In March, 1995, Land Line staffers sat down with Associate Administrator of the Office of Motor Carriers, George Reagle, following the Truck Bus Safety Summit, resulting in a dialogue published in the 1995 May/June issue.
Three years later we again met with the OMC top gun to update our readers on issues raised at the Summit, as well as current events in the industry.
LL: At the close of the Safety Summit, it was suggested that the participants reconvene a few years down the road and talk about the problems that were identified at the summit. Is there another Safety Summit on the horizon?
GR: It's in what I would call the tentative stage. We have thought that in calendar year '98, or the first part of '99, I'm not sure when, we would like to have another summit. And what we would like to do tentatively, is say – here are the 17 issues (which we really sort of came back and compartmentalized into ten) and then we had people from industry and government looking at those ten issues in a group called Issue Leaders. And what we want to do is take those ten issues and present them at a future summit and say here's where we've made progress.
But I think the thing we want to do is capitalize what Rodney Slater said, which was "bring a community together and let's work on it as a community." So that's what we're going to try to do. It's in the very tentative stages and frankly, informally, we're talking about the possibility of December, '98. But I haven't forgotten about it and even if I had there are enough people bugging me about it, so yes, we want to do it.
LL: Let's talk about some of the problems that were identified at that summit. There are two topics that in the drivers' minds are almost impossible to separate: hours-of-service revisions and fatigue. Truckers are now participating in sleep studies in a laboratory not too far from here. How much longer until this phase of testing is complete?
GR: Let me just sort of circularly answer your question. I know drivers don't, but in my mind, I separate fatigue from hours of service. They're not synonymous. With respect to the hours of service, your readers know far better than I that they were put in place in 1939. And we've done a lot of research since then, and as a result – we've done an advance notice of proposed rulemaking which you all are aware of. We've gotten comments, literally hundreds of comments. We've now analyzed those comments.
One of the things Stan (FHWA's Stan Hamilton) did which I thought was great, was to have listening sessions with drivers at the time we were seeking comments. One of the things the drivers said was when you have a proposed rule, why don't you do this again. I think that's a really good idea, and we'll certainly strongly consider that.
With respect to time schedules, I would expect the following in this year, calendar year '98, we would put out a notice of proposed rulemaking, saying these are the government's ideas on the issue. And in '99, we would finalize it.
I am committed to the Secretary who looked at me square in the eye and said "I want this done by the end of the Clinton Administration." So you can rest assured it will be done. Our time frame is in '98 to do a notice and in '99 a final rule. And I would hope to have some opportunities between the notice and the final rule to talk to drivers and others as well. I think that's really important. By far, the best part of that '95 summit was the driver input in my view.
LL: Even though there is ongoing testing in the sleep area, we will have a proposed rule before that's complete?
GR: Yes. And I think the big piece, the piece that's really important, was the alertness study. And that's finished. We learned a lot from that. And that was sort of the precursor to the advance notice and then all the others.
LL: These tests are ongoing, and some of them will go on past the proposed rulemaking?
GR: Some of them. I think the whole human factors area is going to be an area we will continually look at.
LL: In our interview three years ago, we spoke about technology and how it would be used to enhance safety. You issued a memo in August that caused quite a furor in the industry.
GR: (Laughs) Good. I mean good, people are thinking about it.
LL: And the question our readers are asking is – in allowing auditors access to satellite records, what kinds of violations are you trying to identify? Are you looking for carriers who are pushing drivers, or are you looking for drivers who are exceeding hours-of-service regulations?
GR: Let me walk back through the policy, OK? Just so we can start from a level we all understand. It seemed to me, a year ago in December, I saw technology evolving and I said to myself, you know if we're really going to push technology – which I think we should and everybody ought to embrace it – then we also have to look at it in terms of both incentives and enforcement. Because those questions are going to get asked.
Why? What's in it for me? And how are you going to use it? These are the questions that are going to get asked. It seemed that we needed to look at global positioning systems and the like technology different from these kinds of records. And so I said, we really need to think through what our policy ought to be and how we're going to handle it.
