February 11, 2016

Small section in aviation reform bill could have big impact on trucking

Provision attempts to lay federal pre-emption on California's driver meal- and rest-break laws.

By Mark B. Solomon

In 1994, President Bill Clinton signed legislation pre-empting state economic regulation of the interstate trucking industry. In 1995, the federal pre-emption statute was extended to the freight brokerage segment, completing an extraordinary 17-year arc that took U.S. freight transportation from a regulated utility to a mostly free-market creature.

However, to hear some trucking companies—mostly large ones—tell it, there are those who either missed the pre-emption memo, or have ignored it. Those purported outliers are appellate court judges in the 9th Circuit who ruled in 2014 that California's regulations governing meal and rest times for truckers were not subject to pre-emption because the policies did not bind motor carriers to specific prices, routes, or services, and didn't interfere with the competitive market forces in the industry.

The court's ruling came despite claims that California's break laws do impact a carrier's ability to compete because the carrier must integrate driver rest times into a myriad of decisions that determine a truck's delivery time and speed, and prices that are set to meet the customer's requirements.

Big trucking companies and their advocates petitioned the U.S. Supreme Court to take up the case, but the High Court declined. Frustrated, they went to Capitol Hill for a solution. They lobbied Rep. Jeff Denham, R-Calif., to include an amendment to last year's transport-spending bill to block 22 states with driver meal and rest times on their books from imposing laws or regulations on drivers operating in interstate commerce. But the provision was dropped from the final version, known as the FAST Act, which became law in December.

Undeterred, pre-emption supporters got language embedded in the recently introduced "Aviation Innovation, Reform, and Reauthorization Act of 2016" that, similar to the Denham amendment, would grant federal power over state and local trucking laws. The House Transportation and Infrastructure Committee is scheduled to vote today on the bill, whose primary function is to authorize six years of funding for the Federal Aviation Administration (FAA). It would also establish a nonprofit corporation outside of the federal government tasked with modernizing air-traffic control services, a provision that drew strong criticism from Democrats on the Committee at Capitol Hill hearings yesterday.

The truck pre-emption provision, which appears in the bill as "Section 611," has drawn the wrath of those who would typically oppose such language: Namely the Teamsters union and the Owner-Operator Independent Drivers Association (OOIDA), which lobbies for small fleets, many of which are single-driver operations.

The Teamsters, which suffered one of its worst legislative defeats in years when the 1994 pre-emption bill became law, have vowed to defeat any effort to override the powers of the 22 states to set driver meal- and rest-break rules. The Section 611 provision jeopardizes highway safety by forcing drivers to spend as much time as possible behind the wheel, limits how drivers can be paid, and fails to compensate them for time spent performing such procedures as pre-trip inspections that don't involve driving time, the union said in a statement late last week. The provision "overrules the fundamental principle that all workers should be paid for the time they work," said James P. Hoffa, the union's general president.

OOIDA echoed the Teamsters concerns, saying the provision would do away with driver compensation for any type of work that didn't involve driving. But in articulating what could be opponents' bigger concern, OOIDA said the provision could effectively gut the states' future roles in dealing with these types of issues. Todd Spencer, the group's executive vice president and point man on Capitol Hill, said although the provision is "intended as a response to the California meal- and rest-break law, its implications go well beyond that state."

Sean McNally, a spokesman for the American Trucking Associations (ATA), which represents big truckers, said the provision "clarifies that Congress intended the trucking industry to be governed by a single set of federal rules and break requirements" created by the Federal Motor Carrier Safety Administration (FMCSA), the unit of the Department of Transportation that oversees truck safety. Lawmakers said Congress "did not intend carriers who pay drivers by the mile, or by the load, to have to change those practices depending on what state they're in," McNally said.

FMCSA already requires drivers to pull off for at least 30 minutes in their first eight hours of driving.

There is no language in Section 611 that eliminates breaks for truckers, McNally said, noting that federal law authorizes drivers to pull off the road if they are fatigued. The provision also doesn't compel carriers to short-change drivers, he said. "On (the) contrary, it expressly requires that carriers paying drivers by the mile or by the load ensure that drivers receive as much [as] or more than they would have been entitled to had they been paid by the hour," he said.

Jim Mullen, executive vice president and general counsel of Omaha-based truckload and logistics giant Werner Enterprises Inc., said he was surprised by OOIDA's comments, believing that the group supported the provision. Mullen added that the language only applies to driver employees, not owner-operators. When asked if OOIDA was aware of the distinction, Mullen replied, "We tried to tell them that. All we were met with was blank stares."

About the Author

Mark B. Solomon
Executive Editor - News
Mark Solomon joined DC VELOCITY as senior editor in August 2008, and was promoted to his current position on January 1, 2015. He has spent more than 30 years in the transportation, logistics and supply chain management fields as a journalist and public relations professional. From 1989 to 1994, he worked in Washington as a reporter for the Journal of Commerce, covering the aviation and trucking industries, the Department of Transportation, Congress and the U.S. Supreme Court. Prior to that, he worked for Traffic World for seven years in a similar role. From 1994 to 2008, Mr. Solomon ran Media-Based Solutions, a public relations firm based in Atlanta. He graduated in 1978 with a B.A. in journalism from The American University in Washington, D.C.

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