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Regulatory and Legislative Update - June 2020

By Dan Boaz | Jun 3, 2020

Contents

Note: FMCSA has extended the emergency declaration related to COVID-19 through June 14. For the latest FMCSA guidance related to COVID-19, visit https://www.fmcsa.dot.gov/COVID-19.

Regulation and Enforcement

Legislation

Advocacy and Comment

 

Regulation and Enforcement

Changes in HOS rules to take effect September 29

The Federal Motor Carrier Safety Administration (FMCSA) issued a final rule, effective September 29, to provide more flexibility to truck drivers in several aspects of the hours-of-service (HOS) regulations. As with all prior HOS changes, the new rule is certain to draw a judicial challenge from safety advocates and, perhaps, the Teamsters union, which also has publicly opposed the rule.

The final rule adopts FMCSA’s proposed rule with one major exception and one minor one. The final rule changes HOS regulations in four areas: The short-haul exception to electronic logging devices (ELDs); adverse driving conditions; the 30-minute rest break; and use of sleeper berths for split rest. The rule:

  • Extends the maximum duty period allowed under the short-haul exception (which allows use of time sheets instead of ELDs) from 12 hours to 14 hours and extends the maximum radius in which the short-haul exception applies from 100 to 150 air-miles;
  • Modifies the adverse driving conditions exception by extending by two hours the maximum window during which driving is permitted and by revising the definition of prior knowledge. Current regulations allow two more hours of driving, but not another two hours for the window;
  • Requires a break after 8 hours of consecutive driving (instead of the current 8 hours on duty) and allows a driver to satisfy the requirement using on-duty, not driving status, not just off-duty status; and
  • Expands the sleeper berth option for split rest to allow a 7-hour/3-hour split as well as the current 8-hour/2-hour split and – perhaps more important – excludes the shorter period of the split from the calculation of the maximum 14-hour driving window.

The changes from the notice of proposed rulemaking (NPRM) include withdrawal of a proposed change in the mechanics of the 14-hour driving window and a tweak to language related to adverse driving conditions. The agency chose not to adopt a provision that it had proposed initially to allow a pause in the 14-hour driving window of up to three hours if drivers took an off-duty break. Although FMCSA said it did not necessarily agree with opponents on the merits, it conceded that the issue warranted more study. Several groups had argued that the provision could lead to greater detention time given that there would be fewer consequences on drivers’ productivity during a given shift.

The other change from the NPRM is closer to a clarification than a major change. Under the longstanding adverse driving conditions exception allowing more driving time under certain circumstances, a key qualification has been that the qualifying condition was not known to the dispatcher before the trip. FMCSA said that because of changes in availability and use of technology, drivers on the road often can evaluate situations that could not be foreseen before dispatch or the start of a duty day. As revised, the definition allows the exception under conditions that are unknown, or could not reasonably be known, to the driver immediately before the start of the duty day or before resuming driving after a sleeper berth break, or to the motor carrier immediately before dispatching the driver.

Petitions for reconsideration are due July 1. For the June 1 Federal Register notice on the final rule, visit https://www.federalregister.gov/d/2020-11469.

FMCSA temporarily allows remote compliance reviews

FMCSA on May 19 said that until the president revokes COVID-19 national emergency it will conduct compliance reviews and issue safety ratings even if they do not include an “on-site” component in order to limit exposure risk for the regulated community and safety standards. The agency said in a guidance document that since adopting the safety fitness rating methodology (SFRM) in 1997, the mechanisms and tools it uses to access information from motor carriers has evolved.

“Although the definition of “compliance review” in 49 CFR 385.3 describes these reviews as ‘on-site,’ in practice, the advent of electronic recordkeeping and other technology now allows FMCSA to perform the same investigative functions remotely that it could perform previously only by in-person reviews of the motor carrier’s files,” FMCSA said. “FMCSA has determined that because safety investigators are able to follow all of the procedures in 49 CFR part 385 without physically visiting the motor carrier’s business premise, compliance reviews that do not include an ‘on-site’ component will limit exposure risk to COVID-19, consistent with current regulations, without compromising FMCSA’s safety mission.

