Turning Back the Clock
Since the last American hours-of-service rules took effect in 2004, truck-related crash fatality rates in the U.S. have been steadily dropping, culminating last year with the lowest level ever on record. Impressive right? So much so that after five years in operation, the U.S. Department of Transport (DOT) has decided to scrap the current rule, go back to the drawing board and chalk up a new one.
In a joint statement, Public Citizen, Advocates for Highway and Auto Safety and the Teamsters announced that they agreed to put down their swords and halt their third court challenge of the rules on the assurance that the DOT will redraft new regulations within nine months and publish a new final rule in 21 months.
Twice, courts forced the FMCSA to revise the rules. In 2004, the U.S. Court of Appeals threw them out because they failed "to consider the impact on the health of drivers."
The government complied with a court order to tighten up the rules -- much to the chagrin of many carriers and drivers -- by dumping the popular split sleeper berth provision. Drivers were required to take eight consecutive hours off rather than be allowed to split their 10 off-duty hours into two periods of their own choosing.
The rules, based heavily on circadian sleep rhythm science, generally allow drivers to drive 11 hours, one more than previously permitted, but require them to take more time off in a day, including the eight consecutive hours off. Plus, the rules shut drivers down at 60 hours in a week.
In 2007, after another round in court, FMCSA was ordered to better explain its justification for adopting the 11-hour drive time and 34-hour restart provisions. The agency did that and the provisions have since been upheld, triggering the last challenge by Public Citizen et al.
The American Trucking Associations (ATA) has spent years refuting "myths", oft-repeated by mainstream media, that the current rules allows significantly longer driving and on-duty times in a week than the pre-2004 rules.
"Longer hypothetical hours in driving and duty schedules" envisioned by critics "requires an imaginary world with nearly perfect logistics," states ATA. "In the real world, drivers have found that the restart gives them more rest and time off, not less." Ironically, although the groups claim to advocate the well-being of drivers, the biggest complaint wheelmen have is that the split sleeper allowance from the original 2004 rule was scrapped after the first challenge.
"The critics just don't get it," says Canadian driver Robin Doherty. "There is nothing wrong with the rules except for the removal of the split sleeper option. If there is anything in the rules that is contributing to tired drivers behind the wheel it would be that."
Curiously, neither the DOT nor its Federal Motor Carrier Safety Association (FMCSA) arm issued an official press release after the announcement from Public Citizen. Asked for a comment by Today's Trucking, U.S. Transport Secretary Ray LaHood emailed the following statement:
"Safety is our highest priority at the [DOT] and so we believe that starting over and developing a rule that can help save lives is the smart thing to do."
But, as ATA President Bill Graves responded in a letter to the department, it's "extremely perplex[ing]" that the DOT would backtrack after all this time considering the overwhelming data that highway safety has improved under the existing rules.
"As officials have pointed out on many occasions, both the available scientific research and the safety data provide a strong and substantial basis for retaining the existing HOS rules," Graves said in his letter.
His Canadian counterpart, David Bradley of the Canadian Trucking Alliance (CTA) says there's little doubt the move is politically motivated. "Although somewhat of a bombshell, it was not out of the question that the anti-truck groups would prevail considering the new administration is talking tougher with respect to truck safety and it is one that owes a lot of its political credit to the unions."
According to Washington-based online logistics magazine DC Velocity, behind-the-scenes powerbrokering was definitely at play.
The publication revealed that the DOT caved-in because a senator loyal to unions was interfering with the nomination of former Baltimore Trucking Association boss Anne Ferro as FMCSA administrator. It remains unclear if Ferro, who defended the current rules during her Senate testimony, was aware such a deal was being negotiated before accepting the nomination.
WINDS BLOWING NORTH?
While Bradley doesn't think a rewrite stateside would immediately undermine the Canadian federal rules (which, he notes, have "their own problems" being adopted by all the provinces), Bradley did say that it "will certainly be a big issue for cross border trucking" if the two sets of rules "become more incompatible."
(A comment on the matter from Transport Canada officials was not received upon request).
Owner-operators Business Association of Canada (OBAC) executive director Joanne Ritchie doesn't think Canada would be able to hold firm on its own rules for very long if the two regimes differ significantly.
"Both countries cannot manage totally different regulations," she says, adding she's disappointed by the revision, but admits it was probably "unavoidable [since] the pressure groups have been hammering for a revision for years."
She says the timing couldn't be worse for independent drivers who are already overburdened with compliance costs in this depressed economy.
Instead, the Owner-Operator Independent Drivers Association (OOIDA), who were interveners in the recent court action, says that opening the books means an opportunity to address other safety issues, such as exploring shippers' responsibility for loading and unloading, allowing more short rest periods, and including a split sleeper berth for team operations. "Truckers need the flexibility to get rest when needed rather than more restrictive rules," said Jim Johnston, OOIDA president and CEO.
The CTA's David Bradley says carriers as well would welcome some of those provisions, but believes they're wishful thinking on the part of truckers.
"I don't have a crystal ball, but the chances that things get tighter as opposed to more flexible are significantly greater today than they were [before]. Clearly the things the opponents have focused on -- the 11 hours and 34-hour restart -- are going to be under the microscope. It's going to be a fight to keep those things."
Bradley also points out that, ironically, Canada's rules are arguably more flexible than the Americans' and yet "safety hasn't at all been denigrated," north of the border. As such, despite their safety record, the U.S. rules have always been at the mercy of political whims.
Joanne Ritchie too echoes a thought expressed by former FMCSA director Annette Sandberg, who, before leaving the agency in 2006, said she didn't think HOS would ever be settled in our lifetime.
"This debate," says Ritchie, "has been going on since 1995. Fifteen years later, we still don't have a rule that satisfies everybody. If the industry hasn't been able to agree on a rule in 15 years, we will likely never will get one."
For Public Citizen and the Teamsters, though, "never" could be closer than many truckers would like to think.