Ask The Trucker

Raising the Standards of the Trucking Industry


Denham Amendment against truckers slipped in the 2018 FAA Reauthorization bill at 11th hour

Apr
19,
2018
10

Drivers, we have 5 days to defeat the latest and 6th attempt by the ATA, who are determined to change Federal existing law (Federal Aviation Administration Authorization Act of 1994), by way of the Denham Amendment, into new law, negatively affecting how drivers are paid.

Tuesday April 24th is the deadline to make sure that the Denham Amendment is NOT added to H.R.4, the FAA Reauthorization bill.

UPDATE:  Here is how the HOUSE voted on April 26th 2018 which passed.  Most Republicans voted with the ATA.  Here is how your Reps voted.

Changing the Law to Preempt States Rights

There are states who have laws and believe that truckers should be paid for all their work, in addition to their miles driven.  We’re telling government not to allow amendments  to laws which were originally meant to deregulate freight ( 1994 FAAA ACT) p.37 TITLE VI—INTRASTATE TRANSPORTATION OF PROPERTY Sec 601

.  The FAAA was not intended to regulate state labor laws, which is what the ATA is contesting.

Denham Amendment Vote No

Say NO to Denham Amendment in 2018 FAA Re-Authorization bill

The ( 1994 FAAA ACT)  was not meant to preempt states labor laws so that drivers wages could be regulated.

After failing to have the poison Denahm/ Preemption language added to the recent Omnibus bill last month, the ATA and their powerful lobby have manged to get the Denham Amendment once again in the 2018 FAA Reauthorization bill.

What is the Denham amendment?

It is an amendment which would preempt states rights, states who protect employees, including truckers, ensuring they are paid for all time.

 

Some of these states allow for paid rest breaks.  They also allow for short meal breaks ( not paid).
Drivers can waive these breaks however, they are not forced to take them, something which the ATA fails to tell drivers.

The Truth about Meal and Rest Breaks for Intrastate drivers

The  Denham Amendment has once again been included in the 2018 FAA Reauthorization bill, where companies would be legally permitted to only pay drivers for the time they spend driving, despite the fact that drivers are required to spend a great deal of time performing non-driving duties in the fulfillment of their employment such as pre and post trip inspections, maintenance and loading and unloading ( Detention Time). This would put an end for any possibility of being paid for  all time recorded  as “on duty not driving”

The Denham amendment would preempt state regulations, state laws, and state court decisions, many of which have been on the books for decades, that protect workers, including commercial truck drivers from being exploited.

Watch the original video of Denham Amendment when it was first introduced Nov 2015

The Truth About Trucking Network says NO to the Denham Amendment

ATA has tried 5 times to slip this language in, to ensure that carriers will not be legally obligated to pay drivers for all time.: the 2015 Highway bill, 2016 FAA funding reauthorization bill, the 2017 omnibus funding bill, the Thud and DOT 2018 appropriation bills (when they were going piece meal) and the most recent 2018 omnibus funding bill.

Here is two of many radio shows we did concerning Denham language and the FAA

Trucker Wages: The Devastating affects if Congress amends F4A

Open Forum- Vote NO! FAA anti-trucker bill and ELDs

Carriers have lost many court cases, including state Supreme courts.  The only way they beleive they can defeat this poison language is through Congress, just like they did with the ELD mandate!

Here is what OOIDA said about Preemption/Denham amendment language.
It would “unravel mandated fair-pay for drivers and would empower large carriers to further reduce driver wages.”

Drivers, don’t let them do this to you again!  We must call our reps and tell them :
Do not allow the Denham Amendment in the 2018 FAA Reauthorization bill.

Federal Preemption update against Trucker Wages -The fight to be paid for all time

The ATA tells Congress that they are the voice of trucking!  We do not agree. We hope you will call Congress and tell them that the ATA does not speak for professional drivers. Say no to the Denham Amendment.

Call 202-224-3121
Or
Here is a link to every U.S. senator email and phone

Here is a link to every U.S.Representative

 

To learn more about the ATA’s relentless attempts to include anti trucker wage amendments in bills go to the info graphic and then scroll all the way down to the RELATED Links.

InfoGraphic-STOP New Legislation-Truck Driver Wages at Risk.

 

 

 

 

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Discussions regarding Denham Amendment are included on the April 21st  Open Forum Trucking Discussion show on AskTheTrucker ‘Live”

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James Lamb settled with FTC and Pays nothing except his own legal fees

Apr
17,
2018
0

James Lamb settled with FTC and Pays nothing except his own legal fees

It all started in October of 2016  when the United States Federal Trade Commission (“FTC”) convinced a Federal Judge into believing that a 15 year old small business truck permit company Dotauthority.com and its sister company Dotfilings.com, were allegedly engaged in deceptive business practices.  They were accused of  impersonating government transportation agencies, such as the U.S. Department of Transportation (USDOT).
Read more FTC building The overreach of Regulatory Power- How far can it go?

Shortly after, James Lamb of DOTAuthority.com filed a counterclaim against the FTC.
Read more DOTAuthority.com files Counterclaim against FTC

James Lamb has always maintained his innocence against the FTC charges, but felt that settlement was preferable to years of additional costly litigation. Mr. Lamb stated.

Many months later, DOTAuthority has settled with the FTC, and although Mr Lamb has spent much in legals fees, has not paid anything out of pocket for alleged impersonating of DOT.

“As one of Excelsior’s attorneys, Len Gordon, a former FTC attorney, pointed out to the FTC, James was running a legitimate business, and can now continue to do so.”

PRESS RELEASE  FOR IMMEDIATE RELEASE: James Lamb Settles Lawsuit with the Federal Trade Commission

The Bopp Law Firm, PC

National Building

1 South 6th Street

Terre Haute, IN 47807-3510

April 16, 2018

Contact: James Bopp, Jr.

Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

James Lamb Settles Lawsuit with the Federal Trade Commission

James Lamb- Chairman of Small Business in Transportation Coalition (SBTC)

In early September, 2016, the FTC filed a civil complaint at the request of the Federal Motor Carrier Safety Administration (FMCSA) against Mr. Lamb, who operates a regulatory compliance service through his motor carrier registration and permitting website called “DOTAuthority.com,” and a business partner, Uliana Bogash, alleging that they misled their customers to believe that they were affiliated with the federal government when soliciting their business; specifically, because their disclaimers, including Lamb’s homepage disclaimer, which read “DOTAuthority.com is a Consulting Firm. It is not the Department of Transportation,” were inadequate. The FTC rushed into court ex-parte, feigning an emergency existed, asking the court to freeze Mr. Lamb and Ms. Bogash’s personal and business bank accounts and take control of their businesses through a receiver without a hearing, which the court did.

