[Senate Hearing 110-1140]
[From the U.S. Government Printing Office]



                                                       S. Hrg. 110-1140
 
OVERSIGHT OF THE FEDERAL TRUCK DRIVER HOURS-OF-SERVICE RULES AND TRUCK 
                                 SAFETY

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON SURFACE TRANSPORTATION
                  AND MERCHANT MARINE INFRASTRUCTURE,
                          SAFETY, AND SECURITY

                                 OF THE

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           DECEMBER 19, 2007

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation




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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                   DANIEL K. INOUYE, Hawaii, Chairman
JOHN D. ROCKEFELLER IV, West         TED STEVENS, Alaska, Vice Chairman
    Virginia                         JOHN McCAIN, Arizona
JOHN F. KERRY, Massachusetts         TRENT LOTT, Mississippi
BYRON L. DORGAN, North Dakota        KAY BAILEY HUTCHISON, Texas
BARBARA BOXER, California            OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida                 GORDON H. SMITH, Oregon
MARIA CANTWELL, Washington           JOHN ENSIGN, Nevada
FRANK R. LAUTENBERG, New Jersey      JOHN E. SUNUNU, New Hampshire
MARK PRYOR, Arkansas                 JIM DeMINT, South Carolina
THOMAS R. CARPER, Delaware           DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri           JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota
   Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
Lila Harper Helms, Democratic Deputy Staff Director and Policy Director
   Christine D. Kurth, Republican Staff Director and General Counsel
                  Paul Nagle, Republican Chief Counsel
                                 ------                                

      SUBCOMMITTEE ON SURFACE TRANSPORTATION AND MERCHANT MARINE 
                  INFRASTRUCTURE, SAFETY, AND SECURITY

FRANK R. LAUTENBERG, New Jersey,     GORDON H. SMITH, Oregon, Ranking
    Chairman                         JOHN McCAIN, Arizona
JOHN D. ROCKEFELLER IV, West         TRENT LOTT, Mississippi
    Virginia                         KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota        JIM DeMINT, South Carolina
MARIA CANTWELL, Washington           DAVID VITTER, Louisiana
MARK PRYOR, Arkansas                 JOHN THUNE, South Dakota
THOMAS R. CARPER, Delaware
CLAIRE McCASKILL, Missouri
AMY KLOBUCHAR, Minnesota


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on December 19, 2007................................     1
Statement of Senator Lautenberg..................................     1
    Prepared statement of Senator Olympia J. Snowe, U.S. Senator 
      from Maine.................................................    60
Statement of Senator Pryor.......................................     3

                               Witnesses

Byrd, LaMont, Director, Safety and Health, International 
  Brotherhood of Teamsters.......................................    41
    Prepared statement...........................................    42
Claybrook, Joan, President, Public Citizen; on behalf of 
  Advocates for Highway and Auto Safety..........................    23
    Prepared statement...........................................    24
Hill, Hon. John H., Administrator, Federal Motor Carrier Safety 
  Administration.................................................    17
    Prepared statement...........................................    18
Izer, Daphne, Founder, Parents Against Tired Truckers (P.A.T.T.).    36
    Prepared statement...........................................    38
Krupski, Jr., Walter J., Owner, W. Krup Trucking, Inc.; on Behalf 
  of Owner-Operator Independent Drivers Association..............     3
    Prepared statement...........................................     5
Osiecki, Dave, Vice President, Safety, Security and Operations, 
  American Trucking Associations.................................     8
    Prepared statement...........................................     9

                                Appendix

Canadian Trucking Alliance, prepared statement...................    65
Letter, dated December 17, 2007 to Hon. Frank R. Lautenberg from 
  R.J. Taylor, President and Member, Board of Directors, Ol' 
  Blue, USA (United Safety Alliance, Inc.TM).........    90
National Private Truck Council, Inc., prepared statement.........    63
Response to written questions submitted by Hon. Mark Pryor to:
    LaMont Byrd..................................................   101
    Hon. Joan Claybrook..........................................    96
    Hon. John H. Hill............................................    95
    Daphne Izer..................................................    99
    Walter J. Krupski, Jr........................................    91
    Dave Osiecki.................................................    93
Supplemental information submitted by Joan Claybrook, President, 
  Public Citizen.................................................    68


                     OVERSIGHT OF THE FEDERAL TRUCK
                     DRIVER HOURS-OF-SERVICE RULES
                            AND TRUCK SAFETY

                              ----------                              


                      WEDNESDAY, DECEMBER 19, 2007

                               U.S. Senate,
         Subcommittee on Surface Transportation and
            Merchant Marine Infrastructure, Safety, and Security,  
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:07 a.m. in 
room SR-253, Russell Senate Office Building, Hon. Frank R. 
Lautenberg, Chairman of the Subcommittee, presiding.

        OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Lautenberg. The hearing will come to order, please.
    This hearing is focused on safety--truck safety, in 
particular--but it's also a reminder about what happens when we 
get careless, casual, in enforcement of the laws that we've got 
on the books. We're going to hear from witnesses who've 
directly experienced what happened within their families when a 
tired trucker came barreling down the highway.
    The Bush Administration has gone to extraordinary lengths 
to allow truckers to stay behind the wheel and on our roads for 
longer periods of time than they should. Today, we're going to 
examine those misguided steps. Despite two unanimous Federal 
court decisions that ruled against the Administration's 
proposals, the Federal Motor Carrier Safety Administration is 
going forward as if the court said nothing at all.
    The Administration's plan allows truckers to drive for 30 
percent longer each week, putting families at higher risk of an 
accident involving a tired truck driver. It's unacceptable, 
especially when you consider the volume of trucks on our 
roadways. One out of every 30 vehicles along our roads--is a 
large truck. Last year, one out of nine fatal crashes involved 
one of these trucks. Just think about the relationship with 
these numbers. One out of 30 vehicles is a large truck, but, 
when it comes to fatal crashes, one out of nine is a truck.
    When our loved ones are on the roadways going to work, 
going to school, we hope and expect the professional truck 
drivers that are on the same highways, the same roadways, are 
alert and well rested. But, too often--a driver has been on the 
road too many hours, and we find out way too late through 
inspection or a post-crash investigation. We know that fatigue 
is a cause of many of these crashes, but drivers rarely admit 
that they were too tired to drive.
    The biggest problem is that truck driving time limits, 
called hours-of-service rules, are seldom enforced. In effect, 
drivers can drive as long as they well--please, putting their 
safety, and the safety of others on the road, at risk.
    We have technology that enforces hours-of-service rules and 
keeps people safe, but the Federal Motor Carrier Safety 
Administration, the Nation's top truck-safety agency, has 
failed to require it, and, instead, continues to allow truckers 
to drive for longer and longer periods of time.
    The Bush Administration's indifference to enforcing truck 
driving limits for truckers is bad enough, but, even more 
shameful than not enforcing the laws on the books, is the 
Administration's efforts to make the current law less safe for 
motorists. I say this advisedly, ``to make it less safe.'' The 
FMCSA wants to allow truck drivers to be on the road for up to 
11 hours straight, and to work up to 77 hours per week. Not 
only is it patently unsafe to increase these hours, but we 
understand the agency ignored the science behind fatigue and 
selected studies that they liked in order to support their 
positions.
    I understand that the safety data that DOT used to 
demonstrate that driving in the 11th hour is safe, when 10 
hours was the legal limit. I have a chart here, and it's 
probably not too clear from a distance, but it shows that, 
after 10 hours of work the number of crashes has declined. Work 
10 hours, and, in your 11th hour, you're at the peak of safe 
driving and it declines. How would you like your child or your 
loved one or a member of your family walk into an operating 
room where a doctor has already worked 15 hours, and say, ``Oh, 
well, he'll be as good as he is in the first hour''? Heaven 
forbid that that kind of a thing take place. And this picture 
is outrageous. It's a deliberate misstatement of reality.
    Now, I understand that there is a mission to this, and I'm 
trying to figure out what the mission is. The idea that 
operating an 80,000-pound truck at 65 miles an hour for 11 
hours at a time is safe simply defies common sense. Using that 
logic, maybe we could get to zero accidents if we drove 15 
hours. This endeavor may benefit trucking companies, but it 
hurts everyone else on the road. I believe that the 
Administration's proposed rule is a sham, and so do our courts, 
and they've said so, twice. Since the Administration has 
refused to listen, giving us reason to question their 
priorities and their commitment to safety, it's time for 
Congress to get involved.
    Over the past decade, 5,000 men, women, and children have 
died in truck-related crashes each year. In 2006, 805 of those 
victims were truck drivers themselves. And it's time for us to 
make our roads safer for families and for the drivers 
themselves.
    I look forward to hearing testimony today from the FMCSA, 
as well as from industry representatives and members of the 
trucking safety community.
    We're not able to be joined by some of our colleagues. The 
Senate was in session until quite late last night, and people 
had made travel plans to leave after that, all the members of 
this Subcommittee are very interested in the outcome of today's 
hearing.
    So, I welcome our panel of witnesses. We have Mr. Walter 
Krupski, Owner-Operator Independent Drivers Association. We 
have Mr. David Osiecki, the Vice President of Safety, Security, 
and Operations for the American Trucking Associations; John 
Hill, the Administrator of the Federal Motor Carrier Safety 
Administration; Joan Claybrook, the President of Public 
Citizen; Daphne Izer, who represents Parents Against Tired 
Truckers; LaMont Byrd, the Director of Safety and Health for 
the International Brotherhood of Teamsters.
    Before we call on you, my colleague Senator Pryor is here, 
and he'd like to make a statement.
    And we welcome Senator Pryor.

                 STATEMENT OF HON. MARK PRYOR, 
                   U.S. SENATOR FROM ARKANSAS

    Senator Pryor. Thank you, Mr. Chairman.
    I just wanted to thank you for having this hearing. It's 
obviously a very important issue for public safety and truck 
safety on our highways. And I'd just thank you for your 
leadership on this, and look forward to hearing from the panel.
    Thank you.
    Senator Lautenberg. Thank you.
    We're pleased to have the different views represented, 
maybe not as pleased to hear some as others, but we'll try to 
be balanced in our views, and ask you to respond honestly, as 
you see it. Of course, we don't have to talk that way to Ms. 
Izer.
    I'm especially glad to have a fellow New Jerseyan here. Mr. 
Krupski is based in Stewartsville, New Jersey, and he can tell 
you, many trucks carrying goods along the East Coast pass 
through our state.
    I thank all of you for being here to share your 
experiences. We observe a 5-minute limit for your testimony, so 
please be mindful of that. We'll start off with Mr. Krupski, 
please.

       STATEMENT OF WALTER J. KRUPSKI JR., OWNER, W. KRUP

TRUCKING, INC.; ON BEHALF OF OWNER-OPERATOR INDEPENDENT DRIVERS 
                          ASSOCIATION

    Mr. Krupski. Good morning, Chairman Lautenberg, 
distinguished Members of the Subcommittee. It's my privilege to 
be here today on behalf of the members of----
    OK.
    Thank you for inviting me to testify on the subject that 
has great significance to the--to them, the rest of the men and 
women who make a living behind the wheel of commercial motor 
vehicles.
    My name is Walter Krupski. I'm the Owner of W. Krup 
Trucking in the town of Stewartsville, New Jersey--in the great 
State of New Jersey. I've been involved in the trucking 
industry for more than 30 years. I've been a driver. I've been 
an owner-operator. I've been a small-fleet motor carrier. I'm 
proud to say that I logged well over 3 million miles without a 
chargeable accident.
    First of all, we support the FMCSA in keeping both the 11-
hour driving option and the 34-hour restart. However, the 
hours-of-service rules should be more flexible to allow drivers 
to sleep when they are tired, to work when they are rested. The 
rules must encourage drivers to get off the road when they are 
tired, and must not penalize them for doing so.
    With that said, we strongly encourage the FMCSA and this 
Committee to examine the underlying causes of violations and 
driver fatigue. Significant reductions in driver fatigue will 
not be achieved until drivers are paid for all the work the 
drivers face and they're paid for all the work and driver's 
face no economic downside for complying with the rules.
    We fully understand the driver's, from the standpoint of 
the hours-of-service regulations, it is necessary to 
acknowledge that the majority of drivers in the trucking 
industry are compensated--how they're compensated. Most drivers 
are paid by how many miles they drive. Simply put, the fewer 
miles, the less money they make. Once a driver's daily 14-hour 
clock begins, it keeps running even if the driver pulls over to 
sleep for any amount of time less than 8 hours--8 consecutive 
hours. Under the current hours-of-service rule, drivers must 
give up work and compensation if they pull off the road to take 
a nap when they need to rest during the workday.
    While drivers are compensated only for driving, they're 
expected to perform uncompensated nondriving tasks that consume 
a significant and unpredictable amount of time of their driving 
time. Drivers must keep driving even when tired, because they 
don't know how much time will be available for them to drive 
during the day. For a vast majority of drivers, the time spent 
on duty not driving is often uncompensated. There are general 
administrative functions that require drivers--such as 
completing paperwork, fueling, performing--undergoing safety 
inspections, requiring the daily on-duty time that counts 
against the 14-hour clock.
    To some extent, drivers can predict and control the 
functions, but there are many other activities which occur 
regularly that are highly unpredictable and out of the driver's 
control. Again, this is time that is against--the drivers 
aren't getting paid for. Wait to load/unload, physically 
loading and unloading a truck, manually sorting and stacking 
freight, and taking care of mechanical breakdowns are just a 
few examples of the unpredictable uncompensated activities that 
count against the driver's time.
    In addition, there are delays for congestion, work zones, 
bad weather, highway accidents, which reduce the potential--
which reduce earning potential, because drivers are paid by the 
mile, and this time must count against their 14-hour clock.
    Significantly, on time spent loading and loading, shippers 
and receivers routinely make truckers wait for hours, even 
days, before they load or unload their trucks. No one in the 
industry pays for detention time--most shippers and receivers 
do not pay this time and work, and have little incentive to 
treat drivers differently. Some even require drivers to unload 
their trucks and perform warehouse work, such as restacking 
pallets. Not only is this work unpaid, but it is essentially 
stealing the time that the driver has, under the hours-of-
service rules, to do the work that they are paid for; that's 
driving the truck.
    I'd like to emphasize that the time that a driver must 
spend on activities other than driving is often completely 
outside the control--outside their control. Until they arrive 
at the shipper and receiver site, and sometimes even later, 
drivers have absolutely no idea how much time the shipper or 
receiver will demand on them, or how much loading or unloading 
work will be demanded of them. Again, they are not paid for 
this time or work; this leaves them with no ability to plan 
their schedule or manage their time under the hours-of-service 
rules. Unfortunately, some motor carriers allow these 
procedures to persist by instructing their drivers to log only 
15 minutes for loading and unloading to preserve driving time, 
regardless of how long the delays; thus, masking the actual on-
duty time spent.
    Congress has previously asked the DOT to examine whether it 
should be--should have the authority of the--authority over 
shippers and receivers to effectively enforce the safety 
regulations. To my knowledge, the DOT has never submitted to 
Congress or otherwise published any examination of this issue.
    Senator Lautenberg. Thank you, Mr. Krupski. If you have 
anything else to say, please try to do it in summary form.
    Mr. Krupski. OK.
    If all the stakeholders----
    Senator Lautenberg. By the way, your full statement is in 
the record.
    Mr. Krupski. OK. Thank you.
    [The prepared statement of Mr. Krupski follows:]

 Prepared Statement of Walter J. Krupski Jr., Owner, W. Krup Trucking, 
   Inc.; on Behalf of Owner-Operator Independent Drivers Association

    Good morning, Chairman Lautenberg, Senator Smith and distinguished 
members of the Subcommittee. It is my privilege to be here today on 
behalf of the Owner-Operator Independent Drivers Association (OOIDA). 
Thank you for inviting me to testify on a subject that is of great 
significance to the men and women who make a living behind the wheel of 
commercial motor vehicles. It is by no means a stretch to say that the 
hours-of-service regulations (HOS) that are being discussed today steer 
the daily lives of owner-operators and professional truck drivers 
whether they are engaged in activities related to their livelihood or 
at home with their families.
    My name is Walter Krupski Jr. I am the Owner of W. Krup Trucking in 
Stewartsville, New Jersey. I have been involved with the trucking 
industry for more than 30 years. Over the past 30 years I have driven 
truck as a company employee and as an independent owner-operator, have 
worked as a solo driver as well as in a team driving operation and have 
logged well over 3 million miles without a chargeable accident. I have 
also owned and managed a small fleet of trucks and trailers as well as 
contracted the services of up to 25 owner-operators. I currently own 3 
trucks and 6 trailers, driving one of the units myself and hiring out 
the others.
    OOIDA is the national trade association representing the interests 
of small business trucking professionals and professional drivers on 
matters that affect their industry. The Association actively promotes 
the views of small business truckers through its interaction with state 
and Federal regulatory agencies, legislatures, the courts, other trade 
associations and private entities to advance an equitable business 
environment, and safe and secure working conditions for commercial 
drivers. OOIDA currently has more than 159,000 members who collectively 
own and operate more than 250,000 individual heavy-duty trucks.
    On December 17, 2007, the Federal Motor Carrier Safety 
Administration (FMCSA) published in the Federal Register an Interim 
Final Rule (IFR) amending the Federal Motor Carrier Safety Regulations 
to allow commercial motor vehicle (CMV) drivers up to 11 hours of 
driving time within a 14-hour, non-extendable window from the start of 
the workday. following 10 consecutive hours off-duty (11-hour limit). 
In addition the interim rule allows drivers to restart calculations of 
the weekly on-duty time limits after the driver has at least 34 
consecutive hours off-duty (34 hour restart). We applaud the response 
of FMCSA in keeping both the 11-hour option and allowing the more 
widely used 34-hour restart. This IFR and the hearing today offer an 
unique opportunity to address not only the courts concerns on the 
regulations but the more pervasive underlying causes of hours-of-
service violations. We cannot continue to treat the symptoms and expect 
healing; we must examine the causes that permeate the industry. It is 
not a time for band aids but major surgery to heal the years of neglect 
from FMCSA and DOT.
    Under the current hours-of-service rule, drivers must give up work 
and compensation if they pull off the road to rest during the work day. 
Once a driver's daily 14 hour on-duty clock begins. it keeps running, 
even if the driver pulls over to sleep for any amount of time less than 
8 consecutive hours. Drivers are compensated only for driving. They are 
expected, however, to perform non-driving, uncompensated work that can 
consume unpredictable and significant amounts of their on-duty time. 
Drivers must keep driving, therefore, even when tired, because they do 
not know how much of their on-duty time will be available to them for 
driving during the day, and they must drive enough miles to maintain a 
minimal level of compensation.
    The 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.
Professional Truck Driver's Perspective
    To fully comprehend a truck driver's standpoint on the hours-of-
service regulations it is necessary to acknowledge how the majority of 
drivers in the trucking industry are compensated. Drivers are normally 
paid by how many miles they drive, therefore, the fewer miles driven 
the lower their compensation.
    Under the HOS regulations the 14-hour running clock begins whenever 
a driver performs any on-duty activity after taking a compliant minimum 
rest period. The remaining 10 hours of a 24-hour day is supposed to be 
reserved for resting. For the vast majority of drivers the time spent 
on-duty, not driving is often, or sometimes always, uncompensated. 
There are general and administrative functions that are required of 
drivers such as completing paperwork, fueling, performing or undergoing 
safety inspections, and general maintenance that require daily on-duty 
uncompensated time that counts against their 14-hour on-duty clock. To 
some extent drivers can predict and control those administrative 
duties, but there are many other activities that occur regularly that 
are also uncompensated yet highly unpredictable.
    Waiting to load or unload, physically loading or unloading, 
manually sorting and stacking freight and taking care of mechanical 
breakdowns are a few examples of these unpredictable, uncompensated 
activities that count against the 14-hour clock. In addition there are 
the delays from congestion, work zones, detours and inclement weather 
which reduce earnings potential because drivers paid by the mile must 
count this time against their 14-hour running clock. The 14-hour clock 
can only be stopped by spending either a minimum of 10 consecutive 
hours off-duty, or 8 consecutive hours in the sleeper berth of the 
vehicle and at least 2 more hours off later in the day. Even though the 
driver must take the additional 2 hours off-duty, those hours do not 
stop the 14-hour clock.
    In light of the forgoing realities it is easy to understand that 
drivers want to get in as much compensated driving time as possible 
each day. In a survey done by OOIDA of its members, 66 percent reported 
that they forego short rest breaks, naps and meals under the 14-hour 
rule in order to perform as much compensated driving time as they can. 
In fact most drivers report that they seldom drive more than 10 hours 
per day, but still feel compelled to continue driving when they would 
like to take a break to compensate for either planned duties or 
unpredictable delays.
    Congress directed the FMCSA to find a way to deal with the problem 
of shippers and receivers who often consider the vehicle as a rolling 
warehouse to store their materials until needed. There is no prescribed 
penalty for receivers who make a driver wait for hours or even days 
before unloading their trucks. By law receivers must allow drivers the 
option to unload, but may then require them to sort and stack or re-
palletize the freight, and at times even stock the shelves of the 
warehouse. Many receivers coerce or require drivers to hire ``lumpers'' 
to unload their trailers, further compromising drivers' income. If 
drivers chose not to pay for someone else to unload they may be 
required to unload the shipment by hand or wait an extended amount of 
time to be allowed to unload. These are some of the time consuming, 
uncompensated on-duty activities that complicate a driver's ability to 
comply with HOS. Unfortunately, some motor carriers allow these 
procedures to persist by instructing their drivers to log only fifteen 
minutes for loading and unloading to preserve driving time regardless 
of how long the delay, thus masking actual on-duty time spent.
    Many of these same shippers and receivers are now penalizing 
drivers for showing up late for prearranged appointments. The charges 
are often significant and place undue pressure and stress on a driver 
trying to comply with the HOS. These charges are assessed regardless of 
whether a driver has operated legally or was delayed because of an 
event beyond their control such as weather related road closures, 
highway accidents or delays at a previous appointment.
    In 1995 Congress asked DOT to examine whether it should have 
authority over shippers and receivers to effectively enforce the safety 
regulations. DOT never submitted to Congress or otherwise published an 
examination of this issue. Motor carriers have historically been 
unwilling to remedy the problems associated with loading and unloading 
abuses, and drivers are powerless to resolve them. Government oversight 
may be the only solution.
    The costs for small motor carriers have increased tremendously in 
the last two years. The steep and fluctuating cost of fuel, 
maintenance, equipment, parts and supplies, equipment to comply with 
idling restrictions, and the rising cost of engines to meet emissions 
standards has caused a vicious circle of potential and real small 
carrier bankruptcies. Drivers strive to be safe to provide for their 
family's future, so when they state that they feel the rules are not 
flexible enough to allow for rest breaks when they are tired or to 
avoid congestion etc., they are the ones who know and should be 
listened to.

Sleeper Berth Exceptions
    Certain specialized segments of the trucking industry have been 
especially hard hit by the regulations since they were modified to do 
away with sleeper berth exceptions. Team drivers who have traditionally 
operated on a 5 or 6 hour on-duty driving cycle followed by 5 or 6 
hours in the sleeper berth now find themselves driving many more 
consecutive hours than previously. Many of these teams are husband-wife 
teams where the wife, coming into the driving part of the industry as a 
late career choice, drives when the husband gets tired and allows him 
to get a couple hours or more of rest. Now under the new HOS 
regulations the wife is often compelled to drive 8 consecutive hours or 
more.
    Drivers who haul hazardous materials or loads contracted by the 
Department of Defense (DOD) also face obstacles to HOS compliance. 
Under the regulations certain hazardous materials must be under 
constant supervision and direct control at all times. This is also 
contractually imposed by the DOD on drivers hauling certain loads. For 
example, it is impossible to park a truck the required distance from 
inhabited areas and not have the other team driver be awake to 
supervise or control the load while the other team driver takes breaks 
for any number of personal reasons. This effectively ``breaks'' the 10 
hour rest period for the team driver in the sleeper and essentially 
places them in a regulatory ``Catch-22''--comply with constant 
supervision and control requirements of the shipment and then be unable 
to properly account for the required off-duty/sleeper berth 
requirements. This conundrum could be solved by allowing flexibility in 
the rules for team drivers to extend the 14-hour clock by taking short 
rest breaks without penalizing the drivers or by reinstating the 
sleeper berth exceptions that were once a part of the HOS rules.

