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Transportation Companies Keep Rolling Atop List of Top 150 U.S. Postal Service Suppliers
Thursday, March 18, 2021
Source: David P. Hendel
MARCH 9, Washington D.C. —Transportation companies continue their reign atop of the list of the Top 150 U.S. Postal Service Suppliers in fiscal year 2020, with eight of the top ten USPS suppliers providing transportation services or equipment. Of its more than $16.1 billion procurement spend in FY 2020, $8.8 billion–more than half–went to transportation suppliers.
The top USPS supplier is again Federal Express, which received over $2.2 billion–$174 million more than in FY 2019. FedEx transports mail by air for the Postal Service and has stood atop the list since 2002. FedEx's current air cargo network contract with the Postal Service continues for another four years, expiring on September 29, 2024.
The only two non-transportation companies in the top ten were EnergyUnited Service and Victory Packaging. EnergyUnited pays the Postal Service's telecommunications and energy bills and was the agency's second largest supplier. Victory Packaging, which makes the packaging products that USPS provides to mailers, is 7th on the list.
A newcomer to the list, OEM Systems LLC, filled the 8th spot. OEM provides cargo vans, pick-ups, and other vehicles. Eagle Express Lines, Postal Fleet Services and United Parcel Service round out the rest of the top ten USPS suppliers. All combined, the top ten suppliers earned $4.7 billion, about $500 million more than the prior year and almost one-third of USPS's total procurement spend.
Transportation suppliers also dominate the 11th through 20th rank, filling seven of those positions. Accenture Federal Services is the top information technology provider, receiving $176 million in USPS payments. United Airlines was the top commercial airline, gaining $166 million.
Member David P. Hendel with Culhane Meadows, in Washington, D.C., has created a website regarding postal contractors at www.postalcontractor.com.
California SCt applies Dynamex ABC test to pre-Dynamex cases
Friday, January 22, 2021
Source:
On January 14, 2021, the California Supreme Court in Vasquez v. Jan-Pro Franchise International, Inc. held that the three-part "ABC" test previously set forth in Dynamex Operations West Inc. v. Superior Court also applies retroactively to all non-final cases that predate the April 2018 Dynamex decision. In issuing this decision in Vasquez, the California Supreme Court responded to a certified question from the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit had previously withdrawn its own opinion applying the Dynamex ABC test retroactively before certifying the question for decision by the California Supreme Court.
California Updates: AB 2257 and Proposition 22
Monday, November 16, 2020
Source:
On January 1, 2020, California’s AB 5 became effective. The new law provided that the ABC test must be used to evaluate whether a worker providing services in California is an employee for purposes of California’s Wage Orders, Labor Code provisions, Workers Compensation Law, and the Unemployment Insurance Code. AB 5 contains numerous “exemptions” which were the product of intense industry-based lobbying efforts by various constituencies. Like many industries, the motor carrier industry was unable to carve out an exemption that would help sustain the long-standing relationships between independent drivers and motor carriers.
Almost immediately after its passage, there were efforts to repeal and amend AB 5. In fact, in the first 10 months of 2020 there were more than thirty attempts to modify or repeal the law. One such effort was successful. On September 4, 2020, AB 2257 became effective. AB 2257 maintains the essential framework of AB 5, added several exemptions, and, notably for the transportation industry, provided additional clarity surrounding the “business-to-business” exemption.
Like many industries, like the motor carrier industry, “gig” economy companies were unable to successfully lobby for specific exemptions to AB 5’s ABC test. As a result a group of powerful gig companies -- Uber, Lyft and Instacart -- decided to take matters into their own hands by fashioning a legislative fix and were able to get Proposition 22, “The App-Based Drivers as Contractors and Labor Policies Initiative,” on the November 3, 2020, ballot. Proponents spent more than $200,000,000 in favor of its passage, and they won by garnering nearly 60% of the vote.
Proposition 22’s passage allows persons at Transportation Network Companies (TNCs) and Delivery Network Companies (DNCs) to maintain their status as independent contractors but provides those workers with certain benefits that are akin to benefits provided to traditional employees. Under this new law, which becomes effective on or about December 16, 2020, an app-based driver is an independent contractor and not an employee if the following conditions are met:
the networking company does not unilaterally prescribe specific dates, times of day, or a minimum number of hours during which the app-based driver must be logged into the platform

the networking company does not require the app-based driver to accept any specific rideshare service or delivery service request as a condition of maintaining access to the platform

the network company does not restrict the app-based driver from working in any other lawful occupation or business
The new law also requires that there must be a written agreement between the TNC or DNC and the app-based driver with an "appeals process" for drivers whose contracts are terminated. It also requires certain pay and benefits to workers. As for earnings, app-based drivers have a guaranteed "net earnings floor" comprised of 120 percent of the applicable minimum wage of "engaged time"[1] and TNCs and DNCs cannot take any tips/gratuities given to the driver. Moreover, calculation of the "net earnings floor" does not include/account tips/gratuities. The law also requires mileage reimbursement at thirty cents ($0.30) per engaged mile for 2021 and this rate must be adjusted for inflation on an annual basis. Amongst other things, the new law also provides for a quarterly healthcare subsidy, certain insurance, provision of safety training, development of anti-harassment policies and training, and requires background checks of drivers.

At this point, other than application to TNCs and DNCs, it is unclear what impacts Proposition 22 will have on other industries. It still does nothing to address motor carriers who are still in the crosshairs of AB 5.

