News

The American Transportation Research Institute today issued a call for motor carriers and drivers to participate in a new ATRI data collection on the impact of predatory towing in the trucking industry.

Predatory towing is any incident in which a tow truck operator egregiously overcharges, illegally seizes, damages by use of improper equipment, or withholds release of a truck and/or cargo. Recognizing its persistent negative impact on the industry, ATRI’s Research Advisory Committee (RAC) identified the need to better understand this problem as a top research priority earlier this year.

The short survey asks fleets to share which types of predatory towing they deal with most frequently, what fees or delays they consider predatory, and in which states they have encountered predatory tows. It also seeks participants for a second round of more detailed data collection that will allow ATRI to quantify the frequency and operational impact of each type of predatory event. All data collected will be kept completely confidential.

“We all know that predatory towing is an issue, yet until now there has been no robust analysis on how, when, and where it happens or the impact of legislation designed to regulate these predatory practices,” said Shawn R. Brown, Cargo Transporters Vice President of Safety. “By participating in ATRI’s data-driven research, carriers will be helping to answer these questions and outline solutions.”

Motor carriers and drivers are encouraged to complete the survey by clicking here.

NJMTA Official Sponsor of Wreaths Across America

Last year, NJMTA Members donated over 700 wreaths to the Wreaths Across America program.

Our 2022 goal is 600 wreaths. Please consider making a donation today.

We have extended our deadline to November 21. If you have any questions, please email jblazovic@njmta.org.

NJMTA would like to thank everyone who has donated so far this year.

All Chemical Transport

All City Leasing & Warehousing, Inc.

Ball Four Transport LLC

Cambria Mack Trucks

Carbon Express, Inc.

Consultech Insurance Brokerage LLC

Daybreak Express, Inc.

Eagle Systems, Inc.

Enzo Dinten

Freehold Cartage, Inc.

Harbor Freight Transport Corp.

John Krenzel, Attorney at Law

John Kellenberger - Keystone Lines

Linden Warehouse and Distribution

Marlin Construction Services, Inc.

McCollister's Global Services, Inc.

Nabozny Transport LLC

Paraco Gas

Port Jersey Logistics

Riverside Supply Co.

System Freight - Jamesburg, NJ

Thor Xpress Transport, Inc.

Tom Adamski for Robert Griffin

Trans American Trucking Service, Inc.

Transways Motor Express Co., Inc.

TrueNorth Companies

Wakefern Food Corp.

The NJMTA is an official sponsor of Wreaths Across America (WAA). Wreaths Across America's mission is:

·     Remembering our fallen heroes

·     Honoring those that serve

·     Teaching our children about the sacrifices made by veterans to preserve our freedoms

This is carried out by laying wreaths on veterans' grave across the country in December. This year the wreath laying will take place on December 18, 2021.

For years the trucking industry has donated/volunteered to handle the transportation of the wreaths from Maine to their final destination, as well as to sponsor wreaths.

Wreaths sponsored by NJMTA members will be sent to Beverly National Cemetery the final resting place for 49,000 veterans.

Our 2022 Goal is 600 Wreaths

You can help us reach our goal by donating towards the purchase of wreaths. They cost is only $15 each. 

      Absolute deadline for ordering wreaths is November 21, 2022

IMPORTANT EVENT!

Intermodal Trucking Industry Webinar

on the FMC Demurrage and Detention Billing Proposed Rule

The Federal Maritime Commission recently published a Notice of Proposed Rulemaking Regarding Demurrage and Detention Billing Requirements. The proposal, which was mandated by the Ocean Shipping Reform Act, would make significant positive changes for motor carriers by requiring that demurrage and detention invoices be sent only to “the person for whose account the billing party provided ocean transportation or storage.” As the FMC states in the preamble to the proposal, “practically, the proposed rule would prohibit billing parties from invoicing motor carriers.”  

The ATA Intermodal Motor Carrier Conference (IMCC) and the New Jersey Motor Truck Association (NJMTA) strongly supports the proposal and will be filing comments . Motor carriers will need to make their voice heard to FMC as well by filing their own comments. 

