Counting the hours

New York State Supreme Court Justice Paul Feinman denied a temporary restraining order sought by a group of trucking and construction companies who argued that weight restrictions on New York City’s Bronx-Long Island bridges were an economic hardship. Previously, trucks weighing more than 80,000 pounds were able to obtain permits to use the bridges, but the Triborough Bridge and Tunnel Authority imposed more stringent restrictions in the wake of the Minneapolis bridge collapse early last month.

U.S. Sen. Claire McCaskill (D-Mo.) proposed legislation (S. 1997) that would require the installation of automatic temperature compensating equipment in new and upgraded retail fuel pumps within six years. The Future Accountability in Retail Fuel Act would provide assistance for retailers to comply – $1,000 per pump, but no more than $10,000 per retailer – and impose penalties on those that don’t comply.

A federal judge in Fort Lauderdale, Fla., sentenced three employees of Fort Lauderdale-based Genesis Petroleum to five years’ probation as a result of their guilty pleas to charges of violating federal hazmat transportation regulations. The drivers submitted false delivery receipts stating they had delivered 11,000 gallons of fuel to customers, but the fuel was diverted to illegal tanks.

The owners of Queens, N.Y.-based Mystic Tank Lines and Brooklyn, N.Y.-based T&S Trucking were arrested in late July and charged with stealing and reselling tens of millions of gallons of heating oil. A federal indictment alleges that the scheme, which involved skimming oil from customers charged for full loads, had begun in 1990.

Q What is the effect of the recent decision by the U.S. Court of Appeals for the District of Columbia Circuit on the hours-of-service rules?

A By order and decision entered July 24, the court found the most meritorious aspects of the Federal Motor Carrier Safety Administration’s revised hours-of-service rules to be “arbitrary and capricious.” Although the decision rests on procedural issues, FMCSA faces a big challenge to preserve the current regulations. I am sure there will be an effort to appeal and/or seek congressional action, but to me success seems unlikely.

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What the court did was to strike down the 34-hour weekly restart and extension of driving time from 10 to 11 hours. Remember that it was these two concessions in the revised rules that gave some relief to the harsh inflexibility of the initial rule.

As a result of the decision, the industry will be left with the toughest parts of the old and current rules: (1) no ability to log “off duty”; (2) 10 hours of driving in any 14-hour tour of duty; (3) 10 consecutive hours off duty with sleeper berth of limited use (one of the two sleeper-berth periods must be eight hours in duration); and (4) the driver will not be able to reset his weekly time clock with the 34-hour restart.

Productivity will be adversely affected by this decision, which becomes effective in 52 days after entered unless stayed. The range of a solo driver will be reduced by about 15 percent per day, and next-day service assumptions in existing shipper contracts will have to be re-evaluated. Also, the 34-hour restart means that long-haul drivers who exceed their cumulative hours get to spend a whole weekend away from their family.

How, you ask, did the industry get in this mess, and what is the root cause for the court’s decision? The answer is simple: The initial hours-of-service decision was based upon junk science and findings about circadian rhythms that ignored the value of a nap and attempted to legislate human behavior in the name of highway safety.

When FMCSA finally recognized that the initial rule required amelioration, it offered the restart and the one-hour extended drive time in the revised rules without repudiating the junk science or laying a new factual predicate to support the relaxation of the original rule. Public Citizen, the self-appointed protector of highway safety and driver health, opposed the revised rule because it argued FMCSA did not justify relaxing its initial rule based upon the agency’s own finding as a fact.

The result of the court’s decision is frustrating to anyone in the industry who has made even a cursory review of sleep science. We should be measuring fatigue, not straitjacketing drivers’ productivity.

With the D.C. Circuit Court’s decision, we have lost that important battle. Clearly the industry will respond with efforts to delay the outcome and revisit the decision. (The American Trucking Associations is filing a petition.) Like the weather, the forecast could change, but the prediction is gloomy. It will be at least Sept. 14 before any final action is taken.
– Henry Seaton is a transportation lawyer who represents carriers.

CRST, Werner settle driver hiring dispute
CRST Van Expedited announced that it had settled its litigation against Werner Enterprises concerning Werner’s hiring of drivers who had signed employment contracts with CRST. In 2004, CRST sued Werner in federal court in Los Angeles, alleging that Werner’s actions gave rise to various claims, including intentional interference with contract and violations
of California’s Unfair Competition Law. The U.S. Court of Appeals for the Ninth Circuit delivered a key victory for CRST in March when it rejected Werner’s contention that CRST’s driver contracts merely created an “at-will” employment relationship (See “Law,” CCJ,
May 2007).

According to CRST, Werner has agreed that it will make inquiries of CRST to determine the contract status of CRST drivers and has agreed that it will not hire drivers who remain under contract to CRST. The settlement is effective until Aug. 1, 2015.

The Werner litigation was the second case to be resolved relating to CRST’s employment contracts, under which drivers receive training benefits in exchange for a commitment to stay with CRST for a specified period of time. In February 2006, a federal court in Oklahoma ruled against J.B. Hunt in similar litigation. In October last year, CRST announced that it had reached a “mutually satisfactory settlement” with J.B. Hunt that did not change the Oklahoma federal court’s ruling.