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Regulatory and Legislative Update - September 2020

By Dan Boaz | Sep 9, 2020

Contents

Regulation and Enforcement

Courts

Advocacy and Comment

 

Regulation and Enforcement

FMCSA plans pilot programs on 14-hour window, younger drivers

In separate actions, the Federal Motor Carrier Safety Administration is proposing pilot programs to assess changes in regulations concerning the 14-hour driving window and the minimum age for operating a commercial motor vehicle (CMV) in interstate commerce. Neither change to be studied is a new idea for the agency, which previously has proposed one change and has suggested studying the other.

Pause in the 14-hour window

One pilot program would allow property-carrying drivers to pause their 14-hour driving window for 30 minutes to three hours by taking an off-duty break. The agency had proposed to change the hours-of-service (HOS) regulations to allow this relief, but it dropped the provision from the final rule published June 1 after various parties argued that carriers, shippers, or receivers might use the flexibility to pressure drivers into using the break to cover detention time, thereby depriving drivers of an optimal environment for restorative rest. The other changes made by the final HOS rule take effect September 29. (For details of the final rule, see Regulatory Update, June 2020.)

In a Federal Register notice, FMCSA said it still believes that such a break might allow drivers to avoid congestion, thereby making subsequent driving time more productive. A pause also might reduce the pressure to drive above posted speed limits in order to maximize driving within the 14-hour window, it said. The agency also believes that a rest break would reduce fatigue. Also, because drivers still would be required to take 10 consecutive hours off-duty at the end of the work shift, using the pause option would increase the drivers’ off-duty time during the work week. However, under the final rule, drivers using sleeper berths for split rest also could pause their 14-hour windows for up to three hours without having to increase their total rest requirements.

The agency envisions a three-year program with a sample size of between 200 and 400 commercial driver’s license (CDL) drivers. The study group would include drivers from small, medium, and large carriers and independent owner-operators. Some would operate using the “pause” while others would be the control group operating under current regulations. The Federal Register notice includes proposed eligibility criteria for motor carrier and driver participation.

Comments on FMCSA’s proposed pilot program are due November 2. The Federal Register notice announcing the proposed pilot is available at https://www.federalregister.gov/d/2020-19511.

CMV drivers under 21

FMCSA already is pursuing a pilot program that allows interstate CMV operations by drivers aged 18 to 20 with military experience operating heavy equipment – a program authorized by Congress in the FAST Act. In part because very few younger drivers would meet the very narrow qualifications of that pilot program, FMCSA in May of last year solicited comments on a possible second pilot program to allow non-military drivers aged 18 to 20 to operate CMVs in interstate comment. The agency specifically sought comments on the training, qualifications, driving limitations, vehicle safety systems and other issues that it should consider in developing a second pilot program for younger drivers.

On September 4, FMCSA announced that it is moving ahead with a proposed pilot program to assess the safety, feasibility, and potential economic benefits of allowing 18- to 20-year-old drivers to operate in interstate commerce. In order to have a statistically valid sample, about 200 drivers will need to participate in the program, FMCSA said. In announcing the proposed pilot, the agency noted that 49 states and the District of Columbia already allow 18- to 20-year-old commercial driver’s license (CDL) holders to operate CMVs intrastate commerce.

The proposed pilot program adopts several elements that are proposed in proposed legislation (H.R. 1374) known as the DRIVE-Safe Act, including an apprenticeship for drivers lacking CMV experience and technology requirements for equipment being operated by younger drivers. For more on the DRIVE-Safe Act, visit https://www.congress.gov/bill/116th-congress/house-bill/1374.

In a draft Federal Register notice, FMCSA proposes to allow drivers to participate if they fall within one of two categories:

1. 18- to 20-year-old CDL holders who operate CMVs in interstate commerce while taking part in a 120-hour probationary period and a subsequent 280-hour probationary period under an apprenticeship program established by an employer; or

2. 19- and 20-year-old commercial drivers who have operated CMVs in intrastate commerce for a minimum of one year and 25,000 miles.

Study group drivers would not be allowed to operate vehicles hauling passengers or hazardous materials or special configuration vehicles. Participating drivers also would be required to have completed CDL training that meets the standards of the agency’s rule on entry-level driver training. FMCSA also is proposing various restrictions on participation, such as no disqualifications, suspensions, or license revocations within the past two years and no convictions for various serious violations.

Similar to the DRIVE-Act, FMCSA proposes to require the following vehicle safety technologies on the CMVs operated by study group drivers:

  • Active-braking collision mitigation systems;
  • Forward-facing video event recorders;
  • Automatic or automatic-manual transmissions; and
  • Speed limiters set to 65 miles per hour.

The draft Federal Register notice also includes various qualifying criteria for motor carriers. FMCSA also said it would prioritize approval of those motor carriers that equip their vehicles with additional technologies, such as various collision avoidance systems, lane centering, etc.

The Federal Register notice announcing the proposed pilot program on younger drivers is available at https://www.federalregister.gov/d/2020-19977. For previous notices and comments related to this pilot program, see https://www.regulations.gov/docket?D=FMCSA-2018-0346.

OOIDA, SBTC seek rulemakings to expand broker transparency

FMCSA is requesting comments by October 19 on separate petitions for rulemaking filed by the Owner-Operator Independent Drivers Association (OOIDA) and the Small Business in Transportation Coalition (SBTC) to tighten the requirements on property brokers for the reporting of transactions. Current regulations (Part 371.3) require brokers to maintain transaction records and to allow parties to those transactions to review those records. However, the regulations do not specify a particular manner for providing the information. In addition to basic information about consignors and carriers, transaction records must include the compensation received by the broker for its services, the amount of freight charges collected by the broker, and the date of payment to the carrier.

OOIDA requested that FMCSA (1) require property brokers to provide an electronic copy of each transaction record automatically within 48 hours after the contractual service has been completed and (2) prohibit explicitly brokers from including any provision in their contracts that requires a motor carrier to waive its rights to access the transaction records. The group argued that some brokers allow a motor carrier to access records only at the broker's office during normal business hours, making it virtually impossible for motor carriers to access the records.

SBTC's petition is similar to the second portion of OOIDA's request. The group asked that FMCSA prohibit brokers from coercing or otherwise requiring parties to brokers' transactions to waive their right to review the record of the transaction as a condition for doing business. SBTC also requests that FMCSA adopt regulatory language indicating that brokers' contracts may not include a stipulation or clause exempting the broker from having to comply with the transparency requirement.

In publishing the petitions, FMCSA posed several specific questions to potential commenters, including how a rule restricting the rights of private parties from adopting certain contract terms aligns with the agency’s authority; whether a rule should apply to brokers of all sizes; how much a system of automatic notification would cost and whether brokers could form networks to provide the information; and what would be the economic benefits to motor carriers and economic costs to brokers. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-18130.

Proposed HHS guidelines on hair testing would require backup alternative

The Department of Health and Human Services (HHS) has proposed long-awaited mandatory scientific and technical guidelines for the inclusion of hair specimens in federal workplace drug testing programs, but HHS would require agencies to collect at least one other recognized specimen – e.g., urine or oral fluid – that could be used if necessary. Although the proposed guidelines specifically apply to the testing of federal workers, the FAST Act authorized the Department of Transportation (DOT) to use HHS guidelines, once available, to allow motor carriers to use hair testing of safety-sensitive workers instead of urine testing.

The proposed mandatory guidelines would require an alternate specimen if the donor is unable to provide enough hair due to faith-based or medical reasons or due to an insufficient amount or length of hair. The alternate sample could be provided either simultaneously with the hair sample or later if the Medical Review Officer determines it is necessary after reviewing laboratory-reported results for the hair specimen.

The proposed guidelines are scheduled to be published in the Federal Register on September 10, triggering a 60-day comment period. A pre-publication version already is available at https://www.federalregister.gov/d/2020-16432, and the published version will be available at the same link.

FMCSA retreats on carrier size analysis in Beyond Compliance study

FMCSA apparently has dropped its plan to study the practices and technologies used by top safety performers specifically among small, medium, and large motor carriers and now will just give smaller carriers an opportunity to supplement a survey of motor carriers the agency invites to participate. FMCSA has requested comment by September 19 on its revised plan for a study that would help it implement the long-delayed Beyond Compliance program, which Congress authorized nearly five years ago.

The idea behind Beyond Compliance, which FMCSA had begun pursuing even before enactment of the FAST Act in December 2015, is that carriers would receive some type of recognition for voluntary use of advanced technologies or enhanced driver fitness measures. For example, recognition might include an improved Safety Measurement System percentile. Prior to the proposed study, the last official action FMCSA had taken regarding Beyond Compliance was a Federal Register notice in April 2016 requesting comments on the program.

FMCSA originally proposed the study in December 2019. As described in the December Federal Register notice, the agency said it would collect data “through an electronic survey of motor carriers who have safety performance records that are better than the national average” as defined by crash rates and driver and vehicle out-of-service (OOS) rates. “Only those carriers that perform near the top quartile (as determined by the selection criteria laid out below) across all three carrier size categories (large, medium, and small) are potential participants,” FMCSA.

On August 18, FMCSA again published a proposed information collection that is nearly identical to the one published in December. Although the language is slightly different in places, the only fundamental change appears to be in backing away from ensuring study participation across carrier size categories. Now, FMCSA plans to collect data “through an electronic survey of a panel of industry experts” recruited from carriers with safety performance records better than the national average as identified by examining DOT-reportable crash rates and driver and vehicle OOS rates.

The sentence that previously included an assurance of carrier size representation now reads as follows: “Only those carriers that perform near the top quartile across all three categories are potential participants.” In context, the “three categories” clearly refers to the three categories of safety metrics as the latest notice makes no reference at all to small, medium, and large carriers.

The interpretation that no commitment about representing carriers of different sizes in the formal study is reinforced by a new paragraph that did not appear in the earlier notice. It states that in addition to carriers invited by FMCSA, the agency will reach out to the National Association of Small Trucking Companies and Owner-Operator Independent Drivers Association to invite them to voluntarily survey members as a supplemental data collection to the structured design. “This would enable greater participation by smaller carriers and owner-operators, and would also enable a wider perspective of responses,” FMCSA said.

The current Federal Register notice is available at https://www.federalregister.gov/d/2020-18014. The original notice is available at https://www.federalregister.gov/d/2019-27255. For prior notices and comments related to Beyond Compliance, see https://www.regulations.gov/docket?D=FMCSA-2015-0124.

Railroads seek broad HOS relief for unplanned events

FMCSA is requesting comments by September 21 on a an application from the Association of American Railroads and American Short Line and Regional Railroad Association on behalf of member railroads for an exemption from various HOS requirements to allow railroad employees subject to the HOS rules to respond to unplanned events that occur outside of or extend beyond the employee’s normal work hours. The request covers the regulations on mandatory minimum rest, the 14-hour driving window, the 11-hour driving limit, and cumulative work limits. The Federal Register notice is available at https://www.federalregister.gov/d/2020-18215. The exemption application is available at https://www.regulations.gov/docket?D=FMCSA-2020-0171.

IANA training now counts as intermodal inspector qualification

Individuals who complete a training program consistent with a set of intermodal recommended practices (IRPs) and associated requirements developed by the Intermodal Association of North America (IANA) now may be considered qualified inspectors or qualified brake inspectors for intermodal equipment (IME). FMCSA has granted IANA’s request for an exemption from the regulation that requires a year of training of experience – or a combination of both – before becoming a certified inspector/brake inspector. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-17957.

J.J. Keller, Netradyne seek windshield exemptions for cameras

FMCSA is requesting comments on two applications for exemptions to allow cameras to be mounted lower in the windshield of CMVs than currently is permitted. Comments on a request from J.J. Keller are due September 14. The Federal Register notice is available at https://www.federalregister.gov/d/2020-17708. Comments on a request from Netradyne are due September 21. The Federal Register notice is available at https://www.federalregister.gov/d/2020-18217.

