HOS arguments

| January 01, 2007

Judges question FMCSA’s numbers in hours rule.

An attorney representing the Federal Motor Carrier Safety Administration’s latest hours-of-service regulations found himself defending the statistical models the agency relied on for guidance in its’ redrafting of the rules.

Matthew Colette, a Justice Department lawyer representing FMCSA, faced questions from a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit last month regarding the impact of the rules on the industry and public.

FMCSA is fighting separate lawsuits filed by the Owner-Operator Independent Drivers Association and safety advocacy group Public Citizen over the August 2005 revisions to the rules that took effect in January 2004. The D.C. circuit appeals court in July 2004 had invalidated those rules. On Dec. 4, a three-judge panel – different from the one that ruled in 2004 – heard arguments from OOIDA, Public Citizen and FMCSA.

Paul Cullen Jr., an attorney representing OOIDA, urged the court to send FMCSA “back to the drawing board” to reconsider the rule in three areas:

  • The decision not to allow breaks during the work day to stop the 14-hour clock. OOIDA has found that delivery schedules force many drivers to complete their work days without taking a break, Cullen told the judges. That’s the type of impact on driver health the court expressed worries about in 2004, Cullen said. In a member survey, OOIDA found that 60 percent said they avoid taking breaks during the 14-hour window.

  • The increased minimum consecutive hours in sleepers to satisfy mandatory rest. “The sleeper berth issue has caused the most concern,” especially for team drivers, Cullen told the court. He also faulted FMCSA’s procedural conduct in adopting the change even though the notice of proposed rulemaking didn’t specifically propose it. “We do not believe FMCSA gave proper notice,” Cullen said. “Either they would have to do a two-step rulemaking – and they had plenty of time to do that – or they would have had to better define the problem they were seeking to address.”
  • The effect of loading and unloading on driver fatigue, particularly extensive waiting times that force drivers to push harder once they can get on the road.

Public Citizen argued that FMCSA’s statistical models in the “virtually identical” new rule gave short shrift to the effects of “time on task” – in other words, time spent working and driving – even though the court in 2004 criticized the agency for precisely this approach. “The model only cares about sleep,” said Bonnie Robin-Vergeer, an attorney for Public Citizen. “It’s irrelevant how much work you are doing.”

But time on task matters, Robin-Vergeer said. “We have extensive evidence about the sharp increase in crash risk after eight hours of driving.”

“The 34-hour restart is the most pernicious provision in the new rule,” Robin-Vergeer told the appeals court. The rule allows substantially more hours driving in a week, contributing to higher cumulative fatigue and less off-duty time, Public Citizen charges. Various surveys have shown that a significant number of drivers are pushing the limits by taking only the 34-hour minimum, she said.

Public Citizen also faults FMCSA for simultaneously downplaying in the preamble to the rule the likelihood that drivers would use the 34-hour restart to maximize driving hours and playing up, in the regulatory impact analysis (RIA) accompanying the rule, the productivity gains from the restart.

Colette defended FMCSA’s position that the science shows that “length of wakefulness is a bigger factor in fatigue than time on task” and disagreed with Public Citizen that there is an inconsistency between the preamble and the RIA. FMCSA used the same estimates and assumptions in analyzing both crash risk and productivity, he said.

The government attorney also stood by FMCSA’s analysis of the 34-hour restart and how drivers are using it in practice. “They are not necessarily using it to drive a massive number of hours,” Colette told the three-judge panel. “Rather, we believe they are using it to spend more time at home.” In any case, the number of hours driving per week is not as significant as reducing fatigue on a daily basis, he said.

Judges on the panel seemed less interested in how the rule has worked in practice than in how FMCSA justified the rule from the standpoint of safety and economic impact.

Judge Merrick Garland, for example, questioned Colette on the methodology of FMCSA’s analysis of how increased consecutive hours of driving affected crash risk. Unsatisfied with Colette’s responses, Garland chided the government attorney. “You’re not a statistician. This is a debate among statisticians.”

Colette stood by FMCSA. “Where we are statistically is within the realm of reasonableness.” But Garland responded that the analysis must be not only reasonable but also fairly transparent, noting that the appeals court has declared numerous times that the court can’t evaluate a model if the agency doesn’t expose it in the notice of proposed rulemaking.

Chief Judge Douglas Ginsburg raised similar concerns, noting that the RIA doesn’t break down the components of the regulatory impact it projects. He asked, “How do the petitioners know it’s a sound number?” It’s difficult for parties to respond to FMCSA’s projections, the judge said, if the agency doesn’t disclose how the agency arrived at them. “Any number of times we have said, ‘Show your work.’”

The appeals court panel is expected to issue its ruling in the next two or three months.
- Avery Vise


OOIDA Takes Issue with ATA Petition for Mandated Speed Governors
In a Nov. 27 letter to two federal agencies, the Owner-Operator Independent Drivers Association voiced its strong opposition to petitions by the American Trucking Associations to mandate speed governors on commercial motor vehicles.

