Important Information Regarding Regulatory Relief for Commercial Trucks

Hours-of-Service Regulatory Relief
The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) issued a national emergency declaration to provide hours-of-service regulatory relief to commercial vehicle drivers transporting emergency relief in response to the nationwide coronavirus (COVID-19) outbreak. This declaration is the first time FMCSA has issued nation-wide relief and follows President Trump issuing of a national emergency declaration in response to the virus. To read the full press release, please visit FMCSA’s website. 

Governor Abbott Waiving Certain Regulations 
Governor Greg Abbott has announced that he is waiving certain regulations related to commercial trucking in the state of Texas. The suspensions will expedite commercial vehicle delivery of more supplies in each truckload as Texas works to mitigate the impact of the coronavirus (COVID-19) across the state. 
These waivers were requested by and will be coordinated through the Texas Department of Motor Vehicles (DMV), and are part of the actions Governor Abbott is taking under the State of Disaster he declared yesterday. To read the full press release, please visit the Governor’s website.

CVSA Reminds Motor Carriers of the Dec. 17, 2019, ELD Compliance Deadline

Greenbelt, Maryland (Dec. 2, 2019) – Starting Dec. 17, 2019, all motor carriers and drivers subject to the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) electronic logging devices (ELD) final rule must use an ELD. This deadline also pertains to grandfathered automatic onboard recording devices (AOBRDs), which will no longer be allowed under the Federal Motor Carrier Safety Regulations to provide records of duty status as a substitute to a required ELD. Motor carriers utilizing an AOBRD must have a fully operational ELD installed by Dec. 17, 2019.

According to FMCSA, there will be no extensions or exceptions made to the Dec. 17, 2019, ELD rule deadline. In addition, the Commercial Vehicle Safety Alliance (CVSA) stated that inspectors will begin fully enforcing the ELD rule on Dec. 17, 2019; there will be no “soft enforcement” grace period.

If a commercial motor vehicle driver is required to have an ELD and the vehicle is not equipped with a registered compliant ELD, the driver is considered to have no record of duty status; that also applies to a driver still using an automatic onboard recording device after the AOBRD to ELD transition deadline of Dec. 17, 2019. According to the North American Standard Out-of-Service Criteria, a property-carrying driver who does not have a record of duty status in his or her possession when one is required will be declared out of service for 10 hours and a passenger-carrying driver without a record of duty status when one is required will be placed out of service for eight hours.

CVSA-certified roadside inspectors use the North American Standard Out-of-Service Criteria to identify conditions that preclude further operation of a commercial motor vehicle by its driver for a specified amount of time, or for some conditions, until the violation is corrected. The April 1, 2019, North American Standard Out-of-Service Criteria specifies the out-of-service conditions related to deficiencies of record of duty status and hours-of-service rules and regulations. In addition, CVSA’s Inspection Bulletin regarding hand-held and electronic logging devices outlines the requirements for devices used to record drivers’ hours of service, according to 49 CFR Part 395 Subpart B – Electronic Logging Devices.

FMCSA implemented the ELD rule to make it easier and faster to accurately track, manage and share record of duty status information, and to help improve road safety and reduce the number of crashes. An ELD automatically records a driver’s driving time and other hours-of-service data. Hours-of-service rules and regulations were developed to minimize driver fatigue and improve safety for everyone on the road. In addition, ELDs monitor a vehicle’s engine data, such as when the engine is running, whether the vehicle is moving, miles driven, duration of engine operation, etc.

It’s important to note that the ELD final rule does not change any of the underlying hours-of-service regulations. For more information regarding ELDs, the ELD final rule, hours-of-service, etc., visit FMCSA’s website.

CVSA’s New 2019 North American Standard Out-of-Service Criteria is Now in Effect

Starting today, April 1, 2019, the Commercial Vehicle Safety Alliance’s (CVSA) 2019 North American Standard Out-of-Service Criteria is now in effect. The 2019 out-of-service criteria replaces and supersedes all previous versions.

The North American Standard Out-of-Service Criteria is the pass-fail criteria for roadside safety inspections. The purpose of the criteria is to identify critical safety violations. Those violations render the driver, vehicle and/or motor carrier out of service until the condition(s) or violation(s) can be corrected or repaired.

In accordance with CVSA bylaws, the changes were proposed to the Class I Members of the Alliance on Oct. 22, 2018, and subsequently ratified on Oct. 31, 2018. Voting members approved 12 changes to the out-of-service criteria which are effective as of April 1, 2019.

The following changes were made to the out-of-service criteria:

