SBTC Files Petition with FMCSA for Preemption of UCR Board’s Un-promulgated Accessorial Fees; Asks USDOT OIG to Investigate 12 Year Period.
|
|
April 27, 2019
The Honorable Raymond Martinez, Administrator
Federal Motor Carrier Safety Administration
1200 New Jersey Avenue, S.E.
Washington, DC 20590
Re: Petition for Preemption of UCR Board’s Un-promulgated Accessorial Fees
Dear Mr. Martinez:
This is a petition to the Federal Motor Carrier Safety Administration (FMCSA) to preempt the Unified Carrier Registration (UCR) Plan Board of Directors’ (the Board)
[1]
practice of imposing credit card and e-check surcharges on the motor carrier industry.
By way of background, the Small Business in Transportation Coalition (SBTC) is a network of over 15,000 transportation professionals, associations, and industry suppliers that is on the front lines when it comes to issues that affect transportation professionals operating small businesses. We seek to promote and protect the interests of small businesses in the transportation industry. SBTC encourages ethical business practices and support teamwork, cooperation, transparency, and partnerships among truckers, carriers, brokers, and shippers who seek to do business with the utmost integrity. We operate through the domains
www.truckers.com
and
www.smalltransportation.org
.
As you know, under the Unified Carrier Registration Act of 2005 (UCR Act)
[2]
and the Government in the Sunshine Act
[3]
, the FMCSA is responsible to publish Federal Register notices of the Board’s meetings in advance
[4]
and under the UCR Act, to
1775 I. (Eye) Street, NW, Suite 1150, Washington, DC 20006
The Honorable Raymond Martinez, Administrator
April 27, 2019
Page 2 of 3.
engage in fee-setting through public notice and comment rulemaking and promulgate fees within 90 days of receiving the fee recommendations from the Board (note: despite the FMCSA’s position during recent 2018 UCR fee rulemaking, which re-set 2019 UCR fees
[5]
, the court had already found on October 18, 2017 an obligation on the part of the FMCSA to act within the 90 day window prescribed by Congress;
[6]
we ask FMCSA to please note here that the SBTC reserves the right to challenge future UCR fee rulemaking that continues to ignore this Congressionally-directed 90 day window as the agency has now violated this mandate three times over the past decade causing industry confusion, chaos and delay in the states receiving monies for motor carrier safety enforcement programs).
For more than a decade, it’s been the practice of the UCR Board to, we believe, unlawfully impose through its technical platform agents (first, the Indiana Department of Revenue (INDOR) and more recently, Seiko Soft) certain UCR-related fees upon the motor carrier industry above and beyond the fees promulgated by FMCSA, which the Board has, in the past, called “
instant access fees
” and “
usage fees.
” Clearly, these fees represent attempts to cover the Board’s administrative costs by passing these costs on the industry in order to use the Board contractor’s website to pay UCR fees online using credit cards or e-checks. It is --and has been-- the position of the SBTC that the UCR Act does not allow for the collection of such fees beyond the fees duly promulgated by the FMCSA and so these additional motor carrier fees are unlawful.
During its latest March 28, 2019 meeting, the Board acknowledged it continues this practice despite the SBTC’s legal challenge in Indiana state court
[7]
, through which, the SBTC has challenged the legality of INDOR’s ability to collect all UCR-related fees from the UCR program’s onset in 2007 until October 1, 2018, including, but not limited to, credit card surcharge fees; that is, over a decade. That matter remains pending appeal. During that meeting, Board members engaged in a discussion whereby it was revealed that currently, the Board covers some credit card processing costs imposed on the Board by their credit card processor… yet passes other costs on to the industry. We believe there is absolutely no legal basis to impose any processing costs on to the industry.
We are therefore petitioning FMCSA to request you issue a preemption order that directs the Board to cease and desist from imposing upon the industry any and all fees above and beyond the promulgated UCR fees. It is the SBTC’s position that the cost of collecting UCR fees is a cost that is required under the UCR Act and the UCR Agreement to be borne by the Board, and/or the 41 states that participate in this
The Honorable Raymond Martinez, Administrator
April 27, 2019
Page 3 of 3.
interstate agreement, not the industry. We contend that imposition of additional fees upon the industry is illegal and constitutes improper, “hidden fees” that are unauthorized by the FMCSA.
It is therefore within FMCSA’s authority under the UCR Act to direct the Board to stop engaging in this practice and pay for administrative costs out of its budget rather than continue to pass these extra costs on to the industry. We hereby request that you please order them to stop.
We contend that while, the Board has the right to request a fee structure through the process outlined in the UCR Act, a structure that accounts for its reasonable administrative costs, to FMCSA, which, in turn, is thereafter obligated to open the matter to public notice and comment rulemaking, it does not have the right to mislead the FMCSA, the industry, or the public as to its true operating cost needs, or impose additional hidden costs on to industry without due process by circumventing the public notice and comment process required by the Administrative Procedure Act
[8]
. In the interest of transparency, we therefore ask that you please act to stop this unlawful practice through your authority to pre-empt the actions of the states under the Supremacy Clause, Article VI of the U.S. Constitution.
Lastly, by copy of this letter, we hereby request the United States Department of Transportation (USDOT) Office of the Inspector General (OIG) please investigate what we believe has been the unlawful collection of un-promulgated fees for 12 years by color of law under the guise of FMCSA authority.
Thank you.
Sincerely,
/s/ JAMES LAMB, president
Small Business in Transportation Coalition
cc: USDOT OIG
The Bopp Law Firm
Mr. Laurence Socci
UCR Board of Directors
[1]
The UCR Plan is a Congressionally-chartered, non-profit organization that manages an interstate agreement among 41 states.
[2]
UCR Act - 49 United States Code (USC) section 14504a.
[3]
Pub.L. 94–409, 90 Stat. 1241, enacted September 13, 1976, 5 U.S.C. § 552b
[4]
The Board is also under the Federal Court’s injunction in the matter of
[8]
Generally, 5 U.S. Code CHAPTER 5.
|
|
#
Small Business in Transportation Coalition
1775 I. (Eye) Street, NW, Suite 1150
Washington, DC, US 20006
|
|
|
|
|
|
|