And frankly I have to tell you there is a lot of my staff who would disagree vehemently with the policy that we put out. What we tried to do was say, number one – and I think this is really important – that a carrier is responsible as the first line of defense for what I call safety management systems. It's not the government's job to insure safety alone, it's everybody's job. And the company ought to insure that they know what's happening and that their policies are working, that they're being implemented. So, that's really important to me.
Second, in the policy we state if there is a paper process and they describe their safety management oversight and we think that's a good policy, that's as far as we go. We're not going to ask for GPS records if their system is good. And we're certainly not going to look at those records and say, "we gotcha" because there is a fifteen minute difference between this driver's GPS record and what he wrote. That is not our intent at all and I want to make that very clear, because that question has come up. So it's really important from our perspective, that we are not playing "I gotcha."
And what we're trying to do is start with a premise that it's the company's job to have a safety management oversight system as the first line of defense. And if that system is adequate, we're not going to mess with GPS. Then, if it isn't adequate, we're going to say to the safety investigator – you go talk to the regional administrator. Present your case to him, and make sure he agrees that it's not adequate. This is because I'm concerned about uniformity. So, I think we've insured that.
And I think by virtue of this policy, companies are using GPS for a lot more than just their safety management oversight system – they're using it for economic reasons. By virtue of what we're trying to do from enforcement, we shouldn't create a disincentive. The goal of the whole policy is to insure that we have the safest system possible out there. And if they're doing it by paperwork, that's fine. Again, our goal isn't to catch a driver or a company, it's to say do they have a viable system and is it working the way it ought to work?
So, it's not to catch somebody, either the company or the driver, it's just to say – is the system adequate and other checks and balances in place to insure what we want to get done? But it sure caused a lot of furor.
LL: Do you have indications that it has instead served as a disincentive, as you said?
GR: No, I don't have definitive data. I'll tell you what's happened. One, it went out and I thought, well, the ATA would like it and they won't have a problem with it. (I guess I just proved I'm naive, for sure.) I thought the manufacturers of GPS equipment won't have a problem with it. Probably, the safety advocates might have a problem with it – saying well, you're treating these records different than other records.
Lo and behold, sort of just the opposite happens. The ATA sues me. The manufacturers of the equipment come in, well, they read the ATA article and they take that as gospel, and so they come in and visit the Secretary and me and say, "Geeze, we think this is a disincentive." I walk through the policy and they say, "OK, we buy that."
For me, it was a good example of we should have publicized the hell out of it and what we were trying to do so we got the first shot. And so I learned a lesson.
LL: So what will you be doing in the future as far as clarifying the federal role?
GR: When you get sued, sometimes that ties your hands on what you can do – and one of the issues I have before the lawyers is whether it's OK to publish several articles in several publications that explain what I just said – and that's under review. So, hopefully, we'll get our side of the story out. I think that's really important, and obviously, from the furor, I misjudged it.
LL: The hours of service is a hot button as far as drivers are concerned. We've published a lot of information about the studies that have been done that show circadian rhythms may have a greater impact on fatigue than hours worked...
GR: Time of day is very important.
LL: And in light of these studies, do you feel that stringent compliance with hours of service regulations could in some cases present a safety hazard?
GR: I would say we've heard that. A lot. I don't know that to be a fact. I mean nobody has proved or shown me that, gee, we did it this way and we strictly enforced it and this happened. I don't know any data that shows that.
But I think the dilemma for us is to make sure as we prepare the notice and the final rule that all the research and all the experience and driver input is really taken into account. So, we will have a set of rules that are based on the best knowledge and the best experience we have. And if you go back to the 1939 rule, that was probably based on somebody sitting someplace saying "this is our best judgment on what it ought to be," or it was some kind of compromise.
What I want to do is make sure, by virtue of all the research, all the experience, and driver input, we put together a rule based on that – not somebody sitting someplace and saying this is what I think we ought to do. And it's taken longer than some of us would like, but I think the end result will be much better.
Obviously, I can't tell you what the rule is going to be, because I don't even know, at this point.
LL: Curiously, for sixty years there was no consideration of changing this rule. When do you remember anyone saying "let's change this." Who came up with this idea?
GR: Well, I've only been in this job four years, so I don't know what happened prior to that. But I know when we started talking about the driver alertness study, this huge million dollar plus study, we said as a result, there is a strong possibility the next step will be to change the hours of service.
