In an earlier post on my Trucking and Transportation Blog, I mentioned that the Port of Long Beach has adopted the Clean Air Action Plan, or CAAP, for drayage trucks operating in its facilities. This program requires trucks to conform to stricter emissions controls on a phased-in basis.
As part of the implementation of the CAAP, the Long Beach City Attorney's office has amended ordinance number HD-1357 to include the new CAAP requirements. The Port of Long Beach adopted the amendment acting in its capacity as trustee of the land and tidal water that makes up the Port, and its duty to manage the land and water and to mitigate the environmental impact of Port activities on the water, land and surrounding air. These duties and powers are conferred on the Port under the California Constitution Article X, California Public Resources Code section 6306, the Long Beach City Charter, and the California Coastal Act. What this means to concessionaires working as drayage truck drivers at the Port is that they will have to comply with the new emissions requirements under the following schedule:
* By October 1, 2008, the Port will not allow entry to any drayage trucks older than model year 1989;
* By January 1, 2010, the port will not allow entry to any drayage truck that either: (a) is a model year engine 1994 to 2003 that is retrofitted to a level 3 VDECS which achieves at least an 85% reduction in particulate matter emissions and at least a 25% reduction in NOx emissions;
* By January 1, 2012, the port will not allow entry to any truck that does not meet or exceed 2007 model year State and Federal heavy-duty, diesel-fueled, on-road emission standards.
The Port of Oakland is also working to implement its Maritime Air Quality Improvement Program. This program is still in the planning phase, but there is a fair amount of detail about the progress of the program on their web site.
The State of California is moving forward on addressing air quality and other environmental issues. This trend by the ports is not going to go away, and its impact on trucking and transportation will be profound.
Wednesday, March 12, 2008
Monday, March 10, 2008
Mexican Truck Program Brouhaha In Washington
Chaos in the halls of Congress, where the normally collegial body lost its decorum in a hearing with Transportation Secretary Mary Peters.
Wait. I'm sorry, I was thinking of something else. There was more of the same at a recent hearing in the Capitol when Byron Dorgan (D. ND) grilled Secretary Peters. As reported in Transportation Topics, Dorgan drafted a section of the DOT budget bill that cut off funding for a program that would allow up to 100 Mexican trucking companies to operate in the US. A similar number of US carriers could also operate in Mexico under the program. Dorgan has opposed the program.
Secretary Peters argued that the provision in the bill did not cutoff funding for the program, but simply denied funding for any future cross-border trucking program. Dorgan said that this was clearly not the intent of the bill, and accused the DOT lawyers of playing games with their interpretation of the funding (or rather de-funding) provision.
Dorgan is a "D," and Peters is a Bush appointee, so you get a sense of where the two are coming from. Check out the article for Dorgan's dig at the Bush Administration's position on interrogation of enemy combatants (no, it has nothing to do with trucking, but it is entertaining nonetheless).
The cross-border trucking program has all sorts of implications for the US trucking industry, including the effect of competition from low-cost carriers from Mexico, potential safety issues, and driver qualifications.
On an administrative note, I am in the process of moving this blog to my firm website www.ddllaw.com. My goal is to have a general blog where I discuss all the topics that touch upon my practice. Check in every now and then to see the progress!
Thursday, February 28, 2008
Big-Time Carriers Urge FMCSA to Keep HOS Rules
Transportation Topics, published by the American Trucking Associations, has reported that several major fleets, including UPS Freight (fka Overnight), Con-Way Truckload, and Schneider National, have urged the FMCSA to retain the 11 hour driving and 34-hour restart portions of the revised Hours of Service rules, which were originally put into effect in 2005. The Carriers presented statistics showing that their accident and injury rates have declined since the HOS rules were revised, presumably implying that the revised rules have not had a negative impact on safety.
Of course, the FMCSA is the agency that developed the new rules and is responsible for implementing them, so there is somewhat of a preaching-to-the-converted aspect to the carriers' plea.
