The Nation

WASHINGTON — It’s complicated. Millions of health care workers across the U.S. were supposed to have their first dose of a COVID-19 vaccine by this coming Monday under a mandate issued by President Joe Biden’s administration. Thanks to legal challenges, they won’t have to worry about it, at least for now. Same goes for a Jan. 4 deadline set by the administration for businesses with at least 100 employees to ensure their workers are vaccinated or tested weekly for the virus. Judges responding to lawsuits brought by Republican-led states, businesses and other opponents have blocked some of Biden’s most sweeping initiatives intended to drive up vaccination rates. Numerous other legal challenges are pending. In early November, the American Trucking Associations (ATA), along with the Louisiana Motor Truck Association, the Mississippi Trucking Association and the Texas Trucking Association, sued the Biden administration over the mandate. “We told the administration that this mandate, given the nature of our industry and makeup of our workforce, could have devastating impacts on the supply chain and the economy and they have, unfortunately, chosen to move forward despite those warnings,” said ATA President Chris Spear. “So we are now, regrettably, forced to seek to have this mandate overturned in court.” Meanwhile, U.S. Labor Secretary Marty Walsh made a statement last month saying that truckers should be exempt from the mandate. “If you’re a truck driver and you’re outside, you’re in a cab driving by yourself, this doesn’t impact you. If you’re a worker outside working in the area, this doesn’t impact you,” Walsh told Philadelphia television station WPVI. Whether Walsh’s statement means that truckers are exempt remains unclear. More than four-fifths of adults nationwide already have received at least one dose of a COVID-19 vaccine. But Biden contends his various workforce vaccine mandates are an important step in curtailing the virus, which has killed more than 780,000 people in the U.S. Opponents have taken a three-tiered approach to challenging Biden’s requirements. In lawsuits, they contend the vaccine mandates were imposed without proper public comment, were not authorized by Congress and infringe on states’ rights to regulate public health matters. “The reasoning across the cases is basically the same, which is that these statutes don’t give the president or the agency in question the authority to issue the mandates,” said Gregory Magarian, a constitutional law professor at Washington University in St. Louis. The Biden administration contends its rule-making authority is firm and supersedes any state policies prohibiting vaccine requirements. Recent experience shows that such mandates generally prompt people to get vaccinated. By the time a Biden requirement for federal workers to be vaccinated took effect last month, 92% had received at least their first dose of the shot. Following is a rundown of some of Biden’s most sweeping vaccine requirements and the status of the legal fights over them What it would do: Under a rule published by the U.S. Occupational Safety and Health Administration on Nov. 5, businesses with 100 or more workers are to require employees to be vaccinated. If they are not, they would need to be tested weekly and wear masks while working, with exceptions for those who work alone or mostly outdoors. The rule was to go into effect Jan. 4. The requirement would affect businesses with a cumulative 84 million employees, and OSHA projected it could save 6,500 lives and prevent 250,000 hospitalizations over six months. Who’s challenging it: The requirement is being challenged by 27 Republican-led state governments plus conservative and business groups and some individual businesses. The states mostly filed lawsuits in groups, though Indiana challenged it alone. Their arguments include that it’s the job of states, not the federal government, to deal with public health measures. The Biden administration maintains that the measure is legal. Some labor unions also contested the rule, though not for the same reasons as the Republicans and business group. They say it doesn’t go far enough to protect workers Where it stands: The rule is on hold. A day after states challenged the rule, a panel of three judges in the New Orleans-based 5th U.S. Circuit Court of Appeals blocked it. At first, it was a temporary suspension, then a more permanent one. The legal challenges originally were filed in various U.S. appeals courts. The cases subsequently were consolidated into a court that was selected at random, the Cincinnati-based 6th U.S. Circuit Court of Appeals. What’s next: The Biden administration is asking the 6th Circuit to set aside the order from the 5th Circuit and allow the vaccine requirement. In the meantime, OSHA has suspended implementation of the rule. Groups that are suing want the questions decided by all the judges on the 6th Circuit rather than a panel of just some of them. HEALTH WORKER MANDATE What it would do: Under a rule published by the Centers for Medicare & Medicaid on Nov. 5, a wide range of health care providers that receive federal Medicare or Medicaid funding were to require workers to receive the first dose of a COVID-19 vaccine by Dec. 6 and be fully vaccinated by Jan. 4. The rule would affect more than 17 million workers in about 76,000 health care facilities and home health care providers. Who’s challenging it: The rule was challenged in four