I don't know what discussion went on prior to that. But I know once I got into the research and I started hearing–at the Summit for example – there was clear, almost unanimity. Not unanimity on the answer, but unanimity that hours of service ought to be changed and they ought to be consistent with research.
There ought to be a correlation between the hours of service and some safety benefit. We have to look at the whole productivity issue as well, and that was clear at the Summit. We have to do something, we can't just keep them the way they are. So, I would say, between the research and the Summit, it was clear to me that there would be a high probability we would get into a rulemaking on the hours of service.
My guess is in the past – I mean it's such a big issue – and I would guess many people said, "geeze, if we get into this, we may never get out." I don't know. But we've got to do it.
LL: When it comes to enforcement of the current hours of service, the drivers out there know that you at OMC know that these rules don't work. As far as enforcement goes, how much leeway can a driver expect who, shall we say, customizes these hours-of-service rules to fit his or her own circadian rhythms versus the stringent ten and eight?
GR: That's a good question. I think there are a couple of things we have to think about. On the study we did on driver alertness we found very clearly – and I think other research studies show the same – drivers are not the best people to determine their own alertness. And I know that from my own experience, cause you say "gee, I can do two more hours." Just because I say I can drive doesn't mean that I could necessarily be proclaimed very alert. So, I think that's one issue we have to take into account.
But with respect to the tolerance, it's my view that if the driver is ten, fifteen, twenty minutes off, it's not an "I-gotcha" game. What we're trying to do is make sure obviously we have the safest most alert drivers out there.
This is a difficult period of time we're in, because all of us want to make the future standard better. And there's a high probability the current one will change to some degree, but we don't know what that change will be at this point. But that is the standard now, and we have to enforce it.
But there has always been a tolerance and there will continue to be one. But what I don't want to do is give the drivers the false impression that they can also create their own hours. Right now those are the hours – that's what we're going to enforce. We're not out to get you. And what we hope to do is take the best of their views from the driver interviews we did, the research, and everything else, and propose standards that will be finalized in '99 that will in all likelihood change what we have today.
LL: In situations where drivers are forced, by virtue of their particular jobs, into stringent compliance with hours-of-service regulations – what is the responsibility of the rulemakers when that driver goes to sleep at the wheel and loses control of that vehicle because it's two o'clock in the morning and this is when his schedule says he has to drive?
GR: That's a tough question to answer. Obviously. I think part of the responsibility is the driver's. If the driver feels he's not capable to drive, he needs to tell his employer – I think that's number one. I think two, the employer needs to know not just how many hours the driver drove the day before. He really needs to look at a period of time.
I know when I was at the National Transportation Safety Board, when what we perceived to be fatigue was a factor in an accident, we would go back and look at least 72 hours and sometimes much longer. We did this to see not only the number of hours, but the variance in the hours. Did he start at the same time? What specific hours did he work? I think more and more, we need to get companies, specifically the safety directors and the dispatchers to understand fatigue is a problem we need to deal with.
One of the things that is clear to me that we have to do, all of us, is to make the companies, especially the vice-president for safety, the CEO, the dispatcher, and the driver knowledgeable about the issue of fatigue. So, I think we all need to work on that.
And I really haven't answered your question. Obviously, what the government is trying to do is make sure that in fact the new rule we put in place has safety benefits and no safety dis-benefits.
Fatigue is a problem all of us need to get smarter on. And I think the companies can't just put their heads in the sand and say "it's not an issue" anymore. It's a very important issue in transportation, and the CEO, the safety director, the dispatcher, and the driver all have to understand it and we have to make sure our policies and procedures benefit safety, not create a dis-benefit.
LL: The issue was raised at the Safety Summit about the limited parking places for drivers to park and sleep. One study indicated we are 28,000 spaces short. What progress has been made toward solving this problem?
GR: Frankly, not a lot. To be very honest about it, not a lot. We did the study with the American Trucking Associations that came out with the numbers you talked about.
One of the things we have done is talk to some states. For example, I've heard of states who have closed many of the rest areas. And one of the things I've done, as a result of that, is talk to the people on the federal aid side and said "can we look into that? Can we see what we can do?"
One of the things I have thought about and haven't really done, is see if we can create a model state where the state does, in fact, the things we want to do. I've talked to ATA about finding a state where the Secretary of Transportation is interested in working the issue.