Conclusion
    If FMCSA and Congress truly wish to reduce fatigue among drivers, 
several issues need to be addressed that are integral to truck drivers 
work schedules, but ignored by the HOS rules:

        1. That most drivers are not paid for the long hours spent 
        waiting at the loading docks. They are paid by the mile or as a 
        percentage of the freight bill.

        2. When drivers must wait for many uncompensated hours, they 
        have less time under HOS rules to drive their truck and produce 
        an income. This puts them between a rock and a hard place: 
        between potential heavy fines for violations of HOS rules and 
        losing their job.

        3. Shippers and receivers have no incentive to use truckers' 
        time efficiently. Most of the time they pay no more or less for 
        using any amount of the drivers' time.

        4. Shippers and receivers have the greatest control of anyone 
        in the transportation chain over a driver's schedule and yet 
        bear no responsibility for requiring that drivers work longer 
        than the HOS rules allow as a condition for receiving work from 
        them.

        5. Drivers are pushed financially and physically, increasing 
        their fatigue and negatively impacting their safety.

    Significant reductions in driver fatigue will not be achieved until 
drivers are paid for all of their work and drivers face no economic 
downside for complying with the rules. If drivers were compensated for 
both their driving and non-driving on-duty work, they would have much 
less incentive to drive while fatigued. Additionally, they would have 
every incentive to record all of their on-duty time, and problems with 
the accuracy of logbooks would disappear.
    Additionally, truck drivers should not be required to unload their 
truck or to pay others to unload it. Drivers would be better able to 
manage their fatigue if they were prohibited from performing the 
physical loading or unloading their own truck. The high unloading fees 
drivers are charged by receivers to unload their own freight must be 
eliminated so that drivers are not coerced to perform the unloading.
    The demands and expectations of shippers, receivers, brokers and 
motor carriers on truck drivers for each load they take are far more 
pervasive than any inspection scheme and schedule of fines that either 
Congress or FMCSA could devise. Unless these economic issues are 
addressed, drivers who become disqualified from driving for violating 
the hours-of-service rules will simply be replaced by a new driver 
facing the same economic pressures. Only by addressing these issues is 
there the potential for making significant reductions in driver 
fatigue.
    Chairman Lautenberg, Senator Smith and distinguished Members of the 
Subcommittee, thank you for your consideration of this testimony. I 
would be pleased to answer any questions that you may have.

    Senator Lautenberg. Mr. Osiecki?

           STATEMENT OF DAVE OSIECKI, VICE PRESIDENT,

               SAFETY, SECURITY, AND OPERATIONS,

                 AMERICAN TRUCKING ASSOCIATIONS

    Mr. Osiecki. Good morning.
    Mr. Chairman, Committee Member Pryor, thank you for the 
opportunity to express the American Trucking Association's 
views on the hours-of-service issue and truck safety.
    I am Dave Osiecki, ATA's Vice President of Safety, 
Security, and Operations. Our testimony will address three 
points. Number one, the balanced approach and mutually 
dependent nature of the hours-of-service provisions. Number 
two, the improved safety experience of the trucking industry 
while operating under the hours-of-service rules. And, number 
three, driver fatigue in relationship to other causes of truck-
involved crashes.
    First, ATA supports the new rules, because their provisions 
work together in a mutually dependent manner. They were 
developed as a balanced set of rules that promote better driver 
alertness by providing a greater opportunity for daily rest 
through an increase in the minimal amount of off-duty time 
between shifts, by reducing the maximum daily on-duty time 
limit by 1 hour and eliminating the provision allowing it to be 
extended by breaks, and by promoting work-rest schedules that 
come closer to a 24-hour circadian cycle. This balanced set of 
rules also increases the maximum driving time limit by 1 hour 
within the shortened workday, and provides a rest-and-restart 
period which some, but not all, drivers use for increased 
operational flexibility.
    Moving to our second point, ATA supports the rules, 
because, simply put, they are working. Since becoming effective 
in January of 2004, the number of crash-related injuries has 
decreased by 14,000, and the injury crash rate is at its lowest 
point ever. The number of truck-involved fatalities has also 
decreased. Between 2005 and 2006, fatalities dropped by 4.7 
percent, the largest percentage drop since 1992, and the 
projected fatal crash rate for 2006 is 1.94 fatal crashes per 
100 million miles of travel--by far, the lowest rate since DOT 
began keeping records.
    Our written testimony includes a substantial amount of 
additional safety data demonstrating similar positive safety 
trends.
    And to the third point, the role of driver fatigue in 
crashes, all causes of crashes are important; however, any 
objective evaluation of crash causation--and this includes the 
government's own studies--would not highlight driver fatigue as 
the paramount safety issue that it's often portrayed to be. 
These studies find that other more mainstream traffic safety 
problems are far greater concerns.
    DOT's annual analysis of its Fatality Analysis Reporting 
System, or FARS data, shows that the fatigue-related fatal 
crashes involving trucks are a small portion of the total. For 
the 17 years from 1991 to 2006, on average, just 1.7 percent of 
truck drivers in a fatal crash were identified as fatigued.
    It's commonly argued that fatigue is under-reported and, 
therefore, this percentage is likely to be understated. For 
this reason, it's important to look at FMCSA's Large Truck 
Crash Causation Study, the most comprehensive causation study 
ever done. The majority of crashes studied were caused by 
driver operating or performance errors, not driver fatigue. 
Inadequate surveillance, non-fatigue-related driver 
inattention, and excessive speed are the ubiquitous causes far 
exceeding fatigue, vehicle-related problems, and roadway or 
environmental causes.
    A truck-safety paradigm shift must occur, in our view, to 
confront the mainstream traffic safety issues that affect truck 
safety. For this reason, ATA offers three important 
recommendations:
    First, reinstate a national maximum speed limit, with the 
maximum limit being 65 miles per hour for all vehicles, 
including large trucks. This will save many lives, as it did in 
the 1970s, when the 55-mile-per-hour limit was imposed.
    Second, support a Federal requirement for all new large 
trucks to be electronically speed-governed at a setting not to 
exceed 68 miles per hour. This will reduce the number and 
severity of truck crashes.
    And, third, provide incentives for trucking companies to 
adopt active safety technologies to assist driver 
decisionmaking and improve driver performance.
    ATA also supports primary safety-belt laws in all 50 states 
to save lives and reduce the severity of injuries.
    In summary, Mr. Chairman, ATA supports the new hours-of-
service rules; again, simply put, because they are working. We 
also believe that a paradigm shift must occur for resources to 
be better aligned to address the mainstream traffic safety 
issues affecting trucks.
    Thank you, again. And, at the appropriate time, I will be 
happy to field any questions you may have.
    Thank you.
    [The prepared statement of Mr. Osiecki follows:]

 Prepared Statement of Dave Osiecki, Vice President, Safety, Security 
             and Operations, American Trucking Associations

Introduction
    Chairman Lautenberg, Ranking Member Smith, and other members of the 
Subcommittee, thank you for the opportunity to express the American 
Trucking Associations' (ATA) \1\ perspectives on ``Federal Truck Driver 
Hours of Service (HOS) Rules and Truck Safety.''
---------------------------------------------------------------------------
    \1\ ATA is a united federation of motor carriers, state trucking 
associations, and national trucking conferences created to promote and 
protect the interests of the trucking industry. Its membership includes 
more than 2,000 trucking companies and industry suppliers of equipment 
and services. Directly and indirectly through its affiliated 
organizations, ATA encompasses over 34,000 companies and every type and 
class of motor carrier operation.
---------------------------------------------------------------------------
    My name is Dave Osiecki, Vice President of Safety, Security and 
Operations for the American Trucking Associations (ATA). I am 
responsible for directing and overseeing the policy development and 
regulatory affairs activities for ATA in numerous public policy areas, 
including truck driver safety and motor carrier safety. My involvement 
has included more than 10 years of work on issues associated with HOS 
rules, which has allowed me to develop knowledge and expertise on 
driver fatigue and alertness issues, and on how different HOS rules 
impact various segments of the trucking industry. It is my pleasure to 
appear before the Subcommittee today on behalf of ATA.
    ATA's testimony is directed primarily at the effectiveness of the 
current HOS rules promulgated by the Federal Motor Carrier Safety 
Administration (FMCSA). ATA's testimony will:

        I. Emphasize the mutually dependent nature of the HOS rules' 
        provisions;

        II. Illustrate the improved industry safety experience under 
        the new HOS rules;

        III. Provide ideas to improve the HOS rules;

        IV. Evaluate driver fatigue in terms of crash causation; and

        V. Urge action on two safety initiatives that will have a real 
        impact on truck safety.

I. The HOS Rules Are a Package With Mutually Dependent Provisions
    The new HOS regulations provide improved tools in promoting safety, 
alertness and driver performance in the trucking industry by addressing 
basic physiological factors known to create fatigue. FMCSA provided in 
the rules an effective and balanced approach to promoting driver 
alertness and made significant improvements to enhance highway safety 
by:

   Increasing from 8 to 10 hours the minimum amount of time 
        that drivers must be off-duty between shifts and, by doing so, 
        providing a greater opportunity for drivers to obtain 7-8 
        consecutive hours of sleep;

   Reducing the maximum daily on-duty time limit by 1 hour from 
        15 to 14 and eliminating the provision allowing this time be 
        extended by breaks;

   Providing a maximum 11-hour driving time per shift to 
        complete runs safely;

   Adopting a rule that promotes schedules nearer to a 24-hour 
        circadian cycle; and

   Allowing for a minimum of 34 consecutive off-duty hours of 
        rest, recovery and restart for drivers to address any potential 
        sleep debt.

    On December 17, 2007, FMCSA published an Interim Final Rule (IFR) 
that retains the 11-hour maximum driving limit and the 34-hour rest and 
restart provision, along with the rest of the HOS rules that have been 
in place since January 2004. The IFR will become effective on December 
27, 2007. ATA supports FMCSA in taking this action. The IFR addresses 
the D.C. Circuit Court of Appeals' procedural concerns expressed in its 
July 2007 decision, and provides a wealth of safety data which supports 
retention of the rule.

II. The Trucking Industry's Safety Experience Has Improved While 
        Operating Under the New HOS Rules
    Government-collected safety data and metrics, as well as data 
collected from the industry, clearly indicate that the current HOS 
rules are an improvement over the old rules in terms of driver health, 
truck safety and overall highway safety. With the exception of a more 
restrictive off-duty sleeper berth provision, the current rules--
including the maximum 11-hour driving limit and the 34-hour, rest, 
recovery, and restart provision--have been in effect since January 
2004. In other words, the rules have been in force for 4 years and 
industry safety has improved over this time period.
    Recently released government-collected data demonstrates that the 
trucking industry is operating more safely under the current HOS rules. 
For example:

   The number of truck-involved fatalities decreased 4.7 
        percent in 2006--from 5,240 in 2005 to 4,995 in 2006--the 
        largest percentage drop in truck-involved fatalities since 
        1992.

   The projected truck-involved fatal crash rate for 2006 is 
        1.94 fatal crashes per 100 million vehicle miles of travel 
        (VMT). This projected rate is at its lowest point since the 
        U.S. Department of Transportation (DOT) began keeping these 
        records in 1975.

   The number of injuries resulting from truck-involved crashes 
        decreased by almost 2,000 in 2005 and dropped another 8,000 in 
        2006.

   The injury crash rate, another accepted metric, is also at 
        its lowest point since DOT recordkeeping began.

    The positive trend in truck-involved injury crashes and related 
injuries is illustrated in the following table.\2\
---------------------------------------------------------------------------
    \2\ See National Center for Statistics and Analysis link at 
www.nhtsa.dot.gov.

                                              Table 1.--Large Truck Injury Crash Statistics, 2002-2006 \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           Vehicles
                                                                                      Injury  Crashes    Involved in        Persons
                    Injury         Vehicles                        Million  Vehicle       per  100     Injury  Crashes    Injured per      Large Trucks
     Year           Crashes        Involved     Persons  Injured    Miles  Traveled       Million      per 100 Million    100 Million       Registered
                                                                                       Vehicle Miles     Vehicle Miles   Vehicle Miles
                                                                                          Traveled         Traveled         Traveled
--------------------------------------------------------------------------------------------------------------------------------------------------------
       2002          90,000          94,000           130,000              214,603             41.9             43.9             60.4        7,927,280
       2003          85,000          89,000           122,000              217,917             38.8             40.7             56.0        7,756,888
       2004          83,000          87,000           116,000              220,811             37.5             39.3             52.6        8,171,364
       2005          78,000          82,000           114,000              222,836             34.8             37.0             51.1        8,481,999
       2006             ***             ***       106,000 \4\            223,282**              ***              ***              ***              ***
--------------------------------------------------------------------------------------------------------------------------------------------------------
** 2006 Large Truck Vehicle Miles Traveled (VMT) projection based on 2006 FHWA Total VMT projection.
*** Not Yet Available.

    In addition to the DOT data, the Department of Labor's Bureau of 
Labor Statistics collects and tracks occupational injury and illness 
data for various industries.\5\ Below are truck driver non-fatal 
incidence rates of occupational injuries and illnesses for 2002 through 
2006, per 100 full-time employees. The 2004-2006 rates reflect a 
decrease of nearly 15 percent.
---------------------------------------------------------------------------
    \3\ See http://www.fmcsa.dot.gov/facts-research/research-
technology/report/Large-Truck-Crash
-Facts-2005/Large-Truck-Crash-Facts-2005.pdf, February 2007, page 10.
    \4\ See http://www.fmcsa.dot.gov/facts-research/facts-figures/
analysis-statistics/MCSPR-06-30-07.htm.
    \5\ See http://www.bls.gov/iif/oshsum.htm.

2002-2003                      (the 2 years prior to             6.8
                                current HOS rules)
2004-2005                      (the first 2 years operating      6.1
                                under current HOS rules)
2006                           (the last year of operating       5.8
                                under current HOS rules)


    An additional study conducted by the American Transportation 
Research Institute (ATRI), a research organization affiliated with ATA, 
supports the government's safety findings. ATRI's study--``Safety and 
Health Impacts of the New Hours-of-Service Rules''--collected fleet 
data representing approximately 100,000 truck drivers and 10 billion 
annual VMT. Safety and health statistics for 2003 (under the old HOS 
rules) were compared to those for 2004 (under the current HOS rules) to 
identify changes in outcomes. The analysis found that there were 
significant decreases in the collision rate per million VMT (-3.7 
percent), preventable collision rate (-4.8 percent), and non-
preventable collision rate (-0.8 percent). Even larger reductions were 
found in the driver injury rate (a reduction of 2.6 percent), 
collision-related injury rate (a reduction of 7.6 percent), and non-
collision injury rate (a reduction of 13.7 percent) per million VMT. 
These aggregated fleet statistics indicate clearly that 2004 was a 
safer year for participating fleets.\6\
---------------------------------------------------------------------------
    \6\ See http://www.atri-online.org/research/results/Hours-of-
Service%20one-pager.pdf.
---------------------------------------------------------------------------
    To further determine the safety experience of the industry, in 
August 2007, ATA initiated a survey effort to collect motor carrier 
data for the month of June 2007. More than 769 motor carriers using 
233,742 trucks and employing 214,987 professional drivers responded to 
the survey and provided both 11 hour driving time and 34 hour restart 
use data, along with data on the number of DOT recordable crashes by 
driving hour.
    The table that follows, based on ATA's finalized review of the 
survey data, shows the number and percentage of crashes in each of the 
driving hours. In considering the following numbers, it should be 
remembered that the majority of serious truck accidents (about 67 
percent according to FMCSA's 2005 HOS Regulatory Impact Analysis) are 
not the fault of the truck driver, and only a small percentage of those 
that are the truck driver's fault are fatigue-related. This issue will 
be addressed in detail later in this document under Section IV.

              Table 2.--ATA Survey Results on the Number and Percentage of Crashes per Driving Hour
----------------------------------------------------------------------------------------------------------------
        Driving Hour                  Number of Crashes                     Percentage of Total Crashes
----------------------------------------------------------------------------------------------------------------
                 0-1                                   158                                           15.90
                 1-2                                   143                                           14.39
                 2-3                                   138                                           13.88
                 3-4                                    98                                            9.86
                 4-5                                    92                                            9.26
                 5-6                                    93                                            9.36
                 6-7                                    72                                            7.24
                 7-8                                    82                                            8.25
                 8-9                                    46                                            4.63
                9-10                                    37                                            3.72
               10-11                                    35                                            3.52
----------------------------------------------------------------------------------------------------------------

    As Table 2 indicates, the 11th hour of driving time has both the 
fewest number and the lowest percentage of accidents. Even assuming 
significantly less driving time in the 11th hour, the accident 
frequency in that time-frame is still apparently well below prior 
hours. While this data does not address the difference in risk in the 
driving hours, this is discussed immediately below.
    In November 2007, the Virginia Tech Transportation Institute (VTTI) 
released a significant follow-up report \7\ to its previous study \8\ 
that addressed the research question:
---------------------------------------------------------------------------
    \7\ Hanowski, Olson, Bocanegra, Hickman, Dingus, Sudweeks, 
``Critical Incidents that Occur in the 10th and 11th Hour of Driving in 
Commercial Vehicle Operations: ``Does Risk Increase in the 11th 
Hour?'', Virginia Tech Transportation Institute, November 7, 2007.
    \8\ Hanowski, Dingus, Sudweeks, Olson and Fumero, ``Assessment of 
the Revised Hours-of-Service Regulations: Comparison of the 10th and 
11th Hour of Driving Using Critical Incident Data and Measuring Sleep 
Quantity Using Actigraphy Data'', June 2005.
---------------------------------------------------------------------------
    Is crash risk, as measured by the frequency of critical incident 
occurrence, measurably different between the 10th and 11th hours of 
driving? The study was a naturalistic data collection approach through 
which data was collected as participants drove company trucks on their 
normal revenue-producing runs. This research produced a significant 
finding relevant to the assessment of the 2003 and 2005 HOS 
regulations. Specifically, the VTTI analysis on frequency of critical 
incident occurrence showed no statistical difference between the 10th 
and 11th hour of driving.
III. What Else Can Be Done to Improve the HOS Rules?
    Effective HOS rules are only part of a solution aimed at keeping 
commercial operators alert and safe when working and driving. Managing 
operator alertness and fatigue in a trucking setting is a complex issue 
that calls for a comprehensive approach. ATA is hopeful that the 
national dialogue on this issue moves beyond simple on-duty, driving 
and off-duty limits toward a more comprehensive programmatic approach 
to managing alertness. This will take years, but movement toward this 
goal needs to begin.
Reconsider How the Sleeper Berth Provisions Benefit Driver Alertness
    Reinstating aspects of the sleeper berth provision that was 
available and used by drivers for decades would be a great first step. 
ATA supports greater flexibility in the provision governing use of the 
sleeper berth. Greater flexibility, consistent with the provision in 
effect until 2005, would:

   Encourage naps because drivers would not lose work hours 
        because of time spent in the sleeper berth. Naps are one of the 
        most important fatigue countermeasures for drivers.

   Encourage shorter continuous driving periods by allowing 
        drivers to take sleeper berth naps ``off the clock'' during 
        their tour of duty. Drivers could split their daily driving 
        periods (up to 11 hours) into shorter periods.

   Encourage a ``circadian friendly'' approach. Many driver 
        duty tours begin in the morning and continue through the 
        afternoon and into the evening. Under such a schedule, drivers 
        are likely to work and drive during the morning hours, but take 
        breaks for naps during the afternoon. For most people, the 
        afternoon is the daytime period when it is most difficult to 
        stay awake, and when most naps are taken.\9\ The evening hours 
        are times of greater alertness. Compared to drivers working 
        continuously, drivers taking advantage of a more flexible 
        sleeper berth provision would tend to be rest and sleep during 
        their afternoon circadian low periods, and drive during morning 
        and evening hours when their alertness is high.
---------------------------------------------------------------------------
    \9\ Dinges, D.F., Broughton, R.J. and Eds., ``Sleepiness and 
Alertness: Chronological, Behavioral, and Medical Aspects of Napping,'' 
New York, Raven Press, 1989.

   Aid congestion relief. On many freight corridors, drivers 
        must operate through or around major metropolitan areas (e.g., 
        the I-95 corridor that includes Washington, Baltimore and 
        Philadelphia), which are becoming increasingly congested for 
        longer periods of time each day. A return to a more flexible 
        provision would allow drivers to use their sleeper berth at 
        these times to rest, which would also help reduce congestion at 
---------------------------------------------------------------------------
        peak commuting and travel times.

    To encourage sleep, rest, and naps and to also promote the 
efficient movement of freight, the sleeper berth provision should be 
reconsidered.
Electronic On-Board Recorders May Help in Gaining Better Compliance 
        With the HOS Rules
    ATA foresees a future state where certain trucking operations are 
required to use Electronic On-Board Recorders (EOBRs) for HOS 
recordkeeping. However, FMCSA must assure that the regulatory ground 
work for this technology is properly completed. ATA's membership 
established in October 2005 a comprehensive policy regarding EOBRs that 
is aimed at achieving prudent utilization of this technology.
    Two prime points within ATA's policy, which were shared with this 
Senate Subcommittee in May 2007 are:

        1. ``There should be sound, consensus-based evidence that EOBR 
        use leads to enhanced fleet safety performance by such means as 
        accident rate reduction and improved compliance, therefore, 
        increasing the credibility of EOBR systems as a cost-effective 
        technology for motor carriers.''

    ATA is concerned that supporting research showing that EOBR use 
reduces fatigue, improves safety, prevents accidents and lowers costs 
does not exist. Such information is necessary not only to justify a 
regulation and its benefits, but also to provide motor carriers 
meaningful information in deciding whether to deploy such systems in 
their fleets. Given that FMCSA does not have benefit and cost data 
sufficient to support an overall mandate, ATA generally supports the 
agency's approach to provide incentives to drive voluntary adoption of 
EOBRs, with mandates limited to targeted enforcement against non-
compliant carriers and drivers.

        2. ``EOBR systems should be based on the minimal, functional 
        and performance specifications necessary to accurately record 
        and report hours-of-service compliance and assure reliability 
        and utility of operation.''

    The industry has asked for uniform, minimum performance criteria 
for EOBR devices and systems, which provides for flexibility in the 
design and delivery to the market. There needs to be design and 
operational requirements that will dependably, reliably, and 
comprehensively replace manual logbooks. Without consistent and 
recognizable specifications for EOBR devices and systems, there will 
continue to be questions related to utility, reliability, tamper-
resistance, accuracy, durability and effectiveness.
IV. Evaluating Driver Fatigue In Terms of Crash Causation
    Truck driver fatigue is an important issue. However, any objective 
evaluation of crash causation--and this would include the government's 
own studies--would not highlight driver fatigue as the paramount safety 
issue that it is often portrayed to be. In fact, those same government 
studies, along with other reports, indicate that other, more 
mainstream, traffic safety problems are greater problems/concerns.
    FMCSA annually analyzes the Fatality Analysis Reporting System 
(FARS) data maintained by the National Highway Traffic Safety 
Administration for fatigue factors. The analysis of the FARS data shows 
that fatigue-related fatal crashes involving trucks are a small portion 
of the total as indicated in the table below.

