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Regulatory and Legislative Update - June 2021

By Dan Boaz

Contents

FMCSA has extended its emergency declaration regarding COVID-19 through August 31. The latest version and other guidance related to COVID-19 is available at www.fmcsa.dot.gov/COVID-19.

Courts

Legislation

Regulation and Enforcement

Advocacy and Comment

 

Courts

Supreme Court asked to rule on preemption of common law claims against brokers

C.H. Robinson has asked the U.S. Supreme Court to overturn a U.S. Court of Appeals for the Ninth Circuit ruling that the “safety exception” to federal preemption under the Federal Aviation Administration Authorization Act of 1994 (F4A) includes common law damage claims against brokers. The appeals court in September had reversed a lower court ruling concluding that a common law negligent selection claim against C.H. Robinson did not fall within the safety exception. (See Regulatory Update, October 2020.)

In its petition for a writ of certiorari, C.H. Robinson argued that the appeals court ruling “badly misinterprets” the safety exemption contained in F4A. “A common-law tort claim against a freight broker is not an exercise of the ‘safety regulatory authority of a State’,” C.H. Robinson said. “By its plain text, the safety exception preserves the State’s authority to enact and enforce positive-law rules and regulations; it does not encompass private claims brought by private parties to compensate for past injuries.” The broker further argued that a safety regulation would not apply to brokers in any event because they neither own or operate motor vehicles nor hire or employ drivers operating those vehicles.

C.H. Robinson’s petition has received support from several “friend of the court” briefs filed last month. In addition to the Transportation Intermediaries Association and a separate brief filed by 10 major brokers, parties filing in support of the writ include a group of about a dozen major truckload carriers and a joint brief submitted by the National Association of Manufacturers, the U.S. Chamber of Commerce, and the National Retail Federation.

One common theme in the “friend of the court” briefs is that freight brokers are not appropriate parties to determine the safety of individual motor carriers. “This Court has the opportunity to clarify once and for all that the federal motor carrier and broker regulatory scheme established by Congress in the Motor Carrier Act vests in the FMCSA – not brokers, shippers or other users of transportation – the duty to qualify and register applicants as fit for operating as interstate motor carriers,” the dozen trucking companies said in their brief.

If the Supreme Court decides to hear the case, the decision could have wide-ranging implications for other ongoing litigation, including California’s ABC test for worker classification as it applies to motor carriers. The questions presented are distinct. The C.H. Robinson case addresses specifically the scope of the “safety exception” while the AB 5 litigation centers on whether a generally applicable state labor law can also be considered regulation of a carrier’s rates, routes, and services. Even so, a decision in the C.H. Robinson case would reflect the first opportunity the Supreme Court has had to rule on F4A’s scope since President Trump’s appointees took the bench. For links to C.H. Robinson’s petition and the supporting briefs, visit http://bit.ly/CHRvMiller.

CTA seeks rehearing of 9th Circuit ruling on AB 5

As expected, the California Trucking Association and other plaintiffs on May 26 asked the U.S. Court of Appeals for an “en banc” rehearing of the April 28 split ruling that the California’s enforcement of AB 5’s ABC test on worker classification as it applies to motor carriers is not preempted by the federal law. If granted, an en banc rehearing would mean that instead of just three judges the case would be heard by 11 appeals court judges.

In its petition for a rehearing, CTA said that AB 5, by effectively prohibiting independent contractor drivers, “makes a core feature of the motor-carrier transportation market unlawful in California.” The association argued that the three-judge panel’s decision is contrary to the Supreme Court’s decisions interpreting the Federal Aviation Administration Authorization Act’s (F4A) express preemption provision and identical language in the Airline Deregulation Act. The decision also conflicts with the 9th Circuit’s previous decisions and creates an acknowledged conflict with the U.S. Court of Appeals for the First Circuit’s decision in Schwann v. FedEx Ground Package System, Inc., CTA said.

A decision by the appeals court regarding whether to grant a rehearing is expected by mid-June. If granted, an en banc rehearing could take months during which time the preliminary injunction rejected by the three-judge panel presumably would remain in place. However, if the appeals court rejects a rehearing, the state of California could begin enforcing AB 5 on motor carriers unless the appeals court were to order the status quo pending the inevitable appeal to the U.S. Supreme Court.

 

Legislation

Organizations ask Senate to support independent contractor model

A group of 21 organizations on June 3 urged U.S. senators to support the continuation of the independent contractor model for owner-operators in trucking. The letter to senators was prompted by the recent passage in the House of pro-labor legislation (H.R. 842) that includes a provision essentially federalizing the same ABC test for worker classification that is incorporated into California's AB 5 law. The U.S. House of Representatives narrowly passed the bill, known as the Protecting the Right to Organize (PRO) Act, on March 9 in a highly partisan vote.

“This model is the backbone of service in key truck transportation niches including over-the-road truckload service, the transportation of refrigerated commodities including fresh fruits and vegetables, intermodal truck shipments with prior or subsequent movement by rail, water and air, the transportation of new and used automobiles, etc.,” the organizations said in their letter. “The owner operator/independent contractor model is a choice, not some form of forced servitude. Owner operators, under federal regulations, have portability and can choose to provide service over routes they select working with over 500,000 licensed interstate motor carriers.”