 

Courts

More appellate courts address final-mile drivers and arbitration

Just weeks after the U.S. Court of Appeals for the First Circuit ruled that last-mile delivery drivers transporting goods moving in interstate commerce are exempted from coverage of the Federal Arbitration Act (FAA) even if they do not physically cross state lines, three judge panels of two other federal appeals courts have weighed in on the issue. (For more on the July 17 ruling in Waithaka v. Amazon.com, see Regulatory Update, August 2020.)

In an August 19 ruling, the Ninth Circuit essentially agreed with the First Circuit that delivery drivers operating under Amazon’s Amazon Flex app-based delivery program are exempt from FAA became they are making last-mile deliveries “of goods in the stream of interstate commerce.” As in the First Circuit decision, AmFlex drivers did not need to cross state lines in order to be engaged in interstate commerce, the appeals court said. They “pick up packages that have been distributed to Amazon warehouses, certainly across state lines, and transport them for the last leg of the shipment to their destination,” it noted.

The appeals court contrasted that situation to one in a 1935 case Amazon had cited involving live poultry shipped from out of state to slaughterhouses. “Once the poultry reached the slaughterhouses, any further ‘commerce’ involving the poultry required new or subsequent transactions, all of which took place within the state of the slaughterhouse.” The Ninth Circuit decision is available at http://bit.ly/Amazon-9th.

The other case addressing the arbitration issue revolved around a similar point. The Seventh Circuit on August 4 distinguished Grubhub workers who deliver food prepared at local restaurants from those, as in the First Circuit and Ninth Circuit cases, involved in the movement of goods in interstate commerce. The appeals court concluded that the plaintiffs had completely ignored the governing framework.

“Rather than focusing on whether they belong to a class of workers actively engaged in the movement of goods across interstate lines, the plaintiffs stress that they carry goods that have moved across state and even national lines,” the court said. It noted that a bag of potato chips might have traveled across several states or a piece of dessert chocolate might have traveled from Switzerland before landing in meal prepared and delivered by a Grubhub drivers. That’s not good enough to qualify for the FAA exemption; workers most be involved in moving goods across state or national boarders, the Seventh Circuit said.

“By erasing that requirement from the statute, the plaintiffs’ interpretation would sweep in numerous categories of workers whose occupations have nothing to do with interstate transport – for example, dry cleaners who deliver pressed shirts manufactured in Taiwan and ice cream truck drivers selling treats made with milk from an out-of-state dairy,” the court said. The Seventh Circuit decision is available at http://bit.ly/Grubhub-7th.

Judge rules against Uber, Lyft in AB 5 case; Ninth Circuit hears CTA case

A California judge has ruled that Uber and Lyft must stop classifying their ride-hailing drivers operating in California as independent contractors as that practice is barred by state law as enacted in AB 5, which took effect at the beginning of the year. However, the ruling is on hold pending appeal.

In his August 10 ruling, San Francisco County Superior Court Judge Ethan Schulman rejected the plaintiffs’ various arguments, including a motion to stay action in the case until the election when California voters will consider Proposition 22, which would exempt Uber and Lyft from AB 5. On that request, Schulman said that the fact that Uber and Lyft “are attempting to persuade voters to change that law, and effort that may or may not succeed, is no reason for this Court to refrain from deciding the issues currently before it.” For a copy of the preliminary injunction and other documents in the Uber/Lyft case, visit https://webapps.sftc.org/ci/CaseInfo.dll and search Case No. CGC-20-584402.

The decision does not directly affect motor carriers, which have been protected against enforcement of AB 5 requirements pending litigation over whether AB 5 is preempted by the Federal Aviation Administration Authorization Act of 1994. A preliminary injunction obtained by the California Trucking Association (CTA) has been in place since mid-January, but the State of California is appealing the injunction before the U.S. Court of Appeals for the Ninth Circuit. Oral arguments in the case, CTA v. Xavier Becerra, were held on September 1. A recording of the oral arguments is available at https://youtu.be/959SGrORb2I.

ATA files complaint against ocean carriers over intermodal charges

The American Trucking Associations has filed a complaint with the Federal Maritime Commission 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. By limiting motor carriers’ choice of equipment providers, ocean carriers have forced trucking companies and their customers to subsidize nearly $1.8 billion of the ocean carriers’ costs in just the past three years.

In an August 28 Federal Register notice, FMC said the initial decision of the presiding office in the proceeding would be issued by August 24, 2021 with a final decision to be issued by March 10, 2022. The ATA complaint and other documents related to the proceeding are available at https://www2.fmc.gov/readingroom/proceeding/20-14.

Advocacy and Comment

1) Expanded Broker Transparency. The “Expanded Broker Transparency” petition filed by OOIDA is well intended. The broker regulations which provide for disclosure of broker commissions are too easily waived along with other carrier rights in standard broker contracts presented to small carriers on a take it or leave it basis. Yet, the FMCSA has no appetite for making new rules of commerce. For 22 years, it has proclaimed that safety is its major, if not sole, job and has identified rules of commerce as “nothing burgers.” Hopefully new and small carriers will come to recognize that chasing back haul freight for empty trucks at the price of non-compensatory rates is not sustainable.

2) Beyond Compliance Study. For 5 years, the Agency has been noodling about how carriers can get some type of improved safety fitness score for yet to be defined enhanced safety procedures and technology. This request for comment seems like SMS methodology all over again. There is no identification of what will be measured or how it would be used. To its credit, the Agency is reaching out to representative small carriers to obtain “a wide perspective of responses.” Yet until the program is better identified with respect to the advance technologies to be used and the cost / benefit of the program, meaningful responses will be difficult. If SMS is the measuring tool, it is difficult to see how “beyond compliance” can be integrated into existing algorithms which themselves have not proven workable.

3) Misclassification and Final Mile Cases. Misclassification and final mile cases discussed above create vexatious legal issues. Uber and Lyft (the gig economy) and final mile delivery (Amazon et al.) share several things in common. Both typically provide services between two points in the same state and use non-commercial motor vehicles weight less than 10,000 pounds gvw. Also, both models are heavily dependent on the use of independent contractors which, unlike owner-operators in the big truck world, have traditionally been classified as independent contractors for both federal and state purposes. The cases discussed above make clear that final mile delivery of parcels, even when the service is provided between points in the same state is moving in interstate commerce when the shipment is sourced outside the state. Because of federal law, this means arbitration provisions in agreements with lease operators are invalid and class actions against many final mile upstarts can proceed. On the other hand, Uber and Lyft, and locally sourced home delivery providers like pizza and grocery delivery services, are not classified as interstate delivery services and face other challenges.

Under any form of control test, the Uber and Lyft load matching services and particularly their use of independent contractors would seem most easy to justify. Yet in blue states like California, without the federal preemption argument, truly intrastate service providers are left without the “federal preemption argument” which is organized trucking’s strongest defense in pending litigation. At stake in the confusion is more than the parochial issue of the scope of state law versus federal law. The independent contractor model is blue collar entrepreneurship at its best but the future of the model has become a political football which threatens its continued viability.

These legal issues will be played out on the canvas of future politics at both the federal and state levels as well as in the courts.

Read More »

Regulatory and Legislative Update - August 2020

By Dan Boaz | Aug 12, 2020

Contents

Regulation and Enforcement

Courts

Advocacy and Comment

 

Regulation and Enforcement

FMCSA plans pilot programs on 14-hour window, younger drivers

In separate actions, the Federal Motor Carrier Safety Administration is proposing pilot programs to assess changes in regulations concerning the 14-hour driving window and the minimum age for operating a commercial motor vehicle (CMV) in interstate commerce. Neither change to be studied is a new idea for the agency, which previously has proposed one change and has suggested studying the other.

Pause in the 14-hour window

One pilot program would allow property-carrying drivers to pause their 14-hour driving window for 30 minutes to three hours by taking an off-duty break. The agency had proposed to change the hours-of-service (HOS) regulations to allow this relief, but it dropped the provision from the final rule published June 1 after various parties argued that carriers, shippers, or receivers might use the flexibility to pressure drivers into using the break to cover detention time, thereby depriving drivers of an optimal environment for restorative rest. The other changes made by the final HOS rule take effect September 29. (For details of the final rule, see Regulatory Update, June 2020.)

In a Federal Register notice, FMCSA said it still believes that such a break might allow drivers to avoid congestion, thereby making subsequent driving time more productive. A pause also might reduce the pressure to drive above posted speed limits in order to maximize driving within the 14-hour window, it said. The agency also believes that a rest break would reduce fatigue. Also, because drivers still would be required to take 10 consecutive hours off-duty at the end of the work shift, using the pause option would increase the drivers’ off-duty time during the work week. However, under the final rule, drivers using sleeper berths for split rest also could pause their 14-hour windows for up to three hours without having to increase their total rest requirements.

The agency envisions a three-year program with a sample size of between 200 and 400 commercial driver’s license (CDL) drivers. The study group would include drivers from small, medium, and large carriers and independent owner-operators. Some would operate using the “pause” while others would be the control group operating under current regulations. The Federal Register notice includes proposed eligibility criteria for motor carrier and driver participation.

Comments on FMCSA’s proposed pilot program are due November 2. The Federal Register notice announcing the proposed pilot is available at https://www.federalregister.gov/d/2020-19511.

CMV drivers under 21

FMCSA already is pursuing a pilot program that allows interstate CMV operations by drivers aged 18 to 20 with military experience operating heavy equipment – a program authorized by Congress in the FAST Act. In part because very few younger drivers would meet the very narrow qualifications of that pilot program, FMCSA in May of last year solicited comments on a possible second pilot program to allow non-military drivers aged 18 to 20 to operate CMVs in interstate comment. The agency specifically sought comments on the training, qualifications, driving limitations, vehicle safety systems and other issues that it should consider in developing a second pilot program for younger drivers.

On September 4, FMCSA announced that it is moving ahead with a proposed pilot program to assess the safety, feasibility, and potential economic benefits of allowing 18- to 20-year-old drivers to operate in interstate commerce. In order to have a statistically valid sample, about 200 drivers will need to participate in the program, FMCSA said. In announcing the proposed pilot, the agency noted that 49 states and the District of Columbia already allow 18- to 20-year-old commercial driver’s license (CDL) holders to operate CMVs intrastate commerce.

The proposed pilot program adopts several elements that are proposed in proposed legislation (H.R. 1374) known as the DRIVE-Safe Act, including an apprenticeship for drivers lacking CMV experience and technology requirements for equipment being operated by younger drivers. For more on the DRIVE-Safe Act, visit https://www.congress.gov/bill/116th-congress/house-bill/1374.

In a draft Federal Register notice, FMCSA proposes to allow drivers to participate if they fall within one of two categories:

1. 18- to 20-year-old CDL holders who operate CMVs in interstate commerce while taking part in a 120-hour probationary period and a subsequent 280-hour probationary period under an apprenticeship program established by an employer; or

2. 19- and 20-year-old commercial drivers who have operated CMVs in intrastate commerce for a minimum of one year and 25,000 miles.

Study group drivers would not be allowed to operate vehicles hauling passengers or hazardous materials or special configuration vehicles. Participating drivers also would be required to have completed CDL training that meets the standards of the agency’s rule on entry-level driver training. FMCSA also is proposing various restrictions on participation, such as no disqualifications, suspensions, or license revocations within the past two years and no convictions for various serious violations.

Similar to the DRIVE-Act, FMCSA proposes to require the following vehicle safety technologies on the CMVs operated by study group drivers:

  • Active-braking collision mitigation systems;
  • Forward-facing video event recorders;
  • Automatic or automatic-manual transmissions; and
  • Speed limiters set to 65 miles per hour.

The draft Federal Register notice also includes various qualifying criteria for motor carriers. FMCSA also said it would prioritize approval of those motor carriers that equip their vehicles with additional technologies, such as various collision avoidance systems, lane centering, etc.

The Federal Register notice announcing the proposed pilot program on younger drivers is available at https://www.federalregister.gov/d/2020-19977. For previous notices and comments related to this pilot program, see https://www.regulations.gov/docket?D=FMCSA-2018-0346.

