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Copies of this open letter have been mailed to the 61 members of the U.S.

House of Representatives
Committee on Transportation and Infrastructure.

Bill Shuster, Chairman, Daniel Webster Julia Brownley


U.S. Representative, Pennsylvania U.S. Representative, Florida U.S. Representative, California

Peter A. DeFazio, Ranking Member John Garamendi Garret Graves


U.S. Representative, Oregon U.S. Representative, California U.S. Representative, Louisiana

Sam Graves Jeff Denham Fredericka S. Wilson


U.S. Representative, Missouri U.S. Representative, California U.S. Representative, Florida

Duncan Hunter Henry C. “Hank” Johnson, Jr. Barbara Comstock


U.S. Representative, California U.S. Representative, Georgia U.S. Representative, Virginia

Brian Babin Thomas Massie Donald M. Payne, Jr.


U.S. Representative, Texas U.S. Representative, Kentucky U.S. Representative, New Jersey

Don Young Andre Carson David Rouzer


U.S. Representative, Alaska U.S. Representative, Indiana U.S. Representative, North Carolina

Eleanor Holmes Norton Mark Meadows Alan S. Lowenthal


U.S. Representative, DC U.S. Representative, North Carolina U.S. Representative, California

John J. Duncan, Jr. Richard M. Nolan Mike Bost


U.S. Representative, Tennessee U.S. Representative, Minnesota U.S. Representative, Illinois

Eddie Bernice Johnson Scott Perry Brenda L. Lawrence


U.S. Representative, Texas U.S. Representative, Pennsylvania U.S. Representative, Michigan

Frank A. LoBiondo Dina Titus Randy Weber


U.S. Representative, New Jersey U.S. Representative, Nevada U.S. Representative, Texas

Elijah E. Cummings Rodney Davis Mark DeSaulnier


U.S. Representative, Maryland U.S. Representative, Illinois U.S. Representative, California

Rick Larsen Sean Patrick Maloney Doug LaMalfa


U.S. Representative, Washington U.S. Representative, New York U.S. Representative, California

Michael E. Capuano Mark Sanford Stacey E. Plaskett


U.S. Representative, Massachusetts U.S. Representative, South Carolina U.S. Representative, Virgin Islands

Eric A. “Rick” Crawford Elizabeth H. Esty Bruce Westerman


U.S. Representative, Arkansas U.S. Representative, Connecticut U.S. Representative, Arkansas

Grace F. Napolitano Rob Woodall Lloyd Smucker


U.S. Representative, California U.S. Representative, Georgia U.S. Representative, Pennsylvania

Lou Barletta Lois Frankel Paul Mitchell


U.S. Representative, Pennsylvania U.S. Representative, Florida U.S. Representative, Michigan

Daniel Lipinski Todd Rokita John Faso


U.S. Representative, Illinois U.S. Representative, Indiana U.S. Representative, New York

Blake Farenthold Cheri Bustos A. Drew Ferguson


U.S. Representative, Texas U.S. Representative, Illinois U.S. Representative, Georgia

Steve Cohen John Katko Brian J. Mast


U.S. Representative, Tennessee U.S. Representative, New York U.S. Representative, Florida

Bob Gibbs Jared Huffman Jason Lewis


U.S. Representative, Ohio U.S. Representative, California U.S. Representative, Minnesota

Albio Sires
U.S. Representative, New Jersey
April 30, 2018

AN OPEN LETTER
TO THE U.S. HOUSE OF REPRESENTATIVES
COMMITTEE ON TRANSPORTATION
AND INFRASTRUCTURE

Regarding House Bill H.R. 5417


introduced by U.S. Representative Brian Babin
proposing that Congress
extend the workday for truckers from 14 hours
to 17 hours
(This document is 8 pages in length)

The Babin Bill would overextend truckers’


already lengthy “waking cycle”
and should be opposed

Submitted by Jack James Elias

(E-li-as: long-e, long-i, accent on middle syllable)

Jack James Elias PO Box 3312 Ramona, California 92065


JackJamesElias@gmail.com
To members of the House Transportation
and Infrastructure committee:
My name is Jack James Elias. I am an employed truck driver with 3 ½ million
miles of over-the-road trucking experience. I am not affiliated with any trade
organization or lobbying group. I am an independent activist and whistleblower
working to bring about changes within the truckload carrier industry.
My opposition to extending the workday for truckers to 17 hours is based
on a belief that truckers should be better paid so that they don’t have to work
themselves to death to make a living.

