One more round for FMCSA’s hours rules

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Updated Apr 5, 2010

The Federal Motor Carrier Safety Administration may be headed back to the drawing board once again in its effort to adopt hours-of-service regulations that will survive judicial scrutiny. Citing mostly procedural shortcomings, the U.S. Court of Appeals for the District of Columbia Circuit on July 24 invalidated two significant pieces of the agency’s rules – the increase of the daily driving limit to 11 hours, and the 34-hour restart option for drivers’ weekly on-duty limits.

A three-judge panel also rejected the lawsuit filed by the Owner-Operator Independent Drivers Association. With the support of several trucking organizations, OOIDA had objected to FMCSA’s changes in how drivers could use sleeper berths for satisfying mandatory rest requirements. On its own, OOIDA also contended that FMCSA failed to deal with loading and unloading issues as required by Congress in 1995, and it challenged the 14-hour window for driving.

Not showing its work
In the court’s eyes, FMCSA’s failings, at least at this stage, are mainly in how the agency put the rules together, not in what the rules require. FMCSA “violated the Administrative Procedure Act because it failed to give interested parties an opportunity to comment on the methodology of the crash-risk model that the agency used to justify an increase in the maximum number of daily and weekly hours that truck drivers may drive and work,” said Judge Merrick Garland, who wrote the opinion for the three-judge panel.

By failing to disclose changes in its statistical model for analyzing risk until the final rule – too late for public comment – FMCSA committed a grave error in the court’s view. If that wasn’t damning enough, the agency failed to explain critical elements of the methodology, the court said.

“Although we apply a deferential standard of review to an agency’s use of a statistical model, we cannot uphold a rule based on such a model when an important aspect of its methodology was wholly unexplained,” Garland wrote.

The court’s decision tracks closely with the focus and tone of the Dec. 4 oral argument in which Garland grilled the government’s attorney on methodology (See “Journal,” January 2007). Finding the lawyer’s answers unsatisfactory, Garland declared, “You are not a statistician. This is a debate among statisticians.” Chief Judge Douglas Ginsburg stressed the need for FMCSA to disclose its methodology. “Any number of times we have said ‘show your work’,” Ginsburg told the government’s attorney.

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The details of the statistical debate are complex, but Public Citizen and its allies essentially argued that FMCSA’s regulatory impact analysis for the final rule – without an opportunity for comment – presented data on the crash risk involved in driving beyond 10 hours in such a way as to mask a jump in that risk during the 11th hour of driving. Public Citizen’s argument on the 34-hour restart is simpler: FMCSA just didn’t explain its failure to account for cumulative fatigue due to increased driving. The appeals court agreed on both counts.

A sleeper issue
As for OOIDA’s complaints, the court effectively tackled two at once by declaring that the 14-hour limit was how FMCSA reasonably chose to deal with the fatigue-related issues involved in loading and unloading. “Although OOIDA may have preferred that FMCSA deal with the problem in a different manner, the statute does not mandate that the agency reach any particular substantive result,” Garland wrote.

The court also rejected OOIDA’s challenge to FMCSA’s changes in the use of sleeper berths to split rest. Under FMCSA’s 2005 rule change, rest taken in the sleeper could be counted only if it lasted at least eight consecutive hours. In addition, drivers would have to take a two-hour break during the following workday.

Among other things, OOIDA argued that the agency did not provide adequate notice of its intent to make such a significant change, but the court pointed to language in the notice of proposed rulemaking declaring that FMCSA was considering something very close to what it finally adopted.

The California Trucking Association, one of several groups that intervened in the case on the sleeper berth issue, challenged the eight-hour requirement on the ground that the record does not support FMCSA’s finding that drivers need seven to eight consecutive hours of sleep each day. For example, CTA contended that there is no evidence that drivers who split their sleep into two shorter periods are more likely to be involved in fatigue-related accidents. “A review of the record, however, reveals ample support for FMCSA’s view,” the court said.

Deja vu all over again
This is the second time the appeals court has thrown out some or all of FMCSA’s hours-of-service regulations that kicked in on Jan. 4, 2004 – the first major rewrite of the rules since they were adopted in the late 1930s. In the first attempt – referred by the court as the 2003 rule since that was when it was published – FMCSA adopted a 14-hour window for driving to replace the previous “on the clock, off the clock” structure that it believed promoted fatigue. And the agency added two more hours to the minimum rest period.