separate lawsuits filed by Republican-led states, mostly in groups. Florida and Texas mounted their own challenges. The states argued that there were no grounds for an emergency rule, that CMS had no clear legal authority to issue the mandate and that the rule infringes on states’ responsibilities. Where it stands: The rule is on hold. A Missouri-based federal judge issued a preliminary injunction Monday barring its enforcement in 10 states that had originally sued. The next day, a Louisiana-based federal judge also issued a preliminary injunction barring enforcement in the rest of the states. What’s next: Both court rulings are being appealed by the Biden administration. The case filed in Missouri is being considered by the St. Louis-based 8th U.S. Circuit Court of Appeals. The case filed in Louisiana, which was brought by a coalition of 14 states, is being considered by the 5th Circuit. So far, there’s been no move to consolidate the challenges in a single court. FEDERAL CONTRACTOR MANDATE What would it do: Under an executive order issued by Biden on Sept. 9, contractors and subcontractors for the federal government are required to comply with workplace safety guidelines developed by a federal task force. That task force on Sept. 24 issued guidelines requiring that new, renewed or extended contracts include a clause requiring employees to be fully vaccinated by Dec. 8. That deadline for full vaccination subsequently was delayed until Jan. 18. There are limited exceptions for medical or religions reasons. The requirements could apply to millions of employees. Who’s challenging it: The guidelines have been challenged through more than a dozen lawsuits, including seven brought by Republican-led states or coalitions of states. The arguments are similar to those against other vaccine mandates, asserting the Biden administration exceeded the procurement rule-making powers granted by Congress, infringed on states’ responsibilities and didn’t properly gather public comment. Where it stands: A federal judge in Kentucky issued a preliminary injuncting Tuesday barring enforcement of the vaccine requirement for contractors in three states that collectively sued — Kentucky, Ohio and Tennessee. Judges in Mississippi and Washington state have declined to block the requirements; the question is pending before other courts. What’s next: Legal challenges pending in several other states could lead to additional court rulings this month on requests for injunctions. The Kentucky ruling also could be appealed. Barring a nationwide court order, there could be a patchwork of requirements for contractors depending on the states where they work. A quick consolidation of the federal contractor lawsuits appears unlikely. The Trucker Staff contributed to this report.

WASHINGTON – The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has declared Rapid City, South Dakota-based Hall Trucking to be an imminent hazard to public safety and has ordered the carrier to immediately cease all interstate and intrastate operations. The federal order, which was served Nov.19, further specified that the company owner and truck driver, Clayton Hall, who holds a South Dakota-issued commercial driver’s license (CDL), be immediately ordered out-of-service, prohibiting him from operating any commercial motor vehicle (CMV) in interstate commerce. According to an FMCSA news release issued Friday, an FMCSA investigation found Hall Trucking to be “egregiously noncompliant with multiple federal safety regulations, including: controlled substances and alcohol use and testing; commercial driver’s license standards; qualification of drivers and; driving of CMVs.” In June 2020, owner/driver Hall tested positive for amphetamines and was notified that, as required by federal safety regulations, he was prohibited from operating a CMV until such time he successfully completed the statutorily required return-to-duty process overseen by a Substance Abuse Professional.  Hall’s drug test result was also reported to FMCSA’s CDL Drug and Alcohol Clearinghouse. Despite the disqualification, Hall continued to operate a CMV on at least 20 occasions, including at least three interstate trips in October 2021. FMCSA investigators further discovered that a Hall Trucking employee driver did not have a current medical examiner’s certificate required by federal regulation for interstate commercial operations.  Additionally, the individual possessed an “intrastate only” CDL, which did not allow him to legally operate a CMV outside South Dakota state boundaries.  Despite these prohibitions, the individual, on at least three occasions in 2021, was dispatched by Hall on commercial interstate trucking trips. FMCSA’s imminent hazard out-of-service order states that Hall Trucking’s “,..complete disregard for the [federal safety regulations] substantially increases the likelihood of serious injury or death for its drivers and the motoring public if its operations are not discontinued immediately.” Failing to comply with the provisions of the federal imminent hazard order may result in civil penalties of up to $28,142 for each violation. Hall Trucking may also be assessed civil penalties of not less than $11,256 for providing transportation in interstate commerce without operating authority registration, and up to $15,876 for operating a CMV in interstate commerce without USDOT Number registration. Knowing and/or willful violations may result in criminal penalties.