[1] "Engaged time" starts when an app-based driver accepts a rideshare or delivery request to when the app-based driver completes that rideshare or delivery request; it does not include time spent on rideshare/delivery services after the request has been cancelled or any time spent on a rideshare or service where the driver abandons performance prior to completion.
FMCSA Modification and Extension of COVID-19 Emergency Declaration
Wednesday, June 17, 2020
Source: Federal Motor Carrier Safety Administration
The Federal Motor Carrier Safety Administration has announced their modification and extension to the duration of the Emergency Declaration until July 14, 2020. The new categories of transportation that will maintain regulatory relief includes:
FMCSA concluded there is no longer need for emergency relief with respect to the other categories of supplies, equipment, and persons included in the May 13^th extension. Those categories are no longer covered as of June 14 at 11:59 p.m. ET.
FMCSA Has Published Final Hours of Service Rule
Monday, May 18, 2020
Source: Federal Motor Carrier Safety Administration
The Federal Motor Carrier Safety Administration has published the "final" rule on the hours-of-service regulations. The new rules addresses greater flexibility for drivers with respect to the thirty minute rest breaks, sleeper berth time and how that time can be allocated; expanded the maximum window for adverse driving conditions by two hours; and lengthens the short haul exception by two hours from twelve to fourteen hours and the distance limit that a driver may operate from 100 air miles to 150 air miles.
- The Rule is effective 120 days after publication in the Federal Register.
- Hours of Service Drivers Final Rule: https://www.fmcsa.dot.gov/regulations/hours-service/hours-service-drivers-final-rule
FMCSA Expands and Extends Hours of Service and Other Exemptions in Response to COVID-19
Monday, April 27, 2020
Source: Linda Auerbach Allderdice | William P. Byrne | Michael T. Maroney | Jameson B. Rice
The Federal Motor Carrier Safety Administration (FMCSA) has expanded and extended its Emergency Declaration through May 15, 2020, or until the COVID-19 national emergency declaration from the President of the United States is revoked. The Emergency Declaration exempts motor carriers and drivers from federal regulations located at 49 CFR Parts 390-399 (which includes the hours of service requirements) when providing "direct assistance" in support of relief efforts related to COVID-19. The Emergency Declaration was initially issued on Friday March 13, 2020 and expanded on March 18, 2020. It was set to expire on April 15, 2020. Before it expired, on April 8, 2020, the Emergency Declaration was extended until May 15, 2020, and was revised.
Link to Emergency Declaration is here: https://www.fmcsa.dot.gov/emergency/emergency-declaration-under-49-cfr-ss-39023-no-2020-002 and attached pdf.
California Trucking Association Obtains Preliminary Injunction as to Enforcement of AB5
Friday, January 24, 2020
Source: Benesch Friedlander InterConnect Flash
On January 16, 2020, Judge Roger Benitez of the United States District Court for the Southern District of California issued a decision granting a preliminary injunction against enforcing California Assembly Bill No. 5 ("AB5") with respect to motor carriers in the State of California. As written, AB5 would mandate employee status for any driver performing services within the usual course of the hiring entity's business. Judge Benitez ruled that such a result is preempted by the Federal Aviation Administration Authorization Act (the "FAAAA"). Full decision is attached hereto for your review and use.
California Southern District Court Judge Issues TRO as to California AB-5 based on FAAAA Preemption
Thursday, January 2, 2020
Source:
Based on a complaint filed by the California Trucking Association, a United States District Court Judge from the California Southern District Court issued a TRO which blocks the enforcement of Assembly Bill 5. See attached decision. AB-5, which was set to take effect on January 1, 2020, provides a mandatory test for determining whether a person driving or hauling freight for another contracting person or entity is an independent contractor or an employee for all purposes under the California Labor Code, the Industrial Welfare Commission wage orders, and the Unemployment Insurance Code. See Cal. Labor Code § 2750.3(a)(1). Under AB-5's test (the "ABC test"), an owner-operator is presumed to be an employee unless the motor carrier establishes each of three requirements. The TRO was granted on the basis of FAAAA preemption given that as applied the new law essentially forces independent contractors to become employees of the carriers with whom they contract. In addition, another federal court has enjoined AB51 ( which seeks to prohibit arbitration of certain types of labor related claims ).
FMCSA Announces January 1, 2020, Minimum Annual % for Random Drug Testing is 50% and Reminder of Additional Reporting Requirements!
Thursday, January 2, 2020
Source:
The U.S. Department of Transportation's Federal Motor Carrier Safety Administration announced on December 27, 2019 that beginning on January 1, 2020, the minimum annual percentage rate for random drug testing is 50% of the average number of driver positions. The minimum annual percentage rate for random alcohol testing will remain at 10%. FMCSA-regulated employers also are reminded that compliance with the FMCSA Clearinghouse requirements begins on January 6, 2020. At that time, covered employers must be prepared to do query the Clearinghouse before allowing a newly-hired commercial motor vehicle driver (or current employee who transfers into such a position) to begin operating a commercial motor vehicle. Drivers must sign a consent form allowing the employer to do so. Employers must query the Clearinghouse at least once per year for each driver they currently employ. The employer must maintain records of all queries and information obtained in response to the query, for a period of three years. (As of January 6, 2023, an employer who maintains a valid registration fulfills this requirement). Employers must report drivers' drug and alcohol program violations to the Clearinghouse within three business days after the employer learns of the information. Employers must prohibit drivers who have violated FMCSA's drug and alcohol program regulations from performing safety-sensitive duties unless the driver has complied with the return-to-duty process set forth at 49 CFR Part 40, Subpart O. FMCSA regulations also now require employers to add language to their FMCSA drug and alcohol testing policies to notify drivers and driver applicants that (1) a verified positive, adulterated, or substituted drug test result, (2) An alcohol confirmation test with a concentration of 0.04 or higher, (3) A refusal to submit to a drug or alcohol test, (4) an employer's report of actual knowledge, as defined at 49 CFR § 382.107, (5) on duty alcohol use pursuant to 49 CFR § 382.205, (6) pre-duty alcohol use pursuant to 49 CFR § 382.207, (7) alcohol use following an accident pursuant to 49 CFR § 382.209, (8) Drug use pursuant to 49 CFR § 382.213, (9) a SAP's report of the successful completion of the return-to-duty process, (10) a negative return-to-duty test and (11) an employer's report of completion of follow-up testing will be reported to the Clearinghouse.
FAA Releases Drone NPRM
Thursday, January 2, 2020
Source:
The Federal Aviation Administration (FAA) released a pre-publication version (319 pages long) of its much anticipated unmanned aircraft system (UAS or drone) remote identification Notice of Proposed Rulemaking (NPRM). This rulemaking is a major step toward further integration of drones into the U.S. National Airspace (NAS) and a robust unmanned traffic management (UTM) system. The NPRM is slated for formal publication in the Federal Register on Dec. 31, 2019 and will provide for a 60-day public comment period. Interested parties should expect to submit comments on or before Feb. 29, 2020.
Automated Driving System Demonstration Grants
Wednesday, September 18, 2019
Source:
On September 18, 2019, U.S. Transportation Secretary Elaine L. Chao announced $60 million in Federal grant funding to the selected award recipients for the Automated Driving Systems (ADS) Demonstration Grant Notice of Funding Opportunity. To read the full press release and grantees go to https://www.transportation.gov/tags/grants.
FMCSA Publishes NPRM on HOS Changes
Friday, August 16, 2019
Source:
