Final note on elimination of changes to HOS restart rule
Thanks to vigorous challenges by numerous industry participants to the flawed 2013 Hours of Service Restart Rules, the FMCSA finally and completely backed down in March of this year and the following notice appears on their website.
NOTICE: The Consolidated and Further Continuing Appropriations Act of 2015 was enacted on December 16, 2014, suspending enforcement of requirements for use of the 34-hour restart, pending a study. Based on the findings from the CMV Driver Restart Study, the 34-hour restart rule in operational effect on June 30, 2013, is restored to full force and effect. The requirement for two off-duty periods of 1:00 a.m. to 5:00 a.m. in section 395.3(c) of the Agency’s hours-of-service rules will not be enforced, nor will the once-per-week limit on use of the restart in 395.3(d).
The CMV Study included 235 drivers and 3,000 restarts. The drivers included a mix of small and larger carriers, short-haul and long-haul routes, as well as a variety of equipment types. In it’s conclusion on the report to Congress, FMCSA wrote; “The study was not able to demonstrate conclusively that the restart rule that went into operational effect on July 1, 2013, provided “a greater net benefit for the operational, safety, health and fatigue impacts” [section 133(e) of The Act] compared to the restart rule in operational effect on June 30, 2013. Because the study did not demonstrate that the revised restart rule satisfied even the initial outcome requirements in section 133 of The Act, FMCSA has elected not to re-open the study to assess the additional outcome requirements of the Further Continuing and Security Assistance Appropriations Act, 2017.”
This was a huge victory for the shipping public and the motor carrier industry. It is an excellent example of the success the industry can have in challenging misguided, costly, and ineffective regulatory actions. The other obvious example is the successful fight against the damaging CSA/SMS system. Now that the industry has proven its ability to stop damaging regulatory changes, perhaps we will also see success in pushing through positive initiative, such as greater highway funding and nationwide twin 33’ trailers.
On March 5, the Senate Commerce Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security held a hearing that was harshly critical of FMCSA’s lack of action and follow up on the Compliance, Safety, Accountability (CSA) system and Hours of Service (HOS).
Director Physical Infrastructure Issues General Accounting Office (GAO), Susan Fleming’s testimony was critical of CSA, “First, SMS uses violations of safety-related regulations to calculate a score, but GAO found that most of these regulations were violated too infrequently to determine whether they were accurate predictors of crash risk. Second, most carriers lacked sufficient data from inspections and violations to ensure that a carrier’s SMS score could be reliably compared with scores for other carriers. GAO concluded that these challenges raise questions about whether FMCSA is able to identify and target the carriers at highest risk for crashing in the future.”
Fleming indicated that FMCSA has done nothing to address these issues, “FMCSA did not concur with GAO’s recommendation to revise the SMS methodology … Therefore, FMCSA has not taken any actions.”
The committee chairman Deb Fischer (R-Neb) criticized the FMCSA regarding HOS. “For example, FMCSA issued the final 34-hour restart rule in 2013 with complete disregard for congressionally-mandated requirements for an efficacy study on the rule’s impact. When the study was eventually issued several months late, the sample size was not representative of this diverse industry. In addition, serious concerns were raised about the rule’s perverse impact on safety because, in effect, it pushed drivers onto the roads during workers, students, and families’ morning commutes.”
Senator Fischer was also highly critical of FMCSA’s disregard of the GAO review of CSA. “In 2014, the GAO investigated the methodology behind FMCSA’s Compliance, Safety, and Accountability Program. Inaccurate CSA scores, publically available online, have cost companies contracts and raised insurance rates – all of this has occurred without a clear correlation to increasing highway safety. When confronted with these findings, FMCSA completely disregarded GAO’s recommendations. To address flaws in CSA implementation, major stakeholders, including law enforcement, requested that FMCSA remove CSA scores from public view.”
It is terrific to see congressional scrutiny of a federal agency that continues to disregard science and hard facts while promoting regulations that harm carriers and shippers while doing nothing to improve highway safety, and in the case of HOS rules, actually make the roads less safe.
As the battle over hours-of-service (HOS) heats up over the next few weeks, you will see newspapers, magazine articles, congressional representatives, safety advocates and others disparage the efforts of some in Congress to suspend the 34-hour restart provisions for a year and force the FMCSA to rely on sound science in setting HOS rules. The headlines will often include a statement that suspension proponents want to “restore the 82-hour workweek” for truck drivers. That’s baloney.
Driver logs are incredibly complicated and over-the-road truck driving is a very hard job that does include a lot of hours and a lot of time away from home. It is not an 82-hour work week and I want to explain how that figure is derived.
