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Regulatory and Legislative Update - January 2022

By Dan Boaz

Contents

FMCSA has extended its emergency declaration regarding COVID-19 through February 28. For the latest version and other guidance related to COVID-19 is available at www.fmcsa.dot.gov/COVID-19. Note that use of the declaration now requires monthly reporting by carriers.

Regulation and Enforcement

Legislation

Advocacy and Comment

 

Regulation and Enforcement

Supreme Court blocks vaccination/testing mandate on larger employers

The U.S. Supreme Court on January 13 stayed an emergency temporary standard (ETS) that generally would have required employers with 100 or more employees to ensure that all employees are either vaccinated against coronavirus (COVID) or undergo weekly COVID testing. A federal appeals court in December had lifted a stay that another court had imposed on the ETS, but the Supreme Court expedited a review of that decision. Supply chain stakeholders, including trucking industry groups, had sounded alarms over the effect of a vaccine mandate on the supply of workers.

Key to the Supreme Court’s decision was a conclusion that COVID is not a workplace hazard within the jurisdiction of the Occupational Safety and Health Administration (OHSA). “Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the court ruled. For the Supreme Court opinion, visit https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf. Technically, the court’s action only blocks the mandate pending further litigation, but given the 6-to-3 decision, the Biden administration apparently has accepted the stay as the final word on the ETS.

Earlier on the day of the Supreme Court action, the trucking industry had secured a small victory regarding the mandate. OSHA issued guidance to the effect that solo truck drivers generally would not be subject to the ETS provided that their indoor interaction with others was minimal. However, that guidance is now moot now that the Supreme Court has blocked the ETS entirely.

Canadian vaccine mandate for U.S. truck drivers takes effect January 15

Although U.S. employers will not have to deal with a vaccine/testing mandate in the U.S., cross-border trucking operations face a vaccine mandate beginning January 15 for drivers entering Canada. U.S. drivers unable to establish full vaccination status will be denied entry into Canada. Unvaccinated Canadian truck drivers returning to Canada from the U.S. will be subject to testing and quarantine requirements but will not be denied entry. Meanwhile, effective January 22, the U.S. plans to require that foreign nationals, including truck drivers, entering the U.S. provide proof that they are fully vaccinated. For more information on the Canadian requirements, visit https://bit.ly/Border-COVID.

FMCSA announces younger driver pilot program

FMCSA announced in the January 14 Federal Register that it has established the Safe Driver Apprenticeship Pilot Program, which would allow individuals aged 18 to 20 to drive commercial vehicles interstate subject to various restrictions. The program was mandated by the Infrastructure Investment and Jobs Act (IIJA), which was signed into law in November. During the Trump administration, FMCSA in September 2020 had proposed a younger driver pilot program that was not finalized. FMCSA’s notice implementing the pilot program is in the same docket and responds to public comments submitted in response to the September 2020 proposal.

The IIJA apprenticeship legislation and FMCSA’s implementation of it closely track the so-called DRIVE-Safe Act, which had been introduced in Congress several times in recent years. Like the DRIVE-Safe Act, the pilot program mandates a certain program of training with minimum on-duty and driving hours and conducted in trucks equipped with specified safety technologies. The apprenticeship program involves two tiers of specified experience with minimum durations that total 400 hours on duty, including 280 hours of time behind the wheel. The IIJA established limitations not included in the DRIVE-Safe Act, however. For example, the apprenticeship program is temporary (three years) and is limited to 3,000 apprentices at any given time.

The FMCSA program requires that motor carriers participating in the program register their apprenticeship programs with the Department of Labor. Registered apprenticeship programs are a major part of a “trucking action plan” for increasing the supply of truck drivers that the White House announced in December. (See article below.)

FMCSA’s Federal Register notice outlines the requirements, qualifications, and reporting obligations that motor carriers and apprentices must satisfy and accept in order to participate in the program. The agency is not yet accepting applications, but it plans to announce that step on its website soon. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-00733. For the September 2020 proposal and comments, visit https://www.regulations.gov/docket/FMCSA-2018-0346.

White House sets strategy to recruit and develop more truck drivers

As part of its efforts to address supply chain disruptions, the White House in December unveiled a “trucking action plan” to increase the supply of truck drivers. The plan outlines efforts the Biden administration plans to launch through early 2022.

