The New Hours Rule: Did FMCSA Find A Sweet Spot?
By Oliver B. Patton, Washington Editor
Almost no one is happy about the new hours of service rule. Maybe that means the Federal Motor Carrier Safety Administration made the moves that will lead to stability, at long last.
Or maybe not.
At press time, the key parties were still huddled, deciding whether to take their issues to court.
Advocacy groups and the Teamsters union are considering renewing their suit against the agency because the new rule preserves the 11-hour daily driving limit.
American Trucking Associations is expected by the end of January to decide if it will sue over the new 30-minute break requirement and restrictions on the 34-hour restart.
But from ATA's perspective, the new rule is not nearly as bad as it would have been if the agency had followed through on its inclination to cut the 11-hour limit to 10 hours. And the safety advocates think the agency found a reasonable compromise on cumulative fatigue when it limited the 34-hour restart to once a week with two sleep periods from 1 a.m. to 5 a.m., and added the 30-minute rest break after eight hours of driving.
So maybe it's possible that all would be willing to live with the rule's respective shortcomings for the sake of predictable hours of service and the chance to focus on regulations that are likely to produce greater gains in safety.
That may be too much to wish for, given the mix of science, politics and business that drives the issue.
Lost productivity
The rule does not fall with equal weight across all sectors of the industry. Long-haul, irregular route carriers are the most affected. According to transportation analyst John Larkin of Stifel Nicolaus, the new restart rule could produce a 17% reduction in theoretical work time per week for these carriers.
"If you're trying to run hard in a traditional irregular route market, from 700-mile to 1,200-mile length of haul, the new rule really throws a crimp into your productivity," he says.
Other types of carriers find the changes simply a problem to be solved.
Expedited carrier Bolt Express, for example, sees the new 30-minute break requirement as a little burdensome, requiring changes in systems and operations to accommodate time-critical plant deliveries.
"It will cause a little bit of an issue because there's another 30 minutes in this that we didn't have before," says CEO Ben Bauman.
And as far as dedicated carrier Cardinal Logistics is concerned, the new rule is, in a word, terrific.
"Any law that further professionalizes our industry and gets the right people driving on the highway and gets the wrong people off of the highways, we're a massive fan of," says chairman Vin McLoughlin.
That said, Cardinal, with its 250-mile range, is not particularly affected by the new restart provision. And the half-hour break is a minor inconvenience, McLoughlin says. "We think it does a good thing for the driver."
Cardinal President and COO Jerry Bowman added another perspective: The rule gives certain large, tightly managed carriers an edge in the market. "Frankly, anything that makes the regulatory environment cleaner and causes people to operate much more safely, we're in favor of because we think that's a competitive advantage for us," he says.
To the extent that the new rule puts pressure on driver availability, that's a good thing for Cardinal. "From our standpoint, our jobs are more desirable than other (carriers') jobs. They're well-paying and have a dependable schedule."
Bowman has a dim view of trucking interests taking FMCSA to court over the rule.
"I think the industry would be idiots to go after this," he says. "I don't know what basis they would have for attacking it, and from a (public relations) perspective, the industry doesn't need that kind of PR over what's basically a non-issue, as we see it."
For Maverick Transportation, which offers an array of truckload services, the rule is going to require significant adjustments, says Dean Newell, vice president of safety and driver training.
During the past six months, for instance, about 15% of Maverick drivers' restarts would not have complied with the new rule.
The half-hour break will require work, too. Maverick's review of more than 186,000 driver logs showed that about 30% would be out of compliance with that requirement because drivers drove for more than eight hours straight. They may have stopped for load checks or smaller breaks, but they did not get the full 30 minutes, he says.
What is required to make the adjustments? "That's the hard question to answer," Newell says. "We don't know yet. We still have plenty of work to do to figure all that out."
Maverick is like most companies in this respect: It's going to take a while to figure it out.
John Conley, president of the National Tank Truck Carriers, says the members of his group still are studying the rule.
Many tank carriers that deliver gasoline work at night, so they are concerned about the impact of the restart provision, he says.
One tanker reported that its drivers could lose a half of a shift per week as a consequence of limiting the restart. A driver who usually works a sixth day and usually starts his shift before 5 a.m. will have to postpone his start, which will delay the start of the night shift. That, in turn, will force more trucks onto the road during the day.