The Motor Carrier Regulatory Reform Coalition previously has recommended that FMCSA conduct remote audits of all regulated motor carriers every two years rather than the current practice of conducting a very small number of compliance reviews triggered by unreliable Safety Measurement System metrics.

For the guidance on compliance reviews and other information related to COVID-19, visit https://www.fmcsa.dot.gov/COVID-19.

OOIDA seeks changes in broker disclosure regulations

The Owner-Operator Independent Drivers Association has filed a petition for a rulemaking that would require brokers to routinely provide transaction records to carriers and would bar brokers from demanding that carriers waive their rights to the information. Current regulations at 49 CFR 371.3 require brokers to maintain records of each freight transaction and to make those records available to parties to the transaction. OOIDA contends that brokers make it difficult to obtain the information in practice or require carriers to waive their rights under 371.3 as a condition of taking loads. The rule sought by OOIDA would:

  • Require brokers to automatically provide an electronic copy of each transaction record within 48 hours after the contractual service has been completed; and
  • Explicitly prohibit brokers from including any provision in their contracts that requires a carrier to waive their rights to access the transaction records as required by 49 CFR §371.3. The OOIDA petition has not been docketed, but it is available at https://bit.ly/OOIDA-371

FMCSA rejects carrier’s bid for sleeper berth flexibility

FMCSA has denied an application from PTS Worldwide, Inc. (PTS) for an exemption that would have allowed its team drivers to obtain mandatory rest through a combination of sleeper berth and off-duty times in which the shorter period is at least 4 hours. PTS, which noted that its work for the Defense Department requires team drivers for security reasons, wanted to use sleeper berth/off-duty splits of 4 hours/6 hours, 5 hours/5 hours, and 6 hours/4 hours. Until the new rule change takes effect in September allowing splits of 7 hours and 3 hours, regulations allow only one option for use of the sleeper berth for split rest: At least 8 hours in the sleeper berth and at least 2 hours off-duty. FMCSA said that the application lacked evidence that would ensure an equivalent level of safety or greater would be achieved absent such exemption. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-10592.

Carrier seeks exemption for alternative securement on metal coils

FMCSA requests comments by June 15 on an exemption application from K & L Trucking, Inc. to allow the company to secure large metal coils to its trailers for transport using a securement system that differs from that required by the Federal Motor Carrier Safety Regulations (FMCSRs). K & L’s requested exemption would allow it to use a securement system consisting of (1) a specialized metal carrier permanently affixed to the flatbed trailer designed to secure the coil and prevent it from rolling, and (2) a single, two-ply, nylon-Kevlar tie down strap routed through the eye of the coil that secures the coil to the coil carrier. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-10322.

Entertainment industry group wins limited relief on clearinghouse queries

FMCSA granted an exemption to Motion Picture Compliance Solutions (MPCS) to allow its members to hire commercial driver’s license (CDL) based only on a limited drug and alcohol clearinghouse query, provided that limited queries do not indicate that information about the driver exists in the clearinghouse. MPCS serves as a consortium/third-party administrator (C/TPA) for employers involved in transportation related to theatrical, commercial, television, and motion picture production. FMCSA said that the terms and conditions of the exemption, “coupled with MPCS's unique safety protocols,” will achieve a level of safety equivalent to that achieved through compliance with the applicable regulation.

The “unique safety protocols” includes a DOT violation database that MPCS and its member motor carriers implemented 10 years ago, including detailed information related to positive drug tests and return-to-duty tests. “In the Agency’s judgment, MPCS's process for identifying qualified drivers for its member employers is uniquely designed to accommodate safety concerns related to drug and alcohol testing violations,” FMCSA said. For the Federal Register notice on the exemption approval, visit https://www.federalregister.gov/d/2020-11742.

Bus operations get exemption from CMV interchange marking rules

FMCSA has granted an exemption to commonly owned motorcoach operators Adirondack Transit Lines, Pine Hill-Kingston Bus Corp., and Passenger Bus Corp. from the commercial motor vehicle (CMV) marking rules under certain circumstances involving the exchange of equipment and/or drivers.FMCSA said it has determined that the terms and conditions of the exemption likely ensure a level of safety equivalent to, or greater than, the level of safety achieved without the exemption. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-11740.

