Lawmakers, Ferro spar over HOS rule changes

Nov. 22, 2013

In a hearing marked by a few heated exchanges, members of a House subcommittee on Nov. 21 charged that the Federal Motor Carrier Safety Administration’s latest changes to truck drivers’ hours-of-service regulations were based on flawed or outdated data and didn’t account for unintended consequences that might lead to more, not fewer, highway deaths.

FMCSA Administrator Anne Ferro defended the agency’s regulatory analysis and suggested that the most controversial item in the new rules – the revisions to the 34-hour restart provision that can be used only once a week and must include two consecutive nighttime periods – is far less significant in practice than has been characterized by critics in the trucking industry.

Thursday’s hearing in a subcommittee of the House Small Business Committee capped an active week on the HOS issue with reports critical of the changes released by the American Transportation Research Institute and a foundation affiliated with the Owner-Operator Independent Drivers Assn.

Although several other lawmakers weighed in, subcommittee Chairman Richard Hanna (R-NY) and Rep. Tom Rice (R-SC) were most vocal in their criticism of the HOS rule changes and most aggressive in their questioning of Ferro.

Hanna and Rice are principal co-sponsors along with Rep. Mike Michaud (D-ME), of legislation that would reinstate the 34-hour restart rules that were in place before July 1 pending a Government Accountability Office study of FMCSA’s methodology and a waiting period of at least six months after GAO submits its assessment to Congress.

Hanna opened the hearing by declaring the revised 34-hour restart requirements have damaged the integrity of the rulemaking process and hurt the economy with increased costs and reduced productivity – not just in trucking but in the industries that rely on it. He noted that the latest highway authorization law required FMCSA to conduct a field study on the then-proposed changes to the 34-hour restart and that the study is unfinished even though congressional intent was that FMCSA complete it before it adopted the new rules.

“Most disturbingly, there is a case to be made that the rule does not only cause economic harm, but may also make our nation’s roads less safe,” Hanna said. He suggested that by adopting a restart that bars operations for two evenings and ends at 5 a.m., “FMCSA is, in effect, pushing truckers onto the road at earlier times in the day, during the morning and evening commute and school rush hour, prompting safety concerns.”

Echoing Hanna’s concerns about the impact of encouraging more commercial driving when the roads were congested, Rice argued that there was no evidence that FMCSA took that dynamic into account, and he questioned the data used to support even the 19 lives FMCSA estimates the HOS rule changes will save each year.  

Rice repeatedly termed the rules as “untested” and contended that Ferro could not say with any confidence what the impact of the 34-hour restart would be because the sample used for the Washington State University study supporting it was too small. At one point in the hearing, Rice asked rhetorically, “If we put this rule in effect, will we know that this rule has any effect at all?”

Ferro bristled at the notion that its 34-hour restart changes were unsupported by research. “The 34-hour restart that was thrown out by the court had far less study than the one in place now,” Ferro told the subcommittee. The original restart “had one – and only one – study justifying it: a study conducted by the American Trucking Assns. funded by a Congressional earmark,” she said. “That study was a lab study with fewer participants than the two-phase WSU study.”

In addition, the restart has become more controversial than justified by its actual impact, Ferro argued. “Only a small percentage of drivers drive the hours necessary to ever need a restart,” she said. She cited the ATRI study critical of the HOS rules. Even though ATRI’s survey results found carriers and drivers claiming a major impact, ATRI’s own analysis of log data before and after the July 1 rule change showed that only about a third of 1% of driver logs changed due to the rules, she said. “The only data they have produced shows that drivers’ schedules hardly changed after it went into effect. With no change in schedules, economic impacts would be minimal, if any.”

Trucking industry groups have made it clear this week that the revised 34-hour restart is a big deal, contrary to Ferro’s claims, and they kept up the pressure in Thursday’s hearing. Representing the American Trucking Assns., Duane Long, chairman of the 45-truck Research Triangle Park, NC-based Longistics, said that the new HOS are resulting in:

  • Less productive trucking operations and lower company revenue, mainly as a result of longer off-duty restart periods by drivers
  • Fewer weekly miles by many drivers, and lower company revenue, as a result of working five days per week due to the more restrictive, longer restart on the weekend
  • Less take-home pay by some drivers, as a result of fewer weekly miles

“We have calculated that a lot of our teams will lose one week’s pay per year,” Long said of his own operation.

The Owner-Operator Independent Drivers Assn. testified that the more restrictive HOS rules have not produced any safety benefits and have meant less ability to adapt to the unpredictable nature of trucking.

“Less flexibility makes it more difficult to stop for rest, avoid traffic, or keep a schedule after being delayed by a shipper or receiver,” said Olympia, WA-based owner-operator Tilden Curl, Jr. in his oral testimony at the hearing. “Almost half of OOIDA members responding to our recent survey feel more fatigued following the changes, nearly 80% have seen impacts to their ability to schedule loads and home time, and nearly two thirds of respondents have lost income, with more than half driving fewer miles and fewer loads.”

The ATA and OOIDA stances have been aired widely already, but a group representing brokers and logistics companies also weighed in at the hearing. 

Speaking for the Transportation Intermediaries Assn., Brian Evans, president of Cabot, AR-based L&L Freight Services, said his group believes the new rules are overly complicated, will reduce productivity, and have no effect on reducing accidents. “I have spoken with many of my carrier customers who are experiencing a major loss of productivity due to the new restart provision,” Evans said. “This rule is resulting in around five fewer loads per week or a reduction of 3% in capacity for their fleets. The cost of this loss of efficiency is felt by the business and ultimately passed on to the consumer.”

Ferro acknowledged the industry’s frustration with the current transportation environment but argued that it is largely misdirected against the HOS regulations. “Driver pay and extreme loading dock delays have a significant impact on drivers’ ability to be efficient, professional, and safe,” Ferro said. “In short, uncompensated delays force drivers to press legal and physical limits to capture a day’s pay. The logistics industry gets this time free on the backs of the drivers and small businesses. Uncompensated detention time needs your attention, because what makes the job better, often makes the job safer.”

Ferro seemed to be setting the stage for one of FMCSA’s major upcoming rulemaking efforts to ensure that drivers are not coerced by carriers, shippers, receivers or brokers to violate regulations. A draft proposed rule is under review by the Dept. of Transportation, and FMCSA hopes to publish it in February.

About the Author

Avery Vise | Contributing editor

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