Truckers Lose Battle to Delay HOS Implementation, But the War's Not Over

July 9, 2013

Despite several calls by trucking industry representatives to delay implementation of truck driver hours of service changes, the new rules took effect July 1. Consequently, truckers need to be in compliance with the changes now or risk being cited for violations that will adversely impact CSA scores.

The trucking industry took a last stand in an attempt to delay implementation of the rule changes. Testifying before the House Transportation and Infrastructure Committee's panel on highways and transit just days before the rules were due to go into effect, Steve Williams, chairman and CEO of Maverick USA, told congressmen changes to federal hours-of-service rules are costly and unsupported by data or research.

"FMCSA's motivation to change these rules was not based on evidence demonstrating a problem," said Williams, a past chairman of ATA and the current chairman of the American Transportation Research Institute. "FMCSA's three paragraph statement in the rulemaking called 'The Purpose and Need for Regulatory Action' did not cite any research or data analysis showing a problem. That speaks volumes."

Williams cited an ATRI report released in late June that found "statistically significant" declines in the number of crashes under the basic framework of the current rules. Specifically he pointed to a 31% drop in preventable collisions between 2004-2009.

"The industry will lose operating flexibility and productivity, and the rules will increase driver stress and frustration," he said, noting an estimated 1.5% to 4% reduction in productivity will translate to "between $500 million and $1.4 billion in lost productivity."

Williams also said that it is "difficult, bordering on impossible, to accept FMCSA's suggestion that corresponding benefits will result from these changes and that they will somehow offset all the costs."

Pointing to the ATRI study, Williams said "FMCSA's claim that 15% of drivers work more than 70 hours per week to be grossly overstated" and that after correcting that false assumption "the pending restart changes would have a net annual cost (not a benefit) to industry and society."

Because of FMCSA's flawed analysis and process, Williams called on Congress to postpone the July 1 effective date of the rules until the agency completes mandated research on the rule. He also asked Congress to request independent analysis of the regulation and to require FMCSA to report to Congress on any future changes to the hours-of-service rules.

Congress, to date, has not intervened and FMCSA Administrator Anne Ferro denied all requests to delay implementation, stating that she believes the new rule will be upheld.

However, the rules could still be overturned. The United States Court of Appeals for the District of Columbia still has to issue its long-awaited opinion on the petition for review of the new rule brought against the Federal Motor Carrier Safety Administration by both the trucking industry and safety advocates.

Congress has also mandated a field study on the 34-hour restart provision to completed later this year.

in MAP-21, the surface transportation bill passed last year. Results of that study could also result in changes in the rules.

The ATRI study focuses on the impacts, in terms of costs and benefits, of the two 34-hour restart provisions, which are defined as follows:

1) Use of the restart is limited to one time per week (once every 168 hours from the beginning of the prior restart).

2) A valid 34-hour off-duty restart period must include two periods from 1 a.m. to 5 a.m.

To date, the key document assessing the impacts of the restart provisions (both in terms of costs and benefits) is a 2011 Regulatory Impact Analysis (RIA) produced by FMCSA.1 Through this analysis the agency found a net benefit for the new HOS rules of $205 million annually. Using FMCSA's data, the American Transportation Research Institute (ATRI) estimated that $133 million of that net benefit calculation is attributed to the restart provisions.

According to FMCSA, the costs and benefits of the restart provisions are limited to the 15% of the 1.6 million over-the-road driving population with the most intense driving schedules. This limitation forms the basis for two significant problems with the FMCSA analysis, ATRI states:

1) Many drivers in the remaining 85% of the population will likely experience productivity losses due to the restart provisions; these costs, however, are not included in the FMCSA assessment.

2) The 15% of drivers with the most extreme driving schedules are practically nonexistent according to data representing normal industry operating patterns; therefore, there are only limited costs or benefits associated with this population.

