When Ann Ferro, the current FMCSA Administrator, was sworn in last year, it was with the agreement that the FMCSA would review and consider crafting a new Hours of Service (HOS) rule to put a lawsuit by special interest groups, including Public Citizen, Advocates for Highway and Auto Safety, and the Teamsters union, on hold.
With this settlement, the FMCSA would be required to have a formal draft of a Notice of Proposed Rulemaking (NPRM) by mid-July 2010, and would publish a final rule within 21 months of the date of settlement (Oct. 26, 2009), which would be July 26, 2011.
Between January and March 2010, the FMCSA held a total of 5 listening sessions across the country to get feedback from both drivers and carriers regarding current HOS rules, and any proposed changes.
Those who attended the listening sessions, both motor carriers and drivers, were primarily in favor of keeping the current HOS rules – a 14-hour workday, with a maximum 11 hours of drive time and 3 hours for loading/unloading, followed by a 10-hour off-duty period. The current rules also limit drivers to 60/70 hours on duty in 7/8 consecutive days. They then may restart their 7/8 consecutive day period after taking 34 or more consecutive hours off duty – also known as the “34-hour restart” provision.
From a safety perspective, the current HOS rules are working. "In the very real world of trucking, highway safety has improved in the past 6 years under these rules," said Dave Osiecki, ATA’s VP of Safety, Security & Operations. According to Vehicle Miles Traveled (VMT) figures released earlier this year, the truck-involved fatality rate in 2008 declined 12.3 percent from 2007. This decline marks the largest year-to-year drop ever and the fifth consecutive year the fatality rate has improved. Since new hours-of-service regulations took effect in 2005, the truck-involved fatality rate has come down more than 20 percent and is at its lowest since the U.S. Department of Transportation began keeping those records in 1975. The fatality rate has declined more than 66 percent since 1975.
According to research by the American Transportation Research Institute (ATRI) on the current HOS rules, the total collision rate was down 11.7 percent and preventable collisions decreased 30.6 percent from 2004 to 2009. Another key finding from ATRI’s analysis was that, in 2009, the majority of commercial vehicle crashes (87%) occurred within the first eight hours of driving. A similar trend was found in an analysis of fatal truck collisions using the Trucks Involved in Fatal Accidents (TIFA) database. A review of 2007 TIFA data showed that 80 percent of fatal truck collisions occurred within the first eight hours of driving.
This chart displays the distribution of DOT recordable collisions for each of the 11 driving hours. The crash rate peaks during the first three hours.
However, one way to improve the rule, which was suggested by many in attendance at the 5 listening sessions, would be to allow for more flexibility in the sleeper berth provision. This flexibility would encourage circadian friendly sleep and naps, rather than constraining drivers to one, inflexible option under the current HOS rules, which overlooks the individual needs of each driver. The current HOS rules, with a 14-hour clock that doesn’t stop once started, discourages drivers from stopping for meals or to stretch their legs, actually increasing fatigue.
According to the ATA, to better address the true causes of fatigue in transportation, FMCSA should focus its resources on (1) sleep disorder awareness, training and screening, (2) promoting the use of Fatigue Risk Management Programs, (3) increasing the availability of truck parking on important freight corridors, and (4) partnering with the trucking and shipping communities to develop an educational process that identifies for drivers the location of available truck parking.
The FMCSA acknowledged the industry’s pleas for more flexibility, but stressed concern over being able to prevent abuse. FMCSA Administrator Ferro stated, "We've heard about the need for flexibility…what I haven't heard yet is how you take a rule with flexibility in it and ensure you've got sufficient structure to go after the folks that are going to abuse that flexibility. We all know it happens today, it happened before, and it will happen again."
A recent document, filed on behalf of the Truck Safety Coalition, Public Citizen and Advocates for Highway and Auto Safety, and posted on www.regulations.gov, reveals that daily driving time under a new HOS rule should be reduced by 27 percent. The document calls for a maximum 12-hour work shift, with no more than eight consecutive hours of driving per shift. The document, one of over 300 documents related to the new rule, also calls for universal electronic on-board recorder (EOBR) equipment.
The coalition said it wants to see a maximum of 40 driving hours in a seven-day period and a maximum of 60 hours of work time in a seven-day period. It also wants to see a minimum 48-hour, off-duty layover, rather than the current 34-hour “restart”. Industry reports indicate that a reduction of allowable driving time from eleven to eight hours, and elimination of the 34-hour restart rule, could cost the trucking industry $3.1 billion or more annually.
In late June, the office of DOT Secretary Ray Lahood received the first draft of a new HOS rule from the FMCSA. After reviewing it and determining it was not necessary to be sent back to FMCSA for revisions, the first draft was sent to the White House (Office of Management & Budget, or OMB) for what's expected to be an additional three-month review. Currently in the NPRM stage, the proposal is by no means in a near final form.
The OMB will consider how the rules will impact the larger picture, such as how much it will cost and how it will affect national economic policy. Once OMB signs off on the regulation, it will then be published in the Federal Register. The FMCSA’s goal is to publish the NPRM on November 4.
Once published in the Federal Register, the public will, for the first time, get full disclosure of the agency’s plan on what, if any, changes will be made to the current HOS regulations.
In April, during an FMCSA oversight hearing, Senate Sub-committee Chairman Lautenberg (D-NJ) said, “The Obama administration has made the right move by initiating a new rulemaking on driver hours…but let’s be clear: When this process is over, we cannot wind up with the same flawed regulations that the last administration designed.”
If this is any indication on the direction of a new HOS rule, the industry could be in for a rude awakening.
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