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Hazmat agency says California meal, rest break laws pre-empted by federal rules

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WASHINGTON — The Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued a ruling that says California’s meal and rest break requirements are pre-empted for all operators of motor vehicles transporting hazardous materials.

The ruling is the result of a petition submitted by the National Tank Truck Carriers Association (NTTC), which had applied to PHMSA for a determination as to whether the Federal Hazardous Material Transportation Law preempted California’s meal and rest break requirements, as applied to the transportation of hazardous materials.

California’s meal and rest break law is considered by many in the trucking industry as being inconsistent — and some consider in conflict — with federal regulations.

The trucking industry is currently asking Congress to pass legislation that would prohibit states from having their own meal and rest break laws, or for that matter, any commercial motor vehicle regulation deemed to be contradictory to federal regulations.

PHMSA granted the petition to “ensure public safety, maintain security and reduce delays.”

Under California law, an employer is required to provide employees a 30-minute meal break during a work period longer than five hours with some exceptions. Further, an employer is required to provide a second 30-minute meal break if an employee works more than 10 hours in a day and are required to provide 10-minute rest periods for every four hours worked by an employee.

The agency said it found that the California meal and rest break requirements create an unnecessary delay in the transportation of hazardous materials.

In addition, California’s rules create compliance incompatibilities with respect to operators carrying explosive materials because it is not possible to simultaneously comply with the off-duty requirement of the California rule and federal safety requirements, the agency said in a news release.

Finally, the PHMSA said the California meal and rest break rules are preempted for motor carriers with security plans requiring constant driver attendance for hazardous materials cargo.

NTTC Chairman John Whittington, vice president of government relations at Grammer Industries noted that carriers and drivers no longer have to choose between following the hazardous materials regulations (HMRs) to avoid the threat of hazmat releases in densely populated environments or complying with California’s meal and rest break requirements.

“Our carriers are very pleased that the professionals at PHMSA share our commitment to safety, particularly when it comes to transporting hazardous materials,” Whittington said. “We thank the organizations that stood with us, like NTTC member Cox Petroleum, the American Trucking Associations, the California Trucking Association, the American Pyrotechnics Association, the National Association of Chemical Distributors, the Western States Trucking Association, and the California Independent Oil Marketers Association.”

NTTC presents three main arguments for why it believed the meal and rest break requirements should be preempted, PHMSA said in a notice published Friday in the Federal Register.

First, NTTC contended that the California requirements “were not promulgated with an eye toward safe transportation of hazardous materials,” and thus create the potential for unnecessary delay when a driver must deviate from his or her route to comply with the requirements.

Next, NTTC argued that the meal and rest break requirements conflict with the attendance requirements that the HMR imposes in certain situations, because under certain circumstances, the HMR “implicate the driver ‘working’ under California law.” As such, NTTC argues that a carrier (employer) cannot comply with both the state and federal requirements.

Lastly, NTTC pointed out that many motor carriers include a “constant attendance of cargo” requirement in the written security plans required by the HMR. NTTC contended that the California meal and rest break requirements are inflexible and may require that the drivers make unnecessary stops or prohibit constant attendance by the driver.

California has 20 days to file a reconsideration of the ruling, and 60 days to seek judicial review.  NTTC encourages the state to recognize that PHMSA’s decision is consistent with federal law and accept it is the right way to promote safety. If California does appeal, the preemption decision will remain in force while the appeal is adjudicated.

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The Nation

Can you say oversized load!

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That is big!

 

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The Nation

Diesel prices all but stagnant nationwide, less than 2-cent shift anywhere

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The average price for a gallon of diesel nationwide fell by 0.7 cents for the week ending July 22, to currently stand at $3.044 per gallon, according to the U.S. Energy Information Administration (EIA).

The lack of movement in diesel prices continues a pattern that has been going on for the past month. On June 24, diesel was at 3.042, with changes of less than 1.5 cents every week in between.