                    Table 3.--Fatal Motor Vehicle Traffic Crashes Involving Large Trucks \10\
----------------------------------------------------------------------------------------------------------------
                                                                                           Fatigue-Related  LT
               Year                           Total                Fatigue-Related       Fatal Crashes,  Percent
                                                                                                of Total
----------------------------------------------------------------------------------------------------------------
2003                                                  4,335                        74                       1.7
2004                                                  4,478                        66                       1.5
2005                                                  4,551                        82                       1.8
2006                                                  4,321                        69                       1.6
----------------------------------------------------------------------------------------------------------------

    Going back even further, for the 17 years from 1991 to 2006, just 
1.7 percent of large truck drivers in a fatal crash were identified as 
fatigued, based on FARS coding.
---------------------------------------------------------------------------
    \10\ Source: FMCSA Analysis of Fatality Reporting System (FARS) 
NHTSA, Declaration of Thomas Keane to the U.S. Circuit Court of Appeals 
for the D.C. Circuit, September 21, 2007.
---------------------------------------------------------------------------
    It is commonly argued that fatigue is underreported and, therefore, 
this percentage is likely to be understated to some degree. In 
addition, a fatigue coding in FARS does not mean that driver fatigue 
caused the crash, only that it was a contributing factor. For this 
reason, it is important to analyze the findings of FMCSA's 2006 Large 
Truck Crash Causation Study (LTCCS).
    The LTCCS determined the ``Critical Reasons'' for a sample of 963 
serious (fatal and injury) large truck crashes. Critical Reasons (CRs) 
are the proximal causes of the crashes examined in the study. LTCCS 
crashes, and truck crashes in general, fall into three broad 
categories:

   Multi-vehicle crashes with the CR assigned to the other 
        vehicle. In practice, this means the other vehicle is at-fault.

   Multi-vehicle crashes with the CR assigned to the truck 
        (i.e., truck at-fault).

   Single-vehicle truck crashes (where the CR is almost always 
        assigned to the truck).

    Figure 1 below is a pie chart of LTCCS truck crash involvements per 
the three categories mentioned.\11\ The largest block was multi-vehicle 
crashes in which the other vehicle (OV) was assigned the CR. The other 
two pieces of the pie were multi-vehicle crashes in which the truck had 
the CR and truck single-vehicle crashes.\12\
---------------------------------------------------------------------------
    \11\ The two primary Federal databases for estimating crash problem 
size and crash characteristics are the General Estimates System (GES) 
and FARS. In 2005, per GES and FARS, 87 percent of large truck injury 
(including fatal) crashes were multi-vehicle, and 13 percent were 
single-vehicle. The corresponding LTCCS percentages were 69 percent and 
31 percent. This means that the LTCCS over-sampled single-vehicle truck 
crashes. This discrepancy between the LTCCS multi- vs. single-vehicle 
crash breakout and national percentages (based on GES and FARS) may 
well have skewed LTCCS statistics toward an overrepresentation of 
asleep-at-the-wheel crashes and other crash causes seen primarily in 
single-vehicle crashes. Nevertheless, the LTCCS findings provide 
important insight into the level of fatigue involved in serious truck 
crashes.
    \12\ Note that the denominator in these figures is all LTCCS 
crashes in which a critical event and CR were coded. For one truck, one 
light vehicle crashes, trucks were assigned the CR in 44 percent, OVs 
in 56 percent. For all truck involvements in multi-vehicle (2+ 
vehicles) LTCCS crashes, trucks were assigned the CR in 40 percent.


    Figure 2 expands the categories further by adding ``truck driver 
asleep'' as a subcategory of both truck multi-vehicle and single-
vehicle crashes. When all large truck crashes are considered, a total 
of 4.5 percent are primarily related to truck driver asleep-at-the-
wheel. This includes asleep-at-the-wheel multi-vehicle crash 
involvements (0.4 percent of LTCCS crashes) and single-vehicle 
involvements (4.1 percent of LTCCS crashes).



    Looking at single-vehicle and multi-vehicle crashes separately, 
`truck driver asleep' was the CR in 13.2 percent of truck single-
vehicle crash involvements, but only 1.1 percent of their multi-vehicle 
crashes in which they were assigned the CR. This is a 12-fold 
difference. In all multi-vehicle crashes (truck driver CR + other 
vehicle CR), truck drivers were asleep in only 0.55 percent.
    Below Table 4 shows percentages for top CRs for those LTCCS multi-
vehicle crashes in which the truck was assigned the CR. In other words, 
when trucks were at-fault in multi-vehicle crashes, these were the 
proximal causes. Keep in mind that multi-vehicle crashes represent the 
largest crash type. As seen in the table, asleep-at-the-wheel is not a 
major cause. The overwhelming majority of these crashes are caused by 
driver error (e.g., too fast for conditions, following too closely, 
etc.), not driver fatigue.

 Table 4.--Most Common Truck CRs for Multi-Vehicle Crashes in Which the
                        Truck Was Assigned the CR
------------------------------------------------------------------------
    Critical Reasons (includes some aggregations)         Percentage
------------------------------------------------------------------------
Inadequate surveillance (didn't look or looked but                   19
 did not see)
Inattention (e.g., distraction, daydreaming)*                        19
Too fast for conditions or curve/turn**                              13
Illegal maneuver                                                      8
Following too closely                                                 8
Vehicle factor (e.g., brakes, tires, cargo shift)                     7
Misjudgment of gap or other's speed                                   5
Driver error, type unknown                                            4
False assumption of other driver's actions                            3
Performance errors (e.g., overcompensation)                           3
Heart attack or other physical impairment                             2
Asleep-at-the-wheel                                                   1
Other CRs not shown                                                   8
------------------------------------------------------------------------
Aggregations: * Internal distraction, + external distraction, + other
  inattention (daydreaming), + unknown recognition error.
** Too fast for conditions to be able to respond to unexpected actions
  of other road users, + too fast for curve/turn.
Percentages based on all trucks.

    We are not providing a table for multi-vehicle crashes in which the 
other vehicle is assigned the CR (i.e., the other vehicle is at-fault). 
It is notable, however, that in 9 percent of these crashes, the other 
driver was coded as asleep-at-the-wheel. This means that in the LTCCS 
multi-vehicle crash data, the car driver was nine times more likely to 
be asleep at the wheel than the truck driver.\13\
---------------------------------------------------------------------------
    \13\ A similar huge discrepancy was found by the AAA Foundation for 
Traffic Safety in a review of 10,732 fatal car-truck crashes occurring 
between 1995-98 (Kostyniuk et al., 2002). Only 44 of these 10,732 
crashes (0.4 percent) involved a truck driver drowsy or asleep. In 
contrast, 300 of them (2.8 percent) involved a car driver impaired by 
fatigue. This is a seven-fold difference.
---------------------------------------------------------------------------
    For all vehicle types (trucks, other vehicles, etc.), driver 
fatigue is a larger factor in single-vehicle crashes. But for all 
vehicle types there is a much bigger factor than fatigue: excessive 
speed. Driver performance problems/errors--i.e., excessive speed and 
non fatigue-related driver inattention--are the ubiquitous causes of 
crashes, far exceeding fatigue, other driver factors, vehicle-related 
causes, and roadway/environmental causes.
    The overemphasis on truck driver fatigue as the paramount safety 
issue, however, has resulted in resources being allocated to that issue 
that could otherwise be directed toward more critical safety concerns. 
The biggest block of crashes involving large trucks is those 
precipitated by the errors of other drivers. To be certain, truck 
driver errors also cause crashes but the vast majority of these 
performance errors are not fatigue-related. Instead, they are the same 
errors that cause most serious car crashes: driver distraction, other 
non-fatigue related driver inattention, and excessive speed.
    The countermeasures to address these problems include driver 
education, but they must also emphasize more stringent and effective 
traffic enforcement (including automated enforcement) and enlightened 
applications of active safety technologies on trucks and other vehicles 
to assist drivers.
    ATA believes a truck safety paradigm shift must occur to directly 
confront the dominating and mainstream traffic safety issues that 
affect truck safety. For this reason, we offer these important 
recommendations immediately below.
V. Truck Safety Resources Need To Address Primary Crash Causes
    To improve truck safety in a meaningful way, government policies, 
programs and countermeasures need to address the primary causes of 
truck crashes. After all, Congress funded the LTCCS for 5 years in 
order for government and industry to better understand the causes. 
Unfortunately, too much of the Federal truck safety budget continues to 
focus on ensuring the safe condition of the truck, on driver fatigue 
issues, and on prevention of impaired driving. However, it is clear 
from the LTCCS and other causation research, that speeding is a more 
significant cause and contributing factor in crashes involving trucks, 
than any of the factors that currently receive the largest proportion 
of DOT's attention and resources. A lack of focus on speed as a causal 
or significant contributing factor in truck crashes represents a 
significant gap in the Federal Government's truck safety strategy.
    To address the speed issue, ATA urges Congressional support for two 
initiatives. First, ATA supports reinstatement of a national maximum 
speed limit. ATA further supports that the maximum speed limit be 65 
mph applicable to all vehicles, including large trucks.
    Second, ATA supports a requirement for all new large trucks to be 
electronically speed governed at a setting not to exceed 68 mph.
    In fact, in October 2006, ATA petitioned the National Highway 
Traffic Safety Administration (NHTSA) to initiate a rulemaking to amend 
the Federal Motor Vehicle Safety Standards to require vehicle 
manufacturers to install a device limiting the speed of large trucks 
(defined as those with a Gross Vehicle Weight Rating of greater than 
26,000 pounds) to no more than 68 mph. At the same time, ATA also 
petitioned FMCSA to initiate a concurrent rulemaking with NHTSA to 
prohibit owners and operators from adjusting the electronic control 
module in affected trucks in a way that enables the vehicles to exceed 
68 mph. Now, more than a year later, it is unfortunate that DOT has not 
accepted and acted on ATA's petition.
    Reducing speed-related crashes involving large trucks is critical 
to NHTSA's and FMCSA's safety missions. These new requirements are 
necessary in order to reduce the number and severity of crashes 
involving large trucks and other vehicles.
Summary
    Based on government and industry safety data collected over the 
last 3-4 years since the new HOS rules have been in effect, it is 
becoming increasingly clear that the new HOS rules are more effective 
than the prior rules in helping to improve safety on the Nation's 
highways, and provide for the safety and health of drivers. ATA 
supports their retention.
    Additionally, an objective evaluation of driver fatigue in context 
with other crash causes indicates that other, more mainstream, traffic 
safety problems are far greater concerns. ATA supports a substantial 
realignment of DOT programs and resources to focus on critical truck-
related crash causes.
    Thank you for the opportunity for ATA to offer its views on truck 
driver HOS rules and truck safety. We look forward to working with this 
Subcommittee, Congress, DOT, FMCSA, and other reasoned stakeholders to 
improve the safety and productivity of our Nation's highway 
transportation system.

    Senator Lautenberg. Welcome, Mr. Hill. Your presentation, 
please.

        STATEMENT OF HON. JOHN H. HILL, ADMINISTRATOR, 
          FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION

    Mr. Hill. Thank you, Mr. Chairman.
    Chairman Lautenberg and Senator Pryor, thank you for 
inviting me today to discuss the Federal Motor Carrier Safety 
Administration's approach for regulating truck drivers' hours-
of-service.
    FMCSA's hours-of-service rules reduce the risk of fatigue-
related crashes involving truck drivers and provide flexibility 
for the trucking industry to meet the transportation needs of 
the Nation, while ensuring highway safety.
    Safety is our top priority at the Department of 
Transportation, and our efforts have produced results. The 
heavy-truck fatality rate per hundred-million vehicle miles 
traveled is currently at the lowest rate since the Department 
began keeping these figures 30 years ago. We are committed to 
reducing the fatality rate even further.
    Mr. Chairman, before I review the history of the hours-of-
service rulemaking actions to provide a basis for today, I 
would like to address the Agency's issuance of the interim 
final rule, or IFR, on hours-of-service, and assure that an IFR 
is a temporary measure to prevent significant confusion with 
hours-of-service enforcement and compliance while we accept and 
review comments and prepare a final rule.
    Faced with a December 27 deadline for the rulemaking action 
established by the recent court ruling, an interim regulation 
provides a familiar and uniform set of national laws to govern 
motor carrier transportation while FMCSA gathers public 
comments on all aspects of this interim final rule, conducts 
peer analysis and review, and considers the appropriate final 
rule that addresses the issues identified by the court. FMCSA 
is fully committed to issuing a final rule in 2008.
    Prior to implementing the 2003 rule, FMCSA allowed drivers 
to complete their 10 hours of driving within a 15-hour window. 
It was an extendable workday. In practice, the 15-hour window 
was substantially longer, because miscellaneous off-duty 
periods were not counted as part of the 15 hours. Drivers were 
only required to be off-duty for 8 hours before returning to 
duty. Drivers could split their time in the sleeper berth into 
two separate periods, provided neither period was less than 2 
hours. This meant that drivers could operate their vehicles for 
extended periods of time without having the opportunity for a 
single uninterrupted rest period long enough to obtain 7 to 8 
hours of sleep.
    In addition, the rules provided for weekly limits of on-
duty time which resulted in drivers who were on certain 
schedules running out of available on-duty time within a few 
days. They were then required to go off-duty for approximately 
3 full days before being allowed to drive again.
    As a result of the 2003 rule, driving time was limited to 
11 hours within a 14-hour nonextendable window after coming on 
duty, following 2 additional hours, and requiring a total of 10 
consecutive hours off-duty.
    Also, drivers were allowed to restart the calculation of 
the weekly limit after they took 34 consecutive hours off. And 
drivers using sleeper berths were allowed to continue to split 
the mandatory off-duty period, with a 2-hour minimum period in 
the sleeper berth.
    In April 2004, the United States Court of Appeals for the 
District of Columbia Circuit overturned the 2003 rules on the 
grounds that the FMCSA did not address the issue of driver 
health. Congress enacted legislation to provide continuity 
through this time until the court allowed us to finalize a rule 
that would be published within 1 year or September 30, 2005, 
whichever occurred first.
    In 2005, the rule the agency adopted strengthened the 
previous hours-of-service rule by requiring drivers using 
sleeper berths to spend at least 8 hours but less than 10 in 
the sleeper berth, and take an additional 2 hours either off-
duty or in the sleeper berth.
    Following publication of the 2005 rule, and despite the 
Agency's efforts to provide a rule based on best available 
scientific information concerning driver fatigue, the August 
2005 rule was challenged on several grounds. On July 24 of this 
year, the court issued a decision vacating the 11-hour driving 
limit and the 34-hour restart, on procedural grounds. In an 
order filed on September 28 of this year, the court granted a 
90-day stay of the effective date until December 27.
    On December 12, we made available to the public an IFR on 
hours-of-service. On December 17, the IFR was published in the 
Federal Register. The IFR addresses the procedural issues 
identified by the court in vacating parts of the 2005 rule.
    And, as I mentioned earlier, the IFR is a temporary 
measure, but, by adopting this rule--on an interim basis, the 
agency is seeking to avoid significant and costly disruption to 
existing industry compliance and State enforcement practice 
while addressing the procedural limits identified by the court, 
and providing an opportunity for public comment on the actions 
and underlying safety analysis from all interested parties. 
This will ensure that an uninterrupted safety regime remains in 
place with State law enforcement officials and practices and 
policies.
    We will soon begin the process of reviewing the public 
comments to the docket to determine the most appropriate steps 
to complete the final rule.
    Thank you, Mr. Chairman, for the opportunity to appear 
before you today. And I will look forward to working with this 
Committee in the future to address highway safety.
    [The prepared statement of Mr. Hill follows:]

        Prepared Statement of Hon. John H. Hill, Administrator, 
              Federal Motor Carrier Safety Administration

Introduction
    Chairman Lautenberg, Ranking Member Smith, and Members of the 
Subcommittee, thank you for inviting me today to discuss the Federal 
Motor Carrier Safety Administration's (FMCSA's) approach for regulating 
truck drivers' hours-of-service (HOS). I am pleased to describe FMCSA's 
efforts to establish and enforce HOS rules, which are supported by 
scientific studies of fatigue and effectively reduce the risks of 
fatigue-related crashes involving truck drivers, while providing 
flexibility for the industry to meet our Nation's freight 
transportation needs and ensure highway safety.
    On May 1, 2007, at a hearing before this Subcommittee, I discussed 
FMCSA's notice of proposed rulemaking (NPRM) to improve safety in the 
truck and bus industries by requiring motor carriers with severe 
patterns of HOS violations to equip their vehicles with Electronic On-
Board Recorders (EOBRs). Since that hearing, FMCSA has completed its 
review and additional analyses necessary to respond to the public 
comments. We have completed additional research in response to comments 
about the proposed performance specifications for EOBRs. We are now 
drafting a Final Rule to follow-up on our January 2007 NPRM on EOBRs.
    Mr. Chairman, I would like to take a moment to assure you that our 
recent issuance of an Interim Final Rule (or IFR) on hours-of-service 
is a temporary measure needed to prevent significant disruption to 
hours of service enforcement and compliance while we prepare a final 
rule. Faced with the December 27 deadline for rulemaking established by 
a recent Court ruling, an interim regulation provides a familiar and 
uniform set of national rules to govern motor carrier transportation 
while FMCSA gathers public comments on all aspects of this interim 
final rule, conducts peer review of our analysis, and considers the 
appropriate final rule that addresses the issues identified by the 
Court. Our safety data indicate that the IFR will maintain highway 
safety outcomes. FMCSA is fully committed to issuing a final rule in 
2008.
    The transportation community faces many important challenges. Even 
as priorities change and our Nation's transportation needs evolve, 
safety on our roads must remain paramount to all priorities. Safety is 
the Department of Transportation's top priority and our efforts have 
produced results. The large truck fatal crash rate for 2006 is at its 
lowest point, 1.94 fatal crashes per 100 million large truck vehicle 
miles traveled (VMT), since the Department began tracking these figures 
30 years ago. From calendar year 2005 to 2006, large truck fatalities 
decreased from 5,240 to 4,995, representing a 4.7 percent reduction in 
large truck fatalities. We are committed to reducing the fatality rate 
even further.
    FMCSA has focused on fighting driver fatigue as one way to help 
make our roads safer. In April 2003 and August 2005, we took important 
steps toward reducing the number of fatigue-related crashes by 
modifying the hours-of-service rules to ensure that truck drivers are 
provided with adequate opportunities to rest at the end of each work 
day and during the work week. While the litigation that followed our 
rulemaking actions has created an atmosphere of uncertainty, FMCSA 
remains committed to providing an hours-of-service regulatory regime 
that does not compromise safety.
    While some may offer unsubstantiated claims about the impact of the 
2003 and 2005 HOS rules on safety and drivers' work hours, FMCSA is 
required to consider empirical data and offer factual evidence when 
promulgating its regulations. The Motor Carrier Safety Act of 1984 
requires that ``Before prescribing regulations under this section, the 
Secretary shall consider, to the extent practicable and consistent with 
the purposes of this chapter . . . costs and benefits.''
    Preventing fatigue-related large truck crashes is important to the 
Agency, as is evidenced by the resources we have expended on the HOS 
issue over the past 7 years. However, it must be noted that FMCSA is 
responsible for reducing all types of large truck crashes, not just 
those involving fatigue. In its 2005 rulemaking, FMCSA estimated that 
93 percent of all large truck crashes were not fatigue-related.
    Additionally, some commenters have challenged the basis for FMCSA 
allowing drivers to drive 1 hour longer per shift, when combined with 
the longer rest periods required in the 2003 and 2005 HOS rules. The 
Trucks Involved in Fatal Accidents (TIFA) dataset, the only 
comprehensive data source that tracks fatal large truck crashes by hour 
of driving, confirms, however, that between 1991 and 2002 only 9 large 
trucks were involved in fatigue-related fatal crashes in the 11th hour 
of driving. More recent TIFA data reveal that there was one such 
involvement in 2003, none in 2004, and only one in 2005. As 
Administrator of the agency responsible for CMV safety, I must 
determine where to best place our efforts and allocate the resources 
provided by this Subcommittee. Where can we save the most lives in 
dealing with unsafe and illegal drivers? The following major factors 
examined in the Large Truck Crash Causation Study have a higher 
relative crash risk than fatigue: illegal lane maneuver; traveling too 
fast for conditions; inattention; inadequate surveillance; and 
following too closely. Fatigue is an important safety factor to 
address, and may be underreported; however it is less significant a 
contributor to fatalities and injuries than these other driver related 
factors.
    Wise stewardship requires us to use our resources most effectively 
to reduce crashes and fatalities. We continually assess how to best 
reduce roadway deaths. One of the most important ways is to increase 
safety belt usage of drivers of CMVs. Specifically, of the 805 large 
truck occupants killed in crashes in 2006, 393 (49 percent) were not 
wearing their safety belt. Of these 393, 134 were ejected completely 
from their vehicle. We believe that many of these 393 fatalities could 
have been avoided had the large truck occupants been wearing their 
safety belts. Through focused efforts in the last 2 years, we have seen 
safety belt use increase from 48 percent to 59 percent. I want to see 
the safety belt rate at 90 percent, a figure several states have 
achieved for passenger vehicles. Another area that needs greater effort 
is the use of technologies such as electronic and roll stability 
control systems, lane departure warning systems, and forward collision 
warning systems. The industry is starting to adopt these technologies 
at a faster pace. FMCSA continues to promote and evaluate these 
technologies. We intend to make the adoption of these technologies a 
part of our enforcement regime through settlement agreements when 
carriers have failed to demonstrate safety performance in their 
operations.

FMCSA's 2003 Final Rule
    Regulating the number of hours commercial drivers may work has been 
a Federal Government responsibility for 70 years, beginning with the 
Interstate Commerce Commission (ICC). Through the years, there have 
been three reforms of the rules, the most notable of which was the 2003 
rule, when FMCSA made significant revisions to improve highway safety. 
The 2003 rule limited driving to 11 hours within a 14-hour, non-
extendable window after coming on duty following 10 consecutive hours 
off-duty (known as the 11-hour rule). Although the rules concerning 
weekly limits for on-duty time were unchanged, drivers were allowed to 
restart the weekly limit calculation after they took 34 consecutive 
hours off-duty (known as the 34-hour restart provision). Drivers using 
sleeper berths were allowed to continue to split the mandatory off-duty 
period, with the minimum period in the sleeper berth being 2 hours.
    The 2003 rule contained several provisions that improved the 
opportunity for drivers to obtain restorative sleep. For example, among 
the most significant provisions, the rule established a 14-hour, non-
extendable window within which a driver could drive up to 11 hours 
following a 10 consecutive hour off-duty period. As a result of the 14-
hour rule, drivers were prohibited from driving after the 14th hour 
since the beginning of the work day, regardless of whether they used 
the maximum 11 hours driving time. Unlike the previous rule, 
miscellaneous off-duty periods could not be used to extend the workday. 
The increase in the minimum off-duty period from 8 to 10 consecutive 
hours ensured that drivers had the opportunity for restorative sleep to 
fully recover from the work day. This provision moved drivers toward a 
work-rest schedule that more closely matched the natural 24-hour 
circadian cycle and gave drivers the opportunity to obtain the 7 to 8 
hours of uninterrupted sleep per day that most adults need. The 34-hour 
restart provision gave drivers the opportunity for two 8-hour sleep 
periods, which research has shown can overcome cumulative fatigue 
associated with sleep deprivation. Survey results and analysis verified 
that most drivers take substantially more than the minimum 34 hours 
when restarting the weekly clock.
    Because the duty period within which an operator could drive was 
more limited than under the pre-2003 rule and because the rest period 
was long enough to provide an opportunity for 7 to 8 hours of 
uninterrupted sleep time, FMCSA concluded it was safe and reasonable to 
extend the number of hours an operator could drive within the 14-hour 
window from 10 hours to 11 hours. The 34-hour restart provision also 
provided drivers and carriers with operational flexibility and an 
improved quality of life, particularly for long haul operations, where 
the 60- and 70-hour rules may limit flexibility by forcing drivers to 
go off-duty for periods longer than necessary to fully recover from a 
typical work week. FMCSA concluded that the limited 14-hour rule and 
the mandatory 10-hour off-duty period improved safety while the 11 
hours of driving time and the 34-hour restart provide operational 
flexibility.

