USPS Application for Hours of Service Exemption

Hundreds Respond to USPS Request for Hours of Service Exemption

posted December 27, 2005 - updated April 3, 2006

Background

Traffic World

As a government agency, the Postal Service is exempt from HOS rules, but its contractors are not. The agency has more than 5,000 contracts with motor carriers for moving mail. Without the change, Anderson said the Postal Service would be forced to redo some of its contracts, which are built around the old rules. "Existing contract awards were based on internal operating costs and rate structures determined by existing regulations, not the new rules," Anderson said. "Given the rigid time schedules of Postal Service mail processing operations, the revised rules would require more drivers and, in some cases, unique highway transportation operations in order for the mail to arrive/depart on time." One driver who said he drove for three years for a USPS contract carrier told the FMCSA that allowing the exemption would jeopardize highway safety. "We were paid only for the trips we ran, not for the down-time unloading, etc.," Steve Reeves wrote. "As a result, it was common to spend 12 hours (or more) of my day and be paid for only five or six. This encourages some mail drivers to hold down second jobs, and seldom do they (or their employer) faithfully track the hours as required." Reeves urged the FMCSA to make USPS operate like any other shipper

Federal Register Notice : USPS Submits Application for Hours- of -Service Exemption from DOT for Contract Drivers --SUMMARY: FMCSA announces that it has received an application for exemption from the hours-of-service (HOS) requirements from the United States Postal Service (USPS) on behalf of motor carriers that transport mail under contract for USPS. USPS requests that some of its contract motor carriers be allowed to operate under the HOS rules in effect prior to January 4, 2004. USPS believes the exemption would likely achieve a level of safety equivalent to, or greater than, the level achieved under the HOS rules applicable to operators of property- carrying vehicles rules after January 4, 2004. FMCSA requests public comment on the USPS application for exemption. DATES: Comments must be received on or before December 16, 2005. (11/21/05)

Below are samples of (1078) submissions to the Dept. of Transportation's (DOT) Federal Motor Carrier Safety Administration

USPS' Request for exemption to the new hours of service regulations

Advocates for Highway and Auto Safety (Advocates)

Public Citizen

Texas Association of Star Route Mail Contractors

Robert C. Pritchard, APWU Director, Motor Vehicle Service

Michael Foster, APWU Assistant Director, Motor Vehicle Service

Commercial Vehicle Safety Alliance

The International Brotherhood of Teamsters

The Ohio State Highway Patrol

Thomas M. LaFauci

Royster Enterprises Inc. and RaCo Services

Gary W. Walcutt - Maine Citizen

Contractor: USPS Request for Hours of Service Change May Be Economic

In comments submitted to DOT regarding USPS’ request for Hours of Service change for contract drivers, Roger D. Bullard wrote:

“As a USPS contractor of 12 years, I am writing belatedly to express my opinion concerning the USPS HOS exemption request. It appears that the reason the USPS wants this exemption for its contractors, is due to mostly economic reasons. Under the old rules, when a contractor bid a USPS mail hauling contract as an owner/operator, he was able to bid it without adding in the cost of an additional driver

USPS' Request for exemption to the new hours of service regulations

We understand that the District of Columbia Circuit Court of Appeals has vacated the new hours of service regulations and remanded the matter back to the Federal Motor Carrier Safety Administration. Nonetheless, in accordance with 49 CFR 381.210, the United States Postal Service (USPS) is requesting an exemption to the new hours of service regulations (49 CFR 395). We are requesting this exemption to apply to what we will characterize as “short haul” contracted carriers. Note that the regulations provide the USPS an exemption applicable to drivers employed by the federal government. We are also seeking the exemption for contracted carriers and drivers. While it is not practical for us to provide the names, addresses, and United States Department of Transportation (DOT) identification numbers of all the operators covered under the request, we will provide you information showing that the exemption is necessary, prudent, and will provide appropriate coverage consistent with the underlying safety goals of the regulations.