On August 14, 2019, the FMCSA published a notice of proposed rulemaking (NPRM) on changes to hours of service (HOS) rules to increase safety on America's roadways by updating existing regulations for commercial motor vehicle (CMV) drivers. The Agency proposes (1) to increase safety and flexibility for the 30 minute break rule by tying the break requirement to eight hours of driving time without an interruption for at least 30 minutes, and allowing the break to be satisfied by a driver using on duty, not driving status, rather than off duty; (2) to modify the sleeper-berth exception to allow drivers to split their required 10 hours off duty into two periods: one period of at least seven consecutive hours in the sleeper berth and the other period of not less than two consecutive hours, either off duty or in the sleeper berth. Neither period would count against the driver's 14‑hour driving window; (3) to allow one off-duty break of at least 30 minutes, but not more than three hours, that would pause a truck driver's 14-hour driving window, provided the driver takes 10 consecutive hours off-duty at the end of the work shift; (4) to modify the adverse driving conditions exception by extending by two hours the maximum window during which driving is permitted; (5) a change to the short-haul exception available to certain commercial drivers by lengthening the drivers' maximum on‑duty period from 12 to 14 hours and extending the distance limit within which the driver may operate from 100 air miles to 150 air miles.
You can click here to read the NPRM and here to find more information about the NPRM and to submit comments.
Recent Decision: Neddo v. New Prime, Inc.
Monday, July 29, 2019
Source:
In the case of Neddo v. New Prime, Inc., 2019 U.S. Dist. LEXIS 103232 (W.D. Tex. 2019), New Prime obtained summary on the direct and gross negligence claims against it for negligent training and supervision claims. The decision is helpful and sets forth a good blueprint for defeating these types of claims. Click here to read more.
Recent Order: Third Party Licensed Provider of Livery Services in California has Standing to Sue Uber Technologies for Misclassification
Monday, July 29, 2019
Source:
The United States District Court for the Northern District of California recently granted Uber Technologies motion to dismiss in part and denied it in part in a case in a misclassification case. Plaintiff Diva Limousine ("Diva"), a licensed provider of livery services in California, brings this putative class action on behalf of providers of pre-arranged ground transportation services against Uber Technologies and its subsidiaries ("Uber"). Diva alleges that Uber secures unlawful cost savings by misclassifying its drivers as independent contractors instead of employees. In doing so, Uber takes business and market share from competitors like Diva who operate their businesses in compliance with the law. Diva also alleges that Uber, armed with cash from investors, prices its services below cost in order to drive out competitors. Diva asserts that Uber's actions violate the California Unfair Competition Law ("UCL") and the California Unfair Practices Act ("UPA"). The Court held that because the complaint on its face does not allege sufficient facts to establish subject matter jurisdiction, Uber's 12(b)(1) motion to dismiss was GRANTED. Diva was given the right amend its complaint within 30 days of the date of this Order to incorporate the new facts establishing minimal diversity. The Court also agreed with Uber’s argument that Diva's UPA claim failed as a matter of law because a statutory provision exempts Uber from Unfair Practices Act liability. However, the Court denied Uber’s motion to dismiss the Unfair Competition Act claim based on misclassification and allowed the claim to proceed after detailed analysis of Diva’s standing to assert the claim. Click here to read Diva Limousine, Ltd. v. Uber Technologies, Inc., 2019 U.S. Dist. 103621 (N.D. Cal. 2019).
FMCSA Panel Moves Forward With Plan To Update Medical Examiners Handbook
Monday, July 29, 2019
Source:
The FMCSA has almost finished updating the Medical Examiners Handbook. The rewrite will offer the agency’s suggested “best medical practices” for the more than 50,000 certified medical examiners who evaluate complex medical conditions of drivers and is ultimately aimed at keeping unhealthy drivers off the road and ensuring that drivers who mind their health remain behind the wheel. For more information, see Transport Topics, “FMCSA Panel Takes Steps to Revise Obsolete Medical Examiners Handbook,” by Staff Reporter Eric Miller, Week of July 15, 2019.
FMCSA Proposes Two-Year Delay of Driver Training Rule
Monday, July 29, 2019
Source:
In a July 18, 2019 Federal Register post the FMCSA announced a two-year delay for compliance with certain provisions in the Entry Level Driver Training rule, allowing more time for development of secure electronic transfer of information to the certified training provider registry and state driver licensing agencies. The delay changes the date by which training providers must begin uploading certification information into the Training Provider Registry, an electronic database that will contain entry-level driver training information. For more information see Transport Topics, "FMCSA Proposes Two-Year Delay of Entry-Level Driver Training Rule Due to IT Glitches," by Staff Reporter Eric Miller, Week of July 22, 2019.
Electronic Logging Device FAQs
Friday, June 21, 2019
Source: https://www.fmcsa.dot.gov/hours-service/elds/faqs
TLA Members can click here to get answers to Frequently Asked Questions related to Electronic Logging Devices at the FMCSA website.
Enbridge Energy, LP v. Imperial Freight Inc. and C.H. Robinson & Nyswaner v. C.H. Robinson Worldwide, Inc.
Friday, June 21, 2019
Source:
TLA members should be aware of a decision from the United States District Court for the District of Southern Texas captioned Enbridge Energy, LP v. Imperial Freight Inc. and C.H. Robinson found at 2019 U.S. Dist. LEXIS 70106, *1, 2019 WL 1858881 in which the court held in a cargo loss case that state law claims including negligent hiring of the motor carrier against a freight broker were preempted by the FAAAA. Click here to read the decision. On the other hand, members should also be aware of a decision in a personal injury case in the United States District Court for the District of Arizona captioned Nyswaner v. C.H. Robinson Worldwide, Inc., found at 353 F. Supp. 3d 892, 893, 2019 U.S. Dist. LEXIS 1048, *1, 2019 WL 95896 in which the court refused to grant summary judgment based on FAAAA preemption on claims that the broker negligently hired the motor carrier. Click here to read the decision. Reviewing the two decisions together, even if alleging FAAAA preemption on behalf of a freight broker, members may also want to develop facts which support summary judgment on the merits of the claim as well and be cognizant of whether there are written agreements delineating the parties' roles and the impact that personal injury versus cargo loss may have on a Court's willingness to recognize FAAAA preemption. This continues to be an issue to press for appellate level decisions.
March 22, 2019 FMCSA Legal Opinion
Friday, June 21, 2019
Source: https://www.fmcsa.dot.gov/safety/fmcsa-legal-opinion-applicability-preemption-determinations-pending-lawsuits
On March 22, 2019 the FMCSA issued a legal opinion from the Office of the Chief Counsel which held that the FMCSA determination in December of 2018 that federal law preempts California's meal and rest break rules would be applied to cases that were pending as of December 21, 2018 as well as those filed after that date. Further, during the week of June 17, 2019, a Los Angeles Superior Court dismissed claims against a security company holding that the federal hours of service rules governing commercial truck drivers preempted California's meal and rest break rules for both long- and short-haul drivers. The State of California and several other groups have responded to the FMCSA's determination with petitions to the Ninth Circuit to challenge the FMCSA's authority to invalidate California's rules. These petitions are pending and all await the Ninth Circuit's ruling.
Federal Court Finds California’s ABC Test Applies to Trucking and Is Not Preempted
Thursday, April 18, 2019
Source:
Click here to read more.
Supreme Court Decision in FELA Case May Affect the Taxability of Personal Injury Settlements
Wednesday, April 3, 2019
Source:
Click here to read more.
Third Circuit Rules that FAAAA Does Not Preempt New Jersey Test for Determining Independent Contractor Status
Wednesday, March 20, 2019
Source:
Click here to read more.
March 2019 Update from the TLA FLAPS Committee
Monday, March 11, 2019
Source:
Click here for a full update from Mark Andrews, committee chair for the TLA Federal Legislation, Agency Practice, and Security Committee.
Central District of California Finds that Drones Are Aircraft
Tuesday, March 5, 2019
Source:
Click here to read more.
Fifth Circuit Addresses Shipowners Duty to Provide Medical Care to Seamen
Thursday, February 14, 2019
Source:
Click here to read more.
Supreme Court Finds that Federal Courts Cannot Compel Transportation Workers to Arbitrate Employment Claims
Tuesday, February 5, 2019
Source:
Click here to read more.
Multidistric Litigation Court Dismisses Malaysia Airlines Flight MH370 Cases on Forum Non Conveniens Grounds
Thursday, January 24, 2019
Source:
Click here to read more.
Definition of Towing Expanded by Fifth Circuit
Tuesday, January 15, 2019
Source:
Click here to read more.
Indiana Supreme Court Finds that State’s Blocked-Crossing Statute is Preempted Under Federal Law
Tuesday, January 1, 2019
Source:
State v. Norfolk S. Ry. Co.
Supreme Court of Indiana
May 17, 2018, Argued; September 24, 2018, Decided; September 24, 2018, Filed