Public comment on the revised rules has been extended until March 17. Groups including Public Citizen, the Teamsters, and Advocates for Highway and Auto Safety oppose the rule, which effectively increases the workday for drivers (to 11 hours) and decreases the minimum amount of time a driver must stop driving before restarting the work week (34 hours). These groups believe that this would increase driver fatigue and increase accident rates. The statistics cited by UPS, Con-Way, Schneider National, et al., dispute this.
Of course, the FMCSA is the agency that developed the new rules and is responsible for implementing them, so there is somewhat of a preaching-to-the-converted aspect to the carriers' plea.
Public comment on the revised rules has been extended until March 17. Groups including Public Citizen, the Teamsters, and Advocates for Highway and Auto Safety oppose the rule, which effectively increases the workday for drivers (to 11 hours) and decreases the minimum amount of time a driver must stop driving before restarting the work week (34 hours). These groups believe that this would increase driver fatigue and increase accident rates. The statistics cited by UPS, Con-Way, Schneider National, et al., dispute this.
Tuesday, February 26, 2008
Port of Long Beach Approves Clean Trucks Program
On February 19, 2008, the Long Beach Board of Harbor Commissioners approved a Clean Trucks Program for the Port of Long Beach. Details are posted on their web site.
The Board also approved $2 billion subsidy program to finance the purchase or lease of "clean trucks" according to their web site. The Ports of Los Angeles and Oakland are also implementing clean truck programs aimed at reducing emissions from drayage trucks.
I will be reviewing the implementation documents from the Port of Long Beach program, and will provide an analysis in my next post.
The Board also approved $2 billion subsidy program to finance the purchase or lease of "clean trucks" according to their web site. The Ports of Los Angeles and Oakland are also implementing clean truck programs aimed at reducing emissions from drayage trucks.
I will be reviewing the implementation documents from the Port of Long Beach program, and will provide an analysis in my next post.
Tuesday, February 12, 2008
Public -Private Highway Partnerships and Trucking
The United States Government Accountability Office (GAO) released a report that was on balance critical of public-private highway partnerships, as reported on the Truckline website. Truckline is a website operated by the American Trucking Associations.
The report, which is 96 pages long, was prepared by the GAO at the request of Congress in response to the increasing pressure on Federal and State governments to partner with private entities to fund highway construction and maintenance.
The report concluded that, while their are advantages to public-private partnerships, such as the ability to build and maintain roads without additional public funding, there are serious disadvantages as well. These disadvantages run the risk of working against the public interest, including the interests of the trucking industry.
The GAO points out that there is no "free" money in public-private partnerships, and that the potential problems with these partnerships include tolls that would increase at a rate higher then they would on a public road (which may have no toll at all); that the profit motive of a private entity that would build and maintain a highway would result in tolls that exceed the costs of the facility; and the concern that a private entity that controlled too many highways in a given area could exert "market power" (in other words, could charge whatever they wanted because the motoring public would have no real alternative) in setting tolls. The GAO recommended that the Secretary of Transportation "develop objective criteria for identifying national public interests in highway public-private partnerships." I think that means that the GAO wants the government to play its roll in protecting the public interest on our Nation's highways.
We are living in a time of decreased faith in government. It is tempting to conclude that talk of "public private partnerships," whether they be in the military, public safety, highway construction, or education, is more about benefiting private business than the public at large. This GAO report calls out some of the potential risks and pitfalls of such an arrangement. Our highways are for public benefit, and that benefit should be protected by the government. Let us hope that government's faith in the public has not decreased as well.
The report, which is 96 pages long, was prepared by the GAO at the request of Congress in response to the increasing pressure on Federal and State governments to partner with private entities to fund highway construction and maintenance.
The report concluded that, while their are advantages to public-private partnerships, such as the ability to build and maintain roads without additional public funding, there are serious disadvantages as well. These disadvantages run the risk of working against the public interest, including the interests of the trucking industry.
