Massachusetts Senator Michael J. Barrett has proposed legislation which would, among other things, remove regulatory oversight of household goods moving companies, bus, tow and ride-sharing companies from the Transportation Oversight Division by eliminating that division from Massachusetts Department of Public Utilities.[1]
Does this mean that movers, charter bus operators, towing companies and ride-shares are going to be free of regulatory oversight and enforcement activities from a State regulator? The legislation would establish a new “watchdog” agency responsible for safety oversight and enforcement over the MBTA’s rail transit system, and significantly for this alert, jurisdiction to regulate rates and practices of other surface transportation industries currently subject to the Transportation Oversight Division jurisdiction, including for-hire moving companies.
Background
The legislation comes as no surprise to anyone who has been following the breakdown in safety of operation and maintenance of the MBTA. Due to repeated instances of reportable safety events, including the shocking tragedy of a rider being pulled to his death because his arm was caught in a passenger train car door and rider jumping into the Mystic River from a stalled passenger train engulfed in fire on a bridge, the Federal Transit Administration last year conducted a “Safety Management Inspection” of the MBTA and its designated State Safety Oversight agency; the MDPU.
The FTA’s inspection resulted in a series of urgent special directives and written report. According to The Boston Globe, the FTA’s investigation revealed the MBTA’s safety troubles have gone largely unchecked, in part because the MDPU had not provided proper oversight.[2] The FTA’s report actually found that the MDPU was actively engaged in overseeing MBTA’s safety event investigations and had overseen an expanded number of corrective actions submitted by MBTA. Even with the increased oversight, the FTA remained concerned that the MDPU has not utilized its existing regulatory and statutory enforcement authority to ensure the timely resolution and closure of the safety concerns requiring corrective action by the MBTA.
With the release of the FTA report and public uproar, the Massachusetts Legislature held hearings. Ray LaHood, a former Secretary of the U.S. Department of Transportation is reported to have admonished the legislators to take away safety oversight of the MBTA from the MDPU. “If you don’t do anything else, you need to do that,” according to reporting in late October, 2022.[3]
Enter Sen. Barrett’s Commission on Transportation Safety Oversight And Regulation (the “Transportation Commission”) Bill
The Transportation Commission would consist of seven (7) commissioners – 1 appointee made by the Governor and the remaining six appointed equally by the House and Senate – 3 by the House Speaker and 3 by the Senate President. The Transportation Commission would be an independent public entity not subject to the supervision or control of any other executive office, department, commission, board, bureau, agency or political subdivision of the Commonwealth. Qualifications for appointment to the Transportation Commission include experience in transportation safety and operations.[4]
Healey Administration’s Appointments To MDPU’s Commonwealth Utilities Commission Signals Priority And Focus On Environmental Justice For MDPU; Not Transportation Oversight
The Healey Administration on March 14, 2023, announced the appointment of two new commissioners, each having background and experience in matters of so-called “clean energy” and “environmental justice,” to the 3-member supervisory Commission over the MDPU. According to The Boston Globe, the Governor’s announcement outlined a goal of “transforming” the MDPU; making it a “partner in achieving climate goals, including through facilitating rapid renewable energy growth, building a modern grid, and promoting resiliency.”[5]
Noticeably absent from the announcement of the background and experience of the appointees was mention of matters bearing on transportation safety and regulation of rates and practices over the Commonwealth’s surface transportation.
What The Barrett Bill Portends For Massachusetts Movers
As all movers in Massachusetts are aware, the MDPU’s Transportation Oversight Division is the primary regulator responsible for regulatory and enforcement authority over intrastate for hire common carriers of household goods including the form and manner of filing published rates in approved tariffs, adjudicating consumer complaints, approving applications for permits and certificates of public convenience and necessity, UCR registration and vehicle specific decals.
If Barrett’s bill is enacted as written, it would, by legislative pen, “delete” the MDPU’s Transportation Oversight Division as the referenced regulator in G. L. c. 159B and eliminate all power to regulate household goods movers by repealing statutory powers and by substituting the Transportation Commission; thus empowering the Transportation Commission to do what was previously subject to the jurisdiction of Transportation Oversight Division.
Mover advertising would continue to require identification of the mover’s certificate number, however the abbreviation “MTC” would be required to precede the number.
According to Senator Barrett, current MDPU Transportation Oversight Division staff and future hires would be expected to move over to the Transportation Commission.[6]
Time will tell what exactly all this will mean for intrastate movers in Massachusetts. In light of the public sentiment and new Democratic Administration, it’s hardly a surprise that potentially significant changes imposed on the regulated surface transportation industries in Massachusetts are coming down the road; perhaps including movers of household goods.
Dated: Sudbury, MA
March 15, 2023
Andresen & Borovick, LLP
323 Boston Post Road
Sudbury, Massachusetts 01776
www.abmasslaw.com
Tel: (978) 443-6868
borovick@abmasslaw.com
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[1] See petition entitled “An Act amending the statutory responsibilities of the Department of Public Utilities and establishing a commission on transportation safety oversight and regulation,” S.2199 (Jan. 20, 2023). As of Mar. 15, 2023, the following legislators have joined the bill: Lindsay N. Sabadosa, John F. Keenan, Jason M. Lewis, Michael O. Moore and James B. Eldridge.
[2] Aug. 31, 2022, Dolven, T., “After blistering report from federal inspectors, MBTA has its work cut out for it” The Boston Globe.
[3] Oct. 25, 2022, Dolven T., “’The current system is not working.’ Mass. Legislature should make sweeping reforms of beleaguered MBTA, former top federal transportation says” The Boston Globe.
[4] The FTA faulted the MDPU’s organizational structure as not being sufficiently independent of the MBTA’s Board of Directors. This includes the shared agency reporting relationship to the Governor and the Governor’s role in appointing members to the MBTA’s Board of Directors and approval authority over the MDPU’s supervisory body, a 3-member Commonwealth Utilities Commission. Final Report at 76-77. The Transportation Commission, in addition to being a wholly separate legal entity, would be less influenced by the Administration because of the substantial role in number and manner of appointments by the Legislature and further, the commissioners could be removed only “for cause” by a majority vote of the Governor, Senate President and House Speaker. See S.2199, Sec. 14 creating new M.G.L. c. 22E, §22F, § 1. See S.2199, Sec. 14, creating new Chapter 22E in the General Laws and § 1(b), (e).
[5] Mar. 15, 2023, Shankman, S., “With new appointments, Healey administration aims to create ‘a 21st century DPU’” The Boston Globe (reporting on appointment of Jamie Van Nostrand – currently director of the West Virginia University College of Law’s Center for Energy and Sustainable Development as chair and Staci Rubin – currently VP of environmental justice at the Conservation Law Foundation to round-out the 3-member Commission along with Cecile Frasier, an appointee from the Baker administration who has been serving as the Commission’s acting chair.)
[6] Feb. 8, 2023, Cawley G., “’Lawmakers propose different safety watchdogs for MBTA” The Boston Herald (Bostonhearald.com checked 2-10-23).