The White House Office of Management and Budget is reviewing a draft final Department of Labor (DOL) rule that would revise how the Wage and Hour Division (WHD) analyzes worker classification under the Fair Labor Standards Act (FSLA). Although the notice of proposed rulemaking (NPRM) published in October 2022 did not address issues specific to trucking, it did state that a “high incidence of misclassification of employees as independent contractors has been documented in agriculture, construction, trucking, housecleaning, in-home care, stagecraft, and ‘sharing economy’ companies.”
The NPRM would overturn a final DOT published in January 2021 in the final days of the Trump administration that generally made it easier for employers to classify workers as independent contractors than had been the case under prior guidance and court precedent. The NPRM states that its objective is to return to prior interpretations of the “economic reality test,” which addresses such factors as the opportunity for profit or loss; investments by the worker and employer; permanence of the working relationship; the nature and degree of employer control; the extent to which the work performed is integral to the employer’s business; and the worker’s use of skill and initiative.
For the NPRM and comments submitted, visit https://www.regulations.gov/docket/WHD-2022-0003.
FMCSA issued a final rule revising the emergency exemption rules to narrow the scope of safety regulations from which relief is automatically provided to motor carriers and drivers providing direct assistance during a declared emergency. The rule will allow automatic relief of hours-of-service (HOS) regulations during an emergency, but it eliminates automatic relief from other regulations, such as medical certification of drivers, vehicle inspection requirements, parts and accessories, and transportation of hazardous materials.
In addition to narrowing the scope of relief, the final rule reduces the duration. Automatic regulatory relief generally will be available only for 14 days as opposed to 30 days currently. One exception will be presidential declarations of a federal emergency, which will still be 30 days.
Another notable change is a clarification of the nature of emergencies that will trigger automatic relief. FMCSA has changed the definition of “emergency” to clarity that emergency regulatory relief generally does not apply to economic conditions that are caused by market forces, including shortages of raw materials or supplies, labor strikes, driver shortages, inflation, or fluctuations in freight shipments or brokerage rates “unless such conditions or events cause an immediate threat to human life and results in a declaration of an emergency.”
The final rule is effective December 12. Petitions for reconsideration are due November 13. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-22538.
For the first time in a year, the Department of Transportation in September published a report on significant rulemakings planned for its modal agencies, including FMCSA. The DOT report is available at https://www.transportation.gov/regulations/report-on-significant-rulemakings.
Some summaries of significant items in the DOT report state that the next action the next action is undetermined and provide no date for further action. The following are proceedings on which FMCSA has a planned next step and a target date for further action:
Regarding the ongoing proceeding regarding safety fitness procedures, FMCSA noted that the comment period on the ANPRM ends October 30, but the DOT report does not specify a target date for the final rule.
The significant rulemakings report also includes one FMCSA proceeding that DOT said it did not expect to be significant but that was being included to correct the projected schedule published in the department’s spring 2023 unified agenda. In that document, the agency said that an NPRM on transparency in property carrier broker transactions was planned for June 2023. In the DOT significant rulemakings report, DOT set a target date of October 31, 2024.
Interested parties still have time to respond to two recent FMSA notices that could lead to significant changes in how motor carriers are rated by or interact with the agency on compliance issues. Comments are due October 30 on an advance notice of proposed rulemaking (ANPRM) seeking comment on the need for rulemaking to revise safety fitness determination regulations (SFD) regulations and seeks available science or technical information to analyze regulatory alternatives for determining SFDs. The ANPRM resurrects an effort begun by the Obama administration in 2016 that ultimately was withdrawn by the Trump administration in 2017. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-18494.
Separately, comments are due November 13 on an FMCSA notice proposing development and implementation of a federal appeals process for requests for data review (RDRs) submitted to the agency through its DataQs system. The proposed review process would provide an opportunity to have requests reviewed by FMCSA after the request has been reviewed and denied after reconsideration by the state agency. The FMCSA review would be deemed final. FMCSA said it generally would not accept requests involving mere factual disputes. For the Federal Register notice, visit https://www.federalregister.gov/d/2023-19904.
In addition to the Federal Register notices, details of the two proceedings are available in the September 2023 Regulatory Update.
FMCSA informed entities that obtain extracts of the agency’s Motor Carrier Management Information Systems (MCMIS) data that it is making changes to the data elements that will be available to the public. FMCSA said it recently included a review of its information dissemination and concluded that it needed to redact certain fields due to Freedom of Information Act exclusions.
