Archive for category: General News

CHP Issues Final Rule Mandating ELD’s

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On November 13th, the California Highway Patrol dropped their final rule mandating Electronic-on-Board (ELD) recorders for hours-of-service compliance for California only motor carriers. The effective date of the rule for effected motor carriers is January 1, 2024.

As soon as the final rule was published, the Association began to receive calls from members who were being spammed by ELD providers and being told there were no exemptions or exceptions to the mandate, and they had to install an ELD in their truck(s). To be nice, we’ll say any ELD company saying that to you is lying. We dealt with the same issue when the federal mandate went into effect five years ago.

As we reported in the Summer issue of WTN, many of our members will be unaffected by this mandate. If you operate under California’s short-haul exception (100 air miles/12 hour on-duty period), an ELD is not required.

If you exceed the short-haul limitations, you are required to complete a paper log (record-of-duty status or RODs) for that day. You are allowed to switch to paper RODs, but for no more than 8 days in any 30-day period without needing an ELD.

Other notable exceptions to the mandate are:

  • The driver is in a driveaway-towaway operation, as defined in Section 303 of the Vehicle Code, in which the vehicle being driven is part of the shipment being delivered
  • The vehicle being driven was manufactured before model year 2000, as reflected in the vehicle identification number (VIN) and as shown on the vehicle’s registration (this is mostly useful to owners of trucks that have a CARB low-use exemption)

If you have any questions related to this mandate, call the office (909-758-5060) and ask to speak to Brenda or Joe.

If you are required to have an ELD, the WSTA is recommending you contact a reliable supplier such as our affiliate Matrack.

California Petitions DOT to Reverse Previous Determination Prohibiting the State from Enforcing its Unique Meal & Rest Break Rule on Interstate Drivers

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After years of our members being legally extorted by trial lawyers for actual and alleged non-compliance with California meal & rest break (MRB) rules, in 2018, the WSTA was the first organization to petition the Federal Motor Carrier Safety Administration (FMCSA) to pre-empt California from enforcing its MRB rule on truck drivers subjected to hours-of-service rules. We were quickly joined by the Specialized Carrier & Rigging Association with a petition and finally by the American Trucking Association.

The effort was partially successful in that FMCSA ultimately pre-empted California from enforcing its MRB rule, but only on drivers subjected to the hours-of-service rule issued by the federal government. After a Teamsters legal challenge in the Ninth Circuit to the pre-emption determination, the federal court upheld FMCSA’s decision.

Late this past summer, in what can only be called a purely political move by the agency, they issued a Federal Register Notice essentially begging for petitions to reverse its previous decision.

As of the publication date of WTN, the State of California issued the following press release giving FMCSA what it asked for. The WSTA will be engaged on this issue once the feds publish this petition (and very likely others) asking whether the petition(s) should be granted.

PRESS RELEASE Attorney General Bonta Defends California’s Meal and Rest Break Rules for Commercial Drivers

Monday, November 13, 2023

Contact: (916) 210-6000, agpressoffice@doj.ca.gov

OAKLAND – California Attorney General Rob Bonta, in partnership with the California Labor Commissioner’s Office, today announced the filing of a petition seeking a waiver of federal preemption determinations that prevent California from enforcing its meal and rest break requirements for motor vehicle drivers in California. Federal regulations by the Federal MotorCarrier Safety Administration (FMCSA) generally permit commercial drivers to drive eight hours without a break. In contrast, California law generally requires 30-minute meal breaks during each five hours of work, and 10-minute rest breaks for every four-hour period. In 2018 and 2020 under the Trump Administration, FMCSA ruled that California’s rules to protect the safety of drivers and the general public were preempted by the federal rules and were therefore unenforceable. FMCSA recently initiated a petition process for states to request a waiver from this ruling. If FMCSA grants the waiver, California can resume enforcing its meal and rest break rules on behalf of commercial vehicle drivers.

