Regulatory and Legislative Update - February 2024

Regulatory news for February 2024 includes the FMCSA eyeing June 2025 for proposed rule on safety fitness procedures, the FMCSA asking drivers to provide copies of lease-purchase agreements, the FMCSA proposing to revise various CDL regulations, updates of medical advisory criteria and more.

Contents

Regulation and Enforcement

• FMCSA eyes June 2025 for proposed rule on safety fitness procedures
• Groups question relevance of studies to safety fitness procedures rewrite
• FMCSA asks drivers to provide copies of lease-purchase agreements
• FMCSA proposes to revise various CDL regulations
• Input sought on FMCSA study of sexual assault and harassment in trucking
• Comments sought on FMCSA driver detention study
• FMCSA updates medical advisory criteria, publishes updated handbook
• Certified medical examiners must correct outdated info by February 23

Legislation

• New Jersey increases CMV minimum insurance coverage to $1.5 million

Courts

• FMC affirms ALJ ruling in favor of motor carriers on chassis choice
• Bill reintroduced to require human CMV operators in California

Regulation and Enforcement

FMCSA eyes June 2025 for proposed rule on safety fitness procedures

FMCSA does not anticipate issuing a notice of proposed rulemaking to revise safety fitness procedures until June 2025, according to the latest Department of Transportation report on significant rulemakings. DOT’s February 2024 is the first update since September. The September report had no target date at all for a safety fitness rulemaking, noting only that the comment period had closed on an advance notice of proposed rulemaking (ANPRM). In January, FMCSA indicated that it had become aware of additional studies and reports that it might consider as it proceeds with rulemaking. (See Regulatory Update, January 2024 and article below.)

Elsewhere in the February report on rulemakings, FMCSA updated its target date for a supplemental NPRM on heavy vehicle speed limiters and no plans to publish it in May. The September report indicated that the SNPRM would be out by the end of last year. Another item that had been penciled in for publication in late December was an NPRM concerning automated driving systems-equipped commercial motor vehicles. That proposed rule is now slated for March.

One item that has fallen out of the significant rulemaking report is a proposed rule to update the Unified Registration System. The September report had pegged May for an NPRM. The change probably relates to the recent meeting FMCSA had with stakeholders concerning the registration process. At that meeting FMCSA said it plans to hold more stakeholder meetings over the next few months and build a revised IT system while opening a rulemaking docket to implement a new system within the next year. (See Regulatory Update, January 2024.)

Groups question relevance of studies to safety fitness procedures rewrite

Eleven associations representing stakeholders in the motor carrier industry told FMCSA that the additional information the agency may consider as part of the safety fitness procedures rulemaking are mostly outdated and not directly relevant to a new safety fitness determination (SFD) process or to a possible reboot of the Safety Measurement System (SMS). FMCSA in January had requested comments on six studies and reports that it had become aware of and might use in redrafting safety fitness procedures. (See Regulatory Update, January 2024.) Most of the reports addressed the use of various technologies.

The groups said they do not object to FMCSA considering technology to assist carriers in operating more safely. “It is an entirely different question, though, whether unproven [artificial intelligence] can be developed in sufficient quantity to create an SFD.” The cost of a new data system and obtaining enough data to be statistically relevant to the more than 95% of regulated carriers with fewer than five trucks “is an unsolved problem with SMS for which there is no easy or cheap answer. The stakeholders reiterated their prior recommendation for an upfront vetting of applicants coupled with a biennial desktop audit of all carriers.

The comments were filed on behalf of the Air & Expedited Motor Carriers Association, Airforwarders Association, Alliance for Safety, Efficient and Competitive Truck Transportation, American Home Furnishings Alliance, Apex Capital Corp., Auto Haulers Association of America, CDL Drivers Unlimited, Specialized Furniture Carriers, The Expedite Association of North America, the Transportation & Logistics Council, and the Transportation Loss Prevention and Security Association.

For FMCSA’s notice seeking comments on the information and comments filed in response, visit https://www.regulations.gov/document/FMCSA-2022-0003-0183. For the ANPRM on safety fitness determinations, visit https://www.regulations.gov/document/FMCSA-2022-0003-0005.

