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Week of December 26, 2011
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The Federal Motor Carrier Safety Administration has, at last, revealed the Final Rule for the new
Almost a year to the date that they first published the Notice of Proposed Rulemaking (NPRM) concerning the newest version of the Hours of Service regulations, the Federal Motor Carrier Safety Administration (FMCSA) has revealed the Final Rule.
The New Rules
Under the Final Rule, these will be the new regulations:
- 11 Hours Of Driving Time
In the NPRM, FMCSA had indicated that they wanted to restrict this to 10 hours but conceded to carrier demands that the 11 hours of Driving Time remain on the books.
- 14 Hours Of On Duty Time
FMCSA left in the Final Rule, the allowance for 14 hours of On Duty Time: all the time a driver begins to work or is required to be ready to work until the driver is relieved from work and all responsibility for performing work. It includes driving time, inspection time, loading and unloading time, etc.
- Drivers Must Take A 30-Minute Break Within An 8-Hour Driving Window.
In a nod towards practicality, FMCSA has left in flexibility as to when drivers take the break, but they can’t drive for more than 8 hours without taking a 30-min break.
- 34-Hour Restart Rule Limited To Once A Week
The rules still allow you to ‘reset’ your hours of service by taking a 34 hour break, however, you can only do this once every 168 hours — 7 days.
- 34-Hour Restart Period Must Include Two Periods Of Off Duty Time Between 1 AM And 5 AM.
This was a concession to both carriers and safety advocates; the safety advocates want drivers to have two nights sleep but FMCSA has reduced the amount from the proposed Midnight to 6 AM.
The Final Rule has come after a year of commenting, wrangling and lawsuits. All of this turmoil has contributed to a heavily altered version of the 2010 proposal appearing in the 2011 Final Rule. Given the back-and-forth that surrounded the proposal, this is not entirely surprising.
As we commented on the Transportation Ticker blog earlier in the week, the heavy editing is also not surprising given that FMCSA was being pulled by two separate groups (Carriers vs. Safety Advocates), the rules are unlikely to please everybody. On the other hand, the Final Rule does include concessions to everybody, which may or may not help with the chances of this Final Rule being implemented (compromise being the only guaranteed way to upset everyone).
The implemenation of this Final Rule is a little unusual. FMCSA have revealed the Final Rule and posted it on their website. However, as of publication they have not published it in the Federal
In the Final Rule, the implementation date is given as 60 Days after the publication in the Federal Register. Don’t worry just yet; the implementation gives 18 months for the rules to come online meaning that if the Final Rule is published soon, we should see the rules in place in mid-2013.
We may never see that implementation date. Already some of the big industry associations are gearing up to fight the Final Rule in court. The American Trucking Association is being particularly bellicose, releasing a special edition of Transport Topics which includes both the threat of lawsuits and a long history of successful court action against hours-of-service rules. In summation; ‘it ain’t over yet folks!’
Editor: Roxanne Swidrak, Vice President, Operations • 1-800-253-5506 • www.FoleyServices.com • Vol. 111, No. 718 • © Foley Carrier Services, LLC. 2011
The ports of Los Angeles and Long Beach on Jan. 1 will officially complete an effort to ban all trucks with engine models older than 2007, characterized by local officials as the strictest clean air standard of any major port in the world.
By the new year, a final group of 1,400 older trucks will be replaced with newer models, according to officials at the ports.
The Clean Truck Program was enacted in 2008 to clean the notoriously smoggy air around the two ports, which together handle close to 40 percent of the nation's shipping imports.
The program is part of the larger 2006 San Pedro Bay Clean Air Action Plan, which includes requiring ships to use plug-in electricity when docked at the ports, rather than idling their engines.
The path to completion of the Clean Truck Program was not altogether smooth. A federal appeals court in September threw out a part of the Clean Truck Program that banned independent big-rig drivers, instead requiring them to work for a company. The trucking industry said the requirement would have regulated motor carriers' rates and routes, rather than competition.
