Comments in Response to the FMCSA's Notice of Intent to File an Advance Notice of Supplemental Proposed Rulemaking for Parts and Accessories Necessary for Safe Operations; Speed Limiting Devices PDF Free Download
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FMCSA Docket No. 2022-0004
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NOW COMES Alec S. Costerus, President of Aerodyne Transportation, LLC and co-founder of
Alpha Drivers Testing & Consulting (the “Respondent”), who hereby submits these
comments in response to the Department of Transportation’s Federal Motor Carrier Safety
Administration’s (FMCSA) Notice of Intent (NOI) to file an Advance Notice of Supplemental
Proposed Rulemaking for Parts and Accessories Necessary for Safe Operations; Speed
Limiting Devices published in the Federal Register on May 3, 2022, under 49 CFR Part 393
on Docket No. FMCSA-2022-0004 (SNPRM).
Table of Contents
I Executive Summary --------------------------------------------------------------------------------------------- 1
II Docket Background ---------------------------------------------------------------------------------------------- 2
III Introduction ------------------------------------------------------------------------------------------------------ 3
IV Discussion --------------------------------------------------------------------------------------------------------- 4
A Speed Limiters’ Notice of Intent -------------------------------------------------------------------------- 4
1 ATA’s Petition ------------------------------------------------------------------------------------------- 4
2 FMCSA’s Notice of Intent Questions ---------------------------------------------------------------- 6
3 A Better, Technological Approach ------------------------------------------------------------------ 6
B Elimination of the Motor Carrier Exemption to the Fair Labor Standards Act ------------------ 9
1 History of the Fair Labor Standards Act ----------------------------------------------------------- 9
2 Present Day Effects of the Motor Carrier Exemption to the Fair Labor Standards Act -- 11
a Driver “Shortage” -------------------------------------------------------------------------------- 11
b Driver Pay ---------------------------------------------------------------------------------------- 12
c Pay-by-Mile while Regulated-by-Hour Paradigm ------------------------------------------ 14
d Public Safety Effects ---------------------------------------------------------------------------- 17
e National and Economic Effects --------------------------------------------------------------- 18
V Conclusions ---------------------------------------------------------------------------------------------------- 19
VI Action Plan ------------------------------------------------------------------------------------------------------ 21
A FMCSA------------------------------------------------------------------------------------------------------- 21
B Department of Labor ------------------------------------------------------------------------------------ 21
C The Congress ---------------------------------------------------------------------------------------------- 21
VII About the Respondent ---------------------------------------------------------------------------------------- 22
I. Executive Summary
Throughout our lives, we rely on a multitude of goods and services to prosper as
individuals and collectively as a nation. No industry is more central to that story than
trucking. It would be an understatement to say America's trucking industry is the lifeblood
of the U.S. economy and central to our way of life. In fact, almost every good consumed in
the U.S. is put on a truck at some point. As a result, the trucking industry hauls 72% of all
freight transported in the United States. As a whole, the trucking industry is more than a
$700 billion industry, representing 80% of the nation’s freight bill. Given the trucking
industry’s immense importance to the country, Respondent responds to the FMCSA’s NOI.
FMCSA Docket No. 2022-0004
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Respondent counters the FMCSA’s premise in the NOI in that, in our opinion, we do not
believe that a speed limiter rule is either necessary or desirable. To the contrary, we
believe that the implementation of a speed limiter final rule will have a deleterious effects
causing more accidents and damage to the economy. If, finally, the FMCSA nevertheless
proceeds with a final speed limiter rule, we suggest utilizing a modern, 21st Century
technological approach as proposed herein as opposed to a 1950’s approach suggested by
the questions posed in the NOI. While we oppose the approach taken by FMCSA regarding
speed limiters, we are keenly interested in helping the agency develop a more
comprehensive approach to the industry’s challenges that will benefit the industry, its
professional drivers, the public, and the country.
With the passage of time that brought technological advancements, the conditions
precedent to the Motor Carrier Exemption to the Fair Labor Standards Act’s enactment
have all disappeared making the exemption’s continued existence not only unnecessary,
but also compounds the supply chain bottleneck that contributes to a national security
vulnerability. It is long past the time to update the FLSA to reflect the modern day reality of
the technological gains since its passage by repealing the Motor Carrier Exemption to the
FLSA in its entirety.
As described herein, the unjust continuation of the disparate Motor Carrier Exemption is
precisely the primary cause of trucks’ speeding in the first place. If Congress acts, at the
FMCSA’s recommendation based on highway safety combined with the Department of
Labor’s recommendation rooted on pay equality honoring the FLSA’s goal of creating “a
floor under wages” and “a ceiling over hours,” the unfavorable trucking labor conditions
could be curbed or eliminated. If the FLSA was passed with the aim of improving workers’
purchasing power, then this exemption has now become the very source of the ills that the
FLSA was designed to cure.
Since the FLSA’s 1938 enactment, the Motor Carrier Exemption has usurped $4.8 trillion in
today’s dollars from hard-working drivers’ pocket, denying each interstate truck driver an
average $38,100 – $95 billion of annual income in 2022 dollars – that removing the
exemption could inject into the economy at a grassroots level that would broadly boost the
economy.
Finally, the long-standing current pay-by-mile pay plan while regulated-by-hour paradigm
is outmoded by technology, outdated by labor markets, out of touch with recruitment and
retention statistics, that results in outsourcing our manufacturing industries that
undermines the nation’s public safety, national and economic security, all of which we
would be out of our minds to continue.
II. Docket Background
In this NOI, the FMCSA announces its intent to proceed with a speed limiter rulemaking by
preparing a supplemental notice of proposed rulemaking to follow up on the National
Highway Traffic Safety Administration's (NHTSA) and FMCSA's joint Notice of Proposed
Rulemaking (JNPRM) published in the Federal Register on September 7, 2016, under 49
FMCSA Docket No. 2022-0004
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CFR Part 571 on Docket No. NHTSA-2016-0087, and under 49 CFR Part 393 on Docket No.
FMCSA-2014-0083, respectively. Through the previous 2016 JNPRM, the agencies
proposed equipping heavy vehicles with a gross vehicle weight rating exceeding 26,000
pounds with a speed limiting device (NHTSA); and requiring motor carriers to operate
these vehicles at or below a speed to be set in a final rule (FMCSA).
The SNPRM will propose that motor carriers operating commercial motor vehicles (CMVs)
in interstate commerce with a gross vehicle weight rating (GVWR) or gross vehicle weight
(GVW) exceeding 26,000 pounds, whichever is greater, that are equipped with an
electronic engine control unit (ECU) capable of governing the maximum speed be required
to limit the CMV to a speed to be determined by the rulemaking and to maintain that ECU
setting for the service life of the vehicle. With this notice of intent, FMCSA requests public
comments and data regarding the adjustment or reprogramming of ECUs.
III. Introduction
The NOI envisions a traditional, antiquated, command-and-control approach to compliance
that we believe will be ineffectual. Instead, we propose a market-based solution that will
motivate the market to adopt solutions that will negate the need for a speed limiter device
in the first place.