OOIDA, SBTC seek rulemakings to expand broker transparency

FMCSA is requesting comments by October 19 on separate petitions for rulemaking filed by the Owner-Operator Independent Drivers Association (OOIDA) and the Small Business in Transportation Coalition (SBTC) to tighten the requirements on property brokers for the reporting of transactions. Current regulations (Part 371.3) require brokers to maintain transaction records and to allow parties to those transactions to review those records. However, the regulations do not specify a particular manner for providing the information. In addition to basic information about consignors and carriers, transaction records must include the compensation received by the broker for its services, the amount of freight charges collected by the broker, and the date of payment to the carrier.

OOIDA requested that FMCSA (1) require property brokers to provide an electronic copy of each transaction record automatically within 48 hours after the contractual service has been completed and (2) prohibit explicitly brokers from including any provision in their contracts that requires a motor carrier to waive its rights to access the transaction records. The group argued that some brokers allow a motor carrier to access records only at the broker's office during normal business hours, making it virtually impossible for motor carriers to access the records.

SBTC's petition is similar to the second portion of OOIDA's request. The group asked that FMCSA prohibit brokers from coercing or otherwise requiring parties to brokers' transactions to waive their right to review the record of the transaction as a condition for doing business. SBTC also requests that FMCSA adopt regulatory language indicating that brokers' contracts may not include a stipulation or clause exempting the broker from having to comply with the transparency requirement.

In publishing the petitions, FMCSA posed several specific questions to potential commenters, including how a rule restricting the rights of private parties from adopting certain contract terms aligns with the agency’s authority; whether a rule should apply to brokers of all sizes; how much a system of automatic notification would cost and whether brokers could form networks to provide the information; and what would be the economic benefits to motor carriers and economic costs to brokers. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-18130.

Proposed HHS guidelines on hair testing would require backup alternative

The Department of Health and Human Services (HHS) has proposed long-awaited mandatory scientific and technical guidelines for the inclusion of hair specimens in federal workplace drug testing programs, but HHS would require agencies to collect at least one other recognized specimen – e.g., urine or oral fluid – that could be used if necessary. Although the proposed guidelines specifically apply to the testing of federal workers, the FAST Act authorized the Department of Transportation (DOT) to use HHS guidelines, once available, to allow motor carriers to use hair testing of safety-sensitive workers instead of urine testing.

The proposed mandatory guidelines would require an alternate specimen if the donor is unable to provide enough hair due to faith-based or medical reasons or due to an insufficient amount or length of hair. The alternate sample could be provided either simultaneously with the hair sample or later if the Medical Review Officer determines it is necessary after reviewing laboratory-reported results for the hair specimen.

The proposed guidelines are scheduled to be published in the Federal Register on September 10, triggering a 60-day comment period. A pre-publication version already is available at https://www.federalregister.gov/d/2020-16432, and the published version will be available at the same link.

FMCSA retreats on carrier size analysis in Beyond Compliance study

FMCSA apparently has dropped its plan to study the practices and technologies used by top safety performers specifically among small, medium, and large motor carriers and now will just give smaller carriers an opportunity to supplement a survey of motor carriers the agency invites to participate. FMCSA has requested comment by September 19 on its revised plan for a study that would help it implement the long-delayed Beyond Compliance program, which Congress authorized nearly five years ago.

The idea behind Beyond Compliance, which FMCSA had begun pursuing even before enactment of the FAST Act in December 2015, is that carriers would receive some type of recognition for voluntary use of advanced technologies or enhanced driver fitness measures. For example, recognition might include an improved Safety Measurement System percentile. Prior to the proposed study, the last official action FMCSA had taken regarding Beyond Compliance was a Federal Register notice in April 2016 requesting comments on the program.

FMCSA originally proposed the study in December 2019. As described in the December Federal Register notice, the agency said it would collect data “through an electronic survey of motor carriers who have safety performance records that are better than the national average” as defined by crash rates and driver and vehicle out-of-service (OOS) rates. “Only those carriers that perform near the top quartile (as determined by the selection criteria laid out below) across all three carrier size categories (large, medium, and small) are potential participants,” FMCSA.

On August 18, FMCSA again published a proposed information collection that is nearly identical to the one published in December. Although the language is slightly different in places, the only fundamental change appears to be in backing away from ensuring study participation across carrier size categories. Now, FMCSA plans to collect data “through an electronic survey of a panel of industry experts” recruited from carriers with safety performance records better than the national average as identified by examining DOT-reportable crash rates and driver and vehicle OOS rates.

The sentence that previously included an assurance of carrier size representation now reads as follows: “Only those carriers that perform near the top quartile across all three categories are potential participants.” In context, the “three categories” clearly refers to the three categories of safety metrics as the latest notice makes no reference at all to small, medium, and large carriers.

The interpretation that no commitment about representing carriers of different sizes in the formal study is reinforced by a new paragraph that did not appear in the earlier notice. It states that in addition to carriers invited by FMCSA, the agency will reach out to the National Association of Small Trucking Companies and Owner-Operator Independent Drivers Association to invite them to voluntarily survey members as a supplemental data collection to the structured design. “This would enable greater participation by smaller carriers and owner-operators, and would also enable a wider perspective of responses,” FMCSA said.

The current Federal Register notice is available at https://www.federalregister.gov/d/2020-18014. The original notice is available at https://www.federalregister.gov/d/2019-27255. For prior notices and comments related to Beyond Compliance, see https://www.regulations.gov/docket?D=FMCSA-2015-0124.

Railroads seek broad HOS relief for unplanned events

FMCSA is requesting comments by September 21 on a an application from the Association of American Railroads and American Short Line and Regional Railroad Association on behalf of member railroads for an exemption from various HOS requirements to allow railroad employees subject to the HOS rules to respond to unplanned events that occur outside of or extend beyond the employee’s normal work hours. The request covers the regulations on mandatory minimum rest, the 14-hour driving window, the 11-hour driving limit, and cumulative work limits. The Federal Register notice is available at https://www.federalregister.gov/d/2020-18215. The exemption application is available at https://www.regulations.gov/docket?D=FMCSA-2020-0171.

IANA training now counts as intermodal inspector qualification

Individuals who complete a training program consistent with a set of intermodal recommended practices (IRPs) and associated requirements developed by the Intermodal Association of North America (IANA) now may be considered qualified inspectors or qualified brake inspectors for intermodal equipment (IME). FMCSA has granted IANA’s request for an exemption from the regulation that requires a year of training of experience – or a combination of both – before becoming a certified inspector/brake inspector. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-17957.

J.J. Keller, Netradyne seek windshield exemptions for cameras

FMCSA is requesting comments on two applications for exemptions to allow cameras to be mounted lower in the windshield of CMVs than currently is permitted. Comments on a request from J.J. Keller are due September 14. The Federal Register notice is available at https://www.federalregister.gov/d/2020-17708. Comments on a request from Netradyne are due September 21. The Federal Register notice is available at https://www.federalregister.gov/d/2020-18217.

 

Courts

More appellate courts address final-mile drivers and arbitration

Just weeks after the U.S. Court of Appeals for the First Circuit ruled that last-mile delivery drivers transporting goods moving in interstate commerce are exempted from coverage of the Federal Arbitration Act (FAA) even if they do not physically cross state lines, three judge panels of two other federal appeals courts have weighed in on the issue. (For more on the July 17 ruling in Waithaka v. Amazon.com, see Regulatory Update, August 2020.)

In an August 19 ruling, the Ninth Circuit essentially agreed with the First Circuit that delivery drivers operating under Amazon’s Amazon Flex app-based delivery program are exempt from FAA became they are making last-mile deliveries “of goods in the stream of interstate commerce.” As in the First Circuit decision, AmFlex drivers did not need to cross state lines in order to be engaged in interstate commerce, the appeals court said. They “pick up packages that have been distributed to Amazon warehouses, certainly across state lines, and transport them for the last leg of the shipment to their destination,” it noted.

The appeals court contrasted that situation to one in a 1935 case Amazon had cited involving live poultry shipped from out of state to slaughterhouses. “Once the poultry reached the slaughterhouses, any further ‘commerce’ involving the poultry required new or subsequent transactions, all of which took place within the state of the slaughterhouse.” The Ninth Circuit decision is available at http://bit.ly/Amazon-9th.

The other case addressing the arbitration issue revolved around a similar point. The Seventh Circuit on August 4 distinguished Grubhub workers who deliver food prepared at local restaurants from those, as in the First Circuit and Ninth Circuit cases, involved in the movement of goods in interstate commerce. The appeals court concluded that the plaintiffs had completely ignored the governing framework.

“Rather than focusing on whether they belong to a class of workers actively engaged in the movement of goods across interstate lines, the plaintiffs stress that they carry goods that have moved across state and even national lines,” the court said. It noted that a bag of potato chips might have traveled across several states or a piece of dessert chocolate might have traveled from Switzerland before landing in meal prepared and delivered by a Grubhub drivers. That’s not good enough to qualify for the FAA exemption; workers most be involved in moving goods across state or national boarders, the Seventh Circuit said.

“By erasing that requirement from the statute, the plaintiffs’ interpretation would sweep in numerous categories of workers whose occupations have nothing to do with interstate transport – for example, dry cleaners who deliver pressed shirts manufactured in Taiwan and ice cream truck drivers selling treats made with milk from an out-of-state dairy,” the court said. The Seventh Circuit decision is available at http://bit.ly/Grubhub-7th.

Judge rules against Uber, Lyft in AB 5 case; Ninth Circuit hears CTA case

A California judge has ruled that Uber and Lyft must stop classifying their ride-hailing drivers operating in California as independent contractors as that practice is barred by state law as enacted in AB 5, which took effect at the beginning of the year. However, the ruling is on hold pending appeal.

In his August 10 ruling, San Francisco County Superior Court Judge Ethan Schulman rejected the plaintiffs’ various arguments, including a motion to stay action in the case until the election when California voters will consider Proposition 22, which would exempt Uber and Lyft from AB 5. On that request, Schulman said that the fact that Uber and Lyft “are attempting to persuade voters to change that law, and effort that may or may not succeed, is no reason for this Court to refrain from deciding the issues currently before it.” For a copy of the preliminary injunction and other documents in the Uber/Lyft case, visit https://webapps.sftc.org/ci/CaseInfo.dll and search Case No. CGC-20-584402.

The decision does not directly affect motor carriers, which have been protected against enforcement of AB 5 requirements pending litigation over whether AB 5 is preempted by the Federal Aviation Administration Authorization Act of 1994. A preliminary injunction obtained by the California Trucking Association (CTA) has been in place since mid-January, but the State of California is appealing the injunction before the U.S. Court of Appeals for the Ninth Circuit. Oral arguments in the case, CTA v. Xavier Becerra, were held on September 1. A recording of the oral arguments is available at https://youtu.be/959SGrORb2I.

ATA files complaint against ocean carriers over intermodal charges

The American Trucking Associations has filed a complaint with the Federal Maritime Commission 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. By limiting motor carriers’ choice of equipment providers, ocean carriers have forced trucking companies and their customers to subsidize nearly $1.8 billion of the ocean carriers’ costs in just the past three years.

In an August 28 Federal Register notice, FMC said the initial decision of the presiding office in the proceeding would be issued by August 24, 2021 with a final decision to be issued by March 10, 2022. The ATA complaint and other documents related to the proceeding are available at https://www2.fmc.gov/readingroom/proceeding/20-14.

 

Advocacy and Comment

1) Expanded Broker Transparency. The “Expanded Broker Transparency” petition filed by OOIDA is well intended. The broker regulations which provide for disclosure of broker commissions are too easily waived along with other carrier rights in standard broker contracts presented to small carriers on a take it or leave it basis. Yet, the FMCSA has no appetite for making new rules of commerce. For 22 years, it has proclaimed that safety is its major, if not sole, job and has identified rules of commerce as “nothing burgers.” Hopefully new and small carriers will come to recognize that chasing back haul freight for empty trucks at the price of non-compensatory rates is not sustainable.

