Regulatory and Legislative Update - September 2024

Contents

Regulation and Enforcement

• House panel approves bill to address FMCSA’s commercial enforcement
• House panel advances bill granting carrier access to driver safety history

Regulation and Enforcement

• FMCSA once again seeks input on plan to revamp online registration
• FMCSA seeks input by September 26 on its periodic review of guidance documents
• Truck Leasing Task Force to meet in October and November
• FMCSA removes two devices from list of registered ELDs
• FMCSA denies ELD exemption to owner-operator
• Wisconsin carriers receive exemption for alternative securement of logs

Advocacy and Comment

Legislation

House panel approves bill to address FMCSA’s commercial enforcement

The House Transportation & Infrastructure Committee on September 18 approved legislation (H.R. 8505) that addresses FMCSA’s enforcement of the commercial regulations on motor carriers, brokers, and freight forwarders. All but two – Reps. Scott Perry (R-Pennsylvania) and Thomas Massie (R-Kentucky) – of the 64 members participating in the session voted for the measure. The next step for the bill, which was introduced in May by Del. Eleanor Holmes Norton (D-D.C.) and Rep. Mike Ezell (R-Mississippi), is consideration by the full House of Representatives.

Technically, the committee approved an amended version of the bill, but the only change appears to be a revised title for the legislation to read, “A bill to amend title 49, United States Code, to clarify the authority of the Administrator of the Federal Motor Carrier Safety Administration relating to the shipping of household goods, and for other purposes.’’ As introduced on May 22, the title read, “A bill to amend title 49, United States Code, to expand the authority of the Administrator of the Federal Motor Carrier Safety Administration to assess penalties for violations of laws and regulations relating to the shipping of household goods, and for other purposes.”

The change likely is intended to preserve the argument that FMCSA already has the necessary authority but that the bill simply clarifies that authority. In introducing the legislation earlier this year, Norton cited a Department of Transportation administrative law judge ruling in 2019 that FMCSA lacked authority to assess civil penalties for violations of commercial regulations and registration requirements. FMCSA has interpreted the ALJ ruling as requiring the Department of Justice to initiate any action in court. In a July report to Congress, FMCSA said it needed a change in law to give it clear authority to assess civil penalties administratively for unauthorized brokerage. (See Regulatory Update, July/August 2024.)

Some aspects of H.R. 8505 are specific to household goods enforcement, but the bill would explicitly provide that FMCSA has authority to assess civil penalties for violations of commercial regulations and registration requirements. H.R. 8505 also would give FMCSA explicit authority to withhold registration from any applicant that fails to provide a valid principal place of business or that fail to disclose common ownership with any other registered entities at the time of registration. For more information on H.R. 8505, visit https://www.congress.gov/bill/118th-congress/house-bill/8505.

House panel advances bill addressing carrier access to driver safety history

The House Transportation & Infrastructure Committee on September 18 narrowly approved amended legislation (H.R. 3356) that would give motor carriers access to driver safety performance information on current drivers and owner-operators and establish a process under the DataQs program for drivers to challenge information in their records.

As introduced in May by Rep. Garret Graves (R-Louisiana), the bill would provide motor carriers with the same access to crash and inspection history for existing drivers that they have for prospective drivers under the Pre-Employment Screening Program, or PSP. The bill as introduced included no language regarding driver challenges to that information.

The committee approved an amended version of H.R. 3356 that added language related to drivers’ ability to challenge their safety performance history under the DataQs program. First, the amended bill requires FMCSA to ensure that during any period in which a safety violation is being contested, the report on the violation is labeled in a way that indicates it is being contested in the Motor Carrier Management Information System and other relevant databases, including the Employment Screening Program, the Safety Measurement System, and Analysis and Information Online.

The other added provision would require FMCSA to adopt guidelines under which states receiving funds under the Motor Carrier Safety Assistance Program must adopt DataQs appeals processes that ensure drivers’ appeals are “adjudicated in a reasonable period of time by a person or persons other than the person that issued the violation.” As drafted, the two changes to the DataQs program relate only to driver safety performance history screening, but they could set the stage for DataQs reforms to be adopted more broadly.

Regulation and Enforcement

FMCSA once again seeks input on plan to revamp online registration

Citing an error in its initial estimate of the number of affected parties, FMCSA has again submitted a notice to the Office of Management and Budget (OMB) of its plans to replace the Unified Registration System with a new online registration system to be called the FMCSA Registration System (FRS). FRS would allow all parties required to register under the agency’s commercial or safety jurisdiction to do so online. Comments on FMCSA’s latest information collection request (ICR) to OMB are due September 27. For the Federal Register notice, visit https://www.federalregister.gov/d/2024-18946.

FMCSA submitted its first ICR regarding the new system in April. That first notice did not mention fraud, but the latest notice devotes considerable attention to the topic. “The current legacy registration system lacks the ability to validate identity before registration processing, which is leading to fraudulent registrations and theft,” FMCSA said. “As part of the new FRS, FMCSA plans to verify individuals’ identities by establishing a secure and reliable process that utilizes an identity-proofing solution.” The notice provides further details of some of the security measures that will be incorporated in the new FRS.

