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Hearing Raises Political Profile of Hours Rule

November 30, 2011

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A new piece of information emerged from yesterday's hearing on the pending hours of service rule. Federal Motor Carrier Safety Administration chief Anne Ferro said that preliminary estimates show a possible uptick in truck-related fatalities, from 3,360 in 2009 to "approaching 4,000" in 2010.


Even if that increase is confirmed, however, it will not materially change the downward trend in truck accidents over the years -- a trend that supporters of the current hours rule point to as proof that the current rule is not detrimental to safety.

"The rule appears to be a solution in search of a problem," said Rep. Jim Jordan, R-Ohio, chairman of the Subcommittee on Regulatory Affairs. "It appears the current rules are working and strike a fair balance."

The questioning from the dais broke down along party lines. Jordan and other Republican members took the view that the pending rewrite of the rule is an example of excessive government regulation. Democrats contended that safety deserves as much consideration as cost.

Even the shorter work hours in the proposed rule do not mean that drivers will get their proper rest, noted Rep. Darrell Issa, R-Calif., chairman of the House Oversight Committee of which the Regulatory Affairs panel is a unit.

"Nothing in this regulation is going to guarantee that the driver is going to go to bed and stay there for eight hours," Issa said. "Drivers can meet all the requirements of the regulation and still not be fit."

Rep. Dennis Kucinich, D-Ohio, the ranking minority member of the panel, said the hearing was framed as an issue of cost to the consumer but it is more appropriate to focus on safety. "The evidence suggests that fatigue is a major factor in crashes," he said.

Democrat Bruce Braley of Iowa said, "It's not the Federal Motor Carrier Profit Administration."

Braley went on to say that maybe the reason the trucking industry cannot find enough qualified drivers in a time of 9% unemployment is because the industry's workplace conditions and pay do not attract would-be drivers. "One reason may be the hours of service requirement," he said.

The hearing is not likely to lead to any legislative action, said a congressional source speaking on background. But it does raise the profile of the hours of service issue as the White House Office of Management and Budget considers the changes that the safety agency is proposing.

The details of the changes will remain sealed until OMB has completed its review, possibly before the end of the year, but trucking interests are on high alert based on what FMCSA proposed in earlier stages of the rulemaking process.

Among other changes, the agency said it is leaning toward cutting driving time from 11 to 10 hours a day. It also proposed giving drivers a one-hour break during the day by limiting actual duty time within the 14-hour driving window to 13 hours. Another significant change would modify the 34-hour restart to include two periods between midnight and 6 a.m., to be used only once a week.

The trucking and shipping community believe these changes would not improve safety and would add significant costs to doing business. American Trucking Associations is prepared to sue if the agency goes ahead as it has proposed.

And the safety advocacy community is prepared to reinstate its suit against the current rules if the agency does not tighten the current rule.

Henry Jasny, vice president and general counsel for Advocates for Highway and Auto Safety, told the panel that the pending HOS rule will have a positive impact on safety and the economy. "The current HOS rule has been struck down two times by the Court of Appeals, and truck driver fatigue remains a serious problem that is killing and injuring too many motorists and truck drivers," he said.

FMCSA, for its part, is focused on reducing excessively long work hours that increase the risk of fatigue-related crashes and long-term health problems for drivers, Ferro told the panel.

"A rule cannot ensure that drivers will be rested, but it can ensure that they have enough time off to obtain adequate rest on a daily and weekly basis," she said.

Other highlights from the testimony:

* Ed Nagle, president and CEO of the Nagle Companies, a refrigerated and dry truckload carrier based in Walbridge, Ohio: "This current proposal is predominantly influenced by Teamster union LTL daytime-only drivers that represent less than 10% of the industry. Placing such great emphasis on statistics and studies based on an irrelevant percentage of the entire trucking industry is a smokescreen. In order for our company just to break even with the proposed constraints, we would need to raise rates we charge shippers 20%, which in turn will have serious hyper-inflationary consequences on our economy."

* Glen Keysaw, executive director of transportation and logistics for Associated Food Stores: "Since the inception of the current HOS rules, Associated has travelled 52 million miles. During this same time period we have had eight preventable DOT recordable accidents. This translates to .15 accidents per million miles, compared to the national average of .47 accidents per million miles. Clearly, no change is warranted based on this data."

* Robb MacKie, president and CEO of the American Bakers Association: "The number of fatal accidents and injuries involving large trucks have declined more than one-third, and are now at historically low levels. Given these facts, we find it difficult to understand the rationale for additional regulation, especially one that even FMCSA recognized would disproportionately negatively impact the short-haul segment of the trucking industry of which the baking industry is a part."

* Frank Miller, director of logistics for furniture retailer Badcock & More: "For Badcock, a reduction in driving time from 11 hours to 10 would affect an estimated 11% of loads, resulting in an approximate cost of $1.5 million, forcing the company to increase its fleet size and pay higher rates for trucking."

* Jesse David, senior vice president of Edgeworth Economics, the firm hired by ATA to analyze the agency's proposed revisions to the rule, said he found three major problems. The agency based its calculations on an outdated figure for the frequency of large-truck crashes, it inappropriately changed its estimation of fatigue as a factor in crashes from 7% to 13%, and it used unsupported assumptions about the effect of sleep on mortality. "When I correct for these (and other issues), I find that the new rule would result in a net cost of $320 million annually, rather than a net benefit of $380 million annually, as calculated by FMCSA."

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