EMPLOYMENT (“EMPLOYEE MISCLASSIFICATION”) / NY Governor Cuomo is expected to sign next month a bill that classifies truck drivers heretofore classified as independent contractors as employees instead – substituting a trucking-specific test for the traditional test for independent contractors developed at common law and embodied in state statutes.

August 12, 2013 Transport Topics article available here.

Copy of Senate bill introduced April 12, 2013 and as amended on third reading on June 18, 2013 available here.

NEW RULES & DECISIONS CONTENTS SUMMARY FOR WEEK OF 8/7/2013

CLICK ON SUMMARY BELOW TO ACCESS THE BLOG POST

A. TOPICS BY TRANSPORT MODE.

Aviation

Maritime

Motor Carriers

Railroads

  • Preliminary Agency Inquiry – Letter from Federal Railroad Administration to American Petroleum Institute is viewed by informed observers as the first step to tightened shipping standards for crude oil on U.S. railroads. Viewed as further response to Lac-Mégantic tragedy. Wall Street Journal story available here. FRA letter text available here.

B. TOPICS BY TRANSPORT POLICY.

Hazardous Materials

C. TOPICS BY AGENCY INITIATIVE.

No post this week.

D. TOPICS BY LEGAL DISCIPLINE.

Preemption

E. NOTEWORTHY CRIMINAL ENFORCEMENT, CIVIL ACTIONS or INSPECTOR GENERAL AUDITS.

No post this week.

HAZARDOUS MATERIALS (STATIONARY EMPHASIS) / President issues executive order to Cabinet Departments of Homeland Security and Labor, and the Environmental Protection Agency to lead multiple Federal cabinet departments and agencies on a high-level review of “chemicals, and the facilities where they are manufactured, stored, distributed, and used” in response to incidents like the one at West, Texas.

“Improving Chemical Facility Safety and Security”

August 7, 2013. Executive Order 13650 of August 1, 2013. 

 

 

 

 

 

 

MOTOR CARRIERS (REGULATORY REFORM) / Federal Motor Carrier Safety Administration (FMCSA) “proposes to rescind the requirement that commercial motor vehicle (CMV) drivers operating in interstate commerce, except drivers of passenger-carrying CMVs, submit, and motor carriers retain, driver-vehicle inspection reports when the driver has neither found nor been made aware of any vehicle defects or deficiencies”.

“Inspection, Repair, and Maintenance; Driver-Vehicle Inspection Report”

August 7, 2013. Notice of Proposed Rulemaking.

“…This proposed rule would remove a significant information collection burden without adversely impacting safety. This proposed rule responds in part to the President’s January 2011 Regulatory Review and Reform initiative. Finally, this proposed rule harmonizes the pre- and post-trip inspection lists.”

HAZARDOUS MATERIALS (RAILROADS) / Two agency developments responding to the Lac-Mégantic tragedy: (1) Federal Railroad Administration (FRA) emergency order “for attendance and securement of certain freight trains … on mainline track or mainline siding outside of a yard or terminal; and (2) FRA and Pipeline and Hazardous Materials Safety Administration (PHMSA) jointly announce emergency meeting of Railroad Safety Advisory Committee on railroad and hazardous materials issues related to Lac-Mégantic.

ITEM #1: “Emergency Order Establishing Additional Requirements for Attendance and Securement of Certain Freight Trains and Vehicles on Mainline Track or Mainline Siding Outside of a Yard or Terminal.

August 7, 2013. Notice.

ITEM #2: “Lac-Mégantic Railroad Accident Discussion and DOT Safety Recommendations”

August 7, 2013. Notice Of Safety Advisory And Announcement Of Emergency Meeting Of The Railroad Safety Advisory Committee.

With respect to FRA and PHMSA joint meeting to discuss implications of Lac-Mégantic incident for U.S. railroad and hazardous materials policy.

MARITIME (U.S. COAST GUARD GUIDANCE) – “The Coast Guard announces the availability of Navigation and Vessel Inspection Circular (NVIC) 02-13, that sets forth the Coast Guard’s policies and procedures regarding the inspection of U.S. vessels for voluntary compliance with the Maritime Labour Convention, 2006 (MLC or Convention). The Convention enters into force on August 20, 2013.”