Supreme Court Case No. 18S-IF-193

Indiana—The Crossroads of America1 —is a railroad capital. Statewide, dozens of railroad companies run trains on more than four thousand miles of track. Roads intersect those tracks, creating 5,693 public railroad—highway grade crossings. That's one for every seventeen public-roadway miles—the highest concentration in the country.2

To aid public travel, the State bars railroads from blocking those crossings for more than ten minutes, except in situations outside the railroads' control. Violations carry minimum $200 fines. After 23 citations, Norfolk Southern challenged the State's regulation as preempted by federal law.

Read the full brief here.
December 2018 Update from TLA FLAPS Committee
Tuesday, December 18, 2018
Source:
Click here for a full update from Mark Andrews, committee chair for the TLA Federal Legislation, Agency Practice, and Security Committee.
US Customs Requires Advance Electronic Manifests for Section 321 Shipments
Thursday, December 6, 2018
Source:
Click here to read more.
Third Circuit Addresses Whether State Law Tort Claims Based on Defects in Aviation Products are Preempted by Federal Law
Monday, November 26, 2018
Source:
Click here to learn more.
November 2018 Update from TLA FLAPS Committee
Thursday, November 15, 2018
Source:
Click here for a full update from Mark Andrews, committee chair for the TLA Federal Legislation, Agency Practice, and Security Committee.
Definition of Vessel Operator Expanded by Fifth Circuit
Tuesday, November 13, 2018
Source:
Click here to learn more.
United States Department of Transportation Publishes Automated Vehicles 3.0: Preparing for the Future of Transportation
Thursday, November 1, 2018
Source:
Click here to learn more.
California Meal and Rest Break Laws Preempted by Federal Law
Wednesday, October 24, 2018
Source:
Click here to learn more.
Maritime Entities Joint/Severally Liable for Port Drayage Driver Unpaid Pay and Benefits Under New California Law
Monday, October 15, 2018
Source:
On September 22, Governor Brown signed SB 1402, a bill that establishes joint and several liability for customers who contract with or use port drayage motor carriers who have unpaid wage, tax and workers’ compensation liability. SB 1402 is effective January 1, 2019.
Click here to learn more.
October 2018 Update from TLA FLAPS Committee
Tuesday, October 9, 2018
Source:
Click here for a full update from Mark Andrews, committee chair for the TLA Federal Legislation, Agency Practice, and Security Committee.
FAAAA Preemption Challenge to Independent Contractor Law Rejected by Ninth Circuit
Tuesday, October 2, 2018
Source:
Click here to read more.
Court Addresses Federal Preemption in Context of Locomotive Inspection Act
Tuesday, September 25, 2018
Source:
Click here to read more.
September 2018 Update from TLA FLAPS Committee
Tuesday, September 18, 2018
Source:
Click here for a full update from Mark Andrews, committee chair for the TLA Federal Legislation, Agency Practice and Security Committee.
FMCSA Solicits Comments on Proposed Changes to HOS Rules
Wednesday, September 12, 2018
Source:
Click here to read more.
Fifth Circuit Addresses What Constitutes a Maritime Contract
Tuesday, September 4, 2018
Source:
Click here to read more.
Central District of California Decertifies Driver Pay Class Action. FAAAA Preemption Also Addressed
Thursday, August 30, 2018
Source:
Click here to read more.
Appellate Court Upholds FAA Authority to Establish Safety Standards for Drones
Tuesday, August 21, 2018
Source:
Click here to read more.
Northern District of Illinois Address Federal Preemption Under FAAAA
Tuesday, August 14, 2018
Source:
Click here to read more.
Federal Maritime Commission Votes to Expand Flexibility in NVOCC Service Options
Wednesday, August 1, 2018
Source:
The Federal Maritime Commission today took a significant step forward in relieving regulatory burdens on Ocean Transportation Intermediaries (OTIs), while simultaneously giving shippers more choices and flexibility, by moving forward with a Final Rule that simplifies requirements for using NVOCC Negotiated Rate Arrangements (NRAs) and NVOCC Service Arrangements (NSAs).
Click here to read more.
Port Not Automatically Liable for Negligence of Subcontractors
Tuesday, July 31, 2018
Source:
Brandon Afoa was severely injured in an accident while working at the Port of Seattle (Port) for a cargo company. He sued the Port on the theory that it had retained sufficient control over his work to have a duty to provide him a safe place to work. Among other things, the Port argued that several airlines that were not parties to the lawsuit were at fault. A jury found . . .
Click here to read more.
Federal Regulations Update-August 2018
Tuesday, August 14, 2018
Source:
Click here for a comprehensive update from TLA's Committee on Federal Regulation committee chairs.
Federal Motor Carrier Safety Administration Announce Additional Electronic Logging Device Transition Guidance
Friday, May 18, 2018
Source: Lexology
Click here to read the full story.
U.S. Supreme Court Set to Weigh in on Binding Arbitration Clauses in Trucking Industry Independent Contractor Agreements
Friday, May 18, 2018
Source: Wilson Elser, via Lexology
USA May 1 2018
"Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer has superior opportunity of being a good man. There will still be business enough." – Abraham Lincoln
If Dominic Oliveira has his way, the Supreme Court of the United States may soon encourage costly, full-blown litigation involving even minor contract disputes between trucking companies and the independent contractor truck drivers whose services they engage. The issue before the Supreme Court is whether a trucking company can enforce an arbitration clause in its independent contractor agreement with its driver, or whether such arbitration provisions are unenforceable under the Federal Arbitration Act (FAA). Because arbitration clauses in independent contractor agreements are so common in the trucking industry, this case could have a far-reaching impact on how disputes between drivers and trucking companies are adjudicated.
Click here to read the rest of the story.
Committee on Federal Regulation Update-June 2018
Thursday, June 7, 2018
Source:
Click here for a comprehensive update from TLA's Committee on Federal Regulation committee chairs.
Note: TLA's Federal Legislation, Agency Practice & Security Committee (FLAPS) has been reneamed to the Committee on Federal Regulation, effective May 2018.
Northern District of Illinois Interprets Limited Other States Insurance Endorsement Narrowly
Wednesday, March 28, 2018
Source:
The United States District Court for the Northern District of Illinois recently held an insurer has no duty to defend or indemnify a motor carrier in a worker's compensation claim stemming from the death of an employee in a state not listed on the policy in Hartford Underwriters Ins. Co. v. Worldwide Transp. Shipping Co., No. 16 C 2381, 2018 U.S. Dist. LEXIS 43045 (N.D. Ill. Mar. 16, 2018). The Court granted Hartford's summary judgment motion seeking a declaratory judgment against Worldwide.
Worldwide Transportation Company ("Worldwide") is an Iowa trucking company who applied for Iowa's Worker's Compensation Insurance from Hartford Underwriters Insurance Company ("Hartford"), an insurance company exclusively authorized to provide insurance in Iowa. The employee, John Finnegan, died in a workplace accident in McCook, Illinois. Finnegan was an Illinois resident and he performed all his work in Illinois.
Worldwide's application with Hartford listed Iowa as the "majority driving state," it represented it had zero employees, and only mentioned Illinois once regarding long distance hauling. Hartford issued Worldwide a policy for liabilities arising under the Iowa Worker's Compensation Act. The Court's decision came down to an interpretation of the policy's Residual Market Limited Other States Insurance Endorsement ("LOSI").
Hartford argued two of the three requirements of the LOSI were not met by Worldwide in the Finnegan claim, to wit:
b. The employee claiming benefits is not claiming benefits in a state where, at the time of injury, (i) you have other workers compensation insurance coverage, or (ii) you were, by virtue of the nature of your operations in that state, required by that state's law to have obtained separate workers compensation insurance coverage, or (iii) you are an authorized self-insurer or participant in a self-insured group plan; and
c. The duration of the work being performed by the employee claiming benefits in the state for which that employee is claiming benefits is temporary.
Justice Kendall held the second requirement turned on whether Worldwide was required under Illinois statute to purchase separate worker's compensation insurance. Worldwide failed to satisfy this prong because Illinois statute requires the insurance provider to be authorized to operate an insurance business in Illinois, and Hartford was not. Further, Worldwide represented it had no employees until after Finnegan's accident and Finnegan performed 100% of his work in Illinois.
Justice Kendall held Worldwide failed to satisfy the third prong because Finnegan's work in Illinois was not "temporary." As discussed above, Finnegan was an Illinois resident who performed all his work in Illinois. Worldwide argued Finnegan was only an employee for two months when the accident occurred and likely would have worked in Iowa in the future. Justice Kendall found this argument unpersuasive as the possibility of working somewhere other than Illinois does not render Finnegan's work in Illinois "temporary."
The Court also denied Worldwide's affirmative defense of estoppel/waiver. Worldwide argued Hartford's failure to conduct an audit until approximately two months after the policy was issued constituted a waiver. The Court held this would punish Hartford for relying upon the representations made by Worldwide. Insurer's should be allowed to rely upon the information provided by those applying for insurance.
Ultimately, Hartford and other insurers are not required to defend or indemnify an insured for accidents occurring outside the policy's scope. The Northern District of Illinois' ruling is an indication courts will read LOSI's provisions narrowly moving forward. Motor carriers are advised to do their due diligence when applying for insurance or they may find themselves without coverage they thought they had.
FLAPS Update-March 2018
Thursday, March 1, 2018
Source:
Click here for a comprehensive update from TLA's Federal Legislation, Agency Practice and Security committee chairs.
The Federal Aviation Administration Authorization Act Preempts Negligent Hiring Claim
Tuesday, February 20, 2018
Source:
C.H. Robinson Company ("CHR") is a transportation broker. Brokers have long contracted with motor carriers as independent contractors. Generally, a broker or any other entity is not responsible for the negligent actions of an independent contractor. However, in Schramm v. Foster, 341 F. Supp. 2d 356 (D. Md. 2004), the District Court allowed a plaintiff's negligent hiring claim to survive summary judgment opening the floodgates to similar claims in personal injury actions throughout the nation. Since that time, lawyers defending brokers have fought vigorously to have these claims dismissed, with mixed results. See Jones v. C.H. Robinson Worldwide, Inc., 558 F. Supp. 2d 630 (W.D. Va. 2008) (holding a genuine issue of fact existed regarding plaintiff's negligent hiring claim); Sperl v. C.H. Robinson, 946 N.E.2d 463 (Ill. App. 2011) (holding the broker had the right to control the work of the driver); Hayward v. C.H. Robinson, Co., 24 N.E.3d 48 (Ill. App. 2014) (holding broker was only concerned with end result and did not control the driver's methods); Mann v. C. H. Robinson Worldwide, Inc., Civil Action No. 7:16-cv-00102, 2017 U.S. Dist. LEXIS 117503 (W.D. Va. July 27, 2017) (denying CHR's motion for summary judgment on plaintiff's negligent hiring claim).
In Volkova v. C.H. Robinson Company, et. al, Case No. 16-CV-1883, United States District Court for the Northern District of Illinois, Plaintiff brought a wrongful death suit following a collision between a passenger vehicle and a tractor-trailer operated by a driver for Antioch Transport, Inc. ("Antioch"). In addition to suing the truck driver and motor carrier, Plaintiff sued CHR, alleging that as a transportation broker, it negligently hired Antioch. Specifically, Plaintiff asserted that CHR was liable for failing to perform a sufficient investigation and evaluation in hiring Antioch and its driver to transport freight. In support of this claim, Plaintiff alleged CHR failed to inspect any publicly available safety data on Antioch such as BASIC Scores.
On February 7, 2018, District Court Judge Ronald Guzman issued a memorandum opinion and order dismissing Plaintiff's negligent hiring claim against CHR based upon FAAAA preemption. This opinion is a major victory for freight brokers whose liability has been wildly expanded by other courts in recent years. See Mann v. C. H. Robinson Worldwide, Inc.
The relevant FAAAA provision, 49 U.S.C. § 14501(c)(1), provides that "a State…may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier…or any private motor carrier, broker, or freight forwarder with respect to the transportation of property." (emphasis added). Justice Guzman found Plaintiff's Second Amended Complaint demonstrated that the negligent hiring claim was directly related to CHR's core service – hiring motor carriers to transport shipments. Because Plaintiff's negligent hiring claim had a significant economic impact on the services CHR provides, it was preempted.
The Northern District of Illinois is not the first to hold that the FAAAA preempts state law. See Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 133 S. Ct. 1769 (2013). In Dan's City the U.S. Supreme Court held that the FAAAA expressly preempts any state law regarding the price, route, or service of any motor carrier in respect to the transportation of property. The Court further held the FAAAA's use of the phrase "related to" means state laws with both a direct or indirect effect on a motor carrier's transportation of goods are preempted. Justice Guzman relied heavily on the Supreme Court's decision in Dan's City in ruling on Volkova.
Guzman further rejected Plaintiff's argument that because her claim involved a personal injury, rather than property, it should survive preemption. Guzman recognized recent cases, such as Mann v. C.H. Robinson Worldwide, have allowed personal injury claims to survive preemption, but stated those courts have not faithfully followed the preemption analysis established by the Supreme Court. Citing Rowe v. New Hampshire Motor Transportation Association, 552 U.S. 364 (2008), Justice Guzman held the U.S. Supreme Court's preemption analysis does not change because the injury is to a person rather than property. He further rejected Plaintiff's argument that dismissing her negligent hiring claim left her with no remedy as Plaintiff could and was seeking recourse against Antioch and its driver.
Those representing freight brokers and their insurers are advised to intimately familiarize themselves with Volkova v. C.H. Robinson Company and Dan's City Used Cars, Inc. v. Pelkey as both will help provide a defense against negligent hiring claims against brokers.
After 25 Years, is the Federal Gas Tax About to Increase?
Friday, February 9, 2018
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The federal gas tax, which is not tied to inflation, was last increased in 1993. The current rates are 18.4 cents per gallon for gasoline and 24.4 cents per gallon for diesel. The federal gas tax is primarily used to fund the Highway Trust Fund and Leaking Underground Storage Tank Fund.
However, that soon may change. As President Trump seeks to broker a deal on a new infrastructure bill, the issue of funding the measure has become a topic of discussion, and the federal gas tax is now on the table. Reports indicate Trump is willing to entertain an increase as large as 50 cents per gallon. President Obama suggested taxing crude oil at $10-barrel during his administration but was unsuccessful. This time the suggestion may become a reality.
While President Trump is open to an increase, the GOP is split. Conservative groups, such as the Americans for Prosperity and Freedom Partners, oppose the measure claiming it disproportionately impacts lower income individuals. Other Republicans, such as Senator Mike Rounds of South Dakota, are "still open to it." The U.S. Chamber of Commerce, America's largest business lobby, is proposing its own 25 cent increase to the federal gas tax.
As Republicans and Democrats continue to duke it out over funding the government the transportation industry must stay on high alert. Those in the industry would be best to start discussing and planning for the effects of an increase now to avoid being caught off guard in the coming months.
For additional information, see GOP Leaders Reject Gas Tax Increase After Trump Thwarts the Idea; The Washington Post, January 10, 2018.
Uber: A Digital Service or a Transportation Company?
Thursday, January 25, 2018
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The European Court of Justice (“ECJ”) recently ruled that Uber, the ride-hailing software application, is officially a transport company and not a digital service. Uber argued it was a software service because it merely helps people connect through its application. In the ruling, the ECJ said this process made Uber a “service in the field of transport” under European Union law. While Uber says the ruling will not affect the way it operates in Europe, some say this could hinder the online economy. As a transportation service, Uber will be subject to various regulations and laws governing the transport industry, while other software companies will not. This ruling applies only to the European Union and does not give any indication of Uber’s company classification in other areas.