This observation echoes the message that many carriers sent to FMCSA during the rulemaking process: The rule will reduce productivity and driver income, and increase highway congestion.
Getting in FMCSA's head
The agency's response in its analysis of the more than 20,000 comments on the proposed rule illustrates a gap between the perceptions of the regulator and the regulated.
To the issue raised by this tank carrier, for instance, the agency had a blunt answer: "A driver who is regularly working the longest hours will lose hours under the final rule: That is the intention of the rule changes."
Most drivers will not be affected, though, the agency says. Drivers still will be able to average 70 hours a week.
"A driver on the 70-hour/8-day schedule working maximum hours under the 2003 rule would lose one shift every two weeks," the agency says. "Few drivers work that hard, and they don't do so consistently. Income of drivers averaging less than 60 hours a week will not be affected."
On another point of contention, the agency challenged cost estimates for the proposed rule submitted by publicly traded carriers. The costs these carriers cited came to a small fraction of 1% of the carriers' revenues, the agency says.
"None of the commenters provided an explanation of how a reduction in weekly driving hours of about 5% for those working the longest hours could produce revenue declines of the magnitude claimed."
FMCSA also challenged ATA's assertion that the agency had overstated the number of drivers who work long hours. ATA's own data indicates an average work week of less than 44 hours, the agency says.
"The industry, in effect, made two contradictory arguments - that the long hours allowed by the current rule are rarely used so that fatigue is not a problem and rule changes are not necessary, and that any reduction in those hours will have serious economic impacts. Both arguments cannot be true."
The agency also went after industry claims of lost productivity under the rule by citing inefficiencies in the supply chain.
It says carriers and drivers claim they spend from 10% to 50% of their time each week waiting to be loaded and unloaded. If this is correct, the agency says, it is an inefficiency that absorbs more driver on-duty time than all of the changes in the final rule.
The "relatively small" impact of the rule could be offset if shippers and receivers set and kept appointment times for loading and unloading, the agency says.
"FMCSA has no obligation to allow drivers to work excessively long hours a week to compensate for delays in the supply chain."
The agency added that it intends to examine the impact of detention time on hours of service violations.
The agency acknowledged that, as the industry contends, the new rule may require some carriers to take on more drivers, and that new drivers are riskier than experienced drivers.
However, the number of new drivers who will be needed as a consequence of the rule will be relatively small compared to the number needed as a matter of course in the industry, the agency says.
"The real issue for the industry is that many of the new drivers leave the industry within a few months because of long hours, the weeks away from home, and low pay."
The agency was not impressed by the industry's argument that the restart provision will lead to increased rush hour traffic. It says that most drivers who routinely work at night do not work enough hours to require a restart.
But the agency was sensitive to carriers' concerns about the two-night restart taking away operational flexibility. The issue, carriers say, is that drivers will be reluctant to take a restart when they are on the road, and that would lead to more empty miles as carriers reschedule to get drivers home for their break.
The agency's response was to ease the terms of the restart. It had proposed that the successive two-night breaks be from midnight to 6 a.m., but changed that to 1 a.m. to 5 a.m.
"FMCSA acknowledges that this revised restart provision will slightly reduce the flexibility available under the previous rule, but recent research has suggested that two consecutive nights off duty would be necessary to ensure that the drivers who take a restart are adequately rested," the agency says.
The safety question
There would be less resistance to this rule if it were clear to individual carriers that the additional time it gives the driver will improve safety.
Dean Newell of Maverick says his company just came out of its safest year ever. Its reportable accident rate for 2011 was 0.31, DOT reportable accidents per million miles and its preventable accident rate was 0.1.
"So I don't see their logic in it," he says. "In our fleet I don't think that it will make that significant a difference."
Mark Rourke, president of Truckload at Schneider National, says the current rule should have been kept as is.
"If there are clear safety benefits, it's worth the time, energy and cost to make the change," he says in a statement. "However, it's unclear whether these rules will yield any safety improvement."
The industry went into the rulemaking arguing that because fatalities have been dropping since the 2003, the current rule is safe and does not need to be changed.
The agency disagrees. It says that crash rates have been falling for four decades due to a complex mix of factors ranging from highway and vehicle design to increased use of seat belts and carriers laying off riskier drivers during the recession.
