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Scopelitis Legislative Newsletter - March 2019

by Shannon M. Cohen, Gregory M. Feary, Prasad Sharma

March 5, 2019

Scopelitis Legislative News – March 2019

The Scopelitis Law Firm recognizes that, in order to prepare for potential risks and strategic opportunities, businesses of all sizes must stay informed regarding regulatory and legislative change. This newsletter offers insights on noteworthy developments or trends affecting transportation issues in Congress or the state legislatures. To explore how we may provide the most well-tailored legislative services for you, contact the Scopelitis Legislative team - Greg Feary, Shannon Cohen, or Prasad Sharma.

Federal Developments

Government Funding Finally Signed Into Law
Nearly halfway into fiscal year 2019, the spending bill for the U.S. Department of Transportation was signed into law on February 15.  The bill provides $45.3 billion in funding for highways from the Highway Trust Fund plus an addition $3.25 billion out of the general fund.  The bill also funds the BUILD grants program for surface transportation projects at $900 million, despite the administration requesting zero funding for the program.  Although the legislation was light on policy provisions, it did extend the ELD exemption for carriers hauling livestock and insects through September 30 and prohibited enforcement of a controversial 2015 rule on the lease and interchange of passenger carrier vehicles through the same date.  Resolving the funding disputes and the government shut-down delayed commencement of a lot of the work in the 116th Congress, explaining a lack of legislative activity.

Stirrings on an Infrastructure Bill
New House Committee on Transportation and Infrastructure, Chairman DeFazio held an infrastructure hearing on February 7 in which there was widespread agreement about the need to invest more, on a sustainable basis, in infrastructure.  Nearly a week later (February 13), new Senate Commerce Committee Chairman Wicker held a similar hearing on America’s infrastructure shortfall.  Although both hearings demonstrated bipartisan agreement on the diagnosis, that agreement does not extend to the cure.  In his State of the Union address, which occurred before both hearings, President Trump made a fleeting mention of infrastructure – essentially signaling the administration plans to let Congress take the lead.  The impending departure of Jim Ray, the head of DOT’s task force on infrastructure, would seem to confirm the administration’s passive approach.  However, in yet another twist, in a February 22 speech to governors meeting as part of the National Governors Association, Vice President Pence promised enactment of an infrastructure bill by next year.  With many twists and turns undoubtedly ahead, what has become clear is that the administration’s outline from last year will not serve as the blueprint for proposals to be advanced in the 116th Congress.

Bill to Authorize 18-21 Year Olds to Drive in Interstate Commerce Introduced
On Feb. 26, a bill, the DRIVE SAFE Act, creating an apprenticeship program to train and authorize drivers between the ages of 18 and 21 to drive in interstate commerce was re-introduced with bipartisan sponsors in the House and the Senate.  The bill would require a specified number of hours of on-duty time and driving time in the company of an experienced driver with a vehicle that is equipped with certain safety technologies in order to successfully complete the apprenticeship program and be eligible to drive without restriction.  Many states currently allow 18-year-old drivers to drive in intrastate commerce, but those drivers are currently prohibited under federal law from driving in interstate commerce.  The bill is supported by many trucking interests but has drawn opposition from safety groups and OOIDA. 

Impending Regulatory Review
The government shutdown also delayed review of rules submitted to the Office of Management and Budget for final coordination and clearance.  Currently under review are a DOT advance notice of proposed rulemaking to eliminate the requirement for drivers to complete an application for employment under 49 C.F.R. § 391.21 and DOL proposal on the salary threshold for the white collar exemption from overtime.

State Developments

Infrastructure Funding
At the state level, infrastructure funding remains a hot topic. While some states look to increase gas taxes in order to close the funding gap, other states are evaluating alternative funding methods, such as electric or hybrid vehicle surcharges or flat fees earmarked for infrastructure improvements. As always, tolls continue to be raised as a potential highway funding mechanism. These approaches will continue to be of high interest as state budgets are negotiated and passed.

Portable Benefit Models and IC Status
On the independent contractor (“IC”) front, states continue to look at methods to provide some employee-like benefits to ICs. One method that has been suggested in a few states, including Washington and New Jersey, is a portable benefits model that creates a fund through which ICs can purchase benefits such as workers compensation or health care coverage. The structure and feasibility of such models remains to be seen, but developments related to these efforts are likely to expand.

Even those states not considering a portable benefits model continue to examine the use of ICs within their boundaries. While some states seek to sweep more workers into an employment relationship, other state seek to clarify when particular workers will be deemed to be ICs. Still other states take the approach of specifically identifying certain workers (including IC drivers) in order to more explicitly outline when such workers will be deemed to be ICs and when they will be deemed to be employees. These approaches vary widely by state and can have a significant impact on a company’s operations in any given state.

Did You Know?

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Did you know Scopelitis Law Firm and its affiliate Scopelitis Transportation Consulting (STC) have a combined office in D.C. that can help with creative solutions to D.C.-oriented problems? Learn more about Scopelitis’ D.C. office.

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Scopelitis newsletters are intended as a report to our clients and friends on legislative developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.

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