I. BACKGROUND

Congress created the Department of Transportation (DOT) in 1966, and transferred responsibility for regulating motor carrier safety from the Interstate Commerce Commission to DOT. The Department of Transportation is charged with ensuring the development, coordination, and preservation of the transportation system in the United States. The Federal Highway Safety Administration (FHWA), one of DOT’s modal administrations, has been delegated numerous duties involving regulation of motor carriers, including the promotion of safe, adequate, economical, and efficient motor carrier transportation.

FHWA has been considering possible modifications to its regulations which govern hours of service (HOS) for drivers of commercial motor vehicles (CMVs). The current HOS regulations had their origins in a set of motor carrier safety regulations issued in 1939 by the Interstate Commerce Commision (ICC). Those regulations sought to assure that motor carriers and their drivers operate safely by limiting the hours of service of drivers for interstate motor carriers. They prescribe that no driver should drive for more than 10 hours in any period of 24 consecutive hours unless the driver was off-duty for 8 consecutive hours immediately following the 10 hours of driving. Drivers were limited to 60 hours of on-duty time in any week, defined as 169 consecutive hours, or, for motor carriers that operated every day of the week, 70 hours in any period of 192 consecutive hours. Some exceptions were provided, such as for driver salesmen employed by private motor carriers of property and farmers of certain agricultural commodities. These regulations were developed in considerable part through ICC hearings, examination of states’ rules, input from carriers and drivers, and negotiation among affected interests, and were not based upon scientific studies.

The current HOS regulations have changed little since their initial promulgation by the ICC, even as increased roadway traffic, a larger commercial vehicle sector, transportation deregulation, and many other economic, regulatory, and social factors have changed driving conditions. The trucking industry is no longer a single “industry” but rather it is many industries with diverse needs due to the numbers of types of vehicles driven, cargoes hauled, delivery systems, duties and compensation arrangements, and labor-management practices. It should also be noted that some parts of the industry have changed substantially in recent decades, with “just-in-time” delivery and night driving becoming major factors. Many groups now believe that operations based on the current HOS regulations can lead to dangerous practices and even promote driver fatigue, especially when combined with an enforcement system that relies on paper log books that in many cases do not reflect actual driving or on-duty time. In addition, the HOS rules are seen by many in the trucking industry as inflexible, with an approach that merits modification in light of the dynamic, diverse nature of today’s commercial operations.

 

FHWA, and other agencies, has sponsored considerable research over the past 30 years on driver alertness, fatigue, and performance, as well as other aspects of transportation safety. However, in light of the widespread view that the HOS regulations should be revised to reflect current conditions, FHWA took steps to begin the process of updating and amending the rules. In 1996, FHWA issued an Advance Notice of Proposed Rulemaking in an effort to gather all pertinent data and seek public input that would lead to informed decisions. That notice gave rise to a large number of comments reflecting a wide array of views. Though numerous commenters agreed that change was necessary, they differed in their views as to the seriousness of the problem and the amount of changes that were warranted. Following the ANPR, the controversy continued to escalate. Even more recently, there has been extensive press coverage regarding the number of truck crashes, and there is now discussion among some in Congress to move the Office of Motor Carriers from FHWA to another division in DOT.

Given the ongoing controversy, and an impending Congressional deadline for revising the HOS regulations (March 1999), FHWA retained the services of Alana Knaster and Charles Pou, from the Mediation Consortium, to serve as conveners to provide an independent, neutral evaluation regarding the feasibility of FHWA’s conducting a negotiated rulemaking or another collaborative process for developing proposed rules. The team’s assignment was to interview the key stakeholder groups and report back their findings and recommendations to the Agency.

This report reflects the results of the team’s inquiry and analysis. It does not necessarily reflect FHWA’s views, except where it explicitly so states.

II. THE CONVENING PROCESS IN A NEGOTIATED RULEMAKING

Negotiated Rulemaking Generally. Negotiated rulemaking is a process in which representatives of the interests that would be substantially affected by a rule, including the agency responsible for issuing the rule, negotiate in good faith to reach a consensus on a proposed rule.’ The representatives who serve as members of a Negotiated Rulemaking Advisory Committee determine what vital information or data is necessary for them to make a reasoned decision, develop an approach for acquiring that requisite information (including establishing technical workgroups), consider that information, examine the scientific, legal and policy issues involved in the regulation, and seek a consensus recommendation to the agency. As part of the consensus, each private interest agrees to support the recommendation and resulting rule to the extent that it reflects the agreement, and the agency agrees to use the recommendation as the basis of its action.