The organizations signing the letter supporting the independent contractor owner-operator model include a broad range of carriers, shippers, intermediaries, and small business advocates across industries. The letter and list of signatories is available at http://bit.ly/ICSupportLetter.

Owing to the filibuster, the PRO Act stands almost no chance of passing the Senate as a stand-alone piece of legislation. But the text of the legislation could be attached to a budget reconciliation bill, which would require only a majority vote to pass. This tactic would greatly enhance the legislation’s chances, although Democrats likely would have to hold every single senator as Republicans uniformly would be expected to oppose the PRO Act. However, universal Republican opposition to individual elements of the PRO Act, such as the ABC test, would be less certain if the alternative is a failure of an important piece of budget-related legislation.

House panel approves infrastructure bill with numerous motor carrier provisions

After a 19-hour highly partisan markup session that ended early on June 10, the House Transportation & Infrastructure Committee approved H.R. 3684, the Investing in a New Vision for the Environment and Surface Transportation in America Act (INVEST in America Act). The legislation, which is essentially the same as a bill (H.R. 2) the committee approved last year, includes controversial measures related to motor carrier safety and regulatory policy. The House passed H.R. 2 last year, but it died in the Senate at the end of the 116th Congress.

Key motor carrier safety provisions of H.R. 3684 would require:

  • Revision of Compliance, Safety, Accountability methodology, restoration of publicly available CSA data, and implementation of a new process for issuing safety fitness determinations;
  • An increase in minimum insurance standards to $2 million and an adjustment every five years;
  • A rulemaking to establish screening criteria for obstructive sleep apnea among commercial vehicle drivers;
  • Issuance of guidance to clarify the definition and roles of brokers and bona fide agents, including consideration of the impact of technology and the role of dispatch services in freight transportation;
  • A study of the safety of operations using small commercial vehicles;
  • A comprehensive review of current hours-of-service regulations, including revised guidance for personal conveyance to establish specific mileage or time limits;
  • Automatic emergency braking systems to be installed and used on all newly manufactured commercial motor vehicles (CMVs);
  • More stringent rear underride guard standards and consideration of side underride guard standards;
  • Establishment of a Truck Leasing Task Force to examine truck leasing agreements and their impact on the net compensation of drivers;
  • A DOT Inspector General examination of the prevalence of operation of CMVs by drivers admitted to the U.S. under temporary business visas and the safety impact of such operations; and
  • A motor vehicle safety standard to require newly manufactured CMVs to be equipped with a universal electronic identifier the vehicle to roadside inspectors for enforcement purposes;

Republicans on the T&I Committee unsuccessfully offered numerous amendments, some of which aimed at killing or greatly modifying the more controversial motor carrier provisions, such as the increased minimum insurance levels. On May 20, T&I’s Republican leadership had introduced H.R. 3341, the Surface Transportation Advanced through Reform, Technology & Efficient Review (STARTER) Act 2.0. As was the case with the Democratic bill, H.R. 3341 is basically the same as one Republicans had proposed last year. The STARTER Act 2.0 also includes some significant legislative provisions related to motor carrier safety, though far fewer than what is contained in the Democratic bill. For example, H.R. 3341 would establish an interim carrier selection standard for brokers and shippers pending a rulemaking to modify safety fitness determination standards and create a pilot program to conduct remote compliance audits. It also would expand flexibility for haulers of agricultural goods and livestock under the hours-of-service regulations.

For more on the Democratic version, visit https://www.congress.gov/bill/117th-congress/house-bill/3684 or http://bit.ly/HR-3684, which includes a link to a section-by-section summary.

For more on the Republican version, visit https://www.congress.gov/bill/117th-congress/house-bill/3341 or http://bit.ly/HR-3341, which includes the press release an a link to a section-by-section summary.

The next steps for H.R. 3684 are a visit to the House Rules Committee, where T&I’s work will be merged with legislative pieces from other committees, and then to the House floor, where passage is likely without Republican amendments – at least not on motor carrier safety.

House carrier selection bill would mandate new safety fitness rule

Rep. Mike Gallagher (R-Wisconsin) has introduced legislation (H.R. 3042) that would establish an interim carrier selection standard for brokers and others until FMCSA completes a rulemaking to revise current safety fitness determination standards. Under the bill, until FMCSA finalizes that rule, selection of a motor carrier shall be considered reasonable if the contracting entity ensures that the carrier is licensed, registered, and insured and is not deemed unfit under existing standards. H.R. 3042 is similar to legislation that is incorporated into the Republican infrastructure bill known as STARTER Act 2.0. Rep. Bob Gibbs (R-Ohio) also had introduced similar legislation (H.R. 7457) last year, but it died at the end of the last Congress.