Theoretically, if a driver works 14 hours (11 driving) and then takes 10 hours off, as both current and former HOS rules allow as the maximum on-duty shift, then in a span of 5 days the driver will have worked 70 hours out of 120 consecutive hours in the 5-day period. Both the current and former HOS rules limit a driver to no more than 70 on-duty hours in an 8 day period, so you may think the driver needs 3 days off, but that is not the case. The 34-hour restart means that once the driver has rested for 34 hours, the 70-hour clock is reset and the driver can resume work. The new rules modified the restart provisions to require that there must be two consecutive 1 AM to 5 AM time slots within the 34 hours and that the restart can only be used once in any 168 hour (7 day) rolling time period.
Prior to those changes, in a theoretical world, at the conclusion of the 5-day 70-hour cycle, the driver would begin working again after 34 hours of rest and could then repeat this same perfectly synchronized schedule in perpetuity. The way the math works out, over the course of a month, in 5 out of every 6 days the previous 7 days would include 84 on-duty hours and in 1 out of every 6 days the previous 7 days would include 70 on-duty hours and if you apply the weighted average you end up with an 82-hour week. There was nothing in the rules that said a driver could drive 82 hours per week, it was just theoretically possible to average that amount without violating the 70-hour rule. The one reset per 168 rolling hours provision means that a driver could never legally run more than 70 hours in a week.
The problem with this 82-hour theoretical workweek is that freight does not move on that reliable a schedule. If the first cycle began at 8:00 AM on Monday, the 70 hours are up at 8:00 AM on Saturday and the extra 24 hours of rest (to hit 34) are up at 8:00 AM on Sunday. After another 70 hours it is 8:00 AM on Friday and the extra 24 hours of rest are up at 8:00 AM on Saturday. There is simply no way that freight would be available on this exact a schedule to keep a driver running in this pattern. Even Administrator Ferro admits that the vast majority of trucking companies did not hit the 70-hour limit under the old or new rules, citing an ATRI study that only one-third of one percent of 40,000 logbooks studied were affected by the rule.
So exactly what problem is the FMCSA attempting to solve with the new restart rules. By putting a straightjacket on drivers, dictating that they must have two consecutive days with a 1 AM to 5 AM break and limiting drivers to only be able to begin the reset period once every seven days, the FMCSA is telling a driver when he must rest, rather than allowing him to rest when he is tired or to reset when he needs to reset, or when there is no freight available to haul. The reset rules are not based on sound science and the claim that opponents of the new rule want to go back to 82-hour work weeks is pure demagoguery.
Driving a truck is a demanding profession, but it is not an 82-hour per week job and nobody is arguing that it should be. The argument is simply that professional drivers need to be able to manage their rest periods within reasonable rules. The reset rules are not based on hard data and analysis and they are pushing drivers onto the road in morning rush hour traffic. That is not a recipe for better highway safety. Better enforcement of the HOS rules through electronic logging devices, cracking down on speeding violations, and limiting truck speeds as suggested by the ATA will do far more to reduce highway accidents.
The Federal Motor Carrier Safety Administration (FMCSA) said that a new study, by the Sleep and Performance Research Center, Washington State University and Pulsar Informatics Inc., indicates its current restart rules in the hours-of-service (HOS) regulations are more effective at combating fatigue than prior rules. This conclusion was immediately rebuked by the American Trucking Associations (ATA) and Owner Operator Independent Drivers Association (OOIDA), as well as by several members of Congress.
The study involved 106 commercial drivers working for three carriers that provided 1,260 days of data from electronic log devices and wrist activity monitors. Drivers’ fatigue levels were measured three times per day by means of a Psychomotor Vigilance Test (PVT) and by means of subjective sleepiness scores. A truck-mounted lane tracking system measured lane deviation (variability in lateral lane position).
The drivers totaled 414,937 miles from January to July 2013. That would indicate that each driver averaged 329 miles per day, so it is clearly not a study of over-the-road drivers who are most impacted by the restart rule. In fact, only 36 of the drivers were over-the-road drivers, 44 were local drivers, and 26 were regional. By type of operation, only 3 were running in over-the-road van operations, 48 were intermodal, 32 were dedicated, 13 were flatbed, 7 were temperature controlled, and 3 were owner operators.
FMCSA said the study concluded that “drivers who began their work week with just one nighttime period of rest, as compared to the two nights in the updated 34-hour restart break: exhibited more lapses of attention, especially at night;
reported greater sleepiness, especially toward the end of their duty periods; and
showed increased lane deviation in the morning, afternoon and at night.”
