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Teamsters Union asks appeals court to reverse FMCSA preemption of California meal, rest break laws

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ALAMEDA, Calif. — The International Brotherhood of Teamsters has filed a petition with the Ninth Circuit Court of Appeals asking the court to review the determination of preemption issued by the Federal Motor Carrier Safety Administration on December 21 that preempts the State of California’s meal and rest break rules, which differ from current federal Hours of Service regulations.

The petition was filed on behalf of Teamsters Local 2785 and Everardo Luna, who the union identified as “one of those truck drivers who works for a motor carrier which presently provides meal periods and rest breaks.”

The union’s petition, filed December 27, asks the court to review the FMSCA’s ruling and “to reverse the ruling in its entirety or for such relief as the court deems proper.”

The FMCSA’s determination of preemption was in response to a petition filed September 24, 2018, by the American Trucking Associations after several attempts to legislatively deal with the conflicting meal and rest break laws were continuously rebuffed.

The ATA petition said California’s meal and rest break law should be preempted because they were in conflict with federal Hours of Service regulations.

The California law requires employers to provide a “duty-free,” 30-minute meal break for employees who work more than five hours a day as well as a second “duty-free,” 30-minute meal break for people who work more than 10 hours a day. Other states followed, enacting their own break rules. Nearly 20 states have their own separate meal and rest break laws, but the December 21 ruling by FMCSA deals only with the California law.

Federal HOS rules require professional truck drivers to take a 30-minute rest break no longer than eight hours after the last off-duty period or sleeper berth period of that length no more than five hours after going on duty.

Meal and other rest breaks can be taken at any time and count against a driver’s 14-hour on duty time.

It remains uncertain whether other states will accept the FMCSA ruling as applicable to conflicts between their laws and HOS rules.

FMCSA did not specify when drivers must take the 30-minute break, but the rule requires that they wait no longer than 8 hours after the last off-duty or sleeper-berth period of that length or longer to take the break.

In filing the request for review, the Teamsters said the petitioners had been adversely affected by the FMCSA’s decision.

“Petitioner International Brotherhood of Teamsters, Local 2785 is the collective bargaining representative of many truck drivers who work for motor carriers subject to this ruling who currently provide rest breaks and meal periods,” the union’s request for review said. “Petitioner Everardo Luna is one of those truck drivers who works for a motor carrier which presently provides meal periods and rest breaks. Truck drivers represented by Teamsters Local 2785 and other individual truck drivers like Mr. Luna will lose their right to rest breaks and meal periods as provided by California law if the determination is not reversed.”

The union had first blasted the agency’s decision when it was announced late in the afternoon December 21, a Friday.

“FMCSA’s suggestion that California’s meal and rest break rules negatively impact highway safety is ludicrous,” the union said in a news release “The idea that providing a 10-minute rest break after four hours and a 30-minute meal break after five hours somehow makes the roads less safe is beyond comprehension. This is simply a giveaway to the trucking industry at the expense of driver safety. The FMCSA decision to bail out the trucking industry after it failed to achieve a legislative fix and numerous court rejections — and to do it late on a Friday before a holiday — smacks of political cronyism at its worst.

“The announcement was made at 4:30 p.m. (EST) on Friday, December 21, 2018, in what was clearly an effort to avoid public scrutiny of the corporate giveaway at the expense of working men and women.”

It wasn’t the first time the FMCSA had made a “midnight” announcement of a key decision around the Christmas holiday.

The Notice of Proposed Rulemaking for the Obama administration’s Hours of Service proposal was issued the afternoon of December 23, 2010, a Thursday.

The Final Rule on Hours of Service was released on December 22, 2011, also a Thursday.

By petitioning the Ninth Circuit Court of Appeals for relief from the FMCSA ruling, in effect the case winds up right where it started.

In mid-2014, the Ninth Circuit concluded that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) does not preempt the application of California’s meal and rest break laws to motor carriers because these state laws are not sufficiently “related to” prices, routes, or services, thus requiring trucking companies that have operations in California will be required to comply with California’s meal and rest break laws instead of the Department of Transportation regulations.

Congress passed the FAAAA for the purpose of preempting state trucking regulations following the deregulation of the trucking industry.

The FAAAA preempted state laws or regulations or any other provision having the force and effect of law “related to a price, route, or service any motor carrier.”

