Independent Review Casts Serious Doubt About FMCSA’s HOS Mandate
The American Trucking Association issued a press release today about FMCSA’s new complicated hours of service rules, coming to a highway near you very soon. It says:
“An independent review of the Federal Motor Carrier Safety Administration’s Hours of Service “Regulatory Impact Analysis” has found the Agency wildly overstated the proposal’s benefits. While the agency claims its proposal would result in up to $380 million in annual benefits, an Edgeworth Economics’ independent review finds that proposal would result in net costs, and not benefits, of approximately $320 million a year. The Edgeworth report states “…we find that FMCSA has overstated the net benefits of the proposed rule by about $700 million annually.”
Edgeworth Economics, an internationally renowned consulting firm that’s done work for the Environmental Protection Agency, the Federal Energy Regulatory Commission and the National Football League Players Association, found that FMCSA used questionable logic, inadequate data and sloppy math in attempting to justify its proposed changes to the hours-of-service rules for commercial drivers.
“FMCSA has made a number of substantial changes to its approach since the previous [regulatory impact analysis] issued in 2007,” the Edgeworth report concluded. “We find that, in every instance, FMCSA’s new methodologies and assumptions increase the apparent net benefits of the proposed rule. However, many of FMCSA’s new approaches rely on misapplication of available data, use outdated information, or lack empirical support entirely.”
In addition to being off base by $700 million annually, other notable findings of the Edgeworth study include:
* FMCSA made unreasonable assumptions about the safety of the trucking industry by sampling only carriers it subjected to a compliance review, generally for not following federal safety rules;
* In formulating its proposal, FMCSA used crash data collected before the current rules went into effect, completely ignoring their positive safety impact on the industry;
“Edgeworth’s analysis pretty clearly shows that FMCSA’s proposal isn’t rooted in sound science, good data or logic, and can’t stand up to scrutiny,” American Trucking Associations President and CEO Bill Graves said. “The findings of this study match what we’ve heard from our members and what ATA has been saying since FMCSA launched this ill-conceived overhaul of these rules: As proposed, the new hours-of-service rules would impose significant costs on the trucking industry without improving safety. These rules are a cure for a disease that we don’t have.”
To see the full report go to here.
So here are a few thoughts on this. First, if you’re trying to establish the credibility of Edgeworth Economics, the author of this report, I don’t think I’d bring up the fact they have done work for EPA, who are the kings of junk science. That being said, I’m sure their findings in this case are 100% right on. The FMCSA used “questionable logic, inadequate data and sloppy math” in reaching its conclusions? ATA, you didn’t need to pay Edgeworth to tell you that, I could have told you that for nothing. I agree with the ATA on this one, these new rules are a travesty, and are unrelated to safety.
Logs: Form and Manner
Ok, here is a post on the regulations today, rather than all these posts I’ve been making on the avalanche of coming regulations. In Part 395 of the safety regulations, it describes what information must be on a log. When a log is not filled out correctly, such as omitting the carrier’s address, or forgetting to total your hours in the right-hand side of the log, that is called a form and manner violation. Form and manner violations are cited by the DOT, and the roadside cops, but never really meant anything, as they never issued fines for that sort of thing.
With the advent of CSA 2010, however, it does mean something. Every time one of your drivers gets written up in a DOT inspection for the previously-harmless form and manner violation, it costs you 6 CSA points. 2 for the violation, times 3 for the time weight = 6 points. So, review your drivers’ logs, and make sure they are listing an address for the motor carrier, the number miles for the day, totaling the hours on the right, and most of all, listing some type of bill number, or shipper and commodity in the lower left hand corner. You surely would hate to get audited just because your competitors drivers are listing a shipper and commodity on their logs, but your drivers aren’t.
And if anyone can tell me how filling out the shipper and commodity on the log makes the highways safer, you get a free EOBR……
Initial Thought on EOBR Mandate
I read this rulemaking more carefully, and my first thought is, “It’s a ridiculous, unwarranted intrusion into private business, which has nothing to do with safety”. That was my first thought. Here is the money quote from the rulemaking itself, on page 40:
“The Agency is currently unable to evaluate the extent to which the proposed changes to the supporting documents requirements will lead to reductions in crashes”.