2) Beyond Compliance Study. For 5 years, the Agency has been noodling about how carriers can get some type of improved safety fitness score for yet to be defined enhanced safety procedures and technology. This request for comment seems like SMS methodology all over again. There is no identification of what will be measured or how it would be used. To its credit, the Agency is reaching out to representative small carriers to obtain “a wide perspective of responses.” Yet until the program is better identified with respect to the advance technologies to be used and the cost / benefit of the program, meaningful responses will be difficult. If SMS is the measuring tool, it is difficult to see how “beyond compliance” can be integrated into existing algorithms which themselves have not proven workable.

3) Misclassification and Final Mile Cases. Misclassification and final mile cases discussed above create vexatious legal issues. Uber and Lyft (the gig economy) and final mile delivery (Amazon et al.) share several things in common. Both typically provide services between two points in the same state and use non-commercial motor vehicles weight less than 10,000 pounds gvw. Also, both models are heavily dependent on the use of independent contractors which, unlike owner-operators in the big truck world, have traditionally been classified as independent contractors for both federal and state purposes. The cases discussed above make clear that final mile delivery of parcels, even when the service is provided between points in the same state is moving in interstate commerce when the shipment is sourced outside the state. Because of federal law, this means arbitration provisions in agreements with lease operators are invalid and class actions against many final mile upstarts can proceed. On the other hand, Uber and Lyft, and locally sourced home delivery providers like pizza and grocery delivery services, are not classified as interstate delivery services and face other challenges.

Under any form of control test, the Uber and Lyft load matching services and particularly their use of independent contractors would seem most easy to justify. Yet in blue states like California, without the federal preemption argument, truly intrastate service providers are left without the “federal preemption argument” which is organized trucking’s strongest defense in pending litigation. At stake in the confusion is more than the parochial issue of the scope of state law versus federal law. The independent contractor model is blue collar entrepreneurship at its best but the future of the model has become a political football which threatens its continued viability.

These legal issues will be played out on the canvas of future politics at both the federal and state levels as well as in the courts.

Read More »

Regulatory and Legislative Update - July 2020

By Dan Boaz | Jul 9, 2020

Contents

Note: FMCSA’s emergency declaration related to COVID-19 currently runs through July 14, but the latest extension curtails the coverage of the relief. For latest version, visit https://www.fmcsa.dot.gov/COVID-19.

Legislation

Regulation and Enforcement

Advocacy & Comment

 

Legislation

Congress extends PPP through August 8

President Trump on July 4 signed legislation (S. 4116) that extends the application period for the Paycheck Protection Program through August 8. The program, which provides forgivable loans to businesses with 500 or fewer employees and certain other categories of businesses affected by the coronavirus (COVID-19) pandemic, had been scheduled to expire June 30, but Congress at the last minute extended the program. As of July 6, the Small Business Administration said that nearly $132 billion remained to be loaned. For more information on PPP and other SBA lending programs related to COVID-19, visit www.sba.gov/coronavirus.

House passes infrastructure bill with major motor carrier provisions

In a highly partisan vote, the U.S. House of Representatives on July 1 passed a large package of infrastructure legislation (H.R. 2) that incorporates the highway reauthorization language approved on June 18 by the House Transportation & Infrastructure Committee. The bill addresses investments in a wide range of activities beyond transportation, including housing, broadband, drinking and wastewater systems, clean energy, health care, and more.

During a marathon two-day session, the T&I Committee rejected Republican members’ attempts to strip out various controversial provisions regarding motor carrier regulation and enforcement, including those that would push the Federal Motor Carrier Safety Administration (FMCSA) to accelerate restoration of public Compliance, Safety, and Accountability (CSA) metrics and delay the upcoming changes to hours-of-service rules. (For other provisions included in the bill as introduced, see the June 2020 Regulatory and Legislative Update addendum distributed on June 12.)

The committee did, however, adopt a couple of important amendments, including one that would increase motor carriers’ minimum insurance coverage to $2 million from the current $750,000. The panel also adopted a measure that would require FMCSA to establish screening criteria for obstructive sleep apnea – an idea that even the Obama administration had relegated to a low priority before the Trump administration withdrew the rulemaking altogether in 2017.

Further Democrat-sponsored motor carrier-related measures were added to the bill during floor consideration. For example, the House adopted an amendment sponsored by Rep. Conor Lamb (D-Pennsylvania) requiring a study on the operational and safety performance of small commercial vehicles used in interstate commerce. Specifically, the study would address package delivery of goods moving in interstate commerce using vehicles with gross vehicle weight ratings below 10,000 pounds. Rep. Alan Lowenthal (D-California) sponsored an amendment that requires newly manufactured commercial motor vehicles (CMVs) to be equipped with universal electronic vehicle identifiers to be used by roadside inspectors. The bill also establishes a structured reporting system for data regarding the testing of automated commercial vehicles.

H.R. 2 contains a wide range of provisions that would be unacceptable to the White House or the Republican-controlled Senate, so the prospects for further action are unclear. The closest Senate counterpart to H.R. 2 is S. 2302, which was approved by the Senate Environment and Public Works Committee in January. However, that legislation focuses solely on transportation infrastructure and does not address motor carrier regulatory and enforcement, which is under the jurisdiction of the Senate Commerce Committee. Nor does it address the wide range of non-transportation provisions included in H.R. 2. Given how far apart the House and Senate are and how little time remains in the legislative session, the most likely outcome is either no action at all or a simple short-term extension of the FAST Act, which is set to expire September 30.

For more on H.R. 2, visit https://www.congress.gov/bill/116th-congress/house-bill/2. For more on S. 2302 visit https://www.congress.gov/bill/116th-congress/senate-bill/2302.

House bill would establish carrier selection standard

Reps. Bob Gibbs (R-Ohio) and Henry Cuellar (D-Texas) on July 2 introduced a bill that would require entities to ensure that any carrier they contracted to transport a load of freight on behalf of their customer (1) is properly registered with FMCSA; (2) has obtained the minimum required insurance; and (3) has not been placed out-of-service at the carrier level for any reason. For more information on the bill, visit https://www.congress.gov/bill/116th-congress/house-bill/7457.

House bill would expand HOS exemption for agriculture

In the latest of many bills to loosen the restrictions on ag haulers, Rep. John Joyce (R-Pennsylvania) introduced legislation (H.R. 7102) that would allow the HOS rules exemption regarding maximum driving and on-duty time for drivers transporting agricultural commodities and farm supplies to apply year-round. Current law provides an exception from the federal hours-of-service rules for the transportation of agricultural commodities within a 150 air-mile radius of the normal work reporting location only during planting and harvest periods which are determined by each state. The bill also would require the Department of Transportation to amend the definition of agricultural commodity to include specific commodities that are covered by the exception. For more information on the bill, visit https://www.congress.gov/bill/116th-congress/house-bill/7102.

 

Regulation and Enforcement

Safety advocates/Teamsters, CVSA file petition for reconsideration of HOS changes

In a move that sets up an inevitable court challenge, several safety advocacy groups and the Teamsters union on June 30 submitted a petition for reconsideration of FMCSA’s final rule modifying HOS regulations in several areas. At it stands now, the rule takes effect September 29. (For details of the final rule, see the June 2020 Regulatory and Legislative Update.) The groups seek a stay of the rule pending a decision on the petition for reconsideration.

The Commercial Vehicle Safety Alliance (CVSA) also submitted a petition for reconsideration, albeit one that is much narrower in scope. CVSA is concerned that while FMCSA apparently intended to prohibit use of the 150 air-mile radius exemption in combination with the adverse driving provision, the rule does not do so. CVSA also wants FMCSA to change its current personal conveyance guidance, under which “a driver could, in theory, drive hundreds of miles over the course of several hours all under the designation of personal conveyance,” the organization said. Finally, CVSA asked that FMCSA review existing HOS exemptions before the rule takes effect as many of them will either become obsolete or require updating.

For the petitions for reconsideration (under Comments), the final rule, and other materials, visit https://www.regulations.gov/docket?D=FMCSA-2018-0248

MCSAC to address regulation of smaller vehicles, aging drivers

FMCSA’s Motor Carrier Safety Advisory Committee (MCSAC) will hold a videoconference meeting July 13-14 to discuss several issues, including potential regulation of companies using vehicles with gross vehicle weight ratings of less than 10,000 pounds to deliver goods. MCSAC also will address the aging of the CMV workforce and the impact of the legalization of hemp on the safety oversight of CMV drivers.

In a Federal Register notice, FMCSA said that “there appears to be a gap in safety oversight of both drivers and vehicles” in operations that use small vehicles. MCSAC members will hear from agency experts on trends in crash and highway safety data. This issue has received increasing attention in recent years as e-commerce purchasing has soared. Indeed, the House-passed infrastructure bill (H.R. 2) requires a study of the safety of such operations.

In considering the impact of aging drivers, MCSAC will consider data on the distribution of CMV drivers by age. Finally, FMCSA will brief members on how legal transportation of hemp could affect the agency’s view of what happens if drivers transporting hemp test positive for tetrahydrocannabinol.

The MCSAC videoconference is open to the public. For more information, visit the MCSAC’s webpage at https://www.fmcsa.dot.gov/advisory-committees/mcsac/welcome-fmcsa-mcsac. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-13709.

FMCSA finalizes changes to MCSAP

FMCSA issued a final rule finalizing its proposed changes to its financial assistance programs, including amendments based on the funding formula recommendations derived from the Motor Carrier Safety Assistance Program Formula Working Group. This rule, which is effective July 24, reorganizes the agency's regulations to create a standalone subpart for the High Priority Program and includes other programmatic changes to (1) reduce redundancies, (2) require the use of three-year MCSAP commercial vehicle safety plans (CVSPs), and (3) align the financial assistance programs with FMCSA’s current enforcement and compliance programs. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-11464.

Werner gets limited ELD data exemption for transition to new supplier

FMCSA has granted Werner Enterprises a one-year exemption from the requirement that certain data fields be included in electronic RODS files presented by ELDs. Werner had requested that, during the first eight days that each of its drivers transitions to an ELD from its new supplier, Platform Science, five specific data fields in the RODS files accessible through the in-cab ELD unit be left blank due to file compatibility issues between the suppliers' systems. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-14496.

FMCSA renews DOE, SCRA exemptions

FMCSA has renewed existing exemptions from the 30-minute rest break provision of the HOS regulation held by the U.S. Department of Energy and the Specialized Carriers & Rigging Association. For the DOE renewal Federal Register notice, visit https://www.federalregister.gov/d/2020-14497. For the SCRA renewal Federal Register notice, visit https://www.federalregister.gov/d/2020-13597.

 

Advocacy and Comment

Three recent regulatory and legislative issues are worth commenting on this month.

(1) SMS and its misuse by plaintiff’s bar is not a dead letter but it should be

The FMCSA has not complied with the FAST Act by submitting a corrective action plan. Both the NAS and the Inspector General declined to approve its efficacy. Even the Agency has acknowledged that data generated by the Agency for its own use is not admissible in court and a recent ATRI study highlights misuse of SMS as a significant contributing factor to nuclear judgments and higher insurance costs. Yet to date, the industry support has not coalesced in taking advantage of these findings.

In Section 7202 of its version of the new reauthorization bill, the House majority proposed to advance SMS as a new safety fitness rule, sunsetting the FAST Act requirements without explanation. The FAST Act terminates on September 30 but its unfulfilled requirements are not automatically otherwise trumped.

While the House initiative is unlikely to be law in an election year, the industry should not be caught off guard. Given the uncertain outcome of the Fall election, this issue cannot be left to partisan politics particularly when the facts and law are on our side and useful due process rules have been implemented by the Department of Transportation. It is time to insist the FMCSA move on and abandon SMS as a viable basis for a Safety Fitness Determination and to ensure it is not misused in crash litigation.

