As American Trucking Associations geared up a multi-front campaign to stop the Federal Motor Carrier Safety Administration’s proposal to change the hours of service rules, the advocacy groups that sued to get the rule changed signaled that the proposed changes might be enough to get them to drop their suit.
Henry Jasney, general counsel of Advocates for Highway and Auto Safety, could not say that the groups would not go back to court, but he did say that the changes in the proposed rule correct some of the problems the court found in its previous rulings against FMCSA.
Jasney, speaking in mid-February at an hours-of-service listening session hosted by the agency in Arlington, Va., indicated that Advocates and other groups in the suit – Public Citizen, the Truck Safety Coalition and the Teamsters union – are willing to accept the driving time cutback from 11 to 10 hours, although they would prefer an 8-hour limit. The 34- hour restart proposal is reasonable as far as it goes, but it does not do enough to ensure rest for drivers working longer weeks, he said.
“These reforms, in combination with electronic onboard recorders will have an important and positive impact on safety,” Jasney said.
ATA says the proposed changes would hurt industry productivity and the economy, are too complex to enforce and would not improve safety. ATA also says that FMCSA put together the proposal for political rather than safety reasons. The major changes in the proposal include:
• reducing daily driving from 11 hours to 10, • requiring drivers to take two nights of rest during their 34-hour restart, • requiring completion of all on-duty work-related activities within 13 hours to allow for at least a one hour break, • extending a driver’s daily shift to 16 hours twice a week to accommodate for circumstances such as loading and unloading, and • allowing drivers to count some time spent parked in their trucks toward off-duty hours.
The revision process was triggered by an agreement between the Department of Transportation and the safety advocacy groups that have been suing the agency over the rule ever since it came out in 2003. The groups, led by Public Citizen, twice won court decisions that required the agency to rework the rule. Each time the agency came back with a defense of the rule. After they sued for the third time, DOT agreed to revise the rule if Public Citizen would hold its suit in abeyance. The agency has until July 26 of this year to come up with a new rule. The groups reserved the right to return to court if they do not like it.
ATA does not believe that the revision is simply DOT’s attempt to respond to its losses in court. “If you look at the court decisions, they don’t speak to the merits of the rule, they speak to procedural issues,” said Rob Abbott, vice president of safety policy at ATA.
He does not believe the changes the agency is proposing make the rule any more likely to hold up in court. “In fact we think the proposal would be less likely to do so because of the tenuous basis of the justification in the cost-benefit analysis,” he said.
This is how the agency describes the benefits of the rule in its Regulatory Impact Analysis:
“The benefits consist of safety benefits from the reduction in fatigue-related crashes and health benefits from drivers working long hours potentially getting more sleep and reducing their mortality risk.”
Abbott’s take: “In plain English, what they’re saying is that while we won’t necessarily see enough reduced crashes to justify the tremendous economic impact, drivers who get more rest, work shorter shifts and have longer breaks will get more sleep and over their lifetimes that means they’ll be healthier and live longer lives.”
The agency calculates this health-related benefit to be worth $690 million.
“Quite frankly,” Abbott said, “we think this is really a stretch. The agency had to be very, very creative in finding a way to get the costs and benefits to balance, and this is how they did that.”
During the FMCSA listening session on the hours of service proposal, ATA unveiled a study, done for ATA by Edgeworth Economics, that finds that the agency’s calculations of the benefits of the proposal are based on “misapplication of available data” and outdated information.
“We find that FMCSA has overstated the net benefits of the proposed rule by about $700 million annually,” the study concludes.
The agency “relies on a completely different, less sophisticated method in its regulatory impact analysis than it had in the past in order to calculate the costs and dubious benefits of the proposed changes,” Dave Osiecki, senior vice president for policy and regulatory affairs at ATA, told the panel of FMCSA staff, including Administrator Anne Ferro.
ATA’s message to shippers is that the proposal as it is written will reduce productivity and capacity, and force carriers to put more trucks and drivers on the road. Shortening daily driving time from 11 to 10 hours will in effect force carriers to move to a shorter length of haul, Abbott said.
This would lead to less competition in rural markets that carriers cannot reliably get to and return from in 10 hours, and it would affect distribution networks that carriers have set up under the 11-hour rule, Abbott said. “We may have to look at moving brick and mortar.”
Requiring drivers to get two rest periods between midnight and 6 a.m. in their restart breaks will lead to more congested pickup and delivery windows, he said. “Many drivers who formerly could pick up at night would be forced into daytime traffic and onto overcrowded docks.”
It is a misnomer to refer to the restart provision in the proposal as a 34-hour rule, Abbott said. The two-night requirement in effect creates a 53-hour restart for drivers in certain types of operations. “It’s only 34 hours in ideal circumstances, and for many drivers it will result in them being stuck in rest areas for much longer than 34 hours.”
Another ATA contention is that the proposal introduces a layer of complexity that will make the rule hard to comply with and to enforce.
Abbott said that if the rule goes through the way it is proposed, it is likely that ATA members will decide to file suit.
He does not think it likely that the final rule will exactly match what FMCSA has proposed. The agency prefers the 10-hour option, but the cost-benefit case for that change may not be strong enough to pass muster at the Office of Management and Budget, he said. And he speculated that the agency may seek another way to address the restart provision, given the substantial impact of the two-night requirement on daytime traffic.
New Hours of Service Rules