BILL NUMBER: AB 2201 CHAPTERED 09/14/04 CHAPTER 518 FILED WITH SECRETARY OF STATE SEPTEMBER 14, 2004 APPROVED BY GOVERNOR SEPTEMBER 14, 2004 PASSED THE ASSEMBLY AUGUST 24, 2004 PASSED THE SENATE AUGUST 16, 2004 AMENDED IN SENATE AUGUST 11, 2004 AMENDED IN SENATE JULY 19, 2004 AMENDED IN ASSEMBLY APRIL 13, 2004 AMENDED IN ASSEMBLY APRIL 12, 2004 INTRODUCED BY Assembly Member Firebaugh FEBRUARY 18, 2004 An act to add Section 3322 to the Civil Code, to amend Section 7236 of the Revenue and Taxation Code, and to amend Sections 22507.5, 23114, and 34501.12 of the Vehicle Code, relating to vehicles. LEGISLATIVE COUNSEL'S DIGEST AB 2201, Firebaugh. Vehicles. (1) Existing law requires a licensed contractor to pay all transportation charges submitted by a duly authorized motor carrier of property in dump truck equipment by the 20th day following the last day of the calendar month in which the transportation was performed, if the charges, including all necessary documentation, are submitted by the 5th day following the last day of the calendar month in which the transportation was performed. This bill would impose similar requirements on a broker of construction trucking services, as defined, but would require the payment of the transportation charges to be made by the 25th day following the last day of the calendar month in which the transportation was performed. The bill would authorize the broker, if there is a good faith dispute over a portion of the charges claimed, to withhold payment of an amount not to exceed 150% of the estimated cost of the disputed amount. The bill would require a broker who violates these provisions to pay to the motor carrier of property in dump truck equipment a penalty of 2% per month on the improperly withheld amount. (2) The Sales and Use Tax Law requires that all funds collected by the Department of Motor Vehicles pursuant to specified law, relating to motor carriers permit program fees, be deposited in the State Treasury to the credit of the Motor Vehicle Account in the State Transportation Fund, and then requires a transfer of those fees to the General Fund. This bill would provide that uniform business license tax fee payments collected by the department pursuant to those provisions be deposited in the State Treasury directly to the credit of the General Fund. (3) Existing law authorizes a local authority, by ordinance or resolution, to, among other things, prohibit or restrict the parking or standing, on any street or highway, or portion thereof, in a residential district, of commercial vehicles having a manufacturer's gross vehicle weight rating of 10,000 pounds or more. This prohibition or restriction, however, is not effective with respect to a commercial vehicle, making pickups or deliveries of goods, wares, and merchandise from or to, or deliveries for certain other purposes to, any building or structure located on the prohibited or restricted streets or highways. This bill would include the trailer component of a commercial vehicle within the provision exempting vehicles from the parking or standing prohibition or restriction. (4) Existing law requires a person who provides property on which aggregate material or any other material is loaded into vehicles, unless there are 100 yards or less between the scale houses where trucks are weighed and the point of egress to the public road, to provide a location at which vehicle operators can comply with covering provisions before entering a highway. Under existing law, a driver leaving locations exempted from this provision is authorized to operate on public roads until that driver is able to safely cover the load but no further than 200 yards from the point of egress to the public road. This bill would specify that a driver of a vehicle transporting a load of aggregate materials who is currently exempted from covering a load under specified circumstances may operate that vehicle uncovered beyond the 200 yards limitation. The bill would make technical, nonsubstantive changes to this provision. (5) Existing law requires the Department of the California Highway Patrol to inspect, at least every 25 months, every terminal of a motor carrier, as defined, that directs the operation of or maintains a commercial vehicle in this state, as specified. For purposes of complying with this inspection requirement, existing law allows a motor carrier to combine 2 or more terminals subject to certain conditions. This bill would continue to allow the inspection of combination of terminals so long as those terminals are not subject to an unsatisfactory compliance rating within the last 36 months. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 3322 is added to the Civil Code, to read: 3322. (a) (1) A broker of construction trucking services shall pay all transportation charges submitted by a motor carrier of property in dump truck equipment by the 25th day following the last day of the calendar month in which the transportation was performed, if the charges, including all necessary documentation, are submitted by the fifth day following the last day of the calendar month in which the transportation was performed. If there is a good faith dispute over a portion of the charges claimed, the broker may withhold payment of an amount not to exceed 150 percent of the estimated cost of the disputed amount. (2) A broker who violates paragraph (1) shall pay to the motor carrier of property in dump truck equipment a penalty of 2 percent per month on the improperly withheld amount. (3) In an action for the collection of moneys not paid in accordance with paragraph (1), the prevailing party shall be entitled to his or her attorney's fees and costs. (b) For purposes of subdivision (a), the following definitions apply: (1) A "broker of construction trucking services" means any person, excluding a licensed contractor, that, as a principal or agent, arranges for transportation services to be provided by an independent contractor motor carrier of property in dump truck equipment and who is responsible for paying the transportation charges of the motor carrier. (2) A "motor carrier of property in dump truck equipment" means a motor carrier of property permitted by the Department of Motor Vehicles that hauls any type of construction commodity or material in dump truck equipment. (c) Subdivision (a) only applies if a motor carrier of property is in compliance with Division 14.85 (commencing with Section 36000) of the Vehicle Code at the time the dump truck transportation work is performed. SEC. 2. Section 7236 of the Revenue and Taxation Code is amended to read: 7236. (a) Uniform business license tax fee payments collected by the Department of Motor Vehicles pursuant to Section 7232 shall be deposited in the State Treasury to the credit of the General Fund. All other funds collected by the Department of Motor Vehicles pursuant to Section 7232 shall be deposited in the State Treasury to the credit of the Motor Vehicle Account in the State Transportation Fund. The following fees shall be paid to the department: (1) For-hire motor carriers of property shall pay, according to the following schedule, fees indicated as the safety fee and uniform business license tax fee, based on the size of their motor vehicle fleet. (2) Private carriers of property with a fleet size of 10 or less motor vehicles shall pay a fee of thirty-five dollars ($35). Private carriers of property with a fleet size of 11 or more motor vehicles shall pay, according to the following schedule, fees indicated as the safety fee, based on the size of their motor vehicle fleet. Any carrier that does not pay a uniform business license tax fee shall not operate as a for-hire motor carrier. (3) A seasonal permit may be issued to a motor carrier of property upon payment of fees indicated as the safety fee and one-twelfth of the fee indicated as the uniform business license tax fee, rounded to the next dollar, for each month the permit is valid. The original seasonal permit shall be valid for a period of not less than six months, and may be renewed upon payment of a five-dollar ($5) fee, and one-twelfth of the fee indicated as a uniform business license tax fee for each additional month of operation. Uniform Fleet Size--Commercial Business Motor Vehicles Fee Safety Fee License Tax 1 $60 $60 2-4 $75 $125 5-10 $200 $275 11-20 $240 $470 21-35 $325 $650 36-50 $430 $880 51-100 $535 $1,075 101-200 $635 $1,300 201-500 $730 $1,510 501-1,000 $830 $1,715 1,001-2,000 $930 $1,900 2,001-over $1,030 $2,000 Notwithstanding the above fee schedule, motor carriers of property with 10 or fewer trucks shall not pay fees higher than they would have paid under the fee structure in place as of January 1, 1996. Notwithstanding Section 34606 of the Vehicle Code, fees for these carriers shall not be subject to an increase by the Department of Motor Vehicles. (b) Funds derived from safety fees shall remain in the Motor Vehicle Account in the State Transportation Fund and shall be available for appropriation by the Legislature to cover costs incurred by the Department of Motor Vehicles and the Department of the California Highway Patrol in regulating motor carriers of property pursuant to Division 14.85 (commencing with Section 34600) of the Vehicle Code. (c) It is the intent of the Legislature that the fee schedule established in subdivision (a) shall not discriminate against small fleet or individual vehicle operators or result in a disproportionate share of those fees being assigned to small fleet or individual vehicle operators. SEC. 3. Section 22507.5 of the Vehicle Code is amended to read: 22507.5. (a) Notwithstanding Section 22507, local authorities may, by ordinance or resolution, prohibit or restrict the parking or standing of vehicles on certain streets or highways, or portions thereof, between the hours of 2 a.m. and 6 a.m., and may, by ordinance or resolution, prohibit or restrict the parking or standing, on any street, or portion thereof, in a residential district, of commercial vehicles having a manufacturer's gross vehicle weight rating of 10,000 pounds or more. The ordinance or resolution relating to parking between the hours of 2 a.m. and 6 a.m. may provide for a system of permits for the purpose of exempting from the