To help offset some of the potential productivity loss, the agency preserved the longstanding flexibility for drivers to use sleeper berths for splitting mandatory rest. It also allowed one more hour of driving before mandatory rest and offered the ability to restart the clock on weekly duty-time limits by taking 34 consecutive hours off duty.

In July 2004, the court vacated the entire rule on the grounds that the agency failed to consider driver health in the rulemaking as mandated by Congress. The court made clear, however, that it had other problems with the hours rules, including the additional driving, the restart and continued acceptance of split rest.

The court also faulted FMCSA for failing to consider mandating electronic onboard recorders, but the agency apparently is on solid ground now since it is conducting a separate rulemaking on EOBRs.

In its 2005 rule responding to the appeals court, FMCSA basically stood by its 2003 rule with one major exception: The new limits on use of the sleeper to split rest. In sum, two lawsuits in three years have cost the trucking industry three significant regulatory options – 11 hours of driving, a 34-hour restart and flexible use of sleeper berths for obtaining rest.

So now what?
In the days following the decision, it was unclear exactly what would happen next. “We are analyzing the decision issued today to understand the court’s findings as well as determine the agency’s next steps to prevent driver fatigue, ensure safe and efficient motor carrier operations, and save lives,” FMCSA said on July 24. “This decision does not go into effect until Sept. 14, unless the court orders otherwise.” The Sept. 14 date follows from the 45-day period for reconsideration plus another seven days for the court’s order to take effect. So for now, drivers may continue to drive for 11 hours per shift and take advantage of the 34-hour restart of cumulative on-duty limits.

The American Trucking Associations said it would seek a stay from the appeals court to keep current rules in place until FMCSA provides the court with explanations for the 11 hours of driving and the 34-hour restart. The good news for the industry is that the flaws were procedural in nature and correctable, the association said.

“ATA believes the existing rules have proven to be a significant improvement over the old rules in terms of reducing driver fatigue and related incidents,” said President Bill Graves. “Motor carrier experience and FMCSA data dramatically illustrate this. ATA plans to provide additional real-world documentation of the effectiveness of the current rules.”

If judicial appeals fail, Congress could intervene, although there is very little time for that option. When the appeals court rejected the first revised hours-of-service regulation in July 2004, Congress held the new rules in place for about a year while FMCSA worked on a new version. A Congress controlled by Democrats might not be be so inclined, but since the flaws cited are essentially procedural, lawmakers might agree to hold the current rule in place temporarily.

The conventional wisdom is that FMCSA can fix the problem in the short run by conducting a new rulemaking on just the 11 hours and 34-hour restart, mainly to provide notice of its reasoning. But Public Citizen certainly would try to drag FMCSA back to court over the merits, which the appeals court declined to address.

For a copy of the appeals court decision, see the online version of this article at this site.
– Avery Vise

Lawmakers back NYC congestion fee plan
After missing an initial July 16 deadline for endorsing New York City Mayor Michael Bloomberg’s congestion plan for the city, state lawmakers reached agreement July 19 to move forward with a plan to charge fees to motorists entering midtown Manhattan, maintaining New York City’s eligibility for $500 million in U.S. transit aid. The agreement will set up a 17-member commission made up of representatives from the city and the state to review Bloomberg’s “congestion pricing” plan to charge $21 for trucks and $8 for cars entering Manhattan south of 86th Street between 6 a.m. and 6 p.m. weekdays to relieve traffic and pollution. The commission would recommend ways to reduce traffic, which would need legislative approval.

“This agreement makes clear that delay was unacceptable and the need to protect our environment and fight congestion simply could not wait,” Bloomberg said. “We will begin immediately to prepare for the installation of needed equipment to make our traffic plan a reality.”

Senate Majority Leader Joseph Bruno said federal transportation officials told him that the creation of the commission would allow the city to maintain eligibility for the federal funds. NYC is competing with several other cities for the funds, and the U.S. Department of Transportation was expected to make a final decision on which cities receive federal aid by early August.

The State Assembly had failed to meet a deadline by midnight July 16 to apply for federal funding for Bloomberg’s plan, which he first unveiled in April this year. A number of state senators were opposed to the idea of congestion fees and had used delaying tactics to avoid meeting the deadline. Bloomberg had said in a statement on July 17 that he was disappointed that the State Senate had failed to reach agreement despite three months of consultations.