ARLINGTON, Va. – It should come as no surprise that company drivers and owner-operators/independent contractors ranked income as highly important in a new study from the American Trucking Research Institute (ATRI). In fact, it came second only to job security. And in terms of income satisfaction, 68.9% of company drivers and 80.1% of owner-operators/independent contractors said they were very satisfied/satisfied with their income. ATRI said its research includes data from more than 2,000 professional truck drivers, of whom more than two-thirds are owner-operators/independent contractors. The analysis also examined the various compensation models used with company drivers and owner-operators/independent contractors and driver satisfaction levels with each. More than 50% of owner-operators/independent contractors in ATRI’s dataset reported net incomes of over $75,000 in the previous year, while nearly 70 percent of company drivers indicated their annual wages fell in the $50,000 to $100,000 range. A large percentage of owner-operators/independent contractors expected they would experience significant decreases in their job satisfaction (73.0%) and annual income (68.3%) if they were reclassified as a company driver. “ATRI’s analysis validates what we know to be true with our professional truck drivers – those who choose to be owner/operators are often motivated by the desire to be in charge of their schedule and work environment,” said Eric Fuller, president & CEO of U.S. Xpress Enterprises, Inc. “Understanding what motivates our company drivers and owner/operators allows us to better tailor offerings as we continue to focus on recruitment and retention.” In addition to examining the differences between company drivers and owner-operators/independent contractors, ATRI’s analysis also offers insight into the different motivating factors for female truck drivers versus their male counterparts. To access the full report, click here.

PORTLAND, Ore. — Rep. Peter DeFazio, the longest serving U.S. House member in Oregon’s history and a staunch advocate for the trucking industry, said Wednesday he is retiring and will not seek reelection next year. News of DeFazio’s decision spread quickly in the trucking world. Todd Spencer, president of the Owner-Operator Independent Drivers Association, called DeFazio a leading voice on trucking issues. “He has displayed a seldom matched knowledge and understanding of transportation policy that professional drivers have always respected throughout his decades of service,” Spencer said. “OOIDA has genuinely appreciated the Chairman’s thorough comprehension of the various concerns raised by small-business truckers. While we have not always agreed about how to best improve the trucking industry, we have valued the informed dialogue with the Chairman and his staff over the years. “We look forward to continue working with Rep. DeFazio on addressing many of the long-standing challenges that truckers confront on a daily basis such as excessive detention time, inadequate compensation and the truck parking crisis during the remainder of his term.” The American Trucking Associations President and CEO Chris Spear said that DeFazio “is without question a gifted legislator and leader who, over the span of four decades, has made a difference in the lives of all Americans. His absence will come at a time when we need more elected officials willing to put the nation’s interest ahead of themselves.” Spear continued: “Amidst bitter partisanship throughout Washington, Chairman DeFazio stands out as one of the rare solution seekers committed to advancing the legislative process. Our industry appreciates the fact that he will solicit members’ thoughts, listen to logic and make decisions based on facts, not knee-jerk rhetoric and emotion. That collaboration is something our industry looks for in an elected official and what ultimately shapes sound public policy. “Few legislators have been more instrumental in driving national infrastructure policy than Chairman DeFazio. He’ll leave the House having cemented a lasting legacy that his constituents and all Americans will see, feel and use for decades to come. We thank him for his service and partnership.” The 74-year-old Democrat is the powerful chairman of the House Transportation Committee. “With humility and gratitude, I am announcing that I will not seek re-election next year. It has been the greatest honor of my life to serve as Congressman for the Fourth District of Oregon,” DeFazio said in a statement. While his announcement comes as his party faces a number of challenges ahead of the 2022 midterms, DeFazio’s seat is probably safe for Democrats. Oregon’s 4th District covers the southwestern portion of the state, including coastal communities and the liberal university towns of Eugene and Corvallis. DeFazio was first elected in 1986. The last time a Republican was elected to the seat was 1972. In 2020 DeFazio faced a spirited challenge from Alek Skarlatos, a hero soldier-turned-Republican congressional candidate. In 