Please join us for an Intermodal Trucking Industry webinar to discuss the proposal. The webinar will walk through the key provisions of the proposal including who may be invoiced for demurrage and detention, what the invoices must include and the timeframes for proper billing. They will answer any questions you might have and provide examples of specific information that will be important as companies write their own comments. 

IMCC will also be providing sample comments for companies to use as a template for their own comments.  

All NJMTA members involved in intermodal trucking should attend this informative webinar.

Comments are due on December 13th. 

We need to ensure that FMC hears from our industry!

REGISTER HERE!

On November 16, 2022, FMCSA will issue guidance regarding the definition of what constitutes a “broker” and a “bona fide agent” of a broker. The guidance is not a rulemaking and will be effective immediately. However, FMCSA has nevertheless requested comment on the guidance and may issue updated guidance based on comments received. The comment period will be open for 60 days.

The guidance is issued pursuant to a mandate of the Infrastructure Investment and Jobs Act (“IIJA”), which directed FMCSA to consider the role of so-called “dispatch services” in transportation and whether such services, which often purport to “represent” multiple motor carriers, can be considered a “bona fide agent” of a motor carrier. The question of whether a dispatch service can be a bona fide agent of a motor carrier is important because bona fide agents of motor carriers are not required to hold broker authority when acting in the capacity of an agent of the motor carrier. 

Under existing regulations, a bona fide agent of a motor carrier is defined as “persons who are part of the normal organization of a motor carrier and perform duties under the carrier’s directions pursuant to a preexisting agreement which provides for a continuing relationship, precluding the exercise of discretion on the part of the agent in allocating traffic between the carrier and others.” 49 C.F.R. 371.2(b). 

Moving to the actual guidance proffered by the FMCSA, one issue that was apparently raised by numerous commenters, with comment on both sides, was whether and to what extent handling of monies paid by shippers for motor carrier transportation is determinative of whether one acts as a broker. According to FMCSA, “handling money exchanged between shippers and motor carriers is a factor that strongly suggests the need for broker authority, but it is not an absolute requirement for one to be considered a broker.”  Electronic load boards that do more than match loads may want to assess their status. 

As to the question of whether one can represent multiple motor carriers and still operate as a bona fide agent, the FMCSA was less clear. The FMCSA did not adopt an interpretation that a bona fide agent may only represent a single carrier. Rather, FMCSA stated: “Any determination will be highly fact specific and will entail determining whether the person or company is engaged in the allocation of traffic between motor carriers.” We take this conclusion to mean that FMCSA believes one could represent multiple motor carriers without having discretion as to how to allocate freight between motor carriers. For instance, it may be possible that a party is appointed as an agent of multiple motor carriers, but only one of the carriers has a contract to service a specific shipper. In that instance, the agent would presumably not have discretion in allocating freight amongst the motor carriers. 

Regarding dispatch services, FMCSA acknowledged that the term is poorly defined, but identified three features that appeared to be common amongst the various proposed descriptions. 

First, they work exclusively for motor carriers, not for shippers. Second, they source loads for motor carriers. And third, they perform additional services for motor carriers that are unrelated to sourcing shipments.

Given the generality of the description, it is not surprising that FMCSA then proposed a fact-specific approach to answering the question of whether a dispatch service is required to hold broker authority or whether it is a bona fide agent, but did offer some guidance:

When a dispatch service does not participate in the arrangement of freight, or when it represents only one motor carrier, it is not a broker. If a dispatch service arranges transportation on behalf of multiple motor carriers and engages in the allocation of traffic, however, then pursuant to 49 C.F.R. 371.2, it is not a bona fide agent and must obtain broker operating authority registration. . . Regarding whether a dispatch service is a bona fide agent, one must analyze whether the services fall within the definition of bona fide agent in 49 C.F.R. 371.2(b). However, if the dispatch service allocates traffic between two motor carriers, it cannot be a bona fide agent by definition.