At a hearing 10 days later, and after hearing the facts from Mr. Lamb, the presiding judge unfroze all of Mr. Lamb and Ms. Bogash’s bank accounts and returned control of the businesses to them. Almost a year and a half later, the FTC finally agreed to settle the case for a fraction of the sum the agency alleged in damages. On April 13, 2018, Senior Judge William Zloch signed off on a settlement agreement among James Lamb, and other parties, and the Federal Trade Commission, finally putting an end to a protracted legal battle.

Mr. Lamb, a trucking industry and regulatory compliance expert, owns and operates several businesses that aid truckers in complying with the immense body of regulations that must be followed in order to be properly licensed and have “operating authority” to operate. Ms. Bogash owns Excelsior Enterprises International, which is partnered with Lamb’s business DOTAuthority.com, a catchy brand which the Federal Government’s Patent and Trademark Office has given Lamb rights to use under a service mark registration.

The settlement is quite a coup for Mr. Lamb and his attorneys at The Bopp Law Firm, as the FTC agreed to a settlement of much less than the eight-figure amount they had asserted was “taken in” by Lamb and Bogash. In the end, the parties agreed Excelsior would solely pay a six-figure amount to end the case and that Lamb and his companies would pay nothing but their own legal expenses.

Mr. Lamb’s attorney, James Bopp, Jr., asserted,

“As one of Excelsior’s attorneys, Len Gordon, a former FTC attorney, pointed out to the FTC, James was running a legitimate business, and can now continue to do so.”

The terms of the settlement, of course, require that Mr. Lamb and his associates refrain from misrepresenting themselves as being affiliated with the government, a charge that they have consistently denied.

James Lamb has always maintained his innocence against the FTC charges, but felt that settlement was preferable to years of additional costly litigation. Mr. Lamb stated,

“The FTC was making it almost impossible for me to run my business, which doesn’t just hurt me, it hurts the carriers and truckers we serve and help keep in compliance. While I continue to maintain the FTC had no lawful jurisdiction over us under the “common carrier exemption” to the FTC Act, the parties cannot stipulate there is jurisdiction, and continue to believe the FMCSA asked FTC to fabricate a case against me in retaliation for my trade group’s lawsuits against them and my political activities, a settlement in which my companies paid nothing in civil penalties, restitution or disgorgement, was the best solution to put an end to this ridiculous nuisance lawsuit and get back to business as usual.”

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Federal Preemption update against Trucker Wages -The fight to be paid for all time

Apr
10,
2018
4

If at first you don’t succeed, try try again. That seems to be the motto of the ATA and others in the trucking industry when it comes to Federal Preemption of States Rights in order for them to be able to regulate trucker wages.

Last month truckers breathed one more sigh of relief as the most recent attempt to preempt states rights, allowing drivers to be paid for all time, once again failed, this time in the March Omnibus Spending bill.  Read more: ATA lobbies for anti-trucker wage provisions in Omnibus Spending bill

 This was the fifth non successful attempt made by the trucking industry, (which includes the ATA,  the 50 ATA-affiliated state trucking associations, the Truckload Carriers Association and others), to include anti-trucker preemption language in a major bill.
ATA has now lost this five times: the 2015 Highway bill, 2016 FAA funding reauthorization bill, the 2017 omnibus funding bill, the Thud and DOT 2018 appropriation bills (when they were going piece meal) and now the 2018 omnibus funding bill

Make No Mistake, they will be trying again to have preemption language included in another bill coming up for vote, most likely the infrastructure or omnibus in October.

What is this preemption language that the ATA is so desperate to have included in these bills?  First, the language has been known as the Denham Amendment, Denham language, F4A preemption, FAAAA preemption, Meal and Rest Break Preemption.

Denham language would exclude truckers from State labor laws which protect driver wages and safety and ensure employees are not exploited.

These states include in their state labor laws,  that employers must pay drivers for all time, including detention time, in addition to their miles driven.  In essence, this is what drivers have been fighting for.
In addition, these states also require employers to offer meal breaks and paid rest breaks.  These breaks can be waived by the employee, however, truckers would still be paid for the rest breaks.
The Truth about Meal and Rest Breaks for Intrastate drivers

Provisions to overturn state laws, designed to protect truckers, began to first appear in the 2015 Highway bill- FAST ACT–  The provision, slipped in at the 11th hour, was called the Denahm Amendment.  Because of an all out call to action, including a multitude of drivers who called in, it failed to be passed into law.

If preemption language is to be included in one of the many final bills that the ATA and others have been lobbying so hard for, it would affect how drivers are paid permanently.

For all those who are in favor of ELD’s because all their time waiting at docks would finally be recorded and offer stamped proof for detention pay, the inclusion of Preemption of States Rights in a bill, would legally relieve Carriers from having to pay drivers for time waiting, or any time other than their piece work wages ( CPM)

Just as the Fair Labor Standards Act (FLSA) has put a damper on drivers’ ability to earn a “fair wage”, so would Federal Preemption of States Rights.
The Fair Labor Standards Act ( FLSA) which has exempted truckers for decades has prevented drivers from having to be paid overtime.
Preemption would then limit drivers to being paid piece work wages only.

The FLSA provides an overtime exemption for employees who are within the authority of the Secretary of Transportation to establish qualifications and maximum hours of service according to Section 204 of the Motor Carrier Act of 1935.

The ATA and other in the trucking industry believe that states labor laws are interfering with motor carriers ability to move freight. They rely on their interpretation of  wording in the 1994 Federal Aviation Authorization Administration Act (F4A)

From the 1994 FAAAA Bill;
(b) Freight Forwarders and Brokers.—
(1)General rule.—
Subject to paragraph (2) of this subsection, no State or political subdivision thereof and no intrastate agency or other political agency of 2 or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker.

This is a distortion of what they say “Congress intended” to mean in the H.R.2739  Federal Aviation Administration Authorization Act of 1994 49 -USC 40101  P. 37 of 39 — Title VI Intrastate Transportation of property
Sec 601 Preemption of Intrastate Transportation of property.