“Meal and rest breaks are essential for the welfare of our workers, but are especially important for commercial drivers,” said Attorney General Bonta. “Fatigued driving is especially deadly in the trucking and bussing industries and contributes to accidents on California’s roadways. California’s meal and rest break rules protect drivers and promote public safety by providing drivers with adequate time to rest before they become overly fatigued. FMCSA’s Trump-era preemption decisions endanger the health and welfare of California’s workers. All workers deserve a work environment that affords them safety and security.”

In the Petition sent to FMCSA, the Attorney General and the Labor Commissioner highlight that enforcement of California’s meal and rest break rules will have a significant positive impact on health and safety of drivers, have not and will not exacerbate the truck parking shortage in California, and have not and will not weaken the national supply chain or otherwise burden interstate commerce.

2023 LEGISLATIVE WRAP-UP: Bills either signed or vetoed by Governor Newsom

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  • VETOED: AB 376 (Villapudua), the WSTA-supported bill that would make state financial aid available to truck driving school students, was unfortunately vetoed, with the following veto message:

To the Members of the California State Assembly: I am returning Assembly Bill 376 without my signature. This bill would establish a pilot program available until January 1, 2028, for the purpose of expanding Cal Grant C eligibility to students participating in entry level truck driving programs that meet specific requirements. This bill also requires the California Student Aid Commission, in consultation with the Bureau for Private Postsecondary Education, to submit a report to the Legislature, by April l, 2027, about the pilot program. I thank the author for his commitment to address the driver shortage in the trucking industry. However, this bill results in significant General Fund cost pressures and staff workload that are not currently part of the state’s fiscal plan and are more appropriately addressed in the annual budget process. In partnership with the Legislature, we enacte1d a budget that closed a shortfall of more than $30 billion through balanced solutions that avoided deep program cuts and protected education, health care, climate, public safety, and social service programs that are relied on by millions of Californians. This year, however, the Legislature sent me bills outside of this budget process that, if all enacted, would add nearly $19 billion of unaccounted costs in the budget, of which $11 billion would be ongoing. With our state facing continuing economic risk and revenue uncertainty, it is important to remain disciplined when considering bills with significant fiscal implications, such as this measure. For this reason, I cannot sign this bill. Sincerely, Gavin Newsom

  • SIGNED: SB 253 (Wiener), the WSTA-opposed bill that will enact onerous emissions tracking requirements on businesses. Although, he also included the following signature message, which indicates that a clean-up bill will be necessary next year:

To the Members of the California State Senate: I am signing Senate Bill 253 which would require, among other things, the California Air resources Board (CARB), by January 1, 2025, to develop and adopt regulations requiring businesses with total annual revenues over $1 billion and operating in California to disclose their greenhouse gas emissions to an emissions reporting organization. This important policy, once again, demonstrates California’s continued leadership with bold responses to the climate crisis, turning information transparency into climate action. However, the implementation deadlines in this bill are likely infeasible, and the reporting protocol specified could result in inconsistent reporting across businesses subject to the measure. I am directing my Administration to work with the bill’s author and the Legislature next year to address these issues. Additionally, I am concerned about the overall financial impact of this bill on businesses, so I am instructing CARB to closely monitor the cost impact as it implements this new bill and to make recommendations to streamline the program. I look forward to working with the Legislature on these modifications to achieve this bill’s goals of “full transparency and consistency”