Restricting commercial trucks to speeds below 68 mph would provide no safety benefit and would, in fact, lessen highway safety, wrote Jim Johnston, OOIDA president, in his letter to the administrators of the National Highway Traffic Safety Administration and the Federal Motor Carrier Safety Administration.

On many roads, “operating a truck at or above 68 miles per hour can be appropriate, safe and legal,” Johnston wrote. Thirty states have maximum speed limits of 70 mph or higher on rural interstates.

The ATA filed two petitions Oct. 20. The one addressed to NHTSA asks the federal government to require original equipment manufacturers to activate speed limiters, also called engine governors, on all new trucks at a maximum of 68 mph. The one addressed to FMCSA asks the federal government to outlaw tampering with the devices.

ATA’s proposal is supported by no scientific evidence that speed limiters would improve highway safety, Johnston wrote. In fact, speed limiters would worsen “speed variance” between trucks and passenger cars, a well-studied and well-documented contributor to highway accidents and highway congestion, Johnston wrote.

While the ATA points to excessive speed as a factor in truck crashes, Johnston said the cited FMCSA study identified “traveling too fast for conditions” as the real problem. “Road design, traffic congestion and weather can render any rate of speed excessive and unsafe,” Johnston wrote. “None of the studies cited by ATA identify 68 miles per hour as the tipping point between safe and unsafe speeds.”

Rather than speed limiters on trucks, the U.S. Department of Transportation should seek better truck driver training, Johnston wrote. He reiterated OOIDA’s long-held position that new truck drivers are not trained properly to operate trucks on different types of roads, in different traffic and weather conditions.

Johnston also encouraged DOT to examine the effect of driver compensation on performance. Economic pressures that force drivers to drive more miles or take more loads in a shorter period of time, compounded by long uncompensated waits at loading docks, lead to more truckers driving unsafe speeds to make ends meet, Johnston wrote.

Johnston also questioned whether FMCSA or NHSTA has the authority to create a rule that would effectively set highway speed limits. Congress returned that authority to the states in 1995, he wrote. Many states already have rejected the split speed limits that 68 mph governors would impose, Johnston wrote.

In his final point, Johnston expressed OOIDA’s belief that ATA’s primary motivation in its petitions was to reduce competition among motor carriers. “In announcing this petition,” Johnston wrote, “ATA officials admitted that one purpose of the petition was to reduce the economic advantage of those motor carriers who have chosen not to adopt speed governors over its members who have.”
- From Staff Reports


NATSO Opposes New Highway, Bridge Tolls
NATSO is “strongly opposed” to new tolls on highways and bridges, whether added to new or existing lanes, its board has decided.

The National Association of Truck Stop Owners opposes tolls even if the new fees are for purposes of creating new roads and bridges. Tolls are double taxation for truckers, who already pay 40 percent of highway users’ fees, NATSO said.

Also, toll construction and maintenance cost far more than the current federal fuel tax system can provide, NATSO said.

The association supports the continued use of federal fuel taxes as the main source of highway funding. “The highway user fees that have been deposited into the Highway Trust Fund provide a fair, user-pays system for funding highway construction,” NATSO said in its Nov. 6 statement.

The association backs increases in federal fuel taxes, but only if imposed for the sole purpose of funding roadway and bridge maintenance and construction. It also wants government officials to focus highway funding on freight corridors.

It does not support the indexing of motor fuel taxes and the diversion of state and federal highway user fees to non-transportation purposes.
- Jill Dunn


TCA Picks Company Driver of the Year Finalists
The Truckload Carriers Association, in conjunction with Truckers News, has named the 15 finalists for the 2007 Company Equipment Driver of the Year contest.

The contest honors employees of TCA member fleets who have logged more than a million miles while adhering to the strictest safety standards.

TCA will announce the top three winners at its annual convention March 11-14, 2007, at the Bellagio Resort in Las Vegas.

The finalists are:

  • Jay Banick, Lawrence Transportation Services

  • Brett Campbell, O&S Trucking
  • James Conner, Team Transport
  • Robert Deal, Cargo Transporters
  • Steven Eckhoff, Hogan Transporters
  • Robert Hess Jr., D.M. Bowman
  • Edward Hosier, O&S Trucking
  • Jean-Charles Huard, Robert Transport
  • Eugene Hubbard, Regal Service Company
  • Kenneth Luther, S.B. Inc. doing business as Sherman Bros. Heavy Trucking
  • Vernon Mosher, S.B. Inc. doing business as Sherman Bros. Heavy Trucking
  • Bruce Pfeffer, Smithway Motor Xpress
  • Dwight Phoenix, Martini Inc.
  • Denis Sansoucy, Robert Transport
  • Steven Udelhoven, Art Pape Transfer

- Brittani Tingle


FYI
Freight Weaker Than Expected
The for-hire Truck Tonnage Index dropped 1.8 percent in October after increasing 1.6 percent in September, the American Trucking Associations reported. On a seasonally adjusted basis, the index fell to 110.8 from 112.9 in September, putting the index at its lowest level since the end of the 2006 first quarter. The index decreased 4 percent compared with a year earlier, marking the largest year-over-year decrease since February 2001.