WHO IS BEHIND THE BABIN BILL?

On February 13, 2018, the Owner Operator Independent Drivers Association


(OOIDA, the trade organization that attempted unsuccessfully in the 7 th Circuit
Court of Appeals to permanently block the implementation of a Congressional
mandate requiring electronic logging devices in trucks operated by interstate
motor carriers) filed a petition with FMCSA to extend the already long workday
for truckers from 14 hours to 17 hours. A few weeks later Congressman Brian
Babin introduced a bill to do essentially the same thing. It is no secret that
OOIDA and Congressman Babin are working in concert to convince the federal
government that extending the workday for truckers to 17 hours is a good idea.

THE BABIN BILL FAILS TO ACKNOWLEDGE


OBVIOUS SAFETY RISKS

The Babin bill reads like a marketing promotion. There is no mention in the
bill about abuses that are likely to result from allowing truckers to drive within
a time frame that ends 17 hours after the beginning of the workday. It is assumed
that truckers will use a three-hour pause of the 14-hour on-duty clock to take
a nap. That may happen occasionally, but in most cases truckers will not be
sleeping during a three-hour pause but will be engaged in various on-duty and
off-duty activities.
Does Congressman Babin know enough about trucking and truck drivers
to have an opinion in this matter? He seems to have accepted OOIDA’s rhetoric
blindly, on the power of suggestion alone.
Congress gave the U.S.v Department of Transportation authority to promulgate
and enforce Hours of Service regulations. DOT has the expertise – and experience
working with truck drivers – to make informed decisions in matters concerning
motor carrier safety.

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THE PURPOSE OF THE 14-HOUR WORKDAY WINDOW RULE
IS TO LIMIT THE DURATION OF THE DAILY
WAKING CYCLE

The 14-hour clock begins to run when a truck driver first logs on-duty following
an off-duty period of at least 10 hours. Truckers don’t just jump out of bed
and log on-duty. It takes time to get dressed, have breakfast and prepare for
work. At a minimum, a 14-hour workday spans 15 waking hours, and the
15th waking hour is a reasonable point in time to place a limit on driving.
Typically, a truck driver waiting for a load doesn’t log on-duty until after
he receives a dispatch assignment. A truck driver who awakens at 7:00 am
and agrees to be available for dispatch at 8:00 am may not receive a load
assignment until 1:00 pm. In that case the driver would be allowed to drive
to the 20th waking hour.
The only thing worse than a 17-hour workday is a 14-hour workday
extended 8 additional hours by a falsified 8-hour midday sleeper berth entry
on a paper or electronic log, which can and does happen under current regulations
on a regular basis. In order to facilitate various logistic situations, solo drivers,
while parked, are logging 8 hours in the sleeper berth without spending any
time in the sleeper and are driving up to the 22nd hour after coming on-duty.
The 14-hour rule while effective much of the time is often ineffective,
and increasing the workday to 17 hours only makes matters worse. A 17-hour
workday would result in thousands, if not tens of thousands, of instances every
day of truckers driving 18 hours or more since their last restorative sleep break.

“YOU DON’T HAVE TO USE THE 3-HOUR PAUSE


IF YOU DON’T WANT TO.”

Truckers are divided on whether a 17-hour workday would be a good idea.


Those who want a longer workday are telling those who oppose such a
change that it won’t affect them personally. That simply isn’t true. Without
a doubt, dispatchers would take advantage of the longer workday and pressure
drivers to drive when fatigued. Never mind that FMCSA put in place an
anti-coercion regulation. That’s a good thing, for sure. But coercion can be
subtle and hard to prove. There may be no coercion, nevertheless a driver
may assume that the dispatcher wants him to utilize his available driving hours.
There are drivers who are eager to please their dispatchers, and others who
are compromised by job performance failures and afraid to stand their ground
when unreasonable demands are placed on them. Truckers are underpaid,
many are in financial distress. Desperation can force a truck driver to push
beyond limits of human endurance.