The Court's 2004 Decision
    In April 2004, the United States Court of Appeals for the District 
of Columbia Circuit (the Court or D.C. Circuit) overturned the 2003 
rule on the grounds that FMCSA did not address adequately the issue of 
driver health, as required by 49 U.S.C. 31136(a)(4) [Public Citizen v. 
FMCSA, 374 F.3d 1209, D.C. Cir. 2004]. However, to avoid industry 
disruption and burden on the states, Congress enacted section 7(f) of 
the Surface Transportation Extension Act of 2004, which provided that 
the 2003 rule would remain in effect until a new final rule addressed 
the Court's issues or until September 30, 2005, whichever occurred 
first.

FMCSA Response to the Court's 2004 Decision
    After reviewing the decision and considering the concerns raised by 
the Court, FMCSA stood behind the evidence and analysis that supported 
the 2003 rule and decided to repropose the rule as originally published 
in 2003 and to seek public comments. On August 25, 2005, FMCSA 
published a final HOS rule that retained many provisions of the 2003 
rule (``the 2005 rule'').
    The Agency strengthened the 2003 rule significantly by requiring 
drivers using sleeper berths to spend at least 8 but less than 10 
consecutive hours in the sleeper berth and to take an additional 2 
hours either off-duty or in the sleeper berth. The new requirement 
followed the science by upholding the benefits of 7-8 hours of 
uninterrupted sleep each day. The Agency required further that the 
shorter sleeper berth period be counted against the 14-hour on-duty 
limit, thereby decreasing the extent to which the workday could be 
extended. The 2005 rule also provided relief to some short-haul 
operations using lighter trucks.
    In preparing the 2005 rule, FMCSA researched both U.S. and 
international health and fatigue studies and consulted with Federal 
safety and health experts. For example, we evaluated the much longer 
work day, including 13 hours of driving, allowed by Canadian drivers. 
In fact, we are currently conducting joint HOS research with Canada to 
understand better the impact of driving on the driver. The Agency 
considered scientific evidence about the relationship between the hours 
a commercial motor vehicle driver works, drives, and the structure of 
the work schedule (on-duty/off-duty cycles, time-on-task, especially 
time in continuous driving, sleep time, etc.), and the impact on the 
driver's health.

Litigation Concerning the 2005 Rule
    Despite these efforts to provide a rule based on careful 
consideration of the best available scientific information, Public 
Citizen and others challenged the August 2005 rule on several grounds, 
as did the Owner-Operator Independent Drivers Association (OOIDA). On 
July 24, 2007, the Court rejected OOIDA's arguments, which challenged 
the sleeper berth provision, but accepted part of Public Citizen's 
arguments, vacating both the 11-hour driving limit and the 34-hour 
restart provisions [Owner-Operator Independent Drivers Association, 
Inc. v. Federal Motor Carrier Safety Administration, 494 F.3d 188 (D.C. 
Cir. 2007)].
    The Court concluded that FMCSA did not satisfy the Administrative 
Procedure Act's (APA) requirements because the Agency failed to provide 
an opportunity for public comment on the methodology of the Agency's 
operator-fatigue model, which FMCSA used to assess the benefits of 
alternate changes to the HOS rules. The Court then listed several 
elements of the process by which the Agency calculated the impact of 
time-on-task that it held the public could not have anticipated and 
that were not disclosed in time to allow for public comment.
    The Court also vacated the one-hour increase in the daily driving 
limit because FMCSA did not provide an adequate explanation for certain 
critical elements in the model's methodology, in particular the manner 
of plotting crash risk as a function of time-on-task/hours of driving. 
In vacating the 34-hour restart provision, the Court held that FMCSA 
provided no explanation for the failure of its operator-fatigue model 
to account for cumulative fatigue due to the increased weekly driving 
and working hours permitted by the 34-hour restart provision. The Court 
rejected three additional challenges to the 2005 Rule raised by OOIDA, 
and in so doing, agreed that FMCSA had made the sleeper berth provision 
safer.
    In an order filed on September 28, 2007, the Court granted a 90-day 
stay of the mandate. The Court directed that issuance of the mandate be 
withheld until December 27, 2007.

FMCSA's Response to the Court's 2007 Decision
    On December 17, FMCSA published an IFR to reinstate the hours-of-
service provisions vacated by the D.C. Circuit Court of Appeals. As a 
result of the IFR, truck drivers will continue to be limited to driving 
only 11 hours within a 14-hour duty period, after which they must go 
off-duty for at least 10 hours. The interim final rule was developed 
after new data showed that safety levels have been maintained since the 
11-hour driving limit was first implemented in 2003. As required by the 
Court, the Agency seeks comment on its methodology of the operator-
fatigue model, which is central to the justification for this IFR. The 
IFR is based on the Agency's evaluation of new safety and operational 
data, additional analysis and modeling of the relationship between 
hours of driving and fatigue-related large truck crashes, discussion of 
the concept of cumulative fatigue in the context of driving activity, 
and the collection and evaluation of new data on the benefits and costs 
of the 11-hour driving limit and the 34-hour restart provisions.
    By re-adopting the 11-hour limit and the 34-hour restart, the 
Agency intends to allow motor carriers and drivers to combine work-rest 
schedules that follow the optimal 24-hour circadian cycle (10 hours 
off-duty and 14 hours on-duty) while maintaining highway safety with 
operational flexibility. This action serves to stabilize workers' hours 
and establish certainty for enforcement personnel.
    The overwhelming majority of roadside enforcement actions are 
conducted by State and local enforcement personnel who have been 
trained and are certified to conduct roadside inspections in accordance 
with the North American Standard inspection procedures. The number of 
officers conducting these inspections is approximately 10,000. Any 
change in the hours of service regulations would require a massive 
retraining effort of our state and local partners, which would result 
in an even longer disruption in the ability to enforce the new 
regulations.
    In addition to the training requirements, each State would have to 
adopt the new regulations into their respective State laws before their 
personnel could enforce the regulations. In 23 states, this occurs via 
automatic adoption but the remaining 27 states adopt the regulations 
through varying processes, some of which require 2 years before 
complete adoption occurs. By adopting these interim rules, the Agency 
seeks to avoid significant and costly disruption of existing industry 
compliance and State enforcement practices while ensuring that the 
actions and underlying safety analysis that underpin our policies are 
available for comment from all interested parties before issuing a 
final rule. This will ensure that an uninterrupted safety regime 
remains in place with State enforcement laws, policies, and personnel.
    The two provisions we reinstated on an interim basis are part of a 
broader, critical set of five HOS provisions included in this IFR. The 
three other critical provisions of the 2005 rule are the following: (1) 
the increase in the minimum off-duty period from 8 consecutive hours to 
10 consecutive hours to ensure drivers have an opportunity to obtain 
restorative sleep; (2) the establishment of a 14-hour non-extendable 
window from the start of the workday within which all work must be 
completed; and (3) the modification of the sleeper-berth rule to 
require an 8-hour sleeper berth period, thereby ensuring that drivers 
have an opportunity to obtain uninterrupted sleep. These provisions 
function with the 11-hour limit and the 34-hour restart provision to 
protect against degradation of a driver's cognitive or psychomotor 
skills due to fatigue.
    The IFR describes additional analysis conducted since 2005 that 
validates the modeling relied upon by the Agency to examine the 
relationship between the risk of a fatigue-related large truck crash 
and driving during the 11th hour. It also addresses cumulative fatigue 
as it relates to the driving and restart provisions. In its analysis of 
the 34-hour restart provisions being re-adopted in this IFR, the Agency 
further examined the research pertaining to work hours and sought 
additional research completed after the issuance of the 2005 rule. The 
Agency found no new research that addressed the relationship of work 
hours to commercial motor vehicle safety.
    However, safety data collected and analyzed since the 2003 and 2005 
HOS rules became effective address the impact of the 11-hour driving 
limit and the 34-hour restart provision and validate the Agency's 
belief that safety has been maintained under these provisions. The 
Agency has collected new operational data that indicate that its 
conclusions with regard to the cost-benefit analysis of the 11-hour 
driving limit and the 34-hour restart provision remain accurate. These 
data also suggest that reverting to the pre-2003 rule's 10-hour driving 
limit and eliminating the 34-hour restart provision would be 
significantly disruptive to drivers, carriers, and to the States where 
most of the enforcement of HOS violations occurs. It would also be 
disruptive to the safe and efficient movement of freight and might 
delay the delivery of essential goods and services to the American 
people.

Conclusion
    The Department of Transportation is committed to putting into place 
an hours-of-service regime that improves highway safety by ensuring 
that drivers have adequate opportunities for rest at the end of each 
work day and during the work week. The Agency has considered the 
scientific evidence concerning driver fatigue and real-world 
operational data on how motor carriers and drivers are working under 
the 2005 rule.
    The rule's opponents have argued consistently in favor of reducing 
the allowable driving time from 11 hours to 10 hours and eliminating 
the 34-hour restart. However, the information available at the time we 
published our 2005 rule and the subsequent IFR did not support that 
position.
    We will examine comments to our recently published IFR and will 
pursue any evidence that suggests that the 11-hour allowable driving 
time and 34-hour restart is resulting in any increase of CMV 
fatalities. Our responsibility to the traveling public demands that we 
promote safety.
    Thank you for the opportunity to appear before you today. I am 
committed to working with this Committee to ensure a safe and efficient 
transportation system for our citizens.

    Senator Lautenberg. Thank you.
    Ms. Claybrook, we invite you to give your testimony.

            STATEMENT OF JOAN CLAYBROOK, PRESIDENT,

  PUBLIC CITIZEN; ON BEHALF OF ADVOCATES FOR HIGHWAY AND AUTO 
                             SAFETY

    Ms. Claybrook. Thank you very much, Mr. Chairman. I 
appreciate the opportunity to be here.
    The clear Congressional command, and now two court rulings, 
tell us that the Department of Transportation has failed to do 
its job of making us safe on the Nation's highways by setting 
effective standards for truck driver working hours. Truck 
driving is a difficult, dangerous, and deadly profession. These 
vehicles are very labor intensive to operate. Driving one of 
these trucks--is not like driving a car; it's a very physically 
draining job. Most drivers are not paid by the hour, as you 
have heard, but by the mile, and this encourages them to drive 
as fast and as far as they can, and not to keep good records.
    Under the Bush rules, trucking companies would be empowered 
to force their drivers to work, not 8 hours, not 9 hours, not 
10 hours, but 11 hours in a demanding job that most of us 
couldn't do and have never done, and to do that for 7 days in a 
row, all while taking a mere 34 hours off for a so-called 
``weekend.''
    Every year, 5,000 people are killed in crashes with large 
trucks. It's equivalent to a major airline crash every single 
week. And if that were happening in this country, I think the 
Congress would be, on the dime, working on this every single 
day to try and reduce the numbers. Over 110,000 are seriously 
injured and some of the victims of truck crashes involving 
driver fatigue are here in this room today. I'd like to at 
least acknowledge who they are, hold up the pictures of their 
loved ones, including Ron Wood, who lost his sister, his 
mother, and three nephews under the age of 5 who were killed on 
a trip coming home from a toy store. An additional five others 
were killed in that same crash that took ten lives when the 
truck driver fell asleep at the wheel in Dallas. The human cost 
of truck crashes is incalculable.
    Truck driving is also one of the most dangerous occupations 
in the United States. There's tremendous turnover in this 
industry, which means that these drivers are often not 
adequately trained, and, because of the excessively long hours, 
grueling schedules, difficult working conditions, and unsafe 
government rules, truck driving is often referred to as a 
sweatshop on wheels. And it is getting more dangerous every 
year. According to the Department of Transportation, fatalities 
for occupants of trucks have been going up, from 726 in 2003 to 
805 in 2006.
    The public urgently needs Congress to act, so that the 
Federal Motor Carrier Safety Administration will do its job of 
protecting the public. This agency was created in 1999 with 
safety as its highest priority, written into the statute. The 
agency, however, has contributed to the problem by ignoring 
Congressional mandates, missing every single safety goal 
established by Congress in the last 7 years, issuing rules that 
actually roll back safety and then are overturned by the 
courts, and promoting industry productivity at the expense of 
safety, despite its statutory mission.
    It took Congress stepping in to stop them from opening up 
the border to trucks from Mexico because of the clear and 
obvious safety problems that still exist, even though it's been 
partially opened now with a pilot project.
    The U.S. Court of Appeals has twice overturned the hours-
of-service rule, but the agency has just reissued the same 
exact problematic rule. Ben Franklin said that the definition 
of ``insanity'' is doing the same thing over and over, and 
expecting different results. Well, uh, this is insanity.
    The courts have twice told FMCSA that the 11-hour driving 
day and the inadequate weekend of 34 hours to restart the work 
week are inadequate. They have no new or creditable data or 
information to support this rule. The agency uses information 
that it's already admitted is unreliable. Claims in the interim 
final rule say that we will see a reduction in fatalities 
caused by driver fatigue when we compare the first 9 months of 
2003 to the first 9 months of 2004, but this information is 
based on police accident reports, which the agency explained at 
length in the 2000 NPRM are not reliable, because of extensive 
problems with collecting accurate, verifiable data about 
whether or not a crash is fatigue-related.
    And in 2005, the agency again repudiated this data and 
described it as mostly preliminary, self-reported and without 
statistical controls drawn from small sample sizes. All of 
which, once again, leads to inconsistent findings.
    And, meanwhile, the Insurance Institute for Highway Safety 
has reported, in an October 2006 survey, that truck driver 
fatigue is not decreasing, that one of every five truckers 
reports falling asleep behind the wheel.
    Drastic action is needed in this case. Not only is the 
agency ignoring Congressional mandates, but it is also flouting 
the courts, ignoring clear deficiencies in the rule. 
Accordingly, Public Citizen today, with some other highway 
safety groups, has filed an order with the U.S. Court of 
Appeals to vacate the interim final rule, because it is 
inadequate and it merely reiterates the rule that has been 
twice overruled by the Court of Appeals. We're asking them to 
vacate this and to direct the agency to forthwith issue a 
revised interim final rule or guidance to bring the maximum 
consecutive driving time back down to 10 hours with a work week 
of 60 or 70 hours. Today it can be as much as 88 hours, without 
the inadequate 34-hour restart.
    We also recommend that the agency rescind this interim 
final rule and comply with the court decision.
    Senator Lautenberg. You're running over time.
    Ms. Claybrook. I'm sorry? Oh, I thought I had 42 seconds 
left. Oh, no, I don't. I'm 42 seconds over. Sorry. I apologize, 
Mr. Chairman.
    Well, I think that you get the gist of our concerns about 
this rule. Thank you very much.
    [The prepared statement of Ms. Claybrook follows:]

   Prepared Statement of Joan Claybrook, President, Public Citizen; 
           on Behalf of Advocates for Highway and Auto Safety

    Good morning, and thank you Chairman Lautenberg, Ranking Member 
Smith, and members of the Subcommittee on Surface Transportation and 
Merchant Marine Infrastructure, Safety, and Security for the invitation 
to testify before you today on behalf of Public Citizen and Advocates 
for Highway and Auto Safety on truck driver hours of service. I also 
very much appreciate the long-term commitment to safety that members of 
the Subcommittee and the full Committee have shown over the years on a 
variety of safety issues. This committee has a long history of 
bipartisan legislation to advance motor carrier safety and to stop 
special interest efforts to degrade and rollback bus and truck safety 
rules. Your priority on motor carrier safety was exemplified by the May 
1, 2007, subcommittee hearing on Electronic On-Board Recorders and 
truck driver fatigue reduction, issues that are directly related to the 
hours-of-service (HOS) regulation that is the subject of today's 
hearing.
    The history of the HOS rule is a textbook example of how the three 
branches of government interact to shape policy. But, as I will point 
out, this interaction does not always result in the best or safest 
policy. More than that, it is a classic case of the many ways that very 
technical policies--hours, restarts, sleeper berths, Electronic On-
Board Recorders--are, ultimately, about people, whose lives continue to 
be at risk every day that we spend waiting for the Bush Administration 
to do its job of protecting the public.

I. Inadequate Hours-of-Service Standards Put the Public at Risk
    Before I launch into the technical details of the laws Congress 
passed and the rules the Bush Administration has so inadequately 
issued, I want to remind you of a few basic facts.
    Truck driving is difficult, dangerous and deadly. These vehicles 
are very labor-intensive to operate. Driving ones of these trucks is 
not like driving a car; it is a physically draining job. Because truck 
driving is exempt from the Fair Labor Standards Act (FLSA) most drivers 
are not paid by the hour but by the mile, and thus get no overtime pay 
after 40 hours of driving a week. The incentive is to drive as far and 
as fast as you can. The trucking companies have enormous power to 
pressure drivers to work at this very intense job for very long periods 
of time, and the Bush hours of service rules would have increased that 
pressure. Under the Bush rules, trucking companies would be empowered 
to force their drivers to drive not 8 hours, not 9 hours, not 10 hours, 
but eleven hours at a demanding job. Drivers could also be required to 
work a total of 14 hours a day--three additional hours loading, 
unloading and preparing to drive, for 7 days in a row.
    I challenge any of you to work under those conditions and not come 
out at the end of it exhausted.
    When these tired truckers fall asleep at the wheel, they are not at 
just any wheel: they're in incredibly big trucks that are suddenly like 
missiles on the road, and everyone in their path is at risk. These 
risks are not hypothetical: they are very real. Roughly 5,000 people 
die every year in collisions with big trucks, while another 100,000 are 
injured. For drivers it is one of the most dangerous occupations in 
America, killing over 800 drivers a year.
    Mike Martin knows these risks all too well. Late on a cloudy 
afternoon in September of 2004, an 18-wheeler crossed a state highway 
median near Dallas, Texas and struck two oncoming vehicles. The crash 
killed a total of 10 people, including Mike Martin's entire family: his 
mother in-law, wife and three children--all of whom were under the age 
of 5--all perished in the crash, on the way home from a toy store. In 
one careless instant his life was changed forever. All evidence and 
witness accounts indicate that the brakes of the 18-wheeler were never 
applied, even as the trailer careened across a bumpy median into 
oncoming traffic. When investigators arrived on scene, the federally 
mandated logbook in which the driver was required to document his on-
duty and driving hours was inexplicably missing. Evidence later 
compiled during the investigation indicates that in the 2-weeks prior 
to the life-ruining crash, the driver illegally falsified his records 
at least four times to allow him more time on the road.\1\
---------------------------------------------------------------------------
    \1\ Greg Jones & Doug Swanson, 10 Lives Paid for Trucker's 
Mistakes, Dallas Morning News, Feb. 28, 2006.
---------------------------------------------------------------------------
    At the time of this terrible crash the 2003 hours-of-service rule 
allowed truck drivers to legally log a staggering 98 on-duty hours in 
just an eight-day period.\2\ That averages to 12.25 hours of on-duty 
time every day, for 8 days straight. During these floating work-weeks, 
truckers were allowed to spend an astonishingly dangerous 11 hours 
daily just driving, independent of other duties. On top of that, 
truckers could log an additional three non-driving but on-duty hours 
each day, so long as the exhausting 14-hour day was followed by a ten-
hour rest period.\3\ This limited rest period was supposed to allow 
time for truckers to eat, spend personal time alone or with family, 
and, of course, sleep--even though the rules allowed the driver to be 
interrupted during the rest period. After a driver reached his maximum 
allowable on-duty and driving hours for a week, he need only take a 34-
hour break--not even a full day and a half--before starting the cycle 
all over again.\4\ And even with this rigorous on-duty schedule 
allowing for more than double the traditional 40-hour work-week, 
drivers still operated under intense time restraints, as evidenced by 
the shocking patterns of willingness to falsify logbook entries to 
allow for more on-duty time.
---------------------------------------------------------------------------
    \2\ See 68 Fed. Reg. 22456 (April, 28 2003).
    \3\ Id.
    \4\ Id.
---------------------------------------------------------------------------
    More on-duty time can mean more freight deliveries by truck, which 
proponents herald as improving the economy. But as the wreckage of the 
September 2004 accident near Dallas demonstrates, it does so at a huge 
price. The ability to make a delivery on time or schedule in an 
additional delivery during an already packed week should never be 
placed before the safety of individuals on U.S. highways, no matter 
what the potential productivity gains of the trucking industry may be. 
Hours-of-service rules must promote safety, not industry profits. 
Financial gain in the trucking industry will not prevent countless 
highway injuries, whereas adequate safety measures can. Increased 
deliveries cannot adequately remedy even one family who has lost a 
loved one in a fatigued driving crash, whereas adequate safety measures 
can act to prevent the crash from ever occurring.
    Nearly all stakeholders believed the HOS rule that had governed 
driver hours from 1962 until 2003 needed to be revised. That rule,\5\ 
which limited truck drivers to 10 consecutive hours of driving after 8 
hours off-duty and capped weekly hours at a maximum of 60 or 70 hours, 
depending on the work schedule of the motor carrier, promoted driver 
fatigue and needed to be made safer. Unfortunately, the Federal Motor 
Carrier Safety Administration's (FMCSA) twin 2003 and 2005 final rules, 
which contained the provisions described above, chose to improperly 
emphasize economic efficiency over safety by permitting truck drivers 
to both drive and work even more hours than the previous rule had 
allowed. Although Congress in 1995 by statute required the U.S. 
Department of Transportation (DOT) to reform the rules to make them 
safer, DOT and FMCSA had their own agenda.
---------------------------------------------------------------------------
    \5\ 27 Fed. Reg. 3553 (1962).
---------------------------------------------------------------------------
    We are here today in part because the U.S. Court of Appeals came to 
the rescue and, in each instance, struck down the longer maximum-hours 
provisions of the 2003 and 2005 FMCSA HOS rules. Just last July 24, 
2007, the court held that FMCSA had not justified allowing 11 
consecutive hours of driving, instead of 10 hours, and had not 
adequately explained the basis for allowing drivers to replenish their 
weekly driving and work hours after only a short, 34-hour off-duty 
layover.\6\ The court gave the agency until December 27, 2007, just 
over a week from today, to change the HOS rule in compliance with the 
court's decision and to notify drivers and enforcement officers as to 
how to proceed until a new HOS rule is issued.\7\ Last week on December 
10, 2007, FMCSA in response to the Court issued a new interim final 
rule which once again mimics the 2003 and 2005 rules the court struck 
down. We are here today to discuss the new interim final rule, which is 
FMCSA's inadequate response to its Congressionally-mandated duties and 
to the court decisions. We are here because we cannot allow history to 
once again repeat itself. There are too many lives at stake.
---------------------------------------------------------------------------
    \6\ Owner-Operator Indep. Drivers' Ass'n v. Fed. Motor Carrier 
Safety Admin., 494 F.3d 188 (D.C. Cir. 2007).
    \7\ Owner-Operator Indep. Drivers' Ass'n v. Fed. Motor Carrier 
Safety Admin., Docket No. 06-1078 (D.C. Cir. Sept. 28, 2007) (order 
granting 90-day stay of issuance of mandate).
---------------------------------------------------------------------------
II. The History of Hours-of-Service Regulation is One of Congressional 
        Concern and Agency Failure
    The serious consequences of driver fatigue and large truck crashes 
led Congress to require limits on driver hours in 1935 and to demand 
improvements in truck safety and the HOS rule in 1995. Unfortunately 
for everyone, the agency charged with providing those needed 
improvements has failed every step of the way to deliver.