In other words, they have no idea if this will reduce crashes or not. Furthermore, they have no idea if this will increase crashes. Nor do they care. More on this later.
DOT Mandates EOBRs in All Trucks
Their rulemaking can be found here.
In brief, all trucks which require logbooks will have to have EOBRs installed 3 years after the final rulemaking is published, which will probably be in the summer of 2011. So, the summer of 2014, you will have to have an EOBR in all of your trucks, if you operate over the road. DOT is accepting comments on their proposal for 60 days.
At this juncture I have no other comments on this.
New Hours of Service Rules
Again, here are the new rules. So what have they done? Well, to somewhat restate their summary in the proposed rulemaking, they have made 9…. yes count them… 9 changes.
First, they are considering changing the 11 hour driving rule to 10 hours, but they have not committed totally to that. They state they think that’s the way to go, but will “carefully consider” all comments to the contrary. Ok, so it will be a 10 hour driving rule, let’s not fool ourselves.
Second, they are allowing you to be on-duty 16 hours twice a week. Everyone gets to be on-duty 16 hours twice a week. Well, right there, that will get them sued by the safety crazies. Of course, it really doesn’t matter what FMCSA publishes, they will be sued by the safety crazies. Ok, moving on…
Third, actual duty time while in your “driving window” (it seems “driving window” is a new term), is limited to 13 hours. In other words, I can drive 10 hours, be on-duty for another 3 hours, and then I must have at least an hour of off-duty time mixed in there. So, if I’m using the 16 hour window, I still can only be on-duty for 13 hours.
Fourth, I am only allowed to drive 7 consecutive hours, and then I must take at least a 30 minute off-duty or sleeper berth break.
Fifth, the 34 hour reset is still available, however, it must emcompass two consecutive periods from midnight to 6am. So, if I get back to the yard on Friday night at 8pm, my 34 hour break would last until 6am Sunday morning. My two midnight-6am periods would be Saturday and Sunday morning, so at 6am Sunday morning, I’d be good to go, just like I am under the current rules. However, if I didn’t make it back to the yard until 1am Saturday morning, I’d lose a whole day. I would have to be off until 6am Monday morning, in order to get my two consecutive midnight to 6am breaks. I guess there will be a mad rush for the regional drivers to get home by midnight, or they’ll turn into pumpkins.
Sixth: You can only use the 34 hour reset once a week…. or as the rule says, once every 168 hours. So, if you use the 34 hour reset on the weekend, you can’t restart your clock until next weekend, even if you take Tuesday and half of Wednesday off.
Seventh: on-duty time is being revised to allow a driver resting in a parked vehicle or a sleeper berth to record that time as off-duty. Also, they are now allowing a team driver to sit up front for 2 hours following an 8 hour sleeper break, and log that time as off-duty.
Eighth: Some type of changes in the oilfield exceptions, which frankly I didn’t read. If my oilfield customers call me, I’ll dig into that further.
Ninth: They are declaring violations in excess of 3 hours driving over the 10 hour driving limit to be “egregious”, which will allow them to assess the maximum penalty allowable by law. That would be $11,000 per violation.
So, what happens next? I believe FMCSA will allow comments for the next 60 days. So, if you want to vent….. go for it. It won’t change anything, but by all means let them know what you think of them. Then, at some point in the spring, they’ll come out with the ‘final rules’, which I suppose will be fairly close to these proposed rules. The new rules will be effective by July, I think, and they’ll probably start enforcing them by October. That’s my best guess of the timetable we’re looking at, I have no special knowledge in that area; it could end up being something totally different.