As we mentioned in our correspondence dated December 17,2003, the USPS has over 17,000 highway transportation contracts for the movement of mail between postal facilities and, in some instances, providing in-home mailbox delivery services to rural America. Our request applies to a small segment of those 17,000 contracts. Our data suggests that we will require the exemption for a maximum of 5,096 contracts. We arrive at this number by first eliminating the 7,214 “box delivery” contracts we have, which would not require the exemption due to the nature of their vehicles and hours. Further, we are not seeking the exemption for our “long haul” contracts, which eliminates another 3,097 contracts. Another 1,617 contracts use equipment that is beneath the Federal Motor Carrier Safety Administration threshold of 10,000 pounds GVW. The bottom line is that the USPS is only seeking an exemption for an estimated 30 percent of our 17,000 contracted routes.

It is also important to note that a sampling of the routes for which we are seeking the exemption shows that the average round trip mileage per trip is only 61 miles (30.4 miles one-way). Even based on conservative driving speeds, this represents less than two hours of driving.

top

Advocates for Highway and Auto Safety (Advocates) submits the following comments in response to the notice filed with the Federal Motor Carrier Safety Administration (FMCSA, the agency) by the United States Postal Service (USPS) for an exemption (USPS Request) from the current hours of service (HOS) requirements set forth at 39 CFR Pt. 395. Specifically, the USPS asks the agency to exempt its short-haul, contracted carriers of the U.S. mails from the regulation adopted on April 28, 2005 at 68 FR 22456 et seq., and to allow it to operate under the regulation in effect prior to the effective date of the final rule, June 27, 2003. Advocates strongly opposes this exemption request because the petition as filed has several procedural and substantive defects that require that it be denied.

The petition from the USPS does not specifically demonstrate exactly how contracted commercial drivers transporting the U.S. mails operating under the regulations in effect prior to the new requirements in 49 CFR Pt. 395 would achieve hours of work, driving, and rest whose safety would be equivalent to or greater than achievable under the current HOS regulation. No detailed showing of how driver work and rest schedules under the “old” regulation are equal to or superior to the current HOS regulation can be found anywhere in the letter sent to FMCSA. Further, since the proposed return by these drivers to the “old” HOS regulation means that they no longer would have all work and rest time “on the clock,” but could have their work days extended indefinitely, including their daily shifts extended beyond either the 14 hours or 16 hours limits, as explained earlier, these drivers could in fact accrue daily on the job hours that are even longer than those provided for in the current HOS regulation.

more in PDF File

top

Public Citizen submits the following comments concerning the United States Postal Service’s (USPS) application to exempt contract drivers from the hours-of-service (HOS) regulations. We note first that both the previous and current hours of service rules fall badly short of what would be needed to assure safe highways. The USPS application for exemption contains a serious flaw, which renders it procedurally defective, and is plagued by a misunderstanding of HOS rules for short-haul drivers. In addition, USPS does not demonstrate that the exemption would achieve a level of safety equivalent to or greater than compliance the HOS rules from which it seeks exemption, as it must. For these reasons, the Federal Motor Carrier Safety Administration (FMCSA) must deny the application. Public Citizen endorses comments submitted to the docket by Advocates for Highway and Auto Safety (Advocates).

Application for Exemption is Procedurally Defective

The USPS application to exempt certain short-haul contract drivers from the hours-of-service regulations contains a serious flaw that renders it procedurally defective. The USPS application is dated August 11, 2004,1 and requests that certain USPS contract drivers be exempted from the HOS rules in effect at the time, and instead be allowed to adhere to the previous HOS rules. However, the HOS rules in effect at the time of the USPS application were replaced by FMCSA’s HOS final rule issued in August 2005, and thus the USPS application requests exemption from HOS rules no longer in effect. This flaw renders the USPS application procedurally defective.

Application for Exemption is Plagued by a Misunderstanding of HOS Rules

As Advocates notes in comments to the docket, though it is unclear, USPS appears to believe that the 100-air-mile-radius short-haul exemption was eliminated in the 2003 HOS final rule. Yet the 100-air-mile-radius exemption was expanded in the 2003 rule and further expanded in the 2005 rule.2

USPS Fails to Demonstrate that the Requested Exemption Would Provide an Equivalent or Greater Level of Safety than Current HOS Rules

It is the duty of the party seeking an exemption to demonstrate that the requested exemption would provide a level of safety equivalent to or greater than the level provided by compliance with the regulation.3 USPS, however, does not meet this burden.