Several things are implicit in this description that merit emphasis: First, a senior representative of the agency is a full participant in the give-and-take and deliberations of the negotiated rulemaking committee. Second, the committee makes its decision by consensus, which is defined by the Negotiated Rulemaking Act as the “unanimous concurrence among the interests represented on a negotiated rulemaking committee.“2 Each participating interest thus has a veto over the decision. This process has proven successful in developing agreements in many highly polarized situations and has enabled parties to address the most effective or efficient way of solving a regulatory controversy. Next, the agency agrees to use the consensus as the basis of a proposed rule, which necessarily means that the agency will follow the traditional process of publishing the proposal as a Notice of Proposed Rulemaking and receiving comments on the proposal, before issuing a final rule. As a matter of administrative law, the agency will also be required to modify the proposed rule in response to significant, meritorious comments.3 Finally, the consensus of the committee is a recommendation to the agency. The agency alone retains the authority to issue the rule and may modify the proposal in response to comments. Since representatives of the affected interests actually share in the making of the regulatory decision, the resulting consensus is far more than merely a recommendation -especially since the agency itself endorses it during the course of the deliberations.

‘The process is described in the Negotiated Rulemaking Act, 5 U.S.C. 5 561 et seq.

The definition continues that the committee may agree to define such term to mean a general but not unanimous concurrence; or agree upon another specified definition. 5 U.S.C. 8 562(2).

As a practical matter, this requirement means that the negotiated rulemaking committee needs to consider seriously what adverse comments might be submitted in response to the publication of its recommended rule lest its work be unraveled by unanticipated objections.

 

Convening. The first step in a possible negotiated rulemaking (known colloquially as a “reg-neg”) is to conduct a “convening” assessment. The convener who may be a neutral or someone assigned by the agency, identifies and interviews the interests that would be substantially affected by the proposed rule and individuals or organizations that might represent those interests. 4 The convener, based upon the interviews, identifies the issues of concern that would need to be addressed in the negotiated rulemaking, and determines whether “the establishment of a negotiated rulemaking committee is feasible and appropriate in the particular rulemaking.‘15

The Negotiated Rulemaking Act6 sets out some criteria for an agency to consider in deciding whether a particular rule could be developed using a negotiated rulemaking process. These factors include whether: (1) there is a need for the rule; (2) there are a limited number of identifiable interests significantly impacted by the rule; (3) a committee can be created with balanced representation who can represent the identified interests and can negotiate in good faith; (4) consensus on the issues appears likely; (5) the reg neg will not unduly delay the issuance of the rule; (6) the agency has resources and is willing to assist the Negotiated Rulemaking Committee; and (7) the agency, within the constraints of the law, will use the committee’s consensus as the basis of the rule for notice-and-comment.

Notice of Intent. If, after the convening, the agency decides to go forward with a negotiated rulemaking, it publishes a Notice of Intent in the Federal Register, and other publications likely to be read by those interested in the subject matter, announcing its intention to conduct a reg-neg, describing the subjects and scope of the rule to be developed, and listing the people or interests that will be on the committee.7 The notice also solicits comments on the decision to use negotiated rulemaking to develop the rule, and it invites anyone who believes he/she will be substantially affected by the rule but who is not adequately represented on the committee to apply for membership on it.* The notice serves the purpose of ensuring that no important interests are overlooked, and that everyone understands that the decision on the rule will, at least initially, be made in the committee, so that if anyone is interested, they need to come forward. Following the Notice of Intent, a committee is established and the actual negotiations begin.

Since a reg neg is largely a democratic exercise, the affected interests generally choose their own representatives on the committee.

55 U.S.C. 6 563(b)(l)(B).

65 U.S.C. 6 563.

75 U.S.C. 6 564(a).

‘5 U.S.C. 9 564(b).

