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HOS Proposal Seems Likely to Lead to More Litigation

Early reaction to the Federal Motor Carrier Safety Administration's proposed changes in the hours of service rule indicates that the rule is likely to remain in litigation.

It is not clear what the proposed changes will do for safety. The agency says they will make trucking safer. The safety advocacy community says they do not go nearly far enough. The trucking industry says they go too far.

Despite a decade of effort by the agency, there still is no incontrovertible case that one version of the rule is better than another in terms of safety and practicality. Nor is there likely to be: Trucking is an enormously diverse and complex business, and it is difficult to quantify the effects of safety regulations. Perhaps as a consequence, the rule is deeply politicized.

Public Citizen and its allies describe the current rule as a "midnight regulation" of the George W. Bush administration "issued in the waning hours before leaving office." American Trucking Associations describes the proposed revision as the work of an Obama administration that is willing "to break something that is not broken, (which) likely has everything to do with politics and little or nothing to do with highway safety."

Meanwhile, trucking companies and the enforcement community continue to conduct business under operational restrictions that are subject to change from year to year as litigation progresses and rulemakings proceed.

Under the terms of its agreement with Public Citizen and other groups involved in the repeated lawsuits against the current rule, FMCSA has until July 26, 2011, to come up with a new rule. The groups reserve the right to return to court if they do not like the new rule, and their initial statement indicates that they are not inclined to be supportive.

"The new proposed rule does not eliminate anti-safety provisions that allow truck drivers to drive and work long hours, get less rest and drive while fatigued," the groups say in a statement.

They acknowledge the agency's preference for cutting the 11-hour daily driving limit to 10 hours, but oppose its willingness to consider keeping the 11-hour limit. They see the requirement that drivers get two nights of rest in their 34-hour restart as an improvement but still would prefer a 48-hour restart.

On the other side, ATA says the proposal is "overly complex, chock full of unnecessary restrictions on professional truck drivers and, at its core, would substantially reduce trucking's productivity."

The association is sending signals that it will consider litigation if the agency produces a final rule that is not satisfactory. It has set up a web site, www.safedriverhours.com , that puts forth its concerns about the hours proposal.

Much more will be said about the proposal by these groups as well as other important stakeholders such as the Commercial Vehicle Safety Alliance, which represents the enforcement community, and the shipping community, as the rulemaking proceeds. The opening yesterday of the docket gives all parties a chance to review the proposal and comment in detail. The docket will remain open until February 28. For a copy of the proposal and a link to the docket, go to http://www.fmcsa.dot.gov/HOS .

The agency said it is proposing changes in the current hours of service rules to give drivers the flexibility to take a break during the day and reduce the health and safety risks of long hours of work. Here are details on the changes and the agency's rationale.

Daily Driving Time

FMCSA is considering the possibility of limiting daily driving time to 10 hours rather than the current 11 hours. The agency said it favors a 10-hour limit but is looking for comments and data on the issue.

The gist of the agency's commentary on this point is that it does not have enough reliable information to make the call either way.

"Given the imprecise but demonstrated relationship between fatigue, time-on-task, hours awake, and hours worked, there is a reasonable argument for limiting driving time to 10 hours," the agency says. It is looking for data to calculate any difference in crash risk between 10 and 11 hours. "An answer would turn on knowing the total number of crashes in each hour and the percentage of driving that takes place in each hour."

The agency acknowledges ATA's argument that limiting driving time to 10 hours would require carriers to hire more inexperienced drivers, which would increase risk on the road, but says the problem is not as serious as ATA suggests.

Most freight is short-haul, and these drivers are not likely to drive even 10 hours, let alone 11, the agency said. In long-haul operations, 27 percent of driving periods extended into 11th hour, but it would be better to improve training and supervision of new drivers than push older drivers to drive longer, the agency said.

As it addresses this issue, the agency will have to resolve an inconsistency between its current commentary and its earlier analysis of the issue.

In the commentary on this proposal the agency references studies that show the prevalence of fatigue-related crashes increases with hours driven, particularly between hours 10 and 11.

In 2008 the agency defended the 11-hour rule by citing a study showing that the greatest risk of an accident occurs in the first hour of driving, and that the risk in the second through 11th hour is relatively flat.

"This result strongly supports the Agency's conclusion that an 11-hour driving limit adopted in this final rule, when combined with the 14-hour driving window and 10 hours of off-duty time, does not impose an increased risk to safety," the agency said in the prior rulemaking.

The agency also said at that time that data gathered since the original rule came out have bolstered its contention that relatively few drivers use the 11th hour of driving time - it mainly provides flexibility for drivers to complete their work in a day that has been shortened from 15 hours or longer to 14 hours maximum. Almost 70 percent of drivers drive less than 10 hours in a typical daily shift, the agency said.

Now the agency says that this study, which was done by the Virginia Tech Transportation Institute, does not appear to be definitive. Among its shortcomings: it used a small sample of drivers and it did not establish a link between critical incidents and crash risk.

Adding a Break

The proposal would give drivers a one-hour break during the day by limiting actual duty time within the 14-hour driving window to 13 hours.

This would reduce the maximum allowable work during a duty period by one hour and give a driver the chance to take up to one hour off duty. The agency said it should increase sleep by giving a driver time to tend to business that might otherwise cut into sleep during his 10-hour mandatory break. It also said the change will mitigate fatigue and health impacts for drivers working to the limits of the rule.

The agency reasons that if it combines this break requirement with a 10-hour limit on driving, it can preserve the current amount of on-duty, not-driving time of three hours under the 14 - 11 rule. If agency adopts the 11-hour limit, drivers would have only two hours of on-duty, not-driving time.

The agency said that since relatively few drivers work to the 14-hour limit, the reduction to 13 would have limited impact on most drivers.