USPS asserts that the exemption would allow drivers to spend the night in their own beds, which it argues would offset increases in allowed driving and on-duty time under the old HOS rules. USPS provides no evidence that drivers being able to sleep in their own beds would offset increased allowable on-duty hours under the old rule. USPS does not provide evidence that drivers are not able to sleep in their own beds under the current HOS rules, nor that the old HOS rules would provide them with this benefit. In fact, USPS provides practically no data concerning the work/driving routines of the drivers for which it seeks the exemption. Also conspicuously missing are the critical data showing that driver work and rest schedules under the old HOS rules provide greater safety than those under the new HOS rules.

Additionally, USPS touts its driver screening process as more stringent than those employed by many private carriers. However, this is irrelevant, as it does not address whether the exemption would provide a level of safety equivalent to or greater than that offered under the current HOS rules. USPS also argues that its contract suppliers are provided with schedules to which they are contractually bound, and that this provides no incentive for drivers to arrive early. The point that USPS is apparently making is that its contract drivers likely will not drive long hours or speed because they are not motivated by by-the-mile pay. However, a schedule-based system, especially one that is contractually binding, might result in these same practices. If a driver is stuck in unforeseen traffic, he or she will have to drive faster and longer than normal in an attempt to adhere to the schedule.

In comments to the docket, Advocates notes that the requested exemption would allow drivers to spend more time on the clock than under the current regulations.4 The HOS rules in place prior to the 2003 rules permitted drivers to be placed off-the-clock for indefinite periods of time, allowing work days to be extended beyond the number of allowable on-the-clock hours and contributing to irregular work days. The requested exemption, thus, would reduce driver rest time, and, further, would reduce pay for those drivers compensated only for on-the-clock time, potentially leading to low morale and drivers taking second jobs, both of which would affect driver performance. In addition, increased weekly work is associated with greater fatigue. For example, a 1999 peer-reviewed, case-controlled study prepared for the AAA Foundation for Traffic Safety, found that working more than 60 hours a week increased the odds of a sleep-related crash by 40 percent.5 The new rules, however, put a cap on the maximum number of duty hours for drivers by limiting, as a whole, both driving and non-driving time.

Another major difference between the current HOS regulations and the regulations prior to April 2003 is that the new rules provide drivers with a minimum of 10 hours off-duty rest time – two hours more than the rest time provided under the old rules. A return to the old rules would deprive the drivers of these extra two hours of off-duty time, restricting the amount of time they are given to sleep. FMCSA is well aware of the dangers of sleep deprivation. In its 2005 HOS NPRM, the agency admits that “[s]erious adverse health conditions appear to be associated with chronic sleep deprivation.”6 The agency cites a 1991 review of sleep loss research, which noted problems such as an increased incidence of myocardial infarcts and cardiovascular disease.7 In addition, a 1999 study found that sleep deprivation over numerous days seemed to result in prominent alterations in metabolic and endocrine function.8 And another study done in 1999 indicated that sleep deprivation may worsen age-related chronic disorders like diabetes and hypertension.9

USPS fails to address any of the detrimental consequences that would come with a grant of its application for exemption. Both the new and old HOS rules are deficient, yet there remain serious safety issues raised by the USPS application for exemption that the applicant does not address. USPS must address these issues, which pertain to the specific provisions affecting the drivers for which it requests the exemption.

Requested Exemption May Hamper Effective Enforcement of HOS Rules

Public Citizen agrees with Advocates’s concern that the requested exemption will complicate enforcement of HOS rules. As Advocates notes, FMCSA provided an exemption to short-haul drivers in the August 2005 regulation, which would bring the number of exemptions for short-haul drivers three if FMCSA approves the USPS application for exemption.10 Three different HOS rules would impact the efficacy of enforcement activities. Given the already crippled enforcement environment that FMCSA grapples with, see Government Accountability Office, Truck Safety Federal Enforcement Efforts Have Been Stronger Since 2000, but Oversight of State Grants Needs Improvement, GAO-06-156, it is imperative that FMCSA not further complicate these efforts.