prohibition or restriction of the ordinance or resolution, disabled persons, residents, and guests of residents of residential areas, including, but not limited to, high-density and multiple-family dwelling areas, lacking adequate offstreet parking facilities. The ordinance or resolution relating to the parking or standing of commercial vehicles in a residential district, however, shall not be effective with respect to any commercial vehicle, or trailer component thereof, making pickups or deliveries of goods, wares, and merchandise from or to any building or structure located on the restricted streets or highways or for the purpose of delivering materials to be used in the actual and bona fide repair, alteration, remodeling, or construction of any building or structure upon the restricted streets or highways for which a building permit has previously been obtained. (b) Subdivision (a) of this section is applicable to vehicles specified in subdivision (a) of Section 31303, except that an ordinance or resolution adopted pursuant to subdivision (a) of this section shall not permit the parking of those vehicles which is otherwise prohibited under this code. (c) For the purpose of implementing this section, each local authority may, by ordinance, define the term "residential district" in accordance with its zoning ordinance. The ordinance is not effective unless the legislative body of the local authority holds a public hearing on the proposed ordinance prior to its adoption, with notice of the public hearing given in accordance with Section 65090 of the Government Code. SEC. 4. Section 23114 of the Vehicle Code is amended to read: 23114. (a) A vehicle may not be driven or moved on any highway unless the vehicle is so constructed, covered, or loaded as to prevent any of its contents or load other than clear water or feathers from live birds from dropping, sifting, leaking, blowing, spilling, or otherwise escaping from the vehicle. (b) (1) Aggregate material shall only be carried in the cargo area of a vehicle. The cargo area shall not contain any holes, cracks, or openings through which that material may escape, regardless of the degree to which the vehicle is loaded, except as provided in paragraph (2). (2) Every vehicle used to transport aggregate materials, regardless of the degree to which the vehicle is loaded, shall be equipped with all of the following: (A) Properly functioning seals on any openings used to empty the load, including, but not limited to, bottom dump release gates and tailgates. (B) Splash flaps behind every tire, or set of tires, regardless of position on the truck, truck tractor, or trailer. (C) Center flaps at a location to the rear of each bottom dump release gate as to trucks or trailers equipped with bottom dump release gates. The center flap may be positioned directly behind the bottom dump release gate and in front of the rear axle of the vehicle, or it may be positioned to the rear of the rear axle in line with the splash flaps required behind the tires. The width of the center flap may extend not more than one inch from one sidewall to the opposite sidewall of the inside tires and shall extend to within five inches of the pavement surface, and may be not less than 24 inches from the bottom edge to the top edge of that center flap. (D) Fenders starting at the splash flap with the leading edge of the fenders extending forward at least six inches beyond the center of the axle which cover the tops of tires not already covered by the truck, truck tractor, or trailer body. (E) Complete enclosures on all vertical sides of the cargo area, including, but not limited to, tailgates. (F) Shed boards designed to prevent aggregate materials from being deposited on the vehicle body during top loading. (c) Vehicles comprised of full rigid enclosures are exempt only from subparagraphs (C) and (F) of paragraph (2) of subdivision (b). (d) For purposes of this section, "aggregate material" means rock fragments, pebbles, sand, dirt, gravel, cobbles, crushed base, asphalt, and other similar materials. (e) (1) In addition to subdivisions (a) and (b), a vehicle may not transport any aggregate material upon a highway unless the material is covered. (2) Vehicles transporting loads composed entirely of asphalt material are exempt only from the provisions of this section requiring that loads be covered. (3) Vehicles transporting loads composed entirely of petroleum coke material are not required to cover their loads if they are loaded using safety procedures, specialized equipment, and a chemical surfactant designed to prevent materials from blowing, spilling, or otherwise escaping from the vehicle. (4) Vehicles transporting loads of aggregate materials are not required to cover their loads if the load, where it contacts the sides, front, and back of the cargo container area, remains six inches from the upper edge of the container area, and if the load does not extend, at its peak, above any part of the upper edge of the cargo container area. (f) Any person who provides a location for vehicles to be loaded with any aggregate material or any other material shall