(2) Final Mile Issues

The rise of Amazon and Uber has highlighted a regulatory dilemma. Home delivery of freight which is a continuation of an inbound pool shipment is interstate freight. Yet, sprinters and vans which make home delivery which weigh less than 10,000 pounds gvw and are not subject to any FMCSA safety regulation other than the filing of $300,000 in auto liability insurance.

The abuses of the independent contractor model in the home delivery arena has made the regulatory dichotomy more apparent. The House of Representatives has expressed interest in the issue. On Monday July 13 and Tuesday July 14, the FMCSA’s Motor Carrier Safety Advisory Committee – presumably at the Agency’s urging – will consider the existing carve-out from safety regulations for smaller vehicles. This could prove interesting and divisive for vetting and credentialing purposes the industry uses the FMCSA to police carrier compliance. As one client said, home delivery is “the Wild Wild West.” Whether the FMCSA can or should become the new sheriff in town remains to be seen. For more information see https://www.federalregister.gov/documents/2020/06/25/2020-13709/meetings-motor-carrier-safety-advisory-committee-mcsac-public-meeting.

(3) Payroll Protection Program

The barn door did not shut on the Federal Government’s pandemic after big business grabbed up all the stimulus. There is money left in the Payroll Protection Program, small banks are now processing applications, and, as noted above, the time limits for qualifying for loan forgiveness have been extended for 24 weeks after the loan is received. Quite possibly there are more funds on the way.

Unfortunately, apparently carriers with independent contractors cannot qualify for loan forgiveness for using stimulus money to support independent contractors. Owner-operators must file their own application. Yet, sole proprietorships and owners of businesses who report Schedule C income can receive forgiveness by using loan proceeds as the Act requires.

Also, the government is under great pressure to answer for the hasty disbursement of large loans to businesses with no demonstrable need or necessity. As a result, the Administrator and SBA have continually issued interim rules making the loan process, and particularly the forgiveness program, more confusing, restrictive and complicated. Its most recent final rule was issued on June 26. See SBA-2020-0038-0001; Federal Register 2020-13782.

Clearly, the pandemic is far from over and the effects on the motor carrier industry are yet to be fully recognized by many niche carriers. Time restraints for spending stimulus grants and filing for loan forgiveness have been extended. For carriers who have not filed, there are now small banks which are willing to help.

Read More »

House Bill 7095 / Section 4202

By Dan Boaz | Jun 16, 2020

House panel to vote on bill with measures on CSA, SFD, HOS

The Democratic leadership of the House Transportation & Infrastructure Committee on June 4 introduced legislation (H.R. 7095) to reauthorize transportation programs following the expiration of the FAST Act on September 30. Title IV of the bill addresses motor carrier safety and includes several significant provisions related to Federal Motor Carrier Safety Administration (FMCSA) regulation and enforcement. The committee plans to mark up the bill on June 17.

Read More »

Regulatory and Legislative Update - June 2020

By Dan Boaz | Jun 3, 2020

Contents

Note: FMCSA’s emergency declaration related to COVID-19 currently runs through July 14, but the latest extension curtails the coverage of the relief. For latest version, visit https://www.fmcsa.dot.gov/COVID-19.

Legislation

Regulation and Enforcement

Advocacy & Comment

 

Legislation

Congress extends PPP through August 8

President Trump on July 4 signed legislation (S. 4116) that extends the application period for the Paycheck Protection Program through August 8. The program, which provides forgivable loans to businesses with 500 or fewer employees and certain other categories of businesses affected by the coronavirus (COVID-19) pandemic, had been scheduled to expire June 30, but Congress at the last minute extended the program. As of July 6, the Small Business Administration said that nearly $132 billion remained to be loaned. For more information on PPP and other SBA lending programs related to COVID-19, visit www.sba.gov/coronavirus.

House passes infrastructure bill with major motor carrier provisions

In a highly partisan vote, the U.S. House of Representatives on July 1 passed a large package of infrastructure legislation (H.R. 2) that incorporates the highway reauthorization language approved on June 18 by the House Transportation & Infrastructure Committee. The bill addresses investments in a wide range of activities beyond transportation, including housing, broadband, drinking and wastewater systems, clean energy, health care, and more.

During a marathon two-day session, the T&I Committee rejected Republican members’ attempts to strip out various controversial provisions regarding motor carrier regulation and enforcement, including those that would push the Federal Motor Carrier Safety Administration (FMCSA) to accelerate restoration of public Compliance, Safety, and Accountability (CSA) metrics and delay the upcoming changes to hours-of-service rules. (For other provisions included in the bill as introduced, see the June 2020 Regulatory and Legislative Update addendum distributed on June 12.)

The committee did, however, adopt a couple of important amendments, including one that would increase motor carriers’ minimum insurance coverage to $2 million from the current $750,000. The panel also adopted a measure that would require FMCSA to establish screening criteria for obstructive sleep apnea – an idea that even the Obama administration had relegated to a low priority before the Trump administration withdrew the rulemaking altogether in 2017.

Further Democrat-sponsored motor carrier-related measures were added to the bill during floor consideration. For example, the House adopted an amendment sponsored by Rep. Conor Lamb (D-Pennsylvania) requiring a study on the operational and safety performance of small commercial vehicles used in interstate commerce. Specifically, the study would address package delivery of goods moving in interstate commerce using vehicles with gross vehicle weight ratings below 10,000 pounds. Rep. Alan Lowenthal (D-California) sponsored an amendment that requires newly manufactured commercial motor vehicles (CMVs) to be equipped with universal electronic vehicle identifiers to be used by roadside inspectors. The bill also establishes a structured reporting system for data regarding the testing of automated commercial vehicles.

H.R. 2 contains a wide range of provisions that would be unacceptable to the White House or the Republican-controlled Senate, so the prospects for further action are unclear. The closest Senate counterpart to H.R. 2 is S. 2302, which was approved by the Senate Environment and Public Works Committee in January. However, that legislation focuses solely on transportation infrastructure and does not address motor carrier regulatory and enforcement, which is under the jurisdiction of the Senate Commerce Committee. Nor does it address the wide range of non-transportation provisions included in H.R. 2. Given how far apart the House and Senate are and how little time remains in the legislative session, the most likely outcome is either no action at all or a simple short-term extension of the FAST Act, which is set to expire September 30.

For more on H.R. 2, visit https://www.congress.gov/bill/116th-congress/house-bill/2. For more on S. 2302 visit https://www.congress.gov/bill/116th-congress/senate-bill/2302.

House bill would establish carrier selection standard

Reps. Bob Gibbs (R-Ohio) and Henry Cuellar (D-Texas) on July 2 introduced a bill that would require entities to ensure that any carrier they contracted to transport a load of freight on behalf of their customer (1) is properly registered with FMCSA; (2) has obtained the minimum required insurance; and (3) has not been placed out-of-service at the carrier level for any reason. For more information on the bill, visit https://www.congress.gov/bill/116th-congress/house-bill/7457.

House bill would expand HOS exemption for agriculture

In the latest of many bills to loosen the restrictions on ag haulers, Rep. John Joyce (R-Pennsylvania) introduced legislation (H.R. 7102) that would allow the HOS rules exemption regarding maximum driving and on-duty time for drivers transporting agricultural commodities and farm supplies to apply year-round. Current law provides an exception from the federal hours-of-service rules for the transportation of agricultural commodities within a 150 air-mile radius of the normal work reporting location only during planting and harvest periods which are determined by each state. The bill also would require the Department of Transportation to amend the definition of agricultural commodity to include specific commodities that are covered by the exception. For more information on the bill, visit https://www.congress.gov/bill/116th-congress/house-bill/7102.

 

Regulation and Enforcement

Safety advocates/Teamsters, CVSA file petition for reconsideration of HOS changes

In a move that sets up an inevitable court challenge, several safety advocacy groups and the Teamsters union on June 30 submitted a petition for reconsideration of FMCSA’s final rule modifying HOS regulations in several areas. At it stands now, the rule takes effect September 29. (For details of the final rule, see the June 2020 Regulatory and Legislative Update.) The groups seek a stay of the rule pending a decision on the petition for reconsideration.

The Commercial Vehicle Safety Alliance (CVSA) also submitted a petition for reconsideration, albeit one that is much narrower in scope. CVSA is concerned that while FMCSA apparently intended to prohibit use of the 150 air-mile radius exemption in combination with the adverse driving provision, the rule does not do so. CVSA also wants FMCSA to change its current personal conveyance guidance, under which “a driver could, in theory, drive hundreds of miles over the course of several hours all under the designation of personal conveyance,” the organization said. Finally, CVSA asked that FMCSA review existing HOS exemptions before the rule takes effect as many of them will either become obsolete or require updating.

For the petitions for reconsideration (under Comments), the final rule, and other materials, visit https://www.regulations.gov/docket?D=FMCSA-2018-0248

MCSAC to address regulation of smaller vehicles, aging drivers

FMCSA’s Motor Carrier Safety Advisory Committee (MCSAC) will hold a videoconference meeting July 13-14 to discuss several issues, including potential regulation of companies using vehicles with gross vehicle weight ratings of less than 10,000 pounds to deliver goods. MCSAC also will address the aging of the CMV workforce and the impact of the legalization of hemp on the safety oversight of CMV drivers.

In a Federal Register notice, FMCSA said that “there appears to be a gap in safety oversight of both drivers and vehicles” in operations that use small vehicles. MCSAC members will hear from agency experts on trends in crash and highway safety data. This issue has received increasing attention in recent years as e-commerce purchasing has soared. Indeed, the House-passed infrastructure bill (H.R. 2) requires a study of the safety of such operations.

In considering the impact of aging drivers, MCSAC will consider data on the distribution of CMV drivers by age. Finally, FMCSA will brief members on how legal transportation of hemp could affect the agency’s view of what happens if drivers transporting hemp test positive for tetrahydrocannabinol.

The MCSAC videoconference is open to the public. For more information, visit the MCSAC’s webpage at https://www.fmcsa.dot.gov/advisory-committees/mcsac/welcome-fmcsa-mcsac. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-13709.

FMCSA finalizes changes to MCSAP

FMCSA issued a final rule finalizing its proposed changes to its financial assistance programs, including amendments based on the funding formula recommendations derived from the Motor Carrier Safety Assistance Program Formula Working Group. This rule, which is effective July 24, reorganizes the agency's regulations to create a standalone subpart for the High Priority Program and includes other programmatic changes to (1) reduce redundancies, (2) require the use of three-year MCSAP commercial vehicle safety plans (CVSPs), and (3) align the financial assistance programs with FMCSA’s current enforcement and compliance programs. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-11464.

Werner gets limited ELD data exemption for transition to new supplier

FMCSA has granted Werner Enterprises a one-year exemption from the requirement that certain data fields be included in electronic RODS files presented by ELDs. Werner had requested that, during the first eight days that each of its drivers transitions to an ELD from its new supplier, Platform Science, five specific data fields in the RODS files accessible through the in-cab ELD unit be left blank due to file compatibility issues between the suppliers' systems. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-14496.

FMCSA renews DOE, SCRA exemptions

FMCSA has renewed existing exemptions from the 30-minute rest break provision of the HOS regulation held by the U.S. Department of Energy and the Specialized Carriers & Rigging Association. For the DOE renewal Federal Register notice, visit https://www.federalregister.gov/d/2020-14497. For the SCRA renewal Federal Register notice, visit https://www.federalregister.gov/d/2020-13597.

 

Advocacy and Comment

Three recent regulatory and legislative issues are worth commenting on this month.

(1) SMS and its misuse by plaintiff’s bar is not a dead letter but it should be

The FMCSA has not complied with the FAST Act by submitting a corrective action plan. Both the NAS and the Inspector General declined to approve its efficacy. Even the Agency has acknowledged that data generated by the Agency for its own use is not admissible in court and a recent ATRI study highlights misuse of SMS as a significant contributing factor to nuclear judgments and higher insurance costs. Yet to date, the industry support has not coalesced in taking advantage of these findings.