Click here for more information.
FLAPS Update-Nov. 2017
Tuesday, November 7, 2017
Source: Mark Andrews
Click here for a comprehensive update from TLA's Federal Legislation, Agency Practice and Security committee chairs.
FLAPS Update-Dec. 2017
Wednesday, December 13, 2017
Source: Mark Andrews
Click here for a comprehensive update from TLA's Federal Legislation, Agency Practice and Security committee chairs.
FMCSA to Test for New Drugs
Monday, November 20, 2017
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Beginning on January 1, 2018, the Federal Motor Carrier Safety Administration (FMCSA) will add opioids to its five-panel drug test. The added drugs in the tests will be the synthetic opioid drugs hydrocodone, hydromorphone, oxycodone, and oxymorphone. These drugs are Schedule II controlled substances known by the names Vicodin, OxyContin, Lortab, and Norco, along with other names. FMCSA will be adding these drugs to a new panel of “opioids,” replacing the current panel name of “opiates.”

These changes are made to harmonize the FMCSA’s drug testing with the U.S. Department of Health and Human Services’ Mandatory Guidelines for Federal Workplace Drug Testing Programs. FMCSA-regulated companies are advised to change their drug and alcohol testing policies to reflect these changes on Jan. 1, 2018. The rule was published in the Federal Register on Nov. 13, 2017.
NTSB Investigating Drone Crash with Army Helicopter
Friday, October 20, 2017
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The National Transportation Safety Board, for the first time, is investigating a collision that occurred between a civilian operated drone and an aircraft. The aircraft, an Army helicopter, collided with a DJI Phantom 4 drone on September 21 in New York. The helicopter was able to land safely, but its main rotor, window, and transmission deck were damaged. The drone was recovered from the helicopter. The crash occurred around 500 feet in the air, 100 feet higher than the 400 foot ceiling for drone hobbyists.

Both the NTSB and the Army are investigating the crash. DJI, the manufacturer of the drone in question, announced its intent to help with the investigation. Information is coming from air traffic control data, flight data of the helicopter, and flight logs of the drone operator. The Army concluded the collision was not a targeted attack and was only the result of use by a hobbyist.

Recently, the FAA has issued a ban on flying drones over 400 feet in the air near landmarks in cities and has banned drone flight over 133 U.S. military facilities. This crash comes at a time when a law requiring drone registration was recently struck down and where President Trump continues to promote drone usage, including allowing them for delivery purposes and to fly beyond the eyesight of an operator.
October 2017 Update from TLA FLAPS Committee
Monday, October 9, 2017
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Click here for a full update from Mark Andrews, committee chair for the TLA Federal Legislation, Agency Practice and Security.
FDA Offers New Food Safety Transportation Training
Wednesday, September 27, 2017
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The U.S. Food & Drug Administration (FDA) recently launched a new one-hour training program to help carriers comply with the Sanitary Transportation of Human and Animal Food Rule, also known as the Sanitary Transportation Rule. This FDA rule requires carriers to provide food safety training when the shipper and carrier agree in a contract that the carrier is responsible for sanitary conditions during the shipping.
Carriers may use this program to satisfy they minimum requirements under the rule or may use the program as a supplement to their own training. The program is not required and may be used as an additional resource to carriers offering their own training or receiving training from a third-party. The course is designed to help carrier personnel identify potential food safety problems and give information on basic sanitary practices and carrier responsibilities relating to the Sanitary Transportation Rule.
CVSA Announcement Regarding ELD Requirement, Effective April 1, 2018
Tuesday, August 29, 2017
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The Commercial Vehicle Safety Alliance (CVSA) announced today that although it will begin enforcing the electronic logging device (ELD) requirement on December 18 of this year, the out-of-service (OOSC) criteria for non-compliance will not go into effect until April 1 of next year. The CVSA press release states, in part, as follows:
"The Federal Motor Carrier Safety Administration's (FMCSA) congressionally mandated ELD compliance deadline is still set for Dec. 18, 2017. On that date, inspectors and roadside enforcement personnel will begin documenting violations on roadside inspection reports and, at the jurisdiction's discretion, will issue citations to commercial motor vehicle drivers operating vehicles without a compliant ELD. Beginning April 1, 2018, inspectors will start placing commercial motor vehicle drivers out of service if their vehicle is not equipped with the required device."
Of course, a carrier may still be placed out-of-service for other hours-of-service violations.
Jim Hardman
Monday, August 14, 2017
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A giant among us has fallen. Jim Hardman died on August 8, 2017 in Minnesota. Jim spent his formative years as a young lawyer representing motor carriers in contested administrative proceedings before the Interstate Commerce Commission, where he earned a reputation as a vigorous advocate for his clients and a staunch defender of trucking regulation. He was very active in the Transportation Lawyers Association (then known as the Motor Carrier Lawyers Association) from the very beginning of his career, giving presentations at seminars, writing papers and serving on planning committees.
Jim served as an officer of the organization from 1973 to 1980. When his tenure began there was little serious attention given to the topic of "deregulation" but by the time he assumed the presidency it was an accomplished fact. Jim's year as president was perhaps the most tumultuous in the history of the organization.
We have Jim to thank for the fact that this organization exists today. His steadfast leadership was pivotal factor in convincing many of us that deregulation was not the end of the world. His keen sense of vision foretold of a future transportation lawyer with many diverse legal skills and a fundamental understanding of the industry he serves. Many others helped steer the ship into safe waters, but Jim was the captain when it struck the iceberg.
After his presidency Jim accepted a position as chief counsel for Dart Transit Company, in St. Paul, Minnesota, where he indulged in one of his greatest passions, defending and advocating for the owner-operator independent contractor model. He displayed his diverse skills as an attorney and an issue advocate not only on independent contractor issues but also other issues such as truck lengths. Everywhere you look in today's motor carrier industry you see tangible evidence of Jimi's numerous and lasting contributions.
Jim was a prolific author of legal articles for The Transportation Lawyer, the Transportation Law Journal, and other legal publications, and was a frequent speaker at TLA events. He remained active in the organization over nearly 40 years following his presidency, and served as a sounding board for those of us who followed him in TLA leadership roles. He was a deserving recipient of the TLA Distinguished Service Award and the Lifetime Achievement Award.
Many of us have fond memories of Jim as a personal friend. He was a delightful conversationalist and a generous host. On Saturday afternoons in the fall he could be seen donned in various shades of purple, reflecting his passion for his beloved Northwestern Wildcats, whether at Ryan Field in Evanston, Illinois or at various Big Ten venues and bowl games. He knew how to enjoy life and bring joy to anyone who spent time with him.
Life will not be the same without Jim.
Proposed Sleep Apnea Rule Withdrawn
Monday, August 14, 2017
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The Federal Motor Carrier Safety Administration (FMCSA) and Federal Railroad Administration (FRA) recently withdrew an advanced notice of proposed rulemaking regarding obstructive sleep apnea (OSA). In a notice published in the August 4, 2017 Federal Register, the agencies stated they believe that current safety programs are appropriate and effective in addressing the hazards of OSA. Current regulations, still in effect, leave evaluation to the discretion of the examiner.

