October 2018 The Roemer Report

Reforming The Hours of Service House of Cards

Reforming The Hours of Service House of Cards

On September 20th, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) reiterated its call for public comment announcing an extension, giving all impacted constituents a little more time to pile on regarding how they are dealing with the actual, not the intended consequences of HoS mandates and some possible fixes.

Now that the law is passed we can finally know what’s in it. Sure there are plenty of good intentions baked in by lawmakers and regulators, who are hoping to protect society from the industry’s worst proclivities, but apparently regulators think they may have gone a little too far imposing their collective will on drivers and the trucking industry.

Currently FMCSA is focused on revising four specific areas of current HoS regulations, and after its initial call for public comment and a series of public forums, they extended the comment period to October 10. Not familiar with the controversy over HoS regulations? Welcome back from the Gulag comrade. For the rest of us, HoS mandate the operating hours of commercial truck drivers limiting the hours they spend behind the wheel and the length and intervals of breaks within a 24-hour period and over consecutive days during a seven-day working week.

Thank You Cheap Electronics

Time was, regulators and fleet owners had to rely on paper log books and the good-faith of operators to accurately record their hours in accordance with then current law and standard operating practices. This imperfect system worked imperfectly and by 2008 or so, it became clear that reforms were needed. Too many drivers, shippers and dispatchers were breaking the rules and getting away with it. Many felt the rule breaking was warranted; that the economics and human impacts of those imperfect HoS rules dictated a certain amount of truckers taking the law into their own hands.

Earlier this year, the congressionally mandated electronic logging device (ELD) rule, came into effect which required most FMCSA-regulated motor carriers to convert their records from paper to an electronic format. FMCSA says that while compliance with the ELD rule has reached nearly 99% across the trucking industry, “it has also brought focus to HOS regulations, especially with regard to certain regulations having a significant impact on agriculture and other sectors of trucking.” Yep. We saw that coming.

Statistically, the impact of the HoS changes upon trucking’s over-the-road public safety record is debatable. But what’s not debatable is the fact that without a more automated way to monitor driver service hours nobody was going to be able to improve safety and foster real reform--that is until the enabling technologies behind electronic logging devices (ELDs) became technically and economically feasible (that is cheap enough and reliable enough) to mandate and implement in order to enforce trucking safety and labor regulations.

The Advanced Notice of Proposed Rulemaking (ANPRM), the feds put out in August responds to what it characterized as “widespread Congressional, industry, and citizen concerns” about HoS regulation and seeks feedback from the public to “determine if a few revisions might alleviate unnecessary burdens placed on drivers while maintaining safety on our nation’s highways and roads.”

Four Specific Areas of Concern

The bureaucrats at FMCSA are fishing for feedback on four specific areas that they think industry insiders believe require revision:

1. Expanding the current 100 air-mile “short-haul” exemption from 12 hours on-duty to 14 hours on-duty, in order to be consistent with the rules for long-haul truck drivers;

2. Extending the current 14-hour on-duty limitation by up to two hours when a truck driver encounters adverse driving conditions;

3. Revising the current mandatory 30-minute break for truck drivers after 8-hours of continuous driving; and

4. Reinstating the option for splitting up the required 10-hour off-duty rest break for drivers operating trucks that are equipped with a sleeper-berth compartment.

In addition, the Feds say they also want to receive public comment and relevant data on two recently submitted petitions requesting regulatory relief from HOS rules including the 14-hour on-duty limitation filed by the Owner-Operators Independent Drivers Association and the 10-hour off-duty requirement filed by TruckerNation.

The first in a series of public listening sessions on the ANPRM took place in August in Dallas, Texas. More recently Federal Motor Carrier Safety Administrator Ray Martinez, joined Wiley Deck, FMCSA Director of Government Affairs and Bill Quade, Associate Administrator for Enforcement, conducted a public listening session in Joplin, Missouri September 29.

As reported by FreightWaves’s John Paul Hampstead, the purpose of the session was to allow the transportation industry—primarily truck drivers and fleet owners— a chance to give their input and recommendations so lawmakers might make a few adjustments and provide some relief from some of the more egregious issues with the law.

No Really, Thanks for Bringing it Up

FreightWave’s report was illuminating, not because it highlighted what was wrong or unfixable or the drone of an inflexible response by a deep-state bureaucrat, but rather that it illuminated the face of an enlightened regulator truly seeking to bring remedy and relief to the masses—not more misery.

Here’s a telling observation from Hampstead: “There was a palpable sense of gratitude and optimism among truck drivers that Administrator Martinez was really engaged in trying to fix the hours of service regulations to make them more flexible and to help drivers stay safe.”

The report notes Martinez used the verb “reform” to describe the current administration’s work on HoS, “not a milder word like ‘change’ or ‘revision.” Martinez emphasized to those gathered that the “FMCSA was trying to reform HOS as quickly as possible.” Hampstead reports that Martinez offered insight from the swamp quipping that when “FMCSA bureaucrats told Secretary of Transportation Elaine Chao that the timeline for adopting a new regulation was normally three to four years, Chao said that was unacceptable.”

“We’re moving as quickly as possible to reform hours of service,” said Martinez. “Everyone wants flexibility because there’s a safety issue.” After a review of the proposed reforms here’s how one driver responded. “I’d like to compliment you, Mr. Martinez,” Owner-operator Mark Elrod said, “In my personal opinion you’ve done more in the short time you’ve been in this position than the past administrator did in the whole time and you seem to be more willing to make the situation better for truckers rather than just pad your resume, so thank you for that.”

Personal conveyance was of particular interest and FMCSA government affairs Quade offered that “the biggest change was previously the vehicle had to be unladen, but now we’re recognizing that we can have personal conveyance in laden situations.” The report explains that because of the lack of a distance limit, the law enforcement community is not super comfortable with it. His recommendation? “Take notes, annotate your duty status, and be able to make your case to a reasonable person.”

Andrea Marks, director of communications for Trucker Nation noted to regulators that “It’s critical that the agency understand that no two days [for a truck driver] are the same. If a driver was utilizing hours of service as proposed in the Trucker Nation petition, it’s unlikely they’d use their hours of service the same way every day because critical safety decisions must be based on the current situation, not on a number of rigid and inflexible hours. It is imperative that the agency be 100% committed to providing relief and flexibility to the professional driver.” Amen sister.

Bottom line

The CEO of Gully Transportation, Michael Gully bottom lined it for everybody pointing out that accidents have climbed since the implementation of ELDs. “Now drivers are operating legally, but they’re also operating unsafely. Drivers on ELDs take more chances than they ever did… the drivers out here need your help, to get this fixed so we can operate safely.” And that, my friends, is the point.