October 6, 2017
Dear UCR Contact:
Please be advised that the Small Business in Transportation Coalition ("SBTC") has filed this complaint...
...in Federal Court, alleging the UCR Board of Directors has violated the Federal Sunshine Act (open meetings law), by holding an unnoticed, unlawful September 14, 2017 board meeting. As a result, the Board's action taken during that illegal meeting to postpone the UCR open date to November 1, 2017 to allow time for FMCSA rulemaking, and shorten the compliance period from 90 to 60 days, is also illegal.
SBTC has requested an emergency temporary restraining order and preliminary injunction against the UCR Board and INDOR and an order directing the Board and INDOR to immediately open the UCR filing period pursuant to the fee schedule promulgated by FMCSA in 2010.
A hearing on this matter has been scheduled for October 11th, 2017.
SBTC has also filed the comment below in response to FMCSA's recent NPRM on 2018/2019 UCR fees, which, in part, seeks to adjust 2018 UCR fees at the 11th hour, also in violation of Federal law.
We ask that you please be guided accordingly.
--SBTC
Re: ID: FMCSA-2017-0118-0001; Fees for the Unified Carrier Registration Plan and Agreement
The Small Business in Transportation Coalition (SBTC) is a network of transportation professionals, associations, and industry suppliers that is on the front lines when it comes to issues that affect transportation professionals in small business. We seek to promote and protect the interests of small businesses in the transportation industry. We support teamwork, cooperation, transparency, and partnerships among truckers, carriers, brokers, and shippers and seek to promote ethical business practices and do business with the utmost integrity. SBTC is a Florida non-profit corporation with IRS 501(c)(6) exempt status. SBTC has more than 8,000 dues-paying members.
On behalf of industry, this is to advise FMCSA that this is an unlawful rulemaking.
The NPRM states:
"VI. Background
On March 14, 2017, the UCR Board voted unanimously to submit a recommendation to the Secretary for a reduction of registration fees collected by the Plan for 2018, with a subsequent upward adjustment in 2019. The recommendation was submitted to the Secretary on March 22, 2017, and a copy has been placed in the docket.[1] The requested fee adjustments are required by 49 U.S.C. 14504a because, for the registration year 2016, the total revenues collected have exceeded for the first time the total revenue entitlements of $107.78 million distributed to the 41 participating States plus the $5 million established for "the administrative costs associated with the unified carrier registration plan and agreement." 49 U.S.C. 14504a((d)(7)(A)(i)). The maximum revenue entitlements for each of the 41 participating States, totaling $107.78 million and established in accordance with 49 U.S.C. 14504a(g), are set out in the table attached to the March 22, 2017 recommendation."
Under 49 U.S. Code § 14504a, the Unified Carrier Registration System Plan, and UCR Agreement, specifically subsection (d)(7), the Secretary, or here the FMCSA to whom the Secretary delegated her authority to set UCR fees, see 82 Fed Reg at 44144, has 90 days to act to set the fees after receiving the board’s recommendation.
(B)Setting fees.-The Secretary shall set the initial annual fees for the next agreement year and any subsequent adjustment of those fees-
(i)within 90 days after receiving the board's recommendation under subparagraph (A); and
(ii)after notice and opportunity for public comment
The UCR Plan Board appears to have acted well in advance of the October 1st UCR renewal period open date that appears in the UCR Agreement (https://www.ucr.in.gov/MCS/UCRAgreement.pdf “Renewal period” means, with respect to a registration year, the period of October 1 through December 31 of the immediately preceding year “) to avoid chaos at the 11th hour, through a vote on March 14, 2017 during a duly noticed board meeting and thereafter filed its recommendation with FMCSA on March 22, 2017. However, FMCSA did not set the fees within 90 days of the UCR Plan Board’s recommendation and missed its lawful opportunity to do so.
In addition, this unlawful rulemaking has apparently triggered the UCR Plan Board’s decision to change the Open Date of the Renewal Period from October 1, 2017, to November 1, 2017, during an unlawfully held (improperly noticed) secret meeting of the UCR Plan Board on September 14th, 2017.
This has disrupted the normal UCR filing process and caused a late opening, which affords carriers only 60 days to comply with the UCR requirement, instead of the usual 90 days. This will cause further industry confusion and frustrate carriers that attempt to comply in October.
The FMCSA knows or should know that a change to UCR fees at the 11th hour causes significant delays that affect industry, the states receiving their monies, and public safety as these monies are used for motor carrier safety enforcement programs.
It is worth noting here that FMCSA did this is 2009 with a September 3, 2009 notice in the Federal Register, less than 30 days before the open date. FMCSA published a 15 day comment period. See: https://www.fmcsa.dot.gov/regulations/rulemaking/E9-22645. FMCSA then concluded that the public needed an additional 10 days and published a supplement extending the comment period on September 18th, 2009, affording the industry and public a total of 25 days, not 11 days like is the case in this rulemaking.
The previous rulemaking record when the fees were last changed shows that the September 3, 2009 rulemaking did not conclude until April 27, 2010 (https://www.regulations.gov/document?D=FMCSA-2009-0231-0180) nearly 8 months later. Motor carriers were then required to make two payments that year, which again caused confusion because carriers did not understand their first payment made in the second quarter of 2010 was for UCR year 2010 and a second payment was expected in the fourth quarter when the program got back on track for 2011 UCR. It is also unreasonable to expect the states to wait up to eight months to receive monies they usually receive starting October 1st again in this instance.
And, the current proposed rule would have the industry pay one fee rate for 2017, a lower rate for 2018 and then a higher rate in 2019 causing further confusion with up and down fee schedules. In paying the 2017 fee, the industry has not seen a change for seven years. One change to lower the fee to balance out the UCR Board’s apparent practice of over-collecting from industry what the states actually need should suffice.
Accordingly, on behalf of the interstate motor carrier industry and its members, the SBTC hereby requests that this rulemaking be immediately withdrawn by FMCSA insofar as it violates Federal Law and the UCR Plan Board promptly submit a new recommendation with respect to the 2019 UCR fee schedule, lowering the 2019 UCR fee to reflect the UCR Plan Board’s currently excessive fees.
Thank you.
Sincerely,
JAMES P. LAMB, SBTC President
cc: Avelino A. Gutierrez, UCR Board Chair
/Sandra Masten (aka Sandy Bowling)
