March 15 – Safety & Compliance
FMCSA Hosts Analysis, Research and Technology Forum. On March 10, the Federal Motor Carrier Safety Administration hosted its annual Analysis, Research and Technology Forum to highlight the agency’s ongoing research and analysis dedicated to improving motor carrier safety.
The forum heard presentations from FMCSA staff on trends in commercial motor vehicle safety, agency enforcement efforts, policies on automated commercial motor vehicles, and FMCSA research activities supporting those efforts.
The FMCSA Pocket Guide to Large Truck and Bus Statistics was referenced as a source for data on truck inspections, operational mileage and crashes by type. The guide also includes the most frequent violations cited for truck and driver inspections.
FMCSA indicated it is looking at the crash risk of commercial motor vehicle drivers medically certified for less than two years compared to those CMV drivers certified for two years, and is reviewing its seizure standard for drivers, which currently requires an exemption for medical qualification. The agency is also studying the effectiveness of the North American Fatigue Management Program.
Acting FMCSA Administrator Meera Joshi expressed concern that highway fatalities rose significantly from 2019 to 2020 even though travel was discouraged due to the COVID-19 pandemic. She also said the agency is working on addressing the workforce disruption expected to come from vehicle automation.
Director of the FMCSA Office of Enforcement Joe DeLorenzo noted that the agency is still assessing how to implement the Item Response Theory process for replacing the Compliance Safety Analysis methodology to identify at risk motor carriers for enforcement interventions, as recommended in 2017 by the National Academies of Sciences. He gave no timetable for implementing the IRT approach, although the agency has contracted with the Volpe Center of DOT to develop, test and implement an IRT model.
Mr. DeLorenzo also reported that the Entry-Level Driver Training rule is expected to go into effect in February 2022 as planned, and the Training Provider Registry of certified driver trainers will be available online on the FMCSA website this fall. Training providers will be able to submit their program self-certifications beginning this summer. He also said that carriers and drivers will be able to register this summer for electronic updates on the ELDT program.
Interested Parties Group Considers Hazmat Legislative Proposals. The Interested Parties Group for Hazardous Materials Transportation, a coalition of over 45 trade associations (including GAWDA) representing shippers and carriers of hazardous materials by all modes, is considering its list of legislative issues to provide to Congress for consideration in the expected Hazmat Title of the coming infrastructure legislation.
The ten proposals include streamlining the definition of hazmat employee, requiring other agencies to consult with DOT before implementing regulations that affect hazmat transportation, reducing the requirement for shippers to keep copies of shipping papers from two years to one year, facilitating the incorporation of longstanding special permits into the Hazardous Materials Regulations, and requiring DOT to issue implementing regulations on international harmonization of HM standards within six months of the biennial report of the United Nations Recommendations on the Transport of Dangerous Goods.
Also, the proposals would eliminate a criminal sanction for reckless violation of the HMR, clarify that the “obstacle” test for preemption include any requirement that imposes an unreasonable burden on interstate commerce, clarify that railroad tank cars containing hazardous materials are inherently “in transportation” and therefore are not subject to state or local regulatory requirements, require a preemption determination to go into effect immediately unless a stay is granted, and keep the current funding caps for Emergency Preparedness Grants.
If you have any comments or questions about these proposals, or would like to suggest additional topics, please contact GAWDA Counsel Rick Schweitzer at [email protected] or (703) 946-2548.
Labor Department Proposes Withdrawal of Independent Contractor Rule. The Wage and Hour Division of the U.S. Department of Labor is proposing to withdraw a Trump Administration final rule on Independent Contractor Status under the Fair Labor Standards Act, which was published on January 7, 2021 and the effective date of which is currently May 7, 2021. 86 Fed. Reg. 14027 (March 12, 2021).
The FLSA requires employers to pay non-exempt employees at least the minimum wage and overtime for all hours worked over 40 hours per week. Workers who are independent contractors are exempt from these requirements. (Drivers of commercial motor vehicles who are subject to the Department of Transportation’s hours of service rules are separately exempt from the overtime requirements, but no the minimum wage requirements, of the FLSA.)