 

 

 

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ATA hints it may sue Virginia over proposal to toll Interstate 81

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The proposed toll legislation for Interstate 81 would charge commercial trucks at 17 cents per mile, personal vehicles at about 11 cents per mile and offering an annual pass to commuters in passenger vehicles. (Courtesy: WIKIPEDIA)

RICHMOND, Va. — The American Trucking Association hinted Thursday it may sue the State of Virginia over legislation that proposes charging tolls on Interstate 81.

The ATA did so in a letter to Connecticut Gov. Ralph Northam opposing the legislation which Northam touts as the best way to fund improvements to the 325-mile interstate between Bristol and Winchester.

The bill proposes tolling commercial trucks at 17 cents per mile, personal vehicles at about 11 cents per mile and offering an annual pass to commuters in passenger vehicles.

The letter, signed by Jennifer Hall, the ATA’s general counsel and executive vice president, legal affairs, says that if adopted in their current form would not only be poor public policy, but would raise serious legal issues and may create an “impermissible burden” on interstate commerce.

The proposed plan has four options for tolling.

The ATA letter dealt with the option that would toll all vehicles with an annual pass available exclusively to automobiles.

“The car-only annual pass proposal is unlawful under the U.S. Constitution because it represents an impermissible burden on interstate commerce,” Hall wrote. “More specifically, the U.S. Supreme Court has explained that, under the Commerce Clause, a transportation user fee is permissible only “if it (1) is based on some fair approximation of use of the facilities, (2) is not excessive in relation to the benefits conferred, and (3) does not discriminate against interstate commerce.”

Plan’s car-only annual pass option would fail this test for a variety of reasons, the ATA said, noting:

  • User fees would bear no relationship to use of the tolled roads;
  • Tolls on commercial vehicles would be excessive in relation to the benefits conferred;
  • The plan favors noncommercial vehicles over commercial vehicles, which power interstate commerce.

The ATA said by allowing automobiles the opportunity to pay a one-time fee for unlimited travel over the course of the year, but to deny that flat-rate opportunity to trucks, means that the proposal is not “based on some fair approximation of use.”

On the contrary, for a passenger car availing itself of the annual pass option, its user fees will bear no relationship whatsoever to its use of the tolled roads. Trucks, by contrast, will have no choice but to pay on a trip-by-trip basis, the federation claimed.

Hall said the proposed toll scheme discriminates against interstate commerce by favoring noncommercial vehicles over commercial vehicles—i.e., the very vehicles by which interstate commerce moves.

“The Supreme Court has expressly held that highway user fees ‘discriminate against out-of-state vehicles’ when they predictably ‘subject them to a much higher charge per mile travelled in the state,’ and ‘do not even purport to approximate fairly the cost or value of the use of [the] roads,” the letter said. “That is precisely what the proposed toll scheme does, by allowing automobiles — and only automobiles — the option of an annual flat fee that translates to a predictably lower charge per mile the more such vehicles use the road.”

If the ATA files suit against the toll plan in Virginia, it would be the second lawsuit regarding tolls in the past six months.

“We encourage you and the Assembly to think carefully about these issues before Virginia takes any further steps in the direction it appears to be heading; and to bear in mind that the auto-only annual pass option will be vulnerable to a legal challenge if it moves forward,” Hall concluded letter.

If a lawsuit filed against the director of the Rhode Island Department of Transportation, ATA charges that the Rhode Island tolls violate the Commerce Clause of the Constitution by imposing “discriminatory and disproportionate burdens on out-of-state operators and on truckers who are operating in interstate commerce.”

The Owner-Operator Independent Drivers Association recently filed a lawsuit against Indiana Gov. Eric Holcomb, the Indiana Finance Authority, the Indiana Toll Road Concession Co., and the commissioner of the Indiana Department of Transportation challenging the increased tolls on heavy vehicles on the Indiana Toll Road. They were implemented last October.  8

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Runaway ‘bobtail’ tractor crashes into Atlanta motel

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Police said this “bob-tail” tractor left the road, hit a parked car and ran into the side of a motel. (Atlanta Channel 2 Action News photo)

ATLANTA — The Atlanta Journal Constitution reported Thursday that a driver is in custody after crashing a tractor-trailer into a motel in northwest Atlanta and running from the scene, officials said.

