Questions are being raised by state officials about the validity of a recent legal petition filed by the Owner-Operator Independent Drivers Association to the Federal Motor Carrier Safety Administration. OOIDA’s petition alleges that 26 states haven’t yet adopted FMCSA’s electronic logging device mandate, and 20 of those states haven’t adopted current federal motor carrier safety regulations within the past three years.
This lack of adoption, says OOIDA, puts state enforcers’ federal funding at risk and thus makes them unable to enforce regulations, including but not limited to the ELD mandate. In its petition, OOIDA asked FMCSA to withhold Motor Carrier Safety Assistance Program (MCSAP) funding until those 20 states came into compliance with federal-regs-adoption rules.
States in OOIDA’s crosshairs, however, rebutted the group’s assertions. Several responded to note that, as far as they were concerned, their regulatory code was fully up to date, including the ELD mandate.
Kansas was an outlier among the group of respondents. Captain Christopher Turner with the Kansas Highway Patrol acknowledged that while most federal regulations there are current, some had been held up in the adoption process. Those outstanding “are due to be updated through the Attorney General’s office before the end of the year,” he said.
Turner added that “while some of [OOIDA’s] petition is correct, quite a bit of it is not for several states.”
Montana Chief Dennis Hult pointed to state code on Montana’s website and the state’s most recent adoption dates, including for the ELD rule, in June of this year. OOIDA had said Montana’s most recent update came in 2013.
Major Jay Thompson of the Arkansas Highway Police, whose state OOIDA singled out as having not adopted since the late 1990s, noted that in “Arkansas, the federal regulations are adopted by reference” to the federal code, “and therefore are enforced accordingly.”
In Michigan, said state police Sergeant Joseph Austin, state law adopts the great majority of Title 49 of the Code of Federal Regulations annually, with the most recent adoption occurring on January 4 and including the ELD mandate rule. OOIDA listed Michigan’s latest adoption as occurring in 2012.
Massachusetts is an “automatic adoption state,” says Lieutenant Thomas Fitzgerald, whereas OOIDA noted year 1997 as its last adoption of federal regs.
Wisconsin, too, since year 2009, the year that OOIDA singled out as its last formal adoption, has had in place an automatic adoption of federal rules for interstate haulers, says Captain Brian Ausloos.
Washington State Patrol Captain Mike Dahl describes a similar process in his state which some years ago made the decision to grant authority to agency heads to make federal regulatory adoptions outside of a legislative process, adopting all federal motor carrier regulations by reference. “We’re confident that our rules are adopted” as per accepted methodology. “We have no issue that we’re doing it right.”
Most, if not all, states have laws that automatically adopt federal safety regulations or that allow enforcement of such regulations by its state personnel, said an FMCSA official, speaking on background.
In a separate statement issued Friday, the agency says it is working on a formal legal response to OOIDA’s petition.
OOIDA’s calculus in the petition hinges in part on an argument that automatic regulatory adoption schemes that account for future regulatory changes in perpetuity are invalid. In a section of the petition, OOIDA lays out this rationale, noting a case that demonstrated an “attempt to adopt future amendments was an unconstitutional delegation of lawmaking power” by a state to an outside entity, the petition says, quoting Brinkley v. Motor Vehicles Div. (1980).
States that “attempt to incorporate the FMCSRs in existence at the time of incorporation and as they may be amended in the future,” OOIDA says, thus allow “out-of-state entities (FMCSA) to write state law.” In “many states,” the association contends, “this violates constitutional or other nondelegation principles.”
Yet Virginia State Police Captain Ronald Maxey says OOIDA ignores his state’s annual-review process, part of its automatic adoption of federal regulations “on the effective date of the federal regulation. Virginia conducts a review of FMCSRs annually, the last of which was completed on July 28, 2017,” to ensure proper incorporation, he adds. OOIDA’s 2010 date for the last revision to the Virginia register, Maxey says, refers simply to the last changes made to the code for intrastate-only regs that differ from otherwise incorporated federal regulations. “My office was not contacted by OOIDA regarding this matter, so unfortunately OOIDA did not have an understanding of Virginia’s incorporation or review process; therefore, the petition is not accurate as it relates to Virginia.”
Washington, in an effort to take away any questions as to the validity of their rules, is planning to update their state-code language to remove/change a reference to 2013 — the date OOIDA’s petition references – and make abundantly clear regulations are in force as of the current year.
–James Jaillet contributed to this report.