As the Federal Motor Carrier Safety Administration postponed releasing its latest drivers hours-of-service rules rewrite, the industry is wondering what is behind the current regulatory revision. Many believe Congress may have to legislate a solution.
Since the FMCSA announced creation of the latest proposal to revisit HOS regulations in December to satisfy terms of its December 2009 court settlement with advocacy groups challenging the current rule, industry groups have noted inconsistencies in the way FMCSA has supported the changes with cost/benefit analysis. “As proposed, the rule is not at all satisfactory to the industry,” says Dave Osiecki, vice president of safety, security and operations for the American Trucking Associations. “There’s no basis for the changes as far as we can tell. We can only come to the conclusion that the changes are more politically driven than based on science or data.”
Many drivers echo the ATA. “When is enough, enough?” asks Landstar-leased owner-operator Andy Soucy, based in Lebanon, Tenn. “What is it that they want? They want to change [the hours of service] mainly to get interest groups off the government’s back. … People don’t like trucks. They fear trucks. We’re the big kid on the block that they want to pick on. They’ll never be happy, though we’re now the safest we’ve ever been in history.”
What’s more, Osiecki says, law enforcement, represented nationally by the Commercial Vehicle Safety Alliance, “has said, ‘Hey, these rules are working. Let’s just enforce them better than we have been.’”
CVSA noted in a press release that, if implemented, FMCSA’s proposal could well have the “unintended consequence of reducing overall CMV and motorist safety. According to CVSA, the changes could make roadside enforcement more complex and open the door toward more drivers falsifying their records.”
Said CVSA Executive Director Stephen A. Keppler: “The consensus from our state and jurisdictional enforcement members regarding these proposed rules is that they are confusing and not easily understood. The proposed rules, in our view, will be more difficult to enforce roadside than the rules in place today.”If changes are made law as proposed, carriers will have to adjust schedules, negotiate new terms with shippers, buy more equipment and hire more drivers. Drivers will face the prospect of running more miles to make the same pay or pushing for higher pay. FMCSA reopened the public docket through June 8 to obtain comments on four additional studies that analyze driver crash risk as it relates to duration of driving and fatigue. FMCSA rep Candice Tolliver notes that the agency advised the parties to the settlement agreement of the need to reopen the comment period. FMCSA “will provide additional details on the rulemaking schedule in the coming weeks.” Osiecki says he expects the delay to be a brief one.
Drivers who commented on the proposed changes pointed out numerous potential unintended consequences of the rules. Trucker Howard Brawley, for instance, writing in April, noted the revision to the restart rules to include two midnight-to-6 a.m. periods could add to daytime congestion woes on highways as former nighttime haulers find themselves forced into a daylight schedule.
To a certain extent, this has already happened. Regulators locked in the 14-hour rule years ago to conform hours regulations to the human biological clock. “I can understand that,” says Soucy. “I don’t agree with a company saying your time off is up at two o’clock in the morning and you need to get to work. Let the man sleep until six o’clock.” At the same time, he adds, “the hours of service that were imposed on us back then, well, they seem to be working. They’re achieving what FMCSA wants. I see many more drivers off the road at seven, eight o’clock at night. Then again, I see more drivers on the road during peak congestion times.”
Testing proposed rules
The potential productivity loss from hours revision, with both higher costs and time spent adjusting to a third set of regulations in seven years, concerns many in the industry. At an FMCSA listening session in February, trucking representatives and drivers mostly urged regulators to leave current rules in place.
While many in the industry speculated how the proposals might harm their operations, one driver presented specific information about how the rules affected his work. Allen Parker, a 24-year driver for Werner Enterprises, operated for four weeks as if the hours proposals were real.
In the test set up by Werner, Parker said he had to drive more days to complete his regular routes and arrived home later than normal, which extended his weekend rest break. His extra time off didn’t give him more rest but more time to find things to do, leading to more stress, he said. “In the 30 days, I can count three days of production I lost.”
In a normal week with 11 daily hours of driving, he moves a load from near his Nebraska home to Utah, where his load is picked up by another driver. He returns to Omaha with another load. Driving time is a little over 15 hours each direction, covering more than 1,800 miles total. It requires three days of driving. Though the reduction to 10 available driving hours from the current 11 is far from certain, FMCSA has indicated a preference for the reduction. Contradictory results from multiple studies for driver safety in the 11th hour of driving, however, bear out the potential for FMCSA to retain the 11 hours of driving.
