Congress gets earful on HOS Barring a court decision, trucking will very soon be dealing with key changes to the hours-of-service rule

Congress gets earful on HOS

Rule changes due to take effect just 12 days from now

Testimony before a Congressional subcommittee yesterday on impending changes to the Hours of Service (HOS) rules for truck drivers cast some more light on the intentions of the revisions and the difficulty of roadside enforcement of the changes—as well as what may well shape further battles over the rule’s content.

These changes to the rule are slated to go into effect just 12 days from now, barring a court decision on a pending legal challenge:

  • Limiting of a driver's work week to 70 hours within a seven-day period. (Under the current rules, truck drivers can work on average up to 82 hours)
  • Drivers will not be allowed to drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take that 30-minute break whenever they need rest during the eight-hour window.
  • Drivers who maximize their weekly work hours will have to take at least two “night-rest” periods from 1:00 am to 5:00 am. This requirement is part of the rule's "34-hour restart" provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty.
  • Drivers will only be able to use restart provision once during a seven-day period

In his opening statement, Rep. Thomas E. Petri (R-WI), chairman of the House Subcommittee on Highways & Transit, pointed out that ever since Congress directed that a rulemaking on reforming HOS be issued back in 1995, “the regulations have been in constant litigation which has led to confusion among the trucking industry and enforcement community.  Every stakeholder that is impacted by hours of service regulations has passionate beliefs on the correct way to implement them, so it’s no wonder that litigation has persisted.”

Petri remarked that the “real world implications of these new regulations are difficult to predict because of the diverse nature of the trucking industry.  I’m receptive to the concerns of many of my constituents who argue that a one size fits all approach won’t provide the flexibility some companies need to take the appropriate rest breaks.

“For example,” he continued, “I have been asked, if a driver is resting in a chair while waiting for a load to be unloaded or for some other reason and is technically on-duty but undisturbed for 30 minutes, why can’t such a break be counted toward the 30 minute break requirement?”

And observing that some trucking operations, such as oil field equipment operators, have a special exemption from some provisions of HOS, he asked rhetorically “why not others with similar operating characteristics?”

Anne S. Ferro, Administrator of the Federal Motor Carrier Safety Administration (FMCSA) early in her testimony addressed why the agency has been and remains so set on its July 1 implementation date for the revised HOS rule.

Ferro said the agency “acknowledges that some Members of Congress and certain stakeholders” want the July 1 implementation date delayed until three months after a decision is issued by the U.S. Court of Appeals for the District of Columbia Circuit. She said that position was centered on trucking’s argument that it should not be hit with training costs to comply with a rule that could be overturned.

But Ferro stated that the agency “continues to believe it is inappropriate to sacrifice several months of safety benefits from the timely implementation of the rule.” She also countered that “in their request to delay the effective date, the organizations did not provide adequate support for their request. The uncertainty over the outcome of the HOS litigation does not create the likelihood that the industry or the enforcement community will suffer harm due to expenditures for training or the potential for confusion.”

As for the HOS rule changes themselves, Ferro zeroed in on which drivers the revisions will most affect.  “In general, the changes in the 2011 final rule are designed to impact only those drivers working the most intense schedules,” she argued. “As a result, the changes primarily impact the 15% of drivers who average 70 or more hours of work per week. Drivers who average less than 70 hours per week would not be affected by the changes included in this rule, including the new restart provision, and would not likely approach the daily driving, on duty, or weekly on duty limits set by the 2011 final rule.

“Drivers working more moderate schedules may approach 11 hours of driving, or 14 hours on-duty without the imposed 30-minute break, on a particular day they do so only occasionally,” Ferro continued. “As a result, drivers working more moderate schedules are largely unaffected by the changes.”

Ferro also related that FMCSA’s research indicates “85% of the truck driver workforce (1.36-million drivers) has an average weekly work time of 60 hours or less. Of the remaining 15% (240,000 drivers), 160,000 work an average of 70 hours per week and approximately 80,000 drivers work an average of 80 hours per week. Overall, the reduction in maximum weekly on-duty hours to 70 hours will have a limited impact on the truck driver workforce,” she declared.

Testifying in his role as president of the Commercial Motor Vehicle Safety Alliance (CVSA) Major Mark Savage of the Colorado State Patrol, stated that the pending Hours of Service changes will "continue to make enforcement more difficult, especially for those drivers and carriers who choose not to comply… The rules have shortened the work period for some drivers, thus increasing the temptation to falsify their records of duty status.”

Savage argued that “without additional tools in the toolbox such as electronic logging devices and supporting document requirements to be maintained on the vehicle, roadside enforcement’s job will continue to be challenging and those who seek to break the rules will have more opportunities to do so.”

Looking beyond the current HOS situation, Joan Claybrook, consumer co-chair of the nonprofit Advocates for Highway & Auto Safety and a former Administrator of the National Highway Traffic Safety Administration, testified that the latest HOS rule still does not fully address the issue of driver fatigue. But she also contended that the rule’s two key changes—modifying the restart provision and adding two night-time breaks-- nonetheless will improve highway safety and should be implemented with no further delay. 

Claybrook explained that Advocates for Highway and Auto Safety and the other petitioners filed suit because the 2011 final rule “did not go far enough.”  The petitioners argued that the once- a-week or 168-hour limitation on the use of the “short restart” should also have been applied to long-haul drivers who operate seven days a week. “By not also covering those drivers, the final rule allows a huge loophole that limits the safety benefits of the rule,” she said.

“Because these two changes [restart and night breaks] afford modest safety benefits for the travelling public, implementation of the 2011 final rule, even though deficient in other important respects, will have a positive impact on public safety and the implementation of the rule should not be delayed any longer,” said Claybrook. “While these positive changes should be implemented, more effective safety reforms, that will have a greater impact on driver fatigue, need to be adopted…. While the 2011 HOS final rule makes several changes which will save the lives of some truck drivers and other road users, it fails to address the serious underlying major sources of driver fatigue.”

According to Claybrook’s testimony, further changes to the rule will be needed to more fully address driver fatigue. “Despite back-to-back judicial decisions overturning the rule in each case, FMCSA refused to make changes to the maximum daily and weekly driving and work hours allowed by the current HOS rule,” she said.

She went on to stress that “numerous research studies and scientific findings which conclude that there is an increased risk of crashes associated with more driving and working hours among commercial drivers,” and then made her case with these points:

  • Crash risk increases geometrically after the eighth (8th) consecutive hour of driving
  • Under the current HOS rule, drivers are not getting sufficient sleep, obtaining, on average, less than six (6) hours of sleep on work nights
  • Because humans have a biological diurnal schedule that normally requires nighttime sleep, attempts to sleep during daytime result in shorter and less restful sleep periods as compared to nighttime sleep
  • Lack of sufficient sleep from day-to-day and week-to-week results in cumulative sleep deprivation, or sleep debt, that can only be overcome through extended periods of off-duty time for rest and recovery

“Despite unfounded assertions that the current HOS rule is working well and contributing to safety, fatigue is still a major problem that drivers readily acknowledge,” Claybrook added. “Studies have found that a substantial percentage of truck drivers admit to high levels of fatigued driving and actually falling asleep behind the wheel.”

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