The Transportation Intermediaries Association has endorsed the bill. In a letter to Gallagher and original co-sponsor Seth Moulton (D-Massachusetts), TIA President Anne Reinke said the legislation would update the current “antiquated system” that results in about 89% of carriers being unrated. “This will help ensure that only the safest motor carriers can operate on the nation’s highways and give the Agency and the public, including our members, updated and more reliable data on these motor carriers,” Reinke said.

Texas legislature enacts reform of CMV crash litigation

Texas Gov. Greg Abbott is expected soon to sign legislation (House Bill 19) to reform litigation of lawsuits over CMV crashes. The House passed the bill in late April, and the legislature sent a final bill to Abbott on May 31 after the legislature agreed to the Senate version, which included some minor changes.

Motor carrier defendant’s compliance with a regulation or standard to be admissible only if the evidence tends to prove that failure to comply with the regulation or standard was a proximate cause of the injury or death. Also, any consideration of negligent entrustment is barred unless in the fault phase it was found that the carrier’s employee was negligent in operating the vehicle. For more on the bill, visit https://legiscan.com/TX/bill/HB19/2021.

 

Regulation and Enforcement

DOT seeks public input on data and tools to help assess transportation equity

DOT is requesting information by June 24 on data and tools to help the department assess whether, and to what extent, its programs and policies perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups. DOT said these assessments would better equip the department to develop policies and programs that deliver resources and benefits equitably to all. For the Federal Register notice, visit https://www.federalregister.gov/d/2021-10436.

Waste Management seeks brake lighting exemption

FMCSA requests comments until July 9 on an application from Waste Management, Inc. for an exemption to allow all of its 106 operating companies to replace the high-mounted brake lights on their owned and operated fleets of heavy-duty refuse and support trucks with red or amber brake-activated pulsating lamps positioned in the upper center position, or in an upper dual outboard position, in addition to the steady burning brake lamps required by the Federal Motor Carrier Safety Regulations (FMCSRs). For the Federal Register notice, visit https://www.federalregister.gov/d/2021-11639.

 

Advocacy and Comment

Our crystal ball on future legislative and administrative issues has become clearer this month.

As the analysis above reflects, there are two basic issues: (1) the future of the independent contractor model; and (2) possible reinstatement of Safety Measurement System (SMS) methodology and its concomitant effect on nuclear verdicts, negligent selection suits, and increased insurance costs.

1. The future of the owner-operator/independent contractor model. The Protecting the Right to Organize (PRO) Act supported by labor interests has passed the House and incorporates the ABC test across industries for some federal purposes. Like California AB 5 which is working its way through the court, the PRO Act would incorporate independent contractor owner-operators in a one-size-fits-all reclassification scheme that could kill the small businessman entrepreneurial opportunity essential to the success of the model. As noted, 21 organizations across trucking have signed on to the Senate letter arguing in support of retention of the independent contractor model based upon its importance in the supply chain, past precedent, and the existing FMCSA regulations which support it. See http://bit.ly/ICSupportLetter.

The independent contractor model is the backbone of over-the-road truckload transportation upon which carriers, shippers, brokers, and small truck owners agree. The letter with attached supporting statements demonstrated broad support across the industry. Hopefully, the merits of the IC model and the possibility of a 50/50 split resolved by the Vice President will not occur. In any event, the time is now to make clear the united industry support for continued independent contractor treatment of owner-operators at both the state and federal level.

2. SMS methodology. SMS and its effect on nuclear verdicts, negligent selection liability, and insurance costs is the second major issue that ties together several of the issues discussed above. After 15 years of development, the FMCSA is no closer to proposing a viable safety fitness determination using SMS methodology than when it started. The BASICs and peer groups they use have been shown to be arbitrary. The laws of statistical analysis demonstrate its fallacies. Grading on a curve is no basis for an independent objective analysis, and neither data sufficiency and nor data accuracy issues have been resolved. Congress has already found in the FAST Act that the scores should be taken down, and the agency has not provided a defense to the FAST Act mandates. The National Academies of Science failed to approve the program which has officially not been modified in the past 5 years.

Yet, SMS continues to be used by plaintiffs’ bar to increase nuclear verdicts and its claim that its use by shippers and brokers is somehow a state law standard that trumps FMCSA’s duty to certify carriers as fit to operate and fit to use. Unfortunately, underwriters fascinated with a proxy for handicapping risk have embraced SMS as an alternative rating system particularly for small and new carriers, and insurance rates for new entrants and small carriers are now at unsustainable levels.

Shippers and brokers in search of a clearer “red light/green light” have supported bipartisan legislation mentioned above which would reaffirm that ”fit to operate is fit to use.”

Yet, the reaffirmation of a red light/green light through Congress was dimmed by T&I’s markup of a new bill this past week which aims to reinstate SMS without reaffirming that the traditional broker regulations which establish that the broker selection obligations are limited to hiring a carrier which is properly licensed, authorized and insured. See 49 C.F.R. 371.2.

If SMS is allowed to be republished and further developed with congressional approval, misuse of SMS could further exacerbate nuclear judgements, negligent broker selection claims, and insurance rates.

