It's down to the final week to provide input on potential revisions to the federal Hours of Service (HOS) rules for commercial truck drivers. But instead of additional comments—or a certain type of comment, at least—there's something else that could help more in this last stretch if any changes are to move forward.
In response to the Federal Motor Carrier Safety Administration's (FMCSA) Aug. 24 proposal on whether it should consider and pursue changes to the HOS rules, approaching 4,000 comments have now been filed online. But when it comes to acting to make revisions, many of those may not amount to much.
"Most of them say, 'Yes, we think this is a good idea,' or 'no, we don't think it's a good idea,'" pointed out Bill Quade, associate administrator for enforcement at FMCSA, speaking of comments made to date during a Fleet Owner webinar yesterday on HOS revisions.
"While those comments are certainly listened to and helpful, it is more helpful if you are able to provide some detail," Quade added. That might be information such as calculated cost savings or safety benefits to a fleet if changes were made, he noted.
"Those types of things or even real, live situations tell us a story of how the rules are impacting [the industry]," he said. "Very specific situations are frequently more useful than a general comment that you either like or dislike what the agency is considering doing."
Dave Osiecki, president of Scopelitis Transportation Consulting and a policy consultant to fleet management systems provider Trimble, echoed that same point recently at the Trimble in.sight User Conference. It boils down to a single word: while changes to HOS rules easily fuel a debate and have spurred many drivers and fleets to comment, Osiecki noted FMCSA has repeatedly been asking for data.
Why?
FMCSA needs data on the benefits of potential HOS changes and burdens of the HOS rules as they stand to inform the revisions process, move forward quickly, and give that process the best chance of success. Note that there is no guarantee yet that FMCSA will move to revise HOS rules.
"I will tell you, as someone who has worked in state government and federal government before, the regulatory process is a long, burdensome process," said FMCSA Administrator Ray Martinez at one of the agency's recent listening sessions on potential HOS changes. "It takes input to do it properly and to make sure it's not subject to litigation."
The whole purpose of the HOS rules is to make commercial motor vehicle operation safe. FMCSA could get sued, for example, if someone disagrees with the HOS changes the agency pursues and doesn't think the changes will make things safer. That could slow or stop any attempt to revise HOS rules.
And making changes generally to regulations, "if they're substantial," can take somewhere in the neighborhood of three or four years, Martinez noted. Under the direction of Transportation Sec. Elaine Chao, he said if FMCSA chooses to move forward with revisions, the agency is looking to get something done as quickly as a year or so—blazingly fast by comparison.
For reference as to whether they fall into that "substantial" category, the HOS rules date back almost 80 years to 1939, and "it's very much true that they didn't undergo any major changes for more than 60 years," Osiecki noted at the Trimble conference.
FMCSA's fast-tracking of this process, Martinez explained, began with setting a short 30-day period for comments that was to end Sept. 24 and then was extended only a little longer through Oct. 10.
"This industry is uniquely situated to provide valuable insights and data that can inform this process on how potential changes to Hours of Service can improve safety," Martinez said. "When you comment, we need constructive criticism, we need constructive input—and we need it, to the extent it's possible, on how it would make you safer and how it would make the roadways safer."
"That's key," he emphasized.
How?
Once the initial commotion with electronic logging devices (ELDs) simmered down a bit this year, it became clear that some elements of the HOS rules that those devices enforce are causing problems in today's world of trucking and commerce and America's roadways connecting all of it, as they've evolved.
"We all know that commerce has changed; technology continues to change," Martinez said. "The safety environment on our roadways across the country continues to change. Distractions on the road from passenger vehicles and anyone that shares the road, frankly, have made the road more and more dangerous."
And the nation's road and bridge infrastructure has been outgrown by the demands placed on it, with traffic, accidents, and backups that can easily hamstring trucking operations and cost fleets money and productivity. Amid all the changes particularly in this decade, the HOS rules haven't seen any updates in more than 15 years.
Beyond commenting on their experiences with problems HOS rules are causing, how can drivers and trucking companies share data that will help move these revisions forward?
How about a dashcam? Scopelitis' Osiecki suggested getting video while caught in a traffic pile-up or delayed at a shipper or receiver with that HOS available time clock ticking down. Fleets could pull and share ELD data showing, for example, drivers being forced to drive during heaviest traffic times due to elements of the HOS rules like the 14-hour overall on-duty time limit for drivers and 11 hours of total daily drive time.