The Respondent hereto proposes several alternatives that make a direct response to the
questions posed by the FMCSA in the Federal Register irrelevant. To the contrary, the
FMCSA is posing the wrong questions in anticipation of an antiquated solution; we propose
several modern technological solutions to the implementation of speed limiters that will
satisfy the objective of a speed limiter rule while enhancing safety in a geographically-
diverse dynamic environment.
Lastly, the Respondent argues that the proposed speed limiter rule is secondary to the
actual, root cause, of truck speeding in the first place: (a) the Motor Carrier Exemption
(MCE)1 to the Fair Labor Standards Act (FLSA)2; and (b) the pay-by-mile while regulated-
by-hour paradigm. Without some economic value attributed to drivers’ time, no piecemeal
number of regulatory band-aids will sufficiently cover the wounds inflicted upon the
trucking industry. We propose solutions that brings professional truck drivers to pay
parity among non-executive labor markets.
We address these matters seriatim.
1 Section 13(b)(1) of 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 pursuant to
Section 204 of the Motor Carrier Act of 1935, except those employees covered by the small vehicle
exception described in the document. Exemptions from the FLSA have generally been narrowly construed.
See Phillips v. Walling, 324 U.S. 490 (1945).
2 52 Stat 1060 (1938), 29 USC §201 et seq. (1940).
FMCSA Docket No. 2022-0004
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IV. Discussion
A. Speed Limiters’ Notice of Intent
1. ATA’s Petition
In its 2006 petition to NHTSA, the American Trucking Associations (ATA) petitioned the
agency to initiate a rulemaking aimed to reduce speed-related crashes, specifically, to
reduce the number and severity of crashes. These two results, the number, and the
severity of crashes, need examination individually.
First, nothing prevents the ATA-member carriers from installing speed limiters on their
own equipment. They have always been able to set their own trucks’ speed limiters; and
frankly, an overwhelming majority most already have.3 This makes the ATA petition moot
on its face.
Second, is it possible that the ATA petition is a disingenuous move by having the FMCSA
impose ATA’s anti-competitive will upon its small fleet and owner-operator competitors.
For example, an individual owner-operator who drives his/her own rig is in full control of
the truck, making the need for a speed limiter device irrelevant. Conversely, fleets might
need a speed limiter for driver managers to better supervise its inexperienced drivers. The
owner-operator is the owner, supervisor, dispatcher, driver, and chief maintenance officer,
and therefore the need for speed limiter oversight is moot.
Contrary to the ATA’s assertion, installing a speed limiting device will increase the number
of crashes. While having a speed limit, for example, in the Northeast, set at a speed, either
60, 65, or 68 MPH, as contemplated in the 2016 JNPRM, in any of these states where the
speed limits are lower, at 55 or 60 MPH, a speed limiting device will have no proactive effect
whatsoever (except exert an undue additional cost to the vehicle owner). However, in the
Western United States where municipalities are much farther apart than in the East with
higher speed limits, speed limiters will effectively serve as the least common denominator
speed limit. In these cases, where non-heavy vehicles could travel faster, or, especially in
States where there is a split speed limit (i.e., one speed limit for cars and another speed
limit for trucks) the effective number of truck and car interactions will increase
significantly and with a greater speed differential between the two types of vehicles. This
is precisely the opposite outcome that traffic safety dictates by making a truck pull-out to
pass a slower travelling, exiting, or entering vehicle a near-collision several hundred times
a day per truck.
Physics dictates that the amount of energy is equal to the mass times the velocity squared:
E=mv2. But the simplistic approach offered by the ATA assumes that all else remains the
same, which it does not. Physics tells us that having both the increased number of
interactions and at increased speed differentials is likely to have more – not less! – crashes
3 In its comments submitted under this docket, The Trucking Alliance said that its “member carriers utilize
speed limiter technologies on more than 98% of their trucks, approximately 62,000 vehicles.” Accordingly,
a speed limiter rule as contemplated by FMCSA is wholly ineffectual, providing zero benefit.
FMCSA Docket No. 2022-0004
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involving trucks. Some of these, even with trucks traveling at 65 MPH and a faster moving
automobile, will trigger more high-speed crashes for automobiles.
In its supporting response to the 2016 JNPRM, J.B. Hunt Transport commented that a speed
differential between cars and large trucks will result from trucks equipped with speed
limiters that are set at speeds below the posted [automobile] speed limit. This speed
differential may cause a safety hazard; however, J.B. Hunt believes that the current safety
hazard caused by large trucks traveling at speeds in excess of posted speed limits is of
greater concern.” On this, we agree. Our agreement diverges, however, in how to best
manage the excessive speeds.
In general, however, the likelihood of automobiles traveling at speeds in excess of posted
speed limits is much more frequent due to their enhanced ability to accelerate/decelerate,
better handling maneuverability, and lower center of gravity; automobiles speed because
they can. Trucks, however, are lacking in these capabilities; a competent professional
driver is much more attuned to driving within posted speed limits and cognizant of the
penalties associated to a CDL holder that speeding violations could unleash, including
jeopardizing one’s employment and continued ability to drive a CMV.
We agree that the aforementioned speed differential will be a significant safety hazard. We
agree that vehicles – all vehicles – traveling in excess of posted speed limits, pose a safety
hazard. We believe that speed limits are best determined and set by careful examination
by the local, county, and state traffic engineers who are all better able to determine the
maximum safe speed. To the contrary, an arbitrarily set, one-size-fits-all speed limiting
device as proposed in the 2016 JNPRM and this NOI can hardly do justice to those who are
the most able to determine the maximum safe traveling speed for a particular roadway.
The problem is that of vehicles, both trucks and automobiles, exceeding posted speed
limits; let’s actually address the primary concern! A static speed limiter, while it may be
one solution, but with today’s technology, it’s far from the best solution!
A better restatement of J.B. Hunt’s position is “we need better speed enforcement without
creating a safety hazard.” Further, the apparent lack of state and local speed enforcement,
for whatever reason, is insufficient cause to force the entire industry to bend to a speed
limiter regulation and certainly does not justify the cost burden placed upon the industry
as a whole, and not a one-size-fits-all approach that fails to accommodate the vastness of
the nation’s geography.
As an aside, one should note that automobiles are many times more likely to have
distracted drivers with hands-on cellular phone usage, texting while driving, watching
movies, applying cosmetics, controlling unruly kids, reading books, etc. One step in the
positive direction is for the NHTSA to require wireless cellular carriers to limit apps to
hands-free phone and map/GPS apps while inside a moving vehicle. The technology is
readily available which will make the roadways safer for all users.
Lastly, Respondent Alpha Drivers’ principals are Administrators of the Volvo Truck Masters
and other transportation Facebook groups that has nearly 100,000 group members. In that
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capacity, we posted a poll to gauge the Volvo Truck Masters group members’ thoughts on
the speed limiter NOI. The poll reached 2,401 members with 335 members casting a vote
in the poll. An overwhelming 85.4% of the participants indicated that they opposed speed
limiters. Only 6.0% voted in favor of speed limiters, with some of those citing in favor that
they don’t drive at high speeds already so they felt the impact upon them would be
minimal. The 8.7% balance cast “I don’t know” or “I don’t care” votes.
