Archive for category: General News

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

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. 16^th 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. 29^th 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 11^th 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.