"The Port of Los Angeles, along with our industry partners, has made the business of moving cargo cleaner," Port Executive Director Geraldine Knatz said. "The results speak for themselves, and we couldn't be more proud of reaching this milestone."
By the start of the new year, all 11,772 drayage trucks -- the ones that move cargo from ships... Continue reading...
By Mark B. Solomon
The hand-wringing by transportation trade groups that greeted the federal government's new rules governing commercial truck driver operations is giving way to the notion, at least in some quarters, that the policy may not be the onerous regulatory hammer initially feared to be.
On Dec. 22, the Federal Motor Carrier Safety Administration (FMCSA) issued its long-awaited final rule governing drivers' "hours of service" (HOS). The rule maintains a limit of 11 hours of continuous time a driver can be behind the wheel. It also keeps the 14-hour ceiling on the time drivers have to complete all on-duty work-related activities before being required to stop.
The rule cuts to 70 from 82 the maximum driver workweek and requires that drivers take a minimum 30-minute break during an eight-hour work period.
But the most controversial language requires that drivers working the maximum number of weekly hours take at least two consecutive rest periods—between 1 a.m. and 5 a.m.—during a "restart" period lasting 34 straight hours. Once the 34-hour cycle is over, drivers may effectively restart the clock on their seven-day workweeks, according to the rules.
The rule had barely been announced when it was quickly torn to shreds. The American Trucking Associations (ATA), which represents the nation's largest trucking companies, said the rule could compromise public safety by forcing trucks off the road during off-peak times for motor vehicle traffic and onto the highways to join millions of commuters on their way to work.
ATA also argues that the timing of the mandatory rest periods will keep drivers off the roads longer than 34 hours. The group said that requiring drivers to take two consecutive overnight periods of rest within the 34-hour cycle would have the effect of extending the restart period to closer to 45 or 46 hours.
Trade groups representing the nation's retailers contend that the rest periods will disrupt the productivity of retail supply chains that have been calibrated to handle cargo transported between midnight and dawn when goods can get to their destinations in a timely fashion over less-congested highways.
"Supply chain optimization is the bread and butter of America's most successful retailers. Their ability to move goods efficiently has changed the retail landscape and benefited consumers by reducing prices and increasing product assortments. The new hours-of-service rule will upend the advances in efficiency made over the past decade," said Kelly Kolb, vice president for government relations for the Retail Industry Leaders Association (RILA), in a statement.
"A pretty good rule"
But not everyone is perturbed. Don Osterberg, senior vice president of safety and security at Green Bay, Wis.-based truckload and logistics giant Schneider National Inc., said that "it's a pretty good rule. There are people who won't like the restart changes, but on balance, it's a rule we can live with."
Osterberg had been more concerned with language in the original December 2010 proposal that would have required drivers to complete all on-duty work-related activities within 13 hours instead of the current 14 hours. In remarks made at the Council of Supply Chain Management Professionals' 2011 Annual Global Conference in October, Osterberg said the proposed reduction would have the effect of reducing the number of continuous hours a driver can be behind the wheel—even if the government didn't change the driving limit—because most drivers could not complete a continuous 11-hour driving shift under a more compressed overall work schedule. The final rule maintains the 14-hour workday, thus allaying Osterberg's concerns.
Ben Cubitt, senior vice president, consulting and engineering for Dallas-based third-party logistics service provider Transplace, called the rule the "best possible outcome" because it keeps the 11-hour continuous drive times within the 14-hour workday. The other changes "will have only minor impact, [and it] does not appear to be major hit on capacity," Cubitt said.
The National Retail Federation (NRF), while critical of the mandatory rest periods and their potential impact on safety, applauded the FMCSA for keeping the 11-hour continuous drive times. "We're pleased that regulators have seen the wisdom of keeping the current 11-hour limit, but longer overnight breaks create the potential for more big trucks to be mixing with passenger cars during congested daylight hours," said David French, NRF's senior vice president for government relations, in a statement.
