"Frankly, folks, the hours of service rule is something that is going to be litigated for a long time," said Hill, speaking to the National Private Truck Council Tuesday.
Hill is now consulting with trucking companies as principle of The Hill Group. He was involved in the hours of service saga during the mid-2000s rewrites. Under his watch, he said, the agency could not justify the 10-hour driving time and changes to the 34-hour restart under the cost vs. benefits analysis required by law to be done by the White House Office of Management and Budget for major regulations.
"During my tenure I made several trips over to the White House to talk about hours of service rules because of the significant impact it would have on the economy," Hill said. "So there was tremendous concern about the implications of this rule, even in the midst of a vibrant economy."
So how is the FMCSA justifying the cost vs. benefits today? In January 2009, Hill explained, the value of a human life at the DOT changed from $3 million to $6 million. By doubling that value, the DOT was able to make the cost vs. benefits numbers work.
"If you go through this proposed rule, you will see a lot of the benefits that accrue to this rule are through driver health related issues," Hill said. "And I think there are some driver health issues in that rule. But I will tell you when I was at the agency, there was very little data correlating the cost to those driver health benefits. I'm sure there have been some improvements in terms of quantifying that data, but still, it's very scarce. So if the agency moves ahead with the hours of service rule and people bring suit against it, you can be sure they're going to go after the cost-benefit part of it."
Hill said it's going to take Congressional action to stop the cycle.
His experience with the agency has led Hill to the belief that it's the political powers that be who are pushing the buttons, not the regulatory appointees.
"I can assure you that [current FMCSA administrator] Anne Ferro is getting marching orders," Hill said. "Let me remind you she had been confirmed only one day, when the very next day, the DOT secretary announced an agreement with Public Citizen on a moratorium for the lawsuit and a rewrite of the hours of service rule. She had no input in that. I am sure it is difficult for her to work through this issue because there are people at the White House that are very sympathetic to labor."
"I do not think there will be a resolution to the hours of service rule until the politicians get involved and do something by statute," Hill predicted. "I know right now our representatives and senators are preoccupied with financial decisions and it's going to be difficult for them to even address the highway bill, but I believe it's going to be essential for people in Congress to issue some sort of moratorium."
Hill believes if Congress issued some sort of stay on changing the hours of service rules while the agency went ahead with its proposal for mandatory electronic onboard recorders to track driver hours, data could be collected that would back up the safety of the current hours of service. "Let that become the proving ground for highway safety in terms of HOS compliance."
In fact, Hill said, one of the things he regrets about his time as administrator is that he did not broker some sort of agreement between the trucking industry and Public Citizen and the other safety groups that have challenged the hours of service, which would have left the hours of service rules alone in exchange for mandatory EOBRs.