On Friday, June 16, FMCSA published two notices concerning the rule on the Lease and Interchange of Vehicles: Motor Carriers of Passengers originally issued in May 2015. The first notice extended the compliance date for the rule from Jan. 1, 2018 to Jan. 1, 2019, the second time the Agency has pushed back the compliance date click here to view the extension notice. The second notice proposed a response to the motorcoach industry petitions requesting FMCSA to revise the rule click here to view the proposal notice. Although these are steps in the right direction towards fixing this rule, there is still more to do.
FMCSA published a final rule on May 27, 2015, on the lease and interchange of passenger vehicles, with the goal of stopping chameleon carriers from continuing to operate. This left the motorcoach industry with an unduly burdensome rule that turned long standing business practices of the both the charter and scheduled service motorcoach operators, on their head. Further, it did not address FMCSA’s objective of stopping “bad actors.”
ABA led a successful industry-wide effort to stop this rule from going into force by initiating a petition campaign asking the agency to reconsider the rule, and eventually convincing Congress to weigh-in with the agency. In August 2016, the Agency finally announced its intent to revise the rule, but limited the revisions to four areas, as identified in the industry petitions:
- exclusion of the term “chartering” (i.e. subcontracting) from the leasing requirements;
- amending CMV requirements for the location of temporary markings;
- changing the 24-hour notification for customers, when subcontracting; and
- expanding the 48-hour delay in preparing a lease.
The effort to start the rulemaking process to revise the rule was then delayed due to the presidential election last fall and transition to a new administration. Now, after another strong push by ABA, FMCSA has finally published these two notices to initiate the process for revising the rule. However, based on the June 16 notice, it appears FMCSA is no longer considering all four categories mentioned in its earlier notice of intent, but is instead contemplating revisions based on only two categories: exclusion of chartering from leasing requirements; and extending the 48-hour delay for lease preparation in the event of emergencies.
FMCSA’s Notices in Brief
a. The FMCSA is extending the compliance date of the lease & interchange rule to Jan. 1, 2019, to allow time to revise the rule.
b. In response to industry petitions, the FMCSA intends to revise the rule to address only chartering (subcontracting) and the 48-hour delay in preparing a lease.
c. Specifically, the agency is proposing to revise the rule: 1) to exclude “chartering” (i.e. subcontracting) from the leasing requirements; and 2) to extend the emergency 48-hour delay in preparing a lease and remove the requirement for passengers to be on board.
d. The notice does not include the mention of any revisions to either the CMV marking requirements or the 24-hour customer notification requirement for using subcontracted vehicles as a substitute.
e. The notice responding to industry petitions does not contain any regulatory text to review or comment, but only proposed ideas by FMCSA.
FMCSA is treating this second notice, responding to the industry petitions, as a notice of proposed rulemaking or NPRM, and the Agency plans to finalize a revised rule based on the comments received to this notice. In other words, this is likely the industry’s only chance to weigh-in on the proposed revisions to the lease & interchange rule before they become final. Even though the notice contains no proposed regulatory text, the Agency can still move forward and finalize a revised rule.
Although FMCSA initially identified four key industry areas of concern in its notice of intent to revise the rule last Auguest, the agency now appears to be backtracking and abandoning the effort to address the marking requirements and 24-hour notification requirements of the lease & interchange final rule.
The agency is requesting comments be filed in response to their proposed rule revisions, by Monday, July 31.
click here to file comments
This is a high priority for the industry and we must act now – we must again weigh-in with the agency by having every ABA member file comments and make our voices heard. The agency needs to address all four areas of concern, as identified in its August 31, 2016, notice of intent.
ABA to Hold Conference Call – 7/27/17
ABA held a conference call on June 28 to discuss the rule and assist members in drafting a request for an extension of time and further clarity on the proposal.
ABA will be holding another conference call on Thursday, July 27, at 2 p.m. EDT to discuss our options, any new information on these notices, layout ABA’s strategies and answer any questions that members have.
To join the call, please dial:
800-220-9875 (US Toll Free)
800-221-8656 (CAN Toll Free)
302-709-8332 (Int’l Toll)
File an Extension Request - ABA Template
ABA has created a template for your extension request. In addition to more time to file comments, the request also seeks clarity and specificity in regards to the proposal and the lack of regulatory text that was included in the notice.
File a Comment - ABA Template
ABA has created a template for your comments based on ABA's comments that were refined during our conference call. The comments propose specific regulatory text that we believe will help resolve the issues with the rule.