Publicly available census extracts for for-hire carriers previously included the names of company representatives and e-mail addresses for carriers. Those data elements will not be included in the public version of the census going forward, although the carrier address and telephone number will still be available.
FMCSA’s Truck Leasing Task Force is meeting October 17 to examine common truck leasing agreements available to drivers and the existence of inequitable leasing agreements in the industry. In addition to that discussion, the task force is scheduled to hear from the Department of Labor concerning consumer risks posed by truck lease purchase agreements. For more information, visit https://www.fmcsa.dot.gov/tltf.
FMCSA’s Women of Trucking Advisory Board is scheduled to meet October 26 to consider ways various industry stakeholders may coordinate functions to facilitate support for women pursuing careers in trucking. The meeting is open to the public, but registration is required by October 21. For more information, visit https://www.fmcsa.dot.gov/wotab.
This month’s update is overwhelming. The DOT’s tentative schedule of significant rulemakings reflects an agenda of significant future issues which demonstrate the need for continuing participation by constituent stakeholders interested in safe, effective, and competitive truck transportation, together with accountability and transparency.
As noted above, the comment periods are still open. Comments on the proposed reboot of SMS are due October 30 and the DataQ proposal comments are due November 13. Both proceedings are attempts to reboot SMS methodology using newer technology to provide more roadside data . Omitted from the ANPRM Notice for SMS reboot is any reference to the systemic flaws which led to the rejection of CSA 2010, findings in the FAST Act, the subsequent findings by the National Academies of Science, the refusal of DOT to certify the methodology and the Agency's ineffective use of the methodology since 2016 in profiling carriers for objective audits under existing safety fitness rules. In presenting the reboot as part a proposed new rule, its aim is clearly revolutionary in scope in failing to address at the outset the systemic problems with the use of roadside inspections.
With respect to the DataQ docket, the Agency continues to insist that the "Preventability" artificial construct is not tied to a finding of carrier fault or negligence. Rolling this concept into a new safety fitness rule raises due process concerns and no necessary nexus to carriers’ actions in requiring or approving of the driver’s elective actions. Both of these safety related dockets deserve comments.
As noted above, OMB is considering a new Department of Labor rule affecting the independent contractor status. Close monitoring will be required given the Department’s other initiatives during the tenure of the current Administration. In this context, advocates of the owner operator model should pay attention to the Truck Leasing Task Force and the expression of DOL’s concern about the risk of truck lease purchase agreements. Readers interested in this issue can track the action of this task force through the site provided above or by contacting your sponsor of this update.
Supply chain fraud is the number one topic being discussed by all constituents involved in interstate trucking. Identity theft, bait and switch scams, and fraudulent reconsignments are all exacerbated by the absence of accurate, accountable, and transparent data. Only the FMCSA has the job of vetting regulated carriers, brokers, and forwarders and can provide needed public access to certified public data required by the industry to vet carriers, brokers, and forwarders. Needed public information includes not only name, principal place of business, an accurate list of agents and insurance, but also crucial is a telephone number and email address.
While the Agency is taking steps to address the misuse of ghost addresses and fraudulent representations made under oath in the application process by fraudsters, as referenced above the Agency has made the unilateral decision to no longer provide email addresses for carriers. This issue needs to be readdressed. Clearly, the Agency has not provided adequate notice of this nor does it apparently understand that in the spot market carriers and brokers must be vetted and binding written contracts must be executed in a matter of hours. Only with care and verification, and use of a contracted party's official email address, can a binding contract be executed, delivery receipts be copied and forwarded, load confirmation sheets be executed and proofs of delivery be timely provided.
Doctors, lawyers, accountants, real estate brokers, and even truck drivers must be vetted and pass a test administered by a regulated state or federal body in order to receive a license to operate. It certainly follows that it is reasonable for a trucking company, regardless of its size or state of incorporation, to be vetted by the FMCSA during the pendency of its application and to receive a passing grade on a standard proficiency test before receiving its license to operate. That proficiency test is already in use, has been endorsed by the Agency, and if conducted on a timely basis, could be implemented to not only vet carriers for safety compliance but also to vet compliance with rules of commerce and other anti-fraud initiatives as may be approved. This alternative, unlike previous NPRMs (1) could be objectively applied to all carriers; (2) could be used to affirm that all carriers have been tested and found to be in compliance; (3) the desktop audit could be conducted for a reasonable price; and (4) could be the basis for an actual safety fitness determination and necessary vetting of carriers to identify fraudulent operations.