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Split-duty HOS proposal result of input from stakeholders

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The HOS proposal allows for an off-duty break of at least 30 minutes, but no more than three hours, during the course of a driver’s 14-hour driving window to extend the 14-hour driving window to extend that period for the length of that break, provided that drivers take at least 10 consecutive hours off at the end of the work shift.” (Courtesy: PETERBILT MOTORS CO.)

Everyone knows by now that the Federal Motor Carrier Safety Administration has officially published the long-awaited Notice of Proposed Rulemaking Hours of Service of Drivers.

The initial document made public contained 129 typewritten, double-spaced pages, so it’s unlikely that very many have read it in its entirety.

For those who think the FMCSA never listens to industry stakeholders, take heed.

The split-duty provision is the result of stakeholder input.

Part of the document contains a discussion for each of the major changes, including the split-duty provision, which allows a driver to take up to a three-hour break and extend the 14-hour on-duty window.

Here’s the way the provision now reads as taken from the FMCSA document:

“After being off duty for 10 or more consecutive hours, a driver of a property-carrying CMV is allowed a period of 14 consecutive hours in which to drive up to 11 hours. The 14-consecutive-hour driving window begins when an individual starts any kind of work. The individual may not drive again after the end of the 14-hour window until he or she has been off duty for another 10 consecutive hours, or the equivalent of at least 10 consecutive hours using the sleeper berth option. This 14-hour window currently may not be extended by off-duty breaks that may occur during the duty period.”

Here’s the new proposal per the same document:

“Would add a new option for one off duty break of at least 30 minutes, but no more than three hours, during the course of a driver’s 14-hour driving window to extend the 14-hour driving window to extend that period for the length of that break, provided that drivers take at least 10 consecutive hours off at the end of the work shift.”

According to the FMCSA document, it was the Owner-Operator Independent Drivers Association that petitioned the FMCSA to change the rule to allow extending the 14-hour driving window.

Speaking to comments that were requested when the Advance Notice of Proposed Rulemaking was published in August 2018, consistent with the OOIDA petition, the FMCSA said a number of commenters addressed the 14-hour rule, saying that it should be extended by a break period of up to three hours.

“Many commenters to the ANPRM have stated that the 14-hour driving window does not comport with the inconsistent and sometimes unpredictable working conditions encountered during a duty period. Thus, the current rule leads to unintended consequences of added stress and potential speeding that result from the need to finish a run prior to the end of the 14-hour window.

Just because the split-duty provision is in the NPRM, doesn’t mean it will be in the final rule.

Safety advocates could mount a successful campaign to prevent inclusion.

To wit, the FMCSA is seeking comments on specific questions related to the split-duty provision.

If you like this provision, you should comment.

Among the questions:

  • How will this provision impact the number of driving hours during a single driving window?
  • How will this provision impact your total driving hours during a given week or year?
  • How would this provision impact your regular schedule? How often would you expect to take advantage of this provision in a given work week? Why?
  • What are the expected benefits from utilizing the 3-hour pause?
  • Do you expect to use this provision to account for uncertainty so that trips could be finished on their scheduled completion day? How often do uncertain factors impact your schedule such that you are unable to complete a trip during the expected driving window and must delay delivery until after a 10-hour off-duty period?
  • Do you expect to be able to complete more trips due to this provision (i.e., schedule additional freight movement)? How many additional trips would you expect to plan during a given week or year?
  • Would you expect to be able to utilize more of the 11 hours of drive time currently available due to the three-hour pause?
  • Do you expect this provision to impact drivers’ sleep schedule? How so?
  • Will this provision allow for drivers to shift their circadian rhythms more easily than under current rules?
  • In a full year, would this provision lead to additional driving miles and/or driving time?
  • How often would you take advantage of the full three-hour pause as compared to shorter amount of time? Why?
  • How would you plan to utilize the off-duty time spent during the three-hour pause?
  • Would you utilize the time sleeping in a truck cab more often or other leisure activities more often?
  • Do you anticipate any fatigue impacts on driving up to the 17th hour of a duty day?
  • How would the up to three-hour break impact that fatigue level?

It’s important for you to comment, and the easiest method is to go to regulations.gov and type in FMCSA-2018-0248 in the search box. Hit the search button and a page will come up with a button on the righthand side that says “Comment Now.”

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The Nation

Lane Departures: Why would California lawmakers saddle trucking with the ABC test?

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Well, he said he’d do it.

If you look elsewhere on this website, you’ll see a story I did about a week ago about AB5, a bill passed by the California Senate on September 10 into the waiting arms of Gov. Gavin Newsom, who had long telegraphed he was looking forward to signing it.

Yesterday, he did it. And come the new year, trucking is going to have to live with it.

AB5 — the full name is the “Employees and Independent Contractors” bill — is ostensibly intended to prevent employers from exploiting workers and skirting expenses by relying on “independent contractors” to make their businesses run instead of hiring full-fledged employees, who come with all kinds of nasty baggage like guaranteed minimum wages, overtime and payroll taxes, mandatory breaks, insurance and other horrific profit reducers.

