Regulatory and Legislative Update - January 2025

Contents

Regulation and Enforcement

• FMCSA expands crash preventability review criteria
• FMCSA to highlight upcoming SMS changes in January 16 webinar
• Compliance date pushed back for certain provisions of broker/forwarder rule
• Trump labor pick, port dispute stance raise questions about labor policy
• FMCSA proposes to waive hazmat endorsements for certain limited operations
• Company denied exemption for limited interstate driving by younger drivers
• Private fleet denied lighting exemption due to inactive DOT number
• Autonomous vehicle firms denied exemption concerning warning devices
• FMCSA removes 15 devices from list of registered ELDs

Legislation

• Multiple trucking-related bills die at the end of the 118th Congress

Courts

• Supreme Court won’t review law allowing California to set emissions standards

Advocacy and Comment

Regulation and Enforcement

FMCSA expands crash preventability review criteria

FMCSA has adopted its proposed changes to its Crash Preventability Determination Program (CPDP), adding four new eligible crash types and broadening the definition of existing crash types to include indirect consequences of actions of other motorists. The new and updated eligibility criteria will apply to requests for data review (RDR) for crashes that occur on or after December 1, 2024. Crashes occurring prior to that date will be reviewed according to the prior criteria. FMCSA said it will announce on the CPDP website at https://www.fmcsa.dot.gov/​crash-preventability-determination-program when DataQs will be available to accept submissions of the new and updated crash types.

The four new crash types are as follows:

• CMV was struck on the side by a motorist operating in the same direction.
• CMV was struck because another motorist was entering the roadway from a private driveway or parking lot.
• CMV was struck because another motorist lost control of their vehicle. The Police Accident Report (PAR) must specifically mention loss of control either in the citation, contributing factors, and/or PAR narrative.
• CMV was struck on the side by a motorist operating in the same direction.
• Any other type of crash involving a CMV where a video demonstrates the sequence of events of the crash.

In addition to the newly eligible situations that are reviewable, FMCSA has reworded several crash types to account for situations in which other motorists caused crashes that they were not directly involved in. For example, one prior description was “CMV was struck by a motorist driving in the wrong direction.” The new version is “CMV was struck because another motorist was driving in the wrong direction.” FMCSA noted that the new definitions now allow for review if a CMV was struck by a vehicle that had been struck by a motorist driving in the wrong direction, making an illegal turn, experiencing a medical issue, etc.

FMCSA emphasized that the CPDP is limited to how crashes show up in the Safety Measurement System for the purpose of targeting enforcement and does not affect crash preventability determinations made through FMCSA safety investigations. Moreover, preventability determinations under CPDP will not affect carriers’ safety rating or ability to operate, FMCSA said.

For the Federal Register notice, visit https://www.federalregister.gov/d/2024-28377.

FMCSA to highlight upcoming SMS changes in January 16 webinar

As reported in our November 2024 Regulatory Update, FMCSA is moving forward with changes to its Safety Measurement System changes that had been proposed in February 2023. The agency adopted the seven changes that it had proposed as well as two others based on its analysis and issues raised during preview of the data and during the comment period. The agency currently is redesigning the SMS web system to display results of the new methodology and will announce an anticipated date to launch the new system in the coming months, it said.

FMCSA announced the first of apparently several webinars focusing on the SMS changes. The January 16 webinar will focus on three specific SMS changes: (1) reorganized BASICs (which now are called “compliance categories”); (2) violation groups; and (3) simplified severity weights.

A link to the registration page for the January 16 webinar appears on the FMCSA home page at https://www.fmcsa.dot.gov. For more information on FMCSA's SMS changes, see the November 20 Federal Register notice at https://www.federalregister.gov/d/2024-27087. More information also is available at https://csa.fmcsa.dot.gov/prioritizationpreview.

Compliance date pushed back for certain provisions of broker/forwarder rule

As expected, FMCSA has delayed for one year until January 16, 2026, the compliance date for certain elements of its final rule on broker and freight forwarder financial responsibility because of ongoing efforts to revamp the agency’s online registration system. The agency will add the functionality needed to accept filings and track notifications related to those elements to its new online system but not to its current legacy system. FMCSA proposed the extension of the compliance dates in November. Some elements of the regulation already were scheduled to take effect in January 2026. The provisions affected by the extension are:

• Immediate suspension of broker/freight forwarder operating authority when financial security falls below $75,000;
• Surety or trust responsibilities in cases of broker/freight forwarder financial failure or insolvency; and
• Enforcement authority and penalties for financial responsibility providers who do not comply with the regulations.