The initial step in the plan was FMCSA guidance to state driver’s license agencies on ways to expedite issuing commercial driver’s licenses (CDLs). According to a White House fact sheet, new CDLs and commercial learner’s permits were running about 20% higher in 2021 year than in 2019 and 72% higher than in 2020. Another piece of the White House strategy is a 90-day challenge to accelerate expansion of registered apprenticeships in trucking. The initiative is hosted at https://www.apprenticeship.gov/90-day-trucking-apprenticeship-challenge.

The action plan also involves steps aimed at recruiting many of the estimated 70,000 veterans who likely have certified trucking experience in the past five years. The Department of Transportation and Department of Labor also are launching a joint “Driving Good Jobs” initiative aimed at gathering feedback on how to make driving a truck a more attractive career.

The White House cited other initiatives that were included in the recent Infrastructure Investment and Jobs Act (IIJA), including the pilot program for younger interstate drivers truck drivers published in the January 14 Federal Register. (See article above.) The plan also cites other measures included in that law, including studies of driver pay and detention time and a task force to study truck leasing arrangements.

DOT on January 13 announced further details of steps to implement the plan. For more information, visit https://www.transportation.gov/tags/biden-harris-trucking-action-plan.

FMCSA’s Joshi leaves agency for New York City post

Meera Joshi, who had been leading FMCSA as deputy administrator and acting administrator since the beginning of the Biden administration, has returned to New York City to serve as deputy mayor for operations. Joshi had been appointed FMCSA deputy administrator in January 2021 after holding several positions in New York, including head of the New York City Taxi and Limousine Commission.

President Biden formally nominated Joshi as FMCSA administrator in April 2021. The Senate Commerce Committee advanced her nomination in November, but the full Senate never confirmed her. As is routine for unapproved nominations during a congressional session, Joshi’s nomination was one of dozens returned to the White House in January at the beginning of the current session of Congress. Had Joshi been formally renominated she would have had to go through the entire hearing and approval process again. FMCSA has not had a confirmed administrator since Raymond Martinez departed in October 2019.

FMCSA again denies exemption from $75,000 broker bond requirement

FMCSA has rejected an application from the Small Business in Transportation Coalition (SBTC) seeking reconsideration of the agency's March 31, 2015 denial of the Association of Independent Property Brokers and Agents’ (AIPBA) application for an exemption from the $75,000 bond requirement for all property brokers and freight forwarders. FMCSA treated the SBTC request as a new exemption application. After reviewing SBTC's application and public comments, FMCSA concluded that the exemption request should be denied because it does not meet the statutory factors for an exemption. For the Federal Register notice of the denial, visit https://www.federalregister.gov/d/2021-27220.

 

Legislation

Bill would allow COVID relief funds to relieve supply chain challenges

Rep. Josh Gottheimer (D-New Jersey) has introduced legislation (H.R. 6360) that would allow establish a “supply chain czar” to coordinate a national response to supply chain disruptions. The bill also would allow states to use unobligated COVID relief funds for measures to address supply chain disruptions. Among activities that could be funded through such funds are promotion of employment in trucking and logistics; establishment of apprenticeship programs to recruit more women and military veterans to be truck drivers; and undertaking port and shipping infrastructure projects. For more information, visit https://www.congress.gov/bill/117th-congress/house-bill/6360.

 

Advocacy and Comment

The issues addressed above evidence administrative action to address the driver shortage in the form of a younger driver pilot program and a “trucking action plan” to encourage new drivers and recoup veterans as drivers. Unaddressed are two issues which most truckers believe exacerbate the alleged driver shortage. As noted before, there are approximately 100,000 new applicants for authority which is largely traceable to mature owner operator drivers who fear the demise of the independent contractor model due to pending state and federal legislation and the court challenge to AB5. The most troubling question is how many of these new applicants can afford the high cost of insurance and compliance as small motor carriers and to what extent the failure rate will result in additional retirements and attrition.

The second issue results from a serious productivity problem caused by uncompensated detention and inordinate loading and unloading delays at ports, railheads and shippers’ docks. MIT, no less, suggests that its studies prove that with 15 minutes per day per unit, truck productivity could be raised to the level to eliminate the existing shortage.

ddressing dock and port inefficiencies and abusive detention practices, particularly in the dray foodstuffs industry, is in the public interest. In the days of the ICC, those of us who are old enough to remember saw the imposition of mandatory detention rules which made shippers and receivers financially accountable for failing to load or unload trucks within allotted free time. Not only do loading and unloading delays frustrate driver productivity and discourage productivity pay based on mileage or percentage, such inefficiencies also require more trucks and trailers which now command skyrocketing prices.