FMCSA asks drivers to provide copies of lease-purchase agreements

To assist the work of the Truck Leasing Task Force (TLTF), FMCSA is asking commercial motor vehicle drivers who have signed lease-purchase agreements to provide the agency with copies of leasing documents and copies of documents for all other financial products associated with their work as CMV lessees, including debt for training and maintenance, earned wage access, and contact from debt collectors. The agency said it will provide the information it receives not only to TLTF members but also to the Consumer Financial Production Bureau (CFPB), a government agency focused on ensuring that consumers are treated fairly by banks, lenders, and other financial institutions. CFPB has been named as a technical advisor to the TLTF.

In addition to a request for copies of leases and related documents, FMCSA’s request for information poses 10 questions to CMV lessees related to their experience with lease-purchase agreements. FMCSA also posed three questions to CMV lessors, including one specifically about port drayage drivers. In the Federal Register notice, FMCSA warned that documents provided to the agency would be filed in a publicly accessible document, so personally identifiable information should be redacted. For the Federal Register notice, visit https://www.federalregister.gov/d/2024-03205.

FMCSA proposes to revise various CDL regulations

FMCSA seeks comments by April 2 on a notice of proposed rulemaking (NPRM) to make the regulations governing commercial driver’s licenses (CDLs) more flexible in several areas while tightening the rules in certain other areas. Several of the proposed changes in the regulations have been allowed through the exemption process in recent years. The agency said the NPRM would improve the efficiency and convenience of CDL issuance and would improve highway safety by further ensuring the integrity of third-party CDL knowledge testing. The NPRM would:

• Expand applicants' ability to take a CDL skills test in a state other than their state of domicile;
• Allow a commercial learner's permit (CLP) holder who has passed the CDL skills test to operate a commercial motor vehicle (CMV) on public roads without having a qualified CDL holder in the passenger seat;
• Eliminate the requirement that an applicant wait at least 14 days to take the CDL skills test following initial issuance of the CLP;
• Require that third-party knowledge examiners be subject to the training, certification, and record check standards currently applicable to state knowledge examiners and that third-party knowledge testers be subject to the auditing and monitoring requirements now applicable to third-party skills testers;
• Remove the requirement that CMV drivers must have a passenger endorsement to transport CMVs designed to carry passengers, including school buses, when the vehicle is being transported in a driveaway-towaway operation and the vehicle is not carrying any passengers.

For the Federal Register notice, visit https://www.federalregister.gov/d/2024-01710.

Input sought on FMCSA study of sexual assault and harassment in trucking

FMCSA is seeking information by March 11 on a how to design and conduct a study of sexual assault and sexual harassment in the commercial motor vehicle industry, particularly among drivers. The agency said it was particularly interested in how to support women currently in these jobs and those seeing to enter the industry.

The focus of the request for information (RFI) is on how best to approach the study in terms of statistical sampling, study design, and administering the appropriate data collection efforts. The study will build on recommendations from FMCSA’s Women of Trucking Advisory Board to better understand the problem and help identify possibly countermeasures. For the Federal Register notice, visit https://www.federalregister.gov/d/2024-02539.

Comments sought on FMCSA driver detention study

FMCSA is requesting comments by March 18 on a planned study of the impact of driver detention time on safety and operations. The study will collect data on commercial motor vehicle detention across various industry segments, analyze the data to determine frequency and severity, and assess the ability of existing intelligent transportation systems to measure detention time. The study will involve about 80 carriers and 2,500 CMV drivers. For the Federal Register notice visit, https://www.federalregister.gov/d/2024-03256.

FMCSA updates medical advisory criteria, publishes updated handbook

FMCSA has updated the Medical Advisory Criteria published as an appendix in the Code of Federal Regulations (CFRs). Appendix A of Part 391 provides guidance for medical examiners (MEs) listed on FMCSA’s National Registry of Certified Medical Examiners on the applicability and interpretation of the physical qualification standards for operators of commercial motor vehicles. The advisory criteria also are intended to provide recommendations and information to assist MEs in applying the standards, basic information related to testing, and matters to consider when making a qualification determination.