Basically what the ATA believes, is that States have NO RIGHT to tell motor carriers that their drivers must be paid for all time, including waiting, detention, paperwork and all non driving tasks.

Say NO to anti trucker wage preemption provisions
Call 202-224-3121

The 1994 Federal Aviation Authorization Administration Act (F4A) was designed to deregulate a states ability to regulate freight.  Should it also be used to over ride or preempt their Labor Laws?  The trucking industry fought in courts and said “YES”
The courts, including state supreme courts said NO. States have their rights to protect employees with their own labor laws and the F4A language had nothing to do with States Labor laws.

When the carriers went to court with this argument, the Federal Courts sided with the drivers on numerous occasions.

The ATA then decided to go to Congress, (just as they did to get the ELD mandate approved), so they could have the Denham- Preemption language included in numerous bills.

Drivers do not want “government to interfere”- We’re asking Congress and the government to stay out of states affairs.

There are states who have laws and believe that truckers should be paid for all their work, in addition to their miles driven.  We’re telling government not to allow the perversion of laws which were meant to deregulate freight ( 1994 FAAA ACT).

These laws were not meant to preempt states labor laws so that drivers wages could be regulated.

WATCH THE VIDEO-

Update on Federal Preemption against Driver Wages

Here are other videos that truckers have made regarding the Denham/Preemption issue

 

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Does Rest bill modify HOS to relieve drivers or allow them to now work a 17 hour day?

Apr
5,
2018
2

In a recent Press Release_ Babin Introduces Legislation to Improve Hours-of-Service Regulations,  U.S. Rep. Brian Babin (R-TX-36), attempts to relieve truckers from the negative effects of the ELD mandate which went into enforcement mode on April 1st.

U.S. Rep. Brian Babin (R-TX-36

The ELD mandate has strong opposition among many professional drivers, including company drivers and owner operators.

ELD Mandate DOES affect ALL drivers

Included in the many complaints against the ELD mandate is the fact that drivers are paid by the mile and yet governed by the HOS clock.  That clock keeps ticking, no matter what. Delays, bad weather, traffic jams, loading docks, nothing matters.  If the driver isn’t moving, he’s not getting paid.
The ELD enforces the FMCSA HOS (Hours of Service)

 

ELD mandate- Congress MAP 21
According to FMCSA—-
The electronic logging device (ELD) rule – congressionally mandated as a part of MAP-21 – is intended to help create a safer work environment for drivers, and make it easier and faster to accurately track, manage, and share records of duty status (RODS) data. An ELD synchronizes with a vehicle engine to automatically record driving time, for easier, more accurate hours of service (HOS) recording.
In other words, ELD’s will keep drivers compliant and not allow them to drive more hours than allowed.

ELD’s DO NOT prevent truckers from working more than 70 hrs/wk

U.S. Rep. Brian Babin (R-TX-36), a member of the House Transportation and Infrastructure Committee, introduced H.R. 5417 The Responsible and Effective Standards for Truckers (REST) Act, legislation that would modernize hours of service regulations for truck drivers.

The REST Act would allow drivers to take one rest break per shift, for up to three consecutive hours. The single off-duty period would not be counted toward the driver’s 14-hour, on-duty allowance and would not extent the total, allowable drive limits.

“I’m proud to introduce the REST Act today and give America’s truckers the options they need to safely operate under today’s rigid federal regulations,” said Rep. Babin. “This bill is an important step in making the way for improved highway safety.”

The REST Act requires the Department of Transportation to update Hours of Service regulations to allow a rest break once per 14-hour duty period for up to 3 consecutive hours as long as the driver is off-duty, effectively pausing the 14-hour clock.  However, drivers would still need to log ten consecutive hours off duty before the start of their next work shift.  It would also eliminate the existing 30-minute rest break requirement.

Theoretically it all sounds good. But when you evaluate the situation it makes you ask,
” Is this just adding another 3 hours to your day?”  Is the “rest bill” really allowing drivers time to “rest” without taking away from their 14 hour clock, or could they just use it while waiting at the docks?
Is it a way to give drivers more time to drive more hours to make more money?

TRUCKER WAGES  and the 14 hour clock are the PROBLEM 

If you are paid according to how many pieces you can produce while racing a clock that has no mercy on obstacles, it is an unsafe environment. When you add to that, being grossly underpaid (same wages as the 80’s) and not paid for waiting times, you create a desperate situation to drive as many miles as physically possible all while racing that 14 hour clock

The more unpaid hours you work, the less valued you are

1 If drivers were paid appropriately for all time and not just piece work wages , they could afford to rest anytime they’re tired. HOS does not prevent you from stopping to rest when you’re tired, the way you are paid and your low wages do.
2 When you are only paid for what you can produce, “wasting time” resting, just doesn’t seem that important.
3 The thought of losing time to “nap” when you’re tired is unheard of. Drivers already lose too many hours waiting at loading docks.

4 The fact that drivers are fighting for more hours to make a decent wage and would want to extend their day another 3 hours doesn’t make sense.
5 Truckers should be fighting for higher wages.
Note: If drivers were paid what they should be, based upon the rate of inflation since the 80’s. they would be making between 80-90cpm.

“More Flexibility or Higher Wages for Truck Drivers?” 

Here is a comment posted on the Rest bill Press Release by owner operator Les Willis:

I supported your efforts to bring about the demise of the ELD and to make it a choice for the American Trucking Professional. But i must break ranks here on this issue, as it effectively extends the duty cycle by 3 hours to a now whopping 17hrs. Totally ineffective and will change nothing.
The status Quo has always been, all inefficiency’s must fall into the drivers lap and all hours need NOT be compensated for services rendered. Mr. Babin, if you truly seek the change the Industry so badly needs, you should focus your efforts towards the F.L.S.A .and the Truck Driver classification as a piece work laborer.
Stop the Wage theft that is running rampant in our Industry. When you fix the non paid hours/ wage theft, everything else takes care of itself. All hours of the Duty Cycle must be compensated/remunerated at a rate comparable to the avg. per mile rate paid at time of dispatch/rate-con.
If paid on an hourly rate all hours over 40 must be paid at 1.5 times the hourly compensatory rate and all hours over 60 must be paid at 2.0 times the hourly compensatory rate. Stop beating around the bush and lets treat the root of the problem. There were many many reasons why the ATA/Carriers had a clear truthful argument against an hourly compensation. Today’s technological advancements negates their once logical arguments of no way to monitor productivity -Les Willis

H.R.5417 – To direct the Secretary of Transportation to issue or revise regulations enhancing flexibility in hours of service requirements for drivers of certain property carrying vehicles, and for other purposes.