This guidance begs multiple questions, including what does FMCSA mean by “participate in the arrangement of freight.” For instance, would the FMCSA consider identifying a load, negotiating the rate, and communicating regarding pick-up and delivery times as participating in the arrangement of freight? It also begs the question of what is meant by “engages in the allocation of traffic.” Say, for instance, a dispatch service identifies a load that would be a good fit for multiple motor carriers that it represents, and either carrier would be required to enter into a new contract with the shipper to move the freight- is the dispatch service allocating freight by communicating its existence to each carrier? 

The FMCSA did provide additional guidance. Specifically, the following would be factors indicating that a dispatch service does not require broker authority. 

Generally, the factors relevant to whether a dispatch service is not required to obtain broker authority are stated below:

(1) The dispatch service has a written legal contractual relationship with a motor carrier that clearly reflects the motor carrier is appointing the dispatch service as a licensed agent for the motor carrier. This is often a long-term contractual relationship;

(2) The written legal contract specifies the insurance and liability responsibilities of the dispatch service and motor carrier. The dispatch service must also meet all state licensing requirements;

(3) The dispatch service goes through a broker to arrange for the transportation of shipments for the motor carrier. The dispatch service may not seek or solicit shippers for freight;

(4) The dispatch service does not provide billing nor accept compensation from the broker, 3PL (third-party logistics company), or factoring company, but instead receives compensation from the motor carrier(s) based on the pre-determined written legal contractual agreement;

(5) The dispatch service is not an intermediary or involved in the financial transaction between a broker and motor carrier;

(6) The dispatch service is an IRS 1099 recipient from the motor carrier, or a W2 employee of the motor carrier as specified in the legal written contract agreement;

(7) The dispatch service discloses that they are a dispatch service operating under the authority of a specific motor carrier, and the shipment is arranged for that motor carrier only;

(8) The dispatch service does not subsequently assign or arrange for the load to be carried/moved by another motor carrier; or

(9) A dispatch service does not provide their “services” for a motor carrier unless that motor carrier specifically appointed the dispatch service as their agent in accordance with the aforementioned requirements.

The following factors would indicate the dispatch service should obtain broker authority:

(1) The dispatch service interacts or negotiates a shipment of freight directly with the shipper, or a representative of the shipper;

(2) The dispatch service accepts or takes compensation for a load from the broker, or factoring company, or is involved in any part of the monetary transaction between any of those entities;

(3) The dispatch service arranges for a shipment of freight for a motor carrier, with which there is no written legal contract with the motor carrier that meets the aforementioned criteria;

(4) The dispatch service accepts a shipment without a truck/carrier, then attempts to find a truck/carrier to move the shipment;

(5) The dispatch service is a named party on the shipping contract; or

(6) The dispatch service is soliciting to the open market of carriers for the purposes of transporting a freight shipment.

It is clear, based on feedback from the industry, that there is a need and desire for dispatch services among large and small motor carriers. A beneficial role that a dispatch service may provide is the outsourcing of resources for small motor carriers who cannot afford a full-time employee to perform these functions. The dispatch service can help to ensure the motor carrier has a steady stream of shipments while allowing the motor carrier to focus on its core business of safely transporting freight. FMCSA does not believe it is the intent of Congress to eliminate the services that dispatch services provide.

While no single factor is paramount in assessing the business relationship between a dispatch service and a motor carrier, the extent of a motor carrier’s control over the individual(s) performing the dispatch services is highly significant, i.e., the dispatch service works on behalf of the motor carrier and makes decisions based on the motor carrier’s guidance and direction. As noted, FMCSA determines whether a dispatcher is conducting broker operations on a case-by-case basis, utilizing factors including those above.

If you have questions or want to discuss potentially drafting follow-up comments, please contact Nathaniel Saylor or Prasad Sharma.  

In December 2021 the New Jersey Department of Environmental Protection (DEP) adopted the Advanced Clean Trucks Rule (https://www.nj.gov/dep/aqm/currentrules/Sub33.pdf).