A. The First Hours-of-Service Standards Failed To Protect the Public 
        Sufficiently
    Limits on truck driver hours were first adopted in the Motor 
Carrier Act of 1935 \8\ and placed under the aegis of the Interstate 
Commerce Commission. Soon after, Congress exempted truckers who could 
be subject to the HOS rule from the maximum hours protection of the 
Fair Labor Standards Act of 1938.\9\ Coupled with the fact that most 
truckers are paid by the mile of travel, this economic reality places a 
heavy premium on driving time and the need to maximize the use of 
driving hours for both the motor carrier and the driver.
---------------------------------------------------------------------------
    \8\ Pub. L. No. 74-225 (1935).
    \9\ Codified at 29 U.S.C.  213(b)(1).
---------------------------------------------------------------------------
    In 1962, the HOS rule was revised to allow more driving hours per 
day. Previously, while truck drivers were allowed to drive for 10 
consecutive hours and then take 8 consecutive hours off-duty, they were 
limited to a maximum of 10 hours of driving in each 24-hour period. 
While drivers could perform non-driving duties after completing 10 
hours of driving, they could not drive again until 14 non-driving 
hours, including the 8-hour off-duty period, had elapsed. The 1962 
amendment changed this schedule dramatically by decoupling the 10 hours 
of driving and the 8 hours off-duty schedule from the 24-hour circadian 
clock.\10\ Motor carriers could permit drivers to keep close to a 24-
hour circadian schedule by using the 10 hours of driving as part of a 
15-hour work day (that could be extended even further by taking off-
duty breaks that tolled the on-duty work time), followed by the 
mandatory 8 hours off-duty, for a 23-hour schedule. However, the rule 
change allowed motor carriers and drivers who wanted to maximize 
driving time, to alternate 10 hours of driving with 8 hours off-duty 
continuously, in 18-hour blocks, day after day, until they reached 
their maximum weekly on-duty limit of 60 or 70 hours. This change 
offered economic benefits in the form of greater efficiency for motor 
carriers and higher income for drivers and thus became a common and 
regular schedule for many long-haul drivers.
---------------------------------------------------------------------------
    \10\ 27 Fed. Reg. 3553.
---------------------------------------------------------------------------
    This 18-hour schedule, however, was widely acknowledged as unsafe 
and as promoting driver fatigue. For example, let's say a driver on a 
7-day weekly schedule, with a limit of 60 on-duty hours, began driving 
at 6 a.m. on a Monday morning. By maximizing the use of the driving 
hours this driver could ``burn'' through the 60 driving and work hours 
by 10 a.m. the following Friday morning, just 100 hours after starting. 
Driving such a schedule, which many long-haul drivers needed to do to 
satisfy motor carrier delivery schedules and also to maximize their 
mileage and their earnings, also resulted in the driver starting each 
subsequent 10-hour driving shift at an earlier time on each successive 
day. This rearward rotating schedule compounded fatigue by defying the 
driver's internal biological clock (circadian rhythm). Because working 
such schedules builds up accumulated fatigue or sleep ``debt,'' drivers 
were limited to a total maximum of either 60- or 70-hour work weeks, 
i.e., on-duty hours, depending on whether they worked for a motor 
carrier that operated on a 7-day or 8-day schedule. After using the 
maximum on-duty hours, drivers were then required to be off-duty for 
the remainder of the 7- or 8-day period, a ``weekend'' that for drivers 
who maximized the use of their on-duty hours could be as long as 68 
hours for drivers on a 7-day work schedule or 74 hours for drivers on 
an 8-day schedule. Going back to the example, once the driver who 
started on Monday morning finished using the 60 hours on Friday 
morning, the driver would be off-duty from 10 a.m. Friday morning until 
6 a.m. the following Monday morning, a total of 68 straight hours off-
duty to ensure rest and recovery from the intense, fatigue laden 4-day 
driving and on-duty schedule. This rule governed HOS for four decades, 
from 1962 until 2003.

B. Congress Demanded Improvements--Which the 2003 HOS Rule Failed To 
        Deliver
    Jurisdiction over the HOS rule was transferred to U.S. DOT when it 
was created in 1966. DOT officials acknowledged that driver fatigue was 
a recognized factor in truck crashes. At a 1988 symposium, DOT 
officials emphasized the contribution of driver fatigue to truck 
crashes and suggested the problem was largely attributable to 
violations of the HOS limits. In 1990, the National Transportation 
Safety Board (NTSB), an independent safety investigating agency, 
recommended that DOT require the use of automated, tamper-proof 
recording devices, called Electronic On-Board Recorders (EOBRs), in 
order to effectively enforce the HOS rule and reduce driver fatigue. In 
the same year, DOT officials conceded that there is a cumulative 
fatigue effect after several days of driving.\11\ In 1995, another DOT 
sponsored expert meeting, the Truck and Bus Safety Summit, which 
included over 200 drivers, motor carrier representatives, government 
officials, and safety advocates, concluded that driver fatigue was the 
preeminent motor carrier safety problem.\12\
---------------------------------------------------------------------------
    \11\ HOS Study: Report to Congress, at 6, Federal Highway 
Administration (1990) (FHWA HOS Study).
    \12\ 65 Fed. Reg. 25540, 25541 (May 2, 2000).
---------------------------------------------------------------------------
    Studies have attempted to quantify the incidence of fatigue in 
truck crashes. The NTSB research suggested that 30-40 percent of heavy 
truck crashes may involve fatigue as a factor.\13\ Subsequent estimates 
by FMCSA during the HOS rulemaking have ranged from 15 percent \14\ as 
part of the 2000 proposed rule, to a markedly lower estimate of just 
over 8 percent \15\ that was whittled down to help the agency justify 
its initial 2003 final rule increasing the maximum number of allowed 
driving hours. These lower estimates are highly questionable because 
even DOT's agencies have admitted that their fatality and crash 
databases significantly understate the problem of driver fatigue.\16\
---------------------------------------------------------------------------
    \13\ Factors That Affect Fatigue in Heavy Truck Accidents, NTSB 
(1995).
    \14\ 65 Fed. Reg. at 25546.
    \15\ FMCSA Regulatory Impact Analysis, 8-14 to 8-15 (2002).
    \16\ 65 Fed. Reg. at 25545; FHWA HOS Study at 5.
---------------------------------------------------------------------------
    Against this backdrop, Congress expressed its concern about the 
increasing number of truck crashes and sought to improve safety and 
reduce driver fatigue by revising the exhausting driving limits of the 
HOS rule. Congress required DOT to ``issue an advanced notice of 
proposed rulemaking dealing with a variety of fatigue-related issues . 
. . (including 8 hours of continuous sleep after 10 hours of driving, 
loading and unloading operations, automated and tamper-proof recording 
devices [EOBRs], rest and recovery cycles, fatigue and stress in longer 
combination vehicles, fitness for duty, and other appropriate 
regulatory and enforcement countermeasures for reducing fatigue-related 
incidents and increasing driver alertness).'' \17\ But DOT's motor 
carrier agency at the time, FHWA, took no action even as the annual 
number of crashes continued to rise through the 1990s.
---------------------------------------------------------------------------
    \17\ Interstate Commerce Commission Termination Act (ICCTA) of 
1995,  408, Pub. L. 104-88 (Dec. 29, 1995) (codified at 49 U.S.C.  
31136 note).
---------------------------------------------------------------------------
    Frustrated by agency inaction, Congress responded by passing the 
Motor Carrier Safety Improvement Act of 1999,\18\ which created the 
FMCSA as an agency for the first time reporting directly to the 
Secretary of Transportation and dedicated to motor carrier safety 
specifically charged with the mission to make safety its ``highest 
priority.'' \19\
---------------------------------------------------------------------------
    \18\ Pub. L. No. 106-159 (Dec. 9, 1999).
    \19\ Id., Title I,  101(a), codified at 49 U.S.C.  113(b).
---------------------------------------------------------------------------
    In its first year of operation, FMCSA released a notice of proposed 
rulemaking (NPRM) in 2000 \20\ that called for a 24-hour mandatory 
work/rest cycle that would have allowed 12 hours of driving or other 
work daily and 12 hours off-duty (10 hours to be taken in a single 
block). Although the proposed 12-hour driving limit was unsafe, the 
NPRM had potentially beneficial features. Since it imposed a 24-hour 
daily schedule, it offered a circadian rhythm compatible driving 
routine that could have been a major step forward in reducing fatigue 
and improving working conditions of drivers. To provide recovery time 
from the weekly accumulation of fatigue, the NPRM proposed a rest and 
recovery ``weekend'' of at least two consecutive nights and the 
intervening day off-duty each week. The NPRM also required the 
installation of EOBRs to replace driver logbooks, with its accompanying 
practice of keeping fraudulent logbooks (known as ``comic books''), to 
improve compliance and enforcement of the HOS rule. Finally, however, 
the NPRM included an unworkable plan to divide the industry into 5 
categories based on distinct type of motor carrier operations.
---------------------------------------------------------------------------
    \20\ 65 Fed. Reg. 25540.
---------------------------------------------------------------------------
    The industry strongly objected to the NPRM, and Congress, not for 
the last time, intervened to prohibit FMCSA from moving forward to 
issue a rule based on the NPRM until 2001,\21\ throwing out the 
progressive and safer HOS initiatives contained in the proposal along 
with the bad.
---------------------------------------------------------------------------
    \21\ Department of Transportation and Related Agencies 
Appropriations Act of 2001, 335, Pub. L. 106-346 (Oct. 23, 2000).
---------------------------------------------------------------------------
    FMCSA issued a distinctly different final rule in 2003.\22\ First, 
the 2003 rule extended the consecutive tour of driving from 10 to 11 
hours. Demanding that a truck driver put in up to 11 consecutive hours 
of driving--long enough to drive from Washington, D.C. to Jacksonville, 
Florida--is just too much. It is unreasonable, it is unsafe, and it 
must be reduced. FMCSA's own findings in the 2000 proposed rule, drawn 
from a significant body of scientific research, show that once a truck 
driver moves past the eighth hour of consecutive driving, the relative 
risk of a crash begins to dramatically increase at a geometric or 
logarithmic rate until, at the end of the 11th hour of driving, the 
risk is several times higher than at the end of the eighth hour. Eleven 
consecutive hours of driving is far too much to perform safely and 
reliably on a consistent basis, and no scientific research supports it.
---------------------------------------------------------------------------
    \22\ 68 Fed. Reg. 22456 (Apr. 28, 2003).
---------------------------------------------------------------------------
    And those long hours of driving repeated day after day takes a toll 
on truck driver health. The Transportation Research Board's study for 
FMCSA's nearly identical 2005 HOS rule clearly demonstrates the 
extraordinary, dangerous health effects on truck drivers of very long 
working and driving hours.\23\
---------------------------------------------------------------------------
    \23\ Commercial Truck and Bus Safety, Synthesis 9, Literature 
Review on Health and Fatigue Issues Associated with Commercial Motor 
Vehicle Driver Hours of Work, A Synthesis of Safety Practice, 
Transportation Research Board, National Academies of Science (Aug. 9, 
2005).
---------------------------------------------------------------------------
    Second, FMCSA replaced the longer ``weekend'' rest time proposed in 
the NPRM with an option to take just a minimal 34-hour off-duty 
interval--the required 10 hours off-duty time coupled with only an 
additional 24-hour rest period, which would reset drivers' weekly tally 
of hours. Not only does the 34-hour ``restart'' allow drivers to reset 
their 60- and 70-hour weekly on-duty time after far too short a layover 
to get adequate rest, but it also dramatically increases, by between 25 
and 40 percent, the total number of driving and working hours a driver 
can cram into the work week compared to the previous HOS rule.
    In the example mentioned earlier, under the old HOS rule the long-
haul driver who maximized driving hours started work at 6 a.m. Monday 
morning and finished at 10 a.m. Friday morning and was then off-duty 
for 68 hours. Under the 2003 rule, however, the same driver would 
complete using the 60 hours on-duty at 8 p.m. Friday night and, after 
only 34 hours off-duty, could start driving again at 6 a.m. Sunday 
morning and be permitted to drive an additional 14 hours before Monday 
morning at 6 a.m. A more likely scenario would have the driver 
``restart'' the weekly time clock after completing 5 full 11-hour 
driving shifts, for a total of 55 hours, at 5 a.m. Friday morning. 
Then, by taking the minimum 34-hours off-duty, that driver could start 
driving again at 3 p.m. on Saturday afternoon, and drive an additional 
two full shifts, 22 hours, by 6 a.m. on Monday morning, the driver's 
original start time. Even taking into account that the driver stopped 
after 55 hours for the short 34-hour restart, the trucker ends up 
driving an extra 17 hours in the same weekly time span compared to the 
hours of driving allowed under the 1962 HOS rule. For drivers on an 8-
day schedule, up to 88 hours of driving and an incredible 98 hours of 
on-duty work time are permissible as a result of the short ``restart'' 
provision.
    While the calculations to figure this out may be complex, the 
result of the 34-hour restart is simple. No matter when it is taken 
during the workweek, the restart provision allows drivers to take 
significantly less time off-duty for rest than was required under the 
1962 rule, and it converts that previously required off-duty rest time 
into driving time. While this may make motor carriers more 
``efficient'' in scheduling just-in-time deliveries, it encourages 
longer hours and promotes more, not less, driver fatigue. Not only does 
this incredible schedule produce for a truck driver accumulated fatigue 
and exhaustion that studies have shown reduce alertness and increase 
crash risk, but the minimal 34-hour ``restart'' does not provide a 
sufficient opportunity for a driver to eliminate that fatigue and 
restore safe performance behind the wheel. Further, no research 
supports the safety of a 34-hour minimum layover before restarting a 
driver's working and driving clock for another tour of duty. Although 
some drivers may want to take advantage of these additional hours to 
earn a better living, the restart exacts an unacceptable cost from 
drivers in terms of stress and the toll on their health, while 
inflicting societal costs in additional highway deaths and 
injuries.\24\
---------------------------------------------------------------------------
    \24\ Moreover, not only did FMCSA fail to mention in the 2003 rule 
that longer driving and work hours could be the result, but the agency 
entirely failed to consider the impact that these longer driving and 
work hours would have on the health of drivers who took advantage of 
them.
---------------------------------------------------------------------------
    Finally, FMCSA in the 2003 final rule did an about-face on EOBRs 
and dropped this technology requirement from the rule altogether, 
claiming further study was needed, even though EOBRs and global 
positioning systems (GPS) were already in common use in the U.S. and 
worldwide, and even though all European Union nations and many 
countries throughout the rest of the world require commercial vehicles 
transporting freight to be equipped with digital, tamper-proof 
tachographs, one form of EOBR technology.

C. The Court Rejected the 2003 Rule--but FMCSA Just Reissued it in the 
        2005 Rule With Minor Changes
    In response, Public Citizen's litigation group, representing Public 
Citizen, Parents Against Tired Truckers (P.A.T.T.) and Citizens for 
Reliable and Safe Highways (CRASH), sued FMCSA because the agency rule, 
by increasing rather than decreasing driving hours, posed a great 
threat to public safety and because the agency failed to meet its 
statutory obligations on driver health and to ``deal with'' EOBRs. 
Advocates for Highway and Auto Safety also filed an amicus, or friend 
of the court, brief on the issue of the detrimental impact that shift-
work and prolonged driving and work schedules have on truck driver 
health. On July 16, 2004, the court of appeals struck down the 2003 
rule in its entirety and issued a unanimous, scathing opinion that 
pointed out the numerous flaws in the agency's positions and 
reasoning.\25\
---------------------------------------------------------------------------
    \25\ Public Citizen v. FMCSA, 374 F.3d 1209 (D.C. Cir. 2004).
---------------------------------------------------------------------------
    The court's decision held that the 2003 rule was arbitrary and 
capricious because FMCSA had failed to consider the impact of the 
rule's longer driving and working hours on the health of truck 
drivers--a consideration required by Federal law. However, the court 
pointed out ``the troubling nature of . . . other facets of the 
rulemaking,'' \26\ including concerns about the dubious reasons for the 
increase from 10 to 11 consecutive hours of driving, failure to 
acknowledge or justify the 34-hour restart, and an apparent ``willful'' 
lack of knowledge regarding EOBRs technology. The court's opinion 
clearly signaled that the underlying basis for the 2003 rule was of 
questionable legality.\27\ The court vacated the rule in its entirety, 
requiring FMCSA to go back to the drawing board.
---------------------------------------------------------------------------
    \26\ Id. at 1217.
    \27\ Id. at 1217-23.
---------------------------------------------------------------------------
    Rather than comply, FMCSA sought a reprieve from the court's order, 
requesting Congress to allow the agency to retain the invalidated 2003 
rule while it drafted a new one. Congress granted FMCSA a one-year 
reprieve to allow the agency to produce a revised rule.\28\ While it 
was unwise of Congress to protect the agency in this manner, Congress 
wisely declined requests from DOT to codify the 2003 rule into law.
---------------------------------------------------------------------------
    \28\ Surface Transportation Extension Act of 2004, Part V,  7(f), 
Pub. L. 108-310 (Sept. 30, 2004).
---------------------------------------------------------------------------
    But FMCSA's response in 2004 was not to reexamine its underlying 
premises or rethink the rule but simply to forge ahead by reintroducing 
the same 2003 rule the court had just struck down as its new proposed 
rule.\29\ About 1 year later, FMCSA issued the 2005 final rule that was 
nearly identical to the 2003 rule.\30\ Despite the severe criticism 
from the court, the agency had changed little of substance, seeking 
only to improve the packaging and window-dressing accompanying the rule 
in an attempt to justify what the court of appeals had already 
rejected.
---------------------------------------------------------------------------
    \29\ 70 Fed. Reg. 3339 (Jan. 24, 2005).
    \30\ 70 Fed. Reg. 49978 (Aug. 25, 2005). The only change affecting 
long-haul drivers was a modification of the sleeper berth rule to 
require at least one rest period of 8 consecutive hours in the sleeper 
berth.
---------------------------------------------------------------------------
    Needless to say, given this action by FMCSA--issuance of another 
unsafe regulation that would continue to promote fatigue in drivers--
Public Citizen and the other safety groups, now joined by Advocates for 
Highway Safety and the International Brotherhood of Teamsters, again 
sued FMCSA in the D.C. Circuit Court of Appeals. That lawsuit resulted 
in the court of appeals' second unanimous decision against FMCSA and 
its 2005 edition of the HOS rule. Although three different judges heard 
the second case, the court once again held that the rule was legally 
deficient. While the court's decision this time around turned on the 
agency's failure to provide fair notice of its statistical analysis and 
to properly and fully explain its methodology in the model used to 
support the 2005 rule, the court nevertheless repeated the recitation 
of fundamental flaws that were cited in its first decision. It is 
evident that the Federal court was not taken in by FMCSA's attempts to 
make a silk purse from a sow's ear.

D. FMCSA Abandons Electronic On-Board Recorders (EOBRs) for Trucks
    The adoption and use of new and emerging technology was prevalent 
throughout the second half of the 20th century, and the shift to high-
tech solutions to problems is clearly a hallmark of this new, 21st 
century. Individuals, private industry, non-governmental organizations 
and even many government agencies have made the adoption and use of 
technology to improve operational efficiency as well as advance public 
health and safety. Nonetheless, FMCSA in both its 2003 and 2005 HOS 
rules did precisely the opposite. Not only did these rules increase the 
amount of driving and work time that motor carriers and drivers could 
avail themselves of, but the agency entirely abandoned the concept of 
EOBR technology to ensure compliance and reduce paperwork. The 
disregard for EOBRs exhibited by FMCSA in its 2003 rule was so blatant 
that the court of appeals could not ``fathom [ ] why the agency had not 
even taken the seemingly obvious step of testing EOBRs on the road,'' 
\31\ and referred to the agency's failure to evaluate the effectiveness 
of the technology as a willful ``lack of knowledge[.]'' \32\ This 
shabby treatment of EOBRs by FMCSA, however, was only the beginning.
---------------------------------------------------------------------------
    \31\ Public Citizen, 374 F.3d at 1222.
    \32\ Id.
---------------------------------------------------------------------------
    In January of this year, FMCSA proposed an EOBR rule that, at best, 
can only be described as ludicrous.\33\ In the face of widespread, 
chronic violations of hours of service, which even the agency admits 
presents a difficult enforcement problem, FMCSA has proposed a rule 
that would result in about 465 motor carriers installing EOBRs on their 
trucks each year. Mr. Chairman, there are approximately 725,000, nearly 
three-quarters of a million, registered motor carriers in the U.S. The 
agency's proposal would require less than one-tenth of 1 percent of 
commercial trucking and motorcoach companies to install technology that 
would reduce HOS violations, make the job of enforcement easier, and 
create a safer highway environment. This absurd proposal, if adopted, 
will result in making EOBRs on trucks for hours of service monitoring 
even harder to find than the proverbial needle in a haystack.
---------------------------------------------------------------------------
    \33\ 72 Fed. Reg. 2340 (Jan. 18, 2007).
---------------------------------------------------------------------------
    The reason such a small number of motor carriers would be required 
to use EOBRs is that the agency intends to wield this modern technology 
as a punishment, rather than as an important safety enforcement tool. 
Only those carriers who fail to get passing marks on two successive 
safety reviews would be required to install EOBRs, turning them into a 
technological ``Scarlet Letter.'' What's more, although these poor 
safety risk compromises would be required to install EOBRs, the 
technology itself would not required to be integrated into the vehicle 
and linked with engine functions through the vehicle electronic control 
module (ECM). Even for such poor safety risks, FMCSA would rely on 
stand-alone Global Positioning Systems (GPS) to record hours, allowing 
location-only tracking systems as EOBRs. In effect, FMCSA would allow 
drivers for these unsafe carriers to use cell-phones with GPS features 
as EOBRs, a prospect that will lead to fraud and abuse because handheld 
phones not only are rife with serious security problems but they can 
readily be passed from driver to driver.
    Other significant deficiencies plague this rule as well. FMCSA has 
proposed no performance criteria to ensure that the EOBRs that are used 
are tamper-proof. In addition, the agency proposes to set no 
certification criteria for the installation, calibration, or repair of 
EOBRs, leaving those performance standards entirely to EOBR vendors. 
Finally, FMCSA has proposed eliminating recordkeeping requirements for 
many supporting documents that enforcement authorities use to 
corroborate HOS compliance, either as entries in a written logbook or 
as data captured by an EOBR. Given that the agency would require only a 
miniscule fraction of motor carriers to install potentially weak EOBR 
systems that are not even integrated with the vehicle ECM, there is no 
excuse for permitting the elimination of crucially important records 
that law enforcement personnel rely on to document HOS violations. The 
agency proposal, Mr. Chairman, is nothing short of a total travesty 
that may have to be corrected by legislation.
    Mr. Chairman, FMCSA's track record and actions throughout the 
recent history of the HOS rulemakings speak volumes. One cannot ignore 
that FMCSA has acted with impunity, disregarding Congressional 
mandates, ignoring Court decisions, and now even the court's mandate, 
and the agency has turned a deaf ear to the public outcry over truck 
safety and a blind eye to the death and injury toll due to truck 
crashes. Even as the agency has been repeatedly shown to be derelict in 
its duty to make safety its highest priority, FMCSA has just recently 
tried to pull a statistical ``fast one'' on Congress and the public by 
watering down its crash data and manipulating statistics in the FY 2008 
budget presented to the Appropriations Committees of both the House and 
Senate earlier this year.\34\
---------------------------------------------------------------------------
    \34\ In its FY 2008 budget, FMCSA abandoned using the traditional, 
direct, valid exposure measure of the number of annual truck fatalities 
matched with the number of annual 100 Million Truck Miles Traveled 
(MTMT). Instead, the agency merged bus and motorcoach fatality figures 
with large truck fatalities and is now measuring all commercial motor 
vehicle crash fatalities against all motor vehicle miles traveled, 
including not just truck mileage, but also bus, motorcoach, passenger 
vehicle, and even motorcycle mileage. As a result, the large truck 
fatality rate, which formerly was over 2.3 deaths per 100 MTMT, has 
been manipulated to appear as if it is lower by more than an order of 
magnitude. Suddenly, the rate is now less than one death per 100 
Million Total Vehicle Miles Traveled, or 0.184 for commercial motor 
vehicle (truck, bus, motorcoach) fatalities per in 2005. This 
manipulation can easily mislead Congress and the public about the true 
state of large truck crash fatalities. Budget Estimates, Fiscal Year 
2008, FMCSA at 4A-14, Submitted for the Use of the Committees on 
Appropriations (U.S. DOT).
---------------------------------------------------------------------------
III. FMCSA's Interim Final Rule Fails To Meet the Agency's Mandate To 
        Make Safety the Highest Priority
     Mr. Chairman, last week, in response to the court of appeal's 
decision striking the two portions of the HOS rule that permit 11 
consecutive hours of driving and the 34-hour ``restart,'' a new chapter 
in the saga of the HOS rule was written. In a momentous breach of 
agency authority, the U.S. Department of Transportation (DOT) and the 
Office of Management and Budget (OMB) decided that the FMCSA would defy 
the court's decision and issue an Interim Final Rule (IFR) to reinstate 
the two increases in maximum driver hours of service that the court 
nullified last July. Not only is this decision an inappropriate and 
cynical maneuver to cling to a fatally flawed policy, but it is also 
entirely illegal and a willful violation of the rule of law. In its so-
called statement of the legal basis for reinstating the two provisions, 
FMCSA cites no statute, no case law, and no other precedent that gives 
the agency the legal right or justification to require adherence to 
regulations that were struck down by the second highest court in our 
land.