III. APPROACH UTILIZED BY THE CONVENING TEAM

The convening team met initially with FHWA staff members to obtain background information pertaining to the HOS regulation and potential issues that would need to be addressed. FHWA provided the team with an initial list of persons to contact. The conveners then began interviewing people on the list. The interview questions were designed to obtain input on the following:

The team’s interviews also served to explain negotiated rulemaking to potentially interested persons. While some people were familiar with the negotiated rulemaking process, others found the explanation helpful in better understanding how numerous interests can be represented on an advisory committee and how a consensus package of recommendations is developed.

The interviews were conducted in person and by telephone. (See Appendix for a list of persons contacted.) Since the conveners informed the parties that comments provided during the interviews would be kept confidential, this report does not link issues with individuals or organizations who have expressed a particular opinion. The report contains a synthesis of the comments and analysis of the information and data gathered during the convening process. The report is designed to assist FHWA in making its decision as to whether or not to empanel a negotiated rulemaking committee or undertake some other consensus process on HOS revision.

IV. FINDINGS: SUBSTANTIVE AND PROCEDURAL ISSUES RAISED BY STAKEHOLDERS

Each potential participant was asked to describe what issues would need to be addressed in a negotiated rulemaking on hours of service for drivers from the perspective of their organization or stakeholder group. They were also asked to discuss their views on the appropriateness of a negotiated rulemaking process for the HOS regulation, including advantages and potential problems in undertaking such a proceeding.

Several preliminary comments are in order. First, the current regulations have been in effect for over sixty years and many individuals fear the unknowns that change might bring, even though they strongly recognize and urge change. Organizational and personal sparring dominate much of the public interaction among the stakeholder groups. Intense scrutiny by Congress and the media regarding the need for overhauling the regulations, and the recent FHWA Inspector General’s report, merely add to the conundrum. Not surprisingly, as the “new kids on the block”, the conveners were greeted with warnings about the intransigence of opposing interest groups. In response to the conveners’ question, “Where do you think the other parties have flexibility?“, with few exceptions, parties were not optimistic about their opponents’ ability or willingness to compromise.

It was easy for the conveners to be initially misled by the negative comments of the parties into thinking that none of the key stakeholder groups were capable of compromising on the issues. But contrary to the stereotypical views that each group has of one another, the conveners learned that there are a number of commonly held assumptions that might lend themselves to productive deliberations on HOS issues. In addition, it appears that the parties have a good understanding and appreciation of the constraints that might limit one another’s flexibility, and that they have already given a great deal of thought to how to strike a balance among competing interests. Everyone involved knows that the stakes are high and recognizes the obstacles that would have to be overcome both within organizations and among the competing interests. Even so, a number of groups are concerned about taking the first necessary steps toward exploring possible common ground because of a concern that the outcome could be less acceptable than the status quo.

This section will outline some of the commonly held views expressed by the parties contacted during the convening process. The report will then highlight divergent positions both on substantive and procedural issues. This discussion is intended to set the stage for the following section, which describes possible process options that FHWA might consider for addressing changes to the current HOS regulations.

Common Assumptions

Beyond these shared assumptions, there is a wide range of opinions on what could or should be addressed in a revised regulation and whether it would be best to proceed via an interactive stakeholder process or a traditional rulemaking proceeding.

The discussion below sets forth specific topics suggested during the course of the convening interviews. There is general agreement on the core issues that need to be covered in regulating hours of service. These include:

- on-duty time
- driving time
- off-duty time
- cumulative hours/days in a work cycle
- restart provisions
- notice of work assignments
- fatigue management during nighttime driving
- quality and quantity of resting environments (sleeper berths; rest stops)
- enforcement and monitoring methods
- funding for enforcement

However, there were significant differences, both within each of the interest groups and among the parties, as to whether negotiations should be more expansive in scope. A number of parties stated that HOS discussions should be confined to work schedules and
enforcement. Other stakeholders stressed the need to broaden HOS to encompass concerns regarding driver lifestyles, health, and compensation, as well as conditions facing, and demands placed upon, drivers in the workplace. Arguments for and against
broadening the scope of issues widely; they included: (1) a broad set of issues needs to be considered or else any solution would be piecemeal and ineffective; (2) many such issues are beyond the purview of FHWA and therefore inappropriate; and (3) discussions should be focused on safety and core issues only, since taking on an entire set of interrelated, complex economic issues would be beyond the capability of a short-term negotiationsprocess.