2015, Skarlotos, a member of the Oregon National Guard, helped disrupt an attack on a train bound for Paris by a heavily armed man who was a follower of the Islamic State group. DeFazio beat Skarlatos by 5 percentage points, his closest margin of victory in many years. And while the GOP will see an opportunity in the 4th District next year, there will likely be many strong Democratic candidates as well. Democrats control the Legislature, all statewide elected offices, the two U.S. Senate seats and four of the five current U.S. House seats in Oregon. “It’s time for me to pass the baton to the next generation so I can focus on my health and well-being,” DeFazio said, adding he will work for the rest of his term to help pass President Joe Biden’s Build Back Better Act to address economic inequities and the climate crisis. Originally from suburban Boston, DeFazio got an advanced degree in gerontology from the University of Oregon and later worked as an aide to former Oregon Rep. Jim Weaver, who he succeeded, and as a county commissioner. DeFazio touted among his accomplishments banning the export of logs from federal lands to protect old growth forests, protecting 390,000 acres (157,827 hectares) of wilderness in Oregon and increasing federal investment in infrastructure. In a statement, House Speaker Nancy Pelosi praised DeFazio for his many years of service. “Chairman Peter DeFazio is an absolute force for progress, whose 36 years of effective leadership in the House will leave a legacy that will benefit the Congress and Country for decades to come,” Pelosi said. Environmental groups also lauded the retiring congressman. “Chairman DeFazio is one of Congress’ all-time greatest champions for wildlife, public lands, and healthy waterways,” said Collin O’Mara, president and CEO of the National Wildlife Federation. The Trucker Staff contributed to this report.

WASHINGTON — The Federal Trade Commission (FTC) is asking tough questions to major companies about why the supply chain is so clogged. The agency has ordered nine large retailers, wholesalers and consumer goods suppliers to “provide detailed information that will help the FTC shed light on the causes behind ongoing supply chain disruptions and how these disruptions are causing serious and ongoing hardships for consumers and harming competition in the U.S. economy,” according to an FTC news release. The orders are being sent to Walmart Inc., Amazon.com, Inc., Kroger Co., C&S Wholesale Grocers, Inc., Associated Wholesale Grocers, Inc., McLane Co, Inc. Procter & Gamble Co., Tyson Foods, Inc. and Kraft Heinz Co. The companies will have 45 days from the date they received the order to respond. “Supply chain disruptions are upending the provision and delivery of a wide array of goods, ranging from computer chips and medicines to meat and lumber,” FTC Chair Lina M. Khan said. “I am hopeful the FTC’s new … study will shed light on market conditions and business practices that may have worsened these disruptions or led to asymmetric effects. The FTC has a long history of pursuing market studies to deepen our understanding of economic conditions and business conduct, and we should continue to make nimble and timely use of these information-gathering tools and authorities.” In addition to better understanding the reasons behind the disruptions, the study will examine whether supply chain disruptions are leading to specific bottlenecks, shortages, anticompetitive practices or contributing to rising consumer prices, the news release stated. The orders require the companies to detail the primary factors disrupting their ability to obtain, transport and distribute their products; the impact these disruptions are having in terms of delayed and canceled orders, increased costs and prices; the products, suppliers and inputs most affected; and the steps the companies are taking to alleviate disruptions; and how they allocate products among their stores when they are in short supply. The FTC is also requiring the companies to provide internal documents regarding the supply chain disruptions, including strategies related to supply chains; pricing; marketing and promotions; costs, profit margins and sales volumes; selection of suppliers and brands; and market shares. In addition, the agency is soliciting voluntary comments from retailers, consumer goods suppliers, wholesalers, and consumers regarding their views on how supply chain issues are affecting competition in consumer goods markets. These comments provide an opportunity for market participants to surface additional issues and examples of how supply chain disruptions are affecting competition. Meanwhile, U.S. manufacturing activity grew at a faster pace in November with producers trying to keep up with demand amid ongoing supply shortages and delays. The Institute for Supply Management, a trade group of purchasing managers, said Wednesday that its index of manufacturing activity rose to a reading of 61.1 in November, just above September’s 60.8. Any reading above 50 indicates growth in the manufacturing