By Dick Larsen
The 1940 movie “They Drive by Night” opens with owner-operators George Raft and Humphrey Bogart telling a fuel attendant after filling up: “Put it on the tab, but don’t worry — I’m honest.”
“I know,” the attendant replies. “But truckers are always broke.”
April 2003 — FMCSA published revised HOS rules, gives industry until January 2004 to prepare for them.
June 2003 — Public Citizen, Parents Against Tired Truckers and Citizens for Reliable and Safe Highways challenge the new rules.
January 2004 — In response, FMCSA says enforcement will be “discretionary” for a month and the new rules should remain in effect.
July 2004 — U.S. Court of Appeals for the District of Columbia Circuit vacates the new rules because the FMCSA did not consider health issues — current rules to remain in place 45 days, the court says.
September 2004 — OOIDA supports motion by FMCSA and the U.S. Department of Justice to stay the decision. The agency wants additional time to address the concerns of the court.
September 2004 — Safety groups file, asking that the court refuse any effort to gain an indefinite stay.
Not much has changed since 1940, many drivers would say — except that small-business trucking regulations now blanket almost every aspect of the profession, while federal authorities still wink and nod at industry practices that contribute to health problems.
But for now, a three-judge panel of the U.S. Court of Appeals in Washington, DC, has stalled the new HOS rules. Public Citizen’s Joan Claybrook, Parents Against Tired Truckers and Citizens for Reliable and Safe Highways filed the suit.
The court agreed with their position, saying FMCSA should return to the regulatory drawing board to consider two issues, among others — the use of electronic on-board recorders and its statistical relationship to driver health issues.
Information provided by FMCSA’s Terry Shelton to Land Line included the following: “I have worked for DOT more than 18 years in statistical analysis and information relating to traffic safety.
“... In order to evaluate the effect of the new HOS rule on the physical condition of CMV drivers, FMCSA has modified a contract with the Transportation Research Board of the National Academy of Sciences to review, first, the literature published between 1975 and the present concerning the health implications of the HOS regulations for CMV drivers, and, second, the literature relating to CMV drivers, HOS and fatigue from 1995 to the present.
“The review is expected to be complete in about (five) months.”
Most drivers think this recent exercise is akin to fixing a diseased tooth by pulling it out to fill the cavity.
This time, drivers tell Land Line they hope federal authorities will find a forum so they can describe long-neglected safety and health problems. Those include lack of parking; too much waiting time spent at loading docks; inadequate cooperation when it comes to scheduling; low or no compensation from shippers and receivers; and inconsistent state enforcement.
As one driver told Land Line: “I feel these groups that have filed this appeal did not ask drivers what they thought or if they were getting enough rest — all they seem to care about is getting those on-board recorders in our trucks.”
OOIDA opposes any government effort to mandate EOBRs inside trucks.
Meanwhile, FMCSA asked the court for six more months to “get things right.”
“If granted, the motion would mean the new … HOS rules, announced in April 2003, would remain in effect for the time being. After consultations with federal and state officials, the agency believes a stay is necessary to avoid substantial disruption in the enforcement of HOS requirements, as it remains unclear as to what safety regime would emerge,” Annette Sandberg, FMCSA’s administrator, said.
Jim Johnston, OOIDA president, said the association supports the FMCSA’s request. However, OOIDA thinks that any return to the old rules would be misguided.
“We believe that an abrupt return to the ‘old’ HOS rules would create confusion, uncertainty and frustration among truck drivers and the enforcement community,” Johnston wrote in a letter to Sandberg. “As a result, compliance and enforcement of the HOS rule will be more difficult and safety would be compromised.
“The new rules should be left in place to preserve continuity in compliance and enforcement until they can be revised in accordance with the court’s opinion.”
Further, OOIDA officials think meaningful HOS reform has once again moved to the back burner.
Johnston wants the FMCSA to address several issues that also contribute to compliance problems, “such as the impact of loading and unloading operations on driver fatigue, the control that other parties have on drivers’ schedules and the need to bring such parties into the enforcement scheme.”
He also said drivers fear becoming victims of confusion among the enforcement community. States enforce HOS rules, but different states require different enforcement criteria.
“Some states adopt federal rules by reference, but others require state legislative action,” Johnston said. “It would be unacceptable for long-haul drivers operating in interstate commerce to face the enforcement of a patchwork of inconsistent rules among the states.