The American Trucking Associations, which argues that congestion pricing does little to relieve congestion and is merely a revenue raiser, had campaigned against Bloomberg’s plan, publishing op-ed articles and appearing in televised debates. Believing that the missed July 16 deadline represented a conclusive defeat for the plan, ATA had issued a news release on July 17 claiming some credit for helping to defeat it.

CVSA, FMCSA plan Operation Safe Driver
Increasing commercial and non-commercial vehicle enforcement and educating truckers and car drivers about highway safety are the goals of a new driver performance initiative planned jointly by the Commercial Vehicle Safety Alliance and the Federal Motor Carrier Safety Administration. Operation Safe Driver will be held nationwide Oct. 21-28, Steve Keppler, CVSA director of policy and programs, told a conference call with CVSA members July 18. Results of the FMCSA’s Large Truck Crash Causation Study led to the focus on driver issues, Keppler said. The study found that driver actions or inactions are to blame in 88 percent of crashes where the commercial motor vehicle is at fault.

In addition to increased traffic enforcement, the initiative’s objectives include increased seat belt enforcement, increased driver roadside inspections, increased driver regulatory compliance and implementing commercial driver and car driver educational and awareness programs. The initiative “has a strong educational component,” Keppler says. “We want people to know we’re not just penalizing. We want to help correct problems, whether they are in a commercial motor vehicle or an automobile.”

FMCSA implements SAFETEA-LU measures
The Federal Motor Carrier Safety Administration published in the July 5 Federal Register a number of new rules that were required by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which Congress enacted in August 2005. The agency said petitions for reconsideration must be received by Sept. 4. The rules FMCSA adopted relate to:

· State compliance plans under the Motor Carrier Safety Assistance Program;

· Withholding of federal-aid highway funds based on state noncompliance with the commercial driver’s license program;

· Intrastate operations of interstate motor carriers;

· Civil penalties and disqualifications for violations of out-of-service orders;

· Civil penalties for denial of access to records and property and for violations of statutes and regulations governing hazardous materials transportation;

· Exemption from the federal hours-of-service regulations for operators of commercial motor vehicles engaged in certain defined operations;

· Exemption of drivers of propane service or pipeline emergency vehicles during emergency conditions requiring immediate response; and

· Interstate transportation of household goods.

Because SAFETEA-LU required implementation of these rules, FMCSA said their adoption “is a nondiscretionary ministerial action that can be taken without issuing a notice of proposed rulemaking and receiving public comment.”

DOT IG: SafeStat not yet ready for public
Before the public views complete SafeStat scores once again, the Federal Motor Carrier Safety Administration should make further improvements, auditors for the U.S. Department of Transportation report. On June 19, DOT’s Office of Inspector General released its review of the Motor Carrier Safety Status Measurement System, used by FMCSA to identify high-risk fleets.

In 2004, FMCSA removed from its public websites both the overall SafeStat scores and all SafeStat accident data, calling the move temporary and saying it was necessary to make sure the accident data was accurate, complete and timely. Although FMCSA has improved SafeStat, problems still exist with the reporting of crash data to the agency, the report concluded. While states are reporting more truck crashes, anomalies call into question the completeness of nonfatal crash reporting, the report said.

“We recommended that FMCSA implement a new, more reliable estimate that would allow evaluation of nonfatal crash reporting, both nationally and state by state, before the department makes all SafeStat scores available to the public,” the DOT IG said.

FMCSA is working on a new, more accurate national estimate of how many nonfatal crash reports are absent from its database and how many are missing from each state, with a target date of October. OIG recommended SafeStat scores not be available to the public until this step is complete.

In June, the Government Accountability Office, the investigative arm of Congress, reported SafeStat is better than random selection at identifying high-risk carriers but said a statistical approach would be better. Late-reported crash data, cited as a potential statistical problem by DOT, in fact has little effect on SafeStat’s usefulness, GAO reported.

Paccar breaks ground on U.S. engine plant
Paccar Inc., parent company of Kenworth and Peterbilt, broke ground July 17 on its first engine plant in North America – to be located just west of Columbus, Miss., near Golden Triangle Regional Airport. The 400,000-square-foot facility, which is scheduled to be completed in 2009, will build Paccar’s planned Class 8 truck engine for on-highway and vocational applications.

For some of their medium-duty offerings, Kenworth and Peterbilt already offer only Paccar-badged engines, which are built by Cummins. But in Class 8, the truck brands will continue to offer customers a choice of engines, Paccar officials say. Currently, Caterpillar and Cummins supply engines to Paccar in North America.