2. FMCSA’s Notice of Intent Questions
Through its NOI, the FMCSA seeks answers to questions that suggest the agency is pursuing
an antiquated, 1950’s solution to a modern-day 2020’s problem. Further, the very scope of
the thirteen (13) questions posed suggest a pre-conceived approach to speed limiters in
CMV’s with an electronic engine control unit (ECU) used in interstate4 commerce capable of
governing the maximum speed to be determined by the rulemaking. “With this notice of
intent, FMCSA requests public comments and data regarding the adjustment or
reprogramming of ECUs.” Thus, it is clear from the Federal Register publication that the
FMCSA seeks to apply statically-set speed limiters by programming the ECU. That, in and of
itself, suggests that the very agency tasked with regulating the trucking industry knows
little about the technology available in today’s trucks, and is incapable of providing
modern, workable, and effective regulations.
3. A Better, Technological Approach
With all due respect, we believe a better approach that reflects the diversity that multi-
state and jurisdictional speed limits entails is to offer a dynamic, self-adjusting speed
limiter. Several manufacturers of modern trucks and industry technology providers have
several various technologies for:
radar-sensing automatic collision mitigation emergency braking systems:
Volvo Trucks5 calls their radar-based automatic collision mitigation system
Volvo Active Driver Assist (“VADA),” a comprehensive collision mitigation
system launched in 2017 that uses camera and radar sensors to detect
motorized vehicles within the vehicle’s proximity. VADA is in constant
operation while the vehicle is in motion, enabling a series of features to
activate driver alerts and foundation braking according to information
detected by these advanced sensors, such as:
Automatic Emergency Braking (AEB) uses camera and radar sensors to
determine how traffic is behaving around the truck. When a truck
detects a vehicle, audible and visual warnings alert the driver to act. If
the driver does nothing, AEB engages to mitigate potential collisions.
4 FMCSA has limited authority over commercial motor vehicles operating in interstate commerce, leaving the
several states’ department of transportation having authority over intrastate commerce. As such, CMVs
operating under intrastate authority would be exempt from any federal speed limiter rule. This creates an
uneven market that treads upon the “equal protection” clause where interstate commerce endures a
disadvantage to intrastate commerce.
5 Alpha Drivers is familiar with Volvo Trucks. The use of Volvo is by way of example as several other truck
manufacturers have similar safety systems available.
FMCSA Docket No. 2022-0004
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VADA 2.0, upgraded in 2019, now allows it to operate across multiple
lanes of traffic.
Lane Departure Warning alerts the driver when an unintentional lane
departure occurs. VADA 2.0 allows for adjustable volume and audio mute
over-ride options and enables drivers to turn off the system momentarily
(10 minutes) for select functions, such as constructions.
Highway Departure Warning and Braking automatically activates if the
driver does not take corrective action after a Lane Departure Warning
and the system detects that the vehicle may leave the drivable roadway,
slowing the vehicle by a pre-defined speed.
dynamic or adaptive cruise control to maintain safe following distances that can
increase with both weight and speed:
Adaptive cruise control is an available cruise control
https://en.wikipedia.org/wiki/Cruise_control advanced driver assistance
system for road vehicles that automatically adjusts the vehicle speed to
maintain a safe distance from vehicles ahead. As of 2019, adaptive cruise
control, also commonly known as dynamic cruise control, has at least twenty
unique names that describe the same basic functionality.
Control is based on sensor information from on-board sensors. Such systems
may use a radar or laser sensor or a camera setup allowing the vehicle to
brake when it detects the car is approaching another vehicle ahead, then
accelerate when traffic allows.
add-on devices that monitor safe driving behaviors such as following distances
where the device’s programming could provide access to higher speeds as the driver
exhibits demonstrated speed responsibility;
camera devices that can read speed limit signs to provide dynamic ECU input to
limit speeds:
Mobileye Vision Technologies patented the process of using cameras on a
vehicle to read speed limit signs. Tesla used that company's
cameras/software in its first hardware version. Those vehicles are capable
of reading speed limit signs.
and,
GPS-based, database accessible, real-time informational devices that know in
advance upcoming speed limits changes, construction zones, high traffic warnings to
limit speeds as appropriate.
These are just a few technologies that are available today or could easily be programmed to
fulfill the speed limiter concept in a more geographically dynamic, fleet flexible, driver
usable, conditions accommodating, and traffic-friendly manner. Further, truck
manufacturers are already either adding these various advanced safety technologies as
FMCSA Docket No. 2022-0004
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standard equipment or as an available option on new trucks. These technology solutions
are smarter, dynamic, and much more advanced than the speed limiter solution
contemplated by FMCSA through its NOI, completely negating any incremental benefit that
a static speed limiter rule offers.
One way such a plan makes sense from an enforcement standpoint is that all vehicles –
automobiles and trucks – have electronic speed limiter devices capable of reading speed
limit signs that would effectively curb all speeding nationwide. From a technology
perspective, this effectively can be done today as is the case with GPS devices that access
highway databases that include school and construction zones to limit cars and trucks
within posted speeds. This technology can (a) differentiate between cars and trucks’ split
speed limits; (b) differentiate between daytime and nighttime speed limits to account for
reduced visibility; and (c) differentiate between regular and wildlife designated zones with
reduced or split day/night speed limits, as applicable and where appropriate.
Additionally, as it relates to speed limiters, FMCSA should prohibit average dispatch speeds
(similar to the non-coercion) that encourages a driver to drive fast by setting unrealistic
arrival times.6 Authorized by section 32911 of the Moving Ahead for Progress in the 21st
Century Act (MAP-21) and the Motor Carrier Safety Act of 1984 (MCSA), as amended,7
FMCSA adopted regulations that prohibit motor carriers, shippers, receivers, or
transportation intermediaries from coercing drivers to operate commercial motor vehicles
(CMVs) in violation of certain provisions of the Federal Motor Carrier Safety Regulations
(FMCSRs), including drivers' hours-of-service limits. In addition, the rule prohibits anyone
who operates a CMV in interstate commerce from coercing a driver to violate the
commercial regulations. Carriers dispatching loads on drivers that provide insufficient
time or too high dispatch speeds amounts to a coercive effect that FMCSA should further
prohibit under these provisions.
Finally, in the 2016 JNPRM, the agencies determined that it was appropriate to reexamine
the “Commercial Motor Vehicle Control Devices (DOT HS 807 725 (May 1991)) report to
Congress and concluded that the concerns and conclusions in that report were no longer
valid. However, the agencies “have no plans at this time to prepare an updated study, given
limited agency resources.” Instead of examining and researching the “problem” in a
comprehensive manner, the agencies put forth the JNPRM that 1) increases the number of
truck-automobile interactions that is certain to undermine safety that will lead to an
increase in crashes; and 2) will undermine the freight transportation industry’s
effectiveness, which would have significant negative economic consequences for the nation.
The FMCSA should never have allowed this NOI to arise because the agencies failed to
properly vet – in their own words – by preparing an updated study given the agencies’
limited resources, rather than inappropriately and unjustly shifting the regulatory and
financial burdens from the agencies to the trucking industry writ large. On this point, we
ask for Congressional oversight to evaluate the appropriateness of implementing a speed
limiter rule while the agencies failed to prepare an updated study reexamining the
6 For example, the average speed for a dispatch (total distance between points) should not exceed 50 MPH.
7 FMCSA Docket 2012-0377, 49 CFR Parts 386 and 390.
FMCSA Docket No. 2022-0004
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“Commercial Motor Vehicle Control Devices (DOT HS 807 725 (May 1991)) report to
Congress and properly vet the agencies’ concerns and conclusions in that report as no
longer valid.