  • SIGNED: AB 251 (Ward), which will require the California Transportation Commission (CTC) to convene a task force to study the relationship between vehicle weight and injuries to vulnerable road users, such as pedestrians and cyclists, and degradation to roads, and to study the costs and benefits of imposing a passenger vehicle weight fee to include consideration of vehicle weight. The bill would require the CTC, by no later than January 1, 2026, to prepare and submit a report to the Legislature.
  • SIGNED: AB 314 (Patterson), which extends and expands modifications made to the sales and use tax exemption for trailers and semitrailers used in interstate commerce. Specifically, the bill extends the sunset date on AB 321’s (from 2019) expansion to the specific exemption for vehicles used in interstate commerce from January 1, 2024, to January 1, 2029 and adds used trailers or semitrailers into the exemption.
  • SIGNED: AB 844 (Gipson), which requires the Department of Insurance to collect specified data on the availability and affordability of insurance for heavy-duty trucks and truck fleets that utilize advanced fuels.
  • VETOED: AB 1614 (Gabriel), which would have required the Energy Resources Conservation and Development Commission (CEC), in coordination with CARB and the Governor’s Office of Business and Economic Development (GO-Biz), and in consultation with local air districts and local governments to conduct a study on the transitioning of retail gasoline fueling stations from providing gasoline to providing alternative fuels by January 1, 2027, was vetoed with the following veto message:

To the Members of the California State Assembly: I am returning Assembly Bill 1614 without my signature. This bill would require the California Energy Commission (CEC), in consultation with the Governor’s Office of Business and Economic Development, to conduct a study on the statewide transition of fuel stations from gasoline to alternative fuels. This bill will result in additional costs to the General Fund and the CEC’s primary operating fund, which is currently facing an ongoing structural deficit. This bill exacerbates the CEC’s operating funds structural imbalance. Additionally, many provisions of this bill are duplicative of existing law, which requires the CEC, in consultation with various state entities, to prepare a transportation fuels transition plan by December 31, 2024. In partnership with the Legislature, we enacted a budget that closed a shortfall of more than $30 billion through balanced solutions that avoided deep program cuts and protected education, health care, climate, public safety, and social service programs that are relied on by millions of Californians. This year, however, the Legislature sent me bills outside of this budget process that, if all enacted, would add nearly $19 billion of unaccounted costs in the budget, of which $11 billion would be ongoing. With our state facing continuing economic risk and revenue uncertainty, it is important to remain disciplined when considering bills with significant fiscal implications, such as this measure. With our state facing continuing economic risk and revenue uncertainty, it is important to remain disciplined when considering bills with significant fiscal implications, such as this measure. With our state facing continuing economic risk and revenue uncertainty, it is important to remain disciplined when considering bills with significant fiscal implications, such as this measure. For these reasons, I cannot sign this bill. Sincerely, Gavin Newsom

  • SIGNED: AB 1594 (Garcia), which requires any state regulation that seeks to require, or otherwise compel, the procurement of medium- and heavy-duty zero-emission vehicles to allow public agency utilities to purchase end of life replacements, without regard to the model year of the vehicle being replaced.

Governor Newsom also took recent action on the following CalChamber “Job Killer” bills:

  • VETOED: AB 524 (Wicks), which would have expanded the protected characteristics under the Fair Employment and Housing Act’s anti-discrimination provisions in employment to include family caregiver status, was vetoed with the following veto message:

To the Members of the California State Assembly: I am returning Assembly Bill 524 without my signature. This bill would add “family caregiver status” as a characteristic protected under the Fair Employment and Housing Act ‘s employment provisions. During my tenure as Governor I have consistently advanced policies to help parents and families, including expanding paid family leave and increasing the state’s investment in childcare. While I appreciate the intent of this bill, I am concerned about the large burden it will place on employers, particularly small businesses, especially given the ambiguous nature of the language. Although the bill does not require employers to provide “special accommodations” based on “family caregiver status,” it is not clear what types of acts would constitute unlawful discrimination and what types of acts would be lawful denials of “special accommodations.” Given this ambiguity, this bill would be difficult to implement and lead to costly litigation for employers in California. For these reasons, I cannot sign this bill. Sincerely, Gavin Newsom

