The variety of the more than 2,600 written public comments on the Federal Motor Carrier Safety Administration’s proposed changes to its hours-of-service rules illustrate the challenge of finding solutions that address the concerns of the trucking industry’s different segments.

The agency’s request for public comment on the HOS Notice of Proposed Rulemaking ended on Oct. 21, and the agency must now digest the comments and craft a final rule, a process that could take months.

The proposal, announced Aug. 14, would allow truck drivers more flexibility with their 30-minute rest break and with dividing their time in the sleeper berth. It also would extend by two hours the duty time for drivers encountering adverse weather and extend the shorthaul exemption by lengthening the drivers’ maximum on-duty period from 12 hours to 14 hours and increasing the distance limit in which drivers can operate from 100 air miles to 150 air miles.

American Trucking Associations said it mostly supports the proposed changes, but had a few precautionary comments on some of the provisions.

While ATA fully supports the agency’s proposed 7/3 split of the 10-hour sleeper berth period, it said that FMCSA should conduct a field pilot program and only propose further flexibility — such as a 6/4 or 5/5 split — if the results demonstrate that additional splits would not harm driver performance or road safety. FMCSA had planned to conduct such a pilot, but has since decided it has enough data to make a determination.

The Owner-Operator Independent Drivers Association and some drivers would like to see the final rule offer an option of 5/5 hour or 6/4 hour split.

“Beyond expanding the split sleeper provision to 7/3, FMCSA should also include 6/4 and 5/5 splits in any final rulemaking,” OOIDA wrote, noting that 85% of members surveyed in 2019 supported the idea. “Drivers said they would use the 5/5 split an average of 2.02 times per week and the 6/4 split an average of 1.86 times per week,” the group said.

The Commercial Vehicle Safety Alliance expressed concern about potential confusion regarding changes to the 30-minute rest break rule. “FMCSA’s proposed change to the 30-minute rest break requirement eliminates the need for the existing exemptions to the rule,” it wrote. “Upon finalization of the change, FMCSA should revoke all existing applicable on-duty exemptions to the 30-minute rest break requirement.”

ATA said it supports the proposed expansion of the shorthaul exemption, but expressed concern that it could increase the number of drivers who would be no longer be required to use electronic logging devices or records of duty status relative to current rules.

The Truckload Carriers Association also expressed concern about the impact of this proposal on the ELD mandate.

“Many drivers who are currently required to log their HOS with an ELD could be exempted from this obligation under the proposed rule change. TCA is opposed to any proposal which would weaken the ELD mandate,” it said in its comments.

Like several other driver and trade organizations that filed comments, ATA and other trade organizations also expressed a lack of clarity regarding the adverse driving conditions provision in the proposal that would give drivers an extra two hours of driving time in bad weather.

“Although ATA supports the proposed changes allowing a driver to extend their on-duty time up to two additional hours, the agency should review and revise the existing definition and provide guidance on what constitutes ‘adverse conditions,’ ” ATA wrote.

Some organizations — including the National Transportation Safety Board, National Safety Council, Teamsters Union, Advocates for Auto and Highway Safety, and Road Safe America — oppose any changes to the HOS rules.

“Given this rulemaking combined with the FMCSA’s inaction on sleep apnea, fatigue risk management, and other fatigue countermeasures, the NTSB is concerned about the FMCSA’s efforts to mitigate fatigued driving among commercial drivers,” NTSB wrote. “The NTSB encourages the FMCSA to emphasize safety over flexibility in this and any future rulemaking pertaining to HOS and other fatigue rulemakings.”

The National Safety Council wrote, “If enacted, this rule would have a direct impact on driving safety by raising the risk for commercial motor vehicle drivers and all those who share the road with them.”

But Rachel Snow, a truck driver who lives in Tooele, Utah, filed comments that appeared to represent a widespread feeling about the proposal.

“I have been driving for 21 going on 22 years, accident-free,” Snow wrote. “I am 42 years old and I have always found the restrictions of the FMCSA HOS to be a burdensome restraint on my abilities. I understand that what is being proposed is not everything I would like to see offered, but it is a step in the right direction.

California lawmakers have passed a bill that codifies into law a 2018 state Supreme Court decision that makes it easier for independent contractors to become reclassified as employees of motor carriers.

Assembly Bill 5, passed along party lines by the state Senate on Sept. 10 and Assembly on Sept. 11, was the latest development by officials in California attempting to reduce what they have called widespread misclassification of independent contractors.

The bill was signed into law on Sept. 18 by Democratic Gov. Gavin Newsom, who had publicly voiced his support for the legislation.

The bill has been opposed by the California Trucking Association because the trade organization said it will require many motor carriers to use an employee standard known as the “ABC test” that truckers have said makes it difficult, if not impossible, to continue the use of independent contractors.

The test was upheld by the California high court in a case styled Dynamex Operations West Inc. v. Superior Court of Los Angeles.

The B-prong of the ABC test is the most troublesome, carriers have said. It dictates that for a motor carrier to establish that a worker is an independent contractor that the worker must perform work that is outside the usual course of the hiring entity’s business.