B. Elimination of the Motor Carrier Exemption to the Fair Labor Standards Act
For as long as any driver has been trucking, we’ve all heard the so-called “driver shortage”
mantra every year. The American Trucking Associations – a membership that includes
some of the largest for-hire fleets in the U.S. – routinely reports near-100% annual
turnover rates, and many of its members are continuously challenged with driver
retention. ATA's own economist asserts that there is a shortage of 80,000 drivers.8 And
with good reason: if they can create the false impression of a driver shortage, then the ATA
can continue to successfully lobby Congress for mega-fleets’ favorable legislation and
mislead the Executive Branch such as revealed in the Biden-Harris Trucking Action Plan.
This section discusses the Motor Carrier Exemption (MCE) to the Fair Labor Standards Act
(FLSA), the pay-by-mile driver pay model while regulated-by-hour, the historical root cause
of the current supply chain bottleneck and the explores national and economic security
issues related to these topics.
1. History of the FLSA
At the time that President Franklin D. Roosevelt signed the FLSA in 1938, the economy was
recovering from the effects of a severe depression. Over ten million Americans were still
unemployed and millions of part-time workers were fearful of losing the little employment
they had. For decades prior, many organizations and individuals believed that by setting “a
floor under wages,” and a “ceiling over hours” that would curb or eliminate unfavorable
labor conditions.
While President Roosevelt was in Bedford, Mass., campaigning for reelection, a young girl
tried to pass him an envelope. A police officer threw her back into the crowd. Roosevelt
told an aide, "Get the note from the girl." Her note read,
I wish you could do something to help us girls. . . . We have been working in a sewing
factory, . . . and up to a few months ago we were getting our minimum pay of $11 a
week . . . Today the 200 of us girls have been cut down to $4 and $5 and $6 a week.
To a reporter's question, the President replied, "Something has to be done about the
elimination of child labor and long hours and starvation wages."9 While the President was
successful in curbing child labor abuses, truck drivers’ abusive long and unpaid hours
remain today.
8 American Trucking Association’s “Driver Shortage Update,” October 25, 2001, citing their chief economist
Bob Costello, “the truck driver shortage will hit a historic high of just over 80,000 drivers. . . . At current
trends, the shortage could surpass 160,000 [drivers] in 2030.”
9 Franklin D. Roosevelt Public Papers and Addresses, Vol. V, New York, Random House, 1936, pp. 624-25.
FMCSA Docket No. 2022-0004
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The FLSA is the law that guarantees overtime pay to many workers, however, the same law
has an exemption, which says that “any employee with respect to whom the Secretary of
Transportation has the power to establish qualifications and maximum hours” is not
guaranteed overtime pay.
Specifically, the Hours provision, §7(a) of the FLSA, provides that employees “engaged in
commerce or in the production of goods for commerce” shall receive additional
compensation for hours worked in excess of forty per week10 of at least “one and one half
times the regular rate . . . .”11 However, § 13(b)(1) makes the Hours provision inapplicable
to “any employee with respect to whom the Interstate Commerce Commission12 has power
to establish qualifications and maximum hours-of-service pursuant to the provisions of §
204 of the Motor Carrier Act, 1935.13 Thus, one of the original exemptions contained in the
1938 Fair Labor Standards Act, the MCE exempts motor carriers from overtime pay.
Since Congress passed the FLSA in 1938 that ended the requirement for overtime pay
differentials for truck drivers for all hours worked beyond 40 hours per work week, we
have effectively subsidized transportation costs at the sole detriment of truck drivers’
earnings. This under-valuation of truck drivers’ time gave rise to the large, mega retailers
and online retailers.
It’s obvious that the FLSA conspicuously excluded or omitted trucking industry’s workers
from its protections. What the girl in Bedford experienced is exactly what professional
drivers have experienced with the Motor Carrier Exemption for the past 84 years since its
enactment that continues today. As a result, the supply-chain crisis that we are
experiencing today is not an all-of-a-sudden event, but a slowly progressing metathesized
industry cancer with a deteriorating condition where drivers chose and continue to choose
to forego trucking as a career choice to seek that provides more lucrative renumeration,
better quality of life, and increased opportunities for professional advancement.
Eighty-four years ago, carriers had no means of tracking their trucks. Instead of today’s
electronic logging devices (ELD), drivers logged their duty status on paper log “swindle
sheets.” ELDs have eliminated the paper logs and created a basis to provide change of duty
status that can also serve as an accurate pay-clock. Prior to cell phones, drivers had to
stand in line to use a pay phone; cell phones and electronic dispatching directly to the
truck’s cab provide instant communication. Today we enjoy GPS devices with trucks
equipped with telemetry devices to provide pinpoint-accurate location and speed data to
the dispatcher. None of that existed when the FLSA passed, which makes today’s prevalent
pay-by-mile business model technically obsolete.
10 The regulations define a workweek as a “fixed and regularly recurring period” of 168 hours comprising 7
consecutive 24-hour periods. 29 C.F.R. § 778.105
11 52 Stat. 1063 (1938), 29 U.S.C. § 207(a) (1940).
12 Today, the statute replaced Interstate Commerce Commission with the Secretary of Transportation.
13 52 Stat. 1068 (1938), 29 U.S.C. § 213(b)(1) (1940).
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2. Present Day Effects of the MCE to the FLSA
a. Driver “Shortage”
Ironically, some fleets crying about a “driver shortage” are the very same ones who asked
for the overtime pay exemption, citing the difficulty in paying drivers for inclement
weather, traffic or accident delays, truck breakdowns, detention delays at shippers and
consignees, fuel-ups, maintenance, and so on, and built their business model on a pay-per-
mile basis. This practice conveniently shifts the labor cost burden from a fixed-cost
activity to a variable-cost activity. As a result, when the vehicle must slow for traffic
accidents of congestion, inclement weather conditions, chaining-up, maintenance, dock
detention, etc., as long as the vehicle progresses slowly or not at all, the driver bears the
cost. There is no value attributed to the driver’s time, and time is one thing that once past,
it’s gone.
However, the implementation of electronic logging devices, which track the vehicle and
hours-of-service by the second, has solved the difficulty of calculating drivers’ working
hours. If there really was a driver shortage of 80,000 (or whatever the real number is),
then microeconomics supply-demand fundamentals would dictate that the price of labor
needs to increase to match the constrained labor supply. All of the conditions precedent to
the exemption have been satisfied, making its continued industry practice by carriers and
financial injury upon drivers usurious.
In this regard, the U.S. Department of Labor is complicit in suppressing drivers’ skill
classification. At the ATA’s urging, the Department classified truck drivers as “unskilled”
labor, whose work usually involves simple duties that don’t require judgment. In some
cases, unskilled labor requires physical strength and exertion. A few examples of these
types of jobs include grocery clerks, house cleaners, fast food workers, janitors, and
parking lot attendants. This “unskilled” labor definition clearly fails to describe truck
drivers who must exercise judgement regarding load securement, routes of travel, fueling,
hours-of-service, traffic and weather considerations, and responsibility. Moreover, the
truck driver must pass a test to obtain a commercial driver’s license plus additional testing
for required endorsements. It is difficult to imagine a parking lot attendant or a burger
flipper as equally skilled as a trained, licensed, and experienced CDL driver.