Further, the agency says, while the industry assumes that fatigue-related crashes declined as crashes as a whole declined, the data shows that the drop in fatigue-related crashes has not been as consistent as the drop in crashes.
The industry questioned the agency's assumption that drivers do not get enough sleep and says the old restart provision provides enough time for rest. The agency replied that research shows that most drivers do not get enough sleep, and that sleep taken during the day is not as restorative as sleep taken at night.
Drivers who work the long daily and weekly hours that trigger a restart may build up a sleep debt that cannot be paid up during the current 34-hour restart, the agency says.
"These drivers are more likely to be chronically fatigued, with the performance deficits associated with fatigue, and are subject to a range of health effects linked to sleep loss."
Schneider's Rourke raised a concern that many close observers share: The hours of service rule is important, but it is not the main game for safety improvement.
"We do not believe (the rule) addresses the real issue surrounding professional driver safety: compliance under the existing rules," he says.
The industry needs a universal electronic onboard recorder mandate (now being drafted) to take compliance issues off the table and give regulators the information they need to assess the hours of service rule, he says.
"While this work is being done, we believe dollars would be better spent on other safety technologies and fatigue management and distracted driving management programs that truly benefit and improve safety," Rourke says.
Another view
Noel Perry, an economist and consultant with FTR Associates, believes the new rule will lead to a 2% to 3% reduction in overall industry productivity.
It will take about 80,000 to 90,000 new full-time drivers to make up the difference, he says. That's about half the number required after the 2003 rule kicked in, and about half of what it would have been had the agency stuck with the rule it initially proposed.
This is not necessarily bad news for carriers, Perry says. "There's a belief that fleets won't be able to pass on cost increases, which is rubbish."
He cited carriers' experience with the 2003 rule change, which gave them a great story for rate increases, more than enough to cover any productivity effects. He acknowledged that there is a lag between when the carrier incurs the cost and when it can recoup it, which threatens fleets that are less well-managed.
"On the other hand, well-managed fleets have shown the ability to get the word out and use this as cover to get rate increases that they needed anyway, for other reasons."
He says that in a sense the agency is doing carriers a favor: "It is providing them with a good explanation that they can give their customers when they start asking for the higher rates it will take to get the driver home."
Getting drivers home is expensive. It costs $35,000 a year to make it happen every week, compared to every other week, he says.
Perry thinks the additional time the rule gives drivers will improve safety - "you'd be a fool to describe the long-haul truck driver's lifestyle as healthy" - and that in the long run this will lower trucking costs.
"Right now, some of those costs are not being borne by the consumer. They're being borne by individuals, families and the health care system. What this says is that in order to lower costs for the whole system, we're going to charge the consumer the full cost of operating safely."
Enforcement's perspective
"FMCSA did a really good job justifying what they did and why they did it," says Steve Keppler, president of the Commercial Vehicle Safety Alliance, which represents the interests of the enforcement community. "I give them credit for really doing a very thorough job."
Still, CVSA has some concerns that it may raise in a petition for reconsideration, he says.
While the agency had reasonable scientific justification for the changes it made, the enforcement community wants the rule to require drivers to keep supporting documents for the restart, rest break and new definition of on-duty time, he says.
"Without some way for us to verify (driver) activities, it will be much more of a challenge to enforce those particular provisions," he says.
The alliance also wants the agency to reconsider its decision to change the definition of on-duty time starting Feb. 27.
"To try and get the entire country trained on that change in 60 days is really not realistic," he says. "States can't ramp up the training on a dime. We hope that FMCSA will reconsider that date and push it back to July 2013 (when the rest of the rule goes into effect)."
Further, the new restart provision creates another problem for enforcement officers. Under the rule, drivers must keep their log for the current day and the previous seven days. However, seven days' history is not enough to cover a driver's schedule if he took a restart during that period, Keppler says.
The requirement probably should be 14 days, as it is in Canada, he says.
What's next?
As the main antagonists consider whether to sue, there is a third strand in the narrative that says the agency did a pretty good job, all things considered.
"Let's give the DOT a little credit," says John Conley of the tank carrier association. "They knew they would take some heat no matter what they did. Safety would not have been hampered by not making any changes, but the agency could not have come back with no changes or the game would have continued."
He continued: "Politically it would have been easy for the agency to simply publish what they proposed and say, go ahead and sue. They did not take the easy way out."