“OOIDA is grateful to FMCSA for their efforts in rewriting regulations that were drafted at a time when today’s highways, trucks and scientific understanding could not have been conceived. The agency painstakingly went through over 50,000 public commentaries and spent more than a few years in trying to formulate HOS rules that would increase the safety and efficiency of the trucking industry. The new HOS regulations have the potential to make a significant, positive impact on highway safety.”
Meanwhile, OOIDA Executive Vice President Todd Spencer said member reaction varies.
“We look at the whole mess with mixed emotions,” Spencer said. “It is next to impossible for FMCSA to hope to create HOS regulations that prevent fatigue with drivers spending as many hours as they do on loading and unloading docks.
“The old rules didn’t directly address this issue, and neither do the new ones. But until shippers, receivers and others can be drawn into the real issue of wasting drivers’ time to the tune of 33 to 43 hours per week, we won’t have HOS rules that will promote safety or drivers’ health.”
The view on EOBRs from the court, FMCSA
The appeals court said the FMCSA should have collected and analyzed data on the costs and benefits of requiring electronic on-board recorders. FMCSA maintained the costs and benefits of EOBRs were unknown, because cost estimates vary enormously.
“But nothing prevented the agency from itself estimating the costs,” the court said in its ruling. “The agency’s job is to exercise its expertise to make tough choices about which of the competing estimates is most plausible. We cannot fathom, therefore, why the agency has not even taken the seemingly obvious step of testing existing EOBRs on the road.”
Additional court concerns
The court said the lack of any consideration of driver health issues was enough by itself to throw out the new rule. Consequently, the appeals court didn’t fully consider other objections stated by the petitioners, but said it had several concerns about those objections.
Increase in driving time
For example, the FMCSA justifies increasing maximum driving time by citing the rule’s overall decrease in the daily driving-eligible “tour of duty” from 15 to 14 hours. It also said the increase in mandatory off-duty time from eight to 10 hours justified the increase in daily driving time in light of the cost-benefit analysis it had conducted.
“We have our doubts about whether these two justifications are legally sufficient,” the court’s ruling said.
Sleeper berth concerns
The appeals court also questioned studies the FMCSA cited about retaining sleeper berth exceptions.
“For one, the agency’s citation to the study for the idea that sleeping in a berth is less restorative than sleeping in a bed supports eliminating, not retaining, the exception. Similarly, the agency’s observation that solo drivers less effectively use sleeper berths than do team drivers also supports eliminating the exception for solo drivers.
“In sum, we have grave doubts about whether the agency’s explanation for retaining the sleeper-berth exception would survive arbitrary and capricious review,” the court ruled.
Thirty-four hour restart
“One further problematic aspect of the agency’s explanation for the rules concerns the 34-hour restart provision,” the ruling said.
The FMCSA’s explanation seems sound, the court said, but “it does not even acknowledge, much less justify, that the rule … dramatically increases the maximum permissible hours drivers may work each week.”
Following are some thoughts from professional small-business truckers and others on this most recent development, as submitted to Land Line.
“I am gravely concerned about dropping the new HOS (rules) because for the first time in my 20 years of driving, I have had the best rest I’ve ever had. I have been running 100 percent compliant the last three years, and only in the last seven months have I felt I have been getting the rest I need without pressure from my company to make runs when I was tired.”
“The most problematic issue I have seen while riding with my husband in the truck that greatly affects the safety of not only the general public, but the professional driver … is the non-availability of safe havens for truckers to be able to pull over and sleep. If you don’t get into the truck stops before 10 or 11 at night, nine times out of 10, you will not get a spot. The rest areas are the same, maybe worse, because lots of times, after dark, even if you need a nature call, you can’t find (any) place to park.”
“People working ‘normal’ jobs have no idea of the daily challenges faced by drivers. I would imagine when the Court of Appeals judges, Joan Claybrook or FMCSA officials travel, they are not hoping to find a place to park or waiting two hours for a shower.”
“Truck drivers have to work with (and) against everyone else’s schedule, mainly shippers, receivers, dispatch and aaah yes … the DOT logbook.”
Meanwhile, drivers might donate some popcorn to the regulators so they might view “They Drive at Night,” to see what’s changed — and what still begs for change — when it comes to increasing driver safety.
They’ll discover a scene where Bogart drives off the road and his truck flips. The reason: The shipper said a load must be delivered in time to ensure timely delivery of a paycheck — despite the fact that both Bogart and Raft were too tired to make the run.
Dick Larsen may be reached at email@example.com.