Greg Feary, a partner in the Indianapolis-based trucking law firm Scopelitis, Garvin, Light, Hanson & Feary, P.C., called the California legislation “Dynamex on steroids.”

“I think it will ripple through the industry and cause some changes for sure,” Feary told Transport Topics. “For the most part, the ABC test would be used under this statute for courts or other adjudicators in the government to determine whether an owner-operator providing truck driving services to a motor carrier is an independent contractor. It’s a controversial bill.”

“AB 5 could have been amended to address worker misclassification issues, as well as protect the 70,000 [predominantly minority] truckers currently operating as independent contractors,” California Trucking Association’s CEO Shawn Yadon said in a statement. “There is no reason why protecting workers does not include defending the right of tens of thousands of drivers who have built their businesses as independent truckers, invested hundreds of thousands of dollars in clean trucks and have operated successfully.”

Yadon added, “AB 5 will have implications that will go beyond worker classification. Like the rest of the nation, California is experiencing a shortage of truck drivers, this measure will aggravate the problem by removing thousands of drivers from rosters as many have indicated they will move to other states or seek a different line of work altogether.”

AB 5 proponents created a scenario in which they chose winners and losers by carving out exemptions for some professions while excluding others, California Trucking Association said.

It added that AB 5 was amended to allow drivers working within the construction industry a narrow window to continue operating as independent truckers for a two-year grace period. However, the bill will severely limit work opportunities for tens of thousands of independent owner-operators in other business sectors.

In California, more than 136,950 trucking companies remain primarily small, locally owned businesses with small fleets and independent drivers, according to California Trucking Association.

“Today the Legislature made it clear: we will not in good conscience allow free-riding businesses to profit off depriving millions of workers from basic employee rights that lead to a middle-class job,” said Assemblywoman Lorena Gonzalez, the bill’s author. “Employers looking to cut costs at the expense of workers have misclassified more than a million Californians and in turn, we have seen income inequality increase, union membership decline and the power of working people diminish.”

Democratic Gov. Gavin Newsom has signed into law a bill that directs the California Air Resources Board and other state agencies to develop and implement a new smog inspection program for heavy-duty diesel on-road trucks.

The inspection and maintenance program would begin with a two-year pilot program to develop and demonstrate technologies that show potential for bringing heavy vehicles more than 6 years old and with a gross vehicle weight of more than 14,000 pounds into a permanent testing program similar to one already in place for cars.

“Just as car owners have to get their own personal cars ‘smog checked’ every two years, so too should truck operators be required to maintain their emissions controls so that we can ensure long-lasting air quality improvements here in California,” Democratic state Sen. Connie Leyva, author of the bill, said in a statement. “With Governor Newsom’s signature, SB 210 reinforces California’s leadership on improving air quality and public health, while also leveling the playing field for law-abiding truck owners and operators in our state.”

The new law would authorize CARB to assess a fee and penalties as part of the program and would create the Truck Emission Check Fund, which would be available upon appropriation by the legislature to the state board for “the regulatory purposes of the program.”

Mike Tunnell, California-based director of energy and environmental affairs for American Trucking Associations, said the future system would eventually sunset the current program requiring motor carriers to conduct annual smoke tests and replace it with a program that is more emissions-based.

“What that will look like is still to be determined,” Tunnell said.

But CARB is hoping to accomplish the goals of the new law with an emissions-testing program that would not have to follow the station-based model of the smog check program currently used for cars.

Instead, the agency has been working on a program concept that could be based on the use of telematics and other data collection and submission tools to enable the inspection process from the vehicle’s location, officials have said in discussion documents.

One potential program design concept couples periodic on-board diagnostics system checks as the primary test method with on-road emissions monitoring that would use remote sensing devices and plume capture systems to identify high emitters and verify program effectiveness.

The program should be designed to ensure both in-state and out-of-state vehicles have adequate methods to demonstrate compliance with program requirements, according to CARB.

Currently, there is no smog check-type program for heavy-duty vehicles to ensure their emissions control systems are functioning properly and repaired in a timely manner, according to CARB.

CARB’s current Periodic Smoke Inspection Program requires diesel and bus fleet owners to conduct annual smoke opacity inspections and maintain records of the tests, and repair those vehicles with excessive smoke emissions to ensure compliance. In addition, CARB randomly audits fleets, reviews maintenance and inspection records, and tests a representative sample of vehicles. A fleet owner that neglects to perform the annual smoke opacity inspection on applicable vehicles is subject to a penalty of $500 per vehicle per year.

CARB officials say that even with modern emissions controls and on-board diagnostics monitoring systems, 2019 estimates indicate that heavy trucks contribute approximately 58% of the statewide on-road mobile source oxides of nitrogen emissions and about 82% of the statewide on-road mobile source particulate matter emissions. Some of these emissions are attributed to broken or failing emissions-related equipment.

Approximately 12 million residents across California live in communities that exceed federal ozone and PM standards, according to state environmental officials. Increased exposure to harmful emissions has been directly associated with serious health impacts, particularly for the elderly, small children and people with pre-existing respiratory issues, it said.

“There’s work to be done on a new system,” Tunnell said. “Hopefully with the telematics on the truck, something can be designed that is less intrusive than what most of us know as a smog test program.”