  • SIGNED: AB 647 (Holden), which significantly expands statute related to successor grocery employers, including disrupting the ability for independent small stores to join together and creating a significant new private right of action.
  • SIGNED: SB 616 (Gonzalez), which imposes new costs and leave requirements on employers of all sizes, by nearly doubling existing sick leave mandate, which is in addition to all other enacted leave mandates that small employers throughout the state are already struggling with to implement and comply.
  • VETOED: SB 627 (Smallwood-Cuevas), which would have imposed an onerous and stringent process to hire employees based on seniority alone for nearly every industry, including hospitals, retail, restaurants and movie theaters, which will delay hiring and eliminates contracts for at-will employment, was vetoed with the following veto message:

To the Members of the California State Senate: I am returning Senate Bill 627 without my signature. This bill would require certain chain employers to provide workers and their exclusive representative, if any, with a displacement notice at least 60 days before an expected date of closure. Additionally, it would require a chain employer to maintain a preferential transfer list of eligible laid-off employees and make job offers based on length of service for one year after the closure date and provide an opportunity to transfer to another chain location within 25 miles, as positions become available. The new notice requirements, transfer rights, processes and criteria, and associated penalties established by this bill would impose significant burdens on employers. The arbitrary 25-mile radius for transfers does not take into account substantial regional differences among commute times. In addition, this bill applies to an overly broad list of establishments and creates vague processes and criteria, which will lead to implementation and enforcement challenges. For these reasons, I cannot sign this bill. Sincerely, Gavin Newsom

  • VETOED: SB 799 (Portantino), which would have allowed striking workers to claim unemployment insurance benefits when they choose to strike, was vetoed with the following veto message:

To the Members of the California State Senate: I am returning Senate Bill 799 without my signature. This bill allows individuals who left work due to a trade dispute to become eligible for Unemployment Insurance (UI) benefits. The bill also codifies case law that employees who left work due to a lockout by their employer, even if it was in anticipation of a trade dispute, are eligible for UI benefits. California employers fund UI benefits through contributions to the state’s UI Trust Fund on behalf of each employee. The UI financing structure has not been updated since 1984, which has made the UI Trust Fund vulnerable to insolvency. Any expansion of eligibility for UI benefits could increase California’s outstanding federal UI debt projected to be nearly $20 billion by the end of the year and could jeopardize California’s Benefit Cost Ratio add-on waiver application, significantly increasing taxes on employers. Furthermore, the state is responsible for the interest payments on the federal UI loan and to date has paid $362.7 million in interest with another $302 million due this month. Now is not the time to increase costs or incur this sizable debt. I have deep appreciation and respect for workers who fight for their rights and come together in collective action. I look forward to building on the progress we have made over the past five years to improve conditions for all workers in California. For these reasons, I cannot sign this bill. Sincerely, Gavin Newsom

  • Signed SB 244 (Eggman) – the Right to Repair Act – which requires manufacturers of an electronic or appliance product with a wholesale price to the retailer of not less than $50 to make available, on fair and reasonable terms, sufficient service documentation and prescribed functional parts and tools to owners of the product, service and repair facilities, and service dealers for specified timeframes. This bill provides that a city, a county, a city and county, or the state may bring an action in superior court to impose civil liability on a person or entity that knowingly, or reasonably should have known that it violated these provisions.
  • VETOED AB 316 (Aguiar-Curry) – Teamsters bill to prohibit autonomous heavy-duty trucks without a human driver, with the following veto message:

I am returning Assembly Bill 316 without my signature.  Among its provisions, this bill would ban driverless testing and operations of heavy-duty autonomous vehicles. Assembly Bill 316 is unnecessary for the regulation and oversight of heavy-duty autonomous vehicle technology in California, as existing law provides sufficient authority to create the appropriate regulatory framework. In 2012, the California Legislature provided the Department of Motor Vehicles (DMV) with the authority to regulate the testing and deployment of autonomous vehicles on public roads in California. As part of its oversight and regulatory responsibilities, DMV consults with the California Highway Patrol, the National Highway Traffic Safety Administration, and others with relevant expertise to determine the regulations necessary for the safe operation of autonomous vehicles on public roads. DMV continuously monitors the testing and operations of autonomous vehicles on California roads and has the authority to suspend or revoke permits as necessary to protect the public’s safety. Autonomous vehicle technology is evolving, and DMV remains committed to keeping our rules up to date to reflect its continued development in California. DMV held public workshops with interested stakeholders earlier this year to inform the development of future rulemakings for both light-duty and heavy-duty autonomous vehicles. This rulemaking will be a transparent, public process where subject matter experts and other stakeholders will have the opportunity to shape the regulations related to the safe operations of autonomous vehicles in California. The draft regulations are expected to be released for public comment in the coming months.