“This factory sends a strong signal of the strength of manufacturing in America,” said Mark Pigott, Paccar chairman and chief executive officer, at a groundbreaking ceremony that included Mississippi Gov. Haley Barbour and other dignitaries.

At a news conference following the groundbreaking, Paccar Executive Vice President Jim Cardillo noted that although Paccar will be new to the engine business in North America, “We have a long tradition of being a leader in the engine market in Europe.”

Paccar’s Columbus plant will build 12.9-liter and 9.2-liter diesel engines based on European platforms of the same displacement. Both European engines were on display at the groundbreaking ceremony. The 9.2-liter Paccar PR engine, which would be used mostly for vocational or LTL applications in North America, offers 250 to 360 horsepower and peak torque of 775 to 1,060 lb-ft and weighs 1,860 lbs. The over-the-road 12.9-liter Paccar MX offers 360 to 510 horsepower and 1,310 to 1,850 lb-ft of peak torque; that engine weighs 2,510 lbs.

The North American specs generally should be in the same range, although the upper end of horsepower on the 12.9-liter engine likely will be a bit lower, Craig Brewster, Paccar assistant vice president and leader of the engineering team for the new engines, told CCJ. For customers who spec Paccar engines, the advantage will be that Peterbilt and Kenworth will have “the ability to have total control over the customer experience,” Brewster said.
-Avery Vise

CCJ Hotspots: Arkansas three-peats
For the third month in a row, Arkansas was one of the three strongest spot-market states during June, according to the latest CCJ Hotspots data. Georgia also repeated as a CCJ Hotspot, while California made its first appearance of the year.

In cooperation with freight-matching leader TransCore, we highlight the nation’s three hottest states – those where the outbound load-to-truck imbalance is most in favor of the carrier. We then pair these states with market rate data to identify the three best outbound paying lanes by each of the three most popular equipment types – van, reefer and flatbed.

And like the three origin states, all of these destination states have positive load-to-truck ratios. Load-to-truck ratio and market rate data are courtesy of TransCore. The goal is to highlight not only the best states for spot-market freight but also the best outbound opportunities from those states.

Georgia (Outbound)
  Destination State Avg Rate Min Rate Max Rate Avg Fuel Surcharge Avg Accessorial
Van LA 1.4651 1.1972 1.733 0.23 156.03
  AR 1.2936 1.1425 1.4448 0.22 165.03
  CA 1.237 1.034 1.44 0.24 613.63
Reefer LA 1.9506 1.5758 2.3255 0.06 215.99
  AR 1.4561 0.9897 1.9224 0.2 239.89
  CA 1.2091 1.1135 1.3047 0.2 687.76
Flatbed WV 1.693 1.4339 1.952 0.14 94.38
  LA 1.5357 1.3716 1.6999 0.1 89.44
  IL 1.4925 1.3365 1.6486 0.14 127.44
Arkansas (Outbound)
  Destination State Avg Rate Min Rate Max Rate Avg Fuel Surcharge Avg Accessorial
Van WV 1.817 1.5443 2.0896 0.22 211.61
  NC 1.5551 1.299 1.8111 0.22 197.54
  GA 1.5463 1.3152 1.7774 0.24 150.84
Reefer GA 1.8865 1.7306 2.0425 0.24 166.55
  SC 1.7783 1.6112 1.9453 0.22 275.3
  NC 1.648 1.5376 1.7585 0.3 306.31
Flatbed CA 1.8277 1.6007 2.0548 0.2 734.13
  WV 1.8119 1.6829 1.9409 0.32 212.6
  GA 1.6828 1.4107 1.9549 0.12 98.14
California (Outbound)
  Destination State Avg Rate Min Rate Max Rate Avg Fuel Surcharge Avg Accessorial
Van WV 1.3689 1.2571 1.4807 0.29 737.92
  NC 1.3402 1.1324 1.548 0.25 687.39
  GA 1.3171 1.1797 1.4546 0.26 654.26
Reefer AL 1.6412 1.4002 1.8821 0.11 313.56
  LA 1.5812 1.4575 1.705 0.33 673.67
  MS 1.532 1.2867 1.7772 0.22 448.58
Flatbed WV 1.3576 1.1612 1.554 0.1 471.13
  AL 1.2207 1.0009 1.4405 0.14 624.71
  MS 1.2195 1.0375 1.4016 0.1 492.92