FMCSA was told over a decade ago to develop a system for assigning a safety rating to all carriers and there is no way a new applicant can be assigned a safety rating utilizing roadside data when it begins operations. That is the reason a desktop audit under existing safety fitness determination rule and with due process should be advocated as a more efficient “red light/green light” proposal.

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Regulatory and Legislative Update - May 2021

By Dan Boaz

Contents

FMCSA has extended its emergency declaration regarding COVID-19 through May 31. For the latest version and other guidance related to COVID-19 is available at www.fmcsa.dot.gov/COVID-19.

Courts

Legislation

Regulation and Enforcement

Advocacy and Comment

 

Courts

Appeals court panel rules that California can enforce AB 5 on motor carriers

The State of California may soon be allowed to outlaw motor carriers’ use of leased owner-operators within the state following a key federal appeals court decision. On April 28, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit by a split decision ruled that the Federal Aviation Administration Authorization Act of 1994 (F4A) does not preempt California’s enforcement of AB 5’s ABC test on worker classification as it applies to motor carriers. The decision overturns a preliminary injunction granted by a federal judge in January 2020. Two of the panel’s judges declared that the district court had abused its discretion by granting the preliminary injunction contrary to precedent in the 9th Circuit.

Enacted in September 2019 and effective in January 2020, AB 5 codified a so-called ABC test for whether workers must be considered employees or can be treated as independent contractors. Although in many states satisfying one or more prongs is sufficient to establish an independent contractor relationship, the California test requires all three prongs to be satisfied. In effect, the “B” prong of California’s test outlaws the leased owner-operator model because it says a worker engaged in the same occupation as his or her employer cannot be an independent contractor. Since both owner-operators and the trucking companies that use them haul freight, owner-operators cannot be independent contractors under AB 5.

At issue in this case is the scope of F4A’s preemption, which bars state laws related to a price, route, or service of any motor carrier with respect to the transportation of property. In rejecting preemption, the majority ruled that AB 5 "is a generally applicable labor law that impacts a motor carrier’s relationship with its workforce and does not bind, compel, or otherwise freeze into place a particular price, route, or service of a motor carriers at the level of its customers."

The majority conceded that 9th Circuit precedent did not rule out the possibility that a generally applicable law could so significantly affect the employment relationship that it effectively bound motor carriers to specific prices, routes, or services at the consumer level. However, the appeals court has "considered and rejected predicted effects similar to those raised by CTA,"" the majority said. "We see no basis for departing from our precedent holding that a law increasing motor carriers’ employee costs, but not interfering at the point where the motor carrier provides a service to its customers, does not simply fall ‘into the field of laws’ that Congress intended to preempt."

In his dissent, Judge Mark Bennett contended that AB 5 does more than just affect motor carriers’ relationships with their workers and that the law significantly impacts the services carriers can provide to their customers. Bennett argued that – contrary to the majority opinion – the effect on motor carriers’ service is not merely "tenuous, remote, or peripheral." For example, Bennett cited a declaration from a CTA member that because of the capital costs associated with specialized equipment, employee-based motor carriers will not be able to offer services requiring such equipment.

AB 5 also will eliminate motor carriers’ flexibility to accommodate fluctuations in supply and demand because California’s wage orders require employers to supply their employees’ tools and equipment, Bennett wrote. “Again, this inability to meet temporary rises in demand will deprive motor carriers’ consumers of particular services – consumers such as farmers and retail sellers who depend on motor carriers to seasonally hire independent contractors during harvests and peak retail seasons, respectively,” Bennett wrote.

Bennett noted that the majority’s opinion conflicts with rulings in the First Circuit and Third Circuit that held or at least implied that “all or nothing” rules like California’s ABC test should be preempted. In the First Circuit case, essentially the same test in Massachusetts was found to be preempted by F4A. The Third Circuit upheld New Jersey’s ABC test, but the court in that case emphasized that the New Jersey test’s B prong allows an alternative method for establishing independent contractor status – something that was not allowed under the Massachusetts test and is not allowed under the California ABC test.

Next steps

At a minimum, nothing changes for 21 days from the date of the ruling. The California Trucking Association (CTA), which is leading the legal challenge to AB 5, has 14 days to respond with its inevitable appeal. Even if the appeals court were to deny that appeal immediately and issue a mandate to enforce the three-judge panel’s ruling, it would be another seven days before the injunction is lifted.

CTA has several options for appeal. One would be to ask the same three-judge panel to rehear the case, but that approach almost certainly would end with the same result. Another option would be to go immediately to the U.S. Supreme Court with a petition for writ of certiorari (“cert petition”). However, the current Supreme Court term will end in June, so it probably would be this fall at the earliest before the court even decided whether to review the appeal’s court ruling and months later before the court heard arguments and ruled.

CTA’s most likely first step is to ask the 9th Circuit for an “en banc” rehearing, which would mean that a group of 11 judges would hear the case. If CTA petitions for such a rehearing, the court would have up to 21 more days to decide whether to rehear the case, although it could respond immediately. If the court were to agree to an en banc rehearing, the preliminary injunction presumably would remain in effect pending that ruling, which could be months away. If the court denies an en banc appeal, however, the injunction presumably would be lifted, and the trucking industry would have to abide by AB 5 pending an appeal to the Supreme Court. En banc rehearings are not routinely granted, but the panel’s split decision likely increases the chances for one.