Petitions for reconsideration of FMCSA’s rule must be submitted by January 30. For the Federal Register notice, visit https://www.federalregister.gov/d/2024-30509.

Trump labor pick, port dispute stance raise questions about labor policy

The Department of Labor (DOL) was decidedly pro-business under the first Trump presidency, but since his victory in the November election President-elect Trump has taken some actions that raise doubts about what the DOL stance might be on some key issues related to labor unions. Chief among those actions is Trump’s choice of Lori Chavez-DeRemer as his nominee to head DOL. A Republican member of Congress from Oregon, she was defeated in her reelection bid in November after just one term.

Chavez-DeRemer is seen as a supporter of worker rights and perhaps most notably is one of only three Republicans in the current Congress to co-sponsor the Protecting the Right to Organize Act (H.R. 20). The PRO Act, which has languished in the Republican-controlled House, is a broadly pro-union bill that includes a restrictive ABC test for worker classification similar to the one in California’s AB 5 law. For more on the PRO Act, visit https://www.congress.gov/bill/118th-congress/house-bill/20.

Another sign that the Trump administration might not uniformly side with the business community over labor unions came December 12 when Trump posted on social media that he is siding with the International Longshoremen’s Association (ILA) in its dispute with East/Gulf Coast container port terminal operators over the issue of automation. With the intervention of the Biden administration, ILA and the United States Maritime Alliance (USMX), which represents the terminal operators, struck a deal over wages but pushed off the thorny issue of job-replacing automation until early 2025. The parties struck a tentative deal in January, thus averting a strike, and the ILA credited Trump’s support as a key factor.

Trump’s stance in the ILA-USMX dispute might be at least partially related to his well-established bias against imported goods. As with tariffs, policies that make imported goods more expensive arguably encourage domestic production over imports. Indeed, Trump’s policies on both tariffs and immigration could be seen as supporting the interests of U.S. workers over corporations that could face greater costs and disruptions because of those policies.

FMCSA proposes to waive hazmat endorsements for certain limited operations

FMCSA is inviting comments by February 3 on a notice of proposed rulemaking that would allow states to waive the hazardous materials endorsement requirement for holders of Class A commercial driver's licenses who transport no more than 1,000 gallons of aviation grade jet fuel in support of seasonal agricultural operations. For the Federal Register notice, visit https://www.federalregister.gov/d/2024-28097.

Company denied exemption for limited interstate driving by younger drivers

FMCSA has rejected an exemption requested by 3 North LLC for a five-year exemption to enable three of its commercial driver’s license holders under the age of 21 with the requisite “K” restriction for intrastate-only operations to drive commercial motor vehicles in intrastate operations in a state other than their state of domicile.

The agency said it agrees with the American Association of Motor Vehicle Administrators that allowing drivers with a “K” restriction to operate in states other than their state of domicile could disrupt and confuse each state's use of the “K” restriction. Thus, drivers might be allowed to operate in environments for which they may not be qualified. “Accordingly, The Agency would need persuasive evidence that such operations would likely achieve an equivalent level of safety before interfering with the ‘K’ restriction.” FMCSA said a more appropriate path is the Safe Driver Apprenticeship Program (https://www.fmcsa.dot.gov/sdap). For the Federal Register notice, visit https://www.federalregister.gov/d/2024-28850.

Private fleet denied lighting exemption due to inactive DOT number

FMCSA has granted numerous exemptions to motor carriers allowing them to use the Intellistop pulse lighting system instead of steady-state real lighting, but the agency recently rejected such a request. Polytech Plastic Molding, Inc. had sought the exemption, but FMCSA denied it due to unavailability of carrier and safety data.

FMCSA noted that Polytech was issued a notice for “Failure to complete biennial update” on April 8, 2015, which deactivated its USDOT number. Therefore, any operations in interstate commerce after that data were illegal. The agency said it was unable to ascertain how many commercial motor vehicles operated by Polytech would have an Intellistop module installed and that it does not have any safety data to compare the performance of Polytech against industry averages.

