U.S. Highway Bill Update:
Could Be a Huge Victory for Motor Carriers in California
House Finally Passes Its Six Year Version
Washington D.C. – On Thursday November 5th the U.S. House of Representatives passed a six-year highway bill that calls for spending $325 billion on transportation and transit projects. The U.S. Senate had passed its own version back in June. Both versions will now go to conference committee between House and Senate negotiators to iron out the differences between the two versions. Many expect a final product to be sitting on the President’s desk for his signature before a temporary funding extension expires on November 20th.
Some of the truck related provisions included in the final bill are hiding motor carrier safety data from public viewing (CSA), a pilot program for CDL holders under 21 to cross state lines, a freeze on raising liability insurance levels, and a whole bunch of mandatory studies such as the methodology used to assess carrier percentile rankings with the Safety Measurement System.
While many of the trucking provisions have widespread industry support, there are two issues that still face scrutiny in conference committee and the WSTA has been actively involved for weeks in making lawmakers aware of our position on these two sections of the bill.
INTERIM HIRING STANDARD – The Transportation Intermediaries Association (TIA) sought legal protection for brokers and shippers who utilized only motor carriers with a federal “Satisfactory” Safety Fitness Determination (SFD). Since 90+ percent of motor carriers are either “unrated” or have a “conditional” rating, this provision could effectively wipe many small-businesses motor carriers from the marketplace as only using a carrier with a “Satisfactory” would become the standard enforced in contracting for transportation (this rating is not the same rating issued by CHP after a terminal inspection). WSTA’s Director of Governmental Affairs Joe Rajkovacz was the individual who broke the story nationwide on the hiring standard with extensive coverage on Sirius XM Radio, Fleet Owner, Heavy Duty Trucking, TruckingInfo.com and Overdrive Magazine.
WSTA has worked with a coalition of other small-business motor carrier organizations which communicated with federal lawmakers about how damaging this language would be during the House mark-up of the bill and during the amendment phase through the House Rules Committee. Rep. Duncan (R-TN) offered up a poorly worded clean-up amendment that was vigorously opposed by our coalition since it tossed “conditionally” rated and New Entrants under the proverbial bus.
Unbelievably, the Owner-Operator Independent Drivers Association (OOIDA) supported the Duncan amendment along with the TIA. Both associations have a close relationship that originated during efforts in increase the federal broker bond requirement to $75,000. No other trucking related association was “dancing” with the TIA in creating the national hiring standard leaving many to ask the unanswered question, “Why is OOIDA assisting the TIA?”
It remains to be seen how the current language focused on a “Satisfactory” SFD in the passed bill will be amended or even removed during conference committee. At press time we are still working to have this provision stripped altogether. Interestingly, OOIDA VP Todd Spencer finally admitted on national radio (11/6) that without significant amendment the entire provision needs to be eliminated.
RESTATEMENT OF CONGRESSIONAL INTENT – FAAAA
California Meal and Rest Breaks/Compensation Methods for Truck Drivers
While monitoring the nearly six hour House mark-up of the highway bill, the last amendment offered was by California Representative Denham (R) from the Central Valley that would firmly restate congressional intent going back to 1994 when congress passed the Federal Aviation Administration Authorization Act prohibiting states from imposing laws that affected the “price, route, or service” of motor carriers.
The amendment would stop many of the lawsuits in California against motor carriers related to alleged violations of California’s meal and rest break requirements for interstate motor carriers. It would also put a stop to bogus lawsuits claiming drivers were improperly compensated. This legislation became necessary as a result of US DOT filing a brief in a legal case claiming federal preemption did not exist over state laws. Needless to say, the ultra-liberal Ninth Circuit has used that brief to allow an explosion of lawsuits against motor carriers. The US Supreme Court has refused to step-in and stop the madness by accepting appealed cases from the Ninth prompting congressional action to stop the lawsuit abuse.
The good news! The amendment by Rep. Denham made it into the final House bill that was finally approved on a vote of 363-64. The WSTA has communicated with lawmakers and encouraged members to do the same since the Denham amendment does face a threat during the conference committee. The Senate bill has no such provision which is going to make the conference committee a battle-ground over this issue.
The pertinent text of Denham’s amendment that exists right now reads:
(A) A State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law prohibiting employees whose hours of service are subject to regulation by the Secretary under section 31502 from working to the full extent permitted or at such times as permitted under such section, or imposing any additional obligations on motor carriers if such employees work to the full extent or at such times as permitted under such section, including any related activities regulated under part 395 of title 49, Code of Federal Regulations.
(B) A State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law that requires a motor carrier that compensates employees on a piece-rate basis to pay those employees separate or additional compensation, provided that the motor carrier pays the employee a total sum that when divided by the total number of hours worked during the corresponding work period is equal to or greater than the applicable hourly minimum wage of the State, political subdivision of the State, or political authority of 2 or more States.
The Teamsters are obviously opposed and are leaning very heavily on their Democratic allies during the conference committee to have the amendment stripped. OOIDA has stepped in and opposed this amendment that would benefit many small-businesses. Rep. Peter DeFazio (D-OR), the ranking minority member of the House Transportation and Infrastructure Committee took to the floor to oppose the Denham amendment making the claim that, “OOIDA represents 90% of motor carriers and they are opposed.” (You can go onto the association Facebook page and watch a video clipping we saved of DeFazio’s comments). OOIDA has also sent out a Call-to-Action to their membership targeting this small-business friendly legislation.
DeFazio, other California Democrats, and the Teamsters and OOIDA want to redefine the traditional meaning of “interstate commerce,” turning to a mileage limitation. Here is the pertinent text of what those parties think makes sense (not):
(A) IN GENERAL.—No State, political subdivision of a State, interstate agency, or other political agency of 2 or more States may enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law regarding meal or rest breaks that —
- prohibits an employee who is operating in interstate commerce and whose hours of service are subject to regulation by the Secretary under section 31502 from working to the full extent permitted under the regulations; or
- penalizes a motor carrier if an employee works to the full extent permitted under the regulations.
(B) LIMITATION.—Subsection (a) shall not apply if the driver operates within a 250 air-mile radius of the driver’s normal work reporting location and if the transportation is between 2 places in a State as part of trade, traffic, or transportation originating or terminating outside the State or the United States.
Now you understand why we decided to give Mr. DeFazio such a prominent place on the cover of our magazine. We are communicating with legislators that the Denham amendment is in fact a small-business friendly piece of legislation as it will protect many of our small, family and minority owned companies who have been unfairly targeted with lawsuits that mostly enrich the pockets of trial lawyers, a few disgruntled drivers and further empowers the Teamsters. OOIDA’s Call-to-Action to its members tells them to contact their representatives and oppose the legislation without informing their members of the issue or the substitute language they’re supportive of adopting. Representing small-businesses? Sure.