Conley was echoing the view of many in the industry that this is essentially a political decision, rather than one based purely on science.
In this view, the serial lawsuits against the rule by Advocates of Highway and Auto Safety and the Teamsters union have less to do with safety than with the control struggle between labor and management. And FMCSA is reacting to political pressure from a labor-friendly Obama administration.
The agency clearly disagrees.
"The goal of this rulemaking is to reduce excessively long work hours that increase both the risk of fatigue-related crashes and long-term health problems for drivers," it says.
And the agency's reasoning on the details of the rule is thick with references to research on fatigue - although the industry takes issue with the quality and relevance of some of that material.
The way John Larkin and other observers see it, the agency may have struck a respectable compromise.
"The highway safety lobbyists almost don't care what it costs (but) FMCSA has to measure costs," he says.
Larkin, an analyst by profession, says there is a "fudge factor" in the type of economic analysis used to judge a rule such as hours of service. "You can almost justify whatever you want to justify," he says.
By not cutting the 11-hour limit back to 10 hours, the agency may have engineered a compromise "that has irritated all of the stakeholders a little bit but no one a great amount," Larkin says.
"Maybe (FMCSA Administrator) Anne Ferro walked along the fence pretty well on this one."
The 18-month phase-in is a big help, he says. It will give the industry plenty of time to adjust.
Noel Perry echoed Larkin: "I think it's pretty clear that the FMCSA has neutralized the playing field," he says. The 18-month phase in is a big help, he says. It will give the industry plenty of time to adjust.
Maybe so. But fair warning: There will be more to come.
While the industry is deeply relieved that the agency did not cut the 11-hour limit to 10 hours, the reprieve may be temporary.
The agency kept the 11-hour limit because its cost-benefit analysis showed that 11 hours offered a greater net benefit than either 10 hours or nine hours.
Although research shows that crash risk increases with work hours, it does not show a statistically significant distinction between the risk associated with any two adjacent hours of work, the agency says.
But FMCSA is committed to conducting a comprehensive analysis of risk, hour-by-hour, and it does not consider the case for the 10-hour limit closed.
"Future research may provide a basis for reconsidering the daily driving limit," the agency says.
From the February 2012 issue of HDT.
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By Oliver B. Patton, Washington Editor
Almost no one is happy about the new hours of service rule. Maybe that means the Federal Motor Carrier Safety Administration made the moves that will lead to stability, at long last.
Or maybe not.
At press time, the key parties were still huddled, deciding whether to take their issues to court.
Advocacy groups and the Teamsters union are considering renewing their suit against the agency because the new rule preserves the 11-hour daily driving limit.
American Trucking Associations is expected by the end of January to decide if it will sue over the new 30-minute break requirement and restrictions on the 34-hour restart.
But from ATA's perspective, the new rule is not nearly as bad as it would have been if the agency had followed through on its inclination to cut the 11-hour limit to 10 hours. And the safety advocates think the agency found a reasonable compromise on cumulative fatigue when it limited the 34-hour restart to once a week with two sleep periods from 1 a.m. to 5 a.m., and added the 30-minute rest break after eight hours of driving.
So maybe it's possible that all would be willing to live with the rule's respective shortcomings for the sake of predictable hours of service and the chance to focus on regulations that are likely to produce greater gains in safety.
That may be too much to wish for, given the mix of science, politics and business that drives the issue.
Lost productivity
The rule does not fall with equal weight across all sectors of the industry. Long-haul, irregular route carriers are the most affected. According to transportation analyst John Larkin of Stifel Nicolaus, the new restart rule could produce a 17% reduction in theoretical work time per week for these carriers.
"If you're trying to run hard in a traditional irregular route market, from 700-mile to 1,200-mile length of haul, the new rule really throws a crimp into your productivity," he says.
Other types of carriers find the changes simply a problem to be solved.
Expedited carrier Bolt Express, for example, sees the new 30-minute break requirement as a little burdensome, requiring changes in systems and operations to accommodate time-critical plant deliveries.
"It will cause a little bit of an issue because there's another 30 minutes in this that we didn't have before," says CEO Ben Bauman.
And as far as dedicated carrier Cardinal Logistics is concerned, the new rule is, in a word, terrific.
"Any law that further professionalizes our industry and gets the right people driving on the highway and gets the wrong people off of the highways, we're a massive fan of," says chairman Vin McLoughlin.