In a separate but related action, FMCSA has published a new edition of the Medical Examiner’s Handbook (MEH). The revised criteria in the MEH are identical to those in the new version of the appendix in Part 391, although the order of the criteria differs. The MEH reflects the order in which an ME typically conducts the physical exam while the appendix organizes the criteria in the same order that the qualification standards appear in Part 391.41(b).

Both the new criteria and the new MEH are available at https://www.fmcsa.dot.gov/guidance. For the Federal Register notice on the updated criteria, visit https://www.federalregister.gov/d/2024-00980. For the Federal Register notice on availability of the MEH, visit https://www.federalregister.gov/d/2024-01056.

Certified medical examiners must correct outdated info by February 23

Medical examiners who have not done so already have until February 23 to create a login.gov account or sign into an existing account and correct all outdated contact information in their National Registry of Certified Medical Examiners. Those failing to correct their profiles will be removed from the national registry on February 26, FMCSA said. For the Federal Register notice, visit https://www.federalregister.gov/d/2024-01283.

Legislation

New Jersey increases CMV minimum insurance coverage to $1.5 million

New Jersey Gov. Phil Murphy on January 16 signed into law a bill (S2841) requiring owners of commercial motor vehicles with a gross vehicle weight rating (GVWR) of 26,001 pounds or more that registered or principally garaged to maintain liability insurance of at least $1.5 million per accident – twice the federal minimum. The law, which takes effect July 1, also establishes a minimum of $300,00 for CMVs with GVWRs of 10,001 pounds to 26,000 pounds. For the text of S2841 and other detail about the legislation, visit https://www.njleg.state.nj.us/bill-search/2022/S2841.

Bill reintroduced to require human CMV operators in California

Although California Gov. Gavin Newsom has already vetoed similar legislation once, opponents of fully autonomous commercial motor vehicles are trying once again. With the endorsement of the Teamsters union and others, Assemblymember Cecilia Aguilar-Curry introduced legislation (AB 2286) that would prohibit the operation of autonomous vehicles with gross vehicle weight rates (GVWRs) of 10,001 points or more on public roads for testing purposes, transporting good, or transporting passengers without a human safety operator physically present in the vehicle. For more information, visit https://leginfo.legislature.ca.gov and search bill number 2286.

Courts

FMC affirms ALJ ruling in favor of motor carriers on chassis choice

The Federal Trade Commission has affirmed in its entirety a February 2023 administrative law judge (ALJ) ruling 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 FMC decision covers four regions that were at issue in the ALJ’s ruling: Los Angeles/Long Beach, Chicago, Savannah, and Memphis.

ALJ Erin Wirth handed down the initial decision in response to a complaint filed by the Intermodal Conference of the American Trucking Associations against the Ocean Carrier Equipment Management Association, Consolidated Chassis Management LLC, and 11 ocean carriers. The proceeding is not over, however, as the ALJ must still determine what specific actions and, potentially, reparations will be required.

The FMC’s order, the ALJ’s initial decision, and the parties’ filings in the proceeding are available at https://www2.fmc.gov/readingroom/proceeding/20-14.

For the past several months, this update has discussed four major issues: (1) owner operator and federal and state labor issues; (2) the reboot of SMS and the Agency’s preliminary notices of a new safety fitness determination; (3) the anti-fraud initiative by stakeholders; and (4) FMCSA’s effort to improve data quality.

With the fast approaching federal election cycle, this month the FMCSA has provided a forecast of how and when it will treat these issues with Department of Labor and state law initiatives left unresolved.

Changes in the new applicant filing and the Agency’s collection of data is the only initiative being moved forward by the FMCSA. In addition to a listening session reported last month, the Agency and the new Director will apparently be at MATS to discuss this and other issues, and input especially from new and small carriers is needed. As currently presented, the proposed changes in the new carrier application, while quite detailed, are cumbersome and stand-alone in nature and not coordinated with either the new proposed safety fitness determination or any overall anti-fraud policy.

Safety and deterring systemic fraud should be recognized as the Agency’s most pressing initiatives. The Agency’s preliminary signaling that its new safety fitness determination will be based on roadside inspections, DataQs, and massive use of artificial intelligence to create more data poses major unaddressed questions. How will the other acknowledged underlining flaws of SMS methodology be addressed? (2) What are the due process concerns and the prospect of increased costs’ reliance on unproven implementation of artificial intelligence on a nationwide scale? (3) In this context, how does the Agency’s recent submission of six largely stale and seemingly irrelevant academic articles focusing on technology figure into a new SFD rulemaking?