A cert petition before the U.S. Supreme Court by either CTA or the State of California probably is inevitable regardless of the outcome of any further appeals before the 9th Circuit. The U.S. Supreme Court agrees to review only a tiny percentage of the cases brought to it. However, the fact that the 9th Circuit opinion conflicts with rulings in other federal appeals courts increases the chances that the Supreme Court would agree to hear the case.

For the April 28 ruling visit https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/28/20-55106.pdf.

 

Legislation

Senate Republicans float a smaller infrastructure bill; House plans action in May

The ranking Republicans on key Senate committees responsible for transportation infrastructure, policy, and financing in April announced the framework for an infrastructure bill to counter legislation contemplated by the Biden administration. The Republican proposal is much smaller at $568 billion than the White House’s $2.3 trillion proposal, but the details are key. More than half of the Republican plan – $299 billion – would go to roads and bridges. The White House plan included only $115 billion, but that appears to be new money while the Republican plan represents funds that would be provided anyway with reauthorization of the FAST Act, which expires September 30.

Money aside, infrastructure legislation is significant because it surely will be the first major vehicle for any changes to motor carrier law under President Biden, a Democratic-controlled House, and a Senate that is at least technically in Democratic control. Peter DeFazio (D-Oregon), chairman of the House Transportation & Infrastructure Committee, announced recently that his committee in May would consider surface transportation reauthorization legislation. The House T&I Committee bill likely will resemble legislation (H.R. 2) that passed the House last year but died in the Senate. As passed by the House in July 2020, H.R. 2 would require:

  • Revision of Compliance, Safety, Accountability methodology, restoration of publicly available CSA data, and implementation of a new process for issuing safety fitness determinations;
  • An increase in minimum insurance standards to $2 million and an adjustment every five years;
  • A rulemaking to establish screening criteria for obstructive sleep apnea among commercial vehicle drivers;
  • Automatic emergency braking systems to be installed and used on all newly manufactured CMVs;
  • More stringent rear underride guard standards and consideration of side underride guard standards;
  • Revised guidance for personal conveyance to establish specific mileage or time limits.
  • Establishment of a Truck Leasing Task Force to examine truck leasing agreements and their impact on the net compensation of drivers.

Another set of issues that could arise as part of the infrastructure package – although not within the T&I Committee – are pro-labor measures, such as those in the Protecting the Right to Organize (PRO) Act (H.R. 842; S. 420). The Biden administration’s infrastructure proposal referred to passage of the PRO Act as if it were considered part of the package. The PRO Act includes a provision that in essence would establish as a federal standard California’s ABC test for whether a worker is an employee or independent contractor.

Texas legislature advances reform of CMV crash litigation

The Texas House of Representatives on April 30 passed by an 81 to 49 vote legislation (House Bill 19) to reform litigation of lawsuits over CMV accidents. Among other provisions, the bill would establish that in a fault phase of the litigation, juries are presented with evidence that is directly relevant to causation and injuries. For example, House Bill 19 would allow evidence of a motor carrier defendant’s compliance with a regulation or standard to be admissible only if the evidence tends to prove that failure to comply with the regulation or standard was a proximate cause of the injury or death. Also, any consideration of negligent entrustment would be barred unless in the fault phase it was found that the carrier’s employee was negligent in operating the vehicle. For more on the bill, visit https://legiscan.com/TX/bill/HB19/2021.

 

Regulation and Enforcement

Joshi nominated as FMCSA administrator

President Biden has nominated Meera Joshi to be FMCSA administrator. Joshi has served as deputy administrator and acting administrator since Biden was inaugurated in January. She must be confirmed by the Senate before she formally becomes administrator. The Senate Commerce Committee has yet to schedule a confirmation hearing. FMCSA has had only acting administrators since Raymond Martinez left the agency in October 2019.

Joshi most recently was principal and New Your general manager with transportation planning firm Sam Schwartz. From 2011 until 2019, Joshi held senior positions with the New York City Taxi and Limousine Commission, first as deputy commissioner and general counsel and then as CEO and commission chair.

FMCSA proposes to extend deadline related to medical examiner certification

FMCSA proposes to amend its regulations to extend the compliance date from June 22, 2021, to June 23, 2025, for several provisions of its April 2015 medical examiner’s certification Integration final rule. The agency said the action is being taken to provide FMCSA time to complete certain information technology (IT) system development tasks for its National Registry of Certified Medical Examiners and to provide the state driver’s licensing agencies (SDLAs) sufficient time to make the necessary IT programming changes. For the Federal Register notice, visit https://www.federalregister.gov/d/2021-08238.