The FMCSA Medical Review Board, in an August 2016 recommendation, proposed guidelines for identifying drivers with OSA. The FMSCA will consider updating the “Bulletin to Medical Examiners and Training Organizations Regarding Obstructive Sleep Apnea.” A University of California, San Francisco study found 41 percent of CMV drivers may have OSA. The American Sleep Apnea Association estimates around 22 million people in the US have sleep apnea and 80 percent OSA remain undiagnosed.
OOIDA to Continue Fight Against ELD Mandate
Monday, July 24, 2017
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The United States Supreme Court recently denied review of a ruling from the Seventh Circuit Court of Appeals regarding the FMCSA's electronic logging device ("ELD") mandate. Owner-Operator Indep. Drivers Ass'n v. United States DOT, 840 F.3d 879 (7th Cir. 2016). The mandate requires drivers to have ELDs to track their work and hours driving. The devices track both driving and non-driving activities. The Owner-Operator Independent Drivers Association (OOIDA) claimed the mandate is the equivalent of warrantless surveillance of truckers in violation of the Fourth Amendment. OOIDA also questioned the technical specifications of the devices and the enforcement of the regulation. Groups in support of the ELD mandate included safety advocates, the American Trucking Association and large motor carriers, who say the measure is designed to assist in complying with federal hours of service rules.
OOIDA reports that it will continue lobbying Congress through its "Knock Out Bad Regs" campaign as well as working with the Federal Motor Carrier Safety Administration. OOIDA argues that the requirement does not ensure safety, but instead operates as an invasion of the privacy and rights of drivers. Currently, over 500,000 commercial motor vehicles are equipped with ELDs and the market is a $1 billion industry.
Uber for Trucking: Uber Freight App Launches
Tuesday, June 13, 2017
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Uber Technologies has announced that it is entering the trucking industry with its new venture, Uber Freight. Launched on May 18, 2017, this app aims to match small carriers with small companies to handle trucking transportation needs. Uber previously acquired Otto in a $680 million deal for the autonomous truck driving tech company. In a trend described as the "Uberization of trucking," Uber Freight joins other automated freight match companies including Transfix, Convoy, and Trucker Path's Truckloads. Uber holds a freight broker license and screens carriers in the same way as a traditional broker. Uber Freight focused efforts in Texas for the launch and is currently available nationwide.
Uber plans to move freight in a fashion similar to its Uber ride-hailing app with surge pricing around peak demand times.
The Ninth Circuit holds that State law claims to recover baggage fees are not preempted by the Airline Deregulation Act
Thursday, May 25, 2017
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Congress enacted the Airline Deregulation Act in 1978 to deregulate the domestic airline industry. The law prohibits states from enforcing laws "related to a price, route, or service of an air carrier." 49 U.S.C. § 41713(b)(1) (2012). In American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995), the Court held that states may not impose rules regarding fares, routes, or services, but may allow remedies for breaches of obligations the airlines took, even when the breach is related to fares, routes, or services. Further, the Supreme Court in Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422 (2014) identified the differences between voluntary contracts and obligations imposed by state law.
In Hickox-Huffman v. U.S. Airways, Inc., No. 11-16305, 2017 U.S. App. Lexis 7847, 2017 WL 1658487 (9th Cir. Cal. May 3, 2017), the Ninth Circuit held the agreement between the plaintiff and defendant was a routine offer and contract that the airline voluntarily undertook to deliver the plaintiff's bag when she landed. Plaintiff's bag was delayed one day and she sought recovery for the baggage fee of $15 she paid the airline. As a voluntarily assumed contract, state remedies for a breach of contract claim are "not preempted by the Airline Deregulation Act." Hickox-Huffman, 2017 WL 1658487, at *5. The case has been reversed and remanded and the question of class certification has not been answered. Parties should also look to the Department of Transportation for recent regulations on domestic baggage liability with different effects for lost baggage. Analysis will also be different in international law under the Montreal Convention.
NEWS FLASH -- FMCSA Withdraws "Safety Fitness Determination" Rulemaking
Thursday, March 23, 2017
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In an announcement to be published in the Federal Register for March 23, U.S.DOT's Federal Motor Carrier Safety Administration (FMCSA or the Agency) is withdrawing a proposed rulemaking that, as most TLA members know, would have made radical changes in how FMCSA determines whether a bus or trucking company's operations are sufficiently "safe" for it to remain in business.
The Agency's so-called "Safety Fitness Determination" (SFD) proposal was issued in January 2016. The proposed SFD methodology, however, was of older vintage. It was based on a "Safety Measurement System" (SMS) that had been adopted by FMCSA in 2010 without rulemaking. Although SMS was promoted by the Agency as a superior alternative to the "official" system of safety ratings under 49 CFR Part 385, numerous stakeholders have been challenging SMS as statistically and legally flawed since its inception. The multi-pronged attack on SMS has included judicial proceedings, agency comments and Congressional testimony.
The challenges to SMS culminated in December 2015, when Congress added provisions to the FAST Act requiring the National Academies of Science to consider and report on the need for reform of SMS methodology. When the FAST Act did not deter the Agency from repackaging SMS into the SFD rulemaking only a month later, industry groups began efforts on Capitol Hill to de-fund the rulemaking. Support for these efforts expanded rapidly throughout 2016. Ultimately, 62 motor carrier trade associations (now including the American Trucking Associations) signed a letter to new U.S.DOT Secretary Elaine Chao on February 15, 2017, urging that the SFD proposal be withdrawn. Its withdrawal marks the most significant setback for SMS/SFD methodology since its launch in 2010.
It remains to be seen whether FMCSA (now operating under an acting Administrator) will open a new rulemaking on motor carrier safety determinations after the National Academies release the report required under the FAST Act. The report is expected in June 2017. In the meantime, if you need further background or detail on the SFD withdrawal announcement, please do not hesitate to contact either co-chair of TLA's Committee on Federal Legislation, Agency Practice and Security (FLAPS). They are Mark Andrews (mark.andrews@strasburger.com ) and Hank Seaton (heseaton@aol.com ).
Florida District Court Finds Federal Jurisdiction Based on F4A Preemption
Friday, March 10, 2017
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On January 31, 2017, a Southern District of Florida federal judge held that damages arising from an intrastate shipment are preempted by FAAAA and that preemption supports removal to federal court. Plaintiff filed its complaint against UPS in state court, alleging a negligence claim related to UPS's handling of plaintiff's cryopreserved embryos. In response, UPS removed to federal court. The federal judge denied plaintiff's motion to remand, finding that plaintiff's state law claim against UPS is preempted under FAAAA because the handling of the embryos during their movement across Florida is related to the "price, route or service" of UPS's transportation of those items.
The case is Desiree Luccio & Reed Frerichs v. UPS, Co., 2017 WL 412126 (S.D. Fla. Jan. 31, 2017). Click here for decision.
FMCSA Alert - Further Implementation of URS for Truck Fleets, Freight Brokers and Surface Forwarders Has Been "Suspended" Indefinitely
Tuesday, January 17, 2017
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As you may recall, the Unified Registration System (URS) was adopted by a "final rule" in 2013, but has never been officially activated for anyone except new registrants at the Federal Motor Carrier Safety Administration (FMCSA). After three postponements of the effective date for existing registrants because of chronic IT problems with this mandatory on-line filing system, FMCSA announced on Friday, January 13 that it has "suspended" efforts to impose URS on the rest of the industry. TLA's Committee on Federal Regulation, Agency Practice and Security (FLAPS), among others, has been expressing concern to FMCSA for years that this program is neither user-friendly nor consistent with the Agency's substantive regulations regarding such matters as hazmat insurance requirements, process agent filings and the like.
If you have specific questions or wish to see the text of the "suspension" announcement, please contact either of the FLAPS co-chairs. They are Mark Andrews (mark.andrews@strasburger.com ) and Hank Seaton (heseaton@aol.com ).
CLARIFICATION: Please note that the requirement for new registrants to make their FMCSA filings on-line (using URS) does remain in place, despite the "suspension" of URS for existing registrants.
FMCSA Update
Thursday, December 15, 2016
Source: Mark Andrews
As most TLA members know, the Unified Registration System or URS is an on-line filing process which eventually will be the only available format for doing most types of business with the Federal Motor Carrier Safety Administration or FMCSA. Currently, the on-line "URS Wizard" must be used by any first-time applicant for registration with FMCSA, while "legacy" non-URS application forms must still be used by anyone already regulated by the Agency.
