The Fixing America’s Surface Transportation Act (FAST Act) has received a good deal of attention in the trucking industry since its enactment in December 2015 and it is important for the industry to continue to pay attention and think ahead beyond the Act’s 5-year plan.

FAST Act
As most of those reading this know, the FAST Act sets funding authorization levels for the Federal Motor Carrier Safety Administration (FMCSA) through Fiscal Year 2020.  The Act also mandates several rulemakings, reports to Congress, studies, and formation of working groups along with associated deadlines for compliance.

Specifically amongst the items that the FAST Act requires: 20 FMCSA rulemakings, 15 reports to congress, creation of a “Beyond Compliance” program and the establishment of several working groups to assist the agency’s implementation efforts.  Notably, the outcome, content and associated effects on the future of the industry that will stem from these 20 rulemakings, 15 reports, studies, programs, and working groups are unknown at this time.

Reactions to the Fast Act
Given Washington D.C.’s current hostile political atmosphere, the FAST Act was an unexpected bipartisan show of cooperation, and we do not disagree that the Act is progress in the right direction compared to the short-term Band-Aid funding approach that was previously in place since 2009.  However, giving Washington a pat on the back for playing nice with one another does not fill in the blanks for the substantial amount of unknown long-term effects and lack of guidance for future funding.

The 1,300 page Act allows numerous hands into the funding pot without providing a strategy or ample guidance to ensure the industry’s funding outside of the Act’s 5 year plan.  Instead, the Act allows those hands to pull from several short-term and one-time only funding sources which nearly guarantees that Washington will need to revisit this issue in the future.

On the flip side, the ATA and several other industry groups are pleased that the bill takes steps to reform the FMCSA’s CSA safety monitoring system, opens the door for the use of hair testing for federally mandated drug tests, makes it easier for veterans returning from service to enter the trucking industry and sets aside dedicated funds for important highway freight projects.  The ATA also expressed its disappointment in the Act’s failure to bridge the gap between state and federal governments- further deepening the fragmentation of the two entities.

Washington’s Conflicting Views:
For the most part, there are two reoccurring views on the FAST ACT in Washington: 1) the Act is positive for now and will promote growth over the next 5 years; and 2) the Act is insufficient and creates fear for the future.

Positive for the present: “This is a common-sense, bipartisan bill that provides our state and local governments with the certainty they need to begin to plan for long-term projects that bring our aging system into the 21st century.”- Peter DeFazio, D-Ore., House Transportation and Infrastructure Committee Ranking Member

Fear of the future: “The way the bill is paid for is simply irresponsible…..and creates terrible precedent” “Rather than leading, Congress is passing the buck by using a grab bag of budget gimmicks and poaching revenues from unrelated programs for years to come in order to pay for today’s transportation needs…..setting a bad transportation policy that undermines the user-pays principle, which has been the bedrock of investment in our nation’s highway and transit systems for more than half a century. And it sets bad fiscal policy that will actually increase our deficit in the long run.”- Senator Tom Carper, D-Del., senior member of the Environment and Public Works committee

As time progresses and more action is taken pursuant to the Act’s mandates, the long-term effects of the Act will become more clear. We are hopeful this will prompt the legislature to address any issues with future funding as they become evident well before the end of the 2020 fiscal year to avoid reverting to the Band-Aid funding approach.   It is important to watch these issues as they develop instead of being lulled into a false sense of the security that the current funding plan gives, since as of right now, it is not a permanent solution.

As stated above, the Act’s lack of guidance for the future in conjunction with the limited amount of renewable funding and the high degree of separation between state and federal governments create high odds of future industry funding chaos past 2020 if nothing is done in the meantime.   This is why it is more important than ever that the industry educate themselves and make their voices heard prior to the Act’s expiration in 2020.   Here are a few recent happenings below.

Recent Activity Involving “Unknowns”
Beyond Compliance
The Act requires FMCSA to implement a “Beyond Compliance” program no later than 18 months after the enactment of the Act. Through this proposed program, the FMCSA Administrator must allow recognition, either through credit recognized by a new Beyond Compliance Behavior Analysis and Safety Improvement Category
(BASIC), or an improved Safety Measurement System (SMS) percentile, for a motor carrier that:

(1) Installs advanced safety equipment;
(2) uses enhanced driver fitness measures;
(3) adopts fleet safety management tools, technologies, and programs; or
(4) satisfies other standards determined appropriate by the Administrator.

At this point, it appears the agency is considering adding Beyond Compliance as an eighth BASIC.  Regardless of whether it is added as a BASIC or not, those in support believe that Beyond Compliance will encourage industry members to go above and beyond the baseline compliance standards and will lead to an overall industry improvement.  Those opposed believe that the weight of technology as used in the standards listed above, on its own, should not underscore what passes for safety at the FMCSA, but instead, data that has a direct relationship with crashes should be focused on more heavily.

The FAST Act also requires that the Agency provide the opportunity for notice and comment on a process for identifying and reviewing the above- the comment session is open until June 20, 2016 and used to finalize the details of the program.    These comments will be used to finalize and implement the program.

MCSAP Allocation Formula Working Group

The FAST Act calls for the Department of Transportation/FMCSA to establish several working groups to assist the Agency’s implementation efforts.  Specifically, the DOT Secretary is required to establish a MCSAP Allocation Formula working group within 180 days of the Act’s enactment.  The DOT announced the establishment of the group on April 8, 2016- to analyze the requirements and factors for a new allocation formula.  The group has until April 8, 2017 to report its recommendations.

MCSAP is the flagship state grant program of the FMCSA that is used to maintain states’ commercial motor vehicle (CMV) enforcement programs around the country, providing critical support for state-conducted compliance investigations, roadside inspections, new entrant audits and traffic enforcement activities.

Eight of the 10 working group public members are from state CMV safety agencies. The group also includes two members from non-profit organizations representing state CMV enforcement agencies as a whole. FMCSA also appointed a panel of five employees from their agency to review all considerations submitted by the group.  While these are all appointments within the industry and pure motives are to be assumed-this is a very small group to mold the MCSAP’s future allocations and policies.

We are hopeful the Act is amended overtime to provide a sustainable funding structure for the future. In the meantime, industry members should continue to educate themselves and make their voices heard prior to the Act’s expiration in 2020.

Emily Littlefield is an associate attorney at Roberts Perryman. Emily’s practice focuses on transportation, insurance coverage and defense.

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com