Fireworks firm gets holiday exemption from 14-hour rule

FMCSA has granted Extreme Logistics, LLC an exemption applicable June 28 through July 8 each year from the requirement that all driving be completed within 14 hours of the beginning of the work shift. This exemption allows the applicant to exclude off-duty and sleeper-berth time, of any length, from the calculation of the 14-hour driving window. FMCSA said the terms and conditions of the exemption will likely ensure a level of safety equivalent to, or greater than, the level of safety achieved without the exemption. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-10590.

Grote seeks exemption to allow pulsating warning lamps

FMCSA The Federal Motor Carrier Safety Administration (FMCSA) requests public comment on an application for exemption from Grote Industries, LLC to allow motor carriers operating trailers and van body trucks to install brake-activated pulsating warning lamps on the rear of those vehicles in addition to the steady-burning brake lamps required by the FMCSRs. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-10116.

Laydon gets exemption for repositioning of lamps

FMCSA has granted Laydon Composites Ltd.’s requested exemption to allow motor carriers to operate certain CMVs that are equipped with Laydon’s OptiTail aerodynamic device with rear identification lamps and rear clearance lamps that are mounted lower than currently permitted by the agency's regulations. The agency has determined that locating the rear identification lamps and rear clearance lamps lower on the trailers and semitrailers at the same level as the stop lamps, tail lamps, and turn signals will maintain a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-10593.

Lytx gets exemption for windshield placement

FMCSA granted Lytx Inc. an exemption to allow its advanced driver-assistance systems to be mounted lower in the windshield on CMVs than is currently permitted. The agency has determined that lower placement of the ADAS would not have an adverse impact on safety. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-10971.

 

Legislation

House passes bill to loosen restrictions on PPP

With only one lawmaker voting no, the U.S. House of Representatives on May 28 passed legislation (H.R. 7010) to grant flexibility in the rules Congress initially had set for the Paycheck Protection Program (PPP), which authorized forgivable loans to businesses with 500 or fewer employees. As passed by the House, H.R. 7010:

  • Expands forgiveness period for expenses to 24 weeks. Because of lockdowns throughout the U.S., many small businesses were either not allowed to remain open or could open only with restrictions, making the original eight-week period for forgiveness unworkable for many companies. The bill would extend the period considered for forgiveness to 24 weeks.
  • Allows non-payroll expenses loan forgiveness for up to 40% of loan proceeds. The current PPP legislation requires that 75% of loan proceeds go to payroll in order for loans to be forgiven. However, for many businesses, expenses like mortgage, rent, and utilities exceed 25% of total expenses. The justification for the change is that retaining employees might not be possible if a business cannot retain its physical location
  • Extends PPP loan terms to five years. The current PPP requires repayment in two years, but lawmakers are concerned based on the economic contraction since mid-March that businesses would need more than two years to generate enough revenue to pay back their loans.
  • Ensures full access to payroll tax deferment for businesses that take PPP loans. Sponsors of the legislation argued that because the purpose of PPP and the payroll tax deferment was to provide businesses with capital to weather the crisis, receiving both should not be considered double-dipping.
  • Extends the rehiring deadline through 2020. Currently businesses can receive loan forgiveness under PPP only if they rehire employees by June 30. However, the enhanced unemployment benefits Congress provided meant that unemployment benefits are higher than the median wage in 44 states. Many businesses have reported difficulties rehiring employees that make more on unemployment, which has made complying with the June 30 deadline difficult.

Similar bipartisan legislation (S. 3833) has been introduced in the Senate. Although Congress likely will grant PPP flexibility ultimately, it is not yet clear whether that will come in the form of the Senate passing H.R. 7010, which would expedite the process, or through a negotiation over the terms of a PPP bill or a broader round of financial rescue and stimulus. For information on H.R. 7010, visit https://www.congress.gov/bill/116th-congress/house-bill/7010. For information on S. 3833, visit https://www.congress.gov/bill/116th-congress/senate-bill/3833.