The Polytech website states that it maintains a small fleet delivery vehicles to service a delivery area within the US and Canada, FMCSA said, noting that these deliveries must be occurring with delivery vehicles owned by Polytech that are not registered under a USDOT carrier number. Polytech, therefore, is either using delivery vehicles that are not subject to federal regulations because they do not meet the definition of a CMV or it is operating in violation of those regulation, FMCSA said. If it is the former, FMCSA does not have jurisdiction to grant an exemption, it said. If it is the latter, “nine years of illegal operations strongly suggests that Polytech is unlikely to comply with the terms and conditions of an exemption.” For the Federal Register notice, visit https://www.federalregister.gov/d/2024-28376.

Autonomous vehicle firms denied exemption concerning warning devices

FMCSA has rejected an exemption requested by Waymo LLC and Aurora Operations, Inc., for an exemption from several requirements related to warning devices for stopped CMVs. The exemption would have provided relief from the requirements that dictate placement of warning devices around stopped CMVs and that require that warning devices be steady-burning. Waymo and Aurora had proposed instead that CMVs operated by Level 4 automated driving systems (ADSs) be equipped with warning beacons mounted on the truck cab in lieu of traditional warning devices placed around a stopped autonomous CMV.

FMCSA said that while the application and supporting comments show promise for alternative warning devices to provide safety benefits under certain conditions, “the present application does not demonstrate how Applicants or other proposed exempted parties would ensure an equivalent or greater level of safety than would be achieved absent the exemption.” For the Federal Register notice, visit https://www.federalregister.gov/d/2024-30860.

FMCSA removes 15 devices from list of registered ELDs

In several actions announced since November, FMCSA has removed 15 devices from its list of registered electronic logging devices (ELDs) for failure to meet the minimum requirements established in 49 CFR part 395, subpart B, appendix A. The devices removed are:

• Keep Tracking;
• Rollingtrans ELD - ACCURATE ONE;
• RT ELD Plus - ACCURATE PLUS;
• COLUMBUS ELD (Model Number: C-US);
• MasterELD (Model Numbers: MELD02, MELD03, and MELD04);
• Mountain ELD;
• XELD;
• BLUE STAR ELD
• ROAD STAR SOLUTIONS
• United ELD
• Speed ELD
• TrackEnsure ELD (two devices)

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. For a list of registered and revoked ELDs, visit https://eld.fmcsa.dot.gov/List.

Legislation

Multiple trucking-related bills die at the end of the 118th Congress

In December, a number of bills related to motor carriers made it as far as being available for action by the House of Representatives before expiring at the end of the 118th Congress. Among the bills that expired were:

• H.R. 8505 – Expands the authority of the FMCSA administrator to assess penalties for violations of laws and regulations relating to the shipping of household goods, and for other purposes. The bill more broadly would have clarified FMCSA’s authority to enforce commercial regulations and would have required the agency to ensure that regulated entities have physical principal places of businesses before receiving authority. Sponsored by Del. Del Eleanor Holmes Norton (D-D.C.) See https://www.congress.gov/bill/118th-congress/house-bill/8505.
• H.R. 915 – Establishes a standard of care in carrier selection for brokers and other entities that contract with motor carriers for the shipment of goods. Sponsored by Rep. Mike Gallagher (R-Wisconsin). See https://www.congress.gov/bill/118th-congress/house-bill/915.
• H.R. 3013 – Provides statutory authority for waivers of training, testing, and other requirements for commercial driver's licenses that were issued by FMCSA to respond to the COVID-19 pandemic. Sponsored by Rep. Darin LaHood (R-Illinois). See https://www.congress.gov/bill/118th-congress/house-bill/3013.
• H.R. 2367 – Provides competitive grants for projects that provide public parking for commercial motor vehicles. Sponsored by Rep. Mike Bost (R-Illinois). See https://www.congress.gov/bill/118th-congress/house-bill/2367.
• H.R. 3318 – Allows commercial motor vehicles transporting dry bulk goods on the interstate highway system with up to 110% of the maximum allowed weight on any axle or axle group. Sponsored by Rep. Rick Crawford (R-Arkansas). See https://www.congress.gov/bill/118th-congress/house-bill/3318.
• H.R. 3365 – Directs the Department of Transportation to prioritize grants under certain programs for projects that improve or build resiliency in the supply chain, including multimodal projects. Sponsored by Rep. John Duarte (R-California). See https://www.congress.gov/bill/118th-congress/house-bill/3365.
• H.R. 2948 – Authorizes the operation of stinger-steered combination automobile transporters with gross weight of 88,000 lbs. or less on the Interstate System. Sponsored by Rep. Lance Gooden (R-Texas). See https://www.congress.gov/bill/118th-congress/house-bill/2948.