It seems apparent that addressing the causes of the bottlenecks and providing for compensatory waiting time is a proper way to allocate costs and retain otherwise frustrated drivers while encouraging greater productivity.

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Regulatory and Legislative Update - December 2021

By Dan Boaz

Contents

FMCSA has extended its emergency declaration regarding COVID-19 through February 28. For the latest version and other guidance related to COVID-19 is available at www.fmcsa.dot.gov/COVID-19. Note that use of the declaration now requires monthly reporting by carriers.

Legislation

Regulation and Enforcement

Advocacy and Comment

 

Legislation

House passes ocean shipping reform bill

The U.S. House of Representatives on December 8 passed by a 364 to 60 vote legislation (H.R. 4996) that would require ocean carriers or marine terminal operators to certify that any detention or demurrage charges comply with federal regulations. The legislation, which is among several measures pending in Congress aimed at addressing issues at ports, also would shift the burden of proof regarding reasonableness from the invoiced party to the ocean carrier or marine terminal operator. Moreover, the bill would also authorize the Federal Maritime Commission to investigate on its own initiative ocean carriers’ business practices and apply enforcement measures as appropriate. For more information, visit https://www.congress.gov/bill/117th-congress/house-bill/4996.

More than a year ago, the American Trucking Associations filed a complaint with FMC alleging that the Ocean Carrier Equipment Management Association and 11 ocean carriers have overcharged motor carriers and their customers for intermodal container chassis at ports and inland terminals throughout the U.S. Adjudication of that complaint is slowly working its way through the FMC process. For the ATA complaint and other documents related to the proceeding, visit at https://www2.fmc.gov/readingroom/proceeding/20-14.

House passes Build Back Better Act

By a highly partisan vote of 220 to 213, the House on November 19 passed legislation (H.R. 5376) – known as the Build Back Better Act – that funds programs in a wide range of areas, including education, labor, childcare, health care, immigration and the environment. The bill, which is a priority of progressive Democrats, had been linked politically with the infrastructure bill until House Democrats decided to move forward with that legislation separately in the wake of unfavorable electoral results in November. (For details of the infrastructure package, see the November 2021 Regulatory Update.) The bill now goes to the Senate where its prospects for passage in its current form are uncertain.

H.R. 5376 does not directly relate to trucking, although provisions promoting electric vehicles might indirectly encourage electric propulsion in heavier vehicles. Although not directly involving trucking, the bill also promotes labor unions. For example, contractors used in installing “green energy” fixtures and systems must pay employees prevailing wage rates as determined by the Labor Department.

House bill would federalize major crash lawsuits, criminalize staging of crashes

Reps. Henry Cuellar (D-Texas) and Garret Graves (R-Louisiana) have introduced a bill (H.R. 6151) that would establish federal court jurisdiction over litigation involving commercial motor vehicles under certain conditions. The bill also would establish criminal penalties for staging collisions with CMVs – a problem that has grown in recent years – and would require disclosure of any party other than the plaintiff or plaintiff’s counsel that has a right to receive payment contingent on a settlement or judgment. Third-party financing of crash litigation recently has raised concern in the trucking industry.

The bill would assign lawsuits involving CMVs operating in interstate commerce to a federal district court in situations where the claim exceeds $5 million and where the plaintiff is a either a citizen of a state that is different from any defendant or a citizen of a foreign country.

Under the proposed legislation, an individual who intentionally causes a collision with a CMV or arranges for another person to do so is subject to a fine, imprisonment for up to 20 years, or both. If such an action results in death or serious bodily injury to another person, the penalty escalates to not less than 20 years in prison as well as a fine.

Proposed legislation seeks to relieve supply chain crunch

Sen. Mike Lee (R-Utah) and Rep. Michelle Fischbach (R-Minnesota) have introduced bills (S. 3252, H.R. 6028) aimed at relieving the port congestion that has contributed to supply chain challenges. The bills would several temporary regulatory waivers and actions to help alleviate some of the stress in freight networks.

Several provisions of the bills are specific to trucking. One would require FMCSA to temporarily waive hours-of-service requirements for truck drivers and motor carriers who are transporting cargo directly to or from a U.S. port. Another would require the agency to temporarily allow 18-year-old drivers to receive a temporary commercial driver’s license for (1) the transportation of cargo to or from a U.S. port or (2) to assume the commercial operations of a truck driver who has been re-routed to a U.S. port.