provide a location for vehicle operators to comply with this section before entering a highway. (1) A person is exempt from the requirements of this subdivision if the location that he or she provides for vehicles to be loaded with the materials described in this subdivision has 100 yards or less between the scale houses where the trucks carrying aggregate material are weighed and the point of egress to a public road. (2) A driver of a vehicle loaded with aggregate material leaving locations exempted from the requirements of this subdivision is authorized to operate on public roads only until that driver is able to safely cover the load at a site near the location's point of egress to the public road. Except as provided under paragraph (4) of subdivision (e), an uncovered vehicle described in this paragraph may not operate more than 200 yards from the point of egress to the public road. SEC. 5. Section 34501.12 of the Vehicle Code is amended to read: 34501.12. (a) Notwithstanding Section 408, as used in this section and Sections 34505.5 and 34505.6, "motor carrier" means the registered owner of any vehicle described in subdivision (a), (b), (e), (f), or (g) of Section 34500, except in the following circumstances: (1) The registered owner leases the vehicle to another person for a term of more than four months. If the lease is for more than four months, the lessee is the motor carrier. (2) The registered owner operates the vehicle exclusively under the authority and direction of another person. If the operation is exclusively under the authority and direction of another person, that other person may assume the responsibilities as the motor carrier. If not so assumed, the registered owner is the motor carrier. A person who assumes the motor carrier responsibilities of another pursuant to subdivision (b) shall provide to that other person whose motor carrier responsibility is so assumed, a completed copy of a departmental form documenting that assumption, stating the period for which responsibility is assumed, and signed by an agent of the assuming person. A legible copy shall be carried in each vehicle or combination of vehicles operated on the highway during the period for which responsibility is assumed. That copy shall be presented upon request by any authorized employee of the department. The original completed departmental form documenting the assumption shall be provided to the department within 30 days of the assumption. If the assumption of responsibility is terminated, the person who had assumed responsibility shall so notify the department in writing within 30 days of the termination. (b) (1) A motor carrier may combine two or more terminals that are not subject to an unsatisfactory compliance rating within the last 36 months for purposes of the inspection required by subdivision (d) subject to all of the following conditions: (A) The carrier identifies to the department, in writing, each terminal proposed to be included in the combination of terminals for purposes of this subdivision prior to an inspection of the designated terminal pursuant to subdivision (d). (B) The carrier provides the department, prior to the inspection of the designated terminal pursuant to subdivision (d), a written listing of all its vehicles of a type subject to subdivision (a), (b), (e), (f), or (g) of Section 34500 that are based at each of the terminals combined for purposes of this subdivision. The listing shall specify the number of vehicles of each type at each terminal. (C) The carrier provides to the department at the designated terminal during the inspection all maintenance records and driver records and a representative sample of vehicles based at each of the terminals included within the combination of terminals. (2) If the carrier fails to provide the maintenance records, driver records, and representative sample of vehicles pursuant to subparagraph (C) of paragraph (1), the department shall assign the carrier an unsatisfactory terminal rating and require a reinspection to be conducted pursuant to subdivision (h). (3) For purposes of this subdivision, the following terms have the meanings given: (A) "Driver records" includes pull notice system records, driver proficiency records, and driver timekeeping records. (B) "Maintenance records" includes all required maintenance, lubrication, and repair records and drivers' daily vehicle condition reports. (C) "Representative sample" means the following, applied separately to the carrier's fleet of motortrucks and truck tractors and its fleet of trailers: Representative Fleet Size Sample 1 or 2 All 3 to 8 3 9 to 15 4 16 to 25 6 26 to 50 9 51 to 90 14 91 or more 20 (c) Each motor carrier who, in this state, directs the operation of, or maintains, any vehicle of a type described in subdivision (a) shall designate one or more terminals, as defined in Section 34515, in this state where vehicles can be inspected by the department pursuant to paragraph (4) of subdivision (a) of Section 34501 and where vehicle inspection and maintenance records and driver records will be made available for inspection. (d) (1) The department