The discussion below attempts to describe the arguments provided by the parties as to the
appropriateness of including or excluding a number of additional topics for consideration
in a reg-neg on HOS issues.

Other potential HOS issues suggested bv the parties

Shipper demands on drivers. A number of parties suggested that unreasonable demands placed on drivers by many shippers to deliver goods on time result in unsafe driving practices and violations of the hours of service limits. In some instances, they said, these situations are a consequence of the “Just in time” delivery demands that increasingly characterize certain segments of the economy; others described long waiting times for drivers, while products are loaded or unloaded, that subtract from the hours available for driving. While there was agreement among several stakeholder groups that shipper demands have an important effect on truck safety, there were strong feelings on both ends of the spectrum as to whether these issues should be addressed in an HOS regulation by FHWA. One side argued that this was an appropriate extension of agency authority, or that these important issues at least merited discussion, while others believed that these issues should be addressed outside of the HOS rulemaking.

Basis for compensation and overtime compensation. Several groups suggested that compensating drivers by the mile and not providing overtime pay affect safety by creating an incentive to exceed speed limits and drive beyond the hours set in the regulations in order to cover greater distances. Their arguments for including these issues were substantially similar to those raised regarding shipper demands. Again, those who opposed including these issues believe that “Fair Labor Standards Act matters” and labor-management/contract issues could complicate negotiations and should be “off the table”. Exemptions/Exceptions. Parties raised the issue of exemptions to the HOS regulations in both a substantive and procedural context. There are currently federal and state exemptions for certain activities, e.g., agriculture and emergency repair operations. Other sectors in the trucking industry have suggested either that (1) there is no need to change the current rules for their operations because they have a good safety record or already have special licensing or OSHA requirements that differentiate them from other sectors or (2) driving is not their primary activity (e.g. building contractors, hazardous materialtransport) and there need to be provisions in the regulations to accommodate these distinctions.

While there is some degree of sympathy expressed by other stakeholder groups for considering exemptions and exceptions, there is sufficient controversy over how to characterize different industry sectors and determine appropriate safety regimes, as well as the ability of law enforcement to make such distinctions, to suggest a careful examination of these issues would be required.

Available rest areas. Many people concurred that having a sufficient number of rest stops is an important factor affecting the management of fatigue. However, some parties were concerned about including these issues in any HOS negotiations because it would require including interests, i.e. owners of truck stops, who would not have safety as their primary interest. This could add an unnecessary complexity to the talks.

Applicability to international drivers/NAFTA constraints. This is a major issue to several stakeholder groups. Although there are obvious safety implications, several individuals stressed a need to recognize restrictions on FHWA’s legal authority to address this issue.

Safety cost/benefit analysis. All of the potential players acknowledge the need to determine the economic ramifications of any changes to the HOS regulations. However, several parties have indicated that they believe the analysis needs to do more than weigh the estimated direct costs per accident against the costs to a trucking company for making changes. They propose that FHWA look at external costs as well, such as the cost of traffic congestion that affects productivity of workers who cannot get to their jobs or the cost to clean up a spill.

Process issues raised bv the parties.

As part of the interview process, parties were asked to provide their perspective on the appropriateness of utilizing a collaborative approach, and more specifically, a negotiated rulemaking process, for developing a revised HOS regulation. They were asked to discuss (1) the advantages from their perspective; (2) potential problems that they might foresee; (3) how one might make a negotiated rulemaking process on HOS more effective given the problems they identified; and (4) their willingness to participate in a “reg-neg”.

Parties expressed strong opinions on the viability of a collaborative approach for addressing HOS. Positions ranged as follows:

VIEWS AND ARGUMENTS FROM SUPPORTERS OF A NEGOTIATED RULEMAKING

Parties who were either proponents of “reg-neg” or preferred a collaborative approach over traditional notice and comment had the following observations and suggestions on what would be the necessary ingredients for a negotiated rulemaking on HOS to be effective.