Modal Update Motor Regulatory

Transcription

1 Modal Update Motor Regulatory Jameson Rice June 19, 2016 Copyright 2016 Holland & Knight LLP. All Rights Reserved

2 Topic Overview» Use of CSA data: Congressional FAST Act vs. Agency Safety Fitness Determination Proposed Rule Congress has ordered that use of CSA data be studied and in some ways its use suspended, which is at odds with the FMCSA s proposed expanded use of that same data for safety fitness determinations» High Risk Carrier FMCSA is narrowing the definition of High Risk Carrier so that it can focus its intervention resources on a smaller group quicker» Hours of Service A new 73 hour weekly cap has passed the Senate, which is being opposed from all sides.» Electronic Logbooks The rule has been passed again, with compliance required by the end of 2017» FDA Finally Issues Final Rule on Sanitary Transportation of Human and Animal Food 10 years in the making, the rule has passed, with the onus on shippers. 2

3 FAST Act orders study of CSA» Fixing America s Surface Transportation Act of 2015 (FAST Act) First long-term surface transportation funding bill in more than a decade signed into law on December 4, FMCSA must commission a study to examine its Compliance Safety Accountability (CSA) system and file a public report by the middle of (FAST Act at ). 3

4 Vocabulary: CSA, SMS, BASIC» CSA - Compliance, Safety, Accountability The FMCSA s safety compliance and enforcement program.» SMS - Safety Measurement System The FMCSA s workload prioritization tool. FMCSA uses the SMS to identify carriers with potential safety problems for interventions as part of the CSA.» BASIC - Behavior Analysis and Safety Improvement Categories The SMS assesses motor carrier on-road performance and compliance by organizing data into seven (BASICs): Unsafe Driving, Crash Indicator, Hours of Service, Compliance, Vehicle Maintenance, Controlled Substances/Alcohol, Hazardous Materials Compliance (HM), and Driver Fitness. In each BASIC, the SMS: calculates a quantifiable measure of a motor carrier s performance. groups carriers by BASIC with other carriers that have a similar number of safety events (e.g., crashes, inspections, or violations). ranks these carriers based on their BASIC measure, assigning them a percentile from (the higher the percentile, the worse the safety performance). See 4

5 Challenges to CSA System» Bottom line CSA collects a lot of data and attempts to extrapolate from that a safety score.» Trucking companies have challenged the validity of CSA data in analyzing safety.» Congress has ordered a study of essentially the entire CSA system.» In the meantime, the percentile scores in the CSA BASIC categories have been removed from public view.» Secretary Foxx stated in this month that these scores will remain down for up to two years.» During the review process, [i]nformation regarding alerts and the relative percentile for each BASIC developed under the CSA program may not be used for safety fitness determinations.... 5

6 FMCSA nevertheless wants to use CSA data for Safety Fitness Determinations» Despite the FAST Act s treatment of CSA data, the FMCSA issued a Notice of Proposed Rulemaking the next month (January) indicating its intent to overhaul the way it analyzes commercial motor carrier safety by incorporating CSA data as part of is safety fitness determinations. 81 Fed. Reg (Jan. 21, 2016).» Current System Three tiers ("satisfactory," "conditional," or "unsatisfactory") Used for more than thirty years Relies on investigations and compliance reviews Labor intensive Infrequent, Leaves fitness determinations in place for many years / many motor carriers unrated.» New system Binary rating: "fit" or "unfit." Would allow the FMCSA to evaluate five times as many motor carriers with many more data points. Data points are the CSA data 6

7 FMCSA defends use of CSA data» While the relative percentiles in SMS are not used in making Safety Fitness Determinations under this NPRM, the same data are used." 81 Fed. Reg. at 3564.» Acknowledging that the percentiles and data have been criticized, the FMCSA listed the ways in which it believes it has addressed many of those concerns in the proposed rulemaking, including: requiring significantly more evidence of noncompliance for an "unfit" rating that what is used for current interventions; using absolute values for an unfit determination, not relative rankings, so the performance of other carriers does not affect an individual carrier's status; straight trucks (usually used in short haul operations) would be segmented out from combination trailers (usually used in long haul operations), addressing the disparity between long and short haul operations; and the Crash Indicator BASIC would account for the difference in urban and rural routes. Id. at