Thank you Congressman Babin.

We want to Thank Congressman Babin for his interest and concerns for the truck driver community, there is not a long list of those who do.

Mr. Babin understood the concerns of drivers regarding the ELD mandate and stood up to the plate to delay the mandate for two years. On July 18th, 2017 he  introduced H.R.3282 – ELD Extension Act of 2017     The bill has not passed although it has 75 co-sponsors.

We have no doubt that Congressman Babin is sincere in his attempts to help drivers with their HOS and ELD concerns.  We believe that the truck driver wage issue must be addressed FIRST. If driver wages are brought up to what they should be, then H.R. 5417 could be feasible as the element of desperation to drive more miles would be eliminated.

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ATA lobbies for anti-trucker wage provisions in Omnibus Spending bill

Mar
21,
2018
4

The 1.3 trillion dollar omnibus spending bill, which  funds the government through the end of fiscal 2018, is scheduled to be voted on Friday March 23rd.

Anticipated to be in this bill is the  ATA lobbied anti-trucker wage provision which is meant to distort the intent of the  1994 federal Aviation Authorization Administration Act, which regulated freight, and instead, has turned the meaning into ” regulating driver wages”

Basically what the ATA is stating in the legislative language they have included in many bills, is that States have NO RIGHT to tell motor carriers that their drivers must be paid for all time, including waiting, detention, paperwork and all non driving tasks.

ATA wants Federal Laws- Truckers Say NO! Give states the power

Omnibus Spending bill - anti trucker provisions

And, since the government has yet to pass appropriation bills for any of the 12 major government agencies ( Such as THUD bill) in both the House and Senate, there is every reason to believe that this Federal Preemption “rip off Trucker wage language” will be included also. It is more than likely that this new plan is one large “omnibus” spending bill (in which certain ATA lobbied politicians), will include in this poison preemption language.

Here is what OOIDA said about the Preemption language,
would “unravel mandated fair-pay for drivers and would empower large carriers to further reduce driver wages.”

You’ve probably heard a lot since 2015 about the Federal Preemption of States Labor Laws and still don’t know what exactly it’s all about. That’s no Coincidence either, that’s exactly the way the ATA wants it! They have done a great job disguising anti-trucker wage language as “Meal and Rest Break” provisions.

Using fear mongering as a tactic to confuse drivers, telling them that there are states which are forcing them to stop every few hours, and that they, the wonderful ATA, is looking out for drivers, because ATA is the voice of the trucking industry.  Yes, there are states which allow for meal and rest breaks.  But here’s what the ATA doesn’t tell you is that you can waive these breaks and keep driving, HOWEVER, your company still have to pay you for them.  In addition, these same states do not tolerate drivers waiting for hours and hours without pay at loading docks.  They enforce their state labor laws which state that employers have to pay these drivers for all their time.

There are 2 Days Left to ACT! The “poison pill” Anti-Trucker Preemption Language for #TruckerWages very well could be included in Omnibus bill being voted on this FRIDAY! The ATA has lobbied for the Anti-Trucker Language for years!! The ATA has spent millions to ensure #TRUCKERS will not legally have to receive detention pay or ANY wages other than Miles Driven.

The language and provisions expected in the Omnibus and included in other bills is hidden behind the Smoke Screen of “Meal and Rest Break” but it’s intention is the Federal Preemption of States Rights who pay drivers for ALL TIME working.

If this Preemption Language is included in Omnibus, all those who were in favor of ELD’s because they felt their hours waiting at docks would now be recorded and that they could be paid for them…. GOES OUT the WINDOW. There is NO TIME left drivers. Voting is March 23rd.

Call your Senators and Congressman and tell them NO to the Federal Authority Preemption Language in the OMNIBUS spending package, which over rides states rights to pay drivers for all time. It’s not about “Meal and Rest Breaks” It’s about your time and wages! 202-224-3121

Here is a link to every U.S. senator email and phone #
https://www.senate.gov/senators/contact/senators_cfm.cfm

Here is a link to every U.S.Representative
https://www.house.gov/representatives/

 

 

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Underride Guard Mandate: A Counterargument to Industry Opposition

Mar
5,
2018
4

By: Allen Smith

The STOP Underrides Act is a proposed bill to: “reduce the number of preventable deaths and injuries caused  by underride crashes, to improve motor carrier and passenger motor vehicle safety, and for other purposes.”

Read more “Unknown facts about underride crashes and prevention” 

The bill was originally drafted by Marianne Karth and Lois Durso who lost their children due to underride crashes. Along the way, many others became involved in the drafting for the bill.

At the first underride round table the industry requested a comprehensive approach to the underride issues front, side and rear. From that request a group of people formed the committee: “Knights of the Underride Roundtable” which met in June of 2016 to work on solutions to the issue.

The committee continued with conference calls and emails to craft a “Comprehensive Underride Protection Consensus Recommendation” to the Department of Transportation (DOT). This would later form the basis of the STOP Underrides Bill.

This group included more than just surviving victims of underride crashes. Others included: Professional Truck Drivers, Attorneys, Engineers from both the ATA and the TTMA, National and International Academia experts, the IIHS, safety advocates and accidental  reconstruction engineers. From those meetings came the information for the legislation.

As in any situation involving safety and the trucking industry, opposition to what may be seen as just another “regulation” hitting drivers and the industry is to be expected.

This post is to take a moment to respond to these opposition points, particularly those presented by OOIDA per their Underride Talking Points which focuses on Safety, Cost and Operational Challenges and which are also the same or similar concerns of others within the industry.

Underride Talking Points

LACK OF SAFETY IMPROVEMENTS

  • The National Highway Traffic Safety Administration (NHTSA) has considered numerous proposed rules involving underrides over the last forty years, but consistently concluded a mandate would be impractical.