Though tiny, the movement in diesel prices was nearly unanimous this past week, down in all but one region of the country.  That one exception was the Rocky Mountain region, where diesel rose 0.3 cents, to $2.978. Year-to-date, diesel prices are lower in every region, with the Rocky Mountain region again being the standout, having the greatest difference, 39.1 cents from this time last year.

California made it a clean sweep for lower diesel prices year-to-date with a drop of 1.3 cents this past week, to $3.939, still by far the highest in the country, but 0.4 cents below this time last year.

Along the rest of the West Coast, diesel dropped 1.1 cents to $3.198, bringing the overall West Coast average to $3.611 per gallon.

The average along the East Coast is currently $3.072, with prices highest in the Central Atlantic, where diesel is going for $3.259 after a 1.3-cent drop. Diesel is $3.122 in New England following a decrease of 0.9 cents over the past week, while in the Lower Atlantic region diesel slipped by 0.4 cents to stand at $2.937 per gallon.

That’s still slightly better than the Midwest, where diesel is going for $2.948 per gallon after a drop of 0.8 cents. Meanwhile, the Gulf Coast, the low-price leader in diesel, fell by the same 0.1 cent it gained the week before to stand at $2.804.

On Monday, increasing tensions between Iran and Western countries failed to produce a sharp reaction in the crude oil markets. Brent crude, the global benchmark, rose 98 cents, or 1.57%, to settle at $63.45 a barrel. U.S.-based West Texas Intermediate crude rose 59 cents, or 1.06%, to settle at $56.22 a barrel.

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

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The Nation

DOL opinion letter: Time in sleeper berth does not count as compensable time

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The Department of Labor says the time a truck driver spends in the sleeper berth is not compensable time. Pictured in the Peterbilt 579 UltraLoft sleeper berth. (Courtesy: PETERBILT MOTORS)

WASHINGTON — The U.S. Department of Labor said Monday said it had determined that time spent in the sleeper berth by professional truck drivers while otherwise relieved from duty does not count as compensable time.

The DOL issued the determination in a written opinion letter by the department’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter.

The American Trucking Associations lauded the opinion.

“ATA welcomes Monday’s opinion letter from DOL Wage and Hour Division Administrator Cheryl Stanton that concluded time spent by a commercial driver in the sleeper berth does not count as compensable hours under the federal Fair Labor Standards Act, unless the driver is actually performing work or on call,” said ATA President and CEO Chris Spear. “This opinion, which is consistent with decades-old DOL regulations, the weight of judicial authority, and the long understanding of the trucking industry, clears up confusion created by two recent court decisions that called the compensability of sleeper berth time into question.

Significantly, this opinion letter provides new guidance, the DOL said.

Under prior guidance, the DOL said WHD interpreted the relevant regulations to mean that while sleeping time may be excluded from hours worked where “adequate facilities” were furnished, only up to eight hours of sleeping time may be excluded in a trip 24 hours or longer, and no sleeping time may be excluded for trips under 24 hours.

“WHD has now concluded that this interpretation is unnecessarily burdensome for employers and instead adopts a straightforward reading of the plain language of the applicable regulation, under which the time drivers are relieved of all duties and permitted to sleep in a sleeper berth is presumptively non-working time that is not compensable,” the opinion letter said. “There may be circumstances, however, where a driver who retires to a sleeping berth is unable to use the time effectively for his or her own purposes. For example, a driver who is required to remain on call or do paperwork in the sleeping berth may be unable to effectively sleep or engage in personal activities; in such cases, the time is compensable hours worked.”

The ATA commended Acting Secretary Patrick Pizzella and Stanton for adopting a straightforward, plain-language reading of the law, rather than the burdensome alternative interpretation embraced by those outlier decisions.

“ATA also commends the department for making guidance like this available through opinion letters, which provide an opportunity for stakeholders to better understand their compliance obligations prospectively, rather than settling such matters only after the fact, through costly and wasteful litigation,” Spear said.

 

 

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