The bill also would require the Department of Defense (DoD) to take an inventory of intermodal equipment (including truck chassis) and permit trucking companies to use the equipment provided that the use does not affect national security and that trucking companies agree to reimburse DoD for any damage.

Another provision that would affect truck drivers would expedite applications for Transportation Worker Identification Credentials (TWIC) for workers needed to provide direct assistance to a U.S. port. Other provisions would provide flexibility for maritime vessels and designate plots of federal land that could be used to store and transfer empty cargo containers. The DoD could impose a fee for truckers’ use of DoD intermodal equipment, and the funds could be used only for remediation of federal land used for container storage.

For more information, visit https://www.congress.gov/bill/117th-congress/house-bill/6028 and https://www.congress.gov/bill/117th-congress/senate-bill/3252.

Bills would set the stage for a shared chassis pool in Memphis

U.S. lawmakers representing the greater Memphis area have sponsored identical House and Senate bills (H.R. 6081, S. 3268) that would direct the Department of Transportation to issue a request for a private company to develop an operating model for a shared chassis pool at or near the rail ramps in Memphis, Tennessee. The consultant would identify a suitable location or locations and consult with relevant stakeholders. For more https://www.congress.gov/bill/117th-congress/house-bill/6081 and https://www.congress.gov/bill/117th-congress/senate-bill/3268.

 

Regulation and Enforcement

Vaccination/testing mandate still on hold pending Sixth Circuit review

The Occupational Health and Safety Administration’s emergency temporary standard (ETS) that would require most employers with 100 or more employees to ensure that their employees are either vaccinated against the coronavirus (COVID) or undergo weekly testing remains on hold after the U.S. Court of Appeals for the Fifth Circuit imposed a stay on November 12. Multiple lawsuits were filed in multiple circuits, but the U.S. Court of Appeals for the Sixth Circuit has now been assigned jurisdiction.

In the interim, OSHA has extended the comment period on the ETS and on whether it should be adopted as a permanent standard. Comments are due January 19. For more information, visit https://www.regulations.gov/document/OSHA-2021-0007-0900.

AAMVA seeks CDL test exemption for three states

FMCSA is requesting comments by January 10 regarding a multi-year exemption requested by the American Association of Motor Vehicle Administrators (AAMVA) that would allow the state driver licensing agencies (SDLAs) in Maryland, New Hampshire, and Virginia to continue using revised commercial driver’s license (CDL) pre-trip vehicle inspection and revised control skills test procedures. The three states are currently conducting field tests of revised procedures as part of a pilot program under an FMCSA waiver. AAMVA states that the requested exemption would allow states to continue operating under the pilot model without the burden of reverting to the older CDL test model. For the Federal Register notice, visit https://www.federalregister.gov/d/2021-26641.

 

Advocacy and Comment

This month’s update is heavy on pending legislation. Supply chain disruptions, intermodal bottlenecks, and shortages highlight our dependence on overseas production and the importation of cheap goods. Our attenuated foreign supply chain, our trade imbalance and the “build back better” initiative all create a toxic stew for predicting 2022 inflation and increased labor costs.

Further distribution changes are foreseeable as inventories and production sourcing are redomesticated. Jobs, warehousing, technology, trade, and energy policy are all wildcard issues. With shifting transportation demands, increasing transportation costs and driver retention issues involved, next year may be “the best of times, the worst of times” and the times that try men’s souls.

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Regulatory and Legislative Update - November 2021

By Dan Boaz

Contents

FMCSA has extended its emergency declaration regarding COVID-19 through November 30. For the latest version and other guidance related to COVID-19 is available at www.fmcsa.dot.gov/COVID-19. Note that use of the declaration now requires monthly reporting by carriers.

Legislation

Regulation and Enforcement

Courts

Advocacy and Comment

 

Legislation

Senate version of infrastructure bill becomes law

President Biden on November 15 signed into law the Senate version of the infrastructure bill (H.R. 3684), which the House passed without amendment on November 5. The new law includes various provisions related to trucking, including a three-year pilot program to allow individuals aged 18 to 20 to drive commercial vehicles in interstate commerce subject to restrictions.