The GAO points out that there is no "free" money in public-private partnerships, and that the potential problems with these partnerships include tolls that would increase at a rate higher then they would on a public road (which may have no toll at all); that the profit motive of a private entity that would build and maintain a highway would result in tolls that exceed the costs of the facility; and the concern that a private entity that controlled too many highways in a given area could exert "market power" (in other words, could charge whatever they wanted because the motoring public would have no real alternative) in setting tolls. The GAO recommended that the Secretary of Transportation "develop objective criteria for identifying national public interests in highway public-private partnerships." I think that means that the GAO wants the government to play its roll in protecting the public interest on our Nation's highways.
We are living in a time of decreased faith in government. It is tempting to conclude that talk of "public private partnerships," whether they be in the military, public safety, highway construction, or education, is more about benefiting private business than the public at large. This GAO report calls out some of the potential risks and pitfalls of such an arrangement. Our highways are for public benefit, and that benefit should be protected by the government. Let us hope that government's faith in the public has not decreased as well.
Thursday, February 7, 2008
HOS Ruling, Part 2
Earlier I wrote that I was looking into the D.C. Circuit Court of Appeals rejection of Public Citizen, et al's challenge to the 34 hour restart and 11 hour day portions of the HOS rules. Try as I might, I couldn't get a copy of the court's ruling from their web site. Most news accounts said little more than what I've already said, but J.J. Keller has a little blurb on the ruling.
Tuesday, February 5, 2008
What If You're Turned Down for your TWIC
The Transportation Security Agency (TSA) is rolling out its Transportation Worker Identification Credential (or TWIC) program at ports throughout the United States. This program was implemented with the intent of increasing security at the ports. This is presumably accomplished through a background check designed to weed out potential security threats.
Those who need a TWIC include merchant mariners, port facility employees, longshoremen, truck drivers, and others who need unescorted access to a MTSA regulated maritime facility or vessel. The program is being rolled out piecemeal, and should be completed by September 2008. In California, TWIC was deployed at the Port of Oakland in November 2007 and Los Angeles/Long Beach in December 2007. The program is set to roll out in San Diego and Richmond, California in the first quarter of 2008, in Port Hueneme, San Francisco, and Sacramento in the second quarter of 2008, and in Eureka and Stockton in the third quarter of 2008.
You don't have to be a U.S. citizen to apply for a TWIC. Once you file the application, TSA reviews the application and performs a background check including review of your criminal record, your immigration status, and terrorist watch list. They then issue an Initial Determination of Threat Assessment (IDTA) where your application is either approved or denied. If it is approved, your credential will be mailed to you. If it is denied, then you can either apply for a waiver of the assessment, or appeal the ruling.
If you think the IDTA was incorrect, you can appeal it. You have 60 days from the date of the IDTA to request an appeal. You can also request that TSA provide you with the non-classified materials that they based the IDTA on. If you do this, then you will have an additional 60 days from the date TSA provides you with the documents. This basically doubles the amount of time you have to request an appeal, since you can send the request for documentation up to 60 days after the date of the IDTA, and then send the request for an appeal within 60 days from TSA's response to your request for materials.
TSA then has another 60 days to notify you of their decision on the appeal.
If you think that you should be entitled to a TWIC because you no longer pose a security threat (e.g., because the reasons the TSA denied your application occurred more than 7 years ago) you can request a waiver. You can request a waiver for any disqualifying offense except these:
If you are denied for a TWIC, don't assume that it is the end of the road. This process is brand new, and mistakes get made.
You don't need an attorney to appeal or request a waiver, but you may not need to necessarily go down that path. You may be able to get something cleared up with a simple phone call. I have helped truck drivers who have been turned down for a TWIC by calling the TSA and explaining the situation. The most important thing to do is address the issue as soon as possible. If you do not request a waiver or appeal within 60 of the IDTA, then the IDTA becomes final, and you cannot get a TWIC card.
If you have been turned down for a TWIC and are not sure what to do next, call me at (510) 500-4013 or e-mail me.