Conclusion

FMCSA must deny the USPS application. It contains a serious error that renders it procedurally defective. In addition, USPS has not demonstrated that its requested exemption would provide a level of safety equivalent to or greater than compliance with the current HOS regulations. Both the old and new HOS regulations are deficient, yet USPS fails to address any of the safety issues pertaining to its request to exempt certain short-haul carriers from the current HOS rules, providing the agency with no legal or factual basis for an exemption.

more in PDF File

top

I am writing on behalf of the Texas Association of Star Route Mail Contractors regarding the DOT’s new hours of service requirement. Our association represents many individuals and companies within the state of Texas who contract with the United States Postal Service. This new requirement presents a number of issues and hardships for Texas highway mail contractors, as well as the Postal Service. Some of the facets involved are scheduling, personnel hardships, financial burdens, and safety issues.

USPS and public safety issue

From the Postal Service standpoint on these types of contracts, they must clear twice the number of drivers for postal badges. This forces the Postal service to give access to the mail and Postal facilities to twice the number of individuals. This is a much bigger threat to public safety than having one driver work a split-shift.

Mail contractors have a proven track record as being one of the safest in the transportation industry. Allowing the USPS an exemption on the hours of service would greatly benefit all parties involved. I believe you can clearly see that these type operators don’t fit into the same category that applies to the long-haul transportation industry.

more in PDF File

top

Robert C. Pritchard, Director, APWU Motor Vehicle Service
This action by the USPS should be rejected for many reasons. First, this is the same basic exemption that the Star Route Association made previously that was denied. In the letter to the National Star Route Contractor Association the FMCSA stated: “FMCSA compared the relief sought by the Association to the core goals in the hours-of-service rulemaking: improved safety, more opportunity for rest, movement toward schedules closer to the body’s 24-hour clock, practicality, uniformity and enforceability. After careful consideration of all available factual Information, including the issues raised by the Association, we have concluded the relief sought in the petition is not consistent those goals and must be denied.” This is backed up by the DOT report Short-Haul Trucks and Driver Fatigue (FHWA-MC98-O 16 dated September 1997) which clearly states that most TIFA (trucks involved in Fatal Accidents) occurs between 4 and 6 am with a second spike in fatalities between 4 and 5:30 pm. These are the very hours that the Postal Contractors would be operating their vehicles. They would be operating these trucks in residential neighborhoods and placing the safety of our children at jeopardy.

more in PDF File

APWU : USPS Seeks Waiver of Driving Safety Rule (12/02/05

top

Michael Foster, Assistant . Director, APWU Motor Vehicle Service,

I am opposed to the Federal Motor Carrier Safety Administration (FMCSA) granting an Hours-of-Service (HOS) waiver to the United States Postal Service acting as a surrogate for the National Star Route Contractors Association who previously had this request rejected. The United States Postal Service is requesting the FMCSA to allow various Star Route Contractors to operate under HOS and safety conditions far inferior to the conditions that they impose on their own employees and equipment. Under normal operating conditions (excluding December), Postal Vehicle Operators are precluded from operating in excess of 12 % hours per day including breaks and split shifts. It is without additional liability and for operation reasons that this request is made on behalf of highway contractors.

As a postal truck driver for 20 plus years, I have first hand knowledge that highway contractor’s equipment and safety standards pare in comparison to the United States Postal Service.

I have witnessed Star Route equipment so defective that drivers have had to substitute plastic buckets for broken seats in order to operate the trucks.

I have witnessed Star Route drivers who work for small companies that are not mandated for Drug and Alcohol Testing to have drivers arrive at Postal facilities so drunk that Postal Officials have refused to load their trucks with mail.

more in PDF File

top

The Commercial Vehicle Safety Alliance believes it would be inappropriate to grant the USPS its request to exempt a large portion of its contractors from the entire hours of service regulations. Not only has the USPS failed to demonstrate an equivalent level of safety, but they also have failed to meet the basic requirements of the exemption application.