“Semi-skilled” labor requires more skills than an unskilled labor job. People who perform
semi-skilled labor usually have more than a high school diploma, but less than a college
degree. The types of skills necessary for this are not complex but usually include the ability
to monitor and perform repetitive tasks. These types of skills are more likely to be
transferable and useful in other jobs. A few examples of these types of jobs include truck
drivers, retail salespersons, bartenders, flight attendants, taxi drivers, waiters, and security
guards.
The mega-fleets, to their credit, have tried every trick in the book to address the driver
shortage. They’ve tried military veteran transition programs, actively hiring overseas
FMCSA Docket No. 2022-0004
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workers by sponsoring work visas to drive, sign-on bonuses, and advocating to members of
Congress the need to hire kids as young as 18 to drive big rigs. Amazon even wants to hire
drivers who use marijuana14 as long as they don’t toke while driving.
For the past several years, driver retention and turnover have become increasingly bigger
problems. First, U.S. hours-of-service rules limit interstate over-the-road long-haul
truckers to driving 70 hours in eight days. Beyond those hours, there’s waiting at loading
docks, maintenance, fuel-ups, folding blankets, stowing equipment, awaiting inclement
weather and chain-ups, traffic accidents and back-ups, and a myriad of other job-related
activities that drivers routinely perform off-the-clock in order to preserve precious
revenue-producing drive time in a literal race against the clock. Yet, despite those long,
arduous hours cooped in a small truck cab, away from home and family, company drivers
average paltry earnings.
b. Driver Pay
According to ZipRecruiter,15 as of May 2022, the average annual pay for a truck driver in
the United States is $51,910 a year. That works out to be approximately $24.96 per hour.
But ZipRecruiter’s math is just as flawed as the exemption; the $51,910 figure assumes only
2,080 working hours in the year, which is a normal 52-week year at 40 hours per week; in
other words, 40 hours per week for every week of the year without any time off.
Today, when a typical driver works 70 hours in eight days (assuming two weeks off
annually) that driver is actually working 3,071 hours, which reduces their hourly pay to
$16.90 – barely above a $15/hour minimum wage. Still, that calculation also assumes that
there is no unpaid working time, which is a completely bogus assumption. Finally, drivers’
wages would fail to even meet the proposed $15/hour16 federal minimum wage.17
When measured against Walmart greeter, McDonald’s fryer, or even an entry-level
teenaged local grocery store stocker and other avenues for labor to seek gainful
employment, there’s little to no economic incentive for anyone to drive as a company
driver, and that’s before considering the other externalities such as benefits, living
accommodations, access to home, friends, and family. This is why many fleets have to own
the very driver ‘shortage’ that they created; with good reason, in-demand, qualified drivers
are rejecting these mega-fleets as a failed employment proposition!
As a practical matter, new entrants to the transportation business have little to no
alternatives but to join these big, mega-fleets due to their ability to self-insure. Insurance
14 Amazon overlooks drivers smoking marijuana in order to become workers - American Post
15 ZipRecruiter’s CDL Truck Driver Annual Salary, as of May 9, 2022.
16 The Raise the Wage Act of 2021 would raise the national minimum wage to $15 per hour by 2025.
17 Consolidated Minimum Wage Table | U.S. Department of Labor (dol.gov). Thirty states have minimum
wage laws that are higher than the federal minimum wage of $7.25/hour.
FMCSA Docket No. 2022-0004
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companies are loathe to insure smaller fleets and owner-operators or, if they do, quote
prohibitively exorbitant rates, effectively making that an impossible avenue. The recent
spate of “nuclear” verdicts assessed to these mega-fleets are making the situation for the
rest of the industry even worse. Indeed, these high-cost verdicts are raising insurance
rates to all the other trucking industry participants, thereby crippling the industry through
no fault of their own but for the adverse industry association. It’s only after the new
entrant attains a year or two of over-the-road experience that the new entrant has
sufficient experience to escape the mega-fleets’ indentured servitude that the driver can
venture elsewhere.
The easy, simple, economically viable and socially equitable solution is to eliminate the
overtime pay exemption under the FLSA. Using the example above, the same company
driver who worked 3,071 hours in a year at the $24.96 hourly rate that the industry touts
by ZipRecruiter would bolster their income by 73% to $90,000, much more commensurate
with the hours worked, the important level of responsibility, and the living conditions
endured. Instead of carriers looking at this as astronomical annual earnings, this $38,100
is the annual amount that carriers are depriving drivers. Taking in their entirety since the
FLSA’s 1938 enactment, at $38,100 per driver in today’s dollars, the industry has usurped
$4.8 trillion dollars from the hard-working drivers’ pocket; that’s $95 billion of income each
year that the industry could inject into the economy at a grassroots level that would
broadly boost the economy.
Trying to figure out why there’s a driver shortage is no mystery. It’s pay! It all stems from
the FLSA exemption to overtime and the pay-by-mile paradigm discussed below. It’s long
past the time that truck drivers need to carry the economic burden on their backs, and if
the driver ‘shortage’ has taught us anything it's that if there is insufficient remuneration
there will continue to be a driver retention problem.
Simple microeconomics dictates that when demand for drivers exceeds supply, the price of
that supply must increase to meet that increased demand. Absent a cost of labor
adjustment, nothing will account for the microeconomic imbalance, and all the numerous
programs, tax credits, recruitment tactics, red tape elimination, and the like, will all be for
naught. Pretending that these micro efforts will assuage the market or dupe potential
drivers is to continue the mega-fleets’ disastrous self-serving, deceptive, and unfair
business practice that has produced no tangible results to stem the perpetual revolving
door that rampant, unfettered turnover festers.
Once upon a time, a justification for the exemption might have existed. During ensuing 84
years, technology has made the exemption outmoded, the disproportionate labor market
inequity is outdated, and the perpetual driver turnover at large fleets is out-of-touch with
small and private fleets. Look at the American Trucking Associations’ own metrics: the
blatant disparity of mega-fleet’s high turnover vs. small fleets (94% vs 14% turnover)
should clearly demonstrate that it’s the business model that has an attractiveness shortage:
it’s a failed model.
FMCSA Docket No. 2022-0004
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Consider this: where else do you show up to work at 8:00 AM until 5:00 PM, only to work
without pay from 8:00 AM until Noon? And, knowing that, how many licensed, capable
drivers would sign-up for such a pay model when the rest of the working labor market
receives compensation for a full day’s work? Yet, the ATA and its member carriers are
pushing for exactly that! When the revolving door has less than its full complement of
applicants, they run to Congress asking for help to recruit military veterans, women, 18-
year old kids, tax credits for hiring unemployed workers, and the like. Even the recently
unveiled Biden-Harris Trucking Action Plan is attempting to make it easier to streamline
the CDL application process without addressing the underlying fundamental problem of
pay inequity compared to other labor markets; this, too, will prove wholly ineffective. As
the adage goes, “If you do what you’ve always done, you’ll get what you’ve always got.”
