The COVID-19 HOS exemption: Is “self-regulation” synonymous with safety?
regular readers and Radio Overdrive Podcast listeners will recall my conversation with Trucker Nation’s head of regulatory affairs, Andrea Marks, about what she sees as the long-lasting promise of the COVID-19 hours waiver, allowing truckers carrying a multitude of products under certain conditions operate regardless of the limitations imposed by everyone’s favorite set of rules – the hours of service.
[Related: How the COVID hours waiver’s long existence might be flexibility advocates’ best chance to further disentangle HOS rigidity]
Just weeks after this conversation, held in part to eliminate changes to the waiver that certainly restricted its application and which Marks felt appeared designed to limit its use, Trucker Nation partnered with a compliance consultant to the ‘State of Michigan, D&K. Truck compliance. Their new effort is underway to collect data, independently of the FMCSA, carriers and individual drivers who have operated under COVID exemption for the past year and a half and more. The team are not shy about saying what they think was the result.
The FMCSA has signaled its intention to use data collected from carriers operating under the COVID-19 exemption after September 1 to understand “how many carriers are using the exemptions, how often and for what purposes,” like me spokesman Duane DeBruyne said around the timing of the changes to the exemption. These changes resulted in a report requirement – maybe more than one question depending on who you talk to – the carriers that use it.
Marks believes the agency’s own data collection will never go as far as what Trucker Nation feels it needs to be done – a close look at the safety results of carriers using the exemption versus those who do. do not, with the potential to point the way for further hours of service reform. “We need to pull together the data that we have all generated over the past 600 days,” she wrote earlier this month, announcing the partnership with D&K. “The FMCSA has a more than lackluster mechanism to signal that it has only given mixed signals since announcing a ‘requirement’ for reporting … We can do better!“
Results of our survey of Overdrive Readers, who we originally posted on this link, of their use of the exemption indicate that at least a substantial portion of the owner-operated trucking segment has in fact used the COVID exemption, increasing the possibility of obtaining significant results from the data collected.
Marks believes the agency is in some ways discouraging the reporting and even use of the COVID waiver with limitations in place as of September 1 – the limited application of the waiver only to driving / duty time limits, and not for example the officer’s judgment 392.3 – call the ban on driving “sick” or “tired”. The most recent version of the waiver takes time to register as if it were normal, although the hours of service limits do not apply. “Why are we asking truck drivers to enter the hours they are not subject to? Marks asked. “We are putting in place drivers” so that the agents can make this judgment “tired” according to the service time limits to which they are not subject by virtue of the waiver. “The fact that FMCSA is doing this to drivers in the midst of a supply chain crisis is disgusting,” she said.
The agency said its effort to collect data on the use of the COVID waiver, announced in tandem with the waiver changes that went into effect on September 1, is for informational purposes only. When I asked if data reporting was required, the FMCSA didn’t exactly answer that part of the question, as suggested above. Marks also worried about the prospect of after-the-fact audit targeting, a concern I myself have heard from one or two owner-operators, limiting the reporting participation the agency wants.
As she put it: “Who can assure me that these carriers will not be added to the ‘random’ audit list, and that they will not be audited retroactively and considering revenue-generating violations?”
For these reasons, she believes the best chance of seizing the opportunity now presented by more than a year and a half of waiving COVID hours is for carriers to take matters into their own hands and report the use to a business. non-governmental – Marks and company are trying to fill this role. Yet they’re still looking for a fully independent, non-governmental, and impartial organization (ideally an academic institution, Marks said) to analyze and report the data and correlate it with safety outcomes. This is ultimately the goal.
Bias is difficult, to be sure – Marks fully recognizes that she is definitely not the person to analyze and report the results, given a strong bias. And I was worried that there was a danger to point out #InvalidateHOS marketing intentions around the data collection effort, as noted above – a selection bias, in essence, appealing only to those with a story to tell that points to a predetermined goal. Still, Marks isn’t discouraged and insists she welcome any participation from all parties who have used the COVID waiver to date. “When we have more people with more credibility in the industry than I do to support this process,” she said, the organization hopes to get enough data for meaningful results. “There is no deadline at this point. It could be a year, two years,” less if attendance is sufficient.
Data entry form on Marks & Company’s new FMCSAReporting.com website requests the carrier’s USDOT number, month of report, total number of loads carried under the COVID waiver, goods carried, and email address / phone number. Marks notes that it is important for carriers to specify the reporting month with each submission, going as far back as possible, and that they collect an actual number of loads carried under the terms of the COVID exemption. (To date, some carriers have simply entered “All,” which requires manual work to get back to the carrier to locate the actual load number.)
The current COVID-19 hours exemption is expected to expire on December 1 if not extended.