16-Hour Option

All drivers would have the option of taking two 16-hour shifts a week but would have to be released from duty afterwards. Any on-duty time after 14 hours would be counted as a 16-hour shift.

FMCSA said the 16-hour provision is in response to driver requests for flexibility, as well as agency's interest in encouraging drivers to take breaks.

Under this provision, the "week" is not a calendar week but a moving period of 168 hours. A driver who used one 16-hour window starting at 6 a.m. Tuesday could not start another 16-hour period until 6 a.m. on the following Tuesday.

The 34-hour restart would not affect this provision - a driver does not get two 16-hour days by completing a restart period. Also, the extension does not extend 13-hour duty time: to drive up until the 16th hour a driver would have to take 3 hours off-duty during driving window.

The agency had a message for drivers who say they need an extended driving window to accommodate the times when they run out of hours at a dock but still have to move the truck, or wish to sit out congestion. Such a provision is not advisable, the agency said. "These drivers were essentially asking for an unlimited extension of the work day as the result of frequently occurring incidents that should be foreseeable under most circumstances."

The agency is looking for comments on whether the extension should be 15 hours rather than 16, or limited to once a week rather than twice. It also wants comments on whether drivers who drive at least three hours between midnight and 6 a.m. should have an hour shorter duty period (12 rather than 13) to give them more time for sleep.

Limit Consecutive Time Behind the Wheel

The proposal would limit consecutive time behind the wheel by prohibiting a driver from driving if it has been more than seven hours since his last off-duty or sleeper-berth period of at least 30 minutes.

A driver could remain on duty without a break after the seventh hour but could not drive without taking a break. A driver who took a half-hour break four hours after coming on duty would need a second break no later than 11.5 hours after coming on duty, in order to drive after that time.

The agency noted that 65 percent of drivers already take breaks of a half-hour or more during the day. "The break (requirement) will reduce time-on-task effects and negative health impacts of prolonged sitting," the agency said.

Modified Restart

The proposed rule would modify the 34-hour restart: it would have to include two periods between midnight and 6 a.m., and it could be used only once a week.

This provision also would require drivers to designate a specific period as a restart, so that drivers who are forced to take a long break in the middle of the week as they wait for a load or are sick do not have to take that time as a restart.

Here's an example: If a driver ends a work week Friday at 6 p.m. and begins his restart, the restart could end no earlier than Sunday at 6 a.m., and the next restart could begin no sooner than the following Friday at 6 p.m. If the driver ran out of weekly hours at noon on that Friday, he could not count the off-duty time between 12 and 6 toward the 34 hours.

The agency sees this mainly affecting night drivers because the 34-hour restart already allows 2 nights of sleep for day drivers. It said that most night drivers work for LTL or local carriers and usually take weekends off, so they will not be affected by the change.

To justify the change the agency cited a study by Washington State University that found the restart is not effective for workers who got only one night's sleep and two long naps during the break. Research indicates that daytime sleep is not as restorative as night time sleep, the agency said. "Although it is not feasible to eliminate nighttime driving, such driving cannot be treated the same as driving during daytime."

This requirement preserves the 34-hour restart in name but expands it in effect. Most restarts for daytime drivers would range from 34 to 48 hours, while drivers on a regular night schedule would need about 58 hours off to get the two nights of sleep and stay on schedule, the agency said.

The agency says it has stuck by the 34-hour restart in past versions of the rule because it provides productivity benefits and it believed that drivers would not use the provision to work extreme hours. "The agency assumed that drivers would use the restart mainly to simplify bookkeeping and to limit down-time while away from home."

Now the agency says that it learned during the listening sessions earlier this year, and in comments, that drivers and carriers do use the 34-hour restart as a minimum. Drivers who are on the road for weeks at a time could work very long hours, and some carriers with regular schedules say they use the restart to add one work shift a week.

"If carriers have arranged their schedules so that drivers are on duty for the full 14-hour day, as ATA claimed in its 2010 comment to the docket, then the restart allows a driver to work more than 80 hours in seven days compared with 60 hours in the pre-2003 rule."

The agency said it continues to believe the 34-hour restart is a sensible way to let drivers spend less idle time on long runs, but it must balance this against the risk that the restart may be exacerbating problems with long hours and resulting fatigue. Hence the two new limits on the restart provision.

On-Duty Definition

The proposed rule would change the definition of on-duty time from any time in the truck, except the sleeper berth, to exempt any time spent resting in a parked truck and up to two hours in the passenger seat of a moving truck immediately before or after eight hours in a sleeper berth.

This change arises from a petition by ATA.

In its commentary the agency acknowledges carrier and driver concern about the 8-and-2 split. Team drivers want shorter runs because it is hard to sleep in a moving truck, much less stay in the berth for eight consecutive hours. But the agency says there is no clear evidence that two short sleep periods can provide the equivalent of one longer period.

The agency notes that even though it is not changing the sleeper berth provision, other changes it is proposing will affect sleeper berth users.

Other Changes

Drivers would have to be released from duty after 14 consecutive hours, rather than have the current option of continuing on duty but not drive. FMCSA wants a provision that says when a driver exceeds the driving time limit by three hours he has committed an egregious violation and is liable for the maximum fine. The agency said it is not proposing that this fine be automatic, because there are circumstances in which such a violation could be considered less than egregious. Driving 14 hours straight, for example, is clearly egregious. A driver who drives 10 hours, takes a nine-hour break and then drives four more hours has broken the rule but arguably not in an egregious way. The oilfield operations exception would be revised to clarify the language on waiting time and to state that waiting time would not be included in the calculation of the driving window.
Other key components of the rule would not change: Drivers would still have to take off 10 consecutive hours per day, the weekly limits for on-duty hours would stay at 60 in seven days and 70 in eight days.

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