In Section 7202 of its version of the new reauthorization bill, the House majority proposed to advance SMS as a new safety fitness rule, sunsetting the FAST Act requirements without explanation. The FAST Act terminates on September 30 but its unfulfilled requirements are not automatically otherwise trumped.

While the House initiative is unlikely to be law in an election year, the industry should not be caught off guard. Given the uncertain outcome of the Fall election, this issue cannot be left to partisan politics particularly when the facts and law are on our side and useful due process rules have been implemented by the Department of Transportation. It is time to insist the FMCSA move on and abandon SMS as a viable basis for a Safety Fitness Determination and to ensure it is not misused in crash litigation.

(2) Final Mile Issues

The rise of Amazon and Uber has highlighted a regulatory dilemma. Home delivery of freight which is a continuation of an inbound pool shipment is interstate freight. Yet, sprinters and vans which make home delivery which weigh less than 10,000 pounds gvw and are not subject to any FMCSA safety regulation other than the filing of $300,000 in auto liability insurance.

The abuses of the independent contractor model in the home delivery arena has made the regulatory dichotomy more apparent. The House of Representatives has expressed interest in the issue. On Monday July 13 and Tuesday July 14, the FMCSA’s Motor Carrier Safety Advisory Committee – presumably at the Agency’s urging – will consider the existing carve-out from safety regulations for smaller vehicles. This could prove interesting and divisive for vetting and credentialing purposes the industry uses the FMCSA to police carrier compliance. As one client said, home delivery is “the Wild Wild West.” Whether the FMCSA can or should become the new sheriff in town remains to be seen. For more information see https://www.federalregister.gov/documents/2020/06/25/2020-13709/meetings-motor-carrier-safety-advisory-committee-mcsac-public-meeting.

(3) Payroll Protection Program

The barn door did not shut on the Federal Government’s pandemic after big business grabbed up all the stimulus. There is money left in the Payroll Protection Program, small banks are now processing applications, and, as noted above, the time limits for qualifying for loan forgiveness have been extended for 24 weeks after the loan is received. Quite possibly there are more funds on the way.

Unfortunately, apparently carriers with independent contractors cannot qualify for loan forgiveness for using stimulus money to support independent contractors. Owner-operators must file their own application. Yet, sole proprietorships and owners of businesses who report Schedule C income can receive forgiveness by using loan proceeds as the Act requires.

Also, the government is under great pressure to answer for the hasty disbursement of large loans to businesses with no demonstrable need or necessity. As a result, the Administrator and SBA have continually issued interim rules making the loan process, and particularly the forgiveness program, more confusing, restrictive and complicated. Its most recent final rule was issued on June 26. See SBA-2020-0038-0001; Federal Register 2020-13782.

Clearly, the pandemic is far from over and the effects on the motor carrier industry are yet to be fully recognized by many niche carriers. Time restraints for spending stimulus grants and filing for loan forgiveness have been extended. For carriers who have not filed, there are now small banks which are willing to help.

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Regulatory and Legislative Update - May 2020

By Dan Boaz | May 7, 2020

Contents

For the latest FMCSA guidance related to COVID-19, visit https://www.fmcsa.dot.gov/COVID-19.

Regulation and Enforcement

Advocacy and Comment

 

Regulation and Enforcement

FMCSA relaunches Crash Preventability Program

The Federal Motor Carrier Safety Administration (FMCSA) has decided to resume ruling on the preventability of certain categories of commercial motor vehicle (CMV) crashes in a new program that expands on the categories of crashes to be reviewed beyond those in the pilot program; excludes crashes deemed not preventable from the Safety Measurement System (SMS); and streamlines the review process. Motor carriers that have an eligible crash that occurred on or after August 1, 2019 may submit a request for data review (RDR) with the required police accident report and other supporting documents, photos, or videos through the agency’s DataQs website (https://dataqs.fmcsa.dot.gov).

Although FMCSA rejected the Motor Carrier Regulatory Reform Coalition’s (MCRR) position that the proposed changes be made through notice and comment rulemaking, the agency acknowledged in a draft Federal Register notice the concerns expressed by MCRR and the National Association of Small Trucking Companies (NASTC) that preventability would be conflated with fault and that this confusion could lead to negative outcomes in insurance rates and private litigation.

FMCSA emphasized that determinations on crash preventability do not establish legal liability, fault, or negligence by any party. “Fault is generally determined in the course of civil or criminal proceedings and results in the assignment of legal liability for the consequences of a crash,” FMCSA said in the draft notice. “By contrast, a preventability determination is not a proceeding to assign legal liability for a crash. Under 49 U.S.C. § 504(f), FMCSA’s preventability determinations may not be admitted into evidence or used in a civil action for damages and are not reliable for that purpose.”

In response to MCRRC and NASTC concerns about the potential conflation of preventability and fault – and the Commercial Vehicle Safety Alliance’s concerns about the impact on state criminal proceedings – FMCSA has added a disclaimer to the SMS website that states:

A crash preventability determination does not assign fault or legal liability for the crash. These determinations are made on the basis of information available to FMCSA by persons with no personal knowledge of the crash and are not reliable evidence in a civil or criminal action. Under 49 U.S.C. § 504(f), these determinations are not admissible in a civil action for damages. The absence of a not preventable determination does not indicate that a crash was preventable.

The agency also will provide language in its notifications to submitters, as it did in the demonstration program, that determinations are not appropriate for use by private parties in civil litigation and that they do not establish legal liability, fault, or negligence. The language also confirms that crash preventability determinations will not affect safety ratings or result in any penalties or sanctions.

For more information on the CPP, including a link to the draft Federal Register notice, visit https://www.fmcsa.dot.gov/crash-preventability-determination-program.

NPRM would downgrade CDLs, CLPs for positive drug tests

FMCSA is requesting comments by June 29 on a notice of proposed rulemaking (NPRM) that would require states to query the drug and alcohol clearinghouse before issuing, renewing, upgrading, or transferring a commercial driver’s license (CDL) or commercial learner’s permit (CLP). The agency would prohibit states from taking such actions for individuals prohibited from driving a CMV due to drug and alcohol violations.

FMCSA also proposes to change how reports of actual knowledge violations, based on citations for driving under the influence (DUI) violations are maintained in the clearinghouse. Under the NPRM, a driver who is issued a citation for a DUI would still be flagged in the clearinghouse as such even if the driver is not ultimately convicted of the offense. Although the citation would remain in the record, drivers who are not convicted of a DUI could petition FMCSA to add documentary evidence to that effect to their clearinghouse record.

The December 2016 final rule on the drug and alcohol clearinghouse required state driver’s licensing agencies (SDLAs) to query the clearinghouse before issuing, renewing, transferring, or upgrading a CDL. The American Association of Motor Vehicle Administrators (AAMVA) petitioned for reconsideration of that requirement, saying that the authority for acting based on federal clearinghouse records should remain with FMCSA and the employer. In response to AAMVA petition, FMCSA in December extended the compliance date for the mandate that SDLAs query the database until January 6, 2023 so that it could consider a rulemaking on what role SDLAs would play in the process.

In the NPRM, FMCSA proposes that SDLAs be required to downgrade CDLs and CLPs once notified by the clearinghouse that a driver is prohibited from operating a CMV due to a positive drug test. Under the rule in place today, such drivers are prohibited from operating CMVs, but there is no mechanism for changing their CDL or CLP status.

The NPRM also proposes to change how an employer’s report of actual knowledge of a driver’s drug or alcohol use is maintained in the clearinghouse. The current rule allows drivers to petition FMCSA to remove such notifications from the clearinghouse if a DUI citation does not result in a conviction. The NPRM instead would retain an employer’s report regardless of whether the driver is ultimately convicted, although drivers can petition FMCSA to add the fact that they were not convicted to the record. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-08230.

Safety technology firm seeks HOS relief for drivers using its systems

FMCSA is requesting comments by May 20 on an application by Pronto.ai, Inc. on behalf of its interstate motor carrier customers for an exemption from the 11-hour driving limit and 14-hour driving window in the hours-of-service (HOS) regulations. Specifically, Pronto requests that drivers operating CMVs equipped with the Copilot by Pronto advanced driver assistance systems (ADAS), the SmartDrive Video Safety Program, and operating under certain other safeguards, be allowed to drive up to 13 hours during a period of 15 consecutive hours after coming on duty following 10 consecutive hours off duty. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-08343.

SBTC seeks reconsideration of broker bond exemption denial

FMCSA is requesting comments until June 3 on an SBTC petition for reconsideration of the March 2015 denial of an application by the Association of Independent Brokers and Agents (AIBA) for an exemption from the $75,000 bond requirement for all property brokers and freight forwarders. In a Sept. 10, 2019 letter, SBTC submitted its current request for a five-year exemption from the $75,000 broker/freight forwarder financial responsibility requirement for those brokers and freight forwarders with revenues under $15.01 million.

The initial April 10 Federal Register notice requested comments until May 11, but that notice included an incorrect docket number. A May 4 Federal Register notice corrects the docket number (FMCSA-2020-0130) and extended the comment period to June 3. For the original Federal Register notice, visit https://www.federalregister.gov/d/2020-07539. For the correction and extension of the comment period, visit https://www.federalregister.gov/d/2020-09467.

FMCSA again denies SBTC’s bid for ELD exemption reconsideration

FMCSA on April 13 rejected the Small Business Transportation Coalition’s (SBTC) request for reconsideration of its application for an exemption from electronic logging devices (ELDs) for all motor carriers with fewer than 50 employees. The agency, which denied the application in July 2019, said that after reviewing the petition for reconsideration and public comments received it “has determined that neither the applicant nor the commenters provided information that would change the Agency’s previous decision to deny the exemption.” For the Federal Register notice, visit https://www.federalregister.gov/d/2020-07730.

Pipeline services company seeks ELD exemption

FMCSA is requesting comments by May 28 on an application from pipeline services contractor Right-A-Way, LLC for an exemption from the requirement that its short-haul drivers use electronic logging devices (ELDs) when they are required to prepare records of duty status (RODS) more than eight days in a 30 consecutive day period. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-09013.

Werner seeks limited ELD data exemption for transition to new supplier

FMCSA is requesting comments by May 13 on Werner Enterprises’ application for an exemption from the requirement that certain data fields be included in electronic RODS files presented by ELDs. Specifically, Werner requests that, during the first eight days that each of its drivers transitions to an ELD from its new supplier, Platform Science, five specific data fields in the RODS files accessible through the in-cab ELD unit be left blank due to file compatibility issues between the suppliers' systems. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-07731.

Samsara seeks windshield placement exemption for dash camera

FMCSA is requesting comments by May 13 on the application by Samsara Networks Inc. for an exemption to allow its AI Dash Cam to be mounted lower in the windshield on CMVs than is currently permitted. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-07729.

McKee Foods Transportation sleeper berth exemption renewed

FMCSA has renewed McKee Foods Transportation, LLC's exemption allowing its team drivers to take the equivalent of 10 consecutive hours off duty by splitting sleeper-berth time into two periods totaling 10 hours, provided neither of the two periods is less than 3 hours. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-08207.

FMCSA requests comments on DOE, SCRA exemption renewals

FMCSA is inviting comments on requests for renewal of existing exemptions from the 30-minute rest break provision of the HOS regulation. Comments are due May 26 on an exemption held by the U.S. Department of Energy that treats DOE-contracted motor carriers and drivers transporting security-sensitive radioactive materials similarly to drivers of shipments of explosives. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-08579.

Comments are due June 1 on an exemption held by the Specialized Carriers & Rigging Association covering drivers for all specialized carriers transporting loads that exceed normal weight and dimensional limits that require permits issued by a government authority. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-09171.

 

Advocacy and Comment

Crash Preventability Program and Paycheck Protection Program 2

Two recent administrative actions this past month may have a continuing effect on the trucking industry.