What do we think of all this? This is not nearly as bad as I thought it would be 6 months ago. I suspected they might tone down the changes due to the outcome of the election. I don’t know if they did or not, but this is somewhat manageable. The biggest loss is the 11th hour of driving. The 13 hour rule…. most regional carriers have plenty of sit-and-wait time during the day, so some of that on-duty time waiting to be loaded or unloaded will now become off-duty time, so nothing will change there, I predict. The changes to the 34 hour reset rules will make it tougher to properly utilize the reset, but maybe not that much tougher. The allowance of two 16 hour “windows” a week is an unexpected bonus, which I assume will draw yet another lawsuit from the safety crazies.
I see two worrisome items in these rules. First, the possibility of an $11,000 fine for a driving violation in excess of 3 hours. I see all kinds of trouble with that. If I short my 10 hour break by 15 minutes, that could easily put me way over on hours the next day. Am I now subject to an $11,000 penalty because I looked at my watch wrong? Who is going to make that decision? The auditors, and the auditors’ bosses. Will there be any uniformity or fairness attached to how they use this new club, or will it be used to grind out huge penalties? This may be clarified in the final rule. Second, they seem to now regulate when you must be off-duty. In other words, the rules say I must be off-duty by my 13th hour, I can no longer be on-duty. If I do not drive beyond this 13th hour, where is the harm? I’m not in a truck, I’m not on the public highway, if I decide I want to work in the office, or the yard beyond my 13th hour, where is the violation? Where is the FMCSA jurisdicition? I suspect this may be an oversight in the proposed rules, which will be corrected in the final rule.
This isn’t over yet, but this gives us some idea of what could be coming in the next year.
BREAKING NEWS… NEW HOS RULES PUBLISHED
I will give you my take on them when I finish reading them…..
EPA Delays Tougher Boiler Regulations
This was in yesterday’s (December 9) New York Times. The Obama Administration has delayed regulations which were scheduled to go into effect in January, 2011, which cut industrial emissions from industrial boilers. The EPA has declared it needs until July 2011 to analyze scientific studies of the new rules, and possibly longer.
What does this have to do with anything? Well, while you all don’t have industrial boilers in your trucks, it does give some insight as to what’s going on in the White House right now. President Obama, heretofore an avowed statist, is putting some brakes on his statist agenda. Apparently, he wants what all first term President want: a second term. And he knows if unemployment is still at 10% come November 2012, he’s history. This is why he’s so eager to extend the current tax rates. Tax hikes will kill whatever recovery is happening. Further job-killing regulations will also hurt the recovery.
The DOT’s new hours of service rules are sitting at the White House right now, undergoing final review and approval. Everyone expects they will cut the number of hours drivers can work. They will cost jobs. They should have been released months ago. Yet they are still in the White House. It’s possible, just possible, the politicians are re-writing them as we speak, so they are not so restrictive and onerous. After all, if the President loses in 2012, he, and all his staff in the White House are on the street. The unelected bureaucrats at DOT will still have jobs. We’ll see, but there’s a small chance the new hours of service rules may not be as bad as expected.
Backup Camera May Become Mandatory
This was in the Los Angeles Times on Saturday December 4. Apparently, the National Highway Traffic Safety Administration issued a proposed rulemaking Friday which will mandate backup cameras on all new cars by 2014.
Oh my. Where does it end? You read about the out-of-control EPA, and how the GOP is going to stand up to Lisa Jackson and her governing-by-fiat EPA, but the EPA is just the tip of the iceberg. What about Ray LaHood and the DOT? Is anyone going to stand up to him? According to the article, NHTSA estimates there are 292 fatalities from backing accidents every year. This rule supposedly will reduce the number of these fatalities. Nowhere in the article, however, does it quote any sort of data or study proving these backup cameras will prevent these type of accidents. If you are in such a big hurry, that you backup without looking, what makes one think you’d look at a backup camera?
My car has a backup camera. I do not find it useful. I use my mirrors, and look where I am going when I back up. I have never had a backing accident. I don’t need the backup camera, but it came standard with the car. According to the article, these cameras add $400 to the cost of the car. I suspect it may be more. I don’t want or need this camera; why should I have to pay for it?