More of the same spin is not going to solve the supply chain crisis that they, with Congress’
assistance, helped create.
c. Pay-by-Mile while Regulated-by-Hour Paradigm
The pay-by-mile while regulated-by-hour paradigm reduces driver pay when the driver’s
skill requirement is at its highest: during close quarters maneuvering, in construction
zones, accident scenes, traffic congestion, inclement weather, and mountain driving are all
such examples where the driver’s skillset is most demanding. It is imperative that we have
a robust transportation system – both infrastructure and drivers to move goods – when
trucks move 72% of all goods.
Consider the driver shortage itself. With a historical average turnover hovering just shy of
100% among American Trucking Associations member fleets, it’s clear that there is a driver
retention issue, not a ‘driver shortage.’ In order to curb the revolving door and the
perpetual introduction of new inexperienced drivers, drivers need more just and equitable
compensation compared to other labor markets where overtime pay is common, but also
standard practice under the law. Why should transportation continue to be exempt?
When a driver is paid by the mile yet regulated by the hour, there will be a natural
disconnect as the financial incentives are constrained by the clock. Hours-of-service rules
limit truckers in the U.S. to driving to 11 hours per day with up to 70 working hours in an
8-day period. This inherent regulatory disconnect between drivers trying to maximize
one’s earnings potential by driving more miles while driving time is regulated breeds
unnecessary driver risks, instills abuse of company drivers of their non-driving hours as a
standard industry practice, undermines driver recruitment and retention, and poses a
public safety road hazard by financially motivating drivers to speed, or at a minimum,
driver too fast for the prevailing traffic or weather conditions.
For example, because “the driver ain’t earnin’ when the wheels ain’t turnin’,” when a driver
confronts inclement weather when prudence dictates that the driver park the truck, there’s
a financial incentive for the driver to push on, even when conditions suggests otherwise.
When a truck breaks down, blows a tire, overheats, or anything else as often happens, the
wheels stop and the driver doesn’t get paid. The driver goes “off-duty” to preserve their
available hours. Yet, the driver is ready, willing, able, and is at work – the driver deserves
FMCSA Docket No. 2022-0004
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due compensation regardless of how efficiently that carrier utilizes the driver. Simply,
there is no value attributed on drivers’ time while working but not driving. The result is an
industry-wide travesty of labor rights, a miscarriage of compensation, a deprivation of pay
parity among unskilled or semi-skilled workers, an afront to our local communities that
have lost local businesses to offshore providers and places our supply chain at an
untenable risk of product unavailability.
When the truck shows up for an appointment to pick up a load at a shipper or arrives at the
consignee for delivery, the driver similarly goes unpaid while detained – sometimes for
hours. Again, the driver goes “off-duty” to preserve his available hours. Without a financial
cost associated with detention at the dock, the carriers have no incentive to contact the
shipper or consignee to ascertain the reason for the hold-up. If Congress required carriers
to pay the driver for all working time beyond sleeper berth time, then carriers would soon
figure out that detention costs them money and would add a freight ticket surcharge for
detention. Carriers could cure detention problems virtually overnight, but the carriers
deliberately choose not to pay drivers for detention as they consider the variable cost of
drivers’ time a freebie, a zero-cost proposition. In their accounting mindset, why fix a
problem when it has no adverse expense?
And while we’re at it, let’s put a proper value on that detention time. By rough example, the
equivalent average 50 MPH transit speed at today’s $3 per mile freight rate yields a
$150/hour value cost. If carriers charged shippers and receivers for all time that a truck is
on-site, then carriers would work to get that truck loaded or unloaded right away. The
inefficient notion of “first-come, first served” depends on sufficient warehouse staff, but
drivers entirely and unjustly bear that inefficiency cost. Today, the accepted industry
practice is for the carrier to give the shipper and consignee up to two (2) hours “free” for
loading and unloading. The driver sits in his truck, in a breakroom, or at the dock counting
product or securing the load . . . usually off-duty to preserve his 11 driving hours-of-service
or cleverly using a split sleeper berth option to stop the 14 hour daily on-duty clock that
the FMCSA added to provide flexibility; in practice, this became yet another coercive
opportunity to enhance driver productivity by running the living daylight out of drivers.
Again, another abusive, zero value-added proposition for drivers by fleets.
The carriers assert that the mileage rate includes the on-duty nature of the job. Moreover,
carriers have argued that they cannot know where the rig is, how many hours-of-service
the driver has, and they are unaware of traffic and road conditions. None of these are true
today. Since full implementation of electronic logging devices in December 2019, fleets
know exactly the vehicle’s location, the driver’s available hours, and telematics provide the
capability to see the precise operating conditions of the vehicle.
Specifically, the ELD becomes the time clock for both pay purposes and hours-of-service
regulatory compliance, in unison. When the driver is in the sleeper berth, then the pay-
clock stops for up to and not more than ten (10) hours per day consistent with hours-of-
FMCSA Docket No. 2022-0004
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service rules18. For all other lines, “on-duty,” “driving,” and “off-duty,” the driver should
and deserves to get paid.
Also, for any workweek in which that aggregate of all hours except up to ten (10) hours per
day for sleeper berth and personal conveyance that exceeds 40 hours, then the hourly rate
is overtime consistent with the FLSA at time and one-half. For any week, in no event shall
the combined driving + on-duty + off-duty pay be less than the minimum wage plus
overtime, as applicable.
Another alternative is a hybrid alternative such as Walmart Transportation’s enviable pay
structure. In a hybrid scenario, carriers could pay-by-the-mile for all driving activities, but
for all other working activities (subject to up to ten (10) hours per day for sleeper berth
and off-duty) the carrier pays an hourly activity pay rate. Traffic and weather delays
would be subject to an hourly activity pay rate, compared to today’s no-pay for the driver.
For any week, in no event shall the combined driving + on-duty + off-duty pay be less than
the minimum wage plus overtime, as applicable.
The benefit of the hybrid compensation model is that drivers’ compensation will be
productivity-based (that is, miles driven) that prevents a driver from “laying down” on the
job. Conversely, the downside is that a driver might still feel compelled to drive
aggressively, too fast, when prudence might suggest parking, etc., in order to preserve a
paycheck. However, the hourly activity pay – even while parked to sit out traffic or
inclement weather, for example – should offset that financial pressure as hourly pay is still
far superior than the current no-pay at all scenario.
The way I envision this is: as long as the driver is responsible for the rig, whenever a driver
is away from home or not asleep, the driver is at work, ready, willing, and able to work and
therefore entitled to, deserves, and should get paid.
Here’s why: while driving, it’s traditionally been to go as hard and as fast as possible
because one’s earnings relied on how many miles in a day one could travel. Often this was
too fast, too dangerous, too aggressive, and too stressful for the driver. Without an
economic value accessed on a driver’s time – the available hours-of-service – the only way
for a driver to increase his pay or offset a delay is to drive faster to maximize a daily
mileage productivity. This is the precisely opposite that safety policy would indicate. Yet,
this is precisely the consequence of misguided legislation and Executive Branch
regulations. To fix this unintended consequence, instead of righting the wrong of years
ago, now the FMCSA seeks to require speed limiters to patch the drive faster hole. A better
solution is to provide a compensation plan wherein drivers can earn without carriers
pushing drivers to drive faster, maintain equity with other “unskilled” labor markets, and
provide pay for all working hours that will assign value to the driver’s time.