1) Preventability study approval. As discussed above, the FMCSA, while rejecting rulemaking, has issued important policy statements that make clear that the agency’s decision to call balls and strikes on crash predictability is not a finding of fault or legal liability. By drawing this clear distinction and citing the federal statute (49 U.S.C. 504(f)) hopefully the agency has put an end to plaintiff’s bar’s mischief that FOIA information gleaned from the agency concerning past crashes is admissible in court or to troll for nuclear verdicts. Defense bar take note. These findings should be useful in opposing the admissibility of crash preventability findings to exacerbate judgments against carriers.

2) Payment Protection Program Part 2. Across industries PPP has been roundly criticized as not reaching the neediest small businesses affected by the pandemic. Distributed by gatekeeper banks which, with unfettered restrictions, showed preference for their preferred customers, funds were quickly exhausted with large payments often to well-heeled recipients with no evidence of correlation to the pandemic quarantine or loss of business. Particularly shut out were small motor carriers, sole proprietors, and owner-operators, which were not preferred borrowers and which were frustrated by changing Treasury rules that prejudiced pass through to sole proprietors, commission sales agents, anyone paid on a Form 1099, and independent contractors and owner-operators in particular.

Read More »

How Highway Closure Impacts Hot Shot Trucking California

By Dan Boaz | Jan 23, 2018

Natural disasters can disrupt any industry, but their impact is particularly serious for logistics companies. The recent mudslides in California are a powerful case in point. By blocking Highway 101, one of the Golden State’s most important roadways, this environmental crisis has diverted trucks from their usual routes. This has significantly increased the cost and difficulty of completing hot shot freight deliveries, hampering the economy of the entire state.

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Louisiana's Transportation Plan To Benefit Hot Shot Trucking Industry

By Dan Boaz | Jan 16, 2018

After years of discussion and debate from countless stakeholders, Louisiana is starting a new infrastructure project. Governor John Bel Edwards unveiled a $600 million plan to improve the state’s highways. Focusing on widening Interstate 10, this plan will be a boon to Hot Shot Trucking and other transportation companies that traverse the state.

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US Trucking Industry Hauls Record $726 Billion in Freight in 2015

By Dan Boaz | Aug 16, 2016

2015 was a remarkable year for the US trucking industry which saw it set a new record by hauling freight worth in excess of $726 billion over the twelve months. The latest data is provided by the American Trucking Association (ATA) and signals back-to-back years that freight value has exceeded $700 billion.

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Mercedes-Benz to Move Sprinter Van Construction to USA

By Dan Boaz | Aug 2, 2016

At Hot Shot Trucking we frequently use fast and reliable sprinter fans to transport your urgent freight from state to state. The cargo capacity of sprinters matches up well with a few pallets or other suitably sized freight. We always match your urgent freight to the ideal vehicle to bring you the best value and transit time possible.

Mercedes-Benz Vans USA has begun construction of

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Trucking Sector Sees Healthy Growth in May

By Dan Boaz | Jun 22, 2016

Welcome news for the trucking sector saw a healthy increase of 2.7% in for-hire truck tonnage for the month of May across the United States. A promising month of growth on the back of two straight months of small decreases.

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Hot Shot Trucking in Arkansas Will Benefit From New Interstate 57

By Dan Boaz | Apr 26, 2016

Encouraging news for hot shot trucking, our national freight network, and the trucking sector, in general, comes from Arkansas as approval to designate U.S. 67 as the 'Future I-57' has been forwarded. According to reports the Fiscal Year 2017 Transportation

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Flood Damaged Bridges, Roads in West Virginia Receive Emergency Funds

By Dan Boaz | Apr 7, 2016

Historic flooding across West Virginia at the end of last month has resulted in significant damage to many roads across the state but urgent repairs have already begun. Overall costs for needed repairs are estimated to be in the region of $40 million and the Federal Government has kicked in emergency relief funds of $5 million thus far.

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The Mid-America Trucking Show Begins This Week in Louisville

By Dan Boaz | Mar 30, 2016

This week sees the return of one of the biggest events on the annual trucking calendar as the Mid-America Trucking Show takes place in Louisville, Kentucky. Industry professionals, manufacturers and affiliated companies across the trucking industry will be present in huge numbers at the Kentucky Exposition Center.

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2015 Sees Record Sales for Class 8 and Class 5 Trucks

By Dan Boaz | Feb 5, 2016


2015 saw a strong year overall for the trucking sector and we witnessed the same in the hot shot trucking market with demand building throughout the year. The year-end numbers from ACT research also reveal that the long haul freight market for trucking continues to be in good health.

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Rhode Island Details Proposed Truck Tolling Locations

By Dan Boaz | Jan 8, 2016

In an effort to increase funding for state highway projects in Rhode Island, the introduction of tolling for trucks in the state for an extended period of time. Almost two years after the proposals were first introduced the Rhode Island Department of Transportation has now provided a comprehensive list of locations that are being considered for the addition of toll gantries.

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Nearly One in Four Bridges Deemed Deficient Nationwide

By Dan Boaz | Jan 4, 2016

The overall condition of our nation's infrastructure is a key consideration for the transportation sector and naturally for everyone involved in providing hot shot trucking services. Safe, reliable and properly maintained highways and roads play a vital part in the on-time delivery of urgent freight and all goods and materials throughout the United States.

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Hot Shot Trucking in Arkansas & Louisiana Will Benefit from New Bridge

By Dan Boaz | Dec 10, 2015


Hot Shot Trucking companies always welcome significant road improvement projects which enable us to deliver hot shot freight rapidly and reliably. A new project near Arkansas City would be a great step forward for truck traffic in Southern Arkansas and Northern Louisiana.

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Federal Highway Plan Should Benefit From Two Week Funding Extension

By Dan Boaz | Nov 17, 2015

With the deadline for approval of the federal transportation bill fast approaching and an agreement yet to be found the trucking industry will welcome news that transportation funding will be extended for two weeks until December 4th. This extension will hopefully improve the likelihood of the new bill being adopted and eliminate the risk of federal funding being frozen.

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Alabama and Florida Long-term Transportation Project Details Released

By Dan Boaz | Nov 6, 2015


Within the hot shot trucking sector, it's always encouraging to read about major road improvements, in this case along the Gulf Coast region which aids in the reliable transportation of hot shot freight. The Florida-Alabama Transportation Planning Organization have announced that transportation improvements required in the region will total about $2.4 billion in cost but also stated that critical improvements in the two states' bordering counties of Escambia and Santa Rosa county will be given top priority.

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Detroit Highway Repair Project Plans to Minimize Trucking Impact

By Dan Boaz | Oct 15, 2015

Few parts of the nation have transportation links as crucial to the hot shot trucking sectors as the highways around the metropolitan Detroit area. For the automotive industry, the dependency on the regional transport routes is absolutely vital throughout Oakland County.

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Daimler Trucks Investment in New R & D Facility

By Dan Boaz | Sep 17, 2015

Beyond freight statistics and economic indicators one of the other methods to gauge the health of the hot shot trucking industry along with full truckload services and trucking in general is investment. With that in mind the recent news that Daimler Trucks North America have confirmed that an $18 million investment will be used to improve their research and development operations that are based in Madras, Oregon.

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Interstate 65 Reopens After Lengthy Bridge Repairs

By Dan Boaz | Sep 9, 2015

Good news for Hot Shot Trucking services and all interstate trucking companies as a critical interstate bridge in Indiana reopens after a month of closures. We previously wrote about the bridge on our sister blog at fulltruckload.com soon after the problems began in early August.

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The Top 20 Congested Roadways in Texas

By Dan Boaz | Aug 28, 2015

At Hot Shot Trucking, we are extremely active supporting business within Texas and handling loads in, out and through the Lonestar State. Urgent freight delivery across the giant state requires the planning and logistics expertise of professional expeditors

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Rig Count Inches Upward Improving Demand for Hot Shot Trucking Service

By Dan Boaz | Aug 25, 2015

While it's been a troubled ten months for the oil and gas sector in terms of prices there does, at last, seem to be some indications that the steady reduction in active rigs is coming to a close for the first time in more than a year. In fact, last week showed the number of active gas and oil rigs in the U.S. increasing for the fifth straight week.

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Future Extensions to Interstate 27 in Texas Benefit Trucking Sector

By Dan Boaz | Jul 24, 2015

A proposal for a brand new extension to Interstate 27 in the oil country of Texas could be approved soon which will provide outstanding improved transportation options to the central part of the state heading north or south. The city of Big Spring voted unanimously to further a resolution backing the potential extension of Interstate 27 through the city, primarily along the current confines of Texas Highway 87.

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Top Ten States for Growth in Manufacturing Jobs this Decade

By Dan Boaz | Jul 22, 2015

Since the end of the recession, one of the indexes that we watch closely for the hot shot trucking sector specifically and the economy, in general, is the growth of manufacturing within the United States. Improvements in the manufacturing, construction and retail sectors each help growth in the demand for urgent freight and hot shot services.

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The Canadian Trucking Show Takes Place This Weekend in Winnipeg

By Dan Boaz | Jul 16, 2015

The demand for hot shot trucking is heating up for the summer and for the energy sector and for oil field support trucking that applies in Canada as well as the United States. This weekend sees one of the largest trucking events taking place north of the border as the Canadian Trucking Show is set to take place in Winnipeg, Manitoba on July 18 & 19.

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Study Explores True Cost to Vehicles From Damaged Roads and Highways

By Dan Boaz | Jul 9, 2015

e find ourselves frequently writing about the importance of investment in transportation infrastructure and the economic impact of congestion and highway issues nationwide. A new study actually analyzes the true cost to an average driver due to damaged road surfaces.

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ATA Results Show a Stronger May for the Trucking Sector

By Dan Boaz | Jun 29, 2015

2015 continues to show stable to good results for the trucking sector along with the economy and this was mirrored by the latest tonnage results from the American Trucking Association. The May report showed an increase of 1.1 percent in the seasonally adjusted for hire truck tonnage which represent a good recovery from the 1.4 percent loss seen in April.

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Iowa Highway Funding Bill is Welcome News for Hot Shot Trucking

By Dan Boaz | Jun 17, 2015

The Iowa Transportation Commission (ITC) has just approved May's proposed Iowa Transportation Program that was submitted by the IDOT. The approval is welcome news for those in the Hot Shot Trucking and Expedited Freight markets as the state of Iowa

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Dalton Highway Reopens for Oil Field Trucking to Alaska's North Slope

By Dan Boaz | Jun 9, 2015

Trucking in general and Hot Shot Trucking specifically is an integral part of the energy industry in Northern Alaska but the last two months historic flooding has impacted the region severely. In fact the only road that provides access to Alaska's North Slope oil fields

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2014 Saw New Record Revenues for U.S. Trucking Industry

By Dan Boaz | May 22, 2015

A recent report released by the American Trucking Association as part of their 2015 "American Trucking Trends" revealed that the nationwide trucking industry saw good growth in 2014 reaching an all-time revenue peak of just over $700 billion

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For Hot Shot Trucking in Louisiana I-20 Remains Critical

By Dan Boaz | May 18, 2015

For Expedited and Hot Shot Trucking across and through northern Louisiana, the region is heavily reliant on Interstate 20 which crosses the upper section of the state from Vicksburg, MS across to Shreveport, LA. Heavy freight travels daily along the highway either to or from Dallas or back east towards Alabama, Texas or Florida.

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New Study Highlights Growing Driver Shortage Facing Trucking Industry

By Dan Boaz | May 5, 2015

One of the largest concerns on the horizon for the nationwide trucking industry remains a growing national shortage of drivers and a new study further demonstrates that there are no signs of the problem diminishing soon. The new report compiled by HireRight reinforces the statistics that show the industry is poised to be short more than a hundred thousand drivers over the coming decade.

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EIA Published List of Top 100 U.S. Oil and Gas Fields

By Dan Boaz | Apr 28, 2015

The hot shot trucking industry is especially active in supporting the energy sector throughout North America delivering urgent equipment, machinery and freight to locations that in many cases are far off the beaten track or a day's drive or more from the point of origin.

