Transportation Legislation Update: HOS, ELDs, and CSA

As reported by Fleet Owner: When the Senate confirmed Anne Ferro in November 2009 the principal controversies that would dominate her nearly five-year tenure at the Federal Motor Carrier Safety Administration (FMCSA) were already well defined even though Ferro was the first confirmed FMCSA administrator under a Democratic presidential administration.

Three of FMCSA’s biggest issues over the past five years were set in motion by Ferro’s predecessors or by events during their tenure: The changes in hours-of-service (HOS) regulations for drivers, electronic logging devices (ELDs), and the Compliance, Safety, Accountability (CSA) program.

Hours of service

Although every FMCSA administrator since Congress created the agency in 2000 has had to deal with the HOS rules due to a series of lawsuits challenging the Bush administration’s rules, it’s not accurate to consider the agency’s actions under Ferro to be merely caretaking.

When President Obama nominated Ferro, who at the time was head of the Maryland Motor Truck Assn., four groups – Public Citizen, Advocates for Highway and Auto Safety, the Truck Safety Coalition and the International Brotherhood of Teamsters – were challenging the 2008 rules in court.

Ferro spoke in favor of reconsidering the rules during her confirmation hearing. In what some at the time assumed was a quid pro quo, the Obama administration settled the lawsuit in October 2009 by agreeing to rewrite the HOS rules. A day later, the Senate Commerce Committee approved Ferro’s nomination, and she was confirmed by the Senate just over a week later.

The proposed new HOS rules came a little over a year later and drew sharp criticism from the American Trucking Assns. for the plan to require that the 34-hour restart include two consecutive periods of midnight to 6 a.m. FMCSA’s final HOS rules issued a year later narrowed that period to 1 a.m. to 5 a.m., but it wasn’t nearly enough to satisfy the trucking industry.

The trucking industry and its critics separately challenged the rules – the latter because they retained the restart in any form as well as 11 hours of driving during a work day. The HOS restart changes took effect on July 1, 2013; a month later, a federal appeals court upheld the rules.

With judicial remedies exhausted, ATA shifted its focus to Congress. A bill was introduced in October to reverse the restart changes pending a Government Accountability Office (GAO) study, and the American Transportation Research Institute (ATRI) issued the results of a study identifying many unintended consequences from the restart, including pushing traffic into times of more congested traffic.

These efforts led to a contentious hearing by a House Small Business Committee subcommittee in which Ferro defended FMCSA’s actions, questioned ATRI’s methodology and even scolded one or two members of Congress for minimizing the rules’ safety benefits.

As the fight over the HOS restart continued, Ferro signaled some willingness to compromise, but she fought the industry over efforts to use the Dept. of Transportation (DOT) funding bill to reverse the HOS restart changes pending the study. During this battle, which has yet to be resolved, a blog post under Ferro’s name was the last straw for the Owner-Operator Independent Drivers Assn. (OOIDA), which called on DOT Secretary Anthony Foxx to replace her.

Electronic logging devices

The move toward electronic logs really started in January 2007 when FMCSA Administrator John Hill, who proposed to require electronic onboard recorders (EOBRs) for certain bad actors.

Although FMCSA failed to finalize the EOBR rule before the end of the Bush administration, the agency did something else that that would change the dynamics on EOBR acceptance. On Dec. 24, 2008, the agency issued a memorandum stating that it would begin using satellite positioning data routinely as a supporting document.

Carriers using in-cab communications systems now were accountable for the precise, time-stamped location of their trucks. Some decided that they might as well use EOBRs so they could manage drivers’ time better and avoid getting slammed during safety audits.

FMCSA issued a final EOBR rule in April 2010 that differed significantly from the original proposal, but it still limited a mandate to carriers that had been shown to need additional scrutiny. OOIDA challenged the rule in court. While OOIDA challenge was pending, the agency came back the following January with a proposed rule that would extend the EOBR requirement to all drivers required to maintain records of duty status.

By now, the dynamics of the trucking industry had changed significantly. With FMCSA using satellite data as supporting documents in safety audits and the new CSA program making it more critical to avoid log violations, most large carriers not only were adopting EOBRs but also wanted a level playing field. So in April 2011, ATA endorsed FMCSA’s plan.

FMCSA’s plans derailed in August 2011, however, when a federal appeals court sided with OOIDA, striking down the EOBR rule on the grounds that it violated a longstanding statutory provision barring motor carriers from using electronic devices to harass drivers.

Unlike what has happened with the HOS restart so far, Congress stepped in and mandated the newly renamed electronic logging device (ELD) as part of MAP-21, leading to a new rulemaking in March proposing to mandate ELDs. This time, FMCSA loaded its proposal with steps intended to reduce the use of ELDs to harass drivers, but OOIDA still opposes the plan.

Compliance, Safety, Accountability

In her first months as FMCSA’s administrator, Ferro probably focused more on CSA than on any other initiative, but it certainly didn’t begin with her.  The move toward CSA – then known as the Comprehensive Safety Analysis 2010 program – began under FMCSA Administrator Annette Sandberg. The first mention of CSA in the Federal Register was an Aug. 20, 1994 announcement of public listening sessions. By November 2009, therefore, CSA and the methodology underlying it, the Safety Measurement System (SMS), had already undergone more than five years of development.

But it was Ferro’s FMCSA that rolled out CSA and SMS in December 2010, and the agency has updated and tweaked SMS several times since to the point where the program is significantly different from how it appeared in November 2009 or even in December 2010.

Gripes about CSA as FMCSA rolled it out fell into two principal categories. First, many critics argued that the SMS methodology was flawed by giving improper weight to certain violations and not taking into account accident preventability, for example. Second, some groups charged that FMCSA and Ferro personally were encouraging shippers and brokers to rely improperly on CSA scores in selecting carriers. FMCSA settled one lawsuit on the latter issue, leading to a new website disclaimer.

Despite tweaks over several years, complaints about CSA have only grown louder. ATA summarized its concerns with a white paper late last year. In February, GAO sharply criticized CSA in several respects, prompting FMCSA to respond with its own analysis. The following month, the DOT Office of Inspector General (OIG) also faulted FMCSA’s implementation of CSA, focusing on issues of data quality and interventions.

FMCSA has responded to the criticism primarily with relatively minor tweaks. For example, the agency next month will change the SMS website presentation to incorporate, among other things, safety ratings and licensing and insurance information. In doing so, it looked past arguments that SMS data is too flawed to be presented at all in its current form.

The agency also has changed the DataQs process to allow drivers and carriers to update their safety records to reflect the outcome of challenged traffic citations. But many in the industry – including OOIDA which is litigating the issue – have a bigger concern over DataQs because it doesn’t allow for a federal appeal. The state – sometimes even the very agency that issued the original violation – is the final arbiter.

Ferro leaves with uncompleted work on ELDs and CSA with a final rule on the former still to come and a proposed safety fitness determination rulemaking years behind schedule and continuing to slide. And on HOS, Congress may yet this year reverse the restart changes pending a study.