Senate panel approves bill giving states flexibility in spending FMCSA grant funds

The Senate Commerce Committee on May 20 approved legislation (S. 3729) providing flexibility to states in spending FMCSA) grant funds in light of COVID-19 impacts. The Motor Carrier Safety Grant Relief Act would give states an extra year to spend funds awarded for fiscal years 2019 and 2020 through the Motor Carrier Safety Assistance Program, CDL program implementation, and high priority grants. The bill also would authorize FMCSA to keep and redistribute unallocated funds at the end of the grant period for FY 2019 and 2020. For more information, visit https://www.congress.gov/bill/116th-congress/senate-bill/3729.

 

Advocacy and Comment

Comments due soon on broker bond, clearinghouse proceedings

Comments are due soon in two FMCSA proceedings that were detailed in the May 2020 Regulatory Update. First, comments are due June 3 regarding a request by the Small Business Transportation Coalition for an exemption from the $75,000 bond requirement for all property brokers and freight forwarders. To read SBTC’s application and to comment, visit https://www.regulations.gov/docket?D=FMCSA-2020-0130. Second, comments are due June 29 on an NPRM that would require states to query the drug and alcohol clearinghouse before issuing, renewing, upgrading, or transferring a commercial driver’s license (CDL) or commercial learner’s permit (CLP). To read the NPRM and to comment, visit https://www.regulations.gov/docket?D=FMCSA-2017-0330.

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Regulatory and Legislative Update - May 2020

By Dan Boaz | May 7, 2020

Contents

For the latest FMCSA guidance related to COVID-19, visit https://www.fmcsa.dot.gov/COVID-19.

Regulation and Enforcement

Advocacy and Comment

 

Regulation and Enforcement

FMCSA relaunches Crash Preventability Program

The Federal Motor Carrier Safety Administration (FMCSA) has decided to resume ruling on the preventability of certain categories of commercial motor vehicle (CMV) crashes in a new program that expands on the categories of crashes to be reviewed beyond those in the pilot program; excludes crashes deemed not preventable from the Safety Measurement System (SMS); and streamlines the review process. Motor carriers that have an eligible crash that occurred on or after August 1, 2019 may submit a request for data review (RDR) with the required police accident report and other supporting documents, photos, or videos through the agency’s DataQs website (https://dataqs.fmcsa.dot.gov).

Although FMCSA rejected the Motor Carrier Regulatory Reform Coalition’s (MCRR) position that the proposed changes be made through notice and comment rulemaking, the agency acknowledged in a draft Federal Register notice the concerns expressed by MCRR and the National Association of Small Trucking Companies (NASTC) that preventability would be conflated with fault and that this confusion could lead to negative outcomes in insurance rates and private litigation.

FMCSA emphasized that determinations on crash preventability do not establish legal liability, fault, or negligence by any party. “Fault is generally determined in the course of civil or criminal proceedings and results in the assignment of legal liability for the consequences of a crash,” FMCSA said in the draft notice. “By contrast, a preventability determination is not a proceeding to assign legal liability for a crash. Under 49 U.S.C. § 504(f), FMCSA’s preventability determinations may not be admitted into evidence or used in a civil action for damages and are not reliable for that purpose.”

In response to MCRRC and NASTC concerns about the potential conflation of preventability and fault – and the Commercial Vehicle Safety Alliance’s concerns about the impact on state criminal proceedings – FMCSA has added a disclaimer to the SMS website that states:

A crash preventability determination does not assign fault or legal liability for the crash. These determinations are made on the basis of information available to FMCSA by persons with no personal knowledge of the crash and are not reliable evidence in a civil or criminal action. Under 49 U.S.C. § 504(f), these determinations are not admissible in a civil action for damages. The absence of a not preventable determination does not indicate that a crash was preventable.

The agency also will provide language in its notifications to submitters, as it did in the demonstration program, that determinations are not appropriate for use by private parties in civil litigation and that they do not establish legal liability, fault, or negligence. The language also confirms that crash preventability determinations will not affect safety ratings or result in any penalties or sanctions.