Caterpillar Offers Coverage Program
Caterpillar will offer a special coverage program on all 2007-model Cat engines with ACERT Technology delivered to end-users in the United States or Canada during the first half of 2007. The program, called Caterpillar Pure Confidence, includes Extended Service Coverage and the Cat On-Time Promise. The Extended Service Coverage offers full parts and labor on covered engine and emission components for three years or 300,000 miles on all C9, C13 and C15 engines and three years or 150,000 miles on all C7 engines.

Vermont Completes ACE Installation
U.S. Customs and Border Protection has completed installations of the Automated Commercial Environment in all land border ports in Vermont. The use of ACE to file electronic manifests will be required beginning Jan. 25 for truck carriers entering the United States through all points of entry in the states of Washington and Arizona and through several parts of North Dakota. Eventually, all land border ports will be required to transmit advance electronic truck cargo information through ACE.

Chain Check
This winter, Oregon State Police will inspect trucks on selected mountain passes to make sure they have the proper number of chains. Mountain passes identified for increased enforcement include: Interstate 5 at Sexton Mountain, between Roseburg and Grants Pass; Interstate 84 at Weatherby Exchange and Threemile Hill, between Baker City and Ontario; Highway 140 at Doak Mountain and Seldom Hill, near Lake of the Woods; and Highway 97 at Spring Creek Hill, north of Chiloquin.

Volvo Powertrain Environmental Award
Volvo Powertrain North America, located in Hagerstown, Md., was recognized for its environmental practices by Businesses for the Bay, an organization of businesses located near the Chesapeake Bay that is committed to restoring the health of the Bay’s ecosystems. The Hagerstown facility, which supplies engines for Mack and Volvo trucks, implemented an environmental management system in 2002 aimed at reducing energy consumption, waste generation and water use at the site.

N.J. Gas Tax Allocation Revamped
New Jersey voters approved a plan Nov. 7 that will dedicate the entire gas tax to transportation instead of just most of it. Currently, 9 cents of the 10.5-cent per gallon gas tax goes to the state’s Transportation Trust Fund and the remainder to New Jersey’s general fund. The constitutional change dedicates the remaining 1.5 cents of the gas tax to transportation. The state’s AAA, which supported the amendment’s passage, said it would generate an additional $82.5 million for transportation.

Saia Buys The Connection
Less-than-truckload carrier Saia announced Nov. 20 that it has bought The Connection, a LTL fleet based in Columbus, Ohio, that serves Indiana, Kentucky, Michigan and Ohio. The 20 terminals and 700 employees of The Connection, founded in 1983, will be integrated into Saia in early 2007, adding to the Saia network such major markets as Cincinnati; Cleveland; Detroit; Indianapolis; Louisville, Ky.; and Toledo, Ohio, Saia announced.

Top 10 Trucking Issues
The American Transportation Research Institute, the research arm of the American Trucking Associations, has unveiled its list of the Top 10 critical issues facing U.S. truckers. At the top: the driver shortage and diesel fuel. The rest of the Top 10, based on the institute’s survey of more than 4,000 trucking executives, are driver retention, hours of service, congestion, government regulations, highway infrastructure, tort reform, tolls/highway funding and environmental issues.

MATS Concert
Country duo Big & Rich, of “Save a Horse (Ride a Cowboy)” fame, will headline Kenworth’s 19th annual Customer Appreciation Concert at the 2007 Mid-America Trucking Show in Louisville, Ky. The concert is 7:30 p.m. Friday, March 23, in Freedom Hall at the Kentucky Fair and Exposition Center. Cowboy Troy is the opening act. Free tickets will be available to CDL holders only, with a limit of two tickets per person.

Peterbilt Receives J.D. Power Ranking
Peterbilt ranked highest in customer satisfaction among conventional cab medium-duty trucks, according to the J.D. Power and Associates 2006 Medium-Duty Truck Customer Satisfaction Study. Four factors were used to determine overall satisfaction: vehicle performance, quality, cost of ownership and warranty. Peterbilt received the highest ratings from customers in vehicle performance and cost of ownership. Kenworth, GMC Truck, Freightliner, Sterling and Chevrolet followed in the conventional segment rankings, respectively.

TA Network Adds New Facility
TravelCenters of America has added an existing independent truckstop in Troy, Ill., to its network. It is located on I-55/I-77 and State Route 162 at Exit 18, just east of St. Louis, Mo. The truckstop features a three-bay truck service center that is open 24/7 and a full-service restaurant. The restaurant, which is also open 24/7 with more than 185 seats in the dining area, will be converted to a TA Country Pride in the near future.

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