The FLSA does not define who is an independent contractor, however. Over the years courts and the DOL have developed a multifactor test to determine whether, as a matter of economic reality, the worker is dependent on a particular individual, business, or organization for work (and is thus an employee) or is in business for him- or herself (and is thus an independent contractor).
The new rule would use a five-part test, with the first two parts considered the most important in determining the worker’s status: the nature and degree of the worker’s control over the work; and the worker’s opportunity for profit or loss based on initiative, investment, or both.
The other three parts of the test are: the amount of skill required for the work, the degree of permanence of the working relationship between the individual and the potential employer, and whether the work is part of an integrated unit of production. Also, the actual practice between the parties is more important that the terms of any contract between them.
In proposing to withdraw the final rule, the Wage and Hour Division would revert to an “economic realities” test first enunciated by the U.S. Supreme Court in 1947 in United States v. Silk, 331 U.S. 704, which says that “employees are those who as a matter of economic realities are dependent upon the business to which they render service.”
The factors to be considered under this test include: (1) The degree of the employer’s right to control the manner in which the work is to be performed; (2) the worker’s opportunity for profit or loss depending upon his or her managerial skill; (3) the worker’s investment in equipment or materials required for his or her task, or employment of helpers; (4) whether the service rendered requires a special skill; (5) the degree of permanence of the working relationship; and (6) whether the service rendered is an integral part of the employer’s business.
PRO Act Passes House by a Vote of 225-206. The Preserve the Right to Organize Act, or PRO Act, H.R. 842, has passed the U.S. House of Representatives by a vote of 225-206. The bill would adopt as federal law the California ABC test for determining whether a worker is an employee or an independent contractor.
The ABC test was adopted by the California Supreme Court in its 2018 decision in Dynamex Operations West, Inc. v. Superior Court. That decision held that under California wage orders, a person who performs work for a business is presumed to be an employee entitled to the protections afforded by the wage orders; that presumption may be rebutted only by meeting all three parts of the ABC test are met. This test was later was codified by the California Legislature in Assembly Bill 5 (AB 5), which was signed into law September 11, 2019 and became effective for all workers in California on January 1, 2020.
The three-part test is:
(A) the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
(B) the worker performs work that is outside the usual course of the hiring entity’s business; and
(C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
For trucking, the “B” prong is problematic, as a driver is generally performing work that is in the usual course of the hiring company’s business. This makes it extremely difficult, if not impossible, to have a truck driver legally classified as an independent contractor under California law.
H.R. 842 now progresses to the U.S. Senate, where it will likely face a filibuster by Senate Republicans, which would require a 60-vote majority for passage.
Interested Parties for Hazardous Materials Transportation
Section-by-Section Description of Proposed Amendments to the Hazardous Materials Transportation Act
In order pursuant to 49 U.S.C. Chapter 51:
Proposal 1. In 49 USC 5102(4), the definition of “hazmat employer” includes someone who employs or “uses” a hazmat employee. In 2005, the definition of a “hazmat employee” was revised to eliminate the “or uses” language, so that contractors would not be included in the definition. We propose to remove the words “or uses” from the definition of “hazmat employer” for consistency and to eliminate contractors from the definition.
(4) “hazmat employer” –
(A) means a person –
(i) who –
(I) employs or uses at least 1 hazmat employee on a full time, part time, or temporary basis; or
(II) is self-employed (including an owner-operator of a motor vehicle, vessel, or aircraft) transporting hazardous material in commerce; and
(ii) who –
(I) transports hazardous material in commerce;
(II) causes hazardous material to be transported in commerce; or
(III) designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs, or tests a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce; and
(B) includes a department, agency, or instrumentality of the United States Government, or an authority of a State, political subdivision of a State, or Indian tribe, carrying out an activity described in clause (ii).
Proposal 2. In 5103(d), the Secretary of Homeland Security must consult with the Secretary of Transportation before issuing a security regulation or security order that affects the safety of the transportation of hazardous materials. We would broaden the language to require any federal agency to consult with the Secretary of Transportation before issuing a regulation or order that affects the safety of the transportation of hazardous materials.
