[Last updated: September 28, 2005]

VIII. Miscellaneous definitions

A. Breakdown artist

B. Commercial motor vehicle; commercial motor carrier

C. "On-duty" time

D. Person

VIII.A. Definition of breakdown artist

A "breakdown artist" intentionally creates safety violations on vehicles in order to qualify for wage payment while awaiting their repair. Roadway Exp., Inc. v. Brock, 830 F.2d 179, 180 (11th Cir. 1987).

Spinner v. Yellow Freight System, Inc., 90-STA-17 (Sec'y May 6, 1992).

VIII B Definition, commercial motor vehicle/commercial motor carrier

In Killcrease v. S & S Sand and Gravel, Inc., 92-STA-30 (Sec'y Feb. 2, 1993), the Respondent contended that it was not subject to the STAA. The Secretary analyzed the statutory and regulatory provisions in concluding that the Respondent was subject to the STAA:

General provision imposing liability

STAA section 405(a) provides that "[n]o person shall discharge * * * any employee * * * because such employee * * * has filed any complaint * * * relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order * * * ." 49 U.S.C. app. § 2305(a) (emphasis added).

STAA section 405(b) provides that "[n]o person shall discharge * * * an employee * * * for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health * * *." 49 U.S.C. app. § 2305(b) (emphasis added).

Definition of "person"

A "person" is "one or more individuals, partnerships, associations, corporations, business trusts, or any other organized group of individuals" for purposes of the subchapter, 49 U.S.C. app. § 2301(4).

Definition of "employee"

An "employee" is a driver of a commercial motor vehicle, a mechanic, a freight handler, or any individual other than an employer "who is employed by a commercial motor carrier and who in the course of his employment directly affects commercial motor vehicle safety * * *." 49 U.S.C. app. § 2301(2).

Definition of "employer"

An "employer" is "any person engaged in a business affecting commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it in commerce, but such term does not include the United States, an State, or a political subdivision of a State . . . ." 49 U.S.C. app. § 2301(3).

Definition of "commercial motor vehicle"

A "commercial motor vehicle" includes "any self- propelled * * * vehicle used on the highways in commerce principally to transport passengers or cargo" with a gross vehicle weight rating of ten thousand or more pounds. 49 U.S.C. app. § 2301(1).

Definition of "commercial motor carrier"

The term "commercial motor carrier" is not defined in the subchapter but has been interpreted to include motor carriers and motor private carriers described at 49 U.S.C. § 10102(13) (14), (15), and (16) (1988). See 29 C.F.R. § 1978.101(e).

Relationship between motor common carrier, motor contract carrier and motor private carrier

A motor carrier either (1) holds itself out to the general public to provide motor vehicle transportation for compensation (motor common carrier) or (2) provides motor vehicle transportation for compensation under a continuing agreement (motor contract carrier). A motor private carrier transports property owned by it, via motor vehicle, for sale or to further a commercial enterprise.

In Killcrease, the Respondent was a private carrier engaged in truck transport of sand and gravel which it mined, processed, transported by commercial motor vehicle, and sold. Therefore, it was a commercial motor carrier covered under STAA section 405.

The Respondent also constituted an employer within the STAA definition because its business affected commerce in that it regularly transported (via its employees operating commercial motor vehicles) sand and gravel, mined and processed at its pit and plant in Lenox, Alabama, to customer facilities in other locations in Alabama and occasionally to one location in Florida (including occasionally backhauling sodium nitrate on a contract basis).

The fact that Respondent's drivers regularly operated vehicles on national interstate highways also supported a finding that it was engaged "in commerce".

The Secretary distinguished regulatory schemes in which classification of a "motor private carrier" can require a quantum of transportation between States or across national boundaries.

E.g., 49 U.S.C. §§ 3101-3104 (DOT); 49 U.S.C. Subtitle IV (ICC). STAA section 405 has a remedial purpose that applies a more generic "commercial motor carrier" that is not statutorily defined. Absent a statutory definition, the Secretary concluded that it is appropriate to accord "commercial," deriving from "commerce," its legal meaning. [Editor's note: Secretary did not explain what commercial's legal meaning is or provide a citation of authority]

In addition, the Secretary concluded that the legislative history of the STAA militates in favor of construing the term expansively to describe motor carriers "in" or "affecting" commerce. See H.R. Conf. Rep. No. 987, 97th Cong., 2d Sess. at 163-164, reprinted in 1982 U.S. Code Cong. & Admin. News (USSCAN), 3639, 3744- 3745.