Courts

Supreme Court won’t review law allowing California to set emissions standards

The U.S. Supreme Court in December declined to review a federal appeals court ruling that upheld the authority of Congress to grant a waiver to California to establish its own vehicle emissions standards subject to certain conditions. The challenge had been lodged by 17 states that questioned whether Congress could pass a law allowing a single state to exercise sovereign power that the law denies to all other states.

Although the challenge by 17 states failed, the Supreme Court a few days earlier did agree to hear arguments in a separate case in which a group of fuel producers and associations representing fuel producers is fighting California’s regulation of greenhouse gas emissions and mandate for zero-emissions vehicles (ZEVs).

In the fuel producers case, the Supreme Court will not review the legality of EPA’s preemption waiver on its merits but instead will consider a narrower question. The high court will review a ruling by the U.S. Court of Appeals for the District of Columbia Circuit – the same court that ruled against the 17 states – that fuel producers’ claims were not redressable because they had not established that vacating the Environmental Protection Agency’s waiver would have any effect on automakers. The fuel producers argued that the D.C. Circuit’s standard was much too strict given the “coercive and predictable effects” of a regulation that was expressly designed to force the replacement of liquid fuels with electric power.

Advocacy and Comment

Now that the lame duck session is over and a new administration is beginning, it is time to review regulatory accomplishments over the past four years and establish a plan for future advocacy. The lame duck session resulted in a number of last-minute overtures and bills, none of which apparently gained traction. Our industry was left in chaos because of initiatives left uncompleted. Most of FMCSA’s attention has been devoted to peripheral issues. It has ignored the chronic and acute problems which have been thoroughly covered over the past year in this monthly update. FMCSA’s efforts have been directed to “listening sessions” and efforts to avoid decades-old congressional mandates for rulemaking. Comments on peripheral issues involving last-minute overtures need to be responded to for the record.

Need for safety fitness determination rules

The proliferation of new carriers in the spot market that resulted from removal of restrictions on routes, rates, and services decades ago is largely responsible for the red light/green light issue. The proliferation of nuclear judgments caused by FMCSA’s inability to issue safety ratings to carriers is the root cause. Yet in its settlement of a lawsuit that we brought in the D.C. Court of Appeals in 2010, the agency signed a settlement holding that carriers that had not been placed out of service or found to be unsatisfactory were fit to operate on the nation’s roadways. The settlement further obligated FMCSA to post a notice of that declaration.

This settlement was intended to make the agency’s determination the rule of the land, but the agency continued to stubbornly develop Compliance, Safety, Accountability (CSA)/ Safety Measurement System (SMS) methodology for profiling carriers. It still touts the use of roadside inspections and crash analysis as a productive tool. Yet, this has not been proven.

Use of roadside inspections and crash analysis has not passed muster under the FAST Act, a National Academy of Sciences review, or the Administrative Procedure Act. Its previous effort to pursue a rulemaking in 2016 was withdrawn by the new Trump administration in 2017. Yet the FMCSA has continued to pin hopes on a “reboot” of SMS but to no avail.

The numerous systematic flaws in using roadside inspections and DataQs are well documented. The agency’s own enforcement records suggest that the system as currently modified and used as a vetting tool for identifying carriers for audits has not reduced highway fatalities. In the last calendar year, FMCSA’s records show that 11,847 carriers were audited of which 1,974 (or only 16%) were rated as Conditional or Unsatisfactory. That is a lot of work with untold expense that does not yield a safety rating for all carriers, which Congress demands.

Fraud detection and prosecution

Existing regulations overseen by FMCSA are intended to require transactional accounting of both brokers and carriers which is necessary for identifying and criminally prosecuting fraud, embezzlement, misappropriation of funds, and other criminal activity enforceable by the federal government. FMCSA has steadfastly refused to accept responsibility for involvement in the criminal prosecution of fraud and has not responded to congressional overtures concerning criminal enforcement or established a working relationship to involve the Department of Justice, the FBI, and sister agencies in the prosecution of organized crime, which is a major problem all parties recognize.

In the past several years, the agency has peripherally addressed the problem of fraud in making changes to the bonding requirements and proposing a Registration Modernization program. It has attempted to use listening sessions, without rulemaking, and has failed to make any progress on regulatory reform involving fraud or responding to congressional inquiries. More recently, agency collateral action has had the effect of diverting attention from the real issues.