That said, Cardinal, with its 250-mile range, is not particularly affected by the new restart provision. And the half-hour break is a minor inconvenience, McLoughlin says. "We think it does a good thing for the driver."
Cardinal President and COO Jerry Bowman added another perspective: The rule gives certain large, tightly managed carriers an edge in the market. "Frankly, anything that makes the regulatory environment cleaner and causes people to operate much more safely, we're in favor of because we think that's a competitive advantage for us," he says.
To the extent that the new rule puts pressure on driver availability, that's a good thing for Cardinal. "From our standpoint, our jobs are more desirable than other (carriers') jobs. They're well-paying and have a dependable schedule."
Bowman has a dim view of trucking interests taking FMCSA to court over the rule.
"I think the industry would be idiots to go after this," he says. "I don't know what basis they would have for attacking it, and from a (public relations) perspective, the industry doesn't need that kind of PR over what's basically a non-issue, as we see it."
For Maverick Transportation, which offers an array of truckload services, the rule is going to require significant adjustments, says Dean Newell, vice president of safety and driver training.
During the past six months, for instance, about 15% of Maverick drivers' restarts would not have complied with the new rule.
The half-hour break will require work, too. Maverick's review of more than 186,000 driver logs showed that about 30% would be out of compliance with that requirement because drivers drove for more than eight hours straight. They may have stopped for load checks or smaller breaks, but they did not get the full 30 minutes, he says.
What is required to make the adjustments? "That's the hard question to answer," Newell says. "We don't know yet. We still have plenty of work to do to figure all that out."
Maverick is like most companies in this respect: It's going to take a while to figure it out.
John Conley, president of the National Tank Truck Carriers, says the members of his group still are studying the rule.
Many tank carriers that deliver gasoline work at night, so they are concerned about the impact of the restart provision, he says.
One tanker reported that its drivers could lose a half of a shift per week as a consequence of limiting the restart. A driver who usually works a sixth day and usually starts his shift before 5 a.m. will have to postpone his start, which will delay the start of the night shift. That, in turn, will force more trucks onto the road during the day.
This observation echoes the message that many carriers sent to FMCSA during the rulemaking process: The rule will reduce productivity and driver income, and increase highway congestion.
Getting in FMCSA's head
The agency's response in its analysis of the more than 20,000 comments on the proposed rule illustrates a gap between the perceptions of the regulator and the regulated.
To the issue raised by this tank carrier, for instance, the agency had a blunt answer: "A driver who is regularly working the longest hours will lose hours under the final rule: That is the intention of the rule changes."
Most drivers will not be affected, though, the agency says. Drivers still will be able to average 70 hours a week.
"A driver on the 70-hour/8-day schedule working maximum hours under the 2003 rule would lose one shift every two weeks," the agency says. "Few drivers work that hard, and they don't do so consistently. Income of drivers averaging less than 60 hours a week will not be affected."
On another point of contention, the agency challenged cost estimates for the proposed rule submitted by publicly traded carriers. The costs these carriers cited came to a small fraction of 1% of the carriers' revenues, the agency says.
"None of the commenters provided an explanation of how a reduction in weekly driving hours of about 5% for those working the longest hours could produce revenue declines of the magnitude claimed."
FMCSA also challenged ATA's assertion that the agency had overstated the number of drivers who work long hours. ATA's own data indicates an average work week of less than 44 hours, the agency says.
"The industry, in effect, made two contradictory arguments - that the long hours allowed by the current rule are rarely used so that fatigue is not a problem and rule changes are not necessary, and that any reduction in those hours will have serious economic impacts. Both arguments cannot be true."
The agency also went after industry claims of lost productivity under the rule by citing inefficiencies in the supply chain.
It says carriers and drivers claim they spend from 10% to 50% of their time each week waiting to be loaded and unloaded. If this is correct, the agency says, it is an inefficiency that absorbs more driver on-duty time than all of the changes in the final rule.
The "relatively small" impact of the rule could be offset if shippers and receivers set and kept appointment times for loading and unloading, the agency says.
"FMCSA has no obligation to allow drivers to work excessively long hours a week to compensate for delays in the supply chain."
The agency added that it intends to examine the impact of detention time on hours of service violations.