The House Conference Report noted Department of Transportation authority to regulate "primarily with regard to vehicles that cross State lines or national boundaries or perform the intrastate portion of a continuous interstate movement" and expressed the intent to extend that authority so that "commercial motor vehicle operations both in and affecting interstate and foreign commerce" are regulated under the safety subchapter (now 49 U.S.C. app. §§ 2301-2307). H.R. Conf. Rep. No. 987 at 163, 1982 USCCAN at 3744 (emphasis added). Coverage under the subchapter extends, for example, to vehicles designed to transport ten or more persons to ensure "the highest levels of safety in this particularly important transportation area." H.R. Conf. Rep. at 164, 1982 USCCAN at 3745. Elsewhere in Title 49 coverage generally is limited to vehicles designed to transport 15 or more persons. Compare with other covering provisions where Congress explicitly has specified application, e.g., 49 U.S.C. app. § 2306(f) (commercial motor vehicle; meaning limited to section); 2314(c)(3) (interstate system); 2315(b)(2) (national intercity truck route network); 2503(1) (commercial motor vehicle); 2503(4) (interstate commerce); 2503(5) (intrastate commerce); 2515(b) (commercial motor vehicle).

[STAA Whistleblower Digest VIII B]
COMMERCIAL MOTOR VEHICLE; YARD HORSES

In Harrison v. Administrative Review Board, __ F.3d __, No, 03-4428 (2d Cir. Nov. 30, 2004) (case below ARB No. 00-048, ALJ No. 1999-STA-37), the Complainant operated a "yard horse," which is a tractor used to maneuver trailers within the terminal, and was discharged after performing a yard horse inspection that his supervisor found to be unsafe and unauthorized. The Second Circuit affirmed the ALJ's and ARB's finding that yard horses are not "commercial motor vehicles" under the STAA's statutory and regulatory definition, and therefore the Complainant was not engaged in protected activity relative to inspection of the yard horses. The yard horses were not used on the highways but at the Respondent's facility which had at least one sign posted prohibiting unauthorized persons and private vehicles, and which was entirely enclosed by a chain link fence. The court was not convinced to the contrary by the Complainant's argument that the yard horses were sometimes connected to trailers that are used on the highways.

VIII B Tanker Truck

In Kanavel v. U-Haul Company of Northwestern Ohio, 88-STA-9 (Sec'y Oct. 24, 1988), the Secretary held that the Complainant failed to show that a tanker truck owned and leased by Respondent, U-Haul, would fit the definition of a commercial vehicle within the meaning of the Act. Complainant presented no evidence as to the gross vehicle weight rating of the tank truck.

VIII C Definition of "on- duty" time

Under DOT regulations, "on-duty" time is "[a]ll time from the time a driver begins to work or is required to be in readiness to work until the time he is relieved from work and all responsibility for performing work." 49 C.F.R. § 395.2(a). It includes time spent

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• waiting to be dispatched;

• inspecting, servicing, or conditioning equipment;

• loading or unloading a vehicle;

• attending a vehicle;

• remaining in readiness to operate a vehicle;

• in giving or receiving receipts for shipments;

• repairing, obtaining assistance for, or remaining in attendance upon a disabled vehicle; or

• driving a vehicle.

In Polger v. Florida Stage Lines, 94-STA-46 (Sec'y Apr. 18, 1995), the Respondent contended that "on-duty" hours should be confined to driving hours. The Secretary disagreed, finding that the Complainant was on-duty when he was required to: remain with, or in the vicinity of the bus; attend to the needs of the group he was transporting; to maintain or fuel the bus or to attend to breakdowns; stand by to pick up a group. The Secretary agreed with the ALJ's finding that this pattern was typical of employment with the Respondent. See 49 C.F.R. §§ 395.2(1), 395.3(b)(2).

VIII C Seventy hour rule

The "seventy hour rule" forbids the accumulation of more than seventy total duty hours in an eight hour period. 49 C.F.R. § 395.3(b)(2). Reemsnyder v. Mayflower Transit, Inc., 93-STA-4 (Sec'y May 19, 1994).

VIII D Definition of "person"

A "person" is "one or more individuals, partnerships, associations, corporations, business trusts, or any other organized group of individuals" for purposes of the subchapter, 49 U.S.C. app. § 2301(4).

Killcrease v. S & S Sand and Gravel, Inc., 92- STA-30 (Sec'y Feb. 2, 1993).