“On-duty” now becomes a payable status, even while the wheels are not turning, so
detention at a loading dock will cost the carrier, which in turn will financially motivate
18 See 49 CFR §395.1(g)(1)
FMCSA Docket No. 2022-0004
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wasteful detention reduction. No longer will drivers unjustly, inequitably, and solely bear
the burden of detention while the carrier gets a free variable labor cost.
Here is a real conundrum. A successful small fleet Ohio-based fleet would love to initiate a
fair, just, and equitable pay structure, especially to aide in their recruitment and retention
efforts. In fact, with record levels of low unemployment, hiring and retaining drivers is a
steep challenge. Due to the plethora of available employment opportunities, where there
are three openings for every job applicant, the owner would like to adopt a more
aggressive pay plan to compete with other labor markets that pay overtime and pay for all
hours worked. However, the highly competitive nature of the thin-margined trucking
industry would crucify this carrier if it unilaterally acted. Thus, a carrier cannot act alone,
so federal action is necessary to maintain and even competitive labor market.
d. Public Safety Effects
When carriers pay drivers by the mile while the FMCSA regulates drivers by the hour, both
carriers and drivers will necessarily demote safety to a secondary consideration. Period.
This type of pay plan smacks in the face of all things dangerous to FMCSA’s mission.
When inclement weather appears, as it so often does, drivers will push onward to preserve
their paychecks. It’s simply a matter of motivation. Only when you’re a veteran
professional driver that you know that it’s better to call it the day to profitably drive
another day. Sadly, so many drivers – especially newer, unseasoned drivers who are prone
to the pay vs safety paradox – lack the discipline, experience, and training that comes with
years of driving.
This is not a new phenomenon. We see this each year in Wyoming, Pennsylvania, Texas,
and several other states. We even witnessed 20+ hour shutdown on I-95 in Virginia in
early January, 2022. As drivers, we curse the DOT for closing the highways. Let me say
this: frankly, it’s because unprepared automobiles block travel lanes causing trucks to stop
becoming unable to resume progress, when neither vehicle type should have been on the
highway; cars have inadequate all-season tires and the trucks are without chains or other
traction device. So, the DOT necessarily steps in to fill the void because the financial
motivation to preserve a paycheck compromises common sensibility and prudent decision-
making.
A perpetual revolving door of trainees and inexperienced drivers inevitably compromises
safe vehicle operation. Is that what we want – inexperienced truck drivers at the helm of
an 80,000 pound rig – as a norm? Here in Colorado, we had an inexperienced driver
descend I-70 in April 2019 who claimed he lost his brakes. He did because his experience
did not afford the knowledge to know how to utilize his engine brake that would have
preserved the service brakes. His inexperience, combined with an inability to read or
speak English, prevented his utilization of truck runaway ramps that could have saved the
lives of four innocent victims, prevented the injury another six, while damaging twenty-
four cars and four trucks. Our road safety demands that we shift the pay paradigm to
FMCSA Docket No. 2022-0004
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ensure that experienced drivers are fairly compensated and thus retained. Motor carriers
should praise this curb to nuclear verdicts as well.
Both global responsibility for environmental sustainability and our national security
require a smarter business model. As an owner-operator, I always drove “as slow as
possible, and only as fast as necessary” to maximize profits. The same holds true for
minimizing emissions and reducing fuel consumption. If a pay-clock dictates a driver’s
compensation, then the incentive to whiz through construction zones, tailgating, driving
aggressively in traffic, etc. all disappear. And that instills better driving behavior that will
reap benefits far beyond what the miniscule gains reaped by implementing speed limiters.
It’s not entirely drivers’ fault. The untenable position of preserving a paycheck vs earning
nothing while safely parked compromises a driver’s motivation; safety demands that
FMCSA address this compromising situation. The MCE exemption to the FLSA, the
disconnect between pay-by-mile vs regulated-by-hour, the lack of a tiered-CDL based on
experience, zealous but inexperienced desk-based dispatchers overruling the captain of the
ship urging continued progress, and the notion that “if the wheels ain’t turning, you ain’t
earning” are all culpable. Unless the FMCSA, Department of Labor, and Congress step in to
remedy these vulnerabilities, these events will continue several times every year with
potentially tragic outcomes.
e. National and Economic Security Effects
When President Carter signed the Motor Carrier Act of 198019 that deregulated
transportation, we further opened the floodgates to driver abuse, which has since resulted
in a 40% decline in real, inflation-adjusted driver earnings, even while drivers are twice as
productive as they were 42 years ago since its passage. Let that sink in. Economically,
wage deflation is not conducive to recruitment or retention, requiring a perpetual
revolving door at the major carriers, which presents a national highway public safety issue.
Undervalued inland transportation costs allow offshore manufacturers to leverage their
lower manufacturing labor costs to be competitive with our higher domestic manufacturing
labor costs with lower regional (shorter distance) transportation cost:
+ < +
This under-valuation of inland transportation cost allows a foreign-made products’ all-in
delivered cost to be less expensive than a domestically produced product, which
undermines our domestic manufacturing competitiveness with economically devastating
consequences to our local cities and towns, which only compounds our supply chain woes.
On the surface, this sounds great for the end-consumer – right up until that domestic end-
consumer loses his/her job to offshore manufacturing. Now, without a job, that end-
consumer cannot even afford the foreign-made good. Just ask a Midwest auto plant
assembly worker or parts supplier how his exported job is putting food on the table and
19 Pub.L. No. 96-296, 94 Stat. 792, approved 1980-07-01.
FMCSA Docket No. 2022-0004
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the necessary material goods that his family needs for the home. Not so great anymore, is
it?
From a national and economic security standpoint, centralized parts distribution makes us
more vulnerable to supply chain disruptions, especially when the centralized location is
overseas. Part of the current supply chain snafu is a result of offshore manufactured goods
that, when there is a COVID-19 or its variants outbreak, centralized manufacturing or large
shipping ports shut down. Take computer chips, as an example, where we have a backlog
as far as the calendar can see. In addition to an increased vulnerability to our own
manufacturing, foreign manufacturing is at even greater production risk. Moreover, this
presents a significant national security risk that undermines our nation’s ability to respond
to global military and cyber threats. The solution is one of the sorts where Samsung
Electronics is considering Austin, Texas, as one of the sites for a new $17 billion chip plant
that the South Korean firm said could create 1,800 jobs, according to documents filed with
Texas state officials – domestic manufacturing to the rescue!
Lastly, we are not proposing any new regulations nor suggesting unionization or looking to
the government for help. We already have plenty of laws and stringent regulations. What
is proposed is a much-needed fix – an adjustment – to those existing laws and regulations
to make drivers’ pay model more equitable to other labor markets, to address unintended
consequences undermining our national and economic security, and to promote the
revitalization of our local cities and towns by supporting domestic manufacturing, thus
raising the economic standard of living across the board, offsetting any inflationary
pressures imposed by higher transportation costs.