Those who need a TWIC include merchant mariners, port facility employees, longshoremen, truck drivers, and others who need unescorted access to a MTSA regulated maritime facility or vessel. The program is being rolled out piecemeal, and should be completed by September 2008. In California, TWIC was deployed at the Port of Oakland in November 2007 and Los Angeles/Long Beach in December 2007. The program is set to roll out in San Diego and Richmond, California in the first quarter of 2008, in Port Hueneme, San Francisco, and Sacramento in the second quarter of 2008, and in Eureka and Stockton in the third quarter of 2008.
You don't have to be a U.S. citizen to apply for a TWIC. Once you file the application, TSA reviews the application and performs a background check including review of your criminal record, your immigration status, and terrorist watch list. They then issue an Initial Determination of Threat Assessment (IDTA) where your application is either approved or denied. If it is approved, your credential will be mailed to you. If it is denied, then you can either apply for a waiver of the assessment, or appeal the ruling.
If you think the IDTA was incorrect, you can appeal it. You have 60 days from the date of the IDTA to request an appeal. You can also request that TSA provide you with the non-classified materials that they based the IDTA on. If you do this, then you will have an additional 60 days from the date TSA provides you with the documents. This basically doubles the amount of time you have to request an appeal, since you can send the request for documentation up to 60 days after the date of the IDTA, and then send the request for an appeal within 60 days from TSA's response to your request for materials.
TSA then has another 60 days to notify you of their decision on the appeal.
If you think that you should be entitled to a TWIC because you no longer pose a security threat (e.g., because the reasons the TSA denied your application occurred more than 7 years ago) you can request a waiver. You can request a waiver for any disqualifying offense except these:
- Espionage
- Sedition
- Treason
- A federal crime of Terrorism, or comparable state law
If you are denied for a TWIC, don't assume that it is the end of the road. This process is brand new, and mistakes get made.
You don't need an attorney to appeal or request a waiver, but you may not need to necessarily go down that path. You may be able to get something cleared up with a simple phone call. I have helped truck drivers who have been turned down for a TWIC by calling the TSA and explaining the situation. The most important thing to do is address the issue as soon as possible. If you do not request a waiver or appeal within 60 of the IDTA, then the IDTA becomes final, and you cannot get a TWIC card.
If you have been turned down for a TWIC and are not sure what to do next, call me at (510) 500-4013 or e-mail me.
Thursday, January 31, 2008
Federal Appeals Court Rejects HOS Challenge
The U.S. District Court of Appeals for the District of Columbia Circuit has rejected a challenge to the FMCSA's Interim Final Rule on Hours of Service. The rule was printed in the Federal Register Vol. 72, No. 241, starting at p. 71247. For those of you who don't have that copy of the Federal Register laying around, you can look up the IFR at the FMCSA's web site.
The challenge was made by a coalition of forces including Public Citizen, and the Teamsters. I will be reviewing the court's ruling to determine why the court rejected the challenge.
The new HOS rules, which were adopted in 2005, thrown out by the court last year, and then re-adopted and now pending review, increase the consecutive hours a driver can drive to 11, and lower the restart (the minimum hours a driver can rest before starting the clock again) to 34. Public comments are open until February 15, 2008.
I will be reviewing the court's order rejecting the challenge, and will report on it in a future post.
The challenge was made by a coalition of forces including Public Citizen, and the Teamsters. I will be reviewing the court's ruling to determine why the court rejected the challenge.
The new HOS rules, which were adopted in 2005, thrown out by the court last year, and then re-adopted and now pending review, increase the consecutive hours a driver can drive to 11, and lower the restart (the minimum hours a driver can rest before starting the clock again) to 34. Public comments are open until February 15, 2008.
I will be reviewing the court's order rejecting the challenge, and will report on it in a future post.
Monday, January 28, 2008
Drivers and Overtime, Meal/Rest Breaks
I get a lot of questions about employment law issues. One of the most common is related to whether a driver is entitled or overtime and whether they have to take breaks.
California law regarding who is exempt (meaning they don't get paid overtime) and non-exempt (meaning they do) has developed over a long period of time. The rules are set forth by the Industrial Welfare Commission. For drivers, the issues of overtime pay and entitlement to take time for meals and breaks are separate.