Response: This is due to the fact that consideration has been based on lack of  adequate data. It is believed that NHTSA underride crashes represent only 4% of reported crashes. At 4%, this would still result in 180 fatalities per year. However, the DOT has determined that underride crashes are seriously under-counted, with the IIHS reporting the figures to be between 27% – 50%. The fatal crashes involving Marianne Karth and Lois Durso, both were not reported as underride crashes, regardless that in reality, they were. Furthermore, there is evidence that underride events are undercounted by the Fatality Analysis Reporting System (FARS), a census of fatal crashes on public roads in the United States. Without proper and undercounted reporting of underride deaths, it would be impossible to establish cost/benefit. Presently there is a computer/virtual study of the potential for a side guard design to prevent underrides being conducted right now by NHTSA. and we are Results will be made public when concluded.

 

  • Research indicating underride guards would reduce crash severity and fatalities is lacking, and current crash statistics are imprecise due to inadequate reporting.

Response: In 2015, 301 of the 1,542 passenger vehicle occupants killed in two-vehicle crashes with a tractor-trailer died when their vehicles struck the side of a tractor-trailer. This compares with the 292 people who died when their passenger vehicles struck the rear of a tractor-trailer. Because of gaps in federal crash data, IIHS researchers can not determine exactly how many of these crashes involve underride, but they estimate that underride occurs in about half of fatal crashes between large trucks and passenger vehicles. A 2012 IIHS study found that strong side underride guards have the
potential to reduce injury risk in about three-fourths of large truck side crashes producing a fatality or serious injury to a passenger vehicle occupant. This proportion increased to almost 90% when restricted to crashes with semi trailers.

  • While most underride crashes do not involve intrusion of the passenger compartment, sudden impact with a high-strength underride guard could fully crush an automobile, causing severe injuries and/or fatalities.

Response: Since it has already been established by DOT that there is a significant underreporting of underride crashes and fatalities, it stands to reason that the reporting of passenger intrusion is also underreported. The guests on our show had three children killed by underride crashes with passenger compartment intrusion (PCI).
For one of the guests’ child, the FARS report inaccurately reported “No Passenger Compartment Intrusion”. For the other accident where 2 children were killed, it was inaccurately reported as “Compartment Intrusion Unknown”.  Both accidents and all 3 killed were not even reported as an underride crash.

If the underride crash data is not reported accurately, it is impossible to obtain accurate stats for PCI. Here is a table from FARS, which even with under-reporting, shows significant passenger intrusion.

  • Installing heavy guards would displace a trailer’s payload. To compensate for the loss of capacity, more trucks would be needed to move the same amount of freight and pressure to increase minimum weight allowances would intensify. More and/or heavier trucks on the road would undoubtedly decrease highway safety.

Response: The same argument used during the ruling process for APU’s. The solution?  APU weight exemption. An exemption for the additional added weight, estimated to be between 500 and 800 pounds, would solve this issue as it did with the APU ( FHWA memo notes: “We determined that (the exemption) does not pre-empt state regulations or compel the states to grant the increased weight tolerance.” ) It would be a logical and simple step allowing for a mandate which we believe is truly focused on safety.

COST IMPLEMENTATION

  • The economic impact of a federal mandate would be massive, especially for small trucking businesses.

Response: The current cost to implement an underride guard mandate is $500 for retrofit ( Stoughton Trailers was able to install one on their new trailers at no added cost or weight penalty to their customers)

Based on a rear retrofit kits for $500 rear and $1560 for sides ( based on OOIDA): roughly a total of $2060 per trailer.
According to the NHTSA, there were 4317 crash fatalities involving large trucks in 2016. The average cost in legal representation for a motor carrier involved in a fatal crash is $3.8 million; in a serious injury crash, the average is $1.2 million. Other cost includes: days out of service, points added, increase of insurance premiums, not to mention driver existing emotional scars. Fatal and non-fatal crashes cost the industry billions of dollars per year in legal fees, where adding underride guards have been proven in studies to reduce both fatalities and serious injuries in such crashes.

  • Side underride guards would add approximately 750 pounds to a vehicle’s overall weight, displacing a significant portion of a trailer’s payload. Losing nearly half a ton of capacity would immediately decrease the earnings of small trucking businesses, who already operate on the slimmest of margins.

Response: Again, weight exemption as was done with the APU legislation as more-so with this as an actual mandate as safety is the legitimate concern.

OPERATIONAL CHALLENGES

  • Little consideration has been given to the impact underride guards would have on the daily operations of truckers. Underride guards create challenges for trucks navigating grade crossings, high curbs, and other road conditions.

Response: Underride guards are placed 16″ above the surface, giving sufficient room for travel conditions, as well as access to inspect the underneath carriage for pre and post trip inspections and/or repairs. In addition, a primary manufacture of guards, Angel Wing, does not cover the rear wheels and other prototypes provide guards equipped with a roll-up device further signifying that engineers have taken all such considerations into account.

  • There is no front underride equipment currently on the market because the concept lacks any practicality. Nobody is certain how this equipment would look, what operational challenges it would present, how it would impact safety and what it would cost.

Response: Front underguards are in fact in use throughout Europe and Australia and have resulted in greatly reduced fatal underride crashes with little financial impact on the industry.  In the Stop Underrides bill, research is to be conducted by NHTSA to determine if a retrofit would even be economically or technically feasible.  According to the bill, Frontguards would the responsibility of the manufacturers of new trucks.

  • Spread axle trailers are commonly used in the trucking industry in order to better distribute weight, providing a safer and legal loading option. Side underride guards could restrict the use of such axle/tandem movements, hindering the operational efficiency and safety of the trailer and the load it’s carrying. Side underrides would also limit a driver’s ability to easily inspect equipment located under the trailer, including critical safety systems.

Response: Guards are designed for each particular trailer with engineers taking into account each individual design. In such trailers, the axle/tandem area would not be covered, allowing the ability for tandem movement and again, with the 16″ height placement, the ability to inspect under the trailer remains accessible.

Marianne and Jerry Karth, along with Lois Durso were our guests on the recent Ask The Trucker “LIVE” program and provided much more details and facts regarding the above concerns.

Listen to the program via: Underride Protection Act of 2017- Truck RearGuards & SideGuards.

For more information on how to become involved in supporting their cause, please visit the Karth’s website at: http://www.annaleahmary.com and the Durso website via: https://stopunderrides.org

Both sites include many photos and videos pertaining to their research focusing on the above opposing talking points as well.