The agency acknowledged that, as the industry contends, the new rule may require some carriers to take on more drivers, and that new drivers are riskier than experienced drivers.
However, the number of new drivers who will be needed as a consequence of the rule will be relatively small compared to the number needed as a matter of course in the industry, the agency says.
"The real issue for the industry is that many of the new drivers leave the industry within a few months because of long hours, the weeks away from home, and low pay."
The agency was not impressed by the industry's argument that the restart provision will lead to increased rush hour traffic. It says that most drivers who routinely work at night do not work enough hours to require a restart.
But the agency was sensitive to carriers' concerns about the two-night restart taking away operational flexibility. The issue, carriers say, is that drivers will be reluctant to take a restart when they are on the road, and that would lead to more empty miles as carriers reschedule to get drivers home for their break.
The agency's response was to ease the terms of the restart. It had proposed that the successive two-night breaks be from midnight to 6 a.m., but changed that to 1 a.m. to 5 a.m.
"FMCSA acknowledges that this revised restart provision will slightly reduce the flexibility available under the previous rule, but recent research has suggested that two consecutive nights off duty would be necessary to ensure that the drivers who take a restart are adequately rested," the agency says.
The safety question
There would be less resistance to this rule if it were clear to individual carriers that the additional time it gives the driver will improve safety.
Dean Newell of Maverick says his company just came out of its safest year ever. Its reportable accident rate for 2011 was 0.31, DOT reportable accidents per million miles and its preventable accident rate was 0.1.
"So I don't see their logic in it," he says. "In our fleet I don't think that it will make that significant a difference."
Mark Rourke, president of Truckload at Schneider National, says the current rule should have been kept as is.
"If there are clear safety benefits, it's worth the time, energy and cost to make the change," he says in a statement. "However, it's unclear whether these rules will yield any safety improvement."
The industry went into the rulemaking arguing that because fatalities have been dropping since the 2003, the current rule is safe and does not need to be changed.
The agency disagrees. It says that crash rates have been falling for four decades due to a complex mix of factors ranging from highway and vehicle design to increased use of seat belts and carriers laying off riskier drivers during the recession.
Further, the agency says, while the industry assumes that fatigue-related crashes declined as crashes as a whole declined, the data shows that the drop in fatigue-related crashes has not been as consistent as the drop in crashes.
The industry questioned the agency's assumption that drivers do not get enough sleep and says the old restart provision provides enough time for rest. The agency replied that research shows that most drivers do not get enough sleep, and that sleep taken during the day is not as restorative as sleep taken at night.
Drivers who work the long daily and weekly hours that trigger a restart may build up a sleep debt that cannot be paid up during the current 34-hour restart, the agency says.
"These drivers are more likely to be chronically fatigued, with the performance deficits associated with fatigue, and are subject to a range of health effects linked to sleep loss."
Schneider's Rourke raised a concern that many close observers share: The hours of service rule is important, but it is not the main game for safety improvement.
"We do not believe (the rule) addresses the real issue surrounding professional driver safety: compliance under the existing rules," he says.
The industry needs a universal electronic onboard recorder mandate (now being drafted) to take compliance issues off the table and give regulators the information they need to assess the hours of service rule, he says.
"While this work is being done, we believe dollars would be better spent on other safety technologies and fatigue management and distracted driving management programs that truly benefit and improve safety," Rourke says.
Another view
Noel Perry, an economist and consultant with FTR Associates, believes the new rule will lead to a 2% to 3% reduction in overall industry productivity.
It will take about 80,000 to 90,000 new full-time drivers to make up the difference, he says. That's about half the number required after the 2003 rule kicked in, and about half of what it would have been had the agency stuck with the rule it initially proposed.
This is not necessarily bad news for carriers, Perry says. "There's a belief that fleets won't be able to pass on cost increases, which is rubbish."
He cited carriers' experience with the 2003 rule change, which gave them a great story for rate increases, more than enough to cover any productivity effects. He acknowledged that there is a lag between when the carrier incurs the cost and when it can recoup it, which threatens fleets that are less well-managed.
"On the other hand, well-managed fleets have shown the ability to get the word out and use this as cover to get rate increases that they needed anyway, for other reasons."
He says that in a sense the agency is doing carriers a favor: "It is providing them with a good explanation that they can give their customers when they start asking for the higher rates it will take to get the driver home."
