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.
WSTA and CIACQ File Petition for Review
/in LegalThe 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.
Reminder from AADT – OFFICIAL DOT NOTIFICATIONS
/in General NewsOOIDA Requests Preliminary Injunction Against AB5
/in General News, Governmental Affairs and CommunicationsThe 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
/in CARB Consultant, General NewsCARB 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.
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:
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!
FMCSA Drug and Alcohol Clearinghouse Rulemaking Update – SDLA Requirements
/in General News, Governmental Affairs and CommunicationsCoalition Letters to US Senate Leadership Opposing Insurance Hike
/in Governmental Affairs and CommunicationsEffective Oct. 1, 2020, Changes to Title 13, California Code of Regulations
/in General NewsMandatory Online Renewal of MCP’s Required this Spring
/in General NewsHOURS OF SERVICE: Federal Changes to Short Haul Exemption – Not So Fast
/in General News, Governmental Affairs and CommunicationsCalifornia “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:
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.
DOT-FMCSA Preemployment Testing Changed from 30 to 90-days for Drivers Laid-off, Furloughed or Not Working for More than 30-days but Can Prove They Participated in a Drug Testing Program Prior to the Period
/in General News, Governmental Affairs and CommunicationsEffective June 5, 2020, and ends September 30, 2020
On June 5, FMCSA released a “Grant of Waiver”, saying, “As employers begin to recall drivers who were furloughed, laid off, or otherwise not working for the company for more than 30 days, the cost and logistical barriers of testing a large influx of drivers in a short timeframe are significant, at a time when the commercial trucking and motorcoach industry is facing unprecedented economic challenges. This problem is further compounded by the reduced availability of controlled substances testing resources due to continued facility closures or other testing impediments caused by the COVID-19 public health emergency.”
FMCSA also noted that, “This waiver would extend, from 30 days to 90 days, the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would allow employers to forego pre-employment testing for drivers who have participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 90 days of hire or rehire. Allowing employers to forego pre-employment testing for drivers who were in a testing program within the previous 90 days will provide relief from the administrative burdens and costs associated with administering tests and allow them to return drivers to the workforce in a more efficient manner, thus promoting job creation and economic growth.”
The FMCSA’s waiver also clarified that, “It is important to note that this waiver does not alter any of the remaining controlled substances and alcohol use and testing requirements for a driver performing safety-sensitive functions, and that motor carrier employers subject to the waiver have access, in real time, to driver-specific drug and alcohol violation information through the Drug and Alcohol Clearinghouse (Clearinghouse).”
According to WSTA legal counsel, “The waiver appears to apply to both re-hires and new hires, provided they were in a program within the past 90 days.” Also, “The waiver clarifies that it “would extend, from 30 days to 90 days, the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would allow employers to forego pre-employment testing for drivers who have participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 90 days of hire or rehire.” See 49 CFR 382.301(b) and (c).
This is a reasonable regulatory response to the pandemic and the subsequent return to work process the nation and its transportation companies and their employee drivers are presently experiencing. We suggest that for all employee drivers subject to the waiver, that the company add this document with the rehire dates on or after June 5, and insert it into the employee files noting that the preemployment drug test was waived.
For more details, visit the FMCSA web page https://www.fmcsa.dot.gov/emergency/three-month-waiver-response-economic-consequences-covid-19-public-health-emergency
To review the entire waiver click here:
https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-06/Waiver%20-%20Preemployment%20testing%20-%20FINAL%20-%20June%205.pdf