Changes to household goods motor carrier and broker procedures and paperwork for communicating FMCSA’s consumer protection information, estimating, booking and contracting with consumers for interstate moves are scheduled to take effect June 27, 2022.
FMCSA’s Commercial Enforcement Division promulgated its Final Rule which adopted certain recommendations made to it by the so-called “Household Goods Consumer Protection Working Group,” and other changes to the Federal Consumer Protection Regulations a household goods motor carrier (Mover) must follow when providing interstate household goods transportation or service to an individual consumer shipper (Individual Shipper). For background on the history and considerations leading to the Final Rule published April 26, 2022, see our previous article covering FMCSA’s notice of proposed rulemaking here. This article is intended to identify some of the more consequential changes.
► Requires the bill of lading to be provided to, signed and dated by the Individual Shipper at least 3 days before the shipment is scheduled to be loaded.
► The Individual Shipper has a right to cancel the move “without any penalty” at any point in the 3-day period after the Individual Shipper signs the bill of lading.
► Requires preparation of a new estimate as one of the options a Mover has prior to loading when the Individual Shipper tenders more goods or requests additional service instead of preparing a “revised estimate,” and to maintain a record of the date, time and manner that the new estimate is prepared.
► Removes the exception from the physical survey requirement where the household goods are located more than 50 miles from the Mover or its agent’s location.
► Expands the definition of “physical survey” to permit use of remote “virtual” technology – meaning video that is either live or pre-recorded as an alternative to an in person on-site survey for the estimate so long as the technology allows the Mover to clearly identify the household goods to be transported.
► Eliminates the order for service and incorporates those requirements in the order for service rule not previously in the bill of lading, into the new revised rule on the form and content of the bill of lading.
► For Movers and household goods brokers that have a website, it must prominently display either a link to the Ready to Move? – Tips for a Successful Interstate Move document on the FMCSA website or a true and accurate copy of that document.
► For household goods brokers, the definition of “physical survey” changed to reference the new definition for Movers.
► Revises text of Your Rights and Responsibilities When You Move booklet in a revised appendix A to part 375 (the Consumer Protection Regulations) to significantly condense it to be consistent with the new Final Rule.
► Replaces all references to “freight or expense bill,” or “freight bill” with “invoice” to increase clarity to the Individual Shipper and outstanding charges.
► Prohibits requiring an Individual Shipper to sign a blank document.
- The Bill of Lading
At least 3 days before the shipment is scheduled to be loaded, the Mover must prepare and issue the bill of lading with all relevant shipping information necessary to service the move except the actual shipment weight and any other information necessary to determine the final charges for all services performed, and must then provide it to the Individual Shipper for the Individual Shipper to sign and date. Importantly, the Individual Shipper has a new right to “rescind” the bill of lading without any penalty for a 3-day period after the Individual Shipper signs the bill of lading.
FMCSA rejected comments received during the notice and comment period requesting an exception for moves scheduled less than 3 days in advance. FMCSA believes the 3-day rule is necessary even where the move is scheduled less than 3 days in advance because otherwise it would create an exception that swallows the rule – it may allow for bad faith efforts to get around the requirements and further, interstate moves are rarely scheduled within three days of the move date.
One legal definition of “recision” describes the word to mean “the right to cancel (rescind) a contract upon the occurrence of certain kinds of default by the other contracting party.” The Final Rule creates a new right enabling the Individual Shipper to cancel after signing the bill of lading under circumstances where the Mover has not defaulted on any promise or other obligation and further, must be exercisable without any penalty. One can imagine concerns going forward by this change to include recognizing that to dispatch a crew and equipment to perform a move on the job board prior to the expiration of the 3-day period for recision will be at the Mover’s peril. This is because the Individual Shipper has the unfettered right to cancel without any penalty during the recision period.
There are at least 12 modifications required to be made on the bill of lading. One such modification requires incorporation by reference all services included on the estimate.
- The Order for Service
The order for service would no longer be a required document for the shipment of household goods and all references to the order for service are eliminated from the Consumer Protection Regulations. Instead, all information previously required on the order for service, including non-duplicative information, is now incorporated into the bill of lading.
- The Physical Survey – May Be Conducted Virtually By Live or Pre-Recorded Video
The Mover will be required to conduct a physical survey in all instances regardless of distance from the Mover’s location, unless the Individual Shipper elects to waive it in writing. The exception limiting surveys to distances withing 50 miles is eliminated. The 50-mile exception for household goods brokers is eliminated as well. Consequently, Movers and brokers shall be subject to the same survey rule.
As an alternative to an on-site survey, the physical survey may be conducted “virtually” if conducted using technology through live or pre-recorded video allowing clear identification of the household goods to be transported. Adding pre-recorded video as an acceptable technology for the survey is a change from the FMCSA’s notice of proposed rulemaking. In making the change to include pre-recorded video, FMCSA states that a physical survey utilizing pre-recorded video should include an opportunity for follow-up to address any questions about the goods to be moved to ensure that the prepared estimate is as accurate as one that would be prepared following an in-person survey. A virtual survey conducted without a video component, such as verbally or over the phone or through completing a form, would not constitute a required physical survey.