The ATA immediately questioned the validity of the study. According to Transport Topics, “ATA said the study failed to evaluate the safety effects of the once-per-week restart restriction, commonly called the 168-hour rule, nor did it address the real-world safety implications of putting more trucks on the road during daytime hours, when more passenger vehicles are also on the road.” Dave Osiecki, ATA executive vice president and chief of national advocacy, said “While the study includes some findings favorable to certain portions of the new restart rule, the incomplete nature of the analysis and the lack of justification for the once-weekly use restriction is consistent with the flawed analyses that led the agency to make these changes in the first place.”
Rep. Richard Hanna, R-N.Y. was also critical, stating: “Considering the study arrived four months late, I expected a robust report, but the study is worthless.” He continued, “First, FMCSA is telling millions of truckers when they are tired, but the study only examined 100 truckers from three companies. In addition, the study’s narrow scope does not address perhaps the most serious issue that could change the entire outcome of the study – forcing truckers to work in the morning rush hour when roads are most congested and dangerous. This half-baked study only underscores the need to legislatively delay the rule and have GAO conduct an independent analysis of the study so we can get a credible account of what this rule will truly mean for the safety of truckers, commuters and businesses.”
OOIDA Executive Vice President Todd Spencer said, “Unfortunately this was a study that was sort of thrown together, but realistically we don’t think it’s representative of the industry that was supposed to be the beneficiary (or the victim depending on your point of view) of the new regulations. This was a really, really small sample size, only 106 drivers. And the majority of those drivers didn’t even run over the road. Obviously that is where the 34-hour restart provision was supposed to have an impact. I’m skeptical that you can extrapolate any conclusion from this to the broader population of truck drivers.”
Common sense would lead one to conclude that putting more trucks on the road in morning rush hour would lead to more crashes, not fewer. In addition, the decline in driver productivity means more new drivers need to be recruited and hired, and they are not likely to be as safe as the experienced professional truck drivers on the road today. It also seems obvious that a professional truck driver is better equipped than Washington bureaucrats to decide what time of day he or she needs to sleep.
CCJ Digital published a very informative piece describing the rulemaking process that must be followed by the FMCSA and provides a number of good examples. Since I often write about rulemaking regarding CSA, Hours of Service, and On-board Recorders, I thought this would be of interest to many readers. The article is very short, so I won’t repeat any of their material here.
Now that we are a few months beyond implementation of the new Hours of Service (HOS) rules, I want to provide a look at the impact and also some recent legislative developments. The original estimates of a 2-3% reduction in fleet productivity have been confirmed with some notably higher exceptions. Derek Leathers, president of Werner Enterprises stated that productivity was down 2-3% overall but 6% for team drivers. Steve Gordon, CEO of Gordon Trucking, speaking at the same conference, did not specify a percentage decline in productivity but did say the new rules are costing drivers money and increasing turnover. A 3% productivity decline would necessitate hiring 100k new drivers, based on an estimated 3.5 million drivers with commercial licenses.
According to the American Transportation Research Institute (ATRI) HOS is the number one concern of fleet operators, replacing CSA/SMS which led the list of concerns last year. HOS had been the second highest area of concern each of the last two years.
The FMCSA has been carving out exemptions to the new rules for certain types of fleets. Short haul and munitions drivers are exempted from the new 30-minute rest break rule. The Agency is also considering exempting haulers of live animals and concrete from the rest break rules. None of this will help the regional and long-haul trucking industry.
The one positive development is that bi-partisan legislation has been proposed in the House that would role back HOS rules until a GAO study is completed auditing the Agency’s methodology in coming up with the new rules . This is a long shot, but it is at least encouraging to see that a similar effort was successful regarding sleep apnea. The FMCSA had intended to issue “Guidance” on sleep apnea, but bipartisan legislation passed the House and Senate unanimously and was signed into law by President Obama on October 15 mandating that the FMCSA conduct full rulemaking with a public comment period rather utilizing the less formal guidance to put rules in place that could have cost the industry an $1 billion.
Unfortunately, the U.S. Court of Appeals for the District of Columbia Circuit has upheld most of the Federal Motor Carrier Safety Administration’s (FMCSA) hours of service (HOS) rule change, only striking down the 30-minute break provision as it applies to short-haul carriers. This means the new 34-hour restart provisions and the 30-minute break provisions will remain in effect. There is still some hope that a challenge to the new rules could come from Congress. Rep. Richard Hanna, R-N.Y, introduced an amendment that would block the HOS rules from taking effect by preventing the use of approved funding levels to implement or enforce the new rules. His push stalled when the House pulled the Transportation, Housing and Urban Development Bill, because of a lack of votes. Even if it is eventually approved by the House, it could be shot down by a House-Senate conference committee. On the other hand, a similar effort shut down the Clinton administration’s efforts to rewrite HOS.
