An HOS Win by Attrition

In prizefights of the past, you couldn’t win the championship by slightly outpointing the current champion. You had to have a clear-cut victory by amassing significantly more points or by knocking the champion out.

In many ways, that’s how I view major changes in regulations. If we are going to affect more than 3 million professional truck drivers and millions more who depend on them, as well as reduce productivity by up to 4 percent and increase freight costs potentially in the billions of dollars, an agency must make a compelling and overriding case for the new policy. In terms of the ring, they need a knockout.

This month’s federal court decision on truck driver hours of service appears to reflect the lack of a compelling case for the changes sought by the Federal Motor Carrier Safety Administration. For the most part, the court took a “bye” and kept much of the rule in place with one exception. Although some may view this as a victory for the FMCSA, the court’s opinion in the case was less than a ringing endorsement for the rule or the FMCSA’s regulatory actions. In issuing its decision, the court opined that the FMCSA “won the day not on the strengths of its rule-making prowess, but through an artless war of attrition.” 

While professional truck drivers, trucking companies, shippers and businesses view themselves as the losers based on the court’s decision, the biggest loser in the end may be the FMCSA itself. The agency has many capable and excellent people who are skilled professionals dedicated to improving safety. Yet, in the case of the HOS rule, politics, rather than logic and sound science, seems to have won out.

The justification for the new rules was probably the weakest of any new regulation by the agency since its inception in 2000. Using studies that weren’t particularly applicable to the industry, ignoring thousands of comments from the people working directly in the industry and applying a highly questionable cost-benefit analysis to justify the changes, the FMCSA’s new rule lacks the credibility associated with prior rules. 

Over the past 20 years there has been substantial improvement in safety of large trucks, with the truck accident rate dropping dramatically over that timeframe. Much of this has been accomplished through a cooperative effort and commitment to improving safety by the FMCSA, state truck enforcement personnel, the trucking industry and, most importantly, professional drivers.

There are many examples of cases where these groups came together to bring about positive changes for safety. The commercial driver’s license, drug and alcohol testing, background screening, mandatory safety physicals, and new entrant requirements represent just some of programs where everyone saw the need and importance to make changes. 

All of those rules, however, were generally well-supported by studies and sound science that helped sell and convince policymakers, safety officials, law enforcement, and the trucking industry on the need for these changes. 

Any law enforcement official will tell you that the best laws are those where the affected parties and the public recognize the importance of the rule or law. Having logical truck safety laws that are supported by research and solid safety data makes enforcement less challenging because drivers and companies understand why such laws exist and appreciate the safety implications associated with them. 

More important, law enforcement personnel realize there aren’t nearly enough of them and, therefore, they must count on people following the rules even when officers aren’t present. Good rules that make sense to drivers and companies result in voluntary compliance because the affected parties recognize the value of them.  

Unfortunately, the recent hours of service battle may adversely affect the view by some parties in the trucking community regarding proposed future rules and regulations by the FMCSA. The fact that a rule of such importance was based on weak data, a highly questionable cost-benefit analysis, and garnered almost no support from those in the truck safety community will unfortunately raise questions as to the approach, basis and reasoning for other new rules and regulations by the FMCSA.    

In moving forward, the FMCSA should consider returning to a process of partnering with industry to develop regulations for truck safety that will ensure greater buy-in by companies and drivers.

Greg Fulton is president of the Colorado Motor Carriers Association, which includes more than 600 companies involved in the trucking industry in Colorado. Contact him at greg@cmca.com.

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