SBTC President Emails SBTC's Lobbyist, Suggesting FMCSA's Pattern of 'Illegal' Actions Involving UCR Program are Jeopardizing Public Safety and should be reviewed by Congress, Copies FMCSA Officials...
From: "James Lamb" <james@truckers.com>
Date: Wed, Dec 12, 2018 8:24 am
To: "Laurence Socci" <laurence.socci@influence-strategies.com>, "Minor, Larry (FMCSA)" <larry.minor@dot.gov>, "charles.fromm@dot.gov" <charles.fromm@dot.gov>
Cc: "jboppjr@aol.com" <jboppjr@aol.com>, "cyoungs@bopplaw.com" <cyoungs@bopplaw.com>, "anarog@bopplaw.com" <anarog@bopplaw.com>, "Avelino.Gutierrez@state.nm.us" <Avelino.Gutierrez@state.nm.us>
Subject: FMCSA is endangering the safety of the public by causing the delay of the 2019 UCR program
Laurence,
When this meeting that you have been requesting since November 19th among you and FMCSA officials finally takes place, please discuss with them how we are concerned that the current FMCSA rulemaking to amend the previously promulgated 2019 Unified Carrier Registration fees transcends the scope of the agency's lawful statutory authority in that Federal Law required the Secretary of Transportation or her designee agency to promulgate a new fee rule
within 90 days of receiving the UCR Board of Directors's ("UCR Board") fee recommendations.
For the second year-in-a-row, the FMCSA commenced public notice and comment rulemaking after that 90 day window expired, making the current rulemaking unlawful and futile. An unlawfully promulgated final rule can be legally challenged by the Small Business in Transportation Coalition ("SBTC").
Furthermore, the UCR Board unlawfully changed the annual October 1st UCR renewal period open date for 2019 UCR in September because of this pending FMCSA rulemaking. This is the second year they have done this because of late unlawful FMCSA rulemaking. I understand this matter is currently under review by a Federal Judge in reference to our lawsuit against the UCR Board's
Sunshine Act
violations, which was commenced in September 2017 and remains pending.
The
UCR Agreement
calls for existing motor carriers to comply with 2019 UCR no later than December 31, 2018, which cannot lawfully be suspended or waived by the UCR Board. Recent attempts to modify the UCR Agreement by the UCR Board did not follow the procedure required under the
UCR Act
and are therefore unlawful according to our legal team, copied here.
The current delay is once again causing widespread industry confusion, chaos and panic as of December 2018 that may ultimately result in carriers failing to comply with the 2019 UCR filing requirement and being unjustly penalized because FMCSA and the UCR Board are preventing them from complying in accordance with the lawful 90 day compliance schedule (Fourth Quarter of every year) due to this ongoing late and unlawful FMCSA rulemaking.
Last year when this happened, despite assurances from the UCR Board that there would be a moratorium on January 1st for 2018 UCR enforcement until April, carriers began immediately receiving tickets on January 1st before the program even formally opened on January 5th. We brought this to the attention of the UCR Board Chairman, copied here. That is, for two years now, the UCR Board has indicated it will "recommend" --but admits it cannot compel-- states to afford the normal 90 days to comply from the eventual open date before engaging in UCR enforcement. We expect January 1st enforcement will happen again on January 1, 2019.
Disturbingly, there are state statutes which call for criminal and/or civil penalties for failure to comply with UCR in the various states and the states and law enforcement officers are free to ignore the "recommendation" of the UCR Board and unreasonably enforce a program on January 1, 2019 that once again may not have even opened yet as of January 1, 2019 due to this pending late and unlawful rulemaking.
We note this is not the first time there has been a delay as the original 2007 UCR program was delayed by FMCSA and the adverse impact on the participating states was thereafter reviewed by the U.S. Office of Governmental Accountability:
2010 UCR was also delayed nearly 8 months due to last minute FMCSA fee rulemaking in September of 2009, which then raised the fee carriers pay.
Frankly, there is some question as to whether FMCSA has
ever
lawfully promulgated the UCR fees in accordance with the statutory 90 day window.
While we appreciate FMCSA's interest in
lowering
the previously promulgated 2019 UCR fees that is currently codified in 49 CFR, this unreasonable delay places motor carriers in an uncertain, precarious position. They are trying to comply since October 1st 2018 to avoid enforcement but their payments are being rejected by the UCR Board's new UCR.gov website and the states at the UCR Board's direction.
The FMCSA's unreasonable delay is also adversely affecting the 41 participating states' cash flow in terms of their receiving much-needed funds to support motor carrier safety initiatives and highway enforcement, thereby jeopardizing public safety, contrary to the agency's very mission, which is clearly not in the public interest.
This unreasonable delay is futile because the rulemaking is unlawful and violates the Congressional directive stated in the "National Transportation Policy" codified at 49 U.S. Code § 13101 to "promote safe, adequate, economical, and efficient transportation" in that it is delaying the collection of fees used by the states to protect the public and SBTC-member carriers and drivers from unsafe and illegal motor carrier operations. You may wish to take this up with the Congressional oversight committees since lives are at stake.
This illegal and unreasonable delay may also cause truck drivers to refuse to drive in interstate commerce starting on January 1, 2019 because they cannot comply with 2019 UCR to avoid administrative notices of violation that carry civil penalties, civil fines, and/or arrest by law enforcement, thereby adversely affecting interstate commerce.
The FMCSA's UCR
Sunshine Act
notice indicates the last UCR Board meeting of the year is tomorrow. This is the last chance for the program to open before rogue law enforcement officers once again begin enforcement in spite of the UCR Board "recommended" moratorium on enforcement.
In other words, Laurence, the FMCSA has caused a real mess.
Again.
Congress should be as concerned about this as we are.
-James