In a remarkably cynical comment Judge Janice Rogers Brown wrote. “With one small exception, our decision today brings to an end much of the permanent warfare surrounding the HOS rules. Though FMCSA won the day not on the strengths of its rulemaking prowess, but through an artless war of attrition, the controversies of this round are ended.” Dave Osiecki, senior vice president of policy and regulatory affairs at the American Trucking Associations (ATA) opined “The court recognized on numerous occasions the shortcomings of the agency’s deliberations, so despite upholding most of the rule, we hope this opinion will serve as a warning to FMCSA not to rely on similarly unsubstantiated rulemakings in the future,”
The victors were not exactly magnanimous. Henry Jasny, vice president and general counsel of Advocates for Highway and Auto Safety said “Even though record numbers of truck drivers admit to falling asleep behind the wheel, and being tired when driving long shifts, the FMCSA chose to keep in place the industry-supported features of the rule that allow truckers to drive up to 11 straight hours at a time, instead of 10 hours, and work and drive up to 80 hours or more each week,”.
While Judge Brown declared an end to this round, most experts believe both sides will regroup and get ready for the next round in this long fought battle. The FMCSA and self-proclaimed public safety groups will inevitably try to further reduce the driving day, which will take money out of the pockets of hard working drivers, make our nation’s supply chain less efficient and competitive, and force the trucking industry to coax many more new and unproven drivers behind the wheel rather than allowing the safe and productive use of existing professional truck drivers.
Although our side lost this round, we need to be ready to get back in the ring and fight for common-sense and scientifically defendable regulations.
Highway safety is a high priority for all stakeholders in the supply chain, but so are capacity availability and cost-effective transportation. Shippers, carriers, brokers, and all others who depend on a fully functioning truck transportation network must continue to voice united opposition to changes of the Hours-of-Service rules. The impending capacity constraints are too high a price to pay for feel-good regulations that are unlikely to produce measurable safety improvements. The changes to the 34-hour Restart and the 30-minute Rest Break will result in a 3% to 5% reduction in effective truck capacity. Carriers will be forced to increase rates by a minimum of 3% – 4% to prevent margin erosion that inhibits their ability to invest in equipment providing much-needed capacity expansion.
The FMCSA has estimated that the HOS rules changes will actually render a net benefit of $133 million annually for the trucking industry. The ATA commissioned an independent study to quantify what most in the industry already understood: capacity reductions equal higher costs. According to their calculations based on a “conservative” estimate of 15 minutes of productivity lost per driver per week, the rules changes will actually cost the industry $189 million a year collectively — a $322 million discrepancy with the FMCSA estimate. With slim margins and high fixed costs, the trucking industry will only overcome this burden through rate increases that will ultimately be passed on to the American consumer.
The unavoidable capacity reduction demands that shippers of all types and sizes reassess their transportation strategy by embracing Best Practices that streamline their supply chain, thereby increasing efficiency and decreasing costs. Railroad infrastructure investments have made intermodal an increasingly attractive option. Co-loading and private and dedicated fleet capacity represent attractive possibilities for efficiency gains.
Many pro-business politicians are willing and able to support alternate solutions that not only improve highway safety through proven methods, but also preserve the productivity of the trucking industry. Professionals across the trucking industry must seek to influence future legislation by dialoguing with each other and their local elected officials. The ATA is a formidable force, but the weight of federal regulatory authority was too great for one industry group to overcome.
Barring an unexpected delay in the implementation of the new rules, shippers must embrace reality and make decisions that enable them to survive in the hostile regulatory environment. Despite the persistent uncertainty and potential harm to the nation’s economy, the new HOS rules will likely be in force on Monday.
Click here for more information.