Atlanta Fire Rescue spokesman Sgt. Cortez Stafford told AJC.com that the truck went “partially” into the side of the Airway Motel in the 700 block of Fulton Industrial Boulevard on Thursday morning. There were no reports of injuries.

The “bobtail” tractor-trailer left the road, hit a parked limousine and went into the one-story building about 9:15 a.m., Atlanta police Officer Jarius Daugherty said.

The driver ran but was captured nearby, police said. His identity and the charges against him have not been released.

A woman was inside the motel room where the truck hit, but she was able to escape by climbing out of a back window, Channel 2 Action News reported.

“I just started crying and screaming,” the woman, Lashonda Allen, told the news station. “I was just praying to God the semi-truck didn’t catch on fire.”

Crews are checking the structural integrity of the building and investigating what sparked the crash.

By noon, the truck had been removed, and a gaping hole remained in the brick building.

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Oops! New York state did not previously enforce ELD rule, now making up for lost time

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The ELD mandate was a 2012 law passed under former President Barack Obama. The provision was championed as a way to protect the safety of truckers and others on the road. The Trucker file photo.

ALBANY, N.Y. — There’s always a straggler in the bunch. Unknown to many, New York state has not previously been enforcing the federal electronic logging device (ELD) mandate because it never adopted the ELD rule under its state laws and thus lacked the authority to enforce it.

According to the Trucking Association of New York (TANY), the New York State DOT has now issued an emergency rulemaking and begun enforcement of the ELD mandate.

TANY added in a news release that they have been told carriers not in compliance with the ELD mandate will be placed out-of-service as early as Thursday, January 17.

The ELD rule issued by the Federal Motor Carrier Safety Administration went into effect in December 2017 and state governments were to have followed suit by incorporating the federal ELD rule into their state laws.

The Owner-Operator Independent Drivers Association (OOIDA) has pursued lawsuits with certain states that have enforced the mandate while lacking a state-level law.

The ELD mandate has been unpopular among some truckers, who say it harms their schedules, take-home pay, and safety. Other truckers have said they like electronic logging once they get used to it.

When OOIDA sued New York, their complaint was dismissed — not because the New York court agreed with the state’s actions to enforce the federal law, but because New York wasn’t enforcing the law in the first place, according to Business Insider.

The snafu came to light in a State of New York Supreme Court ruling and opinion issued on December 31 by Judge Richard M. Platkin.

“Drivers are not being stopped, cited, or placed out-of-service pursuant to the ELD rule,” Platkin wrote.

Marc Berger, the chief motor-carrier investigator for New York’s Department of Transportation, said in the December 31 ruling that there are “no notices of violation or uniform traffic tickets being issued citing ELD provisions.”

The other defendants in the case — New York’s state police and the Department of Motor Vehicles — also stated that the ELD law hasn’t been enforced.

The ELD mandate electronically enforces the Hours of Service (HOS) law, which has been in effect since the federal government began regulating trucking in the 1930s. The HOS law stipulates that truckers can drive no more than 11 hours in a 14-hour period, a provision that some truckers say doesn’t reflect the nature of their work.

New York state said in the ruling that it does in fact enforce the HOS, but that the law is more challenging to enforce if ELDs are used.

The ELD mandate came into effect by means of a 2012 law passed under former President Barack Obama. The provision was championed as a way to protect the safety of truckers and others on the road. FMCSA estimated in 2014 that ELDs could prevent up to 1,714 crashes, 522 injuries, and 24 deaths each year.

But some truckers maintain ELDs are doing the opposite, while truck lobbying groups say it’s really not ELDs drivers have a problem with, it’s the unbendable nature of the HOS, which need more flexibility.

“The electronic logs are supposed to make it safer, but really it has created a hazardous race to beat the clock,” career truck driver Steve Manley, 51, told Business Insider. “Drivers are now more reckless than ever trying to make it to their destination before the clock runs out with the mandatory breaks and such.”

A TANY news release said despite New York State not enforcing the ELD mandate, it did enforce HOS and that FMCSA roadside inspections and on-site audits enforced the ELD mandate.

“Due to this, TANY continued to advise members to be in compliance with the ELD mandate regardless of the situation with New York enforcement,” the association said.

 

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