For more information on the CPP, including a link to the draft Federal Register notice, visit https://www.fmcsa.dot.gov/crash-preventability-determination-program.

NPRM would downgrade CDLs, CLPs for positive drug tests

FMCSA is requesting comments by June 29 on a notice of proposed rulemaking (NPRM) that would require states to query the drug and alcohol clearinghouse before issuing, renewing, upgrading, or transferring a commercial driver’s license (CDL) or commercial learner’s permit (CLP). The agency would prohibit states from taking such actions for individuals prohibited from driving a CMV due to drug and alcohol violations.

FMCSA also proposes to change how reports of actual knowledge violations, based on citations for driving under the influence (DUI) violations are maintained in the clearinghouse. Under the NPRM, a driver who is issued a citation for a DUI would still be flagged in the clearinghouse as such even if the driver is not ultimately convicted of the offense. Although the citation would remain in the record, drivers who are not convicted of a DUI could petition FMCSA to add documentary evidence to that effect to their clearinghouse record.

The December 2016 final rule on the drug and alcohol clearinghouse required state driver’s licensing agencies (SDLAs) to query the clearinghouse before issuing, renewing, transferring, or upgrading a CDL. The American Association of Motor Vehicle Administrators (AAMVA) petitioned for reconsideration of that requirement, saying that the authority for acting based on federal clearinghouse records should remain with FMCSA and the employer. In response to AAMVA petition, FMCSA in December extended the compliance date for the mandate that SDLAs query the database until January 6, 2023 so that it could consider a rulemaking on what role SDLAs would play in the process.

In the NPRM, FMCSA proposes that SDLAs be required to downgrade CDLs and CLPs once notified by the clearinghouse that a driver is prohibited from operating a CMV due to a positive drug test. Under the rule in place today, such drivers are prohibited from operating CMVs, but there is no mechanism for changing their CDL or CLP status.

The NPRM also proposes to change how an employer’s report of actual knowledge of a driver’s drug or alcohol use is maintained in the clearinghouse. The current rule allows drivers to petition FMCSA to remove such notifications from the clearinghouse if a DUI citation does not result in a conviction. The NPRM instead would retain an employer’s report regardless of whether the driver is ultimately convicted, although drivers can petition FMCSA to add the fact that they were not convicted to the record. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-08230.

Safety technology firm seeks HOS relief for drivers using its systems

FMCSA is requesting comments by May 20 on an application by Pronto.ai, Inc. on behalf of its interstate motor carrier customers for an exemption from the 11-hour driving limit and 14-hour driving window in the hours-of-service (HOS) regulations. Specifically, Pronto requests that drivers operating CMVs equipped with the Copilot by Pronto advanced driver assistance systems (ADAS), the SmartDrive Video Safety Program, and operating under certain other safeguards, be allowed to drive up to 13 hours during a period of 15 consecutive hours after coming on duty following 10 consecutive hours off duty. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-08343.

SBTC seeks reconsideration of broker bond exemption denial

FMCSA is requesting comments until June 3 on an SBTC petition for reconsideration of the March 2015 denial of an application by the Association of Independent Brokers and Agents (AIBA) for an exemption from the $75,000 bond requirement for all property brokers and freight forwarders. In a Sept. 10, 2019 letter, SBTC submitted its current request for a five-year exemption from the $75,000 broker/freight forwarder financial responsibility requirement for those brokers and freight forwarders with revenues under $15.01 million.

The initial April 10 Federal Register notice requested comments until May 11, but that notice included an incorrect docket number. A May 4 Federal Register notice corrects the docket number (FMCSA-2020-0130) and extended the comment period to June 3. For the original Federal Register notice, visit https://www.federalregister.gov/d/2020-07539. For the correction and extension of the comment period, visit https://www.federalregister.gov/d/2020-09467.

FMCSA again denies SBTC’s bid for ELD exemption reconsideration

FMCSA on April 13 rejected the Small Business Transportation Coalition’s (SBTC) request for reconsideration of its application for an exemption from electronic logging devices (ELDs) for all motor carriers with fewer than 50 employees. The agency, which denied the application in July 2019, said that after reviewing the petition for reconsideration and public comments received it “has determined that neither the applicant nor the commenters provided information that would change the Agency’s previous decision to deny the exemption.” For the Federal Register notice, visit https://www.federalregister.gov/d/2020-07730.

