A 40 Year Review: From Economic Regulation to Safety Regulation

Kevin Anderson Regulations, Transportation

Last month was my fortieth year anniversary of practicing transportation law. When I began practicing in 1975 the focus of the ICC was on economic regulation that limited the service carriers could provide both geographically and commodity-wise. Existing carriers could protest an application for new or an extension of authority and did so aggressively. To obtain authority to provide service a carrier had to establish at an administrative hearing that it was required by the “present or future public convenience and necessity”, which the protestants argued and presented evidence was not the case. Economic regulation also included rate regulation and the publication and filing of tariffs that had the force of law. The “filed rate doctrine” required a carrier to collect its tariff rate under all circumstances.  Brokers were virtually non-existent because they were required to charge their brokerage fee in addition to the carrier’s tariff charges.  Economic deregulation proceeded at a rapid pace to where we are today where essentially anyone with the desire and nominal resourses can obtain operating authority.

Safety regulation is now the face of regulation.  The FMCSA’s implementation of its Compliance, Safety, Accountability (CSA) program, and its subprogram Safety Measurement System (SMS), in 2010 has impacted all carriers and will continue to unless Congress reins it in. In addition, the FMCSA was on the cusp of implementing its Unified Registration System (URS) last Friday, October 23, until it delayed implementation of virtually all provisions until September 30, 2016.

The URS (not to be confused with the Unified Carrier Registration (UCR) system) requires Form MCSA-1 to be filed on-line by all for-hire carriers (exempt and non-exempt) and private motor carriers, brokers, freight forwarders, intermodal equipment providers, hazmat safety permit applicants and cargo tank facilities.  All entities filing will be assigned a USDOT number that will be the only identifier issued. There will no longer be MC, FF or MX number assigned but they can continue to be used, although the FMCSA encourages carriers to remove them from vehicles. This means that it is possible for a carrier, freight forwarder or broker to use their old numbers as the distinct identifier required by MAP-21.

An MCSA-1 will need to be filed within 30 days of any change in operation, including name, address and other contact information, for cancellation of registration, for reinstatement of registration, for designation or changes of process agents, and by both the transfer and transferee when a registration/operating authority is transferred (in order to track owners and prevent reincarnated or chameleon carriers).  Most important, a biennial update must be filed every two years. The FMCSA will send out a reminder letter 30 days before a biennial update is due, and failure to file the update will result in the registration being deactivated and the possible imposition of civil penalties.

The MCSA-1 is proposed to be an interactive on-line application akin to tax preparation software, but it is not yet on-line. The hard copy is 26 pages long and likely will be confusing to many filers, many of who will need outside assistance. In addition, the application process undoubtedly will become slower, probably much slower than the time it takes now, which is about 45 days if the applicant has its insurance and process agent filings ready to file without delay.

Entities that already have USDOT numbers have been granted a one year reprieve. However, for those entities that do not have a USDOT number, they will need to begin using the MCSA-1 form to file on-line beginning December 12, 2015, about seven weeks from now. How that works remains to be seen. This seven week period presents a window of opportunity. Entities that need to apply for authority can do it between now and December 12 under the current system that is known. For example, a carrier that wants to set up a broker subsidiary or affiliate as a separate entity, or vice versa, can do that under the current system for the next seven weeks. After December 12 the MCSA-1 on-line application will be required.

The foregoing short summary points out only some of the provisions of the new URS system. It is by no means a complete and comprehensive summary. If you have any questions about the URS, please call John or Kevin at 503-227-4586.