“There ought to be a law!” Isn’t that our frustrated cry when faced with situations in life that just don’t make sense? The sad irony is that life does give us laws – lots of them.
Trucking no doubt has many laws, as well as regulations. Whether we believe those laws and regulations good or bad, fair or unfair, we need to understand what they are, how they originate, and what we can do about them.
In this three-part series, you will learn all you need to know about federal trucking regulations, with a particular focus on Federal Motor Carrier Safety Administration (FMCSA) regulations.
In part one, we compare regulations to other forms of government action – statutes, studies, pilot projects and guidance. We touch on sanctions that can come from violating regulations and how to contest citations. We share how to find what regulations the government intends to pursue and where to locate the regulatory proposals currently in play. And we look at the sources of proposed regulations, as well as the limitations on what any regulatory agency can do.
What are regulations? Regulations are law…period.
Regulations come from an entity with the authority to require compliance – a “regulatory agency.” Regulatory agencies arm regulations with sanctions to encourage compliance among those who fall under the agency’s authority.
The Federal Motor Carrier Safety Administration (FMCSA), for example, is the regulatory agency for commercial trucks and buses. FMCSA is one of several agencies that operate under the umbrella of the U.S. Department of Transportation (USDOT). Under federal law, FMCSA publishes regulations which motor carriers must follow or face penalties. By contrast, the National Transportation Safety Board (NTSB) is not a regulatory agency and operates independent of the USDOT. NTSB conducts investigations, issues findings, and calls on USDOT regulatory agencies like FMCSA to take certain steps – but federal law does not authorize NTSB to issue regulations and it has no authority to require compliance.
The confusion that occasionally surrounds regulations can result simply from grammar. We often use the word “law” to mean a statute or legislation passed by Congress. In addition, both Congressional statutes and agency regulations have “the effect of law;” they must be followed and there are penalties for not complying.
People also confuse regulations with other actions by the regulatory agencies themselves – studies, pilot projects and guidance. For instance, an agency can seek public comment on a proposed study or pilot project or a proposed guidance document, just as it seeks public comment on a proposed regulation.
Guidance documents assist people in applying existing regulations to real-world situations and do not have the force of law. Agencies use studies gather facts, often coupling them with a request for voluntary data submission. Pilot projects contain a waiver or adjustment of certain regulations to test how a different regulatory regime could work. They have legal requirements, but those requirements apply only to the project participants.
Under federal law, pilot projects cannot last longer than three years. Regulations, by comparison, have no end date, but they can change for three reasons: 1) new agency rulemaking; 2) new Congressional direction; or 3) court decisions.
As during the COVID-19 pandemic, agencies can waive or adjust regulations by an emergency order. This typically happens during natural disasters, such as floods and hurricanes. Emergency orders have a stated end date but they may be extended or adjusted when the underlying emergency continues. That extension requires a new statement from the regulatory agency. Because emergency orders give an exception to standard regulations, agencies include restrictions and limitations in the emergency declaration.
Where regulatory agencies get their power.
Remember your high school civics lessons? The U.S. Constitution puts Congress in charge of law-making. Congress passes laws laying out the statutory charter for each federal agency – what the agency can do and must do. Congress may separately weigh in on specific issues, expanding or refining the scope of an agency’s jurisdiction on that issue.
The Motor Carrier Safety Improvement Act of 1999 contains FMCSA’s charter. There, Congress clearly listed what it felt were the shortcomings in motor carrier safety to that point, which it directed FMCSA to address.
Statutory charters also include limitations to agency powers. Ultimately, the U.S. Constitution provides a limit to federal actions. Court decisions can also define the scope of a regulatory agency’s authority, and Congress is quite willing to block agency actions of which it doesn’t approve.
Sources of proposed regulations.
So, do “nameless federal bureaucrats” sit around and devise the next set of trucking regulations? No. At FMCSA, the staff recommendations can result in proposals, if they meet with approval from the agency administrator and the USDOT secretary. Similarly, private entities, such as motor carriers, trucking trade associations, and commercial vehicle enforcement agencies can petition for rulemaking with FMCSA to advance a rule or regulatory change.
By far, Congress is the primary source of federal regulations for FMCSA and any regulatory agencies. Congress triggers federal regulations in three ways:
- The agency’s statutory charter, in which Congress has said what the agency must do;
- Congressional legislation directing the agency to adopt a specific regulation; or
- Congressional legislation adopting a program, for which the relevant agency must then write regulations for implementation.
Look first to Congress to see what is ahead in regulation.
Violations, sanctions and challenges.
Every regulatory agency has a set of sanctions for violating its regulations. For example, FMCSA can issue civil fines and penalties for violation of federal trucking regulations.
FMCSA utilizes a motor carrier’s violation history in calculating its Compliance, Safety, Accountability (CSA) scores and may launch a compliance review of a carrier and determine its safety rating.
What if the regulatory agency makes mistakes or proposes a penalty that is unjust or too harsh? At FMCSA there are two ways to address mistakes:
- Motor carriers can use DataQs to challenge errors made in an inspection or crash report.
- Non-preventable crashes may be removed from FMCSA use and from a driver’s record through the Crash Preventability Determination Program.
A motor carrier must first challenge the legality or harshness of a proposed regulatory penalty within the agency before a court will accept jurisdiction. In legal terms, a person must “exhaust all administrative remedies” before going to court. At FMCSA, the agency’s Rules of Practice lay out those steps.
Coming and current regulatory proposals.
Federal regulatory agencies give advance notice of what new regulations they have in mind through the Unified Agenda of Regulatory and Deregulatory Actions. It covers approximately 60 departments, agencies, and commissions, including all federal entities that currently have regulations under development or review.
The timelines for regulatory development shown in the Unified Agenda are estimates. Currently open regulatory dockets are found at Regulations.gov. People can search by agency (e.g., “FMCSA”), by subject matter (e.g., “hours of service”), or by specific Docket No. (e.g., “FMCSA-2007-27748”). The Federal Register website, is the official publication for government regulations, and conduct a similar search.