In addition to safety, my Administration has long been concerned with the impact of technology on the future of work – so much so that in 2019 we convened, with participation from a variety of organized labor leaders including the Teamsters, UFCW, and SEIU, a robust Future of Work Task Force. That effort led to the publication of a report that guides our work on issues of emerging technology and its impacts on California’s workforce. But our efforts don’t end there. I am committed to incentivizing career pathways and training for the necessary workforce specifically associated with this technology. As such, I am directing the Labor and Workforce Development Agency to lead a stakeholder process next year to review and develop recommendations to mitigate the potential employment impact of testing and deployment of autonomous heavy-duty vehicles. Considering the longstanding commitment of my Administration to addressing the present and future challenges for work and workers in California, and the existing regulatory framework that presently and sufficiently governs this particular technology, this bill is not needed at this time. For these reasons, I cannot sign this bill. My Administration remains open to working with the author, sponsors, and other stakeholders on the right approach to safely test and deploy this evolving technology in California, while also addressing and mitigating any potential impacts to jobs.

Drivers Who Failed a Drug or Alcohol Test Can’t Escape Prohibition from Driving a CMV by Simply Moving to Vehicles Under 26,001 Pounds

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Since the advent of DOT drug & alcohol testing its been trucking’s’ little secret that drivers with a CDL (or even CDL learners permit) who failed or refused to test, were able to evade compliance with the rules by forgoing a CDL and operating trucks under 26,001 pounds.

At the fall meeting of the Commercial Vehicle Safety Alliance in Dallas, TX this past September, the Driver-Traffic Committee broached the topic of commercial drivers evading compliance with the Return to Duty process after failing (or refusing) a drug or alcohol test by moving to a C license and operating trucks not requiring a CDL.

Under a newer regulation related to the establishment of the Drug & Alcohol Clearinghouse contained in the Federal Motor Carrier Safety Regulations (FMCSR’s) that loophole is closed, mostly for those operating in interstate commerce. That said, we did reach out to CHP to see if they were enforcing this new prohibition on “intrastate” CMV operators of vehicle under 26K. They are definitely enforcing during a terminal inspection but also increasing training for their officers during roadside inspections to validate whether a driver is in “prohibited status.”

That new regulation states:

§ 392.15 Prohibited driving status. No driver, who holds a commercial learner’s permit or a commercial driver’s license, shall operate a commercial motor vehicle (CMV) if prohibited by § 382.501(a) of this subchapter.

§ 382.501(a) states: (a) Except as provided in subpart F of this part, no driver shall perform safety-sensitive functions, including driving a commercial motor vehicle, if the driver has engaged in conduct prohibited by subpart B of this part or an alcohol or controlled substances rule of another DOT agency.

What trips many people up is that the FMCSR’s have two definitions defining what constitutes a “commercial motor vehicle.” For overall purposes, the feds define a CMV as any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle— (1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater. This is found in §390.5 Definitions. This means everything from many pick-ups on up being operated in commerce (even for private companies).

For the purposes of applying DOT drug and alcohol testing, a CMV is defined as:

§ 382.107 Definitions (1) Has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or (2) Has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 or more pounds), whichever is greater. This strictly limits drug & alcohol testing to all vehicle requiring a CDL with exceptions (8 passenger vehicles and ANY vehicle transporting placardable quantities of hazardous materials).

