FMCSA's Darling: HOS study under DOT review

The Federal Motor Carrier Safety Administration has sent to the Department of Transportation's Office of the Secretary for review a draft mandated by Congress regarding the new hours-of-service (HOS) restart provisions that have been blocked by Congress until the study is completed and other actions are taken, acting FMCSA Administrator Scott Darling said Jan. 20.

Other issues addressed in a Senate Commerce Committee hearing on Darling's nomination included FMCSA's progress in implementing the Fixing America's Surface Transportation (FAST) Act, the agency's decision to move forward with a safety fitness determination (SFD) rulemaking, electronic logging devices (ELDs) and other issues.

In the latest of several final rules on HOS, FMCSA changed the restart provision, effective July 1, 2013, to require that 34-hour restarts of cumulate duty time include two consecutive 1 a.m.-5 a.m. periods. The change also disallowed more than one restart every 168 hours. Based on strong opposition to this change within the trucking industry, Congress in 2014 prevented FMCSA from enforcing the restart changes pending a study on its effect on safety, productivity, etc.

Late last year, Congress renewed and strengthened that provision, requiring both FMCSA and the Department of Transportation Inspector General to conclude that the revised restart measures result in "statistically significant" improvements in safety, driver health and other goals. The American Trucking Associations praised the language, saying it will make it very difficult for FMCSA to justify re-imposing the new restart provisions.

Safety fitness determinations

In her opening statement at the hearing, Sen. Deb Fischer (R-Nebraska), who chairs the committee's surface transportation subcommittee, noted that FMCSA had just released a proposed rule on safety fitness determinations.

"Some, however, have expressed concerns regarding the FMCSA’s use of potentially flawed [Compliance, Safety, Accountability] data as part of a carrier’s safety fitness determination methodology," Fischer said. "Certain stakeholders have argued, inaccurate data could lead to rating unfit carriers as qualified to operate, or vice versa."

Later in the hearing, Sen. Amy Klobuchar (D-Minnesota) raised the issue of safety ratings vs. CSA scores in the context of broker liability. Darling responded that he believed that the safety fitness NPRM "will help freight forwarders, brokers and shippers understand carriers that are either able to operate or unfit to operate, and it will be clearly beneficial to them."

Electronic logging devices

An exchange with Sen. Steve Daines (R-Montana) late in the hearing suggested that Darling might not really understand the issues surrounding the most significant rule issued during his tenure: ELDs.

Daines read an e-mail from a trucker based in Montana who said the rule would create some unintended consequences, including forcing drivers to race the clock, stop in unsafe places and speed through construction zones and bad road conditions. "They are trying to make up time before their inflexible time clock runs out," the e-mail stated. Daines asked Darling how he would ensure that the regulations remain flexible enough that drivers can make decisions based on road conditions without having to race the clock.

In addition to a brief general defense of the ELD rule, Darling responded that "truckers should not be using their ELDs while driving. ELDs are designed to be almost automatic and run on the engine time." No senator challenged the logic of Darling's point or the relevance to the point Daines was making.

For a link to an archived video recording of the hearing as well as Darling's prepared testimony, click here.