8 Criticism of FMCSA» Congress» ATA 36 members of the U.S. House of Representatives wrote a letter to Federal Motor Carrier Safety Administration (FMCSA) Acting Administrator Scott Darling in May urging the FMCSA to delay its rulemaking that would change the process by which the agency makes safety fitness determinations for motor carriers. Letter states: [c]ommon sense dictates that FMCSA should complete the reforms to the CSA/SMS system before proceeding to a new method of evaluating safety fitness of carriers. Until the evaluation of CSA data is complete, it is inappropriate for FMCSA to move forward with its proposal. Though ATA supports the use of real-time, on-road performance data for assigning safety fitness determinations (a.k.a. safety ratings), the organization is opposed to the use of CSA data in its current form for this purpose. - Rob Abbot, ATA vice president of safety policy. 8

9 Use of CSA data in the meantime» Even though the data is no longer public, under the FAST Act the FMCSA may continue to use CSA data to prioritize enforcement, just as it had done before the FAST Act.» Shippers, brokers and insurers may still obtain CSA data, but must request such data from the motor carriers, who also may access their own data. 9

10 Other FAST Act provisions and omissions» Notable Provision Carriers may begin using hair testing rather than urinalysis for federally mandated drug tests once the federal Department of Health and Human Services establishes guidelines for hair testing (to be completed within a year). FAST Act at 5402.» Notable Omission The bill did not include an increase to the maximum weight of vehicles above 80,000 lbs, or increase the maximum length of tractor-trailers. There had been efforts to increase the weight limit to 91,000 and to allow a tractor-trailer combination of two 33 foot trailers or "twin-33s." 10

11 FMCSA to Prioritize Investigation of Highest Risk Carriers» The FMCSA has narrowed its definition of high risk carrier, allowing it to prioritize its resources on a smaller group of carriers and investigate them sooner. 81 Fed. Reg (Mar. 7, 2016).» Under the new definition, a property carrier is deemed high risk if in any month it scores in the 90th percentile or higher for two or more of the Behavior Analysis and Safety Improvement Categories (BASIC) of Unsafe Driving, Crash Indicator, Hours of Service Compliance and Vehicle Maintenance, and the carrier has not received an onsite investigation in the previous 12 months.» The outgoing policy applied to more carriers, which lead to a long queue for investigations even of high risk carriers.» The new prioritization follows the finding of an NTSB investigation released in February involving two high risk carriers in which a commercial driver struck a disabled commercial truck, which resulted in one death and injuries to both drivers and a state trooper. 11

12 Hours of Service - Background» Hours of Service Rule Commercial truck drivers may not work more than 60 hours in 7 days or 70 hours in 8 days. But drivers may restart the clock on the number of hours they are permitted to drive during this period by being off duty for 34 consecutive hours. In 2013, the FMCSA instituted a further requirement that this 34-hour period must include two consecutive periods between 1 a.m. and 5 a.m. In 2014 Congress suspended the 1 5 a.m. requirement In 2015 Congress passed a law that would make it harder for the FMCSA to reinstate that requirement. But a drafting error would have jettisoned the restart system altogether, rather than just the 1-5 a.m. requirement. 12

13 Hours of Service Fix» Rather than simply fix the error, Senate appropriators passed a bill that would prevent truckers from driving if they work more than 73 hours in seven-day period, regardless of whether or not they had used the 34- hour restart.» The Senate passed the funding bill overwhelmingly.» New 73 hour cap is intended to address claims from safety organizations that a trucker could reach 82 hours in a week using restarts.» Takes the hours of service debate out of the hands of the FMCSA. 13