Under 49 CFR 381.305(a), it states “You may apply for an exemption if one or more FMCSR prevents you from implementing more efficient or effective operations that would maintain a level of safety equivalent to, or greater than, the level achieved without the exemption.” In the USPS’ exemption application, there is no mention (based on the new regulations) of the USPS exploring alternative operational changes and their resulting impacts on safety and efficiency. In its application, USPS stipulates that one of the contractual requirements is to adhere to basic DOT regulations. Certainly, their contractual arrangements are not so rigid as to be non-negotiable based on regulatory changes? This likely is especially the case for driver hours of service. Based on their application, it seems as if they have made no efforts to look into this issue further. Therefore, how can they make any argument to fulfill the basic requirements of the application -- achieving an equivalent level of safety?

Their application also fails to address most of the exemption application requirements in 49 CFR §381.310, including: 49 CFR §§381.310(b)(2),(3) and (4); and 381(c)(3),(4),(5) and (6). If the USPS cannot identify specifically which carriers and drivers the exemption would apply to, how do they expect to manage compliance? How then would enforcement be able to be accomplished effectively?

The entire industry has had to change and adjust to the new regulations, why should the USPS be any different? The motorcoach operators are under the “old” rules because the FMCSA did not have a significant amount of safety or other operational data under which to base any substantiated decisions. As a result, FMCSA conducted a study on these operators because they are a unique segment of the industry. The USPS cannot be compared with the motorcoach industry as they are totally different operational types.

We urge the FMCSA not to further erode the effectiveness of the new hours of service regulations by providing yet another segment of industry relief from the most fundamental regulations regarding commercial vehicle safety. The Large Truck Crash Causation Study results and other recent studies indicate that drivers are an area that needs more focus, therefore we need to enhance the compliance and enforcement regime for drivers, not minimize it.

more in PDF File

top

The International Brotherhood of Teamsters

The United States Postal Service (USPS) has requested an exemption from the new hours of service rules for the carriers that it contracts with to perform short haul transportation. The IBT opposes this request for several reasons. First of all, the USPS is requesting exemptions for carriers that it does not control; Second, the USPS has not provided nearly enough information regarding the carriers or why the exemption is necessary; Third, the exemption would hinder enforcement of the hours of service rules, and; Fourth and most importantly, the exemption will adversely affect the safety of our highways.

This situation is unusual because the United States Postal Service is not requesting an exemption for employees and carriers under its control. Rather, the USPS has requested exemptions for an undisclosed number of carriers that it contracts with to perform a service. In its exemption request, the USPS states that it “does not control these suppliers and their drivers other than they must adhere to a schedule with basic DOT regulations.” USPS admits that it does not know anything about the operating activities of the carrier companies and nor is it in a position to ensure compliance with safety measures. Furthermore, all of the companies that would be affected have been operating under the “new” hours of service regulations for more than two years and to our knowledge, none of them have found it necessary
to request such an exemption in their own names.

more n PDF File

top

The Ohio State Highway Patrol is strongly opposed to the granting go any hours of service exemption including the exemption requested by the United States Postal Service (USPS. The Federal Motor Carrier Safety Adminitration has worked diligently to create workable and, the Highway Patrol believes, fair hours of service regulations. The granting of exemptions to the hours of service regulations, or for that matter any federal motor carrier safety regulation, is counterproductive to FMCSA's primary mission to reduce crashes, injuries and fatalities involving large trucks and buses.

In their August 11, 2004, letter to Administrator Sandberg, the USPS states that they will provide "information showing that the exemption is necessary, prudent and will provide appropriate coverage consistent with the underlying safety goals of the regulations." The Highway Patrol was unable to find anything in the remainder of the letter that would support the opinion that the exemption is "necessary, prudent, and provides the appropriate coverage" to any highway user other than the USPS.

more in PDF File

top

Thomas M. LaFauci

As a holder of a CDL and a 38 year veteran of the U. S. Postal Service, you are making a grave error if you entertain the Postal Service's attempt to misrepresent themselves as the Employers for the Highway Contract Route (or HCR) drivers who do NOT work for the Postal Service but work for themselves.