(d) Consultation. – Any department or agency of the Federal Government shall consult with the Secretary of Transportation When when prescribing a security regulation or issuing an security order that affects the safety of the transportation of hazardous material, the Secretary of Homeland Security shall consult with the Secretary of Transportation.
Proposal 3. In 5110(d), we propose to require that offerors (“shippers”) keep shipping papers for one year after the date that the shipping paper is provided to the carrier. This would be consistent with the requirement that carriers retain shipping papers for one year.
(d) Retention of Papers. –
(1) Offerors. – The person who provides the shipping paper under this section shall retain the paper, or an electronic format of it, for a period of 2 years 1 year after the date that the shipping paper is provided to the carrier, with the paper or electronic format to be accessible through the offeror’s principal place of business.
Proposal 4. In 5117(f), there is a requirement that the Secretary analyze all special permits that have been in effect for 10 years to determine if they may be incorporated into the Hazardous Materials Regulations. We propose to reduce the time required for a special permit to be in effect to six years, and to require the Secretary to conduct such an incorporation rulemaking at least every two years.
(f) Incorporation Into Regulations. —
(1) In General. —Not later than 1 year after the date on which a special permit has been in continuous effect for a 10-year 6-year period, the Secretary shall conduct a review and analysis of that special permit to determine whether it may be converted into the hazardous materials regulations.
(2) Factors. —In conducting the review and analysis under paragraph (1), the Secretary may consider—
(A) the safety record for hazardous materials transported under the special permit;
(B) the application of a special permit;
(C) the suitability of provisions in the special permit for incorporation into the hazardous materials regulations;
(D) rulemaking activity in related areas.
(3) Rulemaking. – Biennially, the Secretary shall initiate a rulemaking to incorporate into the hazardous materials regulations those special permits determined to meet the standard for incorporation under this subsection.
Proposal 5. In 5120, we propose that the Secretary of Transportation must publish any international harmonization rulemaking within a reasonable period of time after the biennial meeting of the United Nations Experts on the Transport of Dangerous Goods, and issue any final rule at least six months before the mandatory compliance date.
(c) Harmonization of Safety Regulations. – To maintain alignment with international regulations and standards that are necessary to harmonize the regulations prescribed under this chapter with recent changes made to the International Maritime Dangerous Goods Code, the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air, and the United Nations Recommendations on the Transport of Dangerous Goods—Model Regulations, the Secretary shall issue final rules no later than July 1 of the year prior to the biennial January 1 effective date of these international regulations and standards.
(c)(d) Differences With ***
Proposal 6. In5124(d), a new criminal sanction, “reckless violations”, was added in 2005 to align the FAA statute with the HMTA. This sanction is not appropriate for non-air modes of transportation that generally do not transport passengers together with hazardous materials cargo, and should be deleted. Removing the standard from the HMTA would have no effect the FAA statute where the standard would remain.
Since the HMTA was enacted in 1975, two well-established standards of culpability have applied to violations of the statute – a “knowing” standard applicable to civil violations and a “willful” standard for criminal violations. The HMTA provision on “reckless violations” is a third unnecessary burden of proof in the statute. The HMTA provision on “reckless violations” appears to require a greater showing than a “knowing” violation, and less than a “willful” violation. This hybrid penalty action, to our knowledge, has not been utilized since 2005, and adds unnecessary uncertainty to the world of commercial hazmat transportation.
(d) Reckless violations. –For purposes of this section, a person acts recklessly when the person displays a deliberate indifference or conscious disregard to the consequences of that person’s conduct.
Proposal 7. In 5125(a)(2), we propose to clarify that the “obstacle” test for preemption include any requirement that imposes an unreasonable burden on interstate commerce.