- Furnishing Ready to Move? and Your Rights and Responsibilities When You Move
The Mover is required to provide either a copy of the Ready to Move? – Tips for a Successful Interstate Move and Your Rights and Responsibilities When You Move documents or provide a hyperlink on the Mover’s website to the webpage on the FMCSA website with the publications to the prospective individual shipper with the estimate.
While the Final Rule does remove the requirement for the Individual Shipper to acknowledge a “waiver” statement on the written estimate, a Mover will continue to be required to obtain from the Individual Shipper a signed, dated “receipt” as verification of the Individual Shipper’s agreement to access the Federal consumer protection information via a hyperlink on the internet. The Final Rule continues the requirement of maintaining such receipts for one year from the date the Individual Shipper signs it, unless the Mover does not actually transport the household goods or perform related services for the prospect that signed the receipt.
- The Estimate
A physical survey is required for every estimate unless the Individual Shipper waives the survey in writing as specified.
Revised estimates are eliminated as an option. Instead, a Mover must prepare a new superseding binding or non-binding estimate when the Individual Shipper tenders additional household goods or requests additional services on the day of the move. The new estimate must be prepared prior to loading, to be signed by the Individual Shipper and should indicate the date, time and manner that the new estimate was prepared.
The FMCSA did create a safe-harbor from the 3-day rule affording the recision right. Where the Individual Shipper’s tender of more goods or request for additional services requiring a new estimate thus triggering a corresponding change to the bill of lading, the new estimate would not restart the 3-day rescission clock upon the execution of the bill of lading containing them.
- Civil Penalties Assessed by FMCSA for Violations of the Consumer Protection Regulations
A minimum civil penalty of $1,798 per violation of any regulation relating to the protection of Individual Shipper may be assessed by the FMCSA through a civil penalty proceeding initiated by a notice of claim served on the motor carrier of household goods claiming the alleged violation.
It has been more than a decade since the Federal Consumer Protection rules were last substantively updated. In that time, technology has overtaken many of the outdated practices and procedures in the rules. FMCSA’s justification for the Final Rule includes lessening the paperwork burden and reducing customer confusion – all areas which are good for businesses and consumers alike. Further, the ability to request more surveys for competitive alternatives – would seem in concept to be a good thing.
While the major household goods van lines are probably in high gear right now digesting the changes, internalizing them to conform to updated processes and developing platforms to push out to their agents, for the independent household goods motor carrier, the Final Rule is expected to require an investment of significant time, effort and resources to implement the changes in order to perform interstate household goods moves.
It’s time to get a move on!
Attorneys in our firm have represented businesses in the moving, warehousing and self storage industries in New England for over twenty years. Our practice includes matters involving employment law, corporate governance and claims. We have defended and prosecuted matters on behalf of clients in state and federal court, in mediations and arbitrations.
Dated: Sudbury, MA
May 3, 2022
Andresen & Borovick, LLP
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Sudbury, Massachusetts 01776
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The foregoing is designed to provide general information based on a summary of legal principles for clients and friends of the firm. It is not intended to be construed as legal advice, or legal opinion on any specific facts or circumstances. Companies and individuals should consult with legal counsel before taking any action based on these principles to ensure their applicability in a given situation. The information presented here and on our website should not be construed to be legal advice or the formation of a lawyer/client relationship. Copyright © 2022 Andresen & Borovick, LLP. All rights reserved.
 In Matter Implementation of Household Goods Working Group Recommendations, Dock. No. FMCSA-2020-0205 (Final Rule), 87 Fed. Reg. 24431-24454 (Apr. 26, 2022). According to the FMCSA, the notice of proposed rulemaking and this Final Rule includes consideration of all of the Congressionally mandated changes to the Consumer Protection Regulations appearing in the 2021 Infrastructure Investment and Jobs Act (IIJA). See 87 Fed. Reg. at 24433.
 For a complete understanding of all the applicable changes to the Consumer Protection Rules, the Notice of Proposed Rulemaking and the Final Rule should be reviewed. Presumably on and after June 27, 2022, the Consumer Protection Regulations as revised will appear on eCFR.gov.
 The new rule appears to permit the omission from the prepared bill of lading “information that cannot be determined before loading, such as actual shipment weight” for non-binding shipments “or unforeseen charges incurred in transit” when issuing the bill of lading to the Individual Shipper to sign and date. See new 49 CFR 375.505(g)(2) and (h).
 Black’s Law Dictionary, Abridged Fifth Ed. (West, 1983).
 For a binding estimate, the Mover’s options where additional goods are tendered or additional services are requested and the Mover elects to service the shipment, before loading the Mover must either: (1) reaffirm the binding estimate, (2) prepare the new binding estimate, or (3) agree with the Individual Shipper in writing that both the Mover and Individual Shipper will consider the original binding estimate as a non-binding estimate. 49 CFR 375.403(a)(6)(i)-(iii). For a non-binding estimate, the Mover’s options are: (1) reaffirm the non-binding estimate, or (2) prepare a new non-binding estimate. 49 CFR 375.405(b)(7).