1. Amendment to Part I, Item 4. DRIVER MEDICAL/PHYSICAL REQUIREMENTS, a. Skill Performance Evaluation Certificate by modifying the language. A driver who possesses a valid Skill Performance Evaluation (SPE) but is not complying with the SPE requirements should be placed out of service.
2. Amendment to Part II, Policy Statement regarding how to deal with expired CVSA decals. It was determined that removing old decals before applying a new one is most appropriate.
3. Amendment to Part II, Item 1. BRAKE SYSTEMS, g. Brake Drums and Rotors (Discs), (2) by adding language and a picture for cracks in structural supports of a brake rotor. If there are cracks through the vents in rotors, a collapse of the rotor is imminent; therefore, the vehicle should be placed out of service.
4. Amendment to Part II, Item 2. CARGO SECUREMENT, a. through f. by adding subheadings to each out-of-service condition. Subheadings were added to the Cargo Securement section of the out-of-service criteria to provide uniformity with the rest of the criteria and to make it easier to distinguish between subsections.
5. Amendment to Part II, Item 2. CARGO SECUREMENT, TIEDOWN DEFECT TABLE by adding defective condition language for the Doleco USA Textile Link Tiedown Assembly. Language was added to the Tiedown Defect Table in the out-of-service criteria so that an inspector can adequately determine if the Doleco USA Textile Link Tiedown Assembly is defective once it is in use.
6. Amendment to Part II, Item 4. DRIVELINE/DRIVESHAFT, b. Universal Joint, (3) by adding a bearing strap to the out-of-service condition. A bearing strap was added to the out-of-service criteria and a descriptive label was added to the current picture of a bearing strap to help identify and clarify the component.
7. Addition to Part II, adding new Item 5. DRIVER’S SEAT (MISSING), a. to provide an out-of-service condition for a missing driver’s seat. Drivers using a temporary seat rather than a permanent seat that is secured to the vehicle in a workmanlike manner was added to the out-of-service criteria.
8. Amendment to Part II, Item 6. EXHAUST SYSTEMS, a. through d. by adding subheadings to each out-of-service condition. Subheadings were added to the Exhaust Systems section of the out-of-service criteria to provide uniformity with the rest of the criteria and to make it easier to distinguish between subsections.
9. Amendment to Part II, Item 7. FRAMES, by adding subsection (5) to the existing NOTE. It was determined that subsection (5) should not pertain to monocoque-style frames.
10. Amendment to Part II, Item 10. STEERING MECHANISMS, h. Tie Rods and Drag Links, (3) to add an out-of-service condition for a non-manufactured hole. A non-manufactured hole in a drag link should be placed out of service.
11. Amendment to Part II, Item 16. BUSES, MOTORCOACHES, PASSENGER VANS OR OTHER PASSENGER CARRYING VEHICLES – EMERGENCY EXITS/ELECTRICAL CABLES AND SYSTEMS IN ENGINE AND BATTERY COMPARTMENTS/SEATING, by adding (TEMPORARY AND AISLE SEATS) to the Critical Vehicle Inspection Item title. This amendment allows vehicles with manufactured seating violations that do not qualify as an out of service condition to receive a CVSA decal.
12. Amendment to Part III, Items 1. through 10. by adding some subheadings and removing unnecessary language. Revisions were made to Part III of the out-of-service criteria to follow the same format as the rest of the out-of-service criteria.

The CVSA Training Committee, the Education Quality Assurance Team in Canada and the National Training Center in the U.S. will incorporate these changes, as appropriate, into North American Standard Inspection training materials, along with several updated inspection bulletins, inspection procedures, operational policies and training videos.

NOTE:

The Commercial Vehicle Safety Alliance’s (CVSA) 2019 North American Standard Out-of-Service Criteria app is now available in Apple and Google Play stores for purchase. This is the new out-of-service criteria, which went into effect yesterday, April 1, 2019.

We’re currently offering special half-off pricing for new app purchase and download. The app is $24.99 USD ($34.99 CAD, $479 MXN) for a limited time so don’t miss out on this opportunity to get the out-of-service criteria for half off its regular price.

IF YOU PURCHASED THE APP LAST YEAR: This year only, for early adopters who purchased the 2018 app, you can download the new 2019 out-of-service criteria app for free, as a thank you from CVSA for being among the first to purchase the app last year.

Apple: You’ll first have to delete the 2018 (green) app icon from your device. Then, click here to download the 2019 (yellow) version.

Google Play: Click here then you’ll be prompted to download the new 2019 (yellow) version, which will replace last year’s version.

Western States Trucking Association’s FAAAA Preemption Argument Dismissed by California District Court

On March 29, the United States District Court for the Eastern District of California held that the Federal Aviation Administration Authorization Act (“FAAAA”) does not preempt the application of the Dynamex ABC Test to a motor carrier for purposes of determining whether owner-operators are considered employees under California’s Wage Orders. Western States Trucking Ass’n v. Schoorl, 2019 WL 1426304, *10 (E.D. Cal. Mar. 29, 2019).

In its ruling, the court reasoned that, although the decision in Dynamex applied the ABC Test to interpret the meaning of “engage, suffer, or permit to work” for purposes of California Wage Order No. 9, the definition was equally applicable “across the board to all wage orders” and that recent Ninth Circuit decisions applied, resulting in a decision that Dynamex is not preempted by the FAAAA. See Californians for a Safe and Competitive Dump Truck Transp. v. Mendonca and Dilts v. Penske Logistics, LLC. In so doing, the court specifically disagreed with the Central District of California’s decision in Alvarez v. XPO Logistics Cartage, LLC.

In its discussion, the court found that the rationale of Mendonca and Dilts applied, and that the generally applicable interpretation of the term “employ” as used in Dynamex “does not run afoul of the FAAAA simply because that interpretation may have some effect on transportation services.” The court then specifically held that the impact of Dynamex on prices, routes, and services of a motor carrier was indirect and insufficient to warrant preemption.

Without further guidance from an appellate court, it is difficult to predict where future courts will land regarding this developing split of authority addressing preemption. In the interim, any motor carrier utilizing owner-operators in California should consider taking steps to avoid becoming a misclassification litigation target and potentially reduce liability exposure in the event of a misclassification determination. For questions about the Dynamex, Western States, or Alvarez decisions, please contact Jim Hanson or Greg Feary.

For a more complete discussion of the Dynamex decision, please see our May 2, 2018 Transportation Law Alert and June 21, 2018 Transportation Law Alert, For a more complete discussion of the Alvarez decision please see our December 5, 2018 Law Alert.