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Lack of Funding could Lead to New Port Crisis on East coast

By Dan Boaz | Apr 22, 2015

While the nationwide trucking industry was focusing on the now resolved West coast port dispute throughout the end of 2014 and during the opening months of 2015 a different but still important port issue is being faced on the opposite coast. The Port of New York and New Jersey ranks third in total tonnage nationally and set a new record cargo mark in 2014 but is struggling to manage increasing volume due to an over-stretched infrastructure.  

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U.S. DOT Freight Index Shows Small Drop in February

By Dan Boaz | Apr 13, 2015

As part of our news rotation on the Hot Shot Trucking blog, today sees the addition of a regular review of The Freight Transportation Services Index (TSI). Officially compiled by the United States Department of Transporation, the TSI information is released with

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New Tucson Road Project Benefits Trucking, Local Business and Region

By Dan Boaz | Apr 7, 2015

From time to time on the hot shot trucking blog we spotlight regional transportation improvements that can make a substantial difference to commercial growth along with hot shot trucking, urgent freight, and nationwide trucking operations. Today the focus turns to Tucson, the second largest city in Arizona, and the announcement

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Six Year National Highway Spending Bill Proposed, but Will it Pass?

By Dan Boaz | Apr 2, 2015

fter waiting for months, the full details of the Federal government's proposed transportation bill were finally announced this week. Now begins what will surely be a spirited debate to see if the bill can receive the support it needs to pass into law before

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Hot Shot Trucking News Update Volume Four

By Dan Boaz | Mar 25, 2015

Welcome back to the Hot Shot Trucking blog as we take another look at some of the industry news you can use across the trucking sector. Whether it be hot shot trucking, urgent freight, nationwide trucking companies or the oil and gas production industry sector here are some recent stories that merit more exploration

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ATA and 37 Organizations Urge Congress to Pass Highway Funding Bill

By Dan Boaz | Mar 19, 2015

We're gradually heading toward a funding crisis for our national road transportation network which will impact all nationwide trucking companies to varying degrees. A very clear and pointed message has been sent by the American Trucking Associations (ATA) and a coalition of 37 other organizations to Congress expressing that the lack of an extended highway bill has dire potential consequences for the industry and the economy.

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National Transportation 25 year Safety Plan is Challenging but Crucial

By Dan Boaz | Mar 13, 2015

This week saw the rollout of the most ambitious strategy ever created by The National Strategy on Highway Safety and it will surely be warmly welcomed in all quarters in the spirit of its objectives. The program is titled 'Toward Zero Deaths' and the plan is woven into a series of measures relating to

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New Highway Should Ease Traffic near Las Vegas for Trucking Companies

By Dan Boaz | Mar 5, 2015

Good news for nationwide trucking companies who transport freight to, from or via Las Vegas sees the imminent groundbreaking for a new stretch of highway that should hugely relieve an infamous bottleneck in Boulder City. For traffic heading into

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Top 10 Underfunded States for Federal Highway Funding per Capita

By Dan Boaz | Feb 26, 2015

As we've written before the nation is rapidly heading towards a crisis in lacking infrastructure funding and specifically to the nationwide trucking industry some huge shortfalls in highway spending. Like many other metrics however not all states are equal with the potential for issues looming much larger in some states than others.

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Hot Shot Trucking News Update Volume Three

By Dan Boaz | Feb 20, 2015

A very warm welcome back to the Hot Shot Trucking blog at the end of the working week as we get closer to Spring, yes it really is coming. It's a good time for another regular look at the issues that matter in the trucking sector whether it be hot shot trucking, urgent freight, nationwide trucking companies and the oil and gas production industry sector that we support. You can also read volume one and two if you missed them, for the briefs below you can click on the red link(s) to read more in each summary,

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New Study Projects Encouraging 5 Year Growth for Trucking Sector

By Dan Boaz | Feb 16, 2015

One of the most encouraging reports that we've read so far this year should boost confidence throughout the trucking sector in terms of future planning. The report has been compiled by the Market Research Store following analysis of many of the largest firms in the industry and

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Nationwide Trucking Sector Waits for Approved Transportation Bill

By Dan Boaz | Feb 11, 2015

Perhaps the elephant in the room when we think about the nationwide trucking industry is the overall condition of the infrastructure of our national transportation network, not just for today and tomorrow but especially over the years to come. The dependable ground transportation of freight both locally and via interstate trucking is at the heart of our economy's success and

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Safety of Nationwide Trucking Industry Under Senate Spotlight

By Dan Boaz | Feb 9, 2015

Nationwide trucking companies are consistently looking to improve their overall safety record and data supports that there have been very positive strides in that direction in the industry. Nevertheless the focus seemingly remains on highlighting the exceptions to the rule when incidents happen to what is overall a safer than ever industry, rather than spotlighting the investment and commitment to safety that is ongoing.

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Could 'Value Capture' Work for Road Infrastructure Spending?

By Dan Boaz | Feb 2, 2015

The question of Infrastructure spending is a major debating point in the media and corridors of power these days which it certainly should be. Funding for the nation's highways, bridges, tunnels and roads is of great importance and becoming a hot button issue for politicians and adminstrators both on the local and national level.

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Nebraska's Booming Trucking Sector Still Has Obstacles to Overcome

By Dan Boaz | Jan 30, 2015

Most observers of the nationwide trucking industry and hot shot trucking would be quick to acknowledge Texas as being the core of the interstate trucking sector. Based purely on the number of drivers, vehicles and companies operating in the industry

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How Will Crude Oil Prices Impact Rig Activity in the US This Year?

By Dan Boaz | Jan 26, 2015

It comes as no surprise to learn that the major decline in oil prices over the last four months is having an impact on overall drilling activity but contrary to many predictions this doesn't automatically equate to lower levels of oil production for 2015 in the United States.

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Nationwide Trucking Sector Boosted by Final 2014 ATA Tonnage Results

By Dan Boaz | Jan 21, 2015

It's a pleasure to write about the final 2014 data concerning truck tonnage from the American Trucking Association that was just released. The new report shows that the seasonally adjusted For-Hire Truck Tonnage Index remained at 136.8, matching the November high water mark for 2014 which also happened to be an all time record.

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I-70 Expansion Funding in Missouri & Trucking Industry Impact Uncertain

By Dan Boaz | Jan 16, 2015

Nationwide truckers who regularly travel across the state of Missouri on Interstate 70 may be facing tolls in the future. A study for the Missouri Department of Transportation has suggested that making the route a toll road is probably the best option for the state to enable it to make needed improvements to the highway.

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Hot Shot Trucking News Update Volume Two

By Dan Boaz | Jan 12, 2015

Welcome back to the latest edition of Hot Shot Trucking news, our regular look at the issues that matter in the world of hot shot trucking, urgent freight, nationwide trucking companies and the oil and gas production industry sector that we support. We'll cover some of the stories that you may have missed as we examine news, data and trends that impact the industry overall. Our first edition if you missed it is here and you can click on the red link(s) to read more in each summary.

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U.S. Crude Oil Production Projected to Grow in 2015

By Dan Boaz | Jan 8, 2015

The rapid decline in crude oil prices seen recently has led many observers to wave red flags about an impending massive reduction in domestic oil production, a sector that is greatly reliant on hot shot trucking services. However when reviewing recent data released by the U.S. Energy Information Administration (EIA) reports show that crude oil production in the United States is projected to grow during 2015.

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Huge Highway Project in Illinois Sees Higher Tolls, Improved Highways

By Dan Boaz | Jan 6, 2015

Outside of the Northeast corridor and California no part of the nation sees as much heavy truck traffic as the upper Midwest particularly Michigan, Indiana and Illinois. If your journey has ever included greater Chicago you'll know that the highway infrastructure in Illinois is already stretched to its limits. For hot shot trucking and urgent freight avoiding delays is a critical component in customer satisfaction.

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2015 to Bring Changes and Challenges to Domestic Energy Sector

By Dan Boaz | Dec 31, 2014

The dawning of a new year traditionally brings hope, optimism and a list of resolutions each of which I share especially for the continued economic recovery nationwide. However within the domestic oil and gas sector which is serviced so effectively by hot shot trucking companies like ours, 2015 commences with a certain degree of uncertainty.

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Top 10 Nationwide Trucking Congestion Locations

By Dan Boaz | Dec 22, 2014

The importance of on time freight delivery is of course a critical concern for all nationwide trucking companies and even more so for a hot shot trucking company like us. Urgent freight and hot shot loads are vital to ensure that the nations industries can maintain full operational effectiveness and receiving parts and equipment on time can often mean the difference between reaching targets or missing them.

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U.S. Energy Production Results Show the Value of Hot Shot Trucking

By Dan Boaz | Dec 17, 2014

In addition to continuous good news on the employment front domestically, surely the largest economic story during the second half of this year has been the decreasing cost of fuel due to barrel prices now significantly lower than they were back in the summer. The truth is that this is the result of a uniquely American success story, reliant on technology, policy plus dedication and hard work throughout the domestic energy sector in exploring new sources that have driven production consistently upward. All of these results are in no small part very reliant on dependable hot shot trucking services allowing key equipment and parts to be delivered urgently to locations in the energy field.

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Trucking Sector Optimism for 2015 Key Finding From GE Capital Survey

By Dan Boaz | Dec 10, 2014

As we enter the final weeks of the year and look ahead to 2015 its very encouraging for the nationwide trucking industry to see the latest quarterly survey that has been conducted by GE Capital that targets middle-market trucking firms. A sense of cautious optimism seems to be the prevailing mood within the national trucking sector.


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US Chamber of Commerce & Trucking Sector Plan to Hire 100,000 Veterans

By Dan Boaz | Dec 3, 2014

The vast majority of news concerning the nationwide trucking industry in recent months has tended to center on the national shortage of drivers against an economic backdrop of growing orders and increased tonnage being shipped. Across the industry experts are predicting a shortfall of drivers unlike anything seen in recent decades so it's welcome news that the American Trucking Association has laid down a commitment to hire some 100,000 veterans within the trucking industry and its members.

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Hot Shot Trucking News Update Volume One

By Tim Merrick | Nov 7, 2014

Welcome back to the HotShotTrucking.com blog for our latest update. Every few weeks we'll be bringing together some of the news that impacts our industry whether it's reports about hot shot trucking, nationwide trucking companies or the energy sector domestically. We'll be taking a wider look at the hot shot industry and trucking issues across North America. Consider these updates a starting point to access some of the developments, data and reports that shape the industry in terms of urgent trucking, overnight freight, hot shot loads, domestic oil and energy production, company reports and changes that are worth keeping informed about.

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Long Term Planning Needed to Build Future for Trucking and the Economy

By Tim Merrick | Nov 3, 2014

The overall importance of trucking, nationwide trucking companies, heavy haulage and hot shot trucking is never underestimated in terms of keeping the country working and our goods, equipment and resources delivered throughout the land. Therefore it never ceases to amaze me that the very foundations of trucking, our national highways, bridges and infrastructure all too often don't receive the long-term planning and investment that is so urgently required. What isn't in question that trucking is the oil within the engine of our economy and Transportation Secretary Anthony Foxx says the United States urgently needs a long-term highway and infrastructure bill and I couldn't agree more.

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Energy Industry and Hot Shot Trucking in Texas Create Modern Boomtowns

By Dan Boaz | Oct 28, 2014

Few industries, if any, are as tightly interwoven as hot shot trucking and the energy industry throughout North America. In the ongoing pursuit of new sources for oil and natural gas, time is very much part of the equation.

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Could Driver Shortage be Fixed by Changing Stereotypes and Thinking?

By Tim Merrick | Oct 23, 2014

Welcome to the very first post on our blog at hotshottrucking.com. You'll now find regular blog updates both here and on our other websites within The Expedited Group of Companies as we look at the industry where we work, the news and developments that affect our industry and some of the trends and reports that matter to those interested in hot shot trucking, hot shot freight, urgent freight, trucking and transportation in general.  Let's get rolling.

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