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IT’S TRUE, THE HOURS OF SERVICE REGULATIONS
NEED ADDED FLEXIBILITY
BUT THE OOIDA-INSPIRED PROPOSAL MISSES THE MARK

Truckers who use electronic logs are under tremendous pressure to avoid hours
of service violations. A violation of the 11-hour, 14-hour or 70-hour limit
registered by an electronic logging device today can result in a large fine at
a state operated truck inspection station at any time in the next 7 days. Trucking
companies are intolerant of hours of service violations and will terminate the
employment of drivers who have violations. These pressures have the potential
to induce high risk driving behavior. If a trucker operating electronic logs is
approaching the 14-hour limit and is about to register an hours of service violation,
he might be inclined to speed, run a red light or weave around the lowered gates
of a railroad crossing in order to get to a parking place quickly.
 In order to accommodate parking difficulties, truckers need an extra hour
once in every 8-day period to extend the 14-hour workday window.
 The 14-hour rule should be amended to allow truckers who exceed the
14-hour limit at customer facilities to drive to the nearest remote parking
location.

The need for flexibility should focus on these minor adjustments, not on
extending the workday for truckers to 17 hours.

THE BABIN BILL FAILS TO MODERNIZE FEDERAL


HOURS OF SERVICE REGULATIONS

[ The 2003 rule ] ... “replaced the so-called 15-hour rule (which prohibited drivers
from driving after being on duty more than 15 hours, not including intervening
off-duty time) with a 14-hour rule (which prohibited driving after the 14 th hour
after the driver came on duty, with no extensions for off-duty time). Note that
the 15-hour limit had been cumulative – so it could be interspersed with off-duty
time – while the non-extendable 14-hour limit was consecutive.”
– FMCSA Final Rule, Federal Register, Aug 25, 2005

The OOIDA-inspired Babin bill is retrogressive. It harkens back to a time


when hours of service regulations were in need of reform.
Prior to 2003, truckers were prohibited from driving after being on-duty
a total of 15 hours. The 15-hour workday limit was calculated by adding
the sum of driving time (logbook Line-3) and on-duty, not-driving time
(logbook Line-4). Since truckers are inclined to omit from their logbooks
periods of unpaid duty time, the 15-hour limit was seldom, if ever, reached.

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A trucker could drive 24 hours after coming on-duty without a mandatory
8-hour break and his log would appear to be in compliance as far as the
arithmetic was concerned.
Driving a truck in the 1990’s, I was having difficulty with dispatchers who
wanted me to drive even though I had been up for 20 hours. (I had time left on
my daily driving hours and had not exceeded the 15-hour hour on-duty limit,
which, in those days, was measured cumulatively, not consecutively).
On December 2, 1994, I wrote a letter to the U.S. Department of Transportation
in which I objected to “... an interpretation of the 15-hour rule that permits
drivers to go indefinitely without an 8-hour break.” I made the following
suggestion:

“The 15-hour rule should be applied to mean consecutive hours in time


beginning at the start of the working day and ending when 15 consecutive
hours have passed. A driver who logs on-duty at 5:00 am should not be
permitted to drive past 8:00 pm without an 8-hour break.”

Extending the workday to 17 hours would take us back to the days when
truckers could drive around the clock without sleep, and needed to take
amphetamine pills to stay awake. Hours of service modernization should
move forward, not backward.

OOIDA MISSED THE OPPORTUNITY TO MODERNIZE


HOURS OF SERVICE

In its 7th Circuit Court of Appeals electronic logging case against the United
States (denied October 31, 2016), OOIDA chose to argue arcane questions of law
concerning Fourth Amendment rights, etc. rather than focus on safety hazards
resulting from electronic timing of hours of service.
OOIDA, in my opinion, insulted the intelligence of the judges by suggesting
that electronic logs have no safety advantage over paper logs, an argument that
is absurd on its face. To say that electronic logs have no safety advantage is the
same as saying that truckers would be just as safe without fatigue management
regulations. That line of thinking may play well to an audience of owner-operator
truckers but not to federal judges who are trained in logic and reason.
I filed an Amicus Curiae brief in OOIDA’s 7th Circuit electronic logging
case and was the only truck driver in the United States to do so. My brief,
which supported the ELD mandate, focused on the need for hours of service
reform. The brief can be found on the Internet by using the search words
Jack James Elias Amicus Curiae.
OOIDA might have succeeded in postponing the implementation of
electronic logs if it had argued the safety issues contained in my Amicus brief.