The rule has a one-time reporting requirement for large businesses, government agencies, or contractors that operate or dispatch vehicles with a manufacturer’s gross vehicle weight rating (GVWR) greater than 8,500 lbs. in New Jersey. This includes medium-duty vehicles such as vans and ¾ ton pickups and heavier vehicles such as delivery trucks, school buses, transit buses, and tractor-trailer trucks. The information is required by April 1, 2023. 

VIEW DEP LETTER

This topic will be covered at the Annual Membership Meeting on November 30th at the Pines Manor.

Jeffrey L. Cantor, Bureau of Mobile Sources, NJ Department of Environmental Protection will discuss the new reporting system and how to report online.

To register for the Annual Meeting go to New Jersey Motor Truck Association - NJMTA Annual Meeting - REGISTER TODAY! (wildapricot.org)

Beginning January 6, 2023, a pre-employment Clearinghouse query will satisfy the requirement to investigate a prospective driver's previous drug and alcohol program violations, as set forth in 49 CFR 391.23(e)(4) and 382.413(b).  

Employers of CDL drivers are required to conduct background investigations before hiring a driver. This process includes determining if the driver has violated the drug and alcohol regulations of any Department of Transportation (DOT) mode within the past three years (see 49 CFR 391.23(e)(1)-(3) and 382.413(a)). Currently, this requires employers or their designated consortia/third-party administrators (C/TPAs) to conduct both electronic queries in the Clearinghouse and manual inquiries with previous employers to meet the three-year time frame.

Beginning January 6, 2023, when three years of violation data is stored in the Clearinghouse,prospective employers must conduct a pre-employment query of the Clearinghouse, as set forth in § 382.701(a), to comply with the inquiry requirement in §§ 382.413(b) and 391.23(e)(4), as it pertains to FMCSA-regulated employers. Inquiries not conducted under § 382.701(a) will not satisfy these inquiry requirements.

NOTE: The Clearinghouse contains only information about drivers employed by FMCSA-regulated employers. If a prospective employee was employed by an employer regulated by a DOT agency other than FMCSA (such as the Federal Railroad Administration, Federal Transit Administration, Federal Aviation Administration, etc.) during the three-year time frame, prospective employers will still be required to directly request drug and alcohol violation information from those DOT-regulated employers in accordance with 391.23(e)(4)(ii) and 382.413(c), since this information is not reported to the Clearinghouse.

Annual query requirements have not changed.

Employers of CDL drivers must conduct a query in the Clearinghouse at least once a year for each CDL driver they employ (see § 382.701(b)). This annual query requirement applies on a rolling 12-month basis, which means that if you conducted your last annual queries in December 2021, it is time to conduct the next round of annual queries.

Employers must obtain general consent from CDL drivers they employ before conducting limited queries in the Clearinghouse to view these drivers’ information (you can download a sample limited query consent form).

Are you up-to-date on your annual queries?

Log in to the Clearinghouse and visit your Query History page to see if your annual queries are due. For instructions on conducting annual queries, download the How to Conduct a Limited Query job aid.

The Transportation Security Administration (TSA) has reduced the online renewal enrollment fee for transportation workers who possess a Transportation Worker Identification Credential (TWIC^®) as well as the enrollment fee for Hazardous Materials Endorsement (HME) and TWIC applicants who maintain an existing Security Threat Assessment (STA) for the comparable program. 

TSA uses biographic and biometric information provided by applicants to conduct a STA for all HME and TWIC applicants, and the fees cover the agency’s costs for vetting applicants and issuing biometric credentials to the maritime workforce.

“The HME and TWIC fee reductions present a great opportunity for critical transportation workers credentialed with TSA who are interested in renewing their TWIC credential online and/or applying for a TWIC or HME at a lower cost,” said TSA Administrator David Pekoske. “These updates are part of TSA’s ongoing efforts to improve the HME and TWIC enrollment experience and pass on cost savings to applicants.”

The HME Threat Assessment Program is required by the USA PATRIOT Act for any driver seeking to obtain, renew and transfer a HME on a state-issued commercial driver’s license. The TWIC Program is required by the Maritime Transportation Security Act for workers who need access to secure areas of the nation’s maritime facilities and vessels.

