FMCSA Releases ANPRM on Safety Fitness Determination Revisions.  The Federal Motor Carrier Safety Administration has released an Advance Notice of Proposed Rulemaking seeking input on a possible proposal to revise the agency’s Safety Fitness Determination process for motor carriers.

The notice indicates that FMCSA is interested in developing a new methodology to determine when a motor carrier is not fit to operate commercial motor vehicles in or affecting interstate commerce.  FMCSA requests public comment on: (1) the need for a rulemaking to revise the regulations prescribing the safety fitness determination process; (2) the available science or technical information to analyze regulatory alternatives for determining the safety fitness of motor carriers; (3) feedback on the agency’s current safety fitness determination  regulations, including the process and impacts; (4) the available data and costs for regulatory alternatives reasonably likely to be considered as part of this rulemaking; and (5) responses to specific questions in the ANPRM.

Comments on the ANPRM will be due 60 days after it is published in the Federal Register, which should occur in the next week.

FMCSA has authority to revoke the operating authority registration of any for-hire motor carrier that has been prohibited from operating as the result of a final unfit SFD, and authority to take similar action to revoke or suspend a private or for-hire motor carrier’s safety registration on the same grounds.

A carrier’s Safety Measurement System (SMS) scores are not currently used to generate safety fitness ratings; instead, the SMS scores are used by FMCSA to prioritize carriers for enforcement interventions.  In 2016, FMCSA proposed to use a carrier’s absolute SMS (but not its percentile ranking among similarly sized carriers) to generate “unfit” determinations.  That proposed rule would have eliminated the three-tier scheme of satisfactory, conditional and unsatisfactory ratings.

That proposed rule was not adopted, however.  In the FAST Act, Congress prohibited FMCSA from using information regarding the SMS percentiles and alerts for SFDs until the DOT’s Office of the Inspector General makes five certifications required by the Act. The OIG has not issued the five certifications, and this statutory limitation therefore currently prevents FMCSA from using SMS percentiles or alerts for SFDs.

The ANPRM seeks input regarding new methodologies to determine when a motor carrier is not fit to operate CMVs.  FMCSA suggests such a methodology might target metrics most directly connected to safety outcomes, accurately identify unsafe motor carriers, and provide incentives for adopting safety-improving practices.

FMCSA asks whether it should retain the three-tier scheme of satisfactory, conditional and unsatisfactory ratings.  The agency also questions whether it should include additional hazardous materials regulatory requirements in the SFD calculation, whether it should include all inspection-based data in the SFD process, and whether and how to consider additional driver behavior data in the rating process.

Further, FMCSA asks if it should make any changes, additions, or deletions from the current list of critical and acute violations in the rating system, and whether a motor carrier’s adoption and use of safety technologies should factor into the carrier’s rating.  It also asks whether the methodology should give more weight to unsafe driving violations such as speeding and texting while driving.

Finally, the FMCSA seeks comments on whether it should revise the procedure for administrative review of a carrier’s proposed rating, and how the carrier’s corrective actions should figure into this analysis.

PHMSA Safety Advisory Notice -Cylinders Requalified by BJ MedQuip Repair Service, Inc. – PHMSA is issued this safety advisory to notify the public that BJ MedQuip Repair Services, Inc., located at 6495 S. Highway 48, Mannford, OK 74044, marked specification cylinders as authorized for hazardous materials transportation without properly requalifying the cylinders. More than 10,000 cylinders are affected. These cylinders have been significantly over-pressurized, potentially compromising the structural integrity of the cylinders and rendering them unauthorized for filling with hazardous materials. CGA recommends all members review a copy of this notice to determine its applicability to them. Read more by clicking here.

FMCSA Invites Waiver Petitions on Meal and Rest Break Preemption for Drivers.  The Federal Motor Carrier Safety Administration has issued a notice that the agency will consider petitions for waiver of its December 21, 2018, decision preempting the State of California’s Meal and Rest Break (MRB) rules for certain drivers of property-carrying commercial motor vehicles and its November 17, 2020, decision preempting the State of Washington’s MRB rules for certain drivers of property-carrying CMVs.

Under federal law, a waiver may be granted by the FMCSA if the petitioner demonstrates to the satisfaction of the Administrator that the waiver is consistent with the public interest and the safe operation of commercial motor vehicles.  FMCSA would not have to determine that its preemption deuteriations were issued in error in order to grant a waiver.

This is clear signal to the state labor commissioners in California and Washington that FMCSA would look favorably upon petitions for a waiver of the MRB preemption determinations made in the Trump Administration.  A waiver would allow those States to apply their state meal and rest break laws to CMV drivers operating in interstate commerce in addition to the FMCSA’s driver hours of service regulations.