On Friday afternoon, December 9, 2016, FMCSA announced a third indefinite postponement of the date on which existing registrants will have start using the "Wizard." Please recall that the legislative mandate for creating a unified registration system dates back to the ICC Termination Act of 1995. Eighteen years later, a "final rule" adopting URS was published on August 22, 2013, and initially was to take effect for all registrants on October 23, 2015. In a first postponement announced in late 2015, that effective date was pushed back to September 30, 2016, for all but new registrants. A second postponement was announced this past summer, putting off the compliance date for existing registrants until April 14, 2017.
Last Friday's announcement indicated that a new effective date for existing registrants will be published in early January 2017. As in the past, the Agency explains the additional delay as necessary to "securely migrate data from multiple legacy platforms into a new central database and to conduct further compatibility testing with its State partners."
Until the new effective date (whatever it is), the status quo will remain in place under which new registrants must use the "Wizard" while all others must use legacy forms for additional authority applications, MCS-150 updates, name changes and other Agency business. For further information, please feel free to contact either co-chair of TLA's Committee on Federal Legislation, Agency Practice and Security (FLAPS). The co-chairs are Hank Seaton (heseaton@aol.com ) and Mark Andrews (mark.andrews@strasburger.com ).
Passing of Duane Acklie
Wednesday, November 30, 2016
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On September 17, 2016, transportation industry leader Duane Acklie of Lincoln, Nebraska passed away at the age of 85. Before serving as Chairman of Crete Carrier Corporation, he engaged in private practice as a motor carrier lawyer and member of TLA. He served on many boards including the American Trucking Associations board where he was elected Chairman. He was active in his community and a philanthropist throughout his life.'
Click here for more information.
Federal Court Blocks FLSA Overtime Rule
Sunday, November 27, 2016
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On November 22, 2016, the U.S. District Court, Eastern District of Texas, granted a preliminary injunction to block the Department of Labor's implementation of the Fair Labor Standards Act (FLSA) new overtime rule. Twenty-one states and over 50 business organizations filed the lawsuit to challenge the new rule to increase the minimum salary level for exempt administrative employees from $455 per week ($23,660 annually) to $921 per week ($47,892 annually). The new rule was to become effective December 1, 2016. Finding that the plaintiffs satisfied all prerequisites for a nationwide injunction, the court ruled that the "[t]he State Plaintiffs' have established a prima facie case that the Department's salary level under the Final Rule and the automatic updating mechanism are without statutory authority."
Click here for the decision.
Tenth Circuit Finds Against Motor Carrier for Violation of the Federal Leasing Regulations
Thursday, October 20, 2016
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In Fox v. TransAm Leasing, Inc., filed October 18, 2016, the U.S. Tenth Circuit Court of Appeals found that the defendant motor carrier violated the DOT's truth-in-leasing regulations by requiring the plaintiff truckers, who lease their trucks and driving services to the motor carrier, to pay the carrier $15 each week to use the carrier's satellite communications system. The applicable regulation, 49 C.F.R. sec. 376.12, precludes a motor carrier from requiring a trucker "to purchase or rent any products, equipment, or services from the authorized carrier as a condition of entering into the lease arrangement." The Court affirmed partial summary judgment for the truckers, upholding the district court's determination that the carrier violated the regulation. That ruling supports the truckers' requests for injunctive and declaratory relief. Because the truckers failed to present any evidence of their damages resulting from the usage fee, the Court reversed the district court's decision to deny the carrier's summary judgment on the truckers' claim for damages.
Click here for decision
Seventh Circuit Finds Against Freight Brokerage Company in Employment Discrimination Case
Monday, September 12, 2016
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In Henry Ortiz v. Werner Enterprises, Inc., filed August 19, 2016, the U.S. Seventh Circuit Court of Appeals found in favor of Henry Ortiz, reversing the district court's summary judgment in favor of Werner Enterprises, Inc., in an employment discrimination case. Ortiz worked as a freight broker for Werner for seven years until his discharge in 2012. Werner claimed that it fired Ortiz for falsifying business records. Ortiz claimed that Werner fired him because of his Mexican ethnicity, after being subjected to ethnic slurs in the workplace throughout his tenure at Werner ("beaner," "taco eater," "dumb Mexican," "Puerto Rican," etc.). In reversing the summary judgment, the Court noted that the sole question that matters is "[w]hether a reasonable juror could conclude that Ortiz would have kept his job if he had a different ethnicity, and everything else stayed the same." The Court found, among other things, that a reasonable juror could infer that Ortiz's branch managers "didn't much like Hispanics…" and "tried to force him out the door." As a result, the Court held that a trial was necessary. Notably, the Court in its opinion overruled two lines of cases, those that treated "convincing mosaic" as a legal requirement, and those that used the direct-and-indirect framework, when deciding employment discrimination cases.
Click here for more information.
FMCSA Announces Delay of URS Implementation Until 2017
Thursday, July 21, 2016
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On July 20, 2016, The Federal Motor Carrier Safety Administration (FMCSA) announced that it extended the dates for Unified Registration System (URS) compliance by motor carriers, freight forwarders, brokers, and others under FMCSA jurisdiction. The FMCSA will be releasing the URS on January 14, 2017, with a full compliance date of April 14, 2017. URS is a mandatory on-line filing system that currently applies only to new applicants. The postponement just announced delays the requirement for tens of thousands of existing registrants to use this system. TLA's Committee on Federal Legislation, Agency Practice and Security, co-chaired by Mark Andrews and Hank Seaton, has been active in advocating changes to, and monitoring the status of, URS implementation on behalf of the TLA membership.
Click here for more information.
Fifth Circuit Dismisses Commercial Driver's Americans With Disabilities (ADA) Discrimination Claim Against J.B. Hunt
Monday, July 11, 2016
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In Williams v. JB Hunt, filed on June 20, 2016, the U.S. Fifth Circuit Court of Appeals found in favor of J.B.Hunt where it terminated a driver after one doctor rescinded his DOT medical certification for a diagnosis of syncope and ventricular tachycardia. Although the driver received conflicting medical evaluations from different doctors, he never filed an application for the DOT to resolve the conflict pursuant to 49 C.F.R. §391.47. After his termination, the driver filed a lawsuit alleging that he was terminated in violation of the ADA. The federal district court dismissed the case based on the driver's failure to exhaust administrative remedies. On appeal, the Fifth Circuit held that to prove an ADA violation, plaintiff must make out a prima facie case of discrimination by showing: (1) plaintiff has a disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment action. The Fifth Circuit Court affirmed the lower court, but not for lack of subject matter jurisdiction. Instead, the Court affirmed on alternative grounds, concluding that the driver failed to establish that he was qualified for the job in question.
Click here for decision
Florida Supreme Court Rules State DOT Must Make Indemnity Payments
Thursday, April 21, 2016
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The Supreme Court of Florida has ruled that the state DOT cannot escape its contractual indemnity obligations under a contract entered into by the DOT with private rail line CSX Transportation Inc. A fatal accident on a CSX railroad invoked an indemnity clause in a contract entered into by each company’s predecessor. As compensation for land use, the contract required the DOT to indemnify CSX in the case of liability. Such an event occurred, triggering the clause. The DOT attempted to escape payment, citing Florida State statutes calling for sovereign immunity, and claiming that the State Road Department did not maintain the authority to enter into such an indemnity agreement, thus rendering the clause unenforceable. Regarding the authority issue, the DOT argued that such statutes must grant the agencies express authority to include provisions such as indemnity agreements, and statutes at the relevant time did not. The Florida court disagreed, stating “when the State is statutorily authorized to enter into a contract, that authority includes the obligations necessary to fulfill the terms of that contract.” Effectively, where the authority exists to enter into a contract, clauses such as indemnity clauses are also authorized. As such, the DOT cannot escape fulfilling its indemnity obligations as the clause was deemed enforceable by the Florida Supreme Court.