A. FMCSA Is Putting Industry Interests Above the Public Interest and 
        Defying the Courts
    Although FMCSA has tried in the Interim Final Rule to portray this 
action as a reasonable approach under difficult circumstances, Congress 
should be aware that this agency has gone radically off course. Instead 
of obeying its mission statement, written by Congress, to make safety 
its highest priority, it is now abundantly clear that FMCSA serves a 
master other than the people of the United States of America. The 
Interim Final Rule justifies its defiance of the law by insisting that 
provisions of the two rules nullified by the court of appeals provide 
an estimated $2 billion in benefits to the trucking industry, because 
they allow truck drivers to drive and work longer hours. When the 
agency claims that these rules provide the industry with greater 
``flexibility,'' it really means that they allow motor carriers to work 
drivers longer and harder. FMCSA deems this ``flexibility'' essential 
to continued productivity because the industry has trouble attracting 
new drivers, driver turnover is more than 100 percent annually, and 
working conditions are so difficult one expert has referred to modern 
trucking as ``sweatshops on wheels.'' \35\ As a result, and in order to 
accommodate the need to keep trucks moving, the agency decided in the 
two rejected rules and now, a third time, in the IFR to allow motor 
carriers to squeeze more driving hours and work time out of the same 
workforce.
---------------------------------------------------------------------------
    \35\ Belzer, M.H., Sweatshops On Wheels, Oxford University Press 
(2000).
---------------------------------------------------------------------------
    At the same time, however, these rules imperil highway safety every 
day they are in effect. In 2000, the FMCSA came to the conclusion that 
driver performance decreases and crashes increase in each hour of 
driving after the first eight (8) consecutive hours of driving. FMCSA's 
predecessor agency, the Federal Highway Administration (FHWA), came to 
the same conclusion during more than 40 years of stewardship over 
American trucking. These findings of fact were based on research and 
data analysis that have never been refuted. In addition, prior to 2003, 
both agencies had concluded that truckers who drive 60 or 70 hours over 
several days need an extended period of time off for rest and recovery. 
FMCSA concluded that drivers need at least a two-night ``weekend,'' two 
consecutive nights and the intervening day off, and FHWA provided even 
longer periods for rest at the end of the work-week. Again, these 
findings were based on data, evidence, and facts that have not been 
refuted.
    In the effort to overcome the prior objective determinations and 
findings of fact made by FHWA and FMCSA itself based on decades of 
research and study, the agency has, since 2003, sponsored new but 
inconclusive studies, attempted to reinterpret data, selectively cited 
sources, relied on abstracts instead of complete studies, and cherry-
picked evidence. In the Interim Final Rule the agency continues this 
approach, dusting off old studies that even the agency has rejected and 
relying on the self-serving information eagerly supplied by motor 
carriers. FMCSA has completely undermined its credibility in a 
misguided effort to give the false impression that longer driving and 
work hours do not degrade driving performance or highway safety.
    Mr. Chairman, the fact is that the research and data are clear that 
driving longer hours with less rest and insufficient sleep promotes 
fatigue. For this very reason, the court raised so many questions about 
different portions of the FMCSA rule in 2004 and reiterated these 
issues in the decision this past July. But one does not have to be an 
expert or data analyst to understand that truck drivers are tired after 
driving for ten straight hours and need more than a short ``restart'' 
to be rested and to perform safely. This is simple common sense and 
logic, which have been borne out by the research and data, and no 
amount of obfuscation and conveniently supplied ``information'' can 
alter these facts.
    In the Interim Final Rule, FMCSA makes exactly the same arguments 
it made to the court when the agency asked for a one-year stay of the 
court's order vacating the two provisions. The court, knowing that the 
agency could not complete a new rulemaking in less than a year, refused 
FMCSA's request and gave the agency a stay of only 90 days, until 
December 27, 2007. This 90-day stay was based on the agency's assertion 
to the court that it would need about that much time to allow motor 
carriers and drivers to change their schedules and to start the process 
of getting states to adopt a revised HOS rule without the two vacated 
provisions. While the court granted the agency the time it said it 
needed to carry out a transition that complied with the court's ruling, 
the agency instead wasted the 90-day period while developing its 
strategy of defiance. This is astounding because FMCSA would not have 
been barred from proceeding to issue a new proposed rule at the same 
time it was submitting to the lawful authority of the U.S. Court of 
Appeals. Mr. Chairman, FMCSA has become a rogue agency that thinks it 
is a law unto itself.

B. FMCSA Has No New or Credible Data To Support the HOS Rule
    In its latest attempt to salvage a dangerously unsafe rule, FMCSA 
has trotted out the same old evidence that has already been rejected by 
researchers, safety groups, and the court of appeals--misinformation 
that misses the point and proves nothing, and ``junk'' science that is 
biased and contains the subjective submissions of interested parties. 
While I cannot go through all the bad information that the agency has 
only recently cooked up or is rehashing, I will mention a sample of the 
agency's so-called ``evidence.''

1. There is no evidence that declining truck fatalities are 
        attributable to the weak hours-of-service rules.
    One of the most ludicrous claims about FMCSA's HOS regulation is 
that general crash figures are evidence that the 2005 HOS rule has 
lowered large truck crash rates, deaths, and injuries. FMCSA points to 
a decline in the number of truck-involved fatalities in 2006 from 2005, 
a lower truck crash fatality rate for 2005 compared to 1975, and a 
reduced number of truck crash injuries in 2005 and again in 2006.
    The argument that these declines are attributable to the weak 
hours-of-service rules is false and highly misleading. First, overall 
trends in national transportation crashes, deaths, and injuries are the 
result of numerous causes, not any single factor. No one involved in 
scientific research would even contemplate assigning changes in 
national death and injury figures to just one cause. Even the agency 
admitted in 2004 with respect to fatigue-related crashes that ``[i]t is 
impossible to definitively link a specific provision of the 2003 rule 
with the improved safety performance during 2004.'' \36\ Any claim that 
the change in truck fatalities from 2005 to 2006 proves anything about 
the safety of the HOS rule is wishful thinking, not sound science.
---------------------------------------------------------------------------
    \36\ 70 Fed. Reg. 50013.
---------------------------------------------------------------------------
    Second, FMCSA's claim that there was an improvement in 2006 is 
undermined by the fact that truck deaths declined every year from 1999 
through 2002 while the old HOS rule was in effect, and the number of 
deaths in 2002 was lower than the figure for 2006. In fact, the number 
of truck crash deaths increased in 2004, the first year under the 
initial revision of the HOS rule, compared to the number of deaths that 
occurred in 2003, the last year under the old HOS rule. According to 
FMCSA, these facts should prove that the previous HOS rule was safer 
than the rules adopted in 2003 and 2005. But this is not valid 
evidence. To claim that national changes in truck crash rates are due 
to near-term changes in the HOS regulation is utterly impossible and 
has no scientific support of any kind.
    In addition, FMCSA claims that the fatality rate for large truck 
crashes fell in 2005 from 2004. We do not yet have 2006 vehicle-miles-
traveled figures, but it needs to be pointed out, first, that the 
fatality rate actually increased from 2003 to 2004, the year the HOS 
rule went into effect--a fact that FMCSA has conveniently ignored--and, 
second, that the calculation of the annual fatality rate for truck 
crashes is a complicated process with a wide margin for error. Vehicle 
miles traveled, as a means of expressing fatality rates, is notoriously 
unreliable. This is stated in many publications, including by FMCSA 
itself: ``Exposure data on large truck travel are crude. Registration 
data are of little use, because the spread of annual miles traveled by 
different trucks is very large. The available data on vehicle miles of 
travel (VMT) are not especially accurate, and they make only gross 
distinctions among truck and road types.'' \37\ Similarly, another 
Analysis Brief published by the agency stated that ``[t]he most common 
measure of exposure is vehicle miles traveled. . . . Exposure data, 
however, can be difficult and expensive to collect--often much more so 
than the crash data with which they are used.'' \38\ Claiming that 
small changes in annual truck vehicle miles traveled are due solely to 
changes in HOS regulation are utterly absurd and without merit.
---------------------------------------------------------------------------
    \37\ Using LTCCS Data for Statistical Analyses of Crash Risk, Large 
Truck Crash Causation Study (LTCCS) Analysis Series: Office of 
Information Management, Federal Motor Carrier Safety Administration, 
Publication FMCSA-RI-05-037.
    \38\ Methodology of the Large Truck Crash Causation Study, Office 
of Information Management Publication FMCSA-RI-05-035, February 2005.
---------------------------------------------------------------------------
    2. The agency relies on data that it has previously repudiated as 
unreliable.
    Next, FMCSA is trying to revive arguments about the safety effects 
of the 2003 and 2005 HOS rules that the agency itself has explicitly 
repudiated as having no credibility. An example of this is FMCSA's 
reliance in the Interim Final Rule on a supposed modest reduction in 
the number of fatigue-related crashes that occurred in the first 9 
months of 2003 compared to the same time period in 2004, the first year 
of the 2003 HOS rule. This type of data is captured by the Fatality 
Analysis Reporting System (FARS) based on fatigue-coded crashes taken 
from Police Accident Reports (PARS). The attempt to invoke fatigue-
related truck crashes in the year of initial implementation of the 2003 
final rule or because of the 2005 final rule is clearly inappropriate 
and cannot be relied on by the agency because FMCSA itself has pointed 
out that fatigue-related crash reporting by police as entered in the 
FARS data system is unreliable. In the 2000 HOS notice of proposed 
rulemaking,\39\ the agency discussed at length the problems in 
collecting accurate, verifiable documentation as to whether a crash is 
fatigue-related. It pointed out that for a number of reasons it is 
often difficult for police officers at the scene to get direct evidence 
of fatigue after a crash and thus the actual number of fatigue-related 
crashes documented in FARS is underreported. FMCSA had to augment its 
estimate of fatigue-related crashes by the use of other methods to 
reach a much greater quantified fatigue contribution to fatal fatigue-
related crashes in its rulemaking proposal. The agency concluded that 
``in-depth studies of crashes have found that inattention and other 
mental lapses contribute up to 50 percent of all crashes. While fatigue 
may not be involved in all these crashes, it clearly contributes to 
some of them. We estimate that 15 percent of all truck involved fatal 
crashes are `fatigue-relevant', that is, fatigue is either a primary or 
secondary factor.'' \40\ Thus, FMCSA in 2000 already rejected reliance 
on invoking the very type of data that it now claims as evidence.
---------------------------------------------------------------------------
    \39\ See Preliminary Regulatory Evaluation and Regulatory 
Flexibility Act Analysis, p. 21, Hours-of-Service; Notice of Proposed 
Rulemaking, 65 Fed. Reg. 25540 (May 2, 2000).
    \40\ PRE at 30 (emphasis supplied).
---------------------------------------------------------------------------
    But even more directly, FMCSA has also repudiated the use of these 
specific data as evidence. In the 2005 HOS rule FMCSA stated, regarding 
the 2003 and 2004 9-month comparison discussed above of fatigue-related 
crashes, ``Although this data suggests that fatigue-related crashes 
have fallen since the 2003 rule became effective, this newer data is 
mostly preliminary, self-reported without statistical controls, and 
also reflects small sample sizes, all of which--once again--sometimes 
leads to inconsistent findings.'' \41\ It is clear that the FMCSA 
cannot invoke a comparison of fatigue-related crashes based on FARS. 
Moreover, the initial use of this information was based on an interim 
assessment of the FARS data. Subsequent statistics from the FARS final 
reports for both 2003 and 2004 showed that the number of fatigue-
related crashes in both years was higher than first reported and, 
therefore, the claimed ``improvement'' in safety all but disappeared. 
In any event, FMCSA's new reliance on any figures on fatigue among 
truck drivers based on FARs is essentially worthless.
---------------------------------------------------------------------------
    \41\ 70 Fed. Reg. 49981 (emphasis added).
---------------------------------------------------------------------------
3. The facts about driver fatigue belie FMCSA's manipulations.
    Finally, it should be stressed here that, over the years, FMCSA has 
tried repeatedly to manipulate reductions in the effects of truck 
driver fatigue on large truck crashes, with a descent from 15 percent 
in the 2000 proposed rule, to just over 8 percent in the 2003 HOS rule, 
and now to reliance on the 1.5 percent and 1.7 percent figures of 
recent FARS data. Countervailing figures, however, are not so much 
dismissed as ignored as if they didn't exist, including figures drawn 
from the National Transportation Safety Board (NTSB) and from 
Australia, among many other sources, which peg the contribution of 
truck driver fatigue in fatal truck crashes at levels as high as 30 to 
40 percent. FMCSA also ignores even the research findings of NHTSA, its 
own companion modal administration in the U.S. DOT. In a comprehensive 
study released by NHTSA in 2003, An Analysis of Fatal Large Truck 
Crashes,\42\ the agency found for the analysis years of 1996 through 
2000 that, in two-vehicle crashes involving a large truck, truck 
drivers were either drowsy or asleep in 20 percent of the crashes. This 
finding was derived from an evaluation of Traffic Safety Facts crash 
data gathered by NHTSA's National Center for Statistics and Analysis 
and through the Trucks Involved in Fatal Accidents (TIFA) Codebook.\43\ 
However, FMCSA has completely failed to acknowledge this analysis and 
is instead denying that fatigued truck drivers are a major contributor 
to severe truck crashes.
---------------------------------------------------------------------------
    \42\ An Analysis of Fatal Large Truck Crashes, National Center for 
Statistics and Analysis, National Highway Traffic Safety 
Administration, DOT HS 809 569, June 2003.
    \43\ D. Blower and L. Pettis, Trucks Involved in Fatal Accidents 
Codebook, Center for National Truck Statistics, The University of 
Michigan Transportation Research Institute, 1996-1999.
---------------------------------------------------------------------------
    At the same time that FMCSA is having trouble ``connecting the 
dots'' on fatigue, independent research conducted by the Insurance 
Institute for Highway Safety (IIHS) shows that driver fatigue is on the 
rise. According to a study conducted in 2005, ``Eighty percent of the 
surveyed truckers said they're using [the 34-hour restart] provision to 
squeeze up to 25 percent more driving into a calendar week.'' \44\ The 
research also found that in 2003, before the new rule went into effect, 
13 percent of truck drivers reported falling asleep at the wheel at 
least once in the previous week, but by 2005, 21 percent of drivers 
interviewed reported the same thing,\45\ a 66 percent increase in the 
number of drivers admitting to falling asleep at the wheel.
---------------------------------------------------------------------------
    \44\ IIHS Status Report, vol. 40, no. 6 (July 16, 2005).
    \45\ IIHS Status Report, vol. 41, no. 8 (Oct. 7, 2006).
---------------------------------------------------------------------------
    I must also point out, as is discussed later in this testimony, 
that FMCSA is now trying to pull the wool over Congress's eyes by 
combining the traditional fatality rate for large trucks with other 
commercial vehicles that have lower fatality rates, in order to give 
the false appearance that progress toward improved safety is being 
achieved. This shell game, along with FMCSA's new assault on logic and 
the science that shows that working and driving more hours over a week 
increases both the absolute and the relative risk of truck crashes, 
should be rejected. As far as I am concerned, it is D.O.A.--dead on 
arrival. I know the traveling public does not believe a word of it. I 
am convinced that it will be rejected again by the court of appeals. 
Congress should not buy into this ruse.

IV. There Is Too Much at Stake To Allow This Pattern of Failure To 
        Continue
    There is no question that professional trucking is a difficult 
occupation. According to the Fatality Analysis Reporting System (FARS) 
database maintained by the National Highway Traffic Safety 
Administration (NHTSA) over 800 large truck occupants were killed in 
crashes in both 2005 and 2006.\46\ Another Federal agency has stated 
that ``[c]haracteristics of a truck driver's job, including long hours 
of driving, loading and unloading cargo, irregular schedules, a 
sedentary lifestyle, and the nature of drivers' food choices on the 
road, are associated with work-related injury and poor health status.'' 
\47\ Medical research also documents that trucking takes its toll on 
driver health because truckers, as a group, have very high rates of 
major illnesses and health disorders, including cardiovascular disease, 
back disorders, and noise-induced hearing loss among other serious 
ailments.\48\
---------------------------------------------------------------------------
    \46\ Fatality Analysis Reporting system (FARS), 2006 Annual 
Assessment of Motor Vehicle Crashes, p. 122, DOT HS 810 837, NHTSA 
(Sept. 2007).
    \47\ NIOSH Update: NIOSH Seeks Input on Study Examining Truck 
Driver Safety and Health, Centers for Disease Control and Prevention, 
National Institute for Occupational Safety and Health (Nov. 1, 2007) 
available at http://www.cdc.gov/niosh/updates/upd-11-01-07.html.
    \48\ Transportation Research Board, National Academies of Science, 
Literature Review on Health and Fatigue Issues Associated with 
Commercial Motor Vehicle Driver Hours of Work, NAS (2005).
---------------------------------------------------------------------------
    In addition, large trucks pose inherent dangers to other highway 
users. According to the FARS database, 4,995 people died and 106,000 
were injured in crashes involving large trucks in 2006. These 
statistics have changed little in the decade since 1995 when 4,918 
people were killed and 117,000 were injured in such crashes. Even 
though large trucks represent only 3 percent of registered vehicles, 
they consistently account for 8 percent of all vehicles involved in 
fatal crashes and 12 percent of all traffic fatalities, according to 
figures from the IIHS. Most fatality victims, however, are not truck 
drivers. In fact, even though truckers have a high number of on-the-job 
fatalities, in fatal crashes involving one large truck and one 
passenger vehicle, 97 percent of the people killed are occupants of the 
passenger vehicles.\49\
---------------------------------------------------------------------------
    \49\ IIHS Fatality Facts 2005.
---------------------------------------------------------------------------
V. FMCSA Must Do a Better Job To Protect the Public
    Mr. Chairman, the driving limits and work hours adopted by FMCSA in 
the 2005 rule, which the agency has just reinstated despite the court 
of appeals ruling, are simply too long to ensure a reasonable level of 
highway safety. All of the research literature of the past 30 years and 
more has shown over and over again that very long working hours and 
limited opportunities for rest and family life severely undermine the 
safety and damage the health of these workers. This reality has been 
shown in many studies addressing commercial aviation, rail 
transportation, and maritime work, as well as for trucking. Yet, truck 
drivers under FMCSA's HOS regulation can be required to work more than 
double the hours of an average American worker.
    FMCSA should come to its senses about HOS and do what is right for 
the public, for drivers and for the industry. I recommend the agency 
take the following four actions:

        1. First, the agency must rescind the Interim Final Rule and 
        comply with the court of appeals decision that the 11-hour 
        maximum for consecutive driving and the 34-hour restart were 
        promulgated in violation of law and must be vacated. 
        Compounding the prior violation of law by illegally clinging to 
        these rules while the agency moves through a third round of 
        rulemaking is not just a reflection of the agency's loss of 
        perspective: it represents a breach of faith with the American 
        public as well as law, and it violates the separation of powers 
        and undermines the FMCSA's ever diminishing credibility. When 
        it comes to safety, FMCSA no less than the Food and Drug 
        Administration or the Centers for Disease Control and 
        Prevention owe a duty to the public to protect its safety and 
        to carry out the agency's obligation to make safety it 
        ``highest priority.''

        2. Second, it is unarguable that consecutive driving hours must 
        be scaled back from the 11 hours that can be demanded from a 
        truck driver in the regulation that has now been twice 
        overturned by the appellate court. The scientific evidence 
        shows that driver performance decreases and crashes increase 
        above 8 hours of continuous driving. Eleven hours is far too 
        much and no scientific research supports it. The agency should 
        scale back from 11 the maximum number of consecutive driving 
        hours permitted under the HOS rule.

        3. Third, the length of a truck driver's tour of duty must be 
        substantially reduced from the unconscionable surge in total 
        hours of work and driving that can be accumulated over 7 or 8 
        consecutive days under the 2005 HOS rules. In 2000, FMCSA 
        proposed an end of tour of duty layover that approximated a 
        real ``weekend'' by requiring at least 2 consecutive nights and 
        the intervening day off-duty. The agency was at least on the 
        right track--drivers must have some kind of ``weekend'' like 
        most other American workers to recover from the exhaustion of 
        driving long hours, to spend time with family, and to enjoy 
        some quality of life outside of the truck cab.

        4. Finally, the agency must change its approach with respect to 
        EOBRs. The agency's proposed rule issued earlier this year is 
        not viable. In this day and age, Mr. Chairman, we cannot 
        relegate the use of such important safety technology only to a 
        small portion of enlightened companies that voluntarily adopt 
        it, and we certainly cannot reserve it as a means of punishment 
        for a minute percentage of motor carriers that are bad actors. 
        The potential benefits for safety and the proven advantages for 
        law enforcement are too great not to require universal 
        installation of EOBRs on all commercial motor vehicles that 
        carry freight and passengers in the United States.

    Thank you, Mr. Chairman, for the opportunity to testify today, and 
I am prepared to answer any questions that you or Members of the 
Committee may have.

    Senator Lautenberg. Ms. Izer, we had a chance to meet 
before, and I congratulate you for the work that you've done to 
make everybody aware of what happens when the rules go awry and 
when a tired trucker is at the wheel of a large truck and 
mistakes are made and accidents that are terrible are a result. 
And, Ms. Izer, thank you for coming, and we invite you to give 
your statement.

              STATEMENT OF DAPHNE IZER, FOUNDER, 
           PARENTS AGAINST TIRED TRUCKERS (P.A.T.T.)

