SBTC Files HOS Comment

Small Business in Transportation Coalition’s Comments in Response to the Federal Motor Carrier Safety Administration’s Advance Notice of Proposed Rulemaking on Hours Of Service and other Issues.

         The Small Business in Transportation Coalition (SBTC) is a 501(c)(6) nonprofit organization representing small business transportation professionals and industry providers. SBTC in response to the Federal Motor Carrier Safety Administration’s (FMCSA) Advance Notice of Proposed Rulemaking (ANPRM) regarding Hours of Service (HOS) of commercial motor vehicle (CMV) drivers submits the following comments on behalf of its members regarding the short haul hours of service (HOS) limit; the HOS exception for adverse driving conditions; the 30 minute rest break provision; and the sleeper berth rule to allow drivers to split their required time in sleeper berths; as well as a proposed split-duty period.

         SBTC wishes to begin by pointing out that the most recent FMCSA listening sessions resulted in little driver participation. We believe this is because 1. FMCSA effected a mere three days’ notice of the listening session at the Great American Trucking Show in August in Dallas; and 2. The session held at USDOT offices in Washington, DC took place without due consideration of the lack truck parking and the driving restrictions for truckers in the city. SBTC’s request for a third session to be provided at the Mid America Truck Show in Kentucky in the Spring of 2020 with advance notice appears to have been ignored by the agency.

The HOS regulations currently in place are burdensome, complex and offer no flexibility to drivers. They force drivers to be on the road when they are tired, and they force drivers to resort to parking in unsafe and dangerous locations to avoid facing fines for not complying with the regulations. The proposed rules regarding the HOS regulations do very little, if anything, to correct this problem because the agency refuses to repeal the 14 hour rule. Instead, it has proposed promulgation of convoluted formulas difficult for the most seasoned veterans to embrace. We believe rookie enforcement personnel will have a very difficult time understanding such confusing formulas.

A recent coercion complaint/request for preemption order was ignored by the agency. We therefore revised it to take the form of an application to FMCSA to grant an exemption from the Hours of Service regulations to drivers passing through the city of Midland Texas, which has outlawed truck parking citywide and has thereby interfered with interstate commerce generally, and specifically, with drivers’ ability to lawfully comply with the Hours of Service regulations. This petition has been ignored by the agency contrary to Federal law, which required the agency publish the application in the Federal Register upon receipt.

         SBTC believes that truck drivers should not be forced to drive, take a time-specific break or sleep for a limited number of hours during the day, based on arbitrary and capricious laws, rules and regulations. Additionally, driving a truck in compliance with an electronic logging device that does not take into account unexpected events and road conditions is unsafe and is a recipe for disaster. Truck drivers should be allowed to drive, sleep and take breaks at a time --- and for a period of time --- that allows them to drive and reach their destinations safely. We believe true flexibility is needed and that calls for the elimination of the 14 hour rule outright.

         Driving to stay in compliance with a mandated electronic logging device, and not in accordance with road conditions and unexpected events on the highway, is causing many drivers to unnecessarily speed and drive recklessly. This, in turn, has caused an increase in truck accidents. We believe USDOT statistics scheduled to be released in December will show the agency has taken the public and industry out of the frying pan and into the fire. That is, while the agency has focused on fatigued driving – the tip of the iceberg, it has ignored the unintended consequences of speeding and the fatalities that result.

         Outgoing FMCSA Administrator Ray Martinez recognized the increase in truck accidents and has said that the FMCSA “needs to explore causes for the higher death toll and how many FMCSA-regulated trucks were involved in crashes.”

         While FMCSA has been hyper-focused on fatigue-related deaths in recent years and has billed ELDs as a solution to that problem, it has not taken into consideration the recent rise in speeding-related deaths and has not properly studied the connection between the implementation of ELDs and the increase in speeding as an “unintended consequence” of ELDs.

         Recently, SBTC wrote to FMCSA Administrator Raymond Martinez and top-level FMCSA officials asking FMCSA look at the big picture on ELDs and view the problem from outside the fatality deaths box. In our letter we said that we:

"… also want to make it clear that the SBTC does not condone unlawful speeding, especially through construction & school zones, to circumvent ELD enforcement of the HOS regs just like we did not condone cheating on paper logs. We believe ELDs have induced speeding and would suggest death cares not how it gets you.”

         And, according to this International Transport Forum report, inappropriate speed is responsible for 20 to 30% of all fatal road crashes:

https://www.itf-oecd.org/speed-crash-risk

         Indeed, according to the Department's own NHTSA report, 2016 national data show that Drowsy-driving deaths (803 fatalities) decreased by 3.5 percent while Speeding-related deaths (10,111 fatalities) increased by 4.0 percent.

https://www.nhtsa.gov/press-releases/usdot-releases-2016-fatal-traffic-crash-data

We think 2019 stats will show ELDs were a fatal mistake by FMCSA and the current upward trend in speeding related fatalities will continue."

National Security Concerns:

         SBTC was the only trucking association to tell to Congress that the trucking industry knows very well that there is the potential for criminals and others including terrorists to hack into trucks’ telematic devices and breach drivers’ bluetooth and wi-fi connections to take over the controls of trucks’ accelerators remotely. They know this because the FMCSA’s parent agency USDOT and the FBI issued a warning to this effect in 2016. And University of Michigan researchers reported they had accomplished this for real not too long ago. They actually hacked in and made a truck accelerate on a highway to the amazement --and sheer terror-- of its driver.

         We ask FMCSA to imagine a HAZMAT truck being forced remotely into accelerating into a school bus filled with kids, or a hospital or nursing home, or a major city’s water supply.

