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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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The Nation

Diesel prices continue inching upward

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The average price for a gallon of diesel nationwide rose exactly one penny for the week ending March 25, to stand at $3.08 per gallon, according to the U.S. Energy Information Administration (EIA). With the weekly increase, diesel costs 7 cents more than it did a year ago and 11½ cents above a recent low-water mark in late January, where the price hovered at $2.965 for two weeks and then at $2.966 for two more before beginning the current slow climb.

Diesel prices rose in every EIA region in the country with the exception of the Central Atlantic region of the East Coast, which saw a tiny $0.003 drop in diesel, to finish at $3.310, which is still the highest price to be found anywhere outside California and is 9.3 cents above what it was in the Central Atlantic a year ago.

North and south of the Central Atlantic, the New England and Lower Atlantic regions both recorded price increases of $0.014, giving the aggregate East Coast an increase of $0.008, to stand at $3.132. In New England, the price of diesel stands at $3.214, while in the Lower Atlantic, it is $2.995, one of four regions where diesel is still under $3 per gallon.

With a minimal $0.001 increase, the Midwest stayed just below the $3 threshold, at $2.993, while the Gulf Coast, as usual, enjoys the lowest diesel prices in the nation, at $2.876, up $0.007 from a week earlier.

Diesel also remains under $3 in the Rocky Mountain region, at $2.974, after a 3-cent gain, the second-largest increase, after California’s $0.038 price hike. The Rocky Mountain region is currently the only region in the country where diesel costs less than it did a year ago.

The overall price of diesel rose on the West Coast to $3.526, an increase of $0.029. California has both the highest diesel prices, $3.819, and the highest year-to-year increase, an even 15 cents.

Crude oil prices were split on Monday, Brent crude, the international benchmark for oil, rose by 18 cents, to $67.21 a barrel, while U.S. crude ended Monday’s session down 22 cents, at $58.22.

Early Tuesday, Brent was up 92 cents, and U.S. crude had added $1.28.

Click here for a complete list of average prices by region for the past three weeks.

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Pothole season creating bumper crop of bumpy roads

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An Ohio Department of Transportation crew fills in a pothole. Conditions this winter and early spring have caused a notable increase in the number of road divots appearing this year. (Courtesy OHIO DEPARTMENT OF TRANSPORTATION)

A harsher-than-usual and prolonged winter is increasing the pothole repair workload for many state departments of transportation.

The Missouri Department of Transportation (MoDOT) reported March 18 that its crews patched 400,000 potholes through the first two months of 2019, compared to the approximately 619,000 potholes they patched for all of 2018.

The agency plans to keep 300 pothole patching crews busy statewide with roadway repairs through April.

“We are working as hard as we can to fill the potholes,” said Becky Allmeroth, MoDOT’s state maintenance engineer and chief safety and operations officer. “Some potholes have to be repaired multiple times because of additional rain. The temporary repairs are not holding. We ask motorists to please be patient with us as the repairs are being done.”

She noted that her agency’s repair crews address the deepest potholes first and that until roadway temperatures rise and remain above freezing, repairs are made using a cold asphalt mix. She added that MoDOT spends approximately $15 million a year on pothole patching operations for the 34,000 miles of road it maintains.

“However, this is a short-term repair,” she stressed. “The long-term fix, a hot asphalt mix, isn’t effective until temperatures are warm for a prolonged period of time.”

The Ohio Department of Transportation noted in February that it had already used 2,574 tons of asphalt to repair potholes; up from 1,892 tons at the same point in 2018.

“Our crews have spent more than 39,000 hours patching potholes this winter,” said ODOT Director Jack Marchbanks in February 1 statement.

He added that potholes are a “common nuisance,” particularly when the freeze/thaw cycle weakens the pavement. This happens when water seeps into cracks in the pavement, then expands as it freezes. When temperatures warm up, and the ice melts, the pavement contracts, allowing even more moisture in to freeze and thaw.

“Add traffic on top and the pavement will eventually fail, creating a pothole,” Marchbanks said. “Roadways with a high volume of traffic are particularly prone to pothole formation.”

The Maryland Department of Transportation’s State Highway Administration has also stepped up its pothole repair work, noting in a March 7 statement that with “saturated grounds” from record-setting precipitation from 2018 into 2019, and the freeze/thaw cycle that is occurring during this transitional time of the year, “potholes are popping up everywhere.”

 

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Midwestern state DOTs contending with major flood damage

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Flooding in Nebraska earlier this month closed as much as 1,500 miles of roadway at one time, with many roads and bridges wiped out, (Courtesy: U.S. Army Corps of Engineers, Capt. Ryan Hignight)

A “bomb cyclone” that struck the Midwest earlier this month, causing major flooding across Nebraska and parts of Iowa and Missouri, is responsible for more than $1 billion in property losses, as well as damage to highways, roads and bridges, according to reports from those states.

The Nebraska Department of Transportation stated that more than 1,500 miles of roads were closed at the height of the flooding on March 18, with 15 major highway bridges completely washed out or severely damaged as a result of the high waters.

The Nebraska Emergency Management Agency (NEMA) reported that as of March 20 more than 80 percent was under emergency declaration orders, including 77 counties, four tribal nations and five special government areas such as unincorporated townships.

“This past week will forever be remembered for the historic, devastating flooding our state experienced,” Nebraska Gov. Pete Ricketts said in a March 19 statement. “In scope of reach, we believe it is the most widespread natural disaster in our state’s history.”

The flooding, caused by heavy rains occurring simultaneously with melting snow, was exacerbated by chunks of ice swept along by the waters that damaged buildings and infrastructure, NEMA noted.

Nebraska National Guard helicopter crews resorted to dropping hay to cattle stranded by the high waters to ensure they didn’t starve.

The Midwest flooding also triggered an emergency declaration by the Federal Railroad Administration on March 19.

“The large amounts of snow and ice resulting from the region’s recent winter weather have melted and swelled rivers, creeks and other inland bodies of water throughout the region,” the agency said in its statement. “Historic flooding throughout the region [witnessed] rivers rising to historic levels in over 40 locations, causing power outages and breached dams and levees.”

The Iowa Department of Transportation closed sections of Interstate 29 and established detours on March 15 in cooperation with the Missouri Department of Transportation and other public agencies, and placed restrictions on parts of Interstate 680, as well, due to flood damage.

Missouri DOT also issued a reminder to motorists on March 20 not to drive around road closure signs as “flooded roadways can be more dangerous than they appear because the road may have washed away or collapsed under the water. In addition, the water may be deeper than it appears and can hide hazards such as sharp objects, electrical wires or chemicals.”

Several state DOTs have been dealing with the impact of winter-related flooding and landslides this year.

On March 20, Ohio Gov. Mike DeWine declared a state of emergency in 37 counties that suffered serious highway damage following severe weather that began back in February.

“Many of these roads are in dangerous condition, impacting the safety of Ohio’s drivers,” the governor said in a statement. “By declaring a state of emergency, Ohio can now access federal funding to help with the unplanned costs to repair the highways damaged by heavy rain and flooding.”

The emergency proclamation will allow the Ohio DOT and local governments to access federal emergency relief funds.

For example, the Federal Highway Administration provided $10 million Emergency Repair, or ER, funding to the Tennessee DOT March 15 to cope with roadway damage caused by “historical rainfall” in 72 counties in February. The Ohio DOT received $4.5 million in ER money from the agency the same day to help repair State Route 376 after a landslide caused by heavy rains forced it to close in late February.

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