“Final Guidance Regarding Voluntary Inspection of Vessels for Compliance With the Maritime Labour Convention, 2006”

August 6, 2013. Notice of Availability.

“…The Convention enters into force on August 20, 2013. The purpose of NVIC 02-13 is to provide guidance to the maritime industry, Coast Guard marine inspectors, and other affected parties on how the Coast Guard intends to implement the new voluntary inspection program. The Coast Guard finalized NVIC 02-13 after considering public comments received in response to our publication of a draft version of NVIC 02-13 in the Federal Register on February 11, 2013.”

AVIATION (PROPOSED CANCELATION OF NDB AND VHF-VOR CAPABILITIES) / Notice of Proposed Policy and Request for Comment – “The FAA [Federal Aviation Administration] is considering the cancellation of certain Non-directional Beacon (NDB) and Very High Frequency (VHF) Omnidirectional Radio Range (VOR) instrument approach procedures (IAP) at airports that have multiple instrument approach procedures. The FAA proposes specific criteria to guide the identification and selection of appropriate NDB and VOR instrument approach procedures that can be considered for cancellation. The VOR IAPs associated with this cancellation initiative would be selected from the criteria outlined below. This Notice is not a part of the FAA’s VOR minimum operating network (MON) initiative.”

FAA’s reasoning: “As, new technology facilitates the introduction of area navigation (RNAV) instrument approach procedures over the past decade, the number of procedures available in the National Airspace System has nearly doubled. The complexity and cost to the Federal Aviation Administration (FAA) of maintaining the existing ground based navigational infrastructure while expanding the new RNAV capability is not sustainable.”

“Proposed Policy for Discontinuance of Certain Instrument Approach Procedures” 

August 2, 2013. Notice Of Proposed Policy And Request For Comment

AVIATION (FAA CERTIFICATION OF AIRCRAFT) / Federal Aviation Administration (FAA) announced: “The FAA is streamlining aircraft certification and approval processes to keep pace with technological advancements in aviation products and to help the United States maintain global competitiveness. The plan responds to recommendations in the May 2012 Aircraft Certification Process Review and Reform Aviation Rulemaking Committee report to enhance the efficiency of getting new products to market while improving safety.”

FAA announcement available here.

Plan itself available here.

MOTOR CARRIER (LOSS OF CDL DUE TO OFF DUTY DRUNK DRIVING) / Connecticut Supreme Court upholds state agency administering unemployment compensation in its ruling that the relevant unemployment compensation statute WAS NOT “intended to disqualify an individual from receiving benefits when he loses his commercial driver’s license for driving under the influence of alcohol while off duty, and, as a consequence, is discharged from employment for which that license is required”.

Tuxis Ohr’s Fuel, Inc. v. Administrator, SC 18791 (Supreme Court of Connecticut, July 30, 2013). Google Scholar version of opinion available here.

Over a strong dissent, the majority of the Court ruled that driver would be eligible for unemployment compensation despite the fact that he had lost his license due to his own conduct, i.e., driving under the influence of alcohol.

PREEMPTION (RAILROADS & LOCOMOTIVES) / Court Case – In motion to dismiss under Rule 12(b)(6), held: Locomotive Inspection Act held to preempt state contract claims based on allegations by Plaintiff Canadian Pacific Railway / user of locomotive against manufacturers of seats used in locomotive made by GE Transportation that the seats failed to meet contracted safety requirements. The Act, “manifests Congress’s intent ‘to occupy the entire field of regulating locomotive equipment’ and, as such, pre-empts any state laws or regulations which pertain ‘to the design, the construction and the material of every part of the locomotive and tender and of all appurtenances.’”

Del. & Hudson Ry. Co. v. Knoedler Mfrs., Inc., C.A. No. 11-314 Erie (U.S. District Court for the Western District of Pennsylvania, August 1, 2013). Court-issued opinion available here.