Cool Reception

Todd Dills and Avery Vise | February 01, 2011

FMCSA’s proposed hours of service revision stirs criticisms.


The Federal Motor Carrier Safety Administration’s proposal to modify the hours of service rule has found little love from the trucking industry or safety advocates.

FMCSA proposes that drivers’ workdays must end immediately after the 14-hour window for driving time. Under the current rule, drivers can do nondriving work after those 14 hours.

The American Trucking Associations called the Dec. 23 notice of proposed rulemaking (NPRM) “three big chunks of coal under trucking’s Christmas tree.” ATA blasted it for unnecessary complexity and its potential to greatly reduce productivity.

The Owner-Operator Independent Drivers Association says the proposed regulations fail to recognize how shippers and receivers impact driver on-duty hours.

The Truck Safety Coalition, along with Public Citizen and Advocates for Highway and Auto Safety, signaled a willingness to return the HOS issue to the courts if its demands weren’t satisfied, chief among them a reduction in cumulative daily driving hours to 10 from 11.

Comments filed online with FMCSA have been generally measured but dissatisfied, with a strong note of caution from drivers over the sheer complexity of the proposal. After the public comment period ends Feb. 28, the agency will proceed toward a final rulemaking that, under the terms of the 2009 settlement that prompted the recent proposed changes, FMCSA is obligated to issue by July 26.

After FMCSA held hours of service listening sessions in 2010 to solicit comments from trucking groups, carriers and truckers, many drivers believed the agency was working with them on the issue. They were hopeful for added flexibility in the rules, particularly addressing use of the sleeper berth for short rest periods that would extend the 14-hour driving window. 

Drivers have begun sounding off in comments filed with FMCSA and in myriad online forums about the provision, included in the NPRM, to allow extension of the 14-hour window to 16 hours twice a week. The proposed change was FMCSA’s only allowance for added flexibility compared to current rules, one whose goal the agency said was to accommodate special situations, such as loading and unloading at terminals or ports.

Currently, only carriers meeting certain requirements can extend drivers’ daily shifts beyond 14 hours, and they can do so only once a week.

On-duty time is one of the concerns of OOIDA, which highlights the problem of an HOS rule that ignores unpredictable delays due to shippers and receivers. “It’s not just how long a truck driver spends behind the wheel that affects the safety of everyone on the highways,” says OOIDA Executive Vice President Todd Spencer. “Many truck drivers spend between 30 to 40 hours per week waiting at loading docks. Everyone involved in transportation, from shippers to receivers, has a responsibility for its role in keeping highways safe.”

One of the long-standing complaints with the current HOS rule adopted in 2005 involves the sleeper berth split, but FMCSA proposes no change. To satisfy mandatory rest requirements, when splitting 10-hour rest periods, one of two sleeper berth periods must be at least eight hours.

And FMCSA says drivers using this split still would be subject to all the other daily and cumulative on-duty and driving limits it proposes, among them a prohibition on driving if it has been less than seven hours since a driver’s last off-duty period of at least 30 minutes. Limiting total cumulative on-duty time during the 14-hour window to 13 hours, furthermore, the proposal mandates at least two 30-minute off-duty periods within the window.

South Carolina operator Joshua Jay Johnson, commenting on the NPRM at regulations.gov, called the mandatory off-duty periods problematic because they come with no additional flexibility. He often takes breaks, he says, but, “The problem with a break is nobody logs them because it doesn’t stop the 14-hour clock. Millions of Americans have to clock out to take a lunch break, as we should be able to do. So make your break mandatory, but allow us to clock out. With this 14-hour rule it is like a constant race, which puts drivers in a hurry, which in turn makes them careless.”

One of the big questions before the proposed changes were announced was whether FMCSA would reduce the number of driving hours allowed between off-duty periods from the current 11 to 10. Rather than decide now, the agency says it will settle the question following public comment. The agency did say, however, it is leaning toward reducing the driving time limit to 10 hours.

Regardless of the number of hours allowed per shift, FMCSA’s proposal would place new restrictions on drivers’ workdays. Under the current rule, drivers can do nondriving work after the 14-hour window for driving time. FMCSA now proposes to require that drivers’ workdays end immediately following the 14-hour window.

Sound complicated? ATA President and CEO Bill Graves said the details were “overly complex, chock full of unnecessary restrictions on professional truck drivers.” Truck productivity industrywide, he added, would be substantially reduced under the proposal, particularly if maximum driving hours were limited to 10, an outcome ATA’s news release assumed to be likely.

Another industry concern leading into the NPRM’s release was whether FMCSA would increase the number of hours required to restart the 60 hours in seven days/70 hours in eight days limits on cumulative on-duty time. The agency proposed to leave the restart at 34 hours but with a significant restriction: Restarts would have to include two periods of midnight to 6 a.m. In addition, drivers would be limited to a single restart in a 60- or 70-hour period; current regulations don’t restrict the number of restarts.