Although the law includes various other trucking provisions – including mandates for automatic braking systems on new vehicles and tighter rear underride guard standards – it does not include some highly controversial measures that were in the House-passed bill. For example, the final statute does not increase minimum liability insurance coverage for motor carriers. Nor does it mandate screening for sleep apnea or order a prompt restoration of public Compliance, Safety, Accountability (CSA) metrics.

The younger driver pilot apprenticeship program closely tracks the so-called DRIVE-Safe Act, which has been proposed several times in recent years. The program mandates a certain program of training with minimum on-duty and driving hours and conducted in trucks equipped with specified safety technologies. The apprenticeship program involves two tiers of specified experience with minimum durations that total 400 hours on duty, including 280 hours of time behind the wheel.

The apprenticeship program as enacted differs from the DRIVE-Safe Act in several notable ways, however. First, it is limited to three years. Also, at any given time the program will be limited to 3,000 trainees. The program is tighter in other respects. For example, driver trainers must be at least 26 years old and have at least five years’ experience. Finally, the hauling of hazardous materials is excluded – a restriction that was in some early versions of the DRIVE-Safe Act that was omitted in the bills currently introduced in Congress.

It is unclear when the apprenticeship program will begin. The Federal Motor Carrier Safety Administration (FMCSA) will need to issue some type of guidance to implement the program. However, the largest hurdle to quick action might prove to be the 3,000-participant cap as FMCSA would have to devise a process and information system to monitor the number of participants and to replace those who graduate or wash out of the program.

Because the rate at which apprentices will complete the program will vary widely, it is unknown how many new drivers will be added over the three-year period. The theoretical maximum per year if all drivers completed the program in the fastest time allowed by the hours-of-service rules and were immediately replaced with new apprentices when they exit would be about 32,000, according to an estimate from freight data analysis firm FTR Transportation Intelligence. However, in practice the number probably will be a fraction of that figure.

Aside from the braking and rear underride guard provisions, most of the trucking-related provisions are relatively non-controversial. Other provisions:

  • Direct DOT to issue guidance to clarify the definitions and roles of brokers and bona fide agents and require DOT to consider the impact of technology and the role of dispatch services in the freight transportation industry;
  • Require DOT, in consultation with the Department of Labor, to establish a Truck Leasing Task Force to examine common truck leasing agreements available to truck drivers, including port drayage drivers specifically. The Task Force would examine the impact of leasing agreements on the net compensation of drivers and the resources available to assist drivers in assessing the impacts of leasing agreements;
  • Mandate a study of large commercial vehicle crash causation;
  • Establish a grant program to help states with the immobilization or impoundment of passenger-carrying vehicles that are determined to be unsafe or fail inspection;
  • Require a final rule on state inspection of passenger-carrying commercial vehicles;
  • Mandate a report analyzing the cost and effectiveness of electronic logging devices and detailing the processes used by FMCSA to review logs; protect proprietary and personally identifiable information; and to provide the opportunity for a challenge or appeal to a violation notice related to an ELD;
  • Order a review of FMCSA’s National Consumer Complaint Database; and
  • Extend the authorization for the Motor Carrier Safety Advisory Committee through fiscal 2026 and add small carriers among those required to be represented on the committee. For complete information on the final infrastructure bill, visit https://www.congress.gov/bill/117th-congress/house-bill/3684.

Senate bill would revise hours-of-service rules, lower CDL age to 18

Sen. Mike Lee (R-Utah) has introduced still pending legislation (S. 3054) that would require FMCSA to change hours-of-service regulations for property-carrying commercial motor vehicles to provide more flexibility and would lower the minimum age for obtaining a commercial driver’s license (CDL) to 18. The bill would have the agency skip the rulemaking process and make various changes within 90 days of enactment. As introduced, the legislation would change HOS rules to:

  • Increase the maximum driving time to 12 hours;
  • Establish a maximum on-duty time of 14 hours during any 24-hour period;
  • Allow 8 hours of consecutive off-duty time to satisfy mandatory rest requirements provided that the driver takes two to four rest breaks of 30 minutes each, depending on the number of hours driven; and
  • Allow drivers to continue to their destinations if they are within 150 miles of it when they reach their driving or duty-time limits.

The bill also would require FMCSA to report to Congress on its processes for reviewing electronic logging device (ELD) logs and to protect proprietary information and personally identifiable information obtained from ELD logs. The report also would detail the process through which operations could challenge or appeal violations related to ELDs. Finally, S. 3054 would require a Government Accountability Office report on the costs and effectiveness of ELDs.