FMCSA’s Medical Review Board to meet May 19-20

FMCSA’s Medical Review Board Advisory Committee (MRB) will meet via videoconference May 19-20. The meeting will be open to the public. The meeting will address three topics: (1) Finalizing recommendations on updates to the Medical Examiner Handbook; (2) conducting a review of the medical assessment form for CMV drivers with noninsulin-dependent diabetes mellitus; and (3) evaluate for medical sufficiency comments and the vision assessment form from January’s proposed rule on vision standards. Advance registration is recommended via the FMCSA website at www.fmcsa.dot.gov/mrb. Requests to submit written materials to be reviewed during the meeting must be received by May 12. For the Federal Register notice, visit https://www.federalregister.gov/d/2021-09271.

 

Advocacy and Comment

As the above analysis shows, 100 days into the new Administration there are fewer but more significant issues facing the trucking industry.

The future of the owner operator / independent contractor model is in jeopardy before all three branches of Government. The Ninth Circuit decision concerning AB-5 was not particularly surprising. Only the dissenting Judge appeared to comprehend the importance of the independent contractor model on routes, rates and services. As noted, the PRO Act which passed the House and is teed up for consideration by the Senate, possibly as part of the infrastructure bill. If the 60 vote filibuster requirement does not apply, this could result in reclassification of owner operators as employees for federal labor purposes. On the Executive level, the new Department of Labor is signaling it will revisit independent contractor rules for purposes of the Fair Labor Standards Act as a matter of regulation if the PRO Act does not prevail.

Moreover, as noted above, the House Committee considering the infrastructure bill continues to address other anti-trucking provisions of noted concern. OOIDA has issued a press release outlining its concerns including:

  • Increasing federal liability insurance requirements from $750,000 to $2,000,000
  • Time and/or distance caps on personal conveyance
  • Expansion of tolling authority via congestion pricing and diversion of revenue to non-highway programs
  • Sleep apnea screening and testing rules
  • Republication of flawed CSA safety data

Clearly there is an immediate need for concerted efforts by the industry to oppose the attack on the owner operator / independent contractor model and to oppose other pending anti-trucking legislation mentioned above. The case is yet to be made for the importance of the independent contractor model to small businesses and the continued stability of interstate trucking.

The time has come for a coordinated effort to counter the continuing rhetoric which mischaracterizes the trucking industry.

Read More »

Regulatory and Legislative Update - April 2021

By Dan Boaz

Contents

FMCSA has extended its emergency declaration regarding COVID-19 through May 31. For the latest version and other guidance related to COVID-19 is available at www.fmcsa.dot.gov/COVID-19.

Regulation and Enforcement

Legislation

Advocacy and Comment

 

Regulation and Enforcement

DOL proposes to withdraw rule on worker classification

Comments are due April 12 on a notice of proposed rulemaking (NPRM) to withdraw a Trump administration rule regarding independent contractor status. The U.S. Department of Labor’s Wage and Hour Division (WHD) had already delayed the effectiveness of the rule until May 7 while it reviewed the regulation. The Trump administration regulation, which was issued in January and originally scheduled to take effect in March, adopted a new “economic reality” test to determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FSLA).

In the NPRM, WHD said that courts and the department have not used the new economic reality test and that neither the text of the FLSA nor longstanding case law support the test. WHD said the rule would narrow or minimize other factors that courts have traditionally considered, making the economic test less likely to establish that a worker is an employee under the FLSA. For the NPRM, visit https://www.federalregister.gov/d/2021-05256.

DOT rescinds Trump administration’s changes on rulemakings, guidance

The U.S. Department of Transportation (DOT) issued a final rule that rescinds policies and procedures related to rulemaking, guidance, and enforcement that DOT had implemented in December 2019. The rule affects not only department-level proceedings but also those within its agencies, including the Federal Motor Carrier Safety Administration.

The 2019 changes largely wrote into DOT regulations (49 CFR part 5) some of the reforms that had been ordered by various executive orders issued by President Trump. Those included regulatory reform policies on regulatory budgeting, the “2-for-1” plan (repealing two rules for every one new rule), and the Regulatory Reform Task Force.

In its latest action, DOT said it was responding to two recently issued executive orders that (1) revoke several Trump administration executive orders relating to rulemaking, guidance, and regulatory enforcement (E.O. 13992) and (2) direct executive departments to review regulations that conflict with the objectives concerning protecting public and the environment (E.O. 13990). However, the new rule rescinds more than just provisions directly attributable to now-revoked executive orders. The department also has rescinded regulations in 49 CFR part 5 that:

  • Solely apply to the department's internal operations “and thus need not be codified in the Code of Federal Regulations;”
  • Are duplicative of existing procedures contained in internal departmental procedural directives; and
  • Are derived from the Administrative Procedure Act and significant judicial decisions “and thus need not be adopted by regulation in order to be effective.” 49 CFR part 5, subpart D – Enforcement Procedures was rescinded in its entirety for that reason, DOT said.

DOT said removing these provisions “ensures that the Department is able to effectively and efficiently promulgate new Federal regulations and other actions to support the objectives stated in E.O. 13990.” However, the department said the regulations would continue to include provisions related to the public’s ability to interact with DOT on rulemaking matters and activities. For example, DOT retained procedures for the public to petition for rulemakings and exemptions. Although the new rule rescinds language that explicitly provided for retrospective reviews and guidance document petitions, “the Department will nevertheless accept and process these types of petitions,” it said.