But any FMCSA waiver(s) would not apply to hazardous materials carriers—at least not at first.  The Pipeline and Hazardous Materials Safety Administraiton separately preempted the application of California’s MRB rules as applied to CMVs transporting hazardous materials.  On February 21, 2020, PHMSA dismissed a petition for reconsideration of its preemption determination under the federal Hazardous Materials Transportation Act.  The petition was dismissed as moot because the FMCSA’s preemption determination applied to all drivers of property-carrying CMVs.

But if FMCSA reverses its decision on preemption, it opens the door for PHMSA to do so as well for hazmat drivers. 49 USC 5125(e) allows DOT to grant a waiver of any preemption determination to a state if PHMSA finds the waiver:

(1) provides the public at least as much protection as do requirements of this chapter and regulations prescribed under this chapter; and

(2) is not an unreasonable burden on commerce.

GAWDA will keep you apprised as petitions are filed and this issue develops.

Lawsuit Challenges PHMSA Authority to Impose Civil Fines.  A lawsuit brought by a DOT-approved testing facility is challenging the authority of the Pipeline and Hazardous Materials Safety Administration to impose civil penalties for alleged violations of the Hazardous Materials Regulations.

The suit was brought by gh Package Product Testing and Consulting, assisted by the New Civil Liberties Alliance, in federal court in Cincinnati, Ohio.  According to the complaint, on November 10, 2022, PHMSA brought an administrative enforcement proceeding to assess a $24,612 civil penalty against the testing company for submitting certain test reports that the agency alleges were inaccurate in some respects and that violated DOT regulations.

First, gh Testing asserts that the PHMSA citation misapplies the relevant statute because the agency did not allege that the plaintiff knew or should have known about the alleged inaccuracies, even though the statute authorizes the assessment of a civil penalty only against a person who “knowingly violates” a regulation.

Moreover, gh Testing asserts that the PHMSA adjudication process violates the Article Appointments Clause of the U.S. Constitution.  It argues that both the Administrative Law Judge who will decide the proceeding, and the PHMSA Chief Safety Officer who would hear any appeal within the agency, are not subject to removal by the President and were never lawfully appointed by the President or a department head.

Additionally, the plaintiff argues PHMSA’s administrative proceedings lack any provision for trial by jury on questions of fact that can lead to punitive sanctions and therefore violate the Seventh Amendment’s guarantee of the right to a jury trial for any enforcement action seeking a civil penalty.

Finally, gh Testing claims the PHMSA administrative proceedings are fundamentally unfair because agency officials simultaneously act as both prosecutor and judge.  For example, the current Chief Safety Office of PHMSA has heard 18 appeals of hazardous materials regulatory violations and has affirmed the agency’s decision in all 18 cases.  Thus, it argues the proceedings violate the Due Process Clause of the Fifth Amendment.

The plaintiff has filed a motion for a preliminary injunction in the court case; the administrative proceeding at PHMSA is in the discovery phase.

If the lawsuit is successful, it would require PHMSA and other federal agencies to revise their administrative enforcement proceedings and re-appoint their Administrative Law Judges in accordance with the constitution and statutory law.

CVSA Finds Hazmat Violations in 30% of Shipments Inspected in Five-Day Blitz.  The Commercial Vehicle Safety Alliance’s annual five-day unannounced Hazardous Materials/Dangerous Goods inspection and enforcement initiative was held June 12-16 in Canada and the U.S.

Thirty-seven jurisdictions participated and a total of 8,395 packages in 7,572 vehicles were inspected.  Inspectors discovered 2,578 HM/DG violations, of which 701 were HM/DG out-of-service violations.

In the U.S., the most common violations found involved shipping papers, followed by violations related to non-bulk packaging and bulk packaging.  Placarding, labeling, marking, loading and securement also generated a significant number of violations.

Labor Department Issues Proposal to Raise Overtime Threshold for Executive, Administrative and Professional Employees.  The U.S. Department of Labor’s Wage and Hour Division has released a proposed rulemaking to increase the threshold salary level for exemption from overtime requirements for Executive, Administrative, Professional, Outside Sales and Computer employees.  The overtime threshold would increase from the current to $684 per week, or $35,568 per year, to $1,059 per week, or $55,068 per year.

Anyone in those employment categories making less than the threshold amount must be paid overtime of at least time and a half for all hours worked over 40 hours per week.  In addition, DOL proposes to raise the Highly Compensated Employee threshold to $143,988 per year.  Any employee making more than that threshold is presumed to be exempt from overtime without an analysis of their actual job requirements.

In addition, the NPRM would revise the overtime salary threshold every three years to reflect current earnings data.

The DOL claims the rule, if implemented, would increase the number of workers eligible for overtime pay by 3.6 million.

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