During Parker’s test his typical three-day round-trip between Nebraska and Utah took him more than three days to complete. “Having 10 hours to drive a day caused me to stop sooner and start my day sooner,” he said. On one occasion, he had to begin the third day of a three-day trip at 2:30 a.m. instead of a typical 7:30 a.m. start to reach his destination on time.
Parker normally arrives home before midnight Friday and leaves at 1 p.m. Sunday. Instead, twice he didn’t arrive home until Saturday morning and couldn’t leave home until 6 a.m. Monday because he had to incorporate two off-duty periods of midnight to 6 a.m. “Under the current hours of service, I would have been able to leave at 6:30 p.m. Sunday,” he said. “This would have resulted in a more productive week for me with less stress trying to make a living.”
One of the studies FMCSA published upon reopening the public comments on the rule in early May documented the phenomenon of home restart stress, something industry business consultant Jay Thompson describes. “Why are there more accidents after a 34-hour restart where the driver can go home versus fewer (or no impact) from a 34-hour restart when drivers are out on the road?” he asks. The answer lies in the stress of home for the long-hauler, who often must fit in as much home-base work as he can during his weekends, he says. As Parker’s test suggests, revising the restart rule to include two night periods could just compound scheduling stress.
Another HOS proposal that tripped Parker up was having to take a 30-minute break within the first seven hours of driving. On one occasion, he was 45 minutes from home but had to stop to fulfill the requirement. He said he stopped at a retailer he knew would allow him to park his rig, but he noted that other drivers facing the same situation might have to search for a suitable place to park. Given congestion woes in high-traffic corridors, mandated breaks could paradoxically open a Pandora’s box of new parking problems and capacity stresses in rest areas and truckstops.
The only proposed change Parker wasn’t able to follow due to current HOS requirements was the twice-weekly extension of the 14-hour work period to 16 hours. “This is the only part of the new proposal I think would benefit drivers,” he said. “If a driver can take a two-hour break and it not count against his 14-hour clock, it would encourage the driver to take a nap during the day. Instead, some drivers drive tired once in a while because they have the miles to drive.”
Driver pay threatened
Parker estimates he would lose an hour of revenue per day for 22 days a month if the rules were changed. At his current per-mile pay rate, he says he would have lost $475 during the test, or about $5,700 a year. “If they were to implement these new hours, we would get fewer miles through the week,” he says.
Reduced pay could become an issue. Owner-operator Soucy speculates the only way for a driver to make money doing cross-country long-haul with the new hours provisions, if combined eventually with an EOBR mandate, would be to switch to a team operation. “I don’t foresee any way around it if they implement new hours-of-service rules and EOBRs,” he says. “No way will it be profitable coast-to-coast without teams. By the time [a solo driver] offloads and reloads, gets 100 miles under his belt, he’ll have to stop.”
Soucy notes detention time estimates as high as 40 hours a week for some long-haulers complicate matters. “That’s a full-time job according to the general standards. With the 70-hour limit, he’s got 30 hours to make money. Drivers won’t stay out there for that kind of money. They’ll make more money working at McDonald’s.”
One bright spot he sees is the potential new hours regs and mandated EOBRs will “force the industry to revamp the compensation model” to keep drivers better compensated for their hours. “It’s long overdue, anyhow,” he says.
“Drivers won’t stay out there for that kind of money. They’ll make more money working at McDonald’s.”
— owner-operator Andy Soucy
Such sentiments are echoed in the HOS proposal comments. One in particular stands out, a letter to the Department of Transportation from U.S. Senator Lisa Murkowski (R-Ak.), urging attention to the issues raised by a letter her office received from self-professed “struggling truck driver” Dennis Haakenson about the hours revision. Haakenson opposes the potential reduction in driving hours as a direct pay cut, then notes the cumulative effect of the changes, which he says will hurt more than just truck drivers. “They will drive up expenses for all motor carriers, which in turn will drive up the cost of literally every consumer product that is shipped by truck. That means the vast majority of items that everyone in America buys on a daily basis will see a big price jump.”