Click here for decision.
The FDA Rule Governing the Sanitary Transportation of Human and Animal Food is Now Final
Tuesday, April 5, 2016
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The FDA announced that the Food Safety Modernization Act (FSMA) rule on Sanitary Transportation of Human and Animal Food is now final. The goal of this rule is to prevent practices during transportation that create food safety risks, such as failure to properly refrigerate food, inadequate cleaning of vehicles between loads, and failure to properly protect food. The rule establishes requirements for all participants in the motor and rail transportation of human and animal food, requiring the use of sanitary practices to ensure the safety of that food. The comprehensive rules govern the transportation equipment, as well as the operations, records, and training of the shippers, receivers, loaders and carriers who transport food in the United States, whether or not the food is offered for or enters interstate commerce. The requirements do not apply to transportation by ship or air because of limitations in the law. The earliest compliance dates for some companies begin one year after publication of the final rule in the Federal Register.

Click here for ruling.
FMCSA Says No to ATA Exemption Proposal
Friday, April 1, 2016
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The Federal Motor Carrier Safety Administration denied an application from the American Trucking Associations made on March 28, 2016 seeking an exemption from the 14-hour “driving window” limit for drivers who work at oil and natural gas extraction sites. The ATA attempted to create an exemption by excluding the time that drivers wait for cargo to be loaded and unloaded as “on duty” time. The theory being that they could log that time as rest time or “off-duty” time, thus extending the 14-hour on-duty window. The FMCSA, however, denied the ATA's application, concluding that the group "did not demonstrate how the commercial motor vehicle operations under such an exemption would achieve a level of safety equivalent to or greater than the level of safety obtained in the absence of the exemption." The agency further indicated that fatigue would increase under such an exemption, thereby increasing danger, not alleviating it. Other advocacy groups including the Advocates for Highway and Auto Safety weighed in, stating "The ATA's arguments rely on what appears to be deliberate ignorance of regulatory history and a fundamental misrepresentation of agency findings in a thinly veiled attempt to circumvent the agency's prior unambiguous determination that the drivers for which the ATA is seeking this exemption should specifically not be afforded this exemption."
DOT Address’ “Reverse Logistics” With New Hazardous Materials Transportation Rules
Wednesday, March 30, 2016
Source:

On March 25, 2016, the United States Department of Transportation announced a new series of regulations covering “reverse logistics.” These new regulations are aimed at addressing the return transportation of hazardous materials. Under the new regulations, reverse logistics is now defined as “the process of offering for transport or transporting by motor vehicle goods from a retail store for return to its manufacturer, supplier or distribution facility for the purpose of capturing value — e.g. to receive manufacturer’s credit — recall, replacement, recycling or similar reason.” The DOT was alerted by various non-profit associations about the blind spot in hazardous waste transportation almost a decade ago, and these new regulations are the result of efforts to address the problem. The agency released a statement, saying in part "[i]n order to reduce undeclared, misdeclared or improperly packaged hazmat from being offered and transported in commerce, we are amending the HMR to better address the reverse logistics supply chain." "Specifically, we are seeking to ensure retail employers properly identify hazardous materials in the reverse logistics chain and ensure that their employees have clear instructions to safely offer such shipments." Included in the new regulations are specific rules relating to things such as package sizes and battery shipments.
The Florida Supreme Court Denies Carmack Preemption
Tuesday, March 8, 2016
Source:
On March 3, 2016, the Florida Supreme Court issued a decision contradicting many Carmack Amendment preemption cases. The Court denied UPS's motion to dismiss non-Carmack claims alleging Conversion, Profiting by Criminal Activity, Unauthorized Publication of Name or Likeness, and a claim under Florida's Deceptive and Unfair Trade Practices Act. The claims arose after UPS delivered an empty package that had contained two paintings shipped by an artist. At some point, UPS located the paintings and sold them to its lost goods vendor which auctioned them off. The buyer at the auction notified the shipper/artist of the purchase. UPS moved to dismiss all claims, arguing preemption under the Carmack Amendment. The trial court granted its motion and dismissed the case. The Fourth District Court of Appeals affirmed the trial court's final order of dismissal but certified the conflict "[t]o the extent [its] opinion conflicts with the Fifth District's decision in Braid Sales." Plaintiff filed a notice with the Supreme Court to invoke its discretionary jurisdiction to review the Fourth District's decision. The Supreme Court reversed, finding that the plaintiff's claims of a pattern of criminal activity by UPS are separate and apart from a cargo loss occurring during the shipping process. The Supreme Court found that the "allegations illustrate a course of criminal conduct by UPS and its cohorts that bears, at best, only a tangential relationship to the interstate shipment process and, more specifically, a carrier's contractual obligation to transport goods.”

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First Circuit Court Keeps FedEx Contractor Suit Alive
Monday, March 7, 2016
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The First Circuit Court of Appeals recently ruled that an element of the Massachusetts state law for determining employee versus contractor status was preempted by federal law, while simultaneously reviving a suit against FedEx based upon that very statute. The First Circuit ruled that the lower court was correct in ruling that prong two of the three prong test in the Massachusetts law was preempted by the FAAAA, but that the court erred in dismissing the entire case based upon that finding. The District Court was instructed to determine whether the first and third prongs of the test could still sway a ruling one direction or another.“It would seem that [Massachusetts Independent contractor/Misclassification Law] without Prong 2 still provides as much (or more) protection against misclassification than does Massachusetts law without Massachusetts Independent Contractor/Misclassification Law altogether,” the court said. “We therefore think that the Legislature's plain aim in enacting this statute favors two-thirds of this loaf over no loaf at all as applied to motor carriers with respect to the transportation of property.” The case has been sent back to the District Court for further litigation.

The case is Clayton Schwann et al. v. Fedex Ground Package System Inc., case number 15-1214, in the U.S. Court of Appeals for the First Circuit.
CSA Scores Have Been Removed from Public View
Thursday, December 17, 2015
Source: https://csa.fmcsa.dot.gov/whats_new.aspx
A provision of the newly enacted highway legislation, Fixing America’s Surface Transportation Act or “FAST,” required the FMSCA to review its CSA program and, during that review period, remove scores from public view. Accordingly, as of December 4, 2015, the information previously available on the FMCSA’s website related to property carriers’ compliance and safety performance was no longer displayed publicly. While the agency is not prohibited from displaying all of the data, no information will be available for property carriers while appropriate changes are made. The FMCSA has been working to restore the data that is allowed to remain publicly available. A note on the FMCSA’s website explains, “While the agency is not prohibited from displaying all of the data, no information will be available for property carriers while appropriate changes are made.” In order for the CSA ranking system to become live again, the FMCSA would have to implement or satisfactorily address the numerous issues raised regarding the program in the Inspector General report.

https://csa.fmcsa.dot.gov/whats_new.aspx
Texas Federal Judge Halts Southwest’s Bid To Oust Delta From Dallas Airport
Friday, January 15, 2016
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In a dispute over gate usage at Love Field airport, outside of the city of Dallas, on January 8, 2016, a Texas federal judge ruled that Southwest Airlines Co. cannot force Delta Airlines Inc. out of the airfield, also ruling that Southwest has breached its lease agreement by refusing to accommodate Delta. In an intricate dispute involving FAA investigations and multiple complaints launched against and by the parties involved, U.S. District Court Judge Ed Kinkeade granted preliminary injunction to Delta to stop Southwest from interfering with Delta’s use of gates at the airport that are currently under Southwest control. At the heart of the matter is a dispute over the level of control Southwest has over 18 of the airport’s 20 gates pursuant to a lease agreement between Southwest and the city of Dallas. Judge Kinkeade wrote “Delta has established that immediate and irreparable harm may result if it is prohibited from operating its current schedule of five flights and is forced out of Love Field during the pendency of this case,” “Thousands of passengers, both traveling to and from Love Field, would have to be refunded or rebooked if Delta is forced to discontinue its service at Love Field. Loss of business and goodwill are immeasurable through money damages.”

The case is Dallas v. Delta Airlines Inc. et al., case number 3:15-cv-02069, in the U.S. District Court for the Northern District of Texas, available through PACER.
California District Judge Asked To Approve $1.2M Attorney Fee Award
Tuesday, January 19, 2016
Source:
A class of California truck drivers has asked a federal judge to grant final approval of $1.2M in attorney’s fees as part of a larger $3.5M settlement in a suit brought by drivers for Ruan Logistics Corp. Ruan was sued for a number of different violations of California employment law, including failure to provide meal and rest breaks as well as failure to pay drivers for time worked. Ruan had originally been granted summary judgement in 2013, but that decision was overruled on appeal to the Ninth Circuit, and has since been in intense litigation leading to the current settlement now before the court. Despite the contentious nature of the litigation, the parties have agreed on this settlement, saying in the motion for settlement approval “It is the ‘gold standard’ for wage and hour class action settlements because it imposes almost no burden on the employee while distributing virtually all of the settlement fund,” “This result is particularly impressive in light of the contentious yet professional character of this litigation.”

The case is Burnham et al. v. Ruan Transportation, case number 8:12-cv-00688, in the U.S. District Court for the Central District of California.

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