For information on S. 3054, visit https://www.congress.gov/bill/117th-congress/senate-bill/3054.

House bill would pay carriers to assist during port congestion, national emergencies

Similarly, Rep. Tracey Mann (R-Kansas) and 10 co-sponsors have introduced pending legislation (H.R. 5846) to establish a grant program to pay for-hire and private motor carriers to transport goods from ports during national emergencies or periods of high port congestion. The transport could be from the port to a final destination or “to a point that is easily accessible by another form of transport.” The grant program would apply during times when the president has declared a national emergency or when the Secretary of Transportation has determined that a port is congested by at least 50%. In the latter case, grants would cease once congestion at a port is less than 49% for at least 60 consecutive days. For information on H.R. 5846, visit https://www.congress.gov/bill/117th-congress/house-bill/5846.

 

Regulation and Enforcement

OSHA issues vaccination/testing mandate for employees of larger companies

As expected, the Occupational Health and Safety Administration on November 4 issued an emergency temporary standard (ETS) that generally requires employers with 100 or more employees to ensure that their employees are either vaccinated against the coronavirus (COVID) or undergo weekly testing. The rule was to be effective immediately, and compliance was required by January 4.

Almost immediately, however, the U.S. Court of Appeals for the Fifth Circuit stayed the mandate pending further litigation. Then on November 9, the American Trucking Associations, the state trucking associations for Texas, Louisiana, and Mississippi, and various other organizations involved in the supply chain filed suit in the Fifth Circuit challenging the ETS.

Even though trucking organizations are challenging the ETS, there are questions as to whether it applies to the largest single group of workers in trucking. Nowhere in the rule is any exemption for drivers mentioned. Moreover, one table in the final rule indicates that of nearly 880,000 total employees in for-hire trucking that work for carriers with 100 or more employees, nearly 740,000 are covered. However, a footnote indicates that the number of covered employees reflects only the total minus those who work exclusively outdoors. In addition to employees who work only outdoors and to those who work from home, the ETS excludes employees who do not report to a workplace where other individuals such as coworkers or customers are present.

Even stronger evidence came in a statement from the head of the cabinet department within which OSHA resides. A news report aired by a Philadelphia television station included a video clip of Labor Secretary Marty Walsh stating, “If you're a truck driver and you're outside, you're in a cab driving by yourself, this doesn't impact you.” For more information on the ETS, visit https://www.osha.gov/coronavirus/ets2.

FMCSA requires annual inspections of rear impact guards

FMCSA has issued a final rule adding rear impact guards to the list of items that must be examined as part of the required annual inspection for each commercial motor vehicle. CMV. The agency also amended the labeling requirements for rear impact guards and excluded road construction controlled (RCC) horizontal discharge trailers from the rear impact guard requirements. The final rule responds to rulemaking petitions and a Government Accountability Office recommendation. (See https://www.gao.gov/products/GAO-19-264.) Congress also mandated annual inspections of rear underride guards as recommended by GAO Congress in the fiscal 2020 appropriations act.

The final rule is effective December 9. For the Federal Register notice, visit https://www.federalregister.gov/d/2021-23796.

MCSAC to resume consideration of supply chain issues, regulation of small vehicles

FMCSA’s Motor Carrier Safety Advisory Committee is slated to meet December 6-7 to resume consideration of two topics it has already discussed: (1) support for supply chains related to the transportation industrial base and (2) potential regulation of the package and small goods delivery sector. The virtual meeting is open to the public, but advance registration is requested at www.fmcsa.dot.gov/mcsac.

FMCSA allows armored car operation to weld front doors shut

FMCSA has granted the application from Loomis Armored US, LLC for an exemption to allow the driver and passenger doors of the cabs of its specialized armored vehicles to be welded shut and two new doors to be added behind the cab. For the Federal Register notice, visit https://www.federalregister.gov/d/2021-22615.

 

Courts

Supreme Court seeks Justice Department thoughts on AB 5 case

The U.S. Supreme Court on November 15 asked the U.S. solicitor general – the Justice Department’s representative to the court – to file a brief expressing the views of the United States regarding the California Trucking Association’s challenge of California’s AB 5 law as it applies to motor carriers. Earlier this year, the U.S. Court of Appeal for the Ninth Circuit ruled that AB 5 is a law of general applicability that is not preempted by the Federal Aviation Administration Authorization Act of 1994 (F4A). However, the appeals court also stayed the effectiveness of that decision pending a resolution at the Supreme Court.