sector. The manufacturing sector has recorded 18 straight months of growth going back to spring of 2020 when the pandemic broke. Sub-categories of new orders, production and employment all grew at a faster pace in November, though many respondents commented that they are still struggling to hire, despite some modest progress over the past three months. ISM’s report said that 86% of the employment comments related to hiring, with 51% of those respondents saying they are struggling to fill positions, an increase from October. Businesses are also struggling to keep their inventories stocked due to elevated demand. ISM’s customer’s inventories index registered a reading of 25.1 in November, the 62nd straight month that it’s been what is considered too low. While it’s not good for stores to have sparse or empty shelves, it will likely spur more production ahead to remedy that situation, the ISM report said. Prices are still elevated, but retreated somewhat in November to a reading of 82.4 from 85.7 in October. Thirteen of the 15 manufacturing categories reported growth last month, led by apparel and furniture. The only two that contracted were printing and primary metals. ISM said the broad sentiment of its panel remained strongly optimistic, but they “remain focused on the importance of improving supply chain issues to respond to ongoing high levels of demand,” said Timothy R. Fiore, head of ISM’s manufacturing survey committee.

POLK COUNTY, Fla. — Florida authorities have arrested two men in connection with a cargo theft ring that saw more than $700,000 in wooden pallets and 25 semi-trailers stolen. According to the Polk County Sheriff’s Office (PCSO), 45-year-old Bobby John Herrera, Jr. from West Palm Beach and 36-year-old Nicholas Nigel Howard of Opa Locka have been charged with a combined 67 felonies related to the caper. In late July 2021, PCSO detectives began investigating a reported theft of seven semi-trailers from two different distribution centers – Saddle Creek Logistical Services in Auburndale, Florida, and the Walmart Distribution Center in Winter Haven, Florida, – that contained a large quantity of wooden pallets. During the initial investigation, detectives were able to identify three semi-trucks filled with pallets that they say had been either stolen or burglarized by Herrera. Herrera is the owner of JCI Pallet in Plant City, Florida. Security footage obtained by detectives from both Saddle Creek Logistics and the Walmart Distribution Center showed a series of thefts where Herrera drove his company’s 2015 Freightliner semi-truck onto the facilities and illegally removed semi-truck trailers filled with wooden pallets waiting to be delivered to other distribution centers and businesses. “Herrera was able to circumvent security procedures at the distribution centers to steal the semi-trailers and their contents,” according to the PCSO. When PCSO detectives traveled to JCI Pallet and met with Herrera, they showed him one of the security videos. Herrera reportedly said, “That looks like me,” according to the PCSO. Herrera was initially arrested in September with the assistance of the Plant City Police Department and transported to the Hillsborough County Jail, where he was later released on a $4,000 bond. As the investigation continued, detectives learned that Howard, the on-site manager of JCI Pallet, assisted Herrera in removing stolen trailers filled with pallets from two different distribution centers, affecting four different companies. Over the months of May, June and July of 2021, the two men planned and coordinated the theft of 25 semi-trailers, which contained almost 5,000 wooden pallets. The stolen trailers and pallets combined are worth approximately $935,663, the PCSO said. “The victims of Herrara’s and Howard’s organized cargo theft conspiracy were Saddle Creek Logistics, Walmart, 48Forty Solutions and Monison Pallets,” according to the PCSO. “Detectives tracked the stolen trailers filled with wooden pallets to JCI Pallet, where they were emptied before being returned or abandoned without the stolen cargo. Two of the trailers stolen by Herrera were determined to be empty when they were stolen from the distribution centers.” All of the stolen trailers were eventually recovered. Additionally, a business in Alabama, Smith and Company, had hired Herrera to deliver pallets to Saddle Creek Logistical Solutions, but he never delivered the product. “Instead, he submitted a fraudulently signed bill of ladings (detailed shipment of goods delivered) and invoices for pallets never delivered,” according to the PCSO. “My detectives, in partnership with the Plant City Police Department, did an outstanding job investigating this organized crime enterprise, said Polk County Sheriff Grady Judd. “This type of theft negatively impacts the consumer when business have to raise costs to account for this type of loss. We will work hard to make sure Herrera and Howard are held accountable for these cargo thefts. They won’t have the opportunity to steal while they are in prison.”