14 Hours of Service Criticism and Response» Criticism White House, ATA, and safety advocates united The ATA, speaking through its press secretary, initially showed support for the new language but later, speaking through its lead lobbyist, stated that it is against the cap. The Advocates for Highway and Auto Safety and the Trucking Alliance -- a coalition of trucking and logistics companies advocating for safe working conditions for commercial truckers -- have both voice opposition to the cap. The Obama administration indicated that the provision could potentially undercut public safety, and could veto the legislation» Response Senator Susan Collins, who leads the panel that created the bill, stated that the 73-hour limit was a compromise proposal. 14

15 Electronic Logbooks» The FMCSA issued its long awaited final rule requiring electronic logging devices (ELDs) to record driver hours of service. 80 Fed. Reg (Dec. 16, 2015).» Compliance is required as of December 18, 2017.» OOIDA is challenging the rule, which it has done successfully in the past. 15

16 FDA Finally Issues Final Rule on Sanitary Transportation of Human and Animal Food» After more than a decade, the FDA passed a final rule in April regarding the sanitary transportation of human and animal food by truck and rail. 81 Fed. Reg (April 6, 2016).» Proposed Rule was presented on at last year s ATLP annual meeting by David Prohofsky, Esq., Senior Counsel for CSX Transportation, and Jon Samson, Executive Director Agricultural & Food Transportation Conference for the American Trucking Association 16

17 FDA Rule Changes» Significant changes since the advance notice of proposed rulemaking: primarily responsibility on the shipper for determining appropriate transportation operations and the relevant operating temperature and mode of temperature monitoring: Shipper in the best position to know the appropriate specifications. The shipper may assign some of these responsibilities to other parties by contract. Shippers granted certain flexibility. If the temperature was not precisely maintained throughout transport, the shipper can determine if the food was adulterated or not. Shipper and carrier may agree to a temperature-monitoring mechanism rather than prescribed temperature-monitoring devices or continuous monitoring.» Food transported in a completely enclosed container is excluded from the rule, except food that requires temperature control for safety, food contact substances, and human food byproducts transported for use as animal food without further processing. 17

18 FDA Rule Applicability and Compliance» The rule applies to: shippers, loaders, receivers and carriers by motor vehicle and rail vehicle engaged in food transportation.» Individuals will be responsible for possible food safety failures they observe. [i]f a person subject to this rule becomes aware of an indication of a possible material failure of temperature control or other conditions that may render the food unsafe during transportation, the person must take appropriate action to ensure that the food is not sold or otherwise distributed unless a determination is made by a qualified individual, that the temperature deviation or other condition did not render the food unsafe.» Large businesses will be required to comply with the new regulation in April 2017 and smaller businesses will be given an additional year. 18

19 Questions?

20 Thank You!

21 Biography Jameson Rice Jameson is a lawyer in Holland & Knight's Washington, D.C., office, focusing his practice primarily on matters pertaining to the transportation industry, with experience in rail, intermodal (multimodal), and road transportation, as well as unmanned aircraft systems (UAS or drones). His experience includes: Transactional: Operating agreements; equipment purchases; intermodal and terminal services agreements; interchange agreements under the Association of American Railroads (AAR) Intermodal Interchange Rules, and the Uniform Intermodal Interchange and Facilities Access Agreement (UIIA); and the sale and lease of transportation-related assets Regulatory: Regulatory compliance regarding regulations of the Federal Motor Carrier Safety Administration (FMCSA) (including Hours of Service Regulations), and the Pipeline and Hazardous Material Safety Administration (PHMSA) (including Special Permits); matters before the Surface Transportation Board (STB); and matters before the Federal Aviation Administration (FAA) pertaining to the commercial use of UAS Litigation and Dispute Resolution: Freight claims and representation in federal, state and arbitration proceedings.» Jameson B. Rice» Associate» Washington, D.C.» T » jameson.rice@hklaw.com Practice Education Bar Admission Freight Rail Motor Carriers and Logistics Litigation and Dispute Resolution Regulatory and Federal Litigation Drone Practice Boston University School of Law, J.D., cum laude The Johns Hopkins University, M.A.T. University of Florida, B.A., Political Science, cum laude Florida District of Columbia 21