Court challenge mulled
The rule is set to take effect on July 1, 2013, giving the supply chain 18 months to adjust. In the interim, industry groups may go to court to try to delay or override the rules—a tactic tried several times since the last version of hours-of-service regulations took effect in 2004... Continue reading...
Jeske celebrated his 50th birthday this past July by participating in Wisconsin's Tough Mudder competition at Devils Head Resort in Merrimac, Wis. (Tough Mudder is regarded as the premier company in the obstacle course industry, with its courses designed by British Special Forces.) He did well enough to qualify for the Super Bowl of Tough Mudders, the first-ever World's Toughest Mudder competition held Dec. 17-18 at a motocross track-turned-obstacle course in Englishtown, N.J.
Nearly 1,000 men and women (mostly in their 20s and 30s) started the 24-hour, non-stop race. Of them, only 10 were still on the course when the 24-hour mark arrived. Jeske was among the 520 that finished one complete lap with a time of 5 hours, 41 minutes and a rank of #485. The winner, Junyong Pak of Beverly, Mass., completed eight laps and received the $10,000 prize.
The course consisted of 10 miles and 39 military-style obstacles that also included barbed wire, nets and endless amounts of mud. "The only thing I wasn't prepared for was the cold," says Jeske, shuddering as he remembers the chill of the 35-40 degree temps and 20-25 mph winds.
Jeske, a former truck driver who has worked in driver training at Schneider National since 1989, decided to embark on a healthier lifestyle five years ago. He lost 52 pounds and now regularly participates in running events. "Each day, I'm determined to do more than I did yesterday," he says. He cites his wife Julie, five children and eight grandchildren as a big source for his motivation to keep fit.
Jeske notes that he chooses the races he participates in based on the charities the event supports; one reason he wanted to participate in Tough Mudder is because it supports the Wounded Warrior Project, whose mission is to honor and empower our nation's Wounded Warriors. Schneider National is also a strong supporter of the program and even gave Jeske a lift to New Jersey in the company's military tribute truck, the Ride of Pride.
"Don is a true inspiration and role model to all of the folks who work alongside him at Schneider National," says Mike Hinz, vice president of driver recruiting. "He knows the challenges of living life on the road, and this unique perspective allows him to help drivers find common-sense ways to get and stay healthy. Driver health and fitness is something we are Schneider are constantly keeping in our headlights, making us even prouder to have a guy like Don on our team!"
To learn more about World's Toughest Mudder, please visit: toughmudder.com/events/worlds-toughest-mudder-series-finals
ATA today filed a Petition with the United States Supreme Court asking it to review the Ninth Circuit’s holding in ATA’s challenge to the Port of Los Angeles concession program requirements. Although ATA prevailed on the primary issue in the case, securing a ruling striking down the Port’s independent contractor ban, other components of the program were upheld.
The Petition asks the Court to review and ultimately reverse the Circuit Court’s finding that the market participant exception to federal preemption protected concession program requirements such as an off-street parking mandate, a placarding rule, and a financial capability provision. The Petition also seeks review of the lower court’s determination that the Port has authority to decide which motor carriers may operate in interstate commerce at the Port. The Petition highlights the divergence of the Ninth Circuit opinion from the legal interpretations of other Circuits regarding the scope of the market participant exception in support of the need for Supreme Court review.
Today, Dec. 22, FMCSA posted its new HOS rule on its website along with other materials, including a Q&A document. The good news is that FMCSA is retaining the 11 hour driving time limit. However, the agency imposed restrictions on the use of the 34 hour restart – to include two consecutive nighttime periods (1 – 5 a.m.), and restricted consecutive hours of driving by including a required rest break. FMCSA has provided a lengthy transition period until July 1, 2013 for most but not all of its changes. ATA has already prepared a one-page summary of the rule, along with a chart comparing the changes to the current rules. These documents can be found here, here and here.
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