Regulatory and Legislative Update - February 2023

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.