With respect to any anti-fraud initiative, the lengthy check-the-blank prototype appears to be cumbersome. Yet it seems uncoordinated with any needed data verification system which would identify fraudulent new applicants or allow the shipping public to rely on the Agency for the premise that “Fit to operate is fit to use.” Now - before the Agency becomes further committed to stand-alone treatment of safety, data accuracy, and fraud prevention - is the time to recognize the important nexus between the three issues.

The Agency has been supportive of the desktop or new carrier audit procedure as an economical way to vet new carriers but has failed to conduct the audits in a timely manner while continuing to issue new authorities to carriers, brokers, and forwarders, with no verification of the ability to comply with safety requirements or background checks to confirm warranties made under oath. This audit should be advanced as a perquisite to the issuance of authority and augmented with compliance tests before authority is granted and a certificate or license even assigned a docket number.

This procedure of vetting before licensing is the standard across industries including lawyers, accountants, restaurateurs, and holders of commercial driver’s licenses, the very skilled blue collar professionals best qualified by experience to pass a new carrier audit for vetting and safety compliance.

The benefits of the pre-issuance, combined safety and anti-fraud vetting and audit program include (1) the ability to issue new applicants a Safety Rating of "licensed to operate" which would eliminate the Red Light/Green Light issue faced by the shipping community while allowing the Agency to meet Congress’ directive that all carriers be vetted and rated; (2) hands-on uniform application of desktop audit standards to new applicants (and to established carriers at the time of their biannual updates) which would satisfy due process concerns; (3) level the playing field for small unrated carriers and new entrants now subject to limited access to freight and higher insurance costs as unvetted operators in the spot market; and (4) with proven cost and effectiveness, the audit alternative is consistent with the National Transportation Policy and could win expedited approval under APA and related statutes designed to protect small businesses.

The training and testing model is free for prosecutorial bias and proper as a screening tool for public consumption. Note in this context, the Agency’s data accuracy initiative would be enhanced with accurate, definitive registrant telephone numbers, principal place of business, and email addresses available to the FMCSA or OIG hotline for timely notification of identity theft after new entrants have been vetted, tested, and verified.

The fourth major issue facing interstate trucking is the pro-union agents reflected at both the federal and state level. Although AB5 and other aberrant California initiatives are not yet the law of the land, the role of federal preemption has not been definitively resolved by the U.S. Supreme Court and other blue state legislators are paying little or no attention to federal preemption or showing deference to the need for uniform standards. Unfortunately, political appointees of the current administration are shepherding decisions at the Department of Labor level which are not supportive of the owner operator model or blue collar entrepreneurship.

Little attention is being paid to the particular needs of the trucking industry or the sustaining value of the decades-old carveouts for the owner operator model and the hours of service exemption from overtime. Ignored in the pro-labor “sweatshop on wheels” claims are long standing leasing rules that protect owner operators against forced dispatch, protect against contaminating control, and federal creative remedies for contractual abuse.

In this context, the FMCSA’s truck leasing task force’s notice referenced above deserves the attention of owner operators who appreciate the entrepreneurial opportunity offered to them by authorized motor carriers that treat them like family and provide them with an opportunity to lease-purchase equipment and select their own loads, while building equity and acquiring portability.

In sum, each of the four issues discussed above deserve attention, monitoring and advocacy by affected stakeholders.

Presentations at MATS – the Alliance for Safe, Competitive, and Efficient Truck Transportation (ASECTT) and CDL Drivers Unlimited (CDLDU) will be hosting several 45 minute presentations at MATS dealing with the issues discussed above. Readers of this newsletter and partners in advocacy attending MATS are welcome to participate. If you are planning on being at MATS and would like to attend these presentations, please RSVP to asectt@gmail.com with your name, company, address, and contact number. If you have particular questions or regulatory concerns, please include them with your RSVP.

MATS is usually well attended by FMCSA officials seeking input from attendees in a series of breakout sessions. We will try to avoid any conflicts.