The third thing is actually Jim Johnston's idea. He brought this up at the Summit. He said we don't need a real fancy place. He said what we need is some gravel, a fence around it, and maybe a police officer that watches the place while truckers are there to make sure that vandalism doesn't happen. And I thought that was a really good idea.
But, number one, I would say we haven't done very much.
Number two, I think it's a very difficult issue when you're talking to states about an additional rest area – if in fact, it's built by the state. Then they really have to trade off maintenance of roads, additional roads, repair of bridges, against this. That's the real world.
But, I believe if we put a coalition of members of the trucking industry together who really want to work this and find a state that is amenable to it, we could at least create a model and then say to the other states – "hey, here's a way it can be done. It's cheap and it fits our need."
It's sort of one of the things in calendar year '98 that I wanted to work on. Because I know every meeting that I have with a driver, it doesn't matter where, that issue comes up.
LL: Ohio is planning to close many of their rest areas on secondary roads now. Arkansas last year considered closing all of their rest areas in response to a crime problem, though we think they've since abandoned that idea. We recently had a call from a driver who told us that rest areas at St. Clair and the 172 mile marker on I-44 in Missouri are now closed from 5 pm to 8 am. He was looking for a place to sleep when he discovered this.
GR: That's an issue – let's do a couple of things. With respect to rest areas, where they're being closed by the state, I would ask you or somebody at OOIDA to let our regional directors know. And see if they can contact the appropriate state people and see what the problem is. That's the short term solution.
But I think the long-term answer has to be to put a coalition together of folks, like OOIDA, ATA and others, who are interested. And see if we can't get a state to start to work the issue. And maybe take some of these ideas like Jim's and see if we can't make it work. Because his idea is not an expensive idea, that's for sure.
But quite frankly, we have not made a lot of progress. It's almost an intractable problem because it involves trade-offs that I'm not sure many states want to make. That shouldn't stop us. We need to work on it.
LL: About the trade-offs – would that then pose a big problem in the possibility of recommending legislation to address the problem?
GR: If I understand the federal aid money, I believe moneys from federal aid can be used to build these rest areas. The problem is, that on the priority list that the state puts together, this probably isn't going to be a high priority. I think that's the issue.
LL: Have you considered, say in conjunction, with the ISTEA reauthorization coming up before Congress, making recommendations to fund rest areas?
GR: I've talked to Tony Kane, our executive director, and some of the people on the federal aid side. We haven't reached the point where we've made decisions or talked about legislative changes.LL
MORE IN NEXT ISSUE
Land Line talks to George Reagle about time limits in rest areas, the opening of the border to truck traffic, a rulemaking on out-of-service criteria, training for entry level drivers, cabotage and issues of the DOT safety bill.
In this new LL feature, we set the scene and put some tough questions to the OMC for interpretation. Answers are provided by the Office of Motor Carriers in Washington, DC.
Scenario: Law enforcement officers wake a sleeping trucker who is parked in a rest area with a time limit on parking and force the trucker to move on. The trucker has not completed the mandatory eight hour rest break after ten hours of driving, and therefore cannot legally drive.
Question: How should the trucker log this? Do federal regulations provide an exception to hours-of-service regulations in this case?
OMC's Answer: The simple answer is the driver is back on-duty driving. The time in the rest area can only be logged for the time spent there, consistent with the regulations in Part 395, i.e., "off-duty" or "sleeper berth." Once the driver resumes driving without the required time off-duty, a violation of the rules has occurred and there is no way to change that.
The prudent driver should make a notation on the log with the particulars, including, if possible, the law enforcement officer's name and ID number. The driver should then proceed to the nearest place where he or she can obtain the necessary rest break before resuming driving. All of this will not undo the violation, and can only serve to mitigate a violation should the driver's logs be subject to review at a later time.
There is nothing in the regulations that addresses the situation you describe. The closest one might come to finding an exception would be in 49 CFR 395.1 (b) (1) or (2), adverse driving conditions or emergency conditions, however, the circumstances described in the above scenario do not contain the elements necessary to invoke these exceptions.
Editor's Note: One more example of how the hours-of-service regs don't fit real world situations! LL