DOT issued the new rule without a notice-and-comment process on the grounds that Administrative Procedure Act requirements do not apply to an action that is a rule of agency organization, procedure, or practice. The same was true for the December 2019 rule that this rule largely overturns.

For the Federal Register notice of the final rule, visit https://www.federalregister.gov/d/2021-06416. For DOT’s December 2019 rule, visit https://www.federalregister.gov/d/2019-26672.

CVSA to hold enforcement events in May and July

The Commercial Vehicle Safety Alliance has scheduled its annual Operation Safe Driver Week for July 11-17 with an emphasis on speeding. During Operation Safe Driver Week, law enforcement personnel will be on the lookout for commercial motor vehicle drivers and passenger vehicle drivers engaging in risky driving behaviors in or around a commercial motor vehicle (CMV).

CVSA previously announced that its annual International Roadcheck enhanced inspection event would be held May 4-6. The emphasis of this year’s Roadcheck will be lighting and hours of service. Roadcheck traditionally has been held in early June, but CVSA moved it up a month because its research has shown that weather tends to be better in early May than in early June.

Bus operator seeks exemption from full clearinghouse query in hiring

FMCSA is requesting comments by April 15 on an application by FirstGroup plc for an exemption to allow it to use a limited pre-employment query of the drug and alcohol clearinghouse as a screen when hiring school bus and transit drivers rather than having to conduct a full pre-employment query as required under the regulations. FirstGroup says the requirement for a full query is hindering its ability to hire at the speed and level needed to keep pace with the demands of the contracted school and transit transportation industry and is resulting in hundreds of thousands of dollars of increased costs.

Under the requested exemption, in lieu of a full query, FirstGroup would conduct a limited pre-employment query of the clearinghouse. If the limited query indicated that information about the driver existed, the company would then conduct a full query of the clearinghouse with the driver-applicant providing consent in the clearinghouse as required. FirstGroup also would conduct a second limited query within 30 to 35 days of the initial limited query and conduct multiple limited queries on all its CDL drivers each year thereafter. For the Federal Register notice, visit https://www.federalregister.gov/d/2021-05328.

Armored car operation seeks exemption to weld front doors shut

FMCSA is inviting comments by May 7 on an application from Loomis Armored US, LLC for an exemption to allow the driver and passenger doors of the cab of its specialized armored vehicles to be welded shut. Loomis believes that welding shut the cab doors and adding two new doors behind the cab will maintain safety while allowing secure armored car operations with reduced staff. For the Federal Register notice, visit https://www.federalregister.gov/d/2021-07102.

FMCSA grants windshield exemption to Bendix

FMCSA granted an exemption to Bendix Commercial Vehicle Systems to allow its advanced vehicle safety systems, which are equipped with cameras, to be mounted lower in the windshield on CMVs than is currently permitted. For the Federal Register notice, visit https://www.federalregister.gov/d/2021-06982.

 

Legislation

West Virginia law allows clear path to independent contractor status

LegislationWest Virginia Gov. Jim Justice last month signed legislation (Senate Bill 272) intended to provide a clear framework for establishing when a worker is an independent contractor or employee. The findings section of the new law notes that legal standards are not only often subjective but also often vary depending on the particular law at issue. The goal of the legislation is to provide certainty and clarity for all involved.

Under the new law, a person is an independent contractor if there is a written contract stating such and the person satisfies any three of nine specified conditions that indicate an independent contractor relationship. Of particular interest in the trucking context is a provision that explicitly allows firms using the services of an independent contractor to specify safety-related devices, procedures, or training. For the text of the West Virginia law, visit http://bit.ly/WVA-IC.

Biden infrastructure plan envisions passage of the PRO Act

The Biden administration’s proposed American Jobs Plan – a $2.3 trillion broadly defined infrastructure package – apparently contemplates enactment of various pro-labor measures, including the Protecting the Right to Organize Act, or PRO Act. An endorsement of the PRO Act is contained in a White House fact sheet on the American Jobs Plan, specifically in a section that proposes measures aimed at promoting union organization and collective bargaining.

The U.S. House of Representatives has already passed the PRO Act on a party line vote. Among a host of pro-labor provisions, the bill (H.R. 842) includes language that would mandate a federal ABC test for worker classification similar to that in California’s AB 5. The bill also would explicitly declare misclassification of workers a violation of the National Labor Relations Act.

Although broadly billed as an infrastructure plan, the American Jobs Plan allocates relatively little money for highways – just 5% of the total cost. Most of the funding goes into construction and retrofitting of buildings and into investments in Biden administration priorities, such as promoting adoption of electric vehicles. Almost as controversial as the labor provisions are the financing measures, including an increase in the corporate tax rate to 28% and the sunset of various tax benefits for companies that operate overseas. The bill also would eliminate tax preferences held by the petroleum industry. To view the fact sheet on the American Jobs Plan, click on the “Learn More” button at https://www.whitehouse.gov/american-jobs-plan.