During the Oct. 2 Fleet Owner HOS webinar, FMCSA's Quade said that confidential business information fleets decide to share can be kept confidential. File attachments and comments can be submitted to the official docket, and a final listening session will be held in Washington, DC and streamed online live Weds., Oct. 10 from 1:00-3:00 p.m. EDT.
ELD companies themselves can provide data to support HOS changes, too—one of those, EROAD, just did. "We receive ongoing feedback about HOS rules and their impacts on the road and on the bottom line from our customers," noted Norm Ellis, president of EROAD North America.
In part of its efforts to help inform the process and respond to the potential changes FMCSA has put on the table, EROAD gathered anonymized data points from U.S. vehicles' and drivers' ELDs from January through the end of July looking for patterns of HOS violations.
The company surveyed customers to get the context of the violations, hosted dedicated roundtables, and encouraged carriers to comment on the potential HOS changes. EROAD then submitted a report of its findings to FMCSA on Oct. 1.
A few highlights:
—The most common violations EROAD found were of the 30-minute rest break requirement, the 14-hour overall on-duty limit, and the 11-hour driving limit.
—The number of violations per driver has been increasing for the 11-hour drive time limit and 14-hour on-duty limit.
—The proportion of violations by type "has remained fairly consistent" since the ELD mandate was introduced.
What?
Since he became administrator of FMCSA in February and throughout the agency's in-person sessions on HOS revisions, Ray Martinez has been signaling that FMCSA is listening and acknowledges the trucking industry's complaints since the ELD mandate came about, bringing HOS issues into focus.
The noticeably heightened engagement FMCSA has shown with the industry addresses a raft of feedback it was getting that the agency was out of touch with and not responding to truck drivers' real-world needs. There was another main point in feedback FMCSA got, and Fleet Owner can attest to this.
Regarding ELDs and Hours of Service, Martinez noted he kept hearing, "'We need more flexibility—flexibility, flexibility, flexibility.'"
So FMCSA has put up some specific suggestions for comment and supporting data. "We've tried to boil it down to four different questions that would equal flexibility from what we've heard," Martinez noted.
Those are:
1. Should FMCSA change/kill the current 30-minute rest break truck drivers have to take after eight hours of continuous driving?
2. There's now an HOS exception allowing up to two hours additional consecutive drive time that can be invoked if drivers unexpectedly encounter "adverse driving conditions" like weather or an emergency, but it doesn't extend the 14-hour overall on-duty limit or 60/70-hour limits in 7/8 days. Should it?
(Note that many truck drivers have also been calling for a more flexible definition of "adverse driving conditions" beyond the unexpected and extreme situations implied in FMCSA's current definition, possibly including things like unforeseen, severe traffic backups due to accidents that often hold up drivers. If you feel that way as well, tell FMCSA so.)
3. Should drivers be allowed to split up their required 10 hours of sleeper berth time more flexibly once they reach 14 hours after they've come on duty?
(Note that there is a limited "8/2-hour split" now allowed under the HOS rules where a driver can come on duty, then at some point before drive time/on-duty limits are reached take "at least 8 consecutive hours in the sleeper berth, plus a separate 2 consecutive hours either in the sleeper berth, off duty, or any combination of the two." The 8-hour sleeper berth time lets the driver then use the remaining drive/on-duty time.)
4. There is currently a short-haul exemption from the HOS rules where drivers don't have to keep logs as long as they stay within 100 air miles and return to a reporting location within 12 hours. Should that be extended to 14 hours, like the 14-hour overall on-duty limit that applies to nonexempt drivers?
FMCSA is also considering two proposals from the Owner-Operator Independent Drivers Assn. and TruckerNation.org:
—OOIDA calls for allowing drivers to take an off-duty rest break of up to three consecutive hours once per 14-hour duty period and eliminating the required 30-minute rest break after eight hours consecutive drive time.
—TruckerNation calls for allowing drivers to take up to three off-duty periods of three hours or longer to total 10 hours off-duty time instead of having to take 10 consecutive hours off-duty time. The 14-hour overall on-duty time limit would have to be changed as well. The group also suggests eliminating the 30-minute rest break requirement after eight hours consecutive drive time.