V. Conclusions
The Respondent counters the FMCSA’s NOI in that, in the first instance, we do not believe
that a speed limiter rule is either necessary or desirable. To the contrary, we believe that
the implementation of a speed limiter final rule will have deleterious effects that would
cause more accidents and damage to the economy. If, finally, that FMCSA nevertheless does
proceed with a final speed limiter rulemaking, we suggest that we utilize a modern, 21st
Century, technological approach as Respondent suggested herein as opposed to a 1950’s
approach espoused by the questions posed in the NOI.
With the passage of time, the conditions precedent to the MCE’s enactment have all
disappeared with technological advances making the MCE’s continued existence not only
unnecessary, but also compounds the supply chain bottleneck and creates a national
security vulnerability. It is long past the time to update the FLSA to reflect the modern day
reality of the technological gains since its passage by repealing the Motor Carrier
Exemption to the FLSA.
As described herein, the unjust continuation of the disparate Motor Carrier Exemption is
precisely the cause of trucks’ speeding in the first place. If Congress, at the FMCSA’s
recommendation based on highway safety combined with the Department of Labor’s
recommendation rooted on pay equality and honoring the FLSA’s goal of creating “a floor
FMCSA Docket No. 2022-0004
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under wages” and “a ceiling over hours,” unfavorable labor conditions could be curbed or
eliminated. If Congress passed the FLSA with the aim of improving workers’ purchasing
power, then this exemption has now become the very source of the ills that the FLSA
intended to cure.
Finally, the long-standing current pay-by-mile pay plan while regulated-by-hour paradigm
is outmoded by technology, outdated by labor markets, out of touch with recruitment and
retention statistics, that results in outsourcing our manufacturing industries that
undermines the nation’s public safety, national and economic security, all of which we
would be out of our minds to continue.
Is this the right approach for an industry upon which we so heavily rely for 72% of a
multitude of goods and services that allows us to prosper as individuals and as a nation? I
think not. The NOI proposed speed limiter rule is immature in its conceptual development,
devoid of utilization of current technologies, and on its own, ignores basic microeconomic
supply-demand fundamentals that could better address the industry’s underlying
structural defects that give rise to speeding in the first place.
To be fair, the vital trucking industry has many significant challenges:
• PRO Act and what constitutes an employee vs. an independent contractor;
• Pay-by-mile vs. pay-by-hour paradigm;
• Motor Carrier Exemption to the Fair Labor Standards Act;
• Carrier retention, recruitment, and turnover;
• Carrier lease-purchase contracts;
• Accidents involving commercial motor vehicles;
• Driver distractions (not limited to just trucks);
• Driver training and qualifications, testing, English proficiency;
• Speed Limiters and its implementation;
• Stricter emissions compliance;
• Autonomous vehicles, generally, and trucks, specifically; and,
• Parking availability,
just to name a few. Some of these issues are interrelated and cannot be view isolated in a
vacuum divorced from each other. In this regard, Respondent urges FMCSA and DOT to
establish a more comprehensive commission in which its members are knowledgeable
about the trucking industry that can address issues more broadly to develop a cohesive
approach to rulemaking. The Speed Limiter debate is but one piece of a much larger
puzzle; this Speed Limiter NOI cannot do adequate justice to its charge without a broader
examination.
FMCSA Docket No. 2022-0004
Page 21 of 22
VI. Action Plan
A. FMCSA
1. Urge Department of Labor repair the pothole created by the FLSA that has
remained unrepaired for decades by advocating before Congress for pay equity
for motor carriers’ drivers and safety personnel by eliminating the exemption to
the FLSA.
2. If FMCSA implements speed limiters, we propose a better approach by adopting
modern technological solutions such as proposed herein.
3. Clarify for a certain maximum average dispatch speed.
4. Urge the Department of Labor to require all motor carriers to pay drivers for all
hours that are “off-duty” in excess if the required rest period20 “on-duty”21 and
“on-duty, not driving” and “driving,”22 while limiting unpaid hours up to and not
more than ten (10) hours per day for sleeping and personal off-duty time.23
5. Evaluate the safety impacts of the current “Pay-by-Mile” while “Regulated-by-
Hour” pay scheme and a proposed (a) “Pay-by-Hour” and (b) the Hybrid “Pay-by-
Mile and Pay-by-Activity” pay models, provided that such aggregate
compensation meets the prevailing minimum hourly wage and overtime rates.
B. Department of Labor
1. Reclassify drivers as “semi-skilled” labor. At a minimum, drivers with at least a
modicum of experience, DOL should reclassify these drivers.
2. Urge Congress for pay equity for motor carriers’ drivers and safety personnel by
eliminating the exemption to the FLSA.
3. Evaluate the “Pay-by-Hour” and the Hybrid “Pay-by-Mile and Pay-by-Activity”
pay models, provided that such aggregate compensation meets the prevailing
minimum hourly wage and overtime rates.
4. Establish a “Highway Transportation Commission” to examine the complex
issues affecting the industry more broadly.
C. The Congress
1. Establish pay equality by eliminating motor carriers’ exemption to the FLSA.
2. Congressional oversight should require FMCSA reexamine the outdated, 30+
year old “Commercial Motor Vehicle Control Devices (DOT HS 807 725 (May
20 See 49 CFR § 395.1(g)(1).
21 See 49 CFR § 395.2.
22 See 49 CFR § 395.2.
23 See 49 CFR § 395.1(g)(1)
FMCSA Docket No. 2022-0004
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1991)) report to Congress and properly vet the concerns and conclusions in that
report.
Respectfully submitted,
Alec S. Costerus
Aerodyne Transportation, LLC
Alpha Divers Testing & Consulting
Email: Alec@AerodyneTrans.com and
Alec@AlphaDrivers-TC.com
VII. About the Respondent
A leading advocate for professional drivers, Alec Costerus is President & CEO of Aerodyne
Transportation, LLC, a Colorado-based independent owner-operator operating throughout the
United States and Canada. He is also President of Aerodyne Technology, LLC, a trucking
industry provider of technology solutions, including an industry-leading patented Trailer
Underbody Fairing. He has driven more than a million safe, accident-free miles throughout 49
US states and most Canadian provinces.
Additionally, he is co-founder and director of Alpha Drivers Testing & Consulting, a
transportation industry educational provider, technical advisory, and business consulting firm,
in which capacity he is an Administrator of the industry-leading Volvo Truck Masters and Mack
Anthem Truck Masters, and related Facebook groups, collectively with 82,000 industry
members. Together, the two Alpha Drivers principals have a driven more than 6 million miles with 50 years of experience in the
driver’s seat. Absent a paid-for agenda, neither the Respondent, Aerodyne Transportation, nor Alpha Drivers have any financial
interest in the outcome of FMCSA’s rulemaking process, is not a paid lobbyist, or paid member trade organization; the firm seeks
only to improve the working and pay conditions for fellow professional drivers.
Costerus also served as Chairman of the Trucking Solutions Group, a peer-to-peer group of owner-operators which mission is to
improve others’ businesses, serve as an industry focus group, and improve the image of the trucking industry.
He holds dual B.S. degrees in Chemical Engineering and Geology from Tufts University and completed an Executive Program in
Finance at University of Virginia’s Darden Business School.
He can be reached at Alec@AerodyneTrans.com?subject=FMCSA NOI Comments.
ASC: FMCSA Speed Limiter NPRM Comments July 13, 2022