Underride Guards a compilation of helpful resources

Understanding Underride VII: Cost/Benefit Analysis

Understanding Truck Underride

 

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Unknown facts about underride crashes and prevention

Mar
2,
2018
10

In order to address the decades long issue of underride crashes between semi trucks and other motor vehicles, on 12-12-17 U.S. Senators Marco Rubio (R-FL) & Kirsten Gillibrand (D-NY) introduced the Stop Underrides Act, S. 2219 legislation. Shortly after, U.S. Representatives Steve Cohen (D-TN) and Mark DeSaulnier (D-CA) introduced the companion bill in the House, H.R. 4622

With and without underride side guards

An ‘underride crash’ is when a car slides under the body of a large truck, such as a semi-trailer, during an accident, increasing the likelihood of death or serious injury to the passenger vehicle occupants.  When these accidents happen, a car’s safety features are not able to protect passengers because most of the car slides under the trailer, and the truck crashes straight through the windows and into the passengers.   This is referred to as passenger intrusion and most are fatal.

A total of 3,986 people died in large truck crashes in 2016. 17% of these deaths were truck occupants, 66 % were occupants of cars and other passenger vehicles, and 16 % were pedestrians, bicyclists or motorcyclists.
97% of vehicle occupants killed in two-vehicle crashes involving a passenger vehicle and a large truck in 2016 were occupants of the passenger vehicles.

A 1997 Institute study of fatal crashes between large trucks and passenger vehicles estimated that underride occurred in half of these crashes.
Of the underride crashes, 57%  involved the front of the truck, 22% involved the rear and 20% the side.

The Stop Underrides Act bill was originally drafted by, Marianne Karth and Lois Durso. Both Marianne and Lois have lost children due to underride crashes. Marianne & husband Jerry lost their 2 daughters, AnnaLeah and Mary in 2013.  This is their video story.  Lois lost her daughter Roya in 2004. This is Roya’s story. This is her video story.
Neither of these tragic accidents was the fault of the 4-wheeler.

In Memory of Roya 2004 And AnnaLeah & Mary 2013

The bill was originally called the Roya, AnnaLeah and Mary Comprehensive Underride Protection Act of 2017 or the  RAMCUP Act of 2017—now known as STOP Underrides Act.

Few people realize that the 1969 Federal Register recorded that the Department of Transportation intended, after further study, to extend underride protection to the sides of large trucks.

 

Studies for both rear guards and side guards have been evaluated
The protective ability of these devices has already been proven—the Insurance Institute for Highway Safety (IIHS) began evaluating rear underride guards several years ago, and 2017 marked the first year for the independent, nonprofit organization to test side underride guards. Their research has helped to demonstrate how the use of strong underride guards (specifically the AngelWing from Airflow Deflector, Inc.) can prevent a car from going under a truck’s trailer during a side impact while triggering airbag and belt restraint devices to protect vehicle occupants.

IIHS tests show benefits of side underride guards for semitrailers

Truck underride guard evaluations

What kind of burden will underride guard legislation put on the trucking industry? 

On March 3rd at 6PM e.t. we will be having a discussion on AskTheTrucker ‘live” on Blog Talk Radio about underride accidents and how they can be prevented. We’ll also address deep concerns the trucking industry has with this new bill, including the burden and cost.
Underride Protection Act of 2017- Truck RearGuards & SideGuards
Call in number for the show is 347-826-9170

Our guest will be grieving parents turned safety advocates and activists Marianne & Jerry Karth and Lois Durso.

Lois Durso & Marianne Karth

Lois Durso & Marianne Karth

The discussion will include the Stop Underrides Act of 2017 S.2219  and H.R. 4622 and how side and rear underride guards can save hundreds of lives.  Topics will include the cost feasibility, added weight, loading docks, Axle/tandems, distracted drivers and other questions the industry and drivers have.

 

Jerry Karth and Marianne Karth

A main focus will be to discuss solutions which can prevent underride crashes accounting for at least 300+ deaths per year.

************************************************************

PASSENGER VEHICLE OCCUPANT FATALITIES IN TWO-VEHICLE
CRASHES INVOLVING
PASSENGER VEHICLE AND LARGE TRUCK FATALITY ANALYSIS REPORTING SYSTEM (FARS)

 

IMPORTANT UNDERRIDE LINKS

Underride Guards a compilation of helpful resources

Understanding Underride VII: Cost/Benefit Analysis

Video 1 Benefits of side underride guards for semitrailers

Video 2 Lawmaker first to publicly back truck underride bill written by grieving moms

Video 3 Side Underride Guards save lives-The installation

Video 4- Why don’t tractor trailers have side guards?

*** Understanding Truck Underride

Answers to Frequently Asked Questions about the STOP Underrides Bill

A grieving dad got the attention of the trucking industry & made a difference.

For more info stopunderrides@gmail.com  www.StopUnderRides.org
and AnnaLeah & Mary

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ATTENTION Truckers: Tell Congress to Remove Section 134 of the House T-HUD Appropriations bill in the final spending package

Feb
27,
2018
2

The ATA is at it again!  Numerous attempts have been made to slip in at the 11th hour, legislation imposing Federal regulations over State Rights which protect trucker wages. Voting will take place prior to March 23rd.
If passed, this latest anti-trucker wage preemption language would put an end to drivers ever having to be paid legally for ALL time, including excessive detention time.

ATTENTION Truckers: Tell Congress to Remove Section 134 of the House T-HUD Appropriations bill in the final spending package

The ATA is NOW sending out a CALL to Action for everyone, including their members, and even drivers, to contact their Senators and Representative, requesting that they KEEP the anti- trucker Preemptive “Denham Language” in  Section 134 of the House passed Transportation, Housing & Urban Development (T-HUD) appropriations bill in the final spending package. 

Those supporting the anti-trucker Preemption language in SECTION 134 of T-HUD bill are; American Trucking Associations, the 50 ATA- affiliated state trucking associations, the National Private Truck Council, the Truckload Carriers Association, and the Truck Renting and Leasing Association.

This is the 4th time the ATA has attempted since 2015 to get this language in a bill for the sole purpose of ensuring truckers will not be paid for anything more than their piece work wages, such as cents per mile.