         By opting to allow ELD manufacturers to “self-certify” we believe FMCSA skirted their obligations under MAP-21, jeopardized national security, and you have allowed the market to be flooded with unsecured devices that are not encrypted. Quite frankly, some of them malfunction and some don’t work at all. We remind FMCSA here of our request to immediately suspend ELDs due to this national security concern and of our pending class exemption application.

         And while some ELD manufacturers are out inappropriately peddling their products as being “FMCSA-certified,” in reality… FMCSA has not certified any of them. Not a one. FMCSA merely requires these manufacturers register their products and “self-certify.” We find this ironic, when we think about how these are tracking devices that are intended to prevent truck drivers from, “self-certifying” their hours of service compliance on paper logs.

         And we believe the real safety issue here is the incongruence between paying drivers by the mile and regulating them by the clock. We make that case in an article posted on Linked In at https://www.dhirubhai.net/pulse/time-fmcsa-stop-treating-symptoms-safety-problem-start-james-lamb/

In summary, SBTC believes the electronic logging device (ELD) mandate, although lauded by the FMCSA as a benevolent safety rule, is, in fact a contributing factor in many truck related accidents, causing a rise in fatalities, and posing national security threats.

         Turning to the questions proposed by FMCSA in its ANPRM, SBTC makes the following comments:

1.Short Haul Operations. Extending the 12-hour period for the short haul exception to the RODS/ELD requirements to 14 hours would allow short haul drivers to drive more safely in reaching their destination. It would allow them to compensate for unexpected events on the roadway.

2. Adverse Driving Conditions. Right now, there is not adequate flexibility in the existing adverse driving conditions exception. The definition of adverse driving conditions should be changed to include non-weather-related events, such as traffic back-up and road work delays. These events affect driving conditions just as much as weather-related events.

3. 30-Minute Break. Drivers are professionals who do not need to be told by the government when to take a break or for how long to take it. Drivers need flexibility and should be able to take break when they feel they need it, and as circumstances permit. If the mandatory 30-minute break did not exist, the vast majority of drivers would take breaks as needed. If the 30-minute break is retained, it should be taken on duty while the driver is not driving, for example, when his trailer is being unloaded.

4. Split-sleeper berth. SBTC would support an efficient use of the sleeper-berth option for drivers who desire to use it. However, the bigger issue that SBTC has with the sleeper berth option is safe parking. We have seen far too many drivers robbed and often killed while using their sleeper berths. Designated truck-stops and parking areas should be well lit and secure to allow drivers who want to use their sleeper berths to do so safely and not be in fear of being robbed, killed or harassed by law enforcement while trying to get much needed sleep.

5. Split-Duty Period. SBTC is very much concerned about forcing a rigid regulation on the time when a driver can sleep or rest and the time-period in which they are allowed to do so. Drivers should be allowed to rest when their body says its time to do so, not when the ELD tells them they must. It does make sense that the 14-hour clock is paused while drivers rest, if that rule is not eliminated. They should not be penalized for taking needed sleeping time; as long as they can do so in a safe location. However, we see the extension of company drivers’ day to 17 hours as a mechanism for Big Trucking to further exploit their drivers and fear the agency has been captured by Big Trucking in this respect.

We are also concerned that this will result in drivers being coerced into driving when tired. And while a coercion mechanism does exist, there are real obstacles we believe the agency does not appreciate that deter drivers from filing such complaints. And if the agency ignores complaints of coercion by municipalities such as Midland Texas lodged by trade groups such as the SBTC, then Drivers are well within reason to conclude that such complaints would be futile and result in no action by the agency.

         SBTC has always felt that drivers need as much flexibility in their workday as possible. SBTC would agree that multiple off duty periods throughout the day in lieu of forcing 10 consecutive hours off duty makes sense. If a driver needs to rest, he should be allowed to do so without being forced to abide by an arbitrary time schedule. The mandatory 30-minute break should be eliminated as well. Drivers already take breaks as needed. Forcing them to do so, for a certain period of time makes no sense. Again, true flexibility as opposed to that word just being interjected as lip service is the key.

         In conclusion, SBTC again renews its request that the ELD rule be immediately suspended. We have long opposed the ELD mandate, and we make that point clear here again. We also ask that our resubmitted ELD exemption application now 10 weeks old be published and opened for public comment. Additionally, we ask the FMCSA to allow truck drivers to have the flexibility to drive their trucks and spend their day in a way that gives them the time to rest when needed, sleep when needed, and reach their destination safely.

         ELDs were implemented because the government believed too many truckers were cheating or making “mistakes” on their paper logs. But cheating on logs was not really the problem. Nor is speeding. They are symptoms of the problem. The real problem is this: there are economic incentives in place that make a driver want to drive longer and faster against the HOS rules and speeding laws so he can make more money… because he is paid by the mile.

         When you pay drivers by the mile and govern them by the clock, you are asking for safety problems. We have all heard that oil and water don't mix... well, neither do Hours of Service regulations and the pay-by-the-mile driver compensation model. It’s time we put all the cards on the table. We suggest that it’s high time for FMCSA to finally treat the underlying causes of the motor carrier safety problem, rather than the mere symptoms of the problem. You can do this in a report to Congress by suggesting Congress re-examine the motor carrier exemption in the Fair Labor Standard Act. Only a new paradigm will completely address the real problem. We would think safety advocates would agree. Reasonableness in rulemaking, grounded in flexibility that reconciles the interests of all stakeholders is indeed the key to motor carrier safety.

Respectfully submitted,

James Lamb

President, Small Business in Transportation Coalition