ARLINGTON, Va. — COVID-19 has affected just about every aspect of life. The trucking industry is no exception. According to a recent analysis of the operational costs of trucking by the American Transportation Research Institute (ATRI), in addition to faster truck speeds, COVID-19 impacts were considerable. The research is based on detailed 2020 financial data provided directly by motor carriers of all sectors and fleet sizes. The various line-item cost centers clearly document the numerous impacts that the COVID-19 pandemic had on trucking and the economy in general. The study noted that dead-head miles increased to 20.6%, annual operating miles decreased to 89,358 miles per truck, and fuel costs declined by nearly 20% to 30.8 cents per mile. Independent of COVID-19 impacts, insurance costs continued their climb, rising more than 18% to 8.7 cents per mile — the highest in the report’s history, according to ATRI. The report documents the effect that faster truck speeds, due to low overall traffic levels, had on multiple line-items, as well as the sector and commodity volatility that occurred as consumers were forced to dramatically change spending habits. “The COVID-19 pandemic made 2020 a historically unprecedented year for the global economy,” the report stated. “Despite encountering numerous logistical difficulties, the trucking industry performed with admirable consistency, and so did its marginal costs. Carriers were able to take advantage of some unexpected windfalls, such as unusually low fuel costs and highway traffic, to offset heightened expenses in other areas.” While truck driver wages increased from 2019 to 2020, benefits costs per mile decreased. Overall truck driver compensation was 73.7 cents per mile. Separately, safety and retention bonuses increased by 10.5% and 14.2% respectively, but starting bonuses dropped by 10% — reflecting the soft driver marketplace in early 2020 for many sectors. Overall, the average marginal cost per mile incurred by motor carriers in 2020 decreased 5 cents per mile to $1.64. When the per-mile costs are converted to hourly costs, the report found that total hourly costs dropped slightly to $66.87. “In the face of a COVID-19 economy, our industry tightly managed costs and operations, while delivering essential goods to market. We also led the way out of the COVID-19 recession in the latter half of the year. I expect 2021 to continue the positive trends for our industry,” said Cully Frisard, COO of Frisard Companies. For request a free copy of the full report, click here.

WASHINGTON — The Federal Motor Carrier Safety Administration (FMCSA) is extending the regulatory relief for drivers hauling certain cargo as part of its previous COVID-19 emergency declaration. The extension runs until Feb. 28, 2022. It was previously set to expire Nov. 30, 2021. The extension allows for regulatory relief for commercial motor vehicle operations by providing direct assistance in support of emergency relief efforts related to COVID-19 and is limited to the transportation of: Livestock and livestock feed. Medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19. Vaccines, constituent products, and medical supplies and equipment including ancillary supplies/kits for the administration of vaccines, related to the prevention of COVID-19. Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants. Food, paper products and other groceries for emergency restocking of distribution centers or stores. Gasoline, diesel, jet fuel and ethyl alcohol. Supplies to assist individuals impacted by the consequences of the COVID-19 pandemic (e.g., building materials for individuals displaced or otherwise impacted as a result of the emergency). Direct assistance does not include non-emergency transportation of qualifying commodities or routine commercial deliveries, including mixed loads that include a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency declaration To be eligible for the exemption, the transportation must be both of qualifying commodities and incident to the immediate restoration of those essential supplies. Click here for the full FMCSA information sheet.