The Postal Service does not employ HCR drivers but instead have a contract awarded through a federal bidding process to the companies that employ these HCR drivers.

HCR drivers are forced by their employers to work longer hours than allowed while driving sub-standard equipment. Postal employees regularly see this equipment each time they pull up to a postal dock to load/unload containerized mail.

Many of these HCR drivers are utilized on multiple contracts held by their employers that effectively beat the current driving regulations since their time is split up between two or more contracts.

The Postal Service does not track the number of hours an HCR driver currently drive in a given time frame. They claim it is not their problem not their responsibility to do so.

Local police authorities generally do not stop an HCR driver because of the placard stating "U. S. Mail" that is imprinted on the side of the HCR's truck.

The Postal Service has a pool of postal drivers that are utilized to transport mail between and among postal facilities using their self-obtained CDL's issued from the State of Residence.

These are the true postal drivers that are directly employed by the Postal Service and who have Union representation at all levels of postal authority.

The Postal Service also has a full network of Vehicle Maintenance Facilities that ensure all postal vehicles are road-worthy and safe to operate on public roads. These Postal Truck Technicians are required to sign off on all work orders to ensure a postal vehicle is safe to operate. That makes postal employees accountable for the truck repairs

By contrast, HCR drivers work for outside companies, like the many companies controlled by Clifford, B. Finkle, Jr. or Meyers Transport whose only link to the Postal Service is the award of a two or four year contract to transport mail.

That contract award is always influenced by the political process meaning lobbyists in Washington, D. C. and other personal influence to a lesser degree on the Area/District/Local level of the Postal Service.

There is no policing of the bidding/awarding process on the Area/District/Local level by any postal Union official as the Postal Service awards these contracts without scrutiny from an impartial authority.

more in PDF File

top

My name is Randall H. Royster and I represent 2 companies that contract mail transportation for the U. S. Postal Service. These companies are named Royster Enterprises Inc. and RaCo Services, both located in Ashland, Alabama. They transport U.S. Mail out of Atlanta, GA, Birmingham, AL, Montgomery, AL. and Pensacola FL to various locations.

Both companies have out-standing safety records. We began hauling mail in 1973 and operated under the old rules with excellent safety records.

Under the new rules; we were forced to hire approximately 12 part-time drivers. We had to reduce the hours worked on the full-time employees, in order to comply with the rules that went into effect on January 4, 2004.

Our company has been forced to purchase autos and mini-vans in order to relay drivers to different points along our mail routes, in order to maintain compliance. This has cost numerous dollars with no change in our safety ratings.

more in PDF File

top

Gary W. Walcutt - Maine Citizen

I am speaking on this issue as a Maine citizen as I feel I can best express the impact this rule exemption would have at the local and state level.

Granting the US Postal Service an exemption to the Hours of Service rule would not provide any benefit to the community and would subject the citizens of Maine to unsafe conditions on our roadways. Maine enacted a Tired-Trucker law due to the unnecessary loss of life and economic devestation caused to victims of inexperienced and over-tired truckers on Maine Interstate highways and town roads.

The Postal Service has every ability at this point in time to deliver mail to processing plants in an efficient and safe manner. The Postal Service has a responsibility to be a good corporate citizen in every state that it operates and Maine should not be an exception. The lives of Postal Service employees and its customers should be the deciding factor rather than an attempt to minimize costs on the backs of those citizens.

I also question why the Postal Service would seek an exception for independent companies that contract with the Postal Service for Highway Contract Routes. That responsibility rests with each individual company. The Postal Service has no jurisdiction in such matters and would better served to minimize costs by elimnating unnecessary management positions and utilizing best business practices that transcend television screens during 60 second commercials.

The Postal Service feels it has a win-win situation here as the Service will reap the benefits of extending hours for fewer employees during the day and letting small to medium sized trucking companies absorb the liability when their employees cause death and/or injury. This exception is bad for Maine and it deserves to be rejected.

PDF File

back to home page back to Postal News