The bill got off the ground in the wake of a court case last year in which a delivery company called Dynamex was determined to have improperly reclassified its workers as independent contractors in order to save money.  In making the decision, the court applied what is known as the ABC test, which presumes all workers should be classified as employees unless they meet three criteria.

Like the court case, the bill, which will codify the ABC test across the state, seems to have been at least in spirit aimed at companies like Dynamex that are part of that there so-called “gig economy” all the young folks are so hopped up about. Ride-sharing companies Uber and Lyft are almost always mentioned as Public Enemies 1A and 1B of supposed independent contractor charlatans.

The problem with AB5, its critics say, is it proposes to perform an appendectomy with a chainsaw, ripping into industries that have long-established business models that extensively use independent contractors to the satisfaction of all involved.

A great big example would be trucking, because it appears the ABC test would prevent carriers from contracting with owner-operators or smaller fleets in California. I’ll let you imagine the consequences if that’s true.

If you’ve read the article, or your planning to read the article, I’d like to apologize in advance because as I’ve been learning about this AB5 business, I have some lingering questions that I could not answer. I have calls out to a couple of experts on the legal and logistical nuances. Unfortunately, experts don’t observe journalistic deadlines.

But then, I figured, this story is going to be around a while, so we can keep building on what we know. I may have answers to some of these questions by the time you read this. Or maybe you will be able to provide some of the answers. I mean, you don’t need to have a title or a degree or be part of a think tank to know a thing or two.

My first question is this: They didn’t pull this ABC test out of thin air. A majority of states already use the test in some manner on matters of job status. California’s application of ABC is based on Massachusetts’ broad, strict use of the test. So, hasn’t trucking had to contend with this standard there and in in other states already? I haven’t heard reports of empty store shelves in Massachusetts. Is there some simple workaround already in existence just waiting for cooler heads to prevail?

Second, from what I gather, ABC has had its critics for as long as it’s existed. Is it just the sheer size of California’s economy that makes this case so important or somehow different?

I’m going to go way out on a limb and say “probably.” Last year, California’s economy outgrew that of Great Britain. If it were an independent country, California would have the fifth-largest economy in the world. And what happens in California rarely stays in California. The state has a major influence on the rest of the nation.

California’s economy is closing in on $3 trillion a year. Real estate, finance, the entertainment industry and that nest of tech behemoths in Silicon Valley are responsible for big chunks of that.

And let’s not forget agriculture. California ranches and farms reaped $50 billion in receipts in 2017. That’s a lot of food, a lot of truckloads.

California also has some of the nation’s largest seaports. The Port of Long Beach alone sees about $200 billion in cargo a year, with 11,000 truckloads leaving the port each day. And most of what doesn’t go by truck from there eventually winds up on a truck somewhere inland.

Add it all up, and trucking is a huge player in the California economic machine. Why would lawmakers want to strip its gears with this law? Some lawmakers are even on record saying they are worried about what this could do to the industry. Then why are they doing it?

The bill’s sponsor, Democrat Lorena Gonzalez of San Diego, is not some gung-ho rookie lawmaker. She’s in her third term, and she already has made a national name for herself as a champion of the working class with several pieces of legislation she has supported.

AB5 could fit into that collection quite nicely. But it isn’t a trophy she needs in a hurry. She won her last two reelection campaigns by about a 3-1 margin.

And she’s also been around enough that she surely understands that despite its best intentions, the broad-stroke, one-size-fits-all approach AB5 takes will do more harm than good to many industries, including trucking.

In fact, she’s as much as said so. Gonzalez has already indicated that once the bill becomes law, she’d be open to making amendments and granting exemptions.

So why wait? The bill already grants exemptions to real estate, to doctors and dentists. Even newspaper delivery people got a last-minute, one-year exemption.

The California Trucking Association and the Western States Trucking Association pushed for an exemption. Dozens of truck drivers testified in Sacramento. And you have to think state legislators are at least vaguely aware of what goes on in their own districts.

So, they could grasp the importance of the guy who throws a newspaper in their driveway from a passing car at 4 a.m., but not of the people who deliver, like, everything everywhere all the time?

We all know how long fixing bad legislation can take. Even if they put it on the “fast track,” how much damage will occur before trucking can get an exemption?

I did hear back from one legal expert on the matter. Greg Feary, president and managing partner at Scopelitus, Garvin, Light, Hansen and Feary LLC, said there are a couple of cases in Ninth Circuit Court that could spell relief for the trucking industry. Even so, the legal system can move almost as slowly as the legislative system. He estimates California truckers are going to have to live with AB5 for at least a year.

Questions abound. I’m not looking forward to some of the answers.

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The Nation

Trucking submarine style in Texas

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Texas is getting hit hard with flooding.  This takes it to new levels!


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The Nation

Flooding in Texas – That cab’s gonna be a bit damp!

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KHOU reporter Melissa Correa happened to be on scene and captured this video.  Another motorist grabbed a hammer and rope and saved the drivers life.

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