shall inspect, at least every 25 months, every terminal, as defined in Section 34515, of any motor carrier who, at any time, operates any vehicle described in subdivision (a). (2) The department shall place an inspection priority on those terminals operating vehicles listed in subdivision (g) of Section 34500. (3) As used in this section and in Sections 34505.5 and 34505.6, subdivision (f) of Section 34500 includes only those combinations where the gross vehicle weight rating (GVWR) of the towing vehicle exceeds 10,000 pounds, but does not include a pickup truck, and subdivision (g) of Section 34500 includes only those vehicles transporting hazardous material for which the display of placards is required pursuant to Section 27903, a license is required pursuant to Section 32000.5, or for which hazardous waste transporter registration is required pursuant to Section 25163 of the Health and Safety Code. Historical vehicles, as described in Section 5004, vehicles that display special identification plates in accordance with Section 5011, implements of husbandry and farm vehicles, as defined in Chapter 1 (commencing with Section 36000) of Division 16, and vehicles owned or operated by an agency of the federal government are not subject to this section or to Sections 34505.5 and 34505.6. (e) (1) It is the responsibility of the motor carrier to schedule with the department the inspection required by subdivision (d). The motor carrier shall submit an application form supplied by the department, accompanied by the required fee. The initial fee, which is nonrefundable, for a carrier that initially enrolls into the program, is six hundred fifty dollars ($650) per terminal. The initial fee is four hundred dollars ($400) for a motor carrier that owns, leases, or otherwise operates not more than one heavy power unit and not more than three towed vehicles subject to this section. The renewal fee, which is nonrefundable, is four hundred dollars ($400) per terminal, except in the case of a motor carrier who owns, leases, or otherwise operates not more than one heavy power unit and not more than three towed vehicles subject to this section, for which the fee shall be one hundred dollars ($100). Federal, state, and local public entities are exempt from the fee requirements of this section. (2) Except as provided in paragraph (4), the inspection term for each inspected terminal of a motor carrier shall expire 25 months from the date the terminal receives a satisfactory compliance rating, as specified in subdivision (h). Applications and fees for subsequent inspections shall be submitted not earlier than nine months and not later than seven months before the expiration of the motor carrier's then current inspection term. If the motor carrier has submitted the inspection application and the required accompanying fees, but the department is unable to complete the inspection within the 25-month inspection period, then no additional fee shall be required for the inspection requested in the original application. (3) All fees collected pursuant to this subdivision shall be deposited in the Motor Vehicle Account in the State Transportation Fund. An amount equal to the fees collected shall be available for appropriation by the Legislature from the Motor Vehicle Account to the department for the purpose of conducting truck terminal inspections and for the additional roadside safety inspections required by Section 34514. (4) To avoid the scheduling of a renewal terminal inspection pursuant to this section during a carrier's seasonal peak business periods, the current inspection term of a terminal that has paid all required fees and has been rated satisfactory in its last inspection may be reduced by not more than nine months if a written request is submitted by the carrier to the department at least four months prior to the desired inspection month, or at the time of payment of renewal inspection fees in compliance with paragraph (2), whichever date is earlier. A motor carrier may request this adjustment of the inspection term during any inspection cycle. A request made pursuant to this paragraph shall not result in a fee proration and does not relieve the carrier from the requirements of paragraph (2). (f) It is unlawful for a motor carrier to operate any vehicle subject to this section without having submitted an inspection application and the required fees to the department as required by subdivision (e) or (h). (g) It is unlawful for any motor carrier to operate any vehicle subject to this section after submitting an inspection application to the department, without the inspection described in subdivision (d) having been performed and a safety compliance report having been issued to the motor carrier within the 25-month inspection period or within 60 days immediately preceding the inspection period. (h) (1) Any inspected terminal that receives an unsatisfactory compliance rating shall be reinspected within 120 days after the issuance of the unsatisfactory compliance rating. (2) A terminal's first required reinspection under this subdivision shall be without charge unless one or more