(a) General. – Except as provided in subsections (b), (c), and (e) of this section and unless authorized by another law of the United States, a requirement of a State, political subdivision of a State, or Indian tribe is preempted if –
(1) complying with a requirement of the State, political subdivision, or tribe and a requirement of this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security is not possible; or
(2) the requirement of the State, political subdivision, or tribe, as applied or enforced, is an obstacle to accomplishing and carrying out this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security; or
(3) the requirement of the State, political subdivision, or tribe, as applied or enforced, imposes an unreasonable burden on interstate commerce.
Proposal 8. In 5125(b), we would like to clarify that railroad tank cars containing hazardous materials are inherently “in transportation” and are, therefore, not subject to non-federal regulatory requirements.
(b) Substantive Differences. —
(1) Except as provided in subsection (c) of this section and unless authorized by another law of the United States, a law, regulation, order, or other requirement of a State, political subdivision of a State, or Indian tribe about any of the following subjects, that is not substantively the same as a provision of this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security, is preempted:
(F) the handling, transportation, or placement of rail cars containing hazardous materials by railroads.
Proposal 9. In 5125(d), if a petition for reconsideration of a preemption determination is filed, the effectiveness of the preemption determination is stayed pending a decision on the petition for reconsideration. There is no time limit on when the agency must decide a petition for reconsideration. Consequently, preemption decisions may not be implemented for years. We propose to make the initial preemption determination the final agency action and require an aggrieved party to seek a stay of the preemption determination from the agency or a court while a petition for reconsideration is pending.
(d) Decisions on Preemption. –
(1) A person (including a State, political subdivision of a State, or Indian tribe) directly affected by a requirement of a State, political subdivision, or tribe may apply to the Secretary, as provided by regulations prescribed by the Secretary, for a decision on whether the requirement is preempted by subsection (a), (b)(1), or (c) of this section or section 5119(f). The Secretary shall publish notice of the application in the Federal Register. The Secretary shall issue a decision on an application for a determination within 180 days after the date of the publication of the notice of having received such application, or the Secretary shall publish a statement in the Federal Register of the reason why the Secretary’s decision on the application is delayed, along with an estimate of the additional time necessary before the decision is made. The Secretary’s decision on preemption constitutes final agency action unless a stay is granted while a petition for reconsideration is pending. After notice is published, an applicant may not seek judicial relief on the same or substantially the same issue until the Secretary takes final action on the application or until 180 days after the application is filed, whichever occurs first.
(2) Any person aggrieved by a determination under paragraph (1) of this subsection may file a petition for reconsideration as provided by regulations prescribed by the Secretary. The filing of a petition for reconsideration shall not stay the effective date of a decision on preemption, unless, upon application by the petitioner, the Secretary grants a stay of the determination pending reconsideration. The Secretary shall publish notice of the petition for reconsideration, any application for stay and the decision thereon, and the Secretary’s decision on the petition for reconsideration in the Federal Register. The Secretary’s decision on the petition for reconsideration becomes the final agency action.
Proposal 10. In 5128(b) and (c), we request no increase in the statutory EPG funding caps for programs funded by hazmat registration fees. Over $500 million has been paid in fees by hazmat registrants to fund the EPGs since inception of these programs. Fee-payers have supported shifting HMTA grant assistance from funding EPA’s emergency preparedness planning program to hazmat training for emergency responders. The need to train emergency responders, the majority of whom are volunteers, is ever present. However, the grant allocation remains at approximately 40 percent for EPA’s planning program and 60 percent for training.
(No change to the statutory text.)
(b)Hazardous materials emergency preparedness fund. – From the Hazardous Materials Emergency Preparedness Fund established under section 5116(h), the Secretary may expend, for each of fiscal years 2016 through 2020—
(1) $21,988,000 to carry out section 5116(a);
(2) $150,000 to carry out section 5116(e);
(3) $625,000 to publish and distribute the Emergency Response Guidebook under section 5116(h)(3); and
(4) $1,000,000 to carry out section 5116(i).
(c)Hazardous materials training grants. – From the Hazardous Materials Emergency Preparedness Fund established pursuant to section 5116(h), the Secretary may expend $4,000,000 for each of fiscal years 2016 through 2020 to carry out section 5107(e).