The fight has been joined again on Capitol Hill over “preemption,” that is to say, should the...

The fight has been joined again on Capitol Hill over “preemption,” that is to say, should the separate states have the right to preempt federal law when it comes to setting work rules for truck drivers?  Photo: Paccar Financial

Some things are not easy to fix. Especially in Congress, where not every contentious issue can be blamed on partisanship or more exactly, on a lack of bipartisanship.

Sometimes there is a group of bipartisan lawmakers supporting a measure that runs up against a group of bipartisan opponents to the same proposal. More often than not, what happens next is nothing— unless you count as action a given can getting kicked down the proverbial road.

And so it has gone for years now on Capitol Hill with amendments to various bills steadily lobbied for by the American Trucking Associations in hopes of preventing individual states from putting on the books their own meal and rest break rules for CDL drivers operating interstate.

In shorthand, the issue is often described as “preemption,” that is to say, should the separate states have the right to preempt federal law when it comes to setting work rules  for truck drivers?

Surprisingly enough, the whole issue was thought to have been legislatively put to rest way back in 1994 through passage of the Federal Aviation Authority Authorization Act, which codified aviation policy.

How a trucking measure got into an aviation bill in the first place we shall leave for another day. What matters now is that that earlier legislation turned out to be not solid enough a fix to stave off state preemption of federal hours-of-service rules.

As pointed out in an April 25 letter to House Members by ATA President & CEO Chris Spear, a provision of that 1994 bill “provided motor carriers with a uniform set of rules and regulations across all states. This was because Congress, in an overwhelmingly bipartisan effort, recognized that a patchwork of state laws and regulations disrupts the free flow of interstate commerce and threatens the safety of our nation’s roads and bridges.”

To underscore his point about bipartisanship having gotten that job done, he further noted that the FAA Act of 1994 was passed by a Congress controlled by Democrats and signed into law by a Democrat, President Bill Clinton.

Alas, that measure apparently has lacked enough bite to convince states to back off preemption over the ensuing years. Spear’s letter states that instead, there has been “an erosion of this [1994] provision with the imposition of state meal and rest breaks that run counter to national uniformity.”

The kicker, according to the ATA chief, is not just that the state laws are “duplicative” and are “not grounded in safety,” they are not being enforced by the states. Rather, he claims, these statutes are “being used to fuel spurious litigation designed to extort the trucking industry, impairing the safe and efficient movement of interstate goods.”

Riding to trucking’s rescue multiple times over the past several years (all the way back to 2015!) by offering up riders to various legislation that seek to once and for all prevent states from enacting their break rules for truckers has been Rep. Jeff Denham (R-CA).

This time out, Denham’s preemption-fix amendment to the latest FAA Reauthorization Act (H.R. 4) would require interstate CDL holders to adhere to federal rules ahead of any state-mandated regulations. The rider is expected to be voted on this week. And in keeping with the spirit of the 1994 bill, the 2018 amendment is co-sponsored by two of Denham’s colleagues from across the aisle, Reps. Jim Costa (D-CA) and Henry Cuellar (D-TX).

But wait. Lined up against Denham’s amendment— and those two Democrats who have attached their names to it— is none other than the powerful House Minority Leader Nancy Pelosi (D-CA), who may once again wield the gavel as herself Speaker of the House if a Democratic wave sweeps the GOP out of power in the upcoming mid-term elections.

In a letter to Capitol Hill Democrats, Pelosi shot down the Denham rider, stating it would “roll back guaranteed meal and rest breaks for drivers, eroding a key safeguard against fatigue, crashes and vehicular deaths… This wrongheaded amendment denies truck drivers the voluntary lunch or rest break that they are guaranteed in more than 20 states by state law, which in many cases have been on the books for decades.”

By contrast, in his letter, ATA’s Spear argues that adopting the anti-preemption rider would “ensure that motor carriers… are not encumbered by a patchwork of state-by-state regulations, and instead adhere to one uniform federal standard based on truck-specific highway safety evidence and fatigue science,” namely the federal hours-of-service rules.

Also, Spear presciently points out who will likely be among the Congressmen most likely to vote against attaching Denham’s rider-- and they do not fall neatly into partisan boxes. He writes that “…opponents of interstate commerce have suggested that the amendment would harm safety, take away workers’ meal and rest breaks, impact worker pay and impair States’ rights.”

To be sure, Spear goes onto to knock down those arguments, calling such claims “a gross and baseless misrepresentation of the amendment” before laying out his point-by-point case against them:

Federal Hours of Service regulations are based on safety whereas the state break rules at issue here, by contrast, are general employment laws, not developed in the context of truck safety concerns

The amendment would not take away meal and rest breaks for drivers moving interstate commerce, but instead ensure that they adhere to the federal standards rather than a duplicative two-tiered standard that threatens safety

The intent of the amendment is – and always has been – to make clear that federal law preempts state law specifically with respect to meal and rest breaks, and to ensure the amendment does not impact driver pay, the amendment’s sponsors explicitly excluded the “piece-rate” language that had been included in previous iterations

Nothing in the amendment impedes a state’s ability to govern the working conditions of truck drivers engaged solely in intrastate commerce. The amendment only targets drivers operating in interstate commerce

Still, hearts and minds— especially up in the rarefied air of  Capitol Hill— are not won over easily, least of all with one letter... even one so forcefully written.

Then again, this ain’t the first rodeo for this rider. Persistence might be what it takes to push across this finish line.

Related: House THUD Bill Boasts Trucking Reform Riders

About the author
David Cullen

David Cullen

[Former] Business/Washington Contributing Editor

David Cullen comments on the positive and negative factors impacting trucking – from the latest government regulations and policy initiatives coming out of Washington DC to the array of business and societal pressures that also determine what truck-fleet managers must do to ensure their operations keep on driving ahead.

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