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Lawmakers Take Another Stab At The “Preemption Rule” in the Trucking Industry

It has been another busy week in Washington where the trucking industry is concerned. In fact, there have been few other times in history when the trucking industry’s profile was so high, for better or worse, although in this case, it is for the better.

As the North American economies continue to improve, the supply chain is rockin’ and rollin’, yet headwinds remain. From the truck driver employment shortages to a slight increase in on-road accidents, one of the most important – yet least talked about – global industries are suddenly getting a lot of attention.

As a result, movements in Washington D.C. have been especially active. With the economy doing well and trucking providing the backbone of economic growth, lawmakers are trying to figure out how the trucking industry will evolve during a time in which the only constant is change.

We have already seen monumental shifts. From the ELD mandate to the neutering of scores of regulations, trucking companies and other interested parties have had to react quickly and ensure total compliance while shifting gears.

Fortunately, despite the wave of technological integration and regulatory change impacting trucking, most can adapt, increase profits, truck driver retention, and snag market share from competitors who are too slow to recognize the shift. Now the question is how long it will take lightning-quick adaptation speed to do the trick, specifically due to even more regulatory change coming down the pipe?

When Words Speak Louder than Actions

Once again, a battle has been taken up on Capitol Hill over a trucking-related industry issue. This time the battle is not between the trucking industry or the government, or between trucking industry advocacy groups themselves, but between the state and federal government. Quite simply, when it comes to setting work rules for truck drivers, when could states preempt federal law?

Fixing just about anything in Congress these days can be an exercise in futility, and not because any one political party is in charge (we don’t take sides here at the QuickTSI Blog), but because of the dysfunctional nature of government and policymaking. There is a lot of opportunity for lawmakers to talk, but not much opportunity for them to get anything done.

Of course, there are times when a group of lawmakers from both sides of the aisle come together to push the levers of government in a direction of action over inaction, but often, what really happens is a lawmaker proposes an amendment that goes nowhere.

Whether amendments are attached to various bills strictly because of lobbying on behalf of the trucking industry or as a genuine idea on the part of the lawmaker or their constituents, they happen all the time. Just one example is the heavy lobbying the American Trucking Associations (ATA) has been undertaking to prevent individual states from creating their own meal and rest break rules for truckers handling interstate freight movements.

What is Preemption?

This policy of states setting their own rules is referred to as preemption. States believe that they should have the right to set work rules for truck drivers operating within their state lines. The trucking industry and – not surprisingly – the federal government disagrees.

Ironically, many thought the issue was resolved in the 1990s when the Federal Aviation Authority Authorization Act passed and codified national aviation policy standards. If you are wondering how a trucking amendment got into an aviation bill, you haven’t been following Congress enough. Finding clever ways to slip unrelated riders and amendments into bills they have nothing to do with is par for the course.

At the time, the ATA supported the amendment, stating in a letter that the provision would provide a uniform set of rules across all states. They referenced the fact that it was a bipartisan effort that uncovered the patchwork of rules across state lines and decided the numerous approaches could lead to confusion, disruption to the free flow of goods and interstate commerce, and possibly even truck driver and passenger vehicle safety, as truck drivers may be distracted trying to remember or find a note reminding them of state policy when they cross into a new state.

The States Go Their Own Way

Yet even though lawmakers managed to slip language into an aviation bill they thought would fix the preemption problem in trucking, it turns out said language was not tight enough. Nor does it apply to modern-day situations in any meaningful or effective way.

States themselves have largely ignored the provision by setting their own rules over the ensuing years. With many states providing meal and rest break guidance that truck drivers follow, rather than following a national standard, the 1994 provision so cleverly tucked into an aviation bill faded into obscurity, with no one enforcing the standard in the face of states choosing to ignore it.

Even worse, trucking advocates contend that not only are the rules offered up by states duplicative and not grounded in safety science or long-term research, but the states themselves are not enforcing them. Some trucking companies accuse state agencies of using the rules to use litigation as a means of extorting from trucking companies and unwittingly contributing to the impairment of safe driving and inefficient movement of interstate freight. While this is an unsubstantiated claim, it certainly is bold and merits investigation if true.

Consider for a moment why this is even an issue in the first place. A majority of just about anyone you ask who is familiar with the situation will tell you the problem has been with the Hours of Service rules the entire time. That they have remained largely unchanged for nearly a century is a major problem. And with every attempt to modify or change Hours of Service met with resistance, the trucking industry has lived with a rule written over 85 years ago to offer guidance on work, break, and rest hours.

Congress Makes Attempts

If there is one thing you can give Congress credit for, it at least attempts to get things done. Over the past several years, with another attempt in 2015 before this recent effort, lawmakers have attempted to add riders, amendments, and even create entirely new pieces of legislation to prevent states from creating their own rules.

In fact, it is the same lawmaker attempting to put an amendment-fix on the table as the one who made the attempt in 2015. And in what may be a major case of trucking legislation déjà vu, Rep. Jeff Dunham (R-CA) has added his latest preemption amendment to the FAA Reauthorization Act. Attaching trucking industry amendments to aviation bills seems to be a thing in Washington D.C.

It also appears that, much like the 90s amendment, there appears to be bipartisan support for the rider, with two Democratic co-sponsors hopping on the bandwagon. But nothing that seems easy on Capitol Hill actually is. Democratic leadership in the house is lined up against the amendment, with Nancy Pelosi (D-CA), sending a letter to House Democrats stating her belief that the rider is actually an attempt to erode key safeguards against fatigue, crashes, and fatalities.

Pelosi, and others who are against the amendment, see it as a way for states to squeeze even more time out of truck drivers already working long hours over many days. As with any other contentious issue in our country, we have one side saying this amendment will provide a predictable uniformity to Hours of Service and another saying it will provide a perfect opportunity for states to take advantage of truck drivers.

The ATA Makes a Point-By-Point Case

In its attempt to put as much support behind the rider as possible, the ATA has made an impassioned plea for its passage, even going so far as to provide specific counter-points to the arguments against the amendment.

The ATA first points to the fact that federal Hours of Service regulations are separate from state break rules, which are based more on employment law than trucking safety. Rules governing truck drivers, the ATA states, should be crafted first with safety in mind, rather than obscure employment law.

They also stress that the amendment would not take away rest and meal breaks, but instead ensure that states are all following the same guidance when it comes to rest and meal breaks. If anything, the amendment is designed to make sure truck drivers get the time they need.

Since nothing in the amendment prevents, impedes, or compels a state to do anything in relation to the working conditions of a truck driver outside of Hours of Service, meals, and break times, the ATA contends it should be a simple decision.

Yet as simple as it sounds, this rider has been around for quite some time. This wouldn’t be the first time it has seen a shot at the light of a legislative day. Could it be that perhaps persistence is key? It appears so, as the Denham amendment was passed on April 26 as part of the ongoing debate of the FAA Reauthorization Act.

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