of the following is established: (A) The motor carrier's operation presented an imminent danger to public safety. (B) The motor carrier was not in compliance with the requirement to enroll all drivers in the pull notice program pursuant to Section 1808.1. (C) The motor carrier failed to provide all required records and vehicles for a consolidated inspection pursuant to subdivision (b). (3) If the unsatisfactory rating was assigned for any of the reasons set forth in paragraph (2), the carrier shall submit the required fee as provided in paragraph (4). (4) Applications for reinspection pursuant to paragraph (3) or for second and subsequent consecutive reinspections under this subdivision shall be accompanied by the fee specified in paragraph (1) of subdivision (e) and shall be filed within 60 days of issuance of the unsatisfactory compliance rating. The reinspection fee is nonrefundable. (5) When a motor carrier's Motor Carrier of Property Permit or Public Utilities Commission operating authority is suspended as a result of an unsatisfactory compliance rating, the department shall conduct no reinspection until requested to do so by the Department of Motor Vehicles or the Public Utilities Commission, as appropriate. (i) It is the intent of the Legislature that the department make its best efforts to inspect terminals within the resources provided. In the interest of the state, the Commissioner of the California Highway Patrol may extend for a period, not to exceed six months, the inspection terms beginning prior to July 1, 1990. (j) To encourage motor carriers to attain continuous satisfactory compliance ratings, the department may establish and implement an incentive program consisting of the following: (1) After the second consecutive satisfactory compliance rating assigned to a motor carrier terminal as a result of an inspection conducted pursuant to subdivision (d), and after each consecutive satisfactory compliance rating thereafter, an appropriate certificate, denoting the number of consecutive satisfactory ratings, shall be awarded to the terminal, unless the terminal has received an unsatisfactory compliance rating as a result of any inspection conducted in the interim between the consecutive inspections conducted under subdivision (d), or the motor carrier is rated unsatisfactory by the department following a controlled substances and alcohol testing program inspection. The certificate authorized under this paragraph shall not be awarded for performance in the administrative review authorized under paragraph (2). However, the certificate shall include a reference to any administrative reviews conducted during the period of consecutive satisfactory compliance ratings. (2) Unless the department's evaluation of the motor carrier's safety record indicates a declining level of compliance, a terminal that has attained two consecutive satisfactory compliance ratings assigned following inspections conducted pursuant to subdivision (d) is eligible for an administrative review in lieu of the next required inspection, unless the terminal has received an unsatisfactory compliance rating as a result of any inspection conducted in the interim between the consecutive inspections conducted under subdivision (d). An administrative review shall consist of all of the following: (A) A signed request by a terminal management representative requesting the administrative review in lieu of the required inspection containing a promise to continue to maintain a satisfactory level of compliance for the next 25-month inspection term. (B) A review with a terminal management representative of the carrier's record as contained in the department's files. If a terminal has been authorized a second consecutive administrative review, the review required under this subparagraph is optional, and may be omitted at the carrier's request. (C) Absent any cogent reasons to the contrary, upon completion of the requirements of subparagraphs (A) and (B), the safety compliance rating assigned during the last required inspection shall be extended for 25 months. (3) Not more than two administrative reviews may be conducted consecutively. At the completion of the 25-month inspection term following a second administrative review, a terminal inspection shall be conducted pursuant to subdivision (d). If this inspection results in a satisfactory compliance rating, the terminal shall again be eligible for an administrative review in lieu of the next required inspection. If the succession of satisfactory ratings is interrupted by any rating of other than satisfactory, irrespective of the reason for the inspection, the terminal shall again attain two consecutive satisfactory ratings to become eligible for an administrative review. (4) As a condition for receiving the administrative reviews authorized under this subdivision in lieu of inspections, and in order to ensure that compliance levels remain satisfactory, the motor carrier shall agree to accept random, unannounced inspections by the department. (k) This section shall be known and may be cited as the Biennial Inspection of Terminals Program or BIT.