It was ironic that on the Friday right after returning from CVSA we received a call from a member who only operates straight trucks (and is not subject to DOT drug & alcohol testing) who had a driver placed (permanently) out-of-service after a roadside inspection because the driver failed a previous drug & alcohol test. The irony is the driver tried to deny ever having had a CDL, but he did have a commercial learners permit (CLP) issued at one time and guess what? Had failed a test.

Our member wanted to know “how” he could have ever discovered such a thing since all the driver had is a C license.

He was instructed to open an account with FMCSA Clearinghouse and run a query on all potential new hires. Even with someone having just a C license, if they ever had a CLP or CDL, the license number doesn’t change and it’s the license number used in a query in the Clearinghouse that can tell you whether the driver is in prohibited status – or not.

UPDATE: California Intrastate ELD Mandate

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Members already being misinformed


In mid-July the WSTA responded to the latest modification of the California Highway Patrol’s rulemaking to mandate electronic logging devices (ELD’s) for hours-of-service (HOS) compliance of motor carriers/drivers operating only within the state.

The 15-day notice issued by CHP only dealt with correcting some technical language, not any modifications to their initially proposed rule.

California is mandated under federal law to adopt the mandate requiring the use of ELD’s after the Federal Motor Carrier Safety Administration mandated motor carriers/drivers operating in interstate commerce use ELD’s beginning on December 18, 2017.

Many motor carrier/drivers will not be required to use ELD’s yet could still make occasional trips out of their normal service area if necessary, without needing an ELD by using exceptions in the rule that mirror federal exceptions.

The WSTA tried to get CHP to mimic the federal ELD rule in its entirety but was unsuccessful. California will retain a 12-hour maximum on-duty period and 100 air mile short haul exception for hours-of-service compliance instead of adopting the federal 14-hour/150 air mile exception.

The short haul exception in HOS rules simply allows motor carrier/drivers who are dispatched from and return to the same location every day to record their HOS via timecards/time sheets, etc.

Many of our members operate within 100-air miles of their home terminal so nothing will change for those types of operations. However, some will occasionally go outside the 100-air miles and just as now, even with an ELD mandate you will just be required to record that days HOS on a paper log (not timecard/timesheet).

However, there is a limit to the number days you can operate outside your home terminal area without the ELD mandate kicking in. You will only be allowed to run on paper logs for no more than 8 days in any 30-day period. If you exceed that threshold, you are required to install an ELD.

For those who take work in other areas of the state – away from their normal work reporting station (terminal) and spend time in a different area, many who have used paper logs on a daily basis to record their hours worked when working locally, need to consider changing that practice. That practice can inadvertently get you in trouble as most roadside law enforcement officers will interpret that behavior as you are being required to complete a paper log and as such after 8 days logged want to see an ELD.

It has always been permissible to change your home terminal for the purposes of recording your HOS. For example, if you are headed to an area of the state to work a long-term project or aid in fire recovery (assuming an emergency declaration doesn’t exist exempting you from HOS rules), you would simply use a paper log to record travel time that is more than 100 air miles from your home terminal then re-designate your home terminal as the address of where you are staying (hotel, camp-ground, relatives house) during the duration of the work and allowing you to revert to time-cards/time sheets, etc.

Hopefully this doesn’t sound too confusing. If you have any questions, please call WSTA Director of Governmental Affairs, Joe Rajkovacz at (909) 486-7225.

WSTA and CIACQ File Petition for Review

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The Western States Trucking Association (WSTA) and Construction Industry Air Quality Coalition (CIAQC) filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit on June 5, 2023, challenging EPA’s waiver grant of CARB’s Advanced Clean Trucks Rule, which requires manufacturers of Class 2b-9 chassis to sell increasing percentages of electric or fuel-cell trucks so that these vehicles would be required to make up 40-75% of all new truck sales in California by 2035. The purpose of CARB’s ACT rule is to accelerate the market for zero emission vehicles in the medium- and heavy-duty truck sector in an effort to fulfill California’s goal to transition to so-called “zero-emission vehicles.” In the litigation, we will argue that EPA’s waiver is arbitrary and capricious, inconsistent with statutory authority under the Clean Air Act, and violates the equal sovereignty of states doctrine of the United States Constitution. We expect a broad range of affected industries and states will file similar petitions for review.