    Ms. Izer. Thank you, Senator Lautenberg. And I'd like to 
thank, also, Senator Pryor and other members of this 
Subcommittee for inviting me.
    I'm founder of Parents Against Tired Truckers. On October 
10, 1993, my life was changed forever. A Wal-Mart truck driver 
fell asleep at the wheel of his 80,000-pound rig and crashed 
into my son and his friends. As a result of this horrific, but 
preventable, crash, four beautiful teenagers--Jeff, Dawn Marie, 
Angie, and Katie--were killed. Linda survived. Five families 
suffered incomparable personal loss as a result of a single 
tired trucker, yet there are thousands of us who will be 
without a loved one this holiday season because a trucker fell 
asleep at the wheel. And you can be sure there are numerous 
fatigued truckers on the roads right now during this hearing 
due to the unsafe and illegal hours-of-service rules issued by 
FMCSA. This is unacceptable and totally unnecessary.
    My testimony reflects the views of the Truck Safety 
Coalition, which P.A.T.T. and CRASH are with.
    It's difficult to comprehend, as a mother who lost a son, 
why the Federal agency Congress created to protect the 
traveling public--the FMCSA--has shown so little safety 
leadership and made so little effort to address more than 5,000 
fatalities and 110,000 injuries every single year as a result 
of truck crashes. The lack of positive action by our Federal 
Government on the issue of tired truckers lies in sharp 
contrast to actions taken to stop drunk driving.
    Historically, the reaction of Congress and the USDOT to the 
epidemic of drunk driving on our highways was to pass stronger 
Federal laws, like the National Minimum 21 drinking age, and 
the national .08 BAC law. We are especially grateful for your 
longstanding leadership on this issue, Senator Lautenberg.
    The responses of the Administration to the epidemic of 
truck driver fatigue have actually undermined truck safety. Any 
action taken to address the problem of truck driver fatigue 
contributed to making a dire situation even worse. After 17 to 
19 hours without sleep, responses slow as much as 50 percent, 
equivalent to having .05 BAC. Moreover, FMCSA's last two hours-
of-service rules actually increase driver fatigue and sleep 
deprivation, and that, correspondingly, increases crash risk.
    In 1995, I participated in the summit organized by the 
Federal Highway Administration that involved participation by 
some 200 experts from across the country, and they ranked 
driver fatigue as the number-one issue that needed to be 
addressed. I had hoped that this recognition would finally 
result in effective solutions, yet 12 years--12 years later and 
after thousands of deaths and millions of injuries, truck 
driving still remains one of the most dangerous occupations, 
and innocent lives continue to be wiped out.
    It would be preposterous for the USDOT to allow drivers to 
consumer more alcohol by increasing the Federal BAC level for 
drivers as a solution to reduce impaired driving, yet the FMCSA 
has twice issued a blatantly dangerous rule on hours-of-
service, and that dramatically increases the working and 
driving hours of truck drivers. They twice have been legally 
challenged by safety groups, including P.A.T.T, and twice has 
had its final rule unanimously overturned in courts. Yet, in an 
amazing display of bureaucratic arrogance, FMCSA, just last 
week, took special measures to reinstate the same two illegal 
rules as it once again tries to figure out a way to justify 
them as legal.
    The agency's course of action makes it quite clear that 
they are intent on putting the truck industry's profits ahead 
of public safety, and nothing, not even two court opinions 
overturning the rule, will stand in their way. So, the agency 
will continue to force these longer hours on drivers, and 
jeopardize safety. But, we will continue to fight this killer 
rule.
    Groups like P.A.T.T. and the Truck Safety Coalition urge 
you to do something to rein in this agency. When FMCSA was 
created, Congress specifically included language stating that 
``safety'' was the highest priority of this agency, and not 
``industry profits.'' FMCSA is clearly--has already proven how 
little regard it has for the safety of American citizens, and 
now it has shown how much contempt it has for our legal system. 
Enough is enough. Too many people are dying, and too little is 
being done to stop the carnage on our highways.
    In conclusion, thank you, again, for allowing me to 
participate in today's hearing on an issue that has deeply 
affected my family and thousands upon thousands of other 
families. It truly is time to stop truck drivers from being 
turned into abused and exploited workers in rolling sweatshops. 
We need your leadership to put the brakes on longer workdays 
for truck drivers and to advance highway safety for everyone.
    Thank you. I'm ready to answer any questions you may have.
    [The prepared statement of Ms. Izer follows:]

              Prepared Statement of Daphne Izer, Founder, 
               Parents Against Tired Truckers (P.A.T.T.)

    Good morning, my name is Daphne Izer and I am the Founder of 
Parents Against Tired Truckers (P.A.T.T.). P.A.T.T. is a member of the 
Truck Safety Coalition and my testimony reflects the views and position 
of our coalition. I would like to begin by thanking Senator Lautenberg, 
Ranking Member Smith and the other members of the Subcommittee on 
Surface Transportation and Merchant Marine Infrastructure, Safety, and 
Security for inviting me to participate in this critical hearing on the 
issue of truck driver fatigue and the Hours-of-Service (HOS) rule.
    On October 10, 1993, my life was forever changed. A truck driver 
fell asleep at the wheel of his 80,000 pound rig, killing four innocent 
teenagers. One of them was my son Jeff. He and four of his friends were 
on their way to a hayride and had just pulled into the breakdown lane 
on the Maine Turnpike when a Wal-Mart truck driver fell asleep at the 
wheel of his big rig and crashed into my son and his friends. As a 
result of this horrific, preventable crash, four beautiful teenagers: 
Jeff--age 17, Angie--age 16, Dawn Marie--age 15, and Katie--age 14 were 
killed. One friend, Linda, survived but was seriously injured and she 
is mentally scarred for life. Five families suffered incomparable 
personal loss as a result of a single tired trucker. Yet, there are 
hundreds of thousands of us--parents, brothers and sisters, 
grandparents, aunts and uncles, neighbors, co-workers and friends--who 
will be without a loved one during the holidays because a trucker fell 
asleep at the wheel. I shudder to think about how many fatigued 
truckers are on the roads right now, during this hearing, due to the 
unsafe and illegal HOS rule issued by the Federal Motor Carrier Safety 
Administration (FMCSA). This danger that threatens all motorists is 
unacceptable and unnecessary.
    I formed P.A.T.T. in May 1994 to try to make a difference and 
protect other families from what I have gone through. P.A.T.T. has 
grown from a Maine grassroots group to a nationally recognized 
organization. In 2002, we combined efforts with Citizens for Reliable 
and Safe Highways (CRASH) and formed the Truck Safety Coalition. 
Together, we are dedicated to reducing the number of preventable deaths 
and injuries caused by truck-related crashes, providing compassionate 
support to truck crash survivors and families of truck crash victims, 
and educating the public, policy-makers and media about truck safety 
issues.
    There are hundreds of victims throughout the country who volunteer 
time to work with the Truck Safety Coalition to achieve our mission. 
Their hard work and dedication are astounding. Like others who have 
been affected by motor vehicle deaths and injuries, they have taken 
their sorrow and turned it into strength. Conversely, it is difficult 
to comprehend, as a mother who lost her son, why the Federal agency 
Congress created to protect the traveling public, the FMCSA, has shown 
so little safety leadership and made so little effort to address more 
than 5,000 fatalities and over 110,000 injuries annually as a result of 
truck crashes. In fatal crashes involving a truck and a passenger 
vehicle, 97 percent of the deaths are the car occupants. The 
ineffective and incompetent changes to truck safety regulations, 
especially on the issue of HOS, is a clear and convincing example of 
the wrong direction this agency repeatedly takes on so many issues 
affecting public health and safety.
    This lack of positive action by our Federal Government on the issue 
of tired truckers lies in sharp contrast to actions taken to stop drunk 
driving. Historically, the reaction of Congress and the U.S. Department 
of Transportation (U.S. DOT) to the epidemic of drunk driving on our 
highways was to pass stronger Federal laws like the National Minimum 21 
drinking age and the national .08 percent BAC law, as well as implement 
tougher enforcement programs like sobriety checkpoints and ``use it or 
lose it'' initiatives. We are especially grateful for your long-
standing leadership on this issue, Senator Lautenberg.
    Unfortunately, even though the issues are quite similar, compared 
to Legislative and Executive Branch resolve to combat impaired driving, 
the responses of the Administration to the epidemic of truck driver 
fatigue have actually undermined truck safety. Any action taken to 
address the problem of truck driver fatigue contributed to making a 
dire situation even worse. After 17 to 19 hours without sleep, a 
person's response speeds are as much as 50 percent slower and 
equivalent to having a .05 percent blood alcohol level. Moreover, 
FMCSA's hours of service rules issued in 2003 and 2005 actually 
increase truck driver fatigue and sleep deprivation that 
correspondingly increases crash risk.
    Numerous studies have shown that fatigue is a major factor in big 
truck crashes. Research, including studies conducted by the National 
Transportation Safety Board (NTSB) and the Australian Federal Office of 
Road Safety, has found that 30 percent to 40 percent of big truck 
crashes are due to fatigue. Even the U.S. DOT has repeatedly cited 
fatigue as a major factor in truck crash causation. In its 2000 
proposed rule on hours of service, FMCSA claimed that fatigue is 
involved in as many as 15 percent of truck crashes. Decades of studies 
on many other types of work have repeatedly shown that very long 
working hours, erratic schedules, and working mostly at night while 
trying to sleep during the day are consistently related to high injury 
rates and performance errors that can directly impact the safety and 
lives of many people.
    Yet, FMCSA has engaged in persistent denial of these scientific 
findings and refuses to acknowledge that it is, in fact, making motor 
carrier and highway safety more dangerous. Its hours of service 
regulations are designed to push truck drivers to work and drive to the 
point where the chance of a crash is dramatically increased. 
Furthermore, trucking interests have, at times, found a sympathetic ear 
in Congress to allow requests for dangerous and deadly special interest 
exemptions to the hours of service rule to get out from under any 
regulation. Exemptions for utility workers, agricultural workers, and 
others have no justification in science. Industry productivity should 
not come at the expense of the safety and health of the truck drivers 
who have no protection from exploitation. It is time to stop the 
squeaky wheel, or perhaps more aptly, the well-greased wheel of the 
trucking industry from steering public policy in Congress and the 
Executive Branch that jeopardizes everyone's safety.
    In 1995, a summit organized by the Federal Highway Administration 
that involved participation by safety groups, law enforcement, 
government officials and trucking industry representatives ranked 
``driver fatigue'' as the number one issue that needed to be addressed. 
I participated in that forum soon after P.A.T.T. was formed and hoped 
that this recognition would finally result in effective solutions. Yet, 
12 years later and after more than 60,000 truck crash deaths and a 
million more injuries, truck driving, according the Centers for Disease 
Control and the Bureau of Labor Statistics, still remains one of the 
most dangerous occupations and thousands of innocent people are 
needlessly killed annually on our roads and highways.
    Meanwhile, no real progress has been made by the FMCSA to 
substantially reduce the truck crash death and injury toll. The agency 
has missed every single safety goal it has adopted. Deaths continue to 
mount, dangerous trucks and unsafe drivers remain on the road because 
of weak enforcement, and safety rules are routinely issued that promote 
the trucking industry bottom line rather than protecting the personal 
safety and improving the health of truck drivers and the motoring 
public.
    It would be preposterous for the U.S. DOT to allow drivers to 
consume more alcohol by increasing the Federal BAC level for drivers as 
a solution to reduce impaired driving. Yet, this irrational action is 
comparable to the Federal response to the epidemic of fatigued truck 
drivers. FMCSA has twice issued a blatantly dangerous rule on hours of 
service that dramatically increases the working and driving hours of 
truck drivers, twice been legally challenged by safety groups including 
P.A.T.T., and twice has had its final rule unanimously overturned in 
the courts.
    In the first unanimous decision, FMCSA sought to avoid the Court's 
ruling and requested that Congress grant the agency time to rewrite the 
rule. Congress enacted a special provision giving the agency a one-year 
reprieve to issue a new rule while the dangerous and illegal 2003 rule 
remained in effect, threatening the safety of truck drivers and the 
public more than ever. The agency responded by issuing the same rule 
that the Court, in a stinging rebuke, had declared illegal. Ultimately, 
in a betrayal of its assurance to Congress to draft a revised HOS rule, 
FMCSA re-issued in 2005 a nearly identical rule that the Court 
overturned. The rule, once again, allowed the same excessively long 
working and driving hours that permitted truck drivers to drive more 
than 25 percent more hours and work up to 40 percent more hours in the 
same number of days as under the pre-2003 regulation. Incredibly, the 
agency claimed that the ``new'' rule addressed the issues identified by 
the Court.
    In the second Court case, a separate panel of three different 
judges unanimously held that FMCSA had ignored the dangerous impact on 
safety that the extended driving time allowed by the rule would have, 
and that the agency manipulated its data to support its view while 
failing to disclose crucially important information to the public. As a 
result, the Court vacated the increase in the daily shift driving limit 
from 10 to 11 hours, as well as the 34-hour restart provision that 
allows drivers to accumulate dramatically more driving hours each week 
than were previously permitted.
    In both cases, the Court opinions pointed out that the conclusions 
on which the agency based elements of the HOS rule raised ``very real 
concerns,'' ``assume[d] dubious[]'' propositions and relied on 
``problematic'' justifications. In effect, six different judges in two 
separate cases agreed that the FMCSA has failed to justify the dramatic 
increases in daily and weekly driving and working hours that both the 
2003 and 2005 final rules allowed. What is even more incredible about 
these rules is that they directly contradict the U.S. DOT's own 
statements about the dangers of exceptionally long driving and working 
hours made in earlier rulemaking actions on truck driver hours of 
service. In a complete reversal, hours that the U.S. DOT formerly held 
to be unacceptable and dangerous were now deemed acceptable in the 2003 
and 2005 final rules.
    Current Federal hours of service regulations allow truck drivers to 
drive up to 11 hours in each shift after 10 hours off-duty. The hours 
off-duty can be split into two portions for drivers using sleeper 
berths. This means that a truck driver can now drive up to 77 hours 
over 7 consecutive calendar days and up to 88 hours over 8 consecutive 
calendar days because the driver's work week now ``floats'' by using a 
minimum 34-hour ``restart.'' A driver can restart another tour of duty 
during days when, under the pre-2003 regulation, that driver had 
layover and rest time. This is equivalent to driving from Washington, 
D.C. to Atlanta, Georgia without stopping and driving this long 
distance every day for a week. I cannot imagine driving for that long 
in my car day after day, much less behind the wheel of an 80,000 pound 
big rig.
    This anti-safety rule, which was first issued in 2003, dramatically 
increased truck drivers' workdays by 40 percent more hours over 8 
consecutive calendar days and allowed them to drive 28 percent more 
hours over the same time period. This amounts to truck drivers working 
double the amount of hours in a calendar week compared to the typical 
40-hour work week of most workers in the United States. And, these 
incredibly long working hours are mostly used in driving, often for 
hours on end at high speeds, all through the night, and sometimes in 
horrendous weather conditions.
    These new hours of service are not just taking a toll on the safety 
of truck drivers and everyone who shares the roads with big rigs, but 
have severe, adverse impacts on the health of truck drivers. Truck 
drivers are being pushed beyond the limits of human endurance. The 
current regulation is not protecting these drivers. Truck drivers 
should be afforded the same respect as other workers, work reasonable 
hours, and be permitted to have sleep patterns that are in accord with 
normal human needs.
    As I mentioned, the Federal Court of Appeals in Washington, D.C., 
struck down as illegal the two parts of the HOS rule that increase 
driving and work hours, the 11 consecutive hour driving shift and the 
34-hour restart. Yet, in an amazing display of bureaucratic arrogance, 
FMCSA last week took special measures to reinstate the same two illegal 
rules while it once again tries to figure out a way to justify them as 
legal. That will not happen if I have anything to say about it.
    While I am not a lawyer, it strikes me as a total violation of our 
law and system of government for an agency to so blatantly defy a 
court's order. Truck crash victims, like me, who depend on the Federal 
Government to protect our families and friends, cannot believe that the 
agency's action is legal and that FMCSA can thumb its nose at a Federal 
court. The agency's course of action makes it quite clear that they are 
intent on putting the trucking industry's profits ahead of public 
safety and nothing, not even two court opinions overturning the rule, 
will stand in their way. So the agency will continue to force these 
longer hours on drivers and jeopardize safety but I will to continue to 
fight against this killer rule.
    Mr. Chairman and Members of the Subcommittee, this is the second 
hearing you have held this year on rules issued by FMCSA that are 
setbacks for safety. Groups like P.A.T.T. and the Truck Safety 
Coalition, urge you to do something to rein in this agency. When FMCSA 
was created in 1999, Congress specifically included language stating 
that ``safety'' was the highest priority of this agency and not 
``industry profits''. FMCSA has already proven how little regard it has 
for the safety of American citizens, and now it has shown how much 
contempt it has for our legal system. Enough is enough. Too many people 
are dying and too little is being done to stop the carnage on our 
highways.
    Let me conclude by thanking you again for allowing me to 
participate in today's hearing on an issue that has deeply affected my 
family. The importance of this issue is the reason I flew down from my 
home State of Maine to be here today. It truly is time to stop truck 
drivers from being turned into abused and exploited workers in rolling 
sweatshops. We need to put the brakes on longer workdays for truck 
drivers. We need your leadership to step in and stop this 19th century 
abuse of American workers and protect the traveling public.
    Thank you. I am ready to answer any questions you may have.

    Senator Lautenberg. Thank you very much. And we encourage 
you to continue your hard work on making sure that people 
understand what happens if we permit this condition to continue 
to exist.
    Mr. Byrd, welcome.

    STATEMENT OF LaMONT BYRD, DIRECTOR, SAFETY AND HEALTH, 
             INTERNATIONAL BROTHERHOOD OF TEAMSTERS

    Mr. Byrd. Chairman Lautenberg, Senator Pryor, members of 
the Subcommittee, my name is LaMont Byrd, and I'm Director of 
Safety and Health for the International Brotherhood of 
Teamsters. Thank you for the invitation to testify here today 
on the critical issues of hours-of-service for truck drivers.
    Approximately one-third of our 1.4 million workers are 
commercial drivers who are covered by the hours-of-service 
regulation. These drivers work in various trucking industry 
sectors, including long haul and short haul, automobile 
transport, tank haul, construction, parcel delivery, and waste 
transport. The IBT uses the collective bargaining process to 
create safe, healthy working conditions for our membership, 
building off of the minimal protections provided by safety and 
health regulations. We routinely negotiate how rules are 
implemented and enforced in the workplace. Many of our 
contracts contain provisions that make noncompliance with 
safety and health regulations a violation of the collective 
bargaining agreement that is subject to the grievance 
procedure.
    Further, Teamster contracts provide our driver members with 
good wages, health benefits, and pension plans, eliminating the 
economic incentive that many nonunion drivers may have to 
violate the hours-of-service regulation.
    The Teamsters union has been a party to the legal actions 
challenging the 2003 and the 2005 hours-of-service regulations. 
The union believes the court was correct in vacating the final 
rule the first time, because the agency failed to comply with 
its statutory requirement to protect the health of drivers, 
and, the second time, because the agency's analysis was flawed.
    With respect to the current interim final rule, the IFR, 
our review of the information provided by the Federal Motor 
Carrier Safety Administration has not convinced us to change 
our position. We continue to oppose increasing daily driving 
time and the use of a 34-hour restart provision.
    The union questions the agency's rationale of increasing 
the daily driving time from 10 hours to 11 hours. In a previous 
rulemaking, the agency justified the increase, in part, by 
arguing that the roads are better and trucks are more 
comfortable than they were when the rule was first promulgated, 
back in the 1930s. Now the agency simply states that there is 
no evidence that increasing driving time increases the risk of 
having a fatigued-related crash.
    We feel that the agency chose to cherry-pick from studies 
that support its position on this matter, even though the 
researchers who conducted the studies advised the reader to use 
caution in applying these results across the entire trucking 
industry.
    Further, in our opinion, these cherry-picked studies do 
nothing to invalidate the other studies, cited in the hours-of-
service docket, that conclude that there is an increased risk 
of crash associated with hours driving. The studies cited are 
included in our written testimony.
    Regarding the 34-hour restart provision, Teamster members 
in the LTL sector are prohibited from using the provision, due 
to negotiated language in our freight agreement. Consequently, 
our members are afforded the opportunity to obtain nearly two 
times the hours off per week, as compared to drivers who use 
restart. The union opposes the use of restart, because we feel 
that it has a negative affect on the driver's ability to get 
restorative rest.
    The union clearly understands the difficulty of developing 
an hours-of-service rule that must establish a balance between 
the health and safety of drivers and the driving public with 
the needs of a very diverse pool of motor carriers. The union 
feels that it is equally important that the rule be constructed 
in a manner that allows a driver to achieve a reasonable 
balance between work life and personal life. Drivers obviously 
are not machines, they are husbands, wives, sisters, and 
brothers who have the same types of responsibilities and 
aspirations that you and I have, and they should be afforded 
the opportunity to do more than simply work and rest. This 
consideration can be easily overlooked in a complex rulemaking 
process such as the one used to develop an hours-of-service 
rule.
    It is our opinion that the IFR, like previous versions of 
the rule, falls short of the agency's stated mission, which is 
to reduce crashes, injuries, and fatalities involving large 
trucks. Rather than attempting to promulgate a rule which 
favors increasing the productivity of drivers and increasing 
the profits of motor carriers, the agency should seriously 
consider all of the relevant scientific evidence, along with 
informed opinions of the stakeholders, who are also dedicated 
to improving highway and driver safety, to promulgate a rule 
that fulfills the agency's stated mission.
    In the interim, the Teamsters union will continue to rely 
heavily on our collective bargaining agreements to ensure the 
safety of our membership.
    Thank you.
    [The prepared statement of Mr. Byrd follows:]

    Prepared Statement of LaMont Byrd, Director, Safety and Health, 
                 International Brotherhood of Teamsters

    Chairman Lautenberg, Ranking Member Smith and members of the 
Subcommittee My name is LaMont Byrd, Director of Safety and Health, for 
the International Brotherhood of Teamsters. Thank you for the 
invitation to testify here today on this critical issue of hours of 
service for truck drivers.

Introduction
    The International Brotherhood of Teamsters (IBT) is a labor 
organization whose members include hundreds of thousands of persons, 
mostly drivers, employed by motor carriers. Because of the large number 
of its members that are involved in motor transportation, the IBT has a 
strong interest in ensuring that any changes to the hours of service 
regulations do not adversely affect the health, safety, or economic 
well-being of its members or the safety of the driving public.
    The IBT has been an active participant in the Department of 
Transportation's attempts to revise the hours of service regulations, 
first under the Federal Highway Administration and then under the 
Federal Motor Carrier Safety Administration (FMCSA, the Agency) and 
will remain so. Since the membership of the IBT is protected by 
collective bargaining agreements that provide them with excellent 
compensation and benefits packages, it is logical that the IBT should 
be considered the ``voice of reason'' in this rulemaking procedure. Its 
members are not willing to sacrifice their health or safety for the 
opportunity to make more money. Teamster members have no incentive to 
violate the law. The collective bargaining agreements provide 
sufficient protections from employer coercion to violate safety 
regulations by making such actions a violation of the contract and 
subject to the grievance process. This is why the IBT has asserted in 
all previous comments on this matter, that better enforcement is a 
critical component in any revision to the hours of service.

