Editor’s note: The Senate Appropriations Committee passed June 5 the amendment to at least temporarily suspend some of the provisions of last year’s hours of service rule changes. Click here to read coverage of the passage.
I’m not convinced that it will take an act of Congress to make trucking’s hours-of-service rule work, but after speaking with a few folks on the front lines on Capitol Hill, I’m increasingly sympathetic to the longshot attempt. And if the play being run Thursday morning in the Senate works, it could signal a significant shift in the dynamic between the industry and its regulators.
But my initial skepticism still holds: Why bring Congress in on the debate over HOS changes that are less than a year old? “Can of worms” comes to mind.
“FMCSA and the leadership have no intention of changing the regulation,” explains Dave Osieicki, who heads up ATA’s legislative affairs office, simply enough.
Meeting with Administrator Anne Ferro in early May – “at her request,” Osiecki notes – the ATA delegation used data from electronic logs to demonstrate how the changes in the hours-of-service rule are effecting drivers and companies.
“These were drivers who were working very reasonable hours each week, not this 80-hour week stuff she pretends is happening,” he adds.
And Ferro understood, calling the impact “unintended consequences,” according to Osiecki.
“But she made it very clear at the end of that meeting that she had no intention of changing the regulation,” he says. “So we have no opportunity for changing the regulation with the agency. The only opportunity we have is legislation.”
Still, doesn’t Congress have a lot more on its plate than a trucking regulation? Where’s the voter-level demand on a narrow issue like an adjustment to a restart provision for truck drivers?
Osiecki suggests that a “broad, grassroots” push has been effective: Members of Congress are hearing from drivers and companies “in almost every state” that the rule doesn’t provide the intended health and safety benefits.
Indeed, Congress has intervened in regulatory matters in the past, explains Ryan Bowley, director of government affairs for the Owner-Operator Independent Driver Association.
OOIDA supports the effort to address the current restart provisions, and has worked toward that end.
“The key element here is that we have a previous hours-of-service rule that did go through the rulemaking process – so there is a body work that the agency and the trucking industry can turn back to,” Bowley says.
Like ATA, OOIDA questions the data and analysis behind FMCSA’s rulemaking.
“Industry observers have pointed out significant shortfalls in the science that the agency used in developing the rulemaking, and also in the MAP-21 restart study that they conducted after the rulemaking had been in place,” Bowley says. “We’ve certainly heard from our members in terms of the negative impacts on health, and their ability to get good restorative sleep – and certainly on their income, as well. These things don’t occur on an island. That’s why so many folks have really profound concerns.”
And Congress will take these concerns seriously, especially when presented with data. Both OOIDA and ATA have made the rounds with their own studies on the driver impacts of the HOS rule change.
“When you’ve got ATA and OOIDA not just singing from the same sheet of music, but touching on the same points, that’s got some validity – absolutely,” Bowley adds.
Not everyone in trucking is in favor the legislative run, however.
The Trucking Alliance, an influential association of several large carriers, focuses its efforts on the universal adoption of electronic logs. And part of the expected HOS amendment will mandate another study comparing data from a group of drivers with half using e-logs and the new rule and half using e-logs under the old rule. The Alliance also is pushing for an accelerated timetable on FMCSA’s e-log rule.
But Lane Kidd, the group’s managing director, doesn’t like the idea of Congress setting regulations – and the Alliance has taken some trucking industry heat for signing on with a number of safety groups who likewise voiced support for e-logs but opposition to an HOS rollback.
Essentially, electronic logging devices “will give us the data to settle this whole hours-of-service debate forever,” Kidd argues.
“The Trucking Alliance doesn’t like the restart provisions either, but defunding it because people don’t like it isn’t good public policy,” Kidd says. “It will compromise law enforcement for a time, and give carriers using paper logbooks an advantage over carriers that have electronic logging devices in their trucks. I don’t expect too many ELDs will be sold during the next year if this defunding proposal passes.”
Indeed, regulatory enforcement agencies oppose legislative changes as well.
In a letter to Congress of its own, the Commercial Vehicle Safety Alliance questions how state enforcement agencies are supposed to handle any transition to the previous rule.
“We’re not making a value assessment on the hours-of-service rules – we’re not really in a position to do that,” says CVSA Director of Policy and Government Affairs Adrienne L. Gildea. “We just don’t think anybody is. They haven’t been in place for a year yet, and to say that you can effectively measure their impact is questionable.”
CVSA is especially concerned about possible confusion and a resulting lack of enforcement uniformity among the states.
“It’s just hard to pin down how this is going to work,” she says. “I just don’t think anyone knows exactly how this will play out, because there is so much gray area.”
The devil will be in the details, of course – and we’ll have a much better handle on things soon.