OOIDA Requests Preliminary Injunction Against AB5

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The Owner Operator Independent Drivers Association (OOIDA) Requests Preliminary Injunction Against AB5 Claiming that AB5 (and the Dreaded “ABC” Test) Violates the Commerce Clause of the US Constitution.

By G Spencer Mynko, ESQ

OOIDA has decided to take a shot against AB5 and the ABC test. Hoping to succeed where the California Trucking Association (CTA) failed, OOIDA is attacking AB5 utilizing a different legal theory. The CTA argued that AB5 and the ABC test were preempted by federal law, essentially stating that the State of California was encroaching upon legal territory exclusively occupied and controlled by the Federal Government. Unfortunately, we all know how the Federal Preemption argument ended up, with the Ninth Circuit US Court of Appeals, saying “Nahhh – No it doesn’t”, but only after writing 39 pages of legal bullshit for the benefit of people who didn’t smoke a joint before reading the opinion of the court.

Now, OOIDA is arguing that AB5 violates the Commerce Clause.

What is the Commerce Clause?

The commerce clause is an enumerated power, specifically listed in Article 1, Section 8, clause 3 of the United States Constitution. The clause states that the United States Congress shall have power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes”. Pardon me while I geek out on legal mumbo-jumbo, but this is what the US Supreme Court said about the significance of the Commerce Clause in Gonzales v. Raich, 545 U.S. 1 (which incidentally is a case about medical marijuana):

“The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and

an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.”

 

OOIDA’s lawyers essentially reiterated this in their motion requesting an injunction:

“The Commerce Clause gives Congress the authority to regulate commerce between the states. U.S. Const. art. I, § 8, cl. 3. This grant of authority implies a restriction on states’ authority to interrupt—by discriminating against or imposing improper burdens on—interstate commerce …. Giving Congress the authority over economic relations between the states “reflects a central concern of the Framers

that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.” (See https://ecf.casd.uscourts.gov/doc1/037118727999)

 

Simply put, the commerce clause prevents individual states from enacting and enforcing laws that screw up how business is done when goods move throughout the United States. This is why trucks can travel from state to state and not have to transload at the border of every individual state. And the thrust of the argument here is that AB5 and its “ABC” Test violates the commerce clause. I will again quote from OOIDA’s motion:

“…AB-5 will impact interstate trucking operations nationwide, causing carriers throughout the U.S. to reevaluate their ability to serve the country’s most important shipping market. Thousands of trucking companies will be forced to decide between changing their business model or ceasing work in California altogether. The harm resulting from these decisions will be irreparable for many and will have a negative impact on supply chains. Enjoining enforcement of AB-5 against those truckers lacking a significant connection to California pending final resolution of this case is a crucial step in safeguarding the nation’s supply chain and the livelihoods of thousands of small business truckers.” (Id.)

 

Let’s hope OOIDA succeeds where the CTA failed.

Reprinted with permission by the Law Offices of G. Spencer Mynko, ESQ., Transportation Attorneys

CARB Board Directs Staff to Produce a More Aggressive ZE Truck Mandate to Capture Smaller Fleets

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CARB Board Directs Staff to Produce a More Aggressive ZE Truck Mandate to Capture Smaller Fleets
Sean Edgar, CleanFleets.net

 

The highly anticipated Advanced Clean Fleets (ACF) hearing by the CARB Board took place on October 27th.  Staff released a very aggressive proposal in late August that would restrict fleets of 50 or more trucks or $50 million or more in annual revenues from buying diesel or gasoline-powered trucks after 2023, while at the same time forcing CARB-compliant trucks in certain motor carrier fleets off the road as early as 2024. WSTA members below the 50 truck/$50 million threshold were not initially the target of the proposed rule but are now squarely in the crosshairs. The CARB Board confirmed that small fleets as low as five trucks and those contracted by “controlling parties” will be captured in the Final Regulation to be approved within six months.