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The Court of Appeals might have ruled that flexibility issues, and issues
concerning piece-rate compensation, needed to be fixed in order to make
electronic logging safe.
OOIDA is now claiming that it is leading the way to hours of service
modernization. OOIDA is not leading the way. OOIDA is going round in
circles like a dog chasing its own tail, attempting to catch up on issues that
it should have argued when it had the opportunity. OOIDA is still arguing
the wrong issues.

THE BABIN BILL ELIMINATES THE 30 MINUTE BREAK RULE

Anyone who thinks that a truck driver doesn’t deserve a 30-minute meal
break after 8 hours of work is grossly insensitive to human needs. Proponents
of the Babin bill will tell you that a three-hour pause would give drivers
more than a 30-minute break. But the proposed rule does not require any
off-duty time during a driving shift, and a truck driver by choice (or under
compulsion) could drive 11 hours straight without a 30-minute meal break.
When a healthy person is hungry, or fasting, his or her blood sugar declines
to baseline levels and when this happens to a truck driver who is operating
a commercial vehicle the effect is experienced as fatigue and diminished
concentration. When a hungry worker on a lunch break consumes a meal
there is an increase in energy. Alertness and concentration are restored
and job functions can be performed with greater enthusiasm and efficiency.
It is unlawful under state distracted driving laws and federal motor carrier
safety regulations for truck drivers to eat fast food while driving (see 49 CFR
§ 392.2 Applicable Operating Rules).

TRUCKERS DON’T ALWAYS HAVE 11 HOURS TO DRIVE

Proponents of a 17-hour workday would have you think that truckers are
allowed to drive 11 hours every day, and that a 14-hour workday only
provides 3 hours of break time. That characterization is misleading. Log
hours are limited each day to the number of hours that are remaining within
the 70-hour, 8-day limit. I may have 12 log hours available today, or I may
only have 4 hours available. It depends on the sum total of hours that I logged
in the previous 7 days. On a day that I have 8 log hours available, 6 hours
can be used for break time or other activities within a 14-hour window.

I am a long haul truck driver. Today is April 18, 2018. Here are my available
log hour hours for the next 8 days, rounded off to the nearest fraction:

10 8 ½ 7 ¼ 11 ¾ 9 8 ¼ 8 7 ¼ = 70 hours

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COMPLAINTS ABOUT INTRADAY REST BREAKS
SHOULD FOCUS ON DISPATCH SCHEDULES

The only statutory protection truckers have requiring motor carriers to provide
reasonable delivery schedules is the “Schedules to conform with speed limits”
statute (49 CFR § 392.6). That antiquated statute needs to be reworked
and expanded to include language addressing the need for periodic breaks
to interrupt the driving shift.

No motor carrier shall schedule a run nor permit nor require the operation of any
commercial motor vehicle between points in such period of time as would necessitate
the commercial vehicle being operated at speeds greater than those prescribed by the
jurisdiction in or through which the commercial motor vehicle is being operated.
– Federal Register, Dec 25, 1968, as amended on July 28, 1995

The Schedules to conform with speed limits statute should include a provision
requiring “reasonable time” for intraday meal, rest and exercise breaks.

REGARDING ATTEMPTS TO AMEND THE BABIN BILL

Responding to truckers who oppose the Babin bill, supporters of the bill
are suggesting that the bill be amended to include the following conditions:

A. That a “pause” of the 14-hour clock would not be allowed at the


facilities of a shipper or consignee while a driver is waiting for
his trailer to be loaded or offloaded.

B. That motor carriers would be prohibited from requiring drivers to


take a rest break in order to extend the 14-hour driving window,
and that stopping the 14-hour clock would be strictly a driver option.

