitted. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-07729.

McKee Foods Transportation sleeper berth exemption renewed

FMCSA has renewed McKee Foods Transportation, LLC's exemption allowing its team drivers to take the equivalent of 10 consecutive hours off duty by splitting sleeper-berth time into two periods totaling 10 hours, provided neither of the two periods is less than 3 hours. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-08207.

FMCSA requests comments on DOE, SCRA exemption renewals

FMCSA is inviting comments on requests for renewal of existing exemptions from the 30-minute rest break provision of the HOS regulation. Comments are due May 26 on an exemption held by the U.S. Department of Energy that treats DOE-contracted motor carriers and drivers transporting security-sensitive radioactive materials similarly to drivers of shipments of explosives. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-08579.

Comments are due June 1 on an exemption held by the Specialized Carriers & Rigging Association covering drivers for all specialized carriers transporting loads that exceed normal weight and dimensional limits that require permits issued by a government authority. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-09171.

 

Advocacy and Comment

Crash Preventability Program and Paycheck Protection Program 2

Two recent administrative actions this past month may have a continuing effect on the trucking industry.

1) Preventability study approval. As discussed above, the FMCSA, while rejecting rulemaking, has issued important policy statements that make clear that the agency’s decision to call balls and strikes on crash predictability is not a finding of fault or legal liability. By drawing this clear distinction and citing the federal statute (49 U.S.C. 504(f)) hopefully the agency has put an end to plaintiff’s bar’s mischief that FOIA information gleaned from the agency concerning past crashes is admissible in court or to troll for nuclear verdicts. Defense bar take note. These findings should be useful in opposing the admissibility of crash preventability findings to exacerbate judgments against carriers.

2) Payment Protection Program Part 2. Across industries PPP has been roundly criticized as not reaching the neediest small businesses affected by the pandemic. Distributed by gatekeeper banks which, with unfettered restrictions, showed preference for their preferred customers, funds were quickly exhausted with large payments often to well-heeled recipients with no evidence of correlation to the pandemic quarantine or loss of business. Particularly shut out were small motor carriers, sole proprietors, and owner-operators, which were not preferred borrowers and which were frustrated by changing Treasury rules that prejudiced pass through to sole proprietors, commission sales agents, anyone paid on a Form 1099, and independent contractors and owner-operators in particular.

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