The economy is finally emerging from a period of its slowest growth in several decades, and guess what’s about to put the brakes back on?

Following a frenzied, multi-pronged effort by independent over-the-road truckers to stave off the new federal requirement that drivers use electronic logging devices (ELDs) to calculate hours of service, the Federal Motor Carrier Safety Administration (FMCSA) has opened a comment period to consider a five-year exemption for small businesses at the request of the Owner Operator Independent Drivers Association (OOIDA).

This is an unusual issue because the rule forces compliance with laws designed to vouchsafe public safety that have been on the books for years. Smaller-scale truckers are saying they can’t run a business without chiseling on federal requirements. And what little information has been recently forced out into the open suggests they’re right.

In some alternate universe, truckers drive when they feel up to it, sleep when they get tired and spend more time with their families, which is good for everybody. In latter-day America, one-size-fits-all federal regulations say that when your allotted hours are up, the truck must be parked for 10 hours. One recent graduate of a trucking academy was parked in front of three diesel pumps, and was afraid to move his truck so that others could refuel because one minute over the driving time could mean points on his commercial license. Points on a commercial license lead to fines and trouble at work.

Moreover, if you are transporting honeybees to pollinate for almond-growers in California – as thousands of semis are doing every year – you can’t stop for any length of time or the bees will come out of their hives. And you certainly can’t stop and unload a rhino, tiger or giraffe at a rest stop. Aquaculture transporters, horse transporters, and other transporters of living cargo are all impacted in a way that Washington doesn’t seem to understand. Thanks to the requirements, drivers can’t subtract even 10 minutes from a rest period and add it to the time it takes to get to the destination.

When court challenges to the rules failed and congressional relief got bogged down, the transportation world’s own version of the “woodwork” effect manifested, exposing a widespread work-around effort to keep the economy going. I am informed by a west-coast independent trucker taking a load of prison doors to North Dakota that he was instructed how to finagle a logbook as part of the training given at his trucking school. He also tells me that a company in his area just received 17 trucks back from drivers who have walked away from their 12-percent loans out of necessity because strict enforcement of the rules means one load a week instead of two, and they just can’t scratch out a living anymore.

As these effects ripple through the economy, shipping rates will rise more than they have already, the last thing the country needs as economic growth shows strength that even a Nobel-winning economist swore we would never see again.

Hence the additional comment period. Many of the comments indicate that, ironically, strict enforcement of hours-of-service rules does not enhance safety. When the anecdotal evidence is compiled, it appears that newly-credentialed drivers rushing to make the terminal by the expiration of their driving time are the ones mostly in the ditch nowadays.

The Swift Trucking company – which merged with Knight Transportation to form a $5 billion trucking operation that now constitutes the third-largest in the American industry – has experienced 2,256 crashes in the last two years while using the mandated ELDs. According to information no longer available to the public on the FMCSA website but generated for litigation by the Truck Accident Attorneys Roundtable, this is an increase of 71 percent in fatal accidents since the 24-month period prior to 2012, when ELDs had not yet been installed. Over the same period, injury accidents increased approximately 52 percent and overall trucking accidents increased approximately 54 percent.

There are other dislocations associated with the government cracking down on hours driven and mandating rest periods. A few of them are detailed in a letter Indiana Attorney General Curtis T. Hill, Jr. wrote to the FMCSA’s general counsel on behalf of the estimated 200,000 truckers residing in his state. (It is actually alarming that other state AGs have not taken up the cause of an industry that accounts for nearly one out of every 14 jobs in Indiana and 3.5 million jobs nationally.) His concerns are technical, having to do with the lack of oversight on self-certification by manufacturers of the devices; the inability to verify that the device is actually compliant with complex technical requirements; the costs associated, which “have the potential to put some carriers out of business”; and the short time (eight days) allowable for replacing a noncompliant device.

The FMCSA granted a 90-day waiver from the Dec. 18, 2017 implementation date for agricultural transportation, but at least 31 different organizations with agricultural interests have written the Department of Transportation and the FMCSA to articulate concerns and ask for a reasonable solution to the particular challenges of hauling fish, pets, wildlife, horses, honeybees, cattle, pigs and poultry. Approximately 250,000 livestock-haulers have to be not only qualified truckers, but also stockmen responsible for hauling animals with the least amount of stress, requiring additional training in animal welfare.

There are no good outcomes if animals must be parked for the 10-hour period following the expiration of hours-of-service. Doubling up on drivers is a challenge when the nation is already in short supply and many are reportedly quitting over government regulation.

Moreover, the waiver only applies to equipment with sleeping quarters. Most of the hauling of horses, for instance, is done with trucks that do not have expensive sleeping berths; typically, horse-transporters who have sleeping space have it in their trailers. Most owners who show horses will therefore fall outside of the exemptions as currently written, and recent news articles have noted expanded enforcement of the underlying rule.

This is a fascinating example of government policy that has been in effect for years, rationalized on the basis of public safety but widely disregarded in order to do business in the real world. Having already suffered a large loss of revenue thanks to mandated inefficiencies in delivery, the major trucking companies are supporting the ELD mandate because it threatens to put many smaller competitors out of business. Rates are already going up, and pricing will turn very aggressive as smaller firms face an uneconomic landscape to continue serving their markets.

Delaying the impact, looking at further exemptions and measuring actual safety performance against projections would be a good first step. In the same sense that dynamic budget-scoring is now state-of-the-art over simple manipulation of tax rates, highway safety rules should be data-driven but informed by considering what people are actually doing to move freight. Mega-trucking companies willing to take a regulatory hit to put the independent owner-operators out of business should be thoroughly investigated. The unique needs of the trucking of live animals and insects also bear further investigation. Setting up a commission to review the success of the hours-of-service mandate in assuring public safety would allow the necessary public input and consideration of several years of data on file. If it turns out that new enforcement rules are causing too many drivers to barrel down the highway or to take turns at a higher speed than they otherwise would, a do-over is warranted.

It is obvious that hours-of-service is only one determinant of successful shipping. Truck driver is the most popular job in my home state and in many others. We possess every motivation to sort this out on the best terms for them, other drivers on the highways, the shippers and the American economy.





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