Suggestion “A” stems from a concern that a 17-hour workday would negate
any improvements in dwell time (“detention”) at customer facilities that
are likely to result, or already have resulted, from electronic enforcement
of the 14-hour driving limit. About 50 percent of truckers surveyed have
expressed this concern. The other half assume, wrongly, that a three-hour
off-duty pause could be taken at a customer facility in order to extend the
workday.
Under existing Department of Transportation and Department of Labor
statutes, a truck driver waiting for a trailer to be loaded or offloaded is
on standby duty. Drivers cannot legally log off-duty at customer facilities

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while waiting on standby, and that includes time waiting for dock door
assignments, “work-ins” (no appointment or the driver late for an
appointment) and first-come-first-served situations when the driver has
to wait in a line of trucks for an opportunity to load or offload.
A driver waiting for a dispatch assignment is not merely on-call but is
on standby duty in most cases. A driver waiting in a line of trucks in order
to get his refrigerated trailer washed out is on standby duty. Drivers wouldn’t
be able to use those times to stop the 14-hour clock.
Under what circumstances would a driver be able to log off-duty for
up to three hours? A three-hour pause would be valid only if the driver were
not engaged in active or inactive duty. (“Inactive duty” and “standby duty”
are synonymous terms as decided in 1944 by the United States Supreme
Court in a series of landmark cases. See Wage and Hour Division regulation
29 CFR § 785.7 Judicial construction.)
Suggestion “B” prohibiting an employer from requiring a driver to pause
the 14-hour clock ignores the likelihood that truckers, without any coaxing
from dispatchers, would use a three-hour pause to extend the workday without
having taken the time to sleep. Thousands of independent truckers have their
own federal operating authority and operate just one truck. A trucker who
is behind on truck payments or facing foreclosure and the loss of his home
would be among the most likely to exploit a 17-hour workday.

I HAVE A PETITION PENDING BEFORE FMCSA TO


MODERNIZE HOURS OF SERVICE

The petition is titled: “A petition requesting rulemaking to exempt non-driving


duty time from the 8-day driving limit calculation for long haul truckers.”
I filed the petition in December of 2016. The petition consists of a 39-page
legal argument.
I filed a 20-page supplement to my original petition on August 1, 2017.
The petition supplement is a whistleblower complaint titled “An Open Letter
to the Truckload Carrier Industry.”

My FMCSA petition, petition supplement and Amicus Curiae brief


can be found on the Internet using the search words “Jack James Elias
FMCSA petition” or “Jack James Elias amicus curiae.”

In order to be paid for standby duty and other non-driving service truckers
need to be free to log the time without it counting against the 8-day allowance
of driving hours.

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As I explain in my FMCSA petition, exempting non-driving duty time
from the 8-day driving limit calculation will pave the way for hourly truck
driver pay. Hourly pay is necessary to make electronic logging safe. (See
page 8 of my Amicus Curiae brief in the case of OOIDA v. U.S. DOT. Topic
heading: The Compatibility Issue.)
Truckload carriers resist calls for hourly pay because they assume that an
hourly pay standard would apply not just to driving duties but to non-driving
duties as well. If truckers were paid for non-driving duties, they would be
required to report the time on Line-4 of their logbooks instead of logging
off-duty. A sharp increase in Line-4 reporting would deplete truckers’
available driving hours, and that would reduce productivity, decimate
corporate profits and severely impact the capacity of the trucking industry
to move the nation’s freight. A Line-4 exemption would ally those fears
and make it possible for carriers to consider hourly driver pay.
There needs to be an accurate accounting of the non-driving service hours
that truckers give to their employers each day. If they can’t log the time,
then they can’t be paid. It is as if the service provided never happened.
As I stated at the beginning of this document, truckers should be better
paid so that they don’t have to work themselves to death to make a living.
As one very smart trucker put it on the U.S. House of Representatives website,
in the comments section beneath the March 23, 2018 announcement for
the Babin bill ....

“Hours of service does not prevent you from stopping to rest when
you’re tired, your low wages do.”
– Allen Smith

Thank you for reading this.

Jack James Elias


JackJamesElias@gmail.com
PO Box 3312
Ramona, California 92065