FMCSA identified this population using logbook data sourced from compliance reviews and safety audits as the foundation of their analysis. These data are by their very nature skewed toward drivers operating at the higher limits of available hours. As a result, the FMCSA analysis greatly overestimates the benefits of the restart provisions, ATRI charges, while at the same time ignoring the productivity losses that all driver-types will experience under the new HOS rules.

With a goal of developing a more accurate analysis of the costs and benefits of the changes to the 34-hour restart, ATRI assembled a large and unique set of logbook and survey data. These data were critical in documenting how the restart provisions would impact motor carrier and driver operations.

ATRI first conducted a survey of more than 500 motor carriers and more than 2,000 drivers. Through this data collection and analysis effort it was determined that the majority of respondents expect a moderate to major impact from each of the restart provisions. These results are far different from the 15% of the driving population that FMCSA indicates will see a cost due to the restart provisions. Though both provisions are anticipated by the industry to have a moderate/major impact on operations, the 1 a.m. to 5 a.m. provision was cited as an issue by a larger percentage of both driver (74%) and carrier (84%) respondents. Additionally, a majority of respondents in both the driver and motor carrier categories expected a loss of flexibility during peak periods, increased exposure to congestion, increased driver stress and decreased driver income as a result of the restart provisions.

ATRI also obtained and analyzed logbook data to understand normal operating patterns within the trucking industry. The analysis tested the hypothesis that FMCSA's average weekly work time groupings were incorrect. The FMCSA figures were compared against the logbook dataset and ATRI found that between 0% and 2% of drivers actually fall into the two categories in question, with the most likely scenario having 0% in FMCSA's "Extreme" group and 0.27% in the "Very High" group. Given that FMCSA's costs and benefits are predicated upon the assumption that 15% of drivers fall into the Very High and Extreme categories, additional tests were conducted.

ATRI next assessed how the new driver group assignments impacted FMCSA's estimate of productivity loss, safety benefits and health benefits. To do so, the research team reviewed the methodology described in the RIA and produced a "best-possible" replication of the calculation tables based on the available information. The results of these calculations were compared with summary statistics from FMCSA's Option 3 Cost, Benefit and Net Benefit table to assure the quality of the estimates.

The normal industry operating patterns generated by the ATRI data were then incorporated into the FMCSA methodology. ATRI's calculations indicate that implementation of the 34-hour restart provisions will result in a net loss to the industry.

Many additional costs were not included in FMCSA's analysis, particularly those related to the expected shift of some nighttime drivers to daytime operations. By limiting its productivity calculations to lost work hours for drivers in its extreme intensity groupings, FMCSA ignores costs related to increased congestion exposure and increased restart times which will be experienced across a much larger percentage of the driving population, ATRI says. Components of the restart provisions may also result in shipper costs, scheduling issues and could exacerbate the ongoing driver shortage.

FMCSA finds a net benefit of $133 million for the restart provisions. ATRI conducted the same analysis using driver groupings based on normal operating patterns. Using the "medium 7-Day" scenario that is described in this report, the cost/benefit calculation indicates an estimated industry cost of $95,730 annually. In addition, a series of reasonable productivity costs not captured by FMCSA are calculated using the same driver groupings and methodology to monetize productivity loss, resulting in a projected loss to the industry ranging from $95 million to $376 million.

It should be noted that none of the net benefit or cost figures include FMCSA's estimated $40 million annual cost for motor carrier and driver training and reprogramming in response to the rule, ATRI says.

"By following the methodology the ATRI research team's cost/benefit analysis produced a strikingly different outcome than was found by FMCSA. ATRI's analysis identified significant errors in FMCSA's methodology for calculating industry costs and associated benefits," researchers said.

Further analysis should be conducted by the agency related to impacts beyond hours lost by drivers in the extreme groups, ATRI charges, and suggests FMCSA should consider repeating their analysis using a non-biased logbook dataset.

A copy of this report is available from ATRI at www.atri-online.org.

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