FMCSA also acknowledged comments filed in response to the April notice but said that they raise issues are not applicable to requesting OMB review and approval of the ICR and would be considered in other contexts as appropriate. The initial ICR notice and comments in response are available at https://www.regulations.gov/document/FMCSA-2024-0109-0001.

In a related action, FMCSA has scheduled a third “stakeholder day” on October 21 to provide and obtain comments from motor carriers, brokers, freight forwarders, insurance companies, financial institutions, process agents, blanket companies, and transportation service providers regarding their registration experience. The first session in January was in-person while the second one in May was virtual. The third meeting will be hybrid with the in-person option taking place at Department of Transportation headquarters in Washington. In-person attendance is limited to 100 while virtual attendance is limited to 500. FMCSA noted that in-person attendees would be able to conduct user testing on portions of the FRS. For more information, visit https://www.fmcsa.dot.gov/registration/fmcsa-registration-modernization-stakeholder-day-iii.

FMCSA seeks input by September 26 on its periodic review of guidance documents

As part of its congressionally mandated review of guidance documents, FMCSA is seeking comments by September 26 on existing guidance documents that are good candidates for revision or recission. The agency asked that parties indicated specific guidance and provide a reason for the recommended action.

The 2015 law known as the Fixing America's Surface Transportation (FAST) Act requires FMCSA to conduct a comprehensive of its guidance documents at least once every five years to determine whether they are consistent and clear, uniformly and consistently enforced, and still necessary. The agency conducted a similar review in early 2020 and essentially reissued all the guidance on its guidance portal (https://www.fmcsa.dot.gov/guidance) on March 3, 2020.

The original notice published in August (https://www.federalregister.gov/d/2024-17966) sought comments by September 12. A notice this month (https://www.federalregister.gov/d/2024-20596) extended the comment period until September 26. The Commercial Vehicle Safety Alliance had requested a 60-day extension on August 26. Although the agency granted only a two-week extension, it noted that public comments on guidance may be submitted at any time by sending an email to FMCSAguidance@dot.gov.

Truck Leasing Task Force to meet in October and November

FMCSA’s Truck Leasing Task Force has scheduled virtual meetings on October 30 and November 20 with the principal goal of drafting a report on the equitability of truck leasing agreements and best practices for drivers to use in assessing lease agreements. Both meetings also will include a comment period for drivers and lessees of commercial motor vehicles to share personal experiences with leases. For the Federal Register notice, visit https://www.federalregister.gov/d/2024-21106. For more information and a link to registration, visit https://www.fmcsa.dot.gov/tltf.

FMCSA removes two devices from list of registered ELDs

FMCSA has removed BLUE STAR ELD and RELIABLE ELD devices from the list of registered Electronic Logging Devices (ELD). FMCSA placed these ELDs on the Revoked Devices list due to the companies’ failure to meet the minimum requirements established in 49 CFR part 395, subpart B, appendix A. The removals are effective August 15, 2024.

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.

FMCSA denies ELD exemption to owner-operator

FMCSA rejected an application from owner-operator Arbert Ibraimi on behalf of GTLM Transport for a 12-month exemption from the electronic logging device requirement. In an application sent last October – days before FMCSA granted GTLM operating authority – Ibraimi sought the exemption on the grounds that as a new business he has limited funds to support the purchase of an ELD for his lone commercial motor vehicle. GTLM voluntarily suspended its operating authority in December about two months before FMCSA published a notice in the Federal Register requesting comment on Ibraimi’s request.

In denying the request, FMCSA said the carrier “did not propose safety countermeasures to compensate for the lower level of safety that paper logs entail. Economic difficulties, such as those that GTLM described, do not justify the granting of an exemption.” For the Federal Register notice, visit https://www.federalregister.gov/d/2024-20931.

Wisconsin carriers receive exemption for alternative securement of logs

FMCSA has granted an exemption to the Great Lakes Timber Professionals Association on behalf of motor carriers in Wisconsin to use cargo securement for shortwood logs using methods that do not comply with existing regulations. The alternative method will be used for logs transported lengthwise in crib-type vehicles that have been modified or manufactured without front structures, rear structures, or which have a center-mounted crane for loading and unloading. For the Federal Register notice, visit https://www.federalregister.gov/d/2024-20377.

Advocacy and Comment

As noted above, Comments are due on September 27 regarding the new FMCSA Registration System. Because of the nexus between the application and the Agency’s broader based anti-fraud proposal, comments will be filed emphasizing that rulemaking is required as a matter of law to fully address the issues involved.

The Agency has now tabled the issue for further discussion in a listening session to be held on October 21, 2024. Limited space and participation by remote attendance are available so interested parties should immediately register. At this juncture, the Agency has failed to address questions and offer any consideration of the petition for formal vetting of broker qualifications as a prerequisite for a grant. Comments will be submitted by advocates for filing on the 27th and participation by interested parties in the October 21 session is encouraged.