The Hearing: I was one of over 200 speakers that addressed the proposal. Several dozen fleet owners and industry associations, including WSTA’s Joe Rajkovacz and legal counsel, pointed to the voluminous legal, economic, environmental and infrastructure-related consequences that mandating 500,000 electric or hydrogen trucks would have on the supply chain. Unfortunately, proponents were well organized (as is typical) with well over 150 speakers representing like-minded states, environmental groups and organized labor. They all pushed the Board to forge head faster than proposed by the staff.

Fleet Size: In a stunning conclusion to a nearly nine-hour public hearing, CARB’s environmental justice members asked staff to, “go after those trucks that are the worst actors,” by coming back next Spring with a final ACF Regulation that drops the regulated fleet size to as low as five trucks and owners being mandated to purchase only Zero Emissions (ZE) trucks from 2024 onward. In an exchange of ideas that would not have likely occurred under past Board hearings, new Chair Liane Randolph warned against the possibility of “more burden than necessary” and it might be “counterproductive” to drop the regulated fleet size lower than the 50 truck and larger fleets that staff targeted in the initial draft regulation language. CARB’s Division Chief in charge of mobile source regulation explained to the Board that dropping the limit to ten trucks would add “two to three times” the number of fleets included in the regulation. Nevertheless, staff was directed to return with analysis for a final regulation that drops the fleet size limit lower than 50 (as low as the five to ten truck fleet size) and make other changes as summarized below.

The Proposed Changes: None of the CARB members voted to delay or significantly change the structure of the staff’s proposal in terms of forcing regulated fleets to phase-out the Truck & Bus Regulation compliant fleets and stopping regulated fleets from adding diesel or gasoline trucks after 2023. So the structure of the regulation will remain and the Spring 2023 hearing limited to action on the following issues:

  • Dropping the fleet size limit lower than 50,
  • Pulling forward the first sleeper cab deadline to 2026 (from what was 2029),
  • Pulling forward the manufacturer’s deadline to phase out internal combustion truck sales to 2036 (from what was 2040),
  • More time for electricity and hydrogen fueling exemptions (only one year was proposed),
  • Allow some fleets using renewable natural gas to continue to do so (primarily trash trucks),
  • Better define ZE truck “commercial availability” and how CARB will grant exemptions for “unavailability” of ZE trucks that don’t meet the fleet owner’s needs,
  • Allow “temporary use of transient trucks” from out of state, and
  • Several reduced requirements for public fleets.

WSTA Efforts and Legal Fund: Association staff, consultants and outside legal counsel invested hundreds of hours to produce a 50-page legal filing to the CARB docket as well as engage with other associations (e.g. CIAQC, CTA, CalCIMA, Beer & Beverage and Waste Haulers). I personally met with seven Board members to make the case that the proposal is nowhere near being ready for implementation due to the obvious lack of infrastructure, lack of ZE truck technology that can be used profitably as well as legal concerns from our brief. Especially considering the fleet size discussion, our efforts need to be expanded over the next six months through the Final Regulation adoption. There will also be fleet reporting and planning requirements late in 2023.

WSTA has committed over $100,000 to lead this charge and the Legal Fund has commitments of a little more than half that amount. While the association has never shied away from litigating to protect the interest of members, we must wait until the ACF process unfolds over the next six months and are keeping all options on the table. What is certain is CARB is gunning for more of our members to be included in the ACF.

Legal counsel and I will be making presentations at the 81st Annual Membership Meeting in Costa Mesa on Saturday November 19th.  I highly encourage members to attend as the ACF must be confronted head on and we will ask to give of your time and efforts to help the association fight for you. Until then I may be reached at (916) 520-6040 Ext 104 with any comments or concerns. Hope to see you in Costa Mesa!

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