Anti-Trucker wage language in 2 bills to ensure cheap labor and high profits

Basically what the ATA is stating, is that States have NO RIGHT to tell motor carriers that their drivers must be paid for all time, including waiting, detention, paperwork and all non driving tasks.  This is based on the distortion of what they say “Congress intended” to mean in the H.R.2739  Federal Aviation Administration Authorization Act of 1994 49 -USC 40101  P. 37 of 39 — Title VI Intrastate Transportation of property
Sec 601 Preemption of Intrastate Transportation of property.

When the carriers went to court with this argument, the Federal Courts sided with the drivers on numerous occasions. The ATA then decided to got to Congress, (just as they did to get the ELD mandate approved), so they could have the Denham- Preemption language included in numerous bills.
This most recent attempt is in section Section 134 of the House passed Transportation, Housing & Urban Development (T-HUD) appropriations bill in the final spending package. p43 of 123.

ATA wants Federal Laws- Truckers Say NO! Give states the power

We have written about this numerous times along with other truckers and organizations who understand the seriousness and repercussions of this bill’s language, should it be included. Here are a series of videos drivers have created talking about the attempted ATA wage theft legislation

The ATA is using every tactic they can find, including telling drivers and those in Congress that it is only about Meal and Rest Breaks.  It is not. It is about preempting states rights and states’ labor laws which prevent carriers from exploiting their drivers. Drivers do NOT have to take these breaks, but they do have to be paid for rest breaks.  Meal break time is not paid for.

 The Truth about Meal and Rest Breaks for Intrastate drivers-

OOIDA also had strong opposition against the language  in the article Aviation bill would reemphasize federal authority over states’ regulation of truckers’ hours, pay

OOIDA took issue with the provision’s potential impact on driver pay, calling it “an ambitious overreach that would limit the states’ ability to allow for any other driver compensation except mileage pay. OOIDA stands firmly opposed to this language.”

Further, OOIDA said, the language would “unravel mandated fair-pay for drivers and would empower large carriers to further reduce driver wages.”

Every driver KNOWS that being governed by a 14 hour clock while being paid by the mile is BS. They have been fighting the 14 hour HOS rule for many years now, believing they deserve to be paid higher wages, including all time worked on duty-not driving.

If the language in Section 134 is allowed to remain in the House Transportation, Housing & Urban Development (T-HUD) appropriations bill in the final spending package,  it will put an end for drivers to ever expect to be legally paid for all time.  Listen to why they are trying so hard and spending so much to make sure this language is included!!!

Allowing Federal Authority language in government bills is TRUCKER wage theft

Allowing Federal Authority language in government bills is TRUCKER wage theft

CALL YOUR REPS and EXPLAIN As Congress works to finalize the fiscal year (FY) 2018 spending bills before the upcoming March 23 deadline,  truck drivers have a short time  to compel Congress to EXCLUDE language which distorts the interstate commerce preemption provision of the Federal Aviation Administration Authorization Act of 1994 (F4A)
(
H.R.2739  Federal Aviation Administration Authorization Act of 1994 49 -USC 40101 P. 37 of 39-  Title VI Intrastate Transportation of property
Sec 601 Preemption of Intrastate Transportation of property.)

The Federal Aviation Administration Authorization Act of 1994 had NOTHING to do with driver wages.  The intent of the 1994 Federal Aviation bill was designed to prevent states regulation of FREIGHT, not to regulate state labor Laws. The Circuit Courts and the CA Supreme Court has confirmed this during lawsuits between motor carriers and drivers, MANY TIMES.  The Carriers Lost. Now the trucking industry  wants to bypass the courts and go directly to Congress in order to exploit drivers once again. Same tactics used as ELD mandate.

Time is RUNNING OUT. Even though the vote may not occur before March 23, lawmakers and their staff are actively crafting the final bill now,  They need to hear from their constituents. YOU Reach out to your elected officials today 202-224-3121

Here is a link to every U.S. senator email and phone #
https://www.senate.gov/senators/contact/senators_cfm.cfm

Here is a link to every U.S.Representative
https://www.house.gov/representatives/

Call your reps and tell them NO to the Federal Authority language in SEC 134 of the House passed Transportation, Housing & Urban Development (T-HUD) appropriations bill in the final spending package, which would over ride states rights to pay drivers for all time.  202-224-3121

 

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Unjustly Underpaid: Why Paying Truckers By The Mile Needs To Stop

Feb
22,
2018
3

Unjustly Underpaid: Why Paying Truckers By The Mile Needs To Stop
by Steven Gursten

 

In 1938 the United States Government initiated the Fair Labor Standards Act (FLSA), which granted almost every American a basic minimum hourly wage. Unbeknownst to truckers, the exclusion of the trucking industry from the FLSA would slowly erode the profession from the once profitable career it used to be.

Since 2012, the driver turnover rate has been stuck at 90% or higher while companies struggle to find and retain talent. Currently, the trucking industry is in need of almost 900,000 more drivers to keep up with demand, but companies are handcuffing themselves by retaining an antiquated payment model. Today’s truckers are being unjustly overworked and underpaid and it’s time for that to change.

Consider A Trucker’s Perspective

Imagine being confined to an office cubicle for hours on end without any compensation for your time. If office workers were forced to provide unpaid hours there would be an uproar (likely followed by a large FLSA lawsuit). Yet, truckers are expected to sit in their cabs (the equivalent of an office) without any pay if miles aren’t being driven.

A driver can spend over half of a day waiting out traffic, bad weather, or loading at a shipping dock, only to be provided miniscule pay for the distance they were able to travel. On some days, the pay is exceedingly harsh, considering a driver can expect to earn $0.28 to $0.40 per mile. What’s worse, companies are turning a blind eye. While they should be recognizing that these unpaid hours are on-duty hours, they are instead encouraging drivers to log their time spent at loading docks as sleeper or off-duty.

The trucking industry is one of the only industries in North America where workers are expected to put in time for free. Meanwhile, factory workers are still paid even when they’re idled by machine repairs and office workers receive pay even if there are no immediate tasks to perform.

Payment per mile is a broken system. In order for the trucking industry to progress, truckers need to be fairly compensated through hourly payment. As Adam Smith argued in the Wealth of Nations, workers don’t sell their labor to a company. Rather, workers sell their ability to provide labor when called upon. Truck drivers have a right to pay for sitting in the cab ready to drive even if external circumstances (traffic, weather, etc.) render them unable to.