Sources: Wall Street Journal, American Transportation Research Institute, Transplace analysis
The federal Motor Carrier Safety Administration (FMCSA) has dug in its heels and insists on implementing the new hours-of-service (HOS) rules on July 1, despite the nearing conclusions to the ongoing legal battle seeking to set aside the new rules. The new rules are expected to reduce effective trucking capacity by 3-5% as a result of lower driver and truck utilization. The primary cause of the decline in utilization is the 34-hour restart provision that requires two consecutive rest periods between 1 AM and 5 AM once per week. The productivity damage from this rule is estimated to require 100,000 more truck drivers, who in addition to being very hard to find are unlikely to be as safe as the veteran drivers on the highway today. An additional impact of this rule will be to flood the highways with trucks on Monday at 5 AM which will obviously lead to more accidents, not less. There is no scientific evidence to support the idea that this rule will reduce highway accidents. The new requirement for a mandatory 30-minute off-duty break, excluding all on-duty non-driving activity, before driving 8 hours is also being contested by the ATA.
The American Trucking Associations (ATA) filed suit in February 2012 seeking to overturn the new rules. In January of this year, with oral arguments expected to be heard in March, the ATA requested that the FMCSA delay implementation of the new rules pending the outcome of litigation. The ATA cited the industry’s $320 million cost of training, software updates and other conversion expenses which will be totally wasted if the court sides with the ATA and overturns the new rules. The Commercial Vehicle Safety Alliance requested the same delay as ATA, saying law enforcement agencies preferred to avoid “potentially duplicative and unnecessary training.” The FMCSA refused to delay implementation stating that it believes the rule is valid and not likely to be delayed if ATA asked a federal court to impose a stay, or court-ordered delay. It is unfortunate that the FMCSA chose a line of reasoning based on the legal ability of the ATA to get a stay rather than on the pragmatic view that we are so near a court decision that it makes no sense for carriers and law enforcement personnel to spend money on a HOS change that may not happen.
In oral arguments on March 15, the ATA accused the FMCSA of overestimating the societal benefits of the regulatory changes by misinterpreting scientific studies to justify HOS restrictions. The existing rules have proven very effective in improving highway safety and there is no evidence that the new rules will lead to fewer accidents. The FMCSA argued that it is not the court’s duty to weigh in on simple scientific disputes and that the Agency acted reasonably in establishing the new rules. Shipper groups NITL and NASSTRAC are supporting the ATA’s position as is the Owner Operator group (OOIDA).
Arguing for even greater restrictions on truck drivers, Public Citizen attorney Scott Nelson argued the FMCSA abandoned its legal responsibilities when it kept the daily driving limit at 11 hours. “The agency acted irrationally by failing to follow its statutory duty by increasing per shift driving time” from 10 to 11 hours, in 2003.
The FMCSA is claiming to be the reasonable voice in the middle of two extremes. While science is not on their side, the court may see leaving the rules as revised a reasonable middle ground. That would be very unfortunate for both highway safety and logistics costs and service levels.
A growing coalition of shippers is joining the ATA and others in the legal battle surrounding the hours-of-service rules decision from December of 2011 that takes effect in July 2013. The litigants on our side argue that there is no science to support the new 34 hour restart provision that requires two consecutive rest periods between 1 AM and 5 AM once per week. The impact of this rule will be to flood the highways with trucks on Monday at 5 AM which will obviously lead to more accidents, not less. The productivity damage from this rule is estimated to require 100,000 more truck drivers, who in addition to being very hard to find are unlikely to be as safe as the veteran drivers on the highway today. There is no scientific evidence to support the idea that this rule will reduce highway accidents.
The Journal of Commerce has an excellent article for subscribers that covers shipper group participation in the current legal action. “The National Industrial Transportation League, Health & Personal Care Logistics Conference and NASSTRAC are parties to the ATA complaint. The National Retail Federation and its National Council of Chain Restaurants division joined the trucking coalition, filing a legal brief supporting the ATA and the Owner-Operator Independent Drivers Association.” IANA, the intermodal association, is also supporting the cause.
Public Citizen and the opposing group not only like the 34 hour restart rule but want to decrease driving hours from 11 to 10. “On Public Citizen’s side are Advocates for Highway and Auto Safety and the Truck Safety Coalition, which includes long-time trucking nemesis Citizens for Reliable and Safe Highways, or CRASH, and Parents Against Tired Truckers.”
The facts are on our side. Since the last HOS rules change in 2003, fatal accidents involving trucks have declined – dropping from 5,235 in 2004 to 3,661 in 2011 according to preliminary data. That is a 30% decline and truck vehicle miles driven are up roughly 29% over that time period, so fatalities per million miles are down dramatically.
It is fantastic to see shipper groups stand up and fight against over-burdensome and misguided regulations. We need to see the same kind of energy focused on CSA/SMS, which is every bit as damaging to our nation’s supply chain effectiveness and efficiency.
Hours of Service
> Regulatory Legislative Issues > Hours of Service