Archive for category: General News

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!

HOURS OF SERVICE: Federal Changes to Short Haul Exemption – Not So Fast

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California “intrastate” operators won’t be able to take advantage of changes

Many in the trucking industry have been anticipating the long-awaited changes in hours-of-service rules to take advantage of flexibility options. However, the wait may take a little longer – it’s now up to the federal courts.

On Sept. 16th the coalition including the International Brotherhood of Teamsters, Parents Against Tired Truckers, Advocates for Highway and Auto Safety, and Citizens for Reliable and Safe Highways filed a last minute petition with the U.S. Court of Appeals for the District of Columbia Circuit to block the scheduled Sept. 29th implementation date.

Basically, the petitioners oppose all aspects of the newly revised HOS rules. Those changes include the following four provisions:

  • Short-haul Exception: Expands the short-haul exception to 150 air-miles and allows a 14-hour work shift to take place as part of the exception.
  • Adverse Driving Conditions Exception: Expands the driving window during adverse driving conditions by up to an additional 2 hours.
  • 30-Minute Break Requirement: Requires a 30-minute break after 8 hours of driving time (instead of on-duty time) and allows an on-duty/not driving period to qualify as the required break. NOTE: The 30-minute break requirement does not apply to those using the short-haul exception.
  • Sleeper Berth Provision: Modifies the sleeper berth exception to allow a driver to meet the 10-hour minimum off-duty requirement by spending at least 7, rather than at least 8 hours of that period in the berth and a minimum off-duty period of at least 2 hours spent inside or outside the berth, provided the two periods total at least 10 hours, and that neither qualify period counts against the 14-hour driving window.

The coalition did file individual comments during the rulemaking process opposing all the proposed changes to federal HOS rules. It is unknown at this time if their 11th hour filing to block the changes will result in an emergency stay.

California “Intrastate” Motor Carriers: Can’t Use New HOS Rules

If you operate only in California, under California’s unique HOS regulations, you will not be able to utilize any of the flexibility options. While California must allow drivers, whose HOS is governed by the federal government – not state, to log their hours according to the federal rules, that isn’t true for purely in-state trucking fleets.

While many states adopt federal rules into state law automatically by “reference,” California is a state that does not. All changes to HOS rules must go through a regulatory process initiated by the California Highway Patrol.

As of this writing, the association has been told by CHP there is no immediate plan to modify California’s short-haul HOS exception to match the federal exception, so California’s allowable short-haul will remain at 100 air miles/12 hours.

The association will continue to work with CHP to encourage a rulemaking that aligns/harmonizes the state’s allowable short-haul exception to match the federal but similar to California still not having an electronic logging device (ELD) mandate, this process is expected to take quite a while.

The bottom line is if your HOS are governed by California regulation, you cannot use any of the announced changes in HOS regulations approved at the federal level. There will be no enforcement leeway by CHP if caught violation. You risk being cited or even potentially placed out-of-service until coming into compliance with California regulation.

Overview of Difference Between Federal and California HOS Rules

FEDERAL HOS BASICS (49 CFR § 395)

 

(1)          11 hours driving

(2)          14 hours total duty window

(3)          10 hours off-duty mandatory

(4)          70-hour maximum workweek (8 days)

(5)          34-hour restart provision – general trucking

(6)          24-hour restart provision – construction trucking

(7)          Short-haul exemption – 150 air miles, 14-hour day (effective 9/28/20)

 

CALIFORNIA HOS BASICS (CCR Title 13, Division 2, Chapter 6.5, Article 3, Section 1212)

 

(1)          12 hours driving

(2)          16 hours total duty window

(3)          10 hours off-duty mandatory

(4)          80-hour maximum workweek (8 days)

(5)          34-hour restart provision – general trucking

(6)          24-hour restart provision – construction trucking

(7)          Short-haul exemption – 100 air miles, 12-hour day

 

Switching Between State and Federal HOS rules

 

When you make an out-of-state trip, or even if you haul a load from any port or rail yard, or a load that originated out-of-state that you will be delivering “last mile,” even where the pick-up and  final destination is solely in California, you must log federal HOS.

 

However, when you complete that federally regulated trip it is important to remember, you remain under the authority of US DOT for the remainder of your 60/70-hour period (i.e. 7-8-day schedule).

 

This means if you revert to local operations utilizing the short-haul exception to HOS rules, you are using the federal short-haul exception which does allow the increased flexibility (albeit a shorter workweek, 70 hours max versus 80).

 

We’d caution however that you include an explanation letter in the vehicle being operated because oftentimes a driver will not correctly define which HOS rules they are operating under and if they miscommunicate with roadside law enforcement they will likely be cited.

 

For a complete explanation of switching between state and federal HOS you can either go online to FMCSA, Section § 390.3: General applicability, Interpretations, Question 24. The pertinent information is towards the end of the explanation under the header “National Policy.” https://www.fmcsa.dot.gov/regulations/title49/part/390

 

If you have the management edition of the FMCSR’s (we supply this to all our members), open the book to Part 390 and go to DOT Interpretations for § 390.3, Question 24.

 

We anticipate the lack of conformity between state and federal short-haul exception rules is going to create confusion on everyone’s part. If you have any questions, please contact WSTA’s Director of Governmental Affairs, Joe Rajkovacz at (909) 982-9898.