DOT Should Incorporate Lookback Plans into Proposed Hours of Service Rule

May 21, 2014

The Department of Transportation Federal Motor Carrier Safety Administration (FMCSA) recently extended the comment period on its supplemental notice of proposed rulemaking (SNPRM) establishing standards for electronic logging devices (ELDs) and their use. This proposal would supplement and reinforce FMCSA's existing federal hours of service (HOS) regulations that limit on-duty driving time of drivers of commercial motor vehicles (CMVs) in order to ensure they have adequate time for rest. In explaining the reasoning behind its rule, FMCSA points to the problem of “significant violations” of existing HOS rules, which can lead to increased CMV driver fatigue and pose an unacceptable risk to the public. The agency’s stated objective in issuing the SNPRM is to reduce the number of driver-fatigue related crashes that could have been avoided had the driver complied with the agency’s rules limiting hours of service. The agency also cites as justification for the proposal legislation requiring CMVs engaged in interstate commerce who must keep a record of duty status (RODS) to be equipped with ELDs, which automatically record driving time and facilitate electronic recording of other categories of duty status.

As a part of its ongoing Retrospective Review Comment Project, in which the Regulatory Studies Center examines significant proposed regulations to assess whether agencies propose retrospective review as a part of their regulations, we submitted comments on the proposal offering suggestions on how FMCSA could incorporate plans for retrospective review into its final rule. Executive orders and OMB guidance direct that “future regulations should be designed and written in ways that facilitate evaluation of their consequences and thus promote retrospective analyses and measurement of ‘actual results.’”

The main desired outcome of the regulation is a reduction in injuries and deaths associated with accidents involving CMV drivers who have violated the HOS requirements providing for adequate rest. FMCSA also expects that “the use of ELDs can significantly reduce drivers’ time spent logging their hours and handling and transmitting these logs, and carriers’ time spent handling these logs,” and that “the monetary value of these time savings may exceed the costs of the devices.” Of course, if that is true, then it calls into question the need for a rule.

The linkages FMCSA assumes to estimate safety benefits of the proposal are:

  • installation of ELDs will reduce the falsification of driving records,
  • more accurate driving records will lead to greater compliance with HOS regulations,
  • compliance with HOS regulations will lead to less driver fatigue,
  • driver fatigue from violating HOS rules are a significant cause of CMV accidents, and
  • greater compliance with HOS regulations will reduce fatigue-related crashes that injure and kill parties involved.

Despite executive orders and guidance calling on agencies to plan for evaluating regulations, FMCSA's proposal does not discuss how it would do so. While some of the linkages FMCSA anticipates cannot be directly measured (e.g., will compliance with HOS regulations actually reduce driver fatigue?), the extent to which the safety benefits that FMCSA predicts transpire should be measurable with data that the agency collects regularly through roadside inspections and accident reports. Consistent with Executive Order 13563, in the preamble of its final rule, FMCSA should commit to measuring the actual results of this regulation, and specify the data and measurement tools it plans to use.

While more difficult to measure, FMCSA should also commit to evaluate whether the paperwork burden reductions are achieved, and whether the rule results in unintended consequences. For example, the proposal considers the possibility of driver harassment. FMCSA may also consider the effect of the requirements on driver compensation, the viability of smaller carriers, etc.