I have no illusions. I am certain this will become a rule. No one has restrained these executive agencies since… well, as long as I can remember, which would be 1990. Democrat, Republican Presidents…. all sides of the same coin. The executive agencies like DOT, EPA, OSHA, etc. simply make rules, rules, on top of rules, and no one stops them. No one in the White House stops them. No one in the Congress stops them. The courts don’t stop them. The President and the Congressmen don’t run the country. The unelected bureaucrats do.
In a few days, FMCSA (which is a part of DOT), will announce the new hours of service rules. They will be more restrictive. Drivers will not be able to drive as many hours. Carriers will be less productive. They will have to hire more drivers to move the same amount of freight. Existing drivers will not be able to work as many hours, and will probably make less money. These new rules will not save one life. There is no data to suggest otherwise. In fact, the DOT has spent the last 7 years arguing the existing rules are safer and save lives. Now they will argue the opposite, just to keep up the facade this is all about safety. It’s the same deal with mandating the electronic on-board recorders. Again, no link to safety, but argue that anyway, just so this government takeover of our lives and businesses feels warm and snuggly.
Somewhere in the last 50 years, we became way too comfortable with the government telling us what to do. Where does it say the government has the right to tell me what kind of safety equipment I have to buy? Where does it say the government can force a business to utilize a GPS-based tracking system on its vehicles? Yeah, I know, the statists all whip out their copies of the Constitution and say, see, says here in Article I, Section 8, the Congress has the power to regulate commerce. It doesn’t matter if the other 4 pages of the Constitution contradict that commerce clause, all they see is “Congress has the power to regulate”, which they interpret to mean, “Congress has the power to regulate without restriction. That’s not what it was intended to mean, and if we keep letting the unelected bureaucrats steal our freedoms, we will all be poorer for it.
ATA is ‘Alarmed’ About the Pending Hours of Service Changes
This comes to us from TruckingInfo.com. It is an article dated today, December 2, 2010. The jist of it is that the American Trucking Association is ‘alarmed’ at the changes about to be made to the hours of service rules.
Without recapping the entire saga of the hours rules, in the not-too-distant past, FMCSA surrendered to the Teamsters and the safety advocacy groups, agreeing to redo their hours of service rules, which have been in place since 2003. The only question remaining is… how much more restrictive will they be? ATA anticipates they will make it a 10 hour driving rule instead of 11, an extension of the 34 hour reset (maybe now 48 hours?), or an elimination of the reset, and God knows what else. The new rule is finished, the White House is reviewing it, and it will be released any day now.
ATA has established a new website to present their position that the existing rules should remain in place. http://www.safedriverhours.com/index.html. It looks like the new website isn’t quite finished, as there seems to be a good deal of gobbledegook on the site. Anyway, in this case, I wish ATA luck, as the existing rules should stay in place. They won’t, but they should.
Another Thought About the Potential EOBR Law
Something else about this Commercial Driver Compliance Improvement Act which is sitting in the Senate. I don’t know there’s any statistics showing these EOBRs reduce crashes. I’m almost sure of it, just because I don’t see the word “safety” in the name of the law. Oh, I suppose the EOBR manufacturers can produce statisitics, but then again, I bet you could find statistics to argue just the opposite. My gut tells me the EOBRs will do exactly nothing to reduce crashes. As I mentioned previously, I have two customers who have installed the EOBRs. They have not seen a reduction in crashes. They have seen an increase in moving violations though. I suppose drivers are rushing more than ever in order to get everything done in 14 hours.
It seems similar to the cameras at redlights. The politicians tell us these cameras are for safety, when everyone knows they are for revenue. The statisitcs show, if anything, there are MORE crashes at the red light camera intersections, as drivers slam on the brakes, run into each other, speed up to beat the light, and other un-natural driving, just to avoid the camera. Or, the story I posted about states who have no-texting laws, who are seeing more accidents, as drivers now hide their phones while texting, instead of holding them up so they can see where they’re going. There are limits to how much you can regulate human behavior. Well, I guess we’ll see what happens; the EOBR debate is just beginning.