Pipeline services company seeks ELD exemption

FMCSA is requesting comments by May 28 on an application from pipeline services contractor Right-A-Way, LLC for an exemption from the requirement that its short-haul drivers use electronic logging devices (ELDs) when they are required to prepare records of duty status (RODS) more than eight days in a 30 consecutive day period. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-09013.

Werner seeks limited ELD data exemption for transition to new supplier

FMCSA is requesting comments by May 13 on Werner Enterprises’ application for an exemption from the requirement that certain data fields be included in electronic RODS files presented by ELDs. Specifically, Werner requests that, during the first eight days that each of its drivers transitions to an ELD from its new supplier, Platform Science, five specific data fields in the RODS files accessible through the in-cab ELD unit be left blank due to file compatibility issues between the suppliers' systems. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-07731.

Samsara seeks windshield placement exemption for dash camera

FMCSA is requesting comments by May 13 on the application by Samsara Networks Inc. for an exemption to allow its AI Dash Cam to be mounted lower in the windshield on CMVs than is currently permitted. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-07729.

McKee Foods Transportation sleeper berth exemption renewed

FMCSA has renewed McKee Foods Transportation, LLC's exemption allowing its team drivers to take the equivalent of 10 consecutive hours off duty by splitting sleeper-berth time into two periods totaling 10 hours, provided neither of the two periods is less than 3 hours. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-08207.

FMCSA requests comments on DOE, SCRA exemption renewals

FMCSA is inviting comments on requests for renewal of existing exemptions from the 30-minute rest break provision of the HOS regulation. Comments are due May 26 on an exemption held by the U.S. Department of Energy that treats DOE-contracted motor carriers and drivers transporting security-sensitive radioactive materials similarly to drivers of shipments of explosives. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-08579.

Comments are due June 1 on an exemption held by the Specialized Carriers & Rigging Association covering drivers for all specialized carriers transporting loads that exceed normal weight and dimensional limits that require permits issued by a government authority. For the Federal Register notice, visit https://www.federalregister.gov/d/2020-09171.

 

Advocacy and Comment

Crash Preventability Program and Paycheck Protection Program 2

Two recent administrative actions this past month may have a continuing effect on the trucking industry.

1) Preventability study approval. As discussed above, the FMCSA, while rejecting rulemaking, has issued important policy statements that make clear that the agency’s decision to call balls and strikes on crash predictability is not a finding of fault or legal liability. By drawing this clear distinction and citing the federal statute (49 U.S.C. 504(f)) hopefully the agency has put an end to plaintiff’s bar’s mischief that FOIA information gleaned from the agency concerning past crashes is admissible in court or to troll for nuclear verdicts. Defense bar take note. These findings should be useful in opposing the admissibility of crash preventability findings to exacerbate judgments against carriers.

2) Payment Protection Program Part 2. Across industries PPP has been roundly criticized as not reaching the neediest small businesses affected by the pandemic. Distributed by gatekeeper banks which, with unfettered restrictions, showed preference for their preferred customers, funds were quickly exhausted with large payments often to well-heeled recipients with no evidence of correlation to the pandemic quarantine or loss of business. Particularly shut out were small motor carriers, sole proprietors, and owner-operators, which were not preferred borrowers and which were frustrated by changing Treasury rules that prejudiced pass through to sole proprietors, commission sales agents, anyone paid on a Form 1099, and independent contractors and owner-operators in particular.

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Dealing With Natural Disasters: How Highway Closure Impacts Hot Shot Trucking California

By Dan Boaz | Jan 23, 2018

Natural disasters can disrupt any industry, but their impact is particularly serious for logistics companies. The recent mudslides in California are a powerful case in point. By blocking Highway 101, one of the Golden State’s most important roadways, this environmental crisis has diverted trucks from their usual routes. This has significantly increased the cost and difficulty of completing hot shot freight deliveries, hampering the economy of the entire state.

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