Seeking the views of the U.S. government was one of three courses of action the Supreme Court generally would take when presented with a petition for review. Had the Supreme Court decided to let the Ninth Circuit decision stand, the state of California could have immediately to enforced AB 5 on motor carriers, which would mean that leased owner-operators would no longer be allowed to operate in the state. Had the court agreed to hear the case, the status quo would have remained in place pending a final ruling. Ultimately, the court will take one of those two courses of action, so one of the consequences of its November 15 action is to delay the final resolution, perhaps by months.

In early October, the Supreme Court asked the acting solicitor general to file a brief in another case involving F4A. That case, which involves C.H. Robinson, concerns whether a state tort liability claim filed after a highway crash qualifies under F4A’s “safety exception,” which allows state regulation.

Many observers expect the court to take the CTA case as the Ninth Circuit decision conflicts with a 2016 First Circuit ruling that invalidated a restrictive ABC test in Massachusetts. However, the Supreme Court last month declined to review a case that involved application of California’s ABC test to motor carriers. The court’s latest action, however, strongly suggests that it considers the CTA case to be one it might ultimately consider. The Supreme Court on November 15 also asked the solicitor general for views involving two airlines’ challenge of California’s application of its meal and rest break rules to flight attendants. Both cases involve the extent to which the prohibition against state regulation of rates, routes, and services prevents states from requiring federally regulated carriers to abide by laws and regulations that apply generally to all employees.

Appeals court throws out federal GHG rule as it applies to trailers

The U.S. Court of Appeals for the District of Columbia Circuit has invalidated all portions of a 2016 Environmental Protection Agency rule on greenhouse gases in commercial vehicles that apply to trailers. The court noted that the Obama administration rule was based on a statute that authorized EPA to regulate “motor vehicles.” In the same rule that was issued jointly with the National Highway Traffic Safety Administration, NHTSA issued fuel efficiency standards for trailers based on a statute allowing it to regulate “commercial medium-duty or heavy-duty on-highway vehicles.”

The appeals court decision rested on quite a simple premise. “Trailers, however, have no motor,” the court concluded. “They are therefore not ‘motor vehicles.’ Nor are they ‘vehicles’ when that term is used in the context of a vehicle’s fuel economy, since motorless vehicles use no fuel.” For the appeals court opinion, visit https://bit.ly/GHG-Trailers.

 

Advocacy and Comment

Cheer up! We may be in better shape than we feared

As the above report shows, we finally have a highway infrastructure bill. Importantly, omitted from the finished product were troublesome issues like increasing insurance minimums, federal adoption of AB5 and resurrection of CSA 2010 which were feared as possible amendments to the appropriations bill.

As noted, the future of the independent contractor model remains in doubt. The split in the Circuits and the stay pending the Supreme Court’s decision on cert. has shifted the fight to the courts and is the only thing precluding enforcement of California legislation and similar acts in other states which will destroy the model and greatly exacerbate the driver and equipment shortage. This month’s publication was delayed awaiting the Court’s decision on the appeal of AB5 and a CH Robinson case. Both were referred to the Solicitor General for an opinion, leaving these issues in limbo and yet to be determined.

If the Supreme Court does not decide to ultimately determine the future of the owner operator independent contractor model, the debate will default to the Department of Labor and other administrative agencies where the importance of the small business issue, the supply chain problems and driver shortages will be important.

Supply chain disruption and the causes or the effect of the perceived driver shortage are hot topics which will be considered by FMCSA’s MCSAC in December. As was done in a response to DOT’s request for comments by 9 trade associations, the case must be made that the attenuated overseas supply chain, port bottlenecks and uncompensated waiting times exacerbate the driver shortage. These supply chain issues, and threats to the owner operator model are precipitating the driver shortage which is not the cause of the problem.

The MCSAC is taking up the gap in federal safety regulations between vans and sprinters on the one hand and straight trucks and semis on the other is of particular importance.

The difference between safety regulations governing vehicles less than 10,001 gvw creates inconsistencies and confusion in the application of federal versus state laws which results in the characterization of the “home delivery model” as the “Wild West” – a new and apparently lawless territory. While MCSAC has no authority to implement new rules, these meetings may shed light on the chronic and systemic problems of this growing segment of the supply chain.

Finally, the infrastructure bill creates administrative forums for addressing a number of issues important to the industry and provides opportunities for small business which warrants greater participation.

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