Through a Federal Register Notice published today, TSA announced a new fee structure for online renewals and comparable STAs. These updates allow TSA to continue to improve the HME and TWIC enrollment experience, mitigate potential security risks and ensure that the programs remain fully funded. 

TWIC applicants can now pay a reduced fee when renewing their credentials online: $117.25, compared to the in-person fee of $125.25. Additionally, TWIC applicants who hold an existing HME or Free and Secure Trade (FAST) STA are eligible for a reduced-fee enrollment: $93 compared to $105.25.

The fee for commercial drivers with an existing TWIC STA required to apply for an HME STA has been reduced from $67.00 to $41.00 (eligibility is dependent upon the driver’s license state of issuance).

Comparison of Current and New TWIC and HME Fees and Enrollment Type
Enrollment Type	TWIC Program Fees	HME Program Fees
Current	New	Current	New
New enrollment	$125.25	$125.25	$86.50	$86.50
Renewal (in-person)	$125.25	$125.25	$86.50	$86.50
Renewal (online)	N/A	$117.25	N/A	N/A
Comparable STA	$105.25	$93	$67	$41
Replacement card	$60	$60	N/A	N/A

 

 In August 2022, TSA enhanced the renewal process for TWIC, allowing current TWIC holders to renew their credentials online, eliminating the need to go to an enrollment center and making the renewal process more convenient.

TWIC services and fee changes are published at https://www.tsa.gov/for-industry/twic. HME services and fee changes are published at https://www.tsa.gov/for-industry/hazmat-endorsement.

The Inflation Reduction Act of 2022 (IRA) provides EPA with $3 billion to fund zero-emission port equipment and technology and to help ports develop climate action plans to reduce air pollutants at U.S. ports. This new funding program will build on EPA’s Ports Initiative that the Agency established to ensure that our nation’s ports, a critical part of our infrastructure and supply chain, help address public health and environmental impacts on surrounding communities. 

See below for legislative text enabling this historic funding program.

EPA wants to hear from you on how to build the Clean Ports funding program in the IRA! EPA is hosting two listening sessions on:

·    November 9, 2022 1:00-3:00 PM ET  

·    December 6, 2022 1:00-3:00 PM ET 

The format of these sessions will be the same. Please attend one or both. These sessions will begin with a brief overview of the legislation and conclude with an interactive listening session. We encourage all to attend, whether you work at a port, work with near-port communities, or simply are interested in helping ports transition to zero-emissions. Please come prepared to share your feedback on the program, including:

1. What types of zero-emission port technologies or related planning support do you see as most critical for delivering emissions reductions?

2. What do you see as the biggest hurdles to transitioning to zero-emission port equipment?

3. How do you see this program complementing other available funding programs (e.g., at EPA, other federal or state programs) that can support efforts to reduce emissions at ports?

4. How would you like to see funding for zero-emission port technology, related planning and permitting, and development of climate action plans work together? Should the funding opportunities be sequenced or combined?

5. How can we help ensure this program addresses concerns of near-port communities and advances environmental justice? 

Register for the Nov. 9 listening session

Register for the Dec. 6 listening session

Spanish interpretation and live captioning will be available. If you require special accommodations, including live translation into a language other than English or Spanish, please contact cleanports@epa.gov one week prior to the event to make arrangements.

If you are unable to attend, you may also submit suggestions about program implementation to cleanports@epa.gov.

Information about the IRA Clean Ports funding listening sessions can be found on the EPA Ports Initiative website

NJMTA Member Carbon Express driver Tood Stine sits down with the NJ DOT Office of Freight Planning to talk about a typical day of driving in the garden state.

Check out the video on our Facebook page, (20) New Jersey Motor Truck Association | East Brunswick NJ | Facebook, or use one of the links below.

https://twitter.com/NewJerseyDOT/status/1585354819984052224

https://fb.watch/gqmxOKL8gb/