More significant may be that the Senator felt the letter important enough to forward it to the FMCSA. How long before her colleagues see what Osiecki calls the “regulatory ping-pong” FMCSA appears to be playing in its attempts to satisfy industry and/or safety advocacy groups’ objections, before Congress tackles the issue itself? “That’s an option we’re looking at,” Osiecki says of lobbying Congress for a fix to the ongoing hours rewrites. “We’re certainly aware of the discussion about involving Congress, and we’re engaged in it.”
Other Senators posted comments in the docket, Subcommittee on Transportation and Infrastructure Chairman Max Baucus (D-Mont.) among them. In a letter to DOT Secretary Ray LaHood, Baucus noted the continuing improvement in truck-involved fatalities on the nation’s highways, the potential negative the rules could be to highway congestion and finally this: “The increased costs associated with utilizing more trucks and with increased congestion will have a ripple effect on both consumers’ costs and on freight shippers and receivers, many of which are small businesses. In Montana, small businesses make up approximately 98 percent of all companies, and I fear for the impacts they could suffer.”
While the deck isn’t stacked against FMCSA, a consensus seems to be developing in opposition to the proposed rules. How exactly it all turns out could depend on what Congress hears from its driver constituents.
The Legislative Solution
Former FMCSA administrator weighs in on hours proposal
“I didn’t know there were media in the room,” says former FMCSA administrator John Hill, who led the agency during a majority of George W. Bush’s second term. He’s talking about remarks to the National Private Truck Council that seemed critical of the proposed hours-of-service revision.
But Hill’s analysis of the situation the FMCSA finds itself in over the rewrite is more self-critical than anything else. “I wish I would have sat down with everybody and said, ‘Look, can we come to a truce on hours and put EOBRs on all trucks and leave the [hours] rule in place?’ I think it would have been a better solution than fighting it all out in court.”
As it is, the outcome may be a complicated revised rule and black boxes, with little allowance for added flexibility but for two potential driving-window extensions a week. And Hill predicts further legal action. “I think you’ll have a lawsuit either way,” he says, whether FMCSA adopts the proposal or sticks with the current rule, which is still a possibility.
If Congress steps in, Hill says, one tack to take could be to request a moratorium on hours changes “in light of the economy and the fiscal impact on the economy of the changes. They could say, ‘Look, we’re going to leave this in place, have a moratorium, go ahead with EOBRs and leave hours alone. … Congress should show some leadership on that.”
Otherwise, Hill says, “this back and forth will continue until each group gets what it wants,” if that is possible.
Two Productivity Analyses
Miller Trucking, LaCrosse, Kan.
In comments to the February FMCSA listening session, Miller Trucking’s Mike Miller said adopting the proposed hours of service changes — including the reduction in driving hours to 10 — would cost his small fleet 37 days of productivity a year per truck, requiring him to buy two additional trucks and hire two more drivers. “It’s very, very costly for us,” he said.
Miller’s calculations were based on 21 trucks — he has since acquired another carrier with 20 trucks. He estimates his potential productivity loss at 15 percent minimum. In addition, his current drivers would get fewer miles in the same amount of time and would need higher wages to keep pace, he says. More trucks and higher pay would necessitate higher rates. “For an industry that’s making 3 percent to 5 percent profit margin, you can’t lose 15 percent to 25 percent productivity and survive,” he says.
One of his four operations hauls cattle nationally. A cut in driving hours to 10 would have a big impact on livestock transporting, he says. Federal law mandates a maximum 36-hour transit period before unloading livestock for at least 10 hours for health reasons. Livestock carriers would have to find new places to rest animals if HOS rules were changed, he says.
Miller adds that many details about HOS impacts remain uncovered. “I believe the industry is scared about all the hidden costs we haven’t thought about yet,” he says.
Usher Transport, Louisville, Ky.
Another who calculated the potential productivity hit is Mike Baker, safety and human resources vice president at Usher Transport. The Louisville-based tank carrier runs daily, hauling petroleum products and chemicals.
“We figured out we were going to lose about 109,000 hours of productivity a year in our fleet,” Baker says, by reducing driving time from 11 hours to 10 and duty time from 14 hours to 13. “To make up for that we’d have to put on 34 more units to stay at status quo.”
Baker says that would require hiring experienced tank drivers, a rarity in any market. “Here at Usher our drivers have to have [at least] two years of over-the-road experience,” he says. “We have to train them how to use hoses, load and unload product and to wear personal protective equipment.”