To be considered exempt from overtime pay, an employee must be:
Executive, meaning they are involved in management, have power to hire and fire, or regularly exercise independent discretion and judgment. Drivers don't generally fall into this category, although they arguably exercise independent discretion and judgment when they are driving.
Administrative this is someone who works in an office, exercises regular discretion and judgment, and is under general supervision. Except for the office part, this could be a driver too.
Professional, meaning doctors, lawyers, etc. Clearly not drivers.
Not an easy call. The argument could be made that drivers regularly use independent judgment and discretion when they drive, but that is only one part of these criteria. It looks very much like a driver is entitled to overtime.
So are drivers subject to overtime? Answer: no.
The IWC has issued an exception for drivers. The reasoning is that drivers' hours of service are regulated by federal and state laws. Since these laws regulate how much a driver can work over a given period of time. So, drivers whose hours are regulated by federal and state law are not eligible for overtime pay.
What About Meal Breaks?
The exemption does not extend to meal breaks. Employers are required to permit their drivers to take their meal breaks (at least 30 minutes after five hours, unless the shift is six hours, another 30 minutes after 10 hours, unless the shift is 12 hours) and breaks (10 minutes for every four hours worked).
Drivers are not required to log their meal and break periods. While this may seem to make things easier, it can create problems later if a driver ever claimed his or her employers never let him or her take meals or breaks, and the employer has no documentation to back it up.
The challenge is for the employer and driver to devise a system where they can ensure that the meals and breaks are taken and recorded. That's a post for another time.
California law regarding who is exempt (meaning they don't get paid overtime) and non-exempt (meaning they do) has developed over a long period of time. The rules are set forth by the Industrial Welfare Commission. For drivers, the issues of overtime pay and entitlement to take time for meals and breaks are separate.
To be considered exempt from overtime pay, an employee must be:
Executive, meaning they are involved in management, have power to hire and fire, or regularly exercise independent discretion and judgment. Drivers don't generally fall into this category, although they arguably exercise independent discretion and judgment when they are driving.
Administrative this is someone who works in an office, exercises regular discretion and judgment, and is under general supervision. Except for the office part, this could be a driver too.
Professional, meaning doctors, lawyers, etc. Clearly not drivers.
Not an easy call. The argument could be made that drivers regularly use independent judgment and discretion when they drive, but that is only one part of these criteria. It looks very much like a driver is entitled to overtime.
So are drivers subject to overtime? Answer: no.
The IWC has issued an exception for drivers. The reasoning is that drivers' hours of service are regulated by federal and state laws. Since these laws regulate how much a driver can work over a given period of time. So, drivers whose hours are regulated by federal and state law are not eligible for overtime pay.
What About Meal Breaks?
The exemption does not extend to meal breaks. Employers are required to permit their drivers to take their meal breaks (at least 30 minutes after five hours, unless the shift is six hours, another 30 minutes after 10 hours, unless the shift is 12 hours) and breaks (10 minutes for every four hours worked).
Drivers are not required to log their meal and break periods. While this may seem to make things easier, it can create problems later if a driver ever claimed his or her employers never let him or her take meals or breaks, and the employer has no documentation to back it up.
The challenge is for the employer and driver to devise a system where they can ensure that the meals and breaks are taken and recorded. That's a post for another time.
Hello and Welcome!
Welcome to my new blog about California Transportation and Trucking law! I have been practicing transportation law for about three years, and have been an attorney for over seven. In my experience in talking with truckers, trucking company owners, and others involved in the transportation industry, I get a lot of questions about issues as diverse as Hours of Service, Safety, worker's compensation, employment law, and more.
I've decided to start this blog as a way to discuss these issues, and to bring other issues to the attention of those transportation industry, and to comment on other legal trends and issues.
I welcome your input and comments. Please check back to this site regularly, as I intend to post every few days!
Thank you, and Welcome!
I've decided to start this blog as a way to discuss these issues, and to bring other issues to the attention of those transportation industry, and to comment on other legal trends and issues.
I welcome your input and comments. Please check back to this site regularly, as I intend to post every few days!
Thank you, and Welcome!
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