Private Carrier

Beginning in 2014, Kansas will no longer have a motor carrier property tax.  The tax has applied to for-hire motor carriers operating in Kansas (regardless whether the motor carrier is actually based in the state) since 1956 as an ad valorem tax on the value of their rolling stock.  The new law, which was signed by the Kansas governor on April 6, does impose an additional registration fee on intrastate and interstate carriers operating in Kansas.  Unlike the repealed tax, however, the registration fee will apply equally to both for-hire and private carriers.

On January 4, 2011, the Federal Motor Carrier Safety Administration (“FMCSA”) issued a notice entitled Regulatory Guidance Concerning Electronic Signatures and Documents, 74 F.R. 411 (2011).  The guidance brings some clarity to the application of the federal Electronic Signatures in Global and National Commerce (“E-Sign”) Act and the Government Paperwork Elimination Act (“GPEA”) to documents required by FMCSA regulations to be generated and maintained (or exchanged by private parties).  In particular, the guidance makes clear that electronic signatures are permissible so long as the method of signing: (1) identifies and authenticates a particular person as the source of the electronic communication; and (2) indicates such person’s approval of the information contained in the electronic communication.  In the past, FMCSA officials had been unclear as to whether electronic signatures are permissible on FMCSA-required documents.  FMCSA has also changed its approach to the electronic storage of documents.  FMCSA previously interpreted 49 C.F.R. § 390.31 to permit the electronic storage of records so long as they could be produced within two working days of a request.  In the guidance, however, FMCSA rescinds that interpretation and states that, going forward, all records, whether electronic or paper, must be produced within the time frame established by FMCSA regulations.

While FMCSA’s guidance makes clear that electronic methods may be used to sign documents required by FMCSA regulations, there remain open questions as to what methods of effecting an electronic signature will be deemed compliant.  For this reason, motor carriers intending to move to electronic signatures should ensure that any method adopted fully complies with the guidance, as well as the E-Sign Act and the GPEA.
 

On Tuesday, the FMCSA published guidance regarding the use of electronic records to comply with the agency's motor carrier regulations.  The guidance was posted in response to numerous inquiries from motor carriers regarding the use of electronic records and signatures.  According to the agency, the new guidance "establishes parity between paper and electronic records and signatures, greatly expanding interested parties' ability to use electronic methods."  The new guidance supersedes all past guidance published by the agency to the extent it conflicts with or is inconsistent with the new guidance.  The guidance only applies to records to be used or maintained by private parties.  It does not apply to documents that are required to be filed directly with the agency. 

 

In a move that stands to affect motor carriers, the National Labor Relations Board (the “Board”), on December 22, 2010, published a Notice of Proposed Rulemaking (the “Notice”) in the Federal Register relating to employer obligations under the National Labor Relations Act (the “Act”).  The Notice is the fulfillment of the Board’s recent promise to effect policy through rulemaking rather than by statute.  The Board issued the proposed rule because the Board believes employees are unaware of their rights under the 75 year old Act.

Under the proposed rule, private-sector employers (including motor carriers but excluding airline and railroad employers) must post a notice of employee rights, including the right to:
 

• Organize a union to negotiate wages, hours, and other terms of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing for a contract with the employer setting wages, benefits, hours, and other working conditions.
• Discuss terms of employment or union organizing with co-workers or a union.
• Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do these activities, including joining or remaining a member of a union.

The notice of employee rights would also expressly inform employees that it is illegal for the employer to:

• Prohibit soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
• Question employees about their union support or activities in a manner that discourages employees from engaging in that activity.
• Fire, demote, or transfer employees, or reduce hours, change shifts, or otherwise take adverse action, or threaten to take any of these actions, because employees join or support a union, or because employees engage in concerted activity for mutual aid and protection, or because employees choose not to engage in any such activity.
• Threaten to close the workplace if workers choose a union to represent them.
  • Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
• Prohibit employees from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
• Spy on or videotape peaceful union activities and gatherings or pretend to do so.

To the extent an employer’s workforce is mobile or remote, and the employer regularly communicates with employees electronically, the above notice must be communicated in the same way.  Currently, only federal contractors are required to post a notice similar to the notice proposed by the Board.  The Board has asked for comments on the proposed rule before the Board finalizes the rule, including comments on whether the Board has the power under the Act to create the proposed rule at all.  Comments, however, must be submitted within 60 days. 

 

The Federal Motor Carrier Safety Administration ("FMCSA") just released new Unified Carrier Registration ("UCR") fees for 2010.  The fees apply to interstate private carriers, for-hire carriers, freight forwarders, brokers, and leasing companies.  Though the new fees are higher than in past years, they are lower than those proposed by the FMCSA last year.  The new fee schedule for motor carriers is as follows:

• Up to two vehicles - the fee is raised from $39 to $76
• Three to five vehicles - from $116 to $227
• Six to 20 vehicles - from $231 to $452
• 21 to 100 vehicles - from $806 to $1,576
• 101 to 1,000 vehicles - from $3,840 to $7,511
• 1,001 to 200,000 vehicles - from $37,500 to $73,346

Brokers, freight forwarders, or leasing companies that are not also motor carriers pay a flat fee of $76.  Enforcement on interstate motor carriers not in compliance with 2010 UCR fee payment begins July 15, 2010.