All constituents agree that only criminal prosecution of fraud and embezzlement with the assistance of FMCSA and with the full force and effect of the Department of Justice, the FBI, and sister agencies in criminal prosecution can accomplish the needed result. Obtaining that result should be a major goal of advocacy in the future. Given that the Department of Transportation, its Office of Inspector General, and FMCSA do not affirmatively endorse addressing the issue head on, broad grassroots action before Congress may be required.

State and federal law initiatives that affect the motor carrier industry

Several politically charged initiatives remain a serious problem for the trucking industry. The owner-operator model plays a key role in encouraging independent businesspeople consistent with the National Transportation Policy. Yet, with the infamous California AB 5 legislation and other similar state issues involving labor, environmental issues, and higher equipment costs, small business entrepreneurship is threatened by prohibitive cost factors.

Looking forward, there are hopeful signs that advocacy including the use of federal preemption to thwart conflicting state initiatives can be enforced. Preemption is the legal argument that federal laws take precedent over inconsistent state laws under the Commerce Clause where federal law and the need for uniformity apply. A plethora of pro-labor initiatives begun by the pro-union current Department of Labor may be reversed based upon the prior Trump administration’s commitment to the “economic realities test.” However, as noted in the report above, DOL under the second Trump administration might not look exactly like DOL under the first Trump administration, so it will be important to maintain awareness.

Goals for future advocacy

1. Proposed practical common-sense rulemaking. It is important that we oppose the increasing use of “listening sessions” without judicial and legislative due process. Typically, on issues of major transportation importance, records must be kept and findings must be made on all issues of material fact and law to win judicial approbation. A benefit analysis and other material facts and conclusions of law must be included and ruled upon and used as an affirmative defense against additional bureaucratic overreach.

2. Need for safety fitness determination. FMCSA’s safety enhancement program must not be confused with the requirements for rulemaking and mandate for a new safety fitness determination rule. In open listening sessions, the agency has seemingly admitted that getting enough roadside inspection and crash data to accurately rate the small and new carriers that up the vast majority of interstate motor carriers is going to be virtually impossible. The agency will have an uphill climb trying to overcome the systemic flaws with enforcement priorities and use of accident reports as pure hearsay. A common-sense alternative that can meet administrative due process and F4A approval should be advocated. The history of use of roadside inspections and the unresolved consequences from its continued use cannot be overlooked.

3. With respect to systemic fraud, the jury is still out on the efficacy and value of the new FMCSA Registration Modernization initiative in addressing fraud. The scope of the proposal does not address the need for criminal prosecution or the various types of fraud schemes, particularly with respect to the numerous frauds that are not traceable to a licensed, authorized, and regulated carrier or broker.

A conflict in the federal circuits over so-called F4A preemption and the Supreme Court’s failure to resolve the dispute puts greater pressure on finding a new rule that will eliminate up-supply chain liability for negligent carrier selection under state law. This unresolved issue should increase the support for reaffirmation of the settlement language and an effective new safety fitness rule that provides the red light/green light answer the industry needs.

A united appeal for definitive congressional action to address fraud with the full force and effect of multiple agency cooperation should be carefully nurtured. FMCSA has proven unwilling or unable to accept a role in prosecuting criminal fraud. Its “hotline” is not connected, and there is no indication in its recent report to Congress that the Department of Transportation is willing to assist the Department of Justice, the FBI, and fellow agencies in prosecuting criminal fraud.

Other issues

Readers are invited to propose additional advocacy issues for discussion and approval. One attractive idea is to consider the return of cargo insurance filings that were terminated during the Obama administration. A proposed new filing act could serve as certification of coverage co-extensive with the Carmack Amendment but subject to a per-occurrence limitation set forth in the certificate of insurance and offered without exclusions. If adopted, this proposal could give the shipping public assurance of coverage and eliminate the “don’t ask don’t tell” hidden loopholes in current policies.

Our advocacy steering committee will be considering presenting alternative proposals to combine the monitoring and certification of carriers and brokers for both safety and fraud compliance into one protocol. Utilizing existing manpower and vetting standards, this initiative would offer established common-sense answers which should win judicial approbation.

How to participate in advocacy

Readers interested in participating in advocacy may do so voluntarily on an ad hoc basis by joining ASECTT. Trade associations that wish to participate are welcome as well. To address the above agenda, we will need to coordinate grassroots support, help with funding and recruitment, and to provide affidavits of support to accompany findings in open dockets as the need arises. For information, please contact asectt@gmail.com.