Georgia-based hauler Douglas Wade Cochran, commenting on the federal docket, noted potential problems with this provision. One involves slow freight markets, such as in the recent recession. “When we are having a slow week, it is possible to have two and almost three” restarts, Cochran noted. “Why should I be penalized twice – a slow week and … toward the end of the week, I could get a good long run, but then would have to worry about my hours.”

Echoing ATA President Graves and other drivers’ comments on the matter, Cochran pleaded with FMCSA for simplicity. “This sounds so complicated,” he said of the proposed restart provisions, then suggesting that the agency make the restart 34 hours without restrictions “or knock it up to 48 hours.”

Also, current regulations say a driver is on duty any time he is in a commercial motor vehicle unless he is in the sleeper berth. Under the proposed rules, time spent resting in a parked CMV is excluded from on-duty time. And even in a moving CMV, team drivers can exclude from on-duty time up to two hours they spend in the passenger seat immediately before or after eight consecutive hours in a sleeper berth. n


ATA alleges fatigue data misrepresented

Jan. 12, the American Trucking Associations accused FMCSA of misapplying its own crash numbers so as to elevate driver fatigue as a cause of truck crashes. Without this, and several other ill-considered revised assumptions, the proposed rule would fail the statutorily required cost/benefit analysis, the association says.

With the proposed rule still in public comment period, FMCSA declined to directly address ATA’s allegations.

ATA President Bill Graves says, “Since the current HOS rules were introduced in 2003, the trucking industry has achieved a continually improving safety record, reaching the lowest fatality and injury rate levels in recorded history. It is troubling that this complex, restrictive set of proposed rules is founded on what appears to be incorrect analysis and inflated math.”

At issue is the prevalence of fatigue as a factor in large truck crashes. During past rulemakings, ATA says, the agency had cited fatigue as being a factor just 7 percent of the time. For this proposed rule, though, ATA says, FMCSA had changed statistical weightings to nearly double the prevalence of fatigue as a causal factor. Without this “inflation” of fatigue as a cause, the required cost/benefit analysis would have failed.


How to find the rule and comment

A copy of the notice of proposed rulemaking for the hours of service is available at fmcsa.dot.gov/HOS. To comment on the proposed rule, visit www.regulations.gov and search docket ID “FMCSA-2004-19608.” Comments are being taken through Feb. 28.



Proposed changes for most drivers

Driving window

Max time on-duty within driving window

Max time driving within driving windows

Consecutive driving hours limit

Restart

Sleeper berth split as sub for 10 hrs. off-duty

On-duty definition


Current rule

14-hrs: on-duty/not driving can continue after window

14 hrs.

11 hrs.

11 hrs.

After 34 hrs. off-duty

Periods of 8 and 2 hrs. off-duty; Longer period can extend 14-hr. window

Includes any time in truck but for sleeper berth


Proposed

All on-duty/not driving activities must be completed within 14-hr. window. Two 16-hr. window periods allowed per week for on-duty/not driving completion

13 hrs.

10 and 11 hours considered

7 hrs.; may drive only if less than 7 hrs. since last 30-min. off-duty period


34 hrs. must include two periods between midnight-6 a.m. 34 hrs may be used only once/week

Same 8/2 hr. split, but including all new driving, on-duty and duty-period limits

Does not include time resting in a parked truck. In moving truck, does not include up to 2 hrs. in passenger seat before or after 8 hrs. in sleeper berth


INDUSTRY GROUPS SOUNDOFF

COMMERCIAL VEHICLE SAFETY ALLIANCE. “We are also awaiting FMCSA’s action related to the next rule on [electronic logs] and how they treat supporting documents in conjunction with that rulemaking. We continue to believe that an across-the-board [electronic log] mandate will help increase compliance with hours-of-service regulations and, as a result, have a positive impact on safety.”

– Laura Zabriskie, communications director

OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION. “To make additional safety gains, the next hours of service rule must be more flexible to allow drivers to sleep when tired and to work when rested. The rules must encourage truck drivers to get off the road when they are tired and must not penalize them for doing so.”

– Todd Spencer, executive vice president

AMERICAN TRUCKING ASSOCIATIONS. “When viewed against trucking’s sterling safety record, it’s plain that the Obama Administration’s willingness to break something that’s not broken likely has everything to do with politics and little or nothing to do with highway safety or driver health.”

– Bill Graves, president and CEO

SAFETY ADVOCATES. “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.”

– Joint statement from Public Citizen, Advocates for Highway and Auto Safety and the Truck Safety Coalition

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