Bills reintroduced to allow 18-year-old interstate drivers under specific conditions

Legislation (S. 659, H.R. 1745) that would establish an apprenticeship program allowing for interstate drivers aged 18 to 20 was reintroduced in both the House and Senate last month. The Developing Responsible Individuals for a Vibrant Economy Act, or DRIVE Safe Act, would require separate probationary periods of 120 hours and 280 hours, each with specific performance benchmarks. A driver could not transport hazardous materials until after completing the 120-hour probationary period hauling non-hazmat freight.

The legislation would allow 18- to 20-year-olds to drive interstate only if the CMV is governed at 65 mph and equipped with automatic manual or automatic transmissions; active braking collision mitigation systems; and Forward-facing video event capture. The legislation has been introduced in the past two Congresses but failed to advance. For more information, visit https://www.congress.gov/bill/117th-congress/senate-bill/659 and https://www.congress.gov/bill/117th-congress/house-bill/1745.

House and Senate bills would require underride protection rulemaking

Sen. Kirsten Gillibrand (D-New York) and Rep. Steve Cohen (D-Tennessee) reintroduced legislation (S. 605, H.R. 1622) that would mandate regulations to require installation and retrofit of rear, side, and front underride guards on all CMVs with gross vehicle weight ratings of more than 10,000 pounds. The bill also would specify performance standards for each type of underride guard as well as require rules on inspection, maintenance, and repair of the devices. Essentially the same bills were introduced in the past two Congresses. For more information, visit and https://www.congress.gov/bill/117th-congress/senate-bill/605 and https://www.congress.gov/bill/117th-congress/senate-bill/659.

House bill would authorize $755 million to expand commercial truck parking

Reps. Mike Bost (R-Illinois) and Angie Craig (D-Minnesota) have reintroduced legislation (H.R. 2187) that would establish a set-aside source of funding to expand more commercial truck parking throughout the U.S. The bill would authorize $755 million total in annual increments. The funds could be used at a variety of locations, including construction of public rest areas and commercial vehicle parking facilities and parking capacity next to commercial truck stops, weigh stations, and public and private freight facilities. For more information, visit https://www.congress.gov/bill/117th-congress/house-bill/2187.

Sen. Fischer reintroduces bill to loosen restrictions on agricultural hauling

Sen. Deb Fischer (R-Nebraska), the ranking Republican on the Senate subcommittee that oversees trucking regulations, has introduced legislation (S. 792) to modify certain agricultural exemptions for HOS requirements. The bill would eliminate the limitation that applies ag and livestock HOS exemptions only during state-designated planting and harvesting seasons. The bill also would amend and clarify the definition of “agricultural commodities” and authorize a 150 air-mile exemption from HOS requirements on the destination side of a haul for ag and livestock haulers. For details of S. 792, visit https://www.congress.gov/bill/117th-congress/senate-bill/792.

Senate bill would establish federal working group on electric vehicles

Sen. Catherine Cortez Masto (D-Nevada) introduced legislation (S. 508) that would establish a federal working group to make recommendations on the development, adoption, and integration of light and heavy-duty electric vehicles into the transportation and energy systems of the U.S. The working group would include federal and private sector members, including at least one representative of the trucking industry. For more information, visit https://www.congress.gov/bill/117th-congress/senate-bill/508.

 

Advocacy and Comment

Easy Come, Easy Go

Advocacy and CommentLast year, the Department of Transportation issued internal rules providing needed clarity and due process applicable to FMCSA investigations, safety ratings and civil forfeitures. The Agency’s decisions got little publicity but were reviewed with approval approximately a year later in a transportation lawyers’ journal.

Unfortunately, the ink was not dry on the article before incoming Secretary Pete Buttigieg issued a 19-page document largely countermanding the previous findings and eliminating administrative restraints on regulatory abuses the earlier rules were intended to address.

The formal rulemaking process, which was not followed, includes an opportunity for notice and comment, the development of a record for appeal, and the provision for due consideration concerning the effect of the regulations on small carriers. Unfortunately, neither the Trump Administration’s findings nor Buttigieg’s reversal were based on any opportunity for notice or comment. Both must be viewed as “Rules du Jour” (rules of the day).

All too frequently, administrative agencies have grown accustomed to publishing guidance documents masquerading as rules which themselves offer no due process as the FMCSA’s touting of SMS methodology has poignantly demonstrated.

The formal rulemaking process, while cumbersome, is an important procedural protection against unvetted material changes in regulations. The first 100 days of the new administration indicate that there may be many new regulatory and legislative developments to be covered in the coming months.

Owner Operator Update

As previously noted, the PRO Act passed by the House would, along with other pro-labor provisions, eliminate independent contractor treatment of owner-operators. The chance of passage in the Senate may be increased by the parliamentarians’ decision that revenue bills are not subject to a 60-vote filibuster. The FAST Act has been tied to the infrastructure funding bill, which could thus result in a greater chance of passage.

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