FAST Act: What didn't make it into the highway bill

By Sandi Soendker, editor-in-chief

One of the provisions that came close but didn't make it into the highway bill - now the FAST Act - was an amendment from U.S. Rep. Jeff Denham, R-Calif., that would have packed a huge wallop to trucking operations. The amendment would have stepped in and established federal law over a number of states (California being one) that have very old state laws that require meal and rest breaks for workers.

Denham's amendment would have assured that federal law in this situation pre-empted state law. But Denham's amendment went even further. It also would have introduced language that would limit compensation for truck drivers to mileage pay only. No detention, no hourly, no other kind of pay. Mileage pay only. Naturally, OOIDA opposed this amendment, issuing a massive call to action.

It was good news, and gratifying, to find out the final FAST Act did not include Denham's language.

The state-mandated meal and rest break law has been a regulatory hornet's nest for some time for truckers - who operate, of course, under the federal hours-of-service rules. Motor carriers argue that the state meal and rest break law doesn't apply to their over-the-road operations and cite the Federal Aviation Administration Authorization Act (or F4A for short) as the basis for pre-emption. That's because the F4A says the state can't make a law that messes with a motor carrier's prices, routes or services. Motor carriers claim stopping for lunch, finding a place to park, etc. does all that.

In July 2014, the 9th Circuit Court of Appeals in Sacramento held that F4A does not trump those meal and break laws because they are not sufficiently "related to" prices, routes or services. Denham's amendment to the highway bill would have reversed the court's ruling.

The F4A is an interesting law. In order to understand more about it, the court cases, and why trucking was involved with an aviation law, I read up on it a couple of years ago. I found some good information in the book "Sweatshop on Wheels" so I called up Dr. Mike Belzer, the author and an old acquaintance.

Mike told me an interesting story about the F4A and its role in trucking history. And I am taking part of this right out of his book and the rest from my notes on our phone conversation.

In the early '90s, a ruckus between UPS and Federal Express hit the fan in California. FedEx was originally an air taxi and air express carrier using truckers and small planes. As the company developed into a general freight carrier, it kept the special status of air carrier.

UPS, originally a local store delivery carrier from the Seattle area, was classified by the ICC as a motor carrier from the beginning. According to Belzer, in the "confusing semi-regulated environment, UPS and FedEx found themselves competing under very different rules in California."

With its classification, FedEx was free to change intrastate rates as it pleased, because California had no authority over rail and air carriers. But UPS, as a motor carrier, was regulated by the state public utilities commission and had to apply for rate changes. Of course, this gave FedEx a huge competitive advantage.

The dispute landed in the courts. FedEx won. All hell broke loose. The unregulated states were saying regulated states prevented "free flow" of commerce. The regulated states complained unregulated states had an unfair advantage.

In his book, Belzer wrote: "Caught in the crosshairs - economic regulation of trucking was dead in its tracks. The ICC would die along with it."

More from his book: In January 1995, an airport funding act was passed with a rider mandating that states conform to a national standard under which markets regulate motor carriers. Yes, that would be the F4A, and Belzer explained it was passed in 1994 to "prevent states from undermining federal deregulation of interstate trucking with a patchwork of state regs." In his book, he wrote that in the Act, "Congress took away states' rights to choose regulatory forms - mandating economic deregulation - with dramatic consequences."

The result was the end of the Interstate Commerce Commission with the ICC Termination Act of 1995. That's why you will hear the F4A - an airport funding law - called the Trucking Deregulation Act.

"Sweatshop on Wheels: Winners and Losers in Trucking Deregulation" was written by Dr. Michael H. Belzer and published in 2000 by the Oxford University Press. LL