Getting drivers home is expensive. It costs $35,000 a year to make it happen every week, compared to every other week, he says.
Perry thinks the additional time the rule gives drivers will improve safety - "you'd be a fool to describe the long-haul truck driver's lifestyle as healthy" - and that in the long run this will lower trucking costs.
"Right now, some of those costs are not being borne by the consumer. They're being borne by individuals, families and the health care system. What this says is that in order to lower costs for the whole system, we're going to charge the consumer the full cost of operating safely."
Enforcement's perspective
"FMCSA did a really good job justifying what they did and why they did it," says Steve Keppler, president of the Commercial Vehicle Safety Alliance, which represents the interests of the enforcement community. "I give them credit for really doing a very thorough job."
Still, CVSA has some concerns that it may raise in a petition for reconsideration, he says.
While the agency had reasonable scientific justification for the changes it made, the enforcement community wants the rule to require drivers to keep supporting documents for the restart, rest break and new definition of on-duty time, he says.
"Without some way for us to verify (driver) activities, it will be much more of a challenge to enforce those particular provisions," he says.
The alliance also wants the agency to reconsider its decision to change the definition of on-duty time starting Feb. 27.
"To try and get the entire country trained on that change in 60 days is really not realistic," he says. "States can't ramp up the training on a dime. We hope that FMCSA will reconsider that date and push it back to July 2013 (when the rest of the rule goes into effect)."
Further, the new restart provision creates another problem for enforcement officers. Under the rule, drivers must keep their log for the current day and the previous seven days. However, seven days' history is not enough to cover a driver's schedule if he took a restart during that period, Keppler says.
The requirement probably should be 14 days, as it is in Canada, he says.
What's next?
As the main antagonists consider whether to sue, there is a third strand in the narrative that says the agency did a pretty good job, all things considered.
"Let's give the DOT a little credit," says John Conley of the tank carrier association. "They knew they would take some heat no matter what they did. Safety would not have been hampered by not making any changes, but the agency could not have come back with no changes or the game would have continued."
He continued: "Politically it would have been easy for the agency to simply publish what they proposed and say, go ahead and sue. They did not take the easy way out."
Conley was echoing the view of many in the industry that this is essentially a political decision, rather than one based purely on science.
In this view, the serial lawsuits against the rule by Advocates of Highway and Auto Safety and the Teamsters union have less to do with safety than with the control struggle between labor and management. And FMCSA is reacting to political pressure from a labor-friendly Obama administration.
The agency clearly disagrees.
"The goal of this rulemaking is to reduce excessively long work hours that increase both the risk of fatigue-related crashes and long-term health problems for drivers," it says.
And the agency's reasoning on the details of the rule is thick with references to research on fatigue - although the industry takes issue with the quality and relevance of some of that material.
The way John Larkin and other observers see it, the agency may have struck a respectable compromise.
"The highway safety lobbyists almost don't care what it costs (but) FMCSA has to measure costs," he says.
Larkin, an analyst by profession, says there is a "fudge factor" in the type of economic analysis used to judge a rule such as hours of service. "You can almost justify whatever you want to justify," he says.
By not cutting the 11-hour limit back to 10 hours, the agency may have engineered a compromise "that has irritated all of the stakeholders a little bit but no one a great amount," Larkin says.
"Maybe (FMCSA Administrator) Anne Ferro walked along the fence pretty well on this one."
The 18-month phase-in is a big help, he says. It will give the industry plenty of time to adjust.
Noel Perry echoed Larkin: "I think it's pretty clear that the FMCSA has neutralized the playing field," he says. The 18-month phase in is a big help, he says. It will give the industry plenty of time to adjust.
Maybe so. But fair warning: There will be more to come.
While the industry is deeply relieved that the agency did not cut the 11-hour limit to 10 hours, the reprieve may be temporary.
The agency kept the 11-hour limit because its cost-benefit analysis showed that 11 hours offered a greater net benefit than either 10 hours or nine hours.
Although research shows that crash risk increases with work hours, it does not show a statistically significant distinction between the risk associated with any two adjacent hours of work, the agency says.
But FMCSA is committed to conducting a comprehensive analysis of risk, hour-by-hour, and it does not consider the case for the 10-hour limit closed.
"Future research may provide a basis for reconsidering the daily driving limit," the agency says.
From the February 2012 issue of HDT.
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