Everyone Wins With Payment By The Hour

An hourly rate is advantageous for drivers, but drivers aren’t the only ones who benefit. A company is only as strong as the employees behind it. Thus, employee retention and health are important aspects in overall business success. Carriers that implement hourly pay will be able to employ and retain top talent, in addition to fostering better employee health.

Paying per mile encourages drivers to drive too long and skip breaks to make miles. Truck driver fatigue not only deteriorates health, but puts everyone on the road at risk for a truck accident.

For the sake of truckers and all other vehicle operators out on the road, we need to give drivers the ability to properly rest without having to worry about their earnings. Decades ago truckers were revered as ‘knights of the road’. It’s time we start paying our knights the wages they deserve.

About the Author:

Steven Gursten is the head of Michigan Auto Law, helping people seriously injured in car and truck accidents throughout the state. 

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Does commercializing rest areas lead to more or less parking spaces?

Feb
21,
2018
0
Closed Rest Area

Closed Rest Area

Does commercializing rest area parking lead to more or less parking spaces? When I first saw the NATSO study,(National Association of Truck Stop Owners)  Rest Area Commercialization and Truck Parking Capacity: 2018 Update,  I had to shake my head in disbelief.  Their recent conclusions have suggested that if highway rest areas are allowed to be commercialized then eventually it will lead to less truck parking.  How is that? Especially since many states can’t afford to keep their  non commercialized rest areas open, leading to ZERO parking spots available.

 

 

Truck Parking has been a major issues for MANY years and has been considered by the DOT to be a number one priority. With the strict enforcement of the 14 hour HOS through the  ELD mandate, the truck parking problem is expected to get even worse.  One example is that many drivers are held up at shippers and receivers for extended periods of time, are not allowed to park on their property, and then run out of hours to find safe parking.  That’s just one example.
Many of the states have had to close down their rest areas because of lack of funding for upkeep.
The most common sense remedy for this would be to commercialize rest areas, right?  But no, there is a 50 year old law which states that  highway rest areas can not be commercialized.

On Aug. 27, 1958, Dwight D. Eisenhower signed Public Law 85-767 into law, better known as Title 23 of the U.S. Code which regulates the role of highways. Section 111 of that title prohibited states from permitting “automotive service stations or other commercial establishments for serving motor vehicle users to be constructed or located on the rights-of-way of the Interstate System.”

23 U.S. Code § 111 – Agreements relating to use of and access to rights-of-way—Interstate System

 The NATSO research and analysis conclusions is in  response is to the Trump administration infrastructure plan which includes the commercialization of interstate rest areas. NATSO President and CEO Lisa Mullings has said, “We urge the Administration to refrain from widespread tolling of America’s infrastructure and the commercialization of interstate rest areas.”

Although there are many within the trucking industry who would agree with the “widespread” tolling part of her statement, most would disagree with, especially truck drivers, with the second half of that statement regarding rest areas being commercialized. Most truckers would like to see the rest areas open, and if that means being commercialized, so be it.

NATSO’s study methodology is simple and black and white, lacking a few variables to test. It compares currently commercialized interstate segments to non-commercialized segments in terms of the number of truck parking spaces each one has per mile (on average.)
It implies that if states began commercializing rest stops, truck stops would start disappearing and so would their parking spaces.

 

Andy Warcaba of CommercialRest Areas.com gives his response to the NATSO truck parking study. NATSO claims  that interstates with amenities and stores on the interstate right-of-way, not just off the exits—have fewer truck parking spaces per mile than non-commercialized interstates.

Andy Warcaba

Andrew J. Warcaba & Associates is a professional services and consulting firm specializing in the area of motorist-related public-private partnerships

On February 6 of this year, NATSO released an updated report on what they view as the negative impact of commercializing rest areas on the National Highway System. The study – Rest Area Commercialization and Truck Parking Capacity: 2018 Update – purports to demonstrate that any effort to underwrite the cost of operating a rest area with even the most modest commercial enterprise would have a dire impact on the availability of truck parking.

While we applaud NATSO’s advocacy to promote anti-human trafficking programs and their work with their members to continuously improve local operations, NATSO has a clear mission: “to advance the success of truck stop and travel plaza members by delivering solutions to members’ challenges and achieving the public policy goals of the truckstop and travel plaza industry.”

But clearly the needs of professional drivers and the freight industry are not the same as the needs of the truckstop operators. Any commercial activity beyond modest vending has been prohibited at new non-toll highway rest areas for over 57 years. Yet the crisis over parking for trucks has intensified. Simply, truckstops and travel plazas – with no real competition – has been unable to provide adequate overnight parking for drivers’ federally-mandated breaks and rest periods.

In our opinion, we need a honest debate about how best to provide safe and secure parking. That discussion is not helped with a biased study with a flawed methodology.

Specifically, the number of truck parking spaces on non-toll highways includes all the taxpayer-supported rest areas. In general, toll roads do not have conventional rest areas. A more meaningful metric would be to tally the number of truck stop only parking vs. the number of truck spaces provided at the commercialized rest areas. Frankly, NATSO’s case against expanded commercial offerings would fall apart.  When NATSO tallies the number of truck parking spaces on a non-toll road, they add in the parking count of the conventional rest areas. If you backed out rest areas and only counted spaces at truck stops and travel plazas, toll road service plazas do a better job of meeting parking demand. In short, the report is flawed and self-serving.

Without new approaches to financing rest areas, non-toll highways without rest areas may not be a hypothesis. For over a decade, State-level Departments of Transportation have struggled to do more with less and there has been a dramatic number of facility closures.

Finally, NATSO could provide an important service to its 1,500+ members in helping them to respond to Request for Proposals when an opportunity to bid on a commercialized rest area becomes available. After all, these stops do not feature “DOT Burgers & Fries”. Rather, the private sector with national brands and regional concepts is what makes Service Plazas successful and profitable for all parties.

An additional reason that less truck parking capacity can be found at a particular commercial service area, is that many of these super highways were designed in the late 1950’s and early 1960’s.  At that time, the designers/planners never anticipated the dramatic growth and change that we have experienced in the Trucking Industry today.  Initially, commercialized rest areas were offered to the motoring public, but they were not designed to accommodate the truck

Related posts

Rest Area Commercialization – Fighting the Myth

Commercializing Rest Areas for Safer Truck Parking

What the General Public needs to know about Highway Safety, Truck Driver Fatigue, and Truck parking

NATSO says commercial rest stops lead to fewer truck parking spaces

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