The Court Decisions
    The IBT has been a party to the legal actions embarked upon by 
Public Citizen and other stakeholders with respect to the 2003 and 2005 
Hours of Service Regulations promulgated by the Federal Motor Carrier 
Safety Administration. Twice now the U.S. Court of Appeals for the 
District of Columbia has vacated those rulemakings. The July 2004 
ruling cited the FMCSA's failure to consider the health of the driver 
and characterized the rule as ``arbitrary and capricious''. (Public 
Citizen et al., v. Federal Motor Carrier Safety Administration. 374 
F.3d 1209) The Court was correct in vacating the rule because the FMCSA 
is statutorily required to ``ensure that . . . the operation of 
commercial motor vehicles does not have a deleterious effect on the 
physical condition of the operators.'' 49 U.S.C. Section 31136(a)(4). 
Based on the court's decision, it is clear that the FMCSA failed to 
comply with this requirement. This did not stop the agency, however, 
from issuing a nearly identical rule in 2005.
    The July 2005 Court of Appeals decision vacated the 2005 rule, 
based on the fact that the FMCSA failed to disclose critical 
information the agency used in its cost-benefit analysis for public 
comment. The agency did not explain how its operator-fatigue model 
failed to account for cumulative fatigue due to increased weekly 
driving hours permitted by the 34-hour restart. The FMCSA did not 
provide any opportunity for notice and comment on its new model or 
explain the methodology and assumptions from which it was derived. 
While the FMCSA claims that the court ruled on procedural grounds, the 
fact is that the court stated that the agency's analysis was flawed. 
The court expressed concerns about the increase in the daily driving 
limit to 11 hours, while the agency conceded that studies showed that 
performance began to degrade after the 8th hour on duty and increased 
geometrically during the 10th and 11th hour. This is hardly a 
procedural issue. We continue to support the motions filed by Public 
Citizen relative to the Interim Final Rule.

The Interim Final Rule (IFR)
    The IBT conducted a brief review of the IFR and several of the 
supporting documents in preparation for the hearing. However, it should 
be noted that due to the limited interval between the time from which 
the IFR was released and the hearing, our review and analysis is 
incomplete. It is anticipated that the IBT will provide a more 
comprehensive review of these materials in preparation of our comments 
that will be submitted to FMCSA's Rulemaking Docket.

11-Hour Driving Issue
    In response to the Court's ruling, the agency goes into some detail 
regarding the rationale used in developing the model used to justify 
increasing the maximum daily driving time from 10 hours to 11 hours. 
FMCSA states that new safety data that the agency reviewed suggests 
that the 11-hour driving limit has not resulted in any ``upward trend 
in the number of fatal crashes as a whole or fatigue-related crashes in 
particular.'' In our review of the information provided by FMCSA in the 
IFR, we have found no such data to support the Agency's conclusion.
    The Agency takes this position after taking a contrary position 
during previous HOS rulemaking where the FMCSA acknowledged that the 
relative risk of a crash dramatically increases after about 8 hours of 
driving, as driving continues through the 9th, 10th, 11th, and 12th 
hours. The Agency used its expertise and judgment based on the research 
literature to show that the relative risk of a crash effectively 
doubles from the 8th to the 9th hour of driving, and doubles again from 
the 10th to the 11th hour of driving, even before the twelfth hour of 
driving is completed.\1\ It is our opinion that in the IFR, the Agency 
has chosen to ``cherry pick'' from studies that support their new 
position on this matter. In particular, the agency relies too heavily 
on a study conducted by the Virginia Tech Transportation Institute 
regarding Time-on-Task related fatigue and its contribution to crash 
risk. In our cursory review of the Virginia Tech Transportation 
Institute study, we have no reason to challenge the validity of the 
methodology used by the researchers, however, we agree with comments in 
their conclusion which concede that interpretation of the conclusions 
reached in the study must be used cautiously due to the small sample 
size of drivers in the study population. We would also conclude that 
the results may have limited relevance to certain sectors of the 
trucking industry that were not included in the study. Further, we are 
of the opinion that the VTTI study does nothing to invalidate other 
studies cited regarding this matter, e.g., Mackie and Miller; \2\ 
Jovanis, et al.;\3\ and Park, et al;\4\ that conclude that there is an 
increased crash risk associated with hours driving.
---------------------------------------------------------------------------
    \1\ 65 FR 25544 Relative Risk of Fatigue Crash by Hours Driving 
(Chart 5).
    \2\ Mackie, R.R. and Miller, J.C. 1978. Effects of hours of 
service, regularity of schedules, and cargo loading on truck and bus 
driver fatigue (DOT HS-803-799). Washington, D.C.: National Highway 
Traffic Safety Administration.
    \3\ Jovanis, P., Park, S.W., Gross, F., and Chen, K. On the 
Relationship of Crash Risk and Driver Hours of Service, 2005 
International Truck & Bus Safety Security Symposium, Alexandria, VA.
    \4\ Park, S., Mukherjee, A., Gross, F., and Jovanis, P.P. ``Safety 
implications of multi-day driving schedules for truck drivers: 
Comparison of field experiments and crash data analysis.'' 
Transportation Research Board 2005 Annual Meeting.
---------------------------------------------------------------------------
    In addition, according to Public Citizen,\5\ a 1996 study found a 
strong relationship between single-vehicle truck crashes and the length 
of consecutive hours spent driving.\6\ The risk of a crash actually 
doubled after 9 hours of continuous driving.\7\ Another study of truck 
driving found that ``[a]ccident risk increases significantly after the 
fourth hour, by approximately 65 percent until the seventh hour, and 
approximately 80 percent and 150 percent in the eighth and ninth 
hours,'' respectively [emphasis added].\8\
---------------------------------------------------------------------------
    \5\ Public Citizen, Comments on Notice of Proposed Rulemaking; 
Request for Comments; Hours-of-Service of Drivers; 70 FR 3339, Jan. 24, 
2005; Docket No. FMCSA-2004-19608; formerly FMCSA-1997-2350. Page 19.
    \6\ Saccomano, F., et al., ``Truck Safety: Perceptions and 
Reality,'' (Ontario: Institute for Risk Reduction, 1996) at 157-174.
    \7\ Saccomano, F., et al., ``Truck Safety: Perceptions and 
Reality,'' (Ontario: Institute for Risk Reduction, 1996) at 157-174.
    \8\ Lin, T., et al., ``Modeling the Safety of Truck Driver Service 
Hours Using Time-Dependent Logistic Regression,'' Transportation 
Research Record 1467 (Washington, D.C.: Transportation Research Board, 
1994), at 1-10.
---------------------------------------------------------------------------
    We are of the opinion that because of the diverging opinions of the 
researchers who investigated this matter, there is a need to conduct 
additional research regarding this issue prior to considering any 
driving time increases for commercial drivers.
34-Hour Restart Provision
    In the 2003 NPRM, the FMCSA introduced the concept of weekly off-
duty periods to provide drivers with the opportunity to compensate for 
sleep debt accumulated during the work week. This concept is similar to 
work rules that were negotiated into some of the union's collective 
bargaining agreements to allow for minimum rest periods between work 
weeks, so of course, in theory, the union could agree with this 
concept. It seems as though this idea has since evolved into a restart 
provision of which, according to the language in the preamble of the 
2005 final rule, ``The only reason for a restart provision is to allow 
increased productive time, notwithstanding the general regulatory 
requirements''.\9\ The trucking industry has pushed for a restart 
provision dating back to 1992. The FMCSA admits that the 34-hour 
restart provision allows an extra 14 hour shift every 7 days. So in a 
revised rule that is supposed to reduce driver fatigue, reduce crashes 
and fatalities, and make roads safer for the motoring public, FMCSA 
decided to allow drivers to work for an additional 14 hours per week, 
bringing the total weekly hours worked to 84.
---------------------------------------------------------------------------
    \9\ 70 FR 50017.
---------------------------------------------------------------------------
    The IBT opposes the restart provision and we have taken the 
position that Teamster drivers in the LTL sector will not use this 
regulatory provision. We negotiated language into our collective 
bargaining agreements that prohibits the use of restart, except in rare 
situations, and those runs are negotiated with the employer on a case-
by-case basis. By not using the restart provision, our members are 
afforded the opportunity to obtain nearly two times the hours off as 
compared to a driver who uses restart. Allowing drivers who already 
work extremely long hours to work even more is not a good decision for 
the safety and health of the driver or the safety of the motoring 
public. Again, this is an example of the FMCSA favoring the economic 
concerns of the industry.
    The IBT opposes the use of the 34-hour restart because of the 
negative effect it has on a driver's ability to get restorative rest. 
Those companies affected by this language have not seen a negative 
economic impact resulting from the labor agreement. They have not lost 
a competitive advantage. The IBT contends that this voluntary provision 
has become mandatory to most drivers not protected by collective 
bargaining agreements. The FMCSA is naive to think that a company would 
not push its drivers to drive the maximum allowed by law, by utilizing 
every provision, or special exception provided in the rules. This will 
be discussed in greater detail below.
    The IBT understands that the FMCSA must carefully weigh the 
economic impact of any regulation and carefully balance that with the 
safety benefits to drivers and the public. However, the IBT believes 
that the Agency is more concerned about the economic viability of the 
industry than about the health and safety of the drivers in this 
rulemaking. This is evidenced by the obvious similarities between the 
industry proposal described in the April 2003 preamble to the final 
rule [68 Fed. Reg. 22491-22501], and the final rule published by the 
Agency in 2005, and now the IFR.
    In the IFR, the Agency cites 5 studies in which it claims address 
cumulative fatigue caused by sleep debt, however, copies of the studies 
were not placed in the docket in time to be adequately reviewed and 
evaluated by the public in time to comment on them in preparation for 
this testimony. However, in reviewing the abstracts for these studies, 
none looked at the effect that the 34-hour restart provision, and the 
subsequent increase in cumulative driving hours, had on commercial 
drivers. The FMCSA admits that there is a lack of scientific evidence 
with respect to the cumulative fatigue caused by the implementation of 
the 34-hour restart provision. The Court concluded that FMCSA had not 
adequately considered the ``cumulative fatigue'' raised by Public 
Citizen in its final rule. On page 34 of the IFR, the Agency makes the 
following statement:

        ``The Agency found in 2005 that few studies address the effect 
        of recovery periods between work periods spanning multiple 
        days, such as a workweek. After reviewing the studies relevant 
        to the 34-hour recovery period, as cited in the 2003 rule and 
        those submitted by commenters to the 2005 NPRM, the Agency 
        determined that current scientific evidence is limited with 
        respect to the type of cumulative fatigue raised by Public 
        Citizen and the Court.''

    The Rosekind study is one of the few studies cited by the Agency in 
its argument in the IFR regarding the lack of evidence of cumulative 
fatigue caused by sleep debt. According to comments submitted by 
Advocates in response to the 2005 NPRM, Rosekind argues that the 34 
hour restart time is sufficient to permit recovery. In prior studies, 
Rosekind has argued that two successive nights of recovery sleep are 
needed to restore performance and expunge sleep debt.\10\ Advocates 
argued correctly that ``the schedule of a high percentage of truck 
drivers is either irregular, with backward rotating shifts . . . or are 
non-diurnal even when circadian. It is well-known and amply documented 
that workers on inverted shift work schedules often get both less and 
poorer quality sleep when they attempt to work during the night and try 
to sleep during the day.'' \11\ Drivers who use the 34-hour restart 
provision may encounter great difficulty obtaining two successive 
nights of 8 hours of sleep during the 34-hour period. In the IFR, the 
Agency has still not adequately addressed the need for two consecutive 
nights of at least 8 hours of sleep; a concept supported by studies 
cited by the FMCSA in both the 2005 NPRM and the current 
IFR.\12\,\13\,\14\,\15\,\16\

---------------------------------------------------------------------------
    \10\ M. Rosekind, D. Neri, and D. Dinges, ``From Laboratory to 
Flightdeck: Promoting Operational Alertness, Fatigue and Duty 
Limitations--An International Review, the Royal Aeronautical Society, 
London, 1997, pp. 7.1-7.14.
    \11\ Advocates for Highway and Auto Safety, Hours-of-Service of 
Drivers, Notice of Proposed Rulemaking; Request for Comments 70 FR 
3339, January 24, 2005.
    \12\ 70 FR 3347. See: O'Neill et al. (1999).
    \13\ 70 FR 3347.
    \14\ 70 FR 3347.
    \15\ 70 FR 3347.
    \16\ Smiley, A., R. Heslegrave, A 36-Hour Recovery Period for Truck 
Drivers: Synopsis of Current Scientific Knowledge, Prepared by Human 
Factors North for Transport Canada, Montreal: Transport Canada, Apr. 
1997, at iii.
---------------------------------------------------------------------------
    According to Public Citizen, scientific studies clearly show that 
as drivers log more hours on the road over multiple days, their 
performance declines. Public Citizen makes the following statement in 
their comments to the 2005 NPRM:

        ``A 1992 study found that driving patterns over the previous 7 
        days significantly increased crash risk on the eighth day of 
        driving.\17\ And a 1999 study by the American Automobile 
        Association found that working a 60-hour week, as opposed to a 
        40-hour or 50-hour week, markedly raises a driver's crash risk: 
        `Working the night shift increased the odds of a sleep-related 
        (versus non-sleep-related) crash by nearly 6 times. Working 
        more than 60 hours a week increased the odds by 40 percent.' 
        \18\ FMCSA's own analysis for the 2000 NPRM convincingly 
        demonstrates that a 34-hour restart is unsafe, as it would only 
        exacerbate drivers' cumulative fatigue, while failing to 
        guarantee even the bare minimum necessary for a truly 
        recuperative weekly recovery period.'' \19\
---------------------------------------------------------------------------
    \17\ Kaneko, T., et al., ``Multiday Driving Patterns and Motor 
Carrier Accident Risk: A Disaggregate Analysis,'' Accident Analysis and 
Prevention, 25:5, 1992, 437-456.
    \18\ Stutts, J., et al., Why Do People Have Drowsy Driving 
Crashes?: Input from Drivers Who Just Did, AAA Foundation for Traffic 
Safety, Washington, D.C., Nov. 1999.
    \19\ 65 FR 25555, 25556.

    In the IFR, the Agency references the O'Neill, TR et al. Study when 
making the following statement: ``The authors reported that a schedule 
of 14 hours on duty (with 12 hours of driving) and 10 hours off-duty 
for 5 consecutive day periods did not appear to produce significant 
cumulative fatigue over the 2-week testing period.'' \20\
---------------------------------------------------------------------------
    \20\ O'Neill, T.R., Krueger, G.P., Van Hemel, S.B., and McGowan, 
A.L. (1999). ``Effects of operating practices on commercial driver 
alertness.'' Rep. No. FHWA-MC-99-140, Office of Motor Carrier and 
Highway Safety, Federal Highway Administration, Washington, D.C.
---------------------------------------------------------------------------
    The referenced study was an experiment using 10 truck drivers in 
simulated long-haul runs over a 15 day period. Limitations of this 
study included: small number of subjects (n=10); subjects studied in a 
simulated environment rather than a real-world scenario with scheduled 
meals, exercise, and other activities; only a straight day schedule was 
examined--conclusions drawn regarding cumulative fatigue and recovery 
are restricted to a straight schedule (a schedule of 14 hours on duty/
10 hours off-duty for a 5-day week); subjects were directed to take 
breaks and get adequate rest--subjects were not as fatigued as real-
world drivers are expected to be; quality and length of sleep was 
affected by the fact that subjects were staying in an apartment.
    Also, the authors suggested that a full two nights and 1 day off 
would be a minimum safe restart period under the conditions tested. 
However, the study design considered the effects of a 58-hour off-duty 
period, not the 34-hour period provided by the restart rule, and the 
authors cautioned about generalizing the results to operations with 
different characteristics (for example those that are not day 
shifts).\21\ Furthermore, what the Agency fails to include in the IFR 
is that the authors concluded that ``there was a gradual decline in 
driver response quality over time (hours at the wheel).'' \22\
---------------------------------------------------------------------------
    \21\ Insurance Institute for Highway Safety, Comments on Hours of 
Service of Drivers, Notice of Proposed Rulemaking (NPRM), Docket No. 
FMCSA-2004-19608; formerly FMCSA-1997-2350, p. 4.
    \22\ O'Neill, T.R., Krueger, G.P., Van Hemel, S.B., and McGowan, 
A.L. (1999). ``Effects of operating practices on commercial driver 
alertness.'' Rep. No. FHWA-MC-99-140, Office of Motor Carrier and 
Highway Safety, Federal Highway Administration, Washington, D.C.
---------------------------------------------------------------------------
    The Wylie et al. Study \23\ cited by the Agency in supporting their 
argument concluded that ``There was some evidence of cumulative fatigue 
across days of driving. For example, performance on the Simple Response 
Vigilance Test declined during the last days of all four conditions.'' 
Additionally, and perhaps most alarming, is the fact that the authors 
concluded that ``the follow-up study found that based on a small sample 
of drivers, 36 hr recovery was insufficient for day or night drivers, 
but especially for night drivers.'' \24\
---------------------------------------------------------------------------
    \23\ Wylie, C.D., Shultz, T., Miller, J.C., and Mitler, M.M. 
(1997). ``Commercial motor vehicle driver rest periods and recovery of 
performance.''
    \24\ Wylie, C.D. ``Driver drowsiness, length of prior principal 
sleep periods, and naps''. (1998). Transportation Development Centre. 
Report No. TP 13237E. (Direct quote taken from CTBSSP Literature Review 
on Health and Fatigue Issues Associated with Commercial Motor Vehicle 
Driver Hours of Work; Transportation Research Board).
---------------------------------------------------------------------------
    A study by Park et al.\25\ examined the ``effect of multi-day 
driving and continuous driving (time on task) on crash risk. The study 
uses pre-existing crash data from the 1980s and measurements from the 
Driver Fatigue and Alertness Study (DFAS) conducted in the mid-1990s. 
The authors concluded that ``there is some evidence, although it is far 
from persuasive, that there may be risk increases associated with 
significant off-duty time, in some cases in the range of 24 to 48 
hours. The implication is that `restart' programs should be approached 
with caution.'' \26\ There were also questions raised regarding ``the 
efficacy of a ``restart'' period (Smiley and Heslegrave, 1997); there 
appears to be evidence from this analysis that 24 and perhaps 48 hours 
may be insufficient, particularly for night and early morning 
driving.'' \27\
---------------------------------------------------------------------------
    \25\ Park, S., Mukherjee, A., Gross, F., and Jovanis, P.P. ``Safety 
implications of multi-day driving schedules for truck drivers: 
Comparison of field experiments and crash data analysis.'' 
Transportation Research Board 2005 Annual Meeting.
    \26\ Park, S., Mukherjee, A., Gross, F., and Jovanis, P.P. ``Safety 
implications of multi-day driving schedules for truck drivers: 
Comparison of field experiments and crash data analysis.'' 
Transportation Research Board 2005 Annual Meeting.
    \27\ Park, S., Mukherjee, A., Gross, F., and Jovanis, P.P. ``Safety 
implications of multi-day driving schedules for truck drivers: 
Comparison of field experiments and crash data analysis.'' 
Transportation Research Board 2005 Annual Meeting.
---------------------------------------------------------------------------
    A study performed by Jansen et al.\28\ examined working hours, 
patterns, and work schedules of employees in terms of need for recovery 
from work. The authors concluded that in men, continuous ``Need for 
Recovery'' scores were significantly associated with working more than 
40 hours per week compared with fewer hours per week (drivers work 60-
70+ hours per week), working 9 to 10 hr per day (drivers work 12-14+ 
hours per day) compared with working fewer hours per day, and working 
overtime frequently. Need for Recovery (highest quartile vs. lowest 
quartile) results in men showed significant associations between high 
need for recovery and working 9 to 10 hr per day, working more than 40 
hr per week, and working frequent overtime. The author concluded: ``The 
study showed that high working hours a day and high working hours a 
week generally went together with a higher need for recovery, 
confirming our hypothesis that day workers with many working hours a 
week report more need for recovery from work compared to employees 
working less hours a week. Extension of the working day, in terms of 
overtime work, was particularly associated with more need for recovery 
in both men and women.'' \29\ An industry sector for the workers 
evaluated in the research was not provided. No information on 
occupation was a limiting factor in the study. Studies performed by 
Dingus et al.\30\ and Klauer, et al.\31\ examined long-haul sleeper 
team truck drivers operating heavy trucks for a minimum of 6 continuous 
days, with the typical run being 7 to 10 working days, on their 
regularly assigned route. The authors concluded that it ``appears that 
the combination of long driving times and multiple days provides the 
greatest concern, with several results pointing to the presence of 
cumulative fatigue.'' \32\
---------------------------------------------------------------------------
    \28\ Jansen, N., Kant, I., van Amelsvoort, L., Nijhuis, F., and van 
den Brandt, P. ``Need for recovery from work: evaluating short-term 
effects of working hours, patterns and schedules.'' Ergonomics. 2003 
Jun 10; 46(7):664-80.
    \29\ Jansen, N., Kant, I., van Amelsvoort, L., Nijhuis, F., and van 
den Brandt, P. ``Need for recovery from work: evaluating short-term 
effects of working hours, patterns and schedules.'' Ergonomics. 2003 
Jun 10; 46(7):664-80.
    \30\ Dingus, T., Neale, V., Garness, S., Hanowski, R., Keisler, A., 
Lee, S., Perez, M., Robinson, G., Belz, S., Casali, J., Pace-Schott, 
E., Stickgold, R., and Hobson, J.A., The Impact of Sleeper Berth Usage 
on Driver Fatigue. FMCSA, FMCSA-RT-02-050, Washington, D.C., November 
2001.
    \31\ Klauer, S.G., Dingus, T.A., Neale, V.L. and Carroll, R.J. 
(2003) ``The effects of fatigue on driver performance for single and 
team long-haul truck drivers''. Driving Assessment 2003--The Second 
International Driving Symposium on Human Factors in Driver Assessment, 
Training and Vehicle Design. Park City, Utah.
    \32\ Klauer, S.G., Dingus, T.A., Neale, V.L. and Carroll, R.J. 
(2003) ``The effects of fatigue on driver performance for single and 
team long-haul truck drivers.'' Driving Assessment 2003--The Second 
International Driving Symposium on Human Factors in Driver Assessment 
Training and Vehicle Design. Park City, Utah. (Direct quote taken from 
CTBSSP Literature Review on Health and Fatigue Issues Associated with 
Commercial Motor Vehicle Driver Hours of Work; Transportation Research 
Board).
---------------------------------------------------------------------------
    According to the Insurance Institute for Highway Safety, the 2005 
commentary on the rule change by Rosekind points to a scientific basis 
for the 34-hour restart rule.\33\ However, the studies referenced in 
the commentary are not based on commercial vehicle drivers. They mostly 
are experiments that primarily examine the effects on simulated 
performance of continuous hours of wakefulness, not time on task. The 
commentary does not consider the range of factors that may affect sleep 
debts among truck drivers (e.g., split rest time in a sleeper berth) 
created by long daily work shifts and their ability to get adequate 
recovery sleep in the real world. For example, for many drivers the 34-
hour recovery period occurs on the road rather than at home.\34\
---------------------------------------------------------------------------
    \33\ Insurance Institute for Highway Safety, Comments on Hours of 
Service of Drivers, Notice of Proposed Rulemaking (NPRM), Docket No. 
FMCSA-2004-19608; formerly FMCSA-1997-2350, p. 5.
    \34\ Insurance Institute for Highway Safety, Comments on Hours of 
Service of Drivers, Notice of Proposed Rulemaking (NPRM), Docket No. 
FMCSA-2004-19608; formerly FMCSA-1997-2350, p. 5.
---------------------------------------------------------------------------
    The Agency makes the following statement on pp. 35-36 of the IFR 
regarding cumulative fatigue: ``Although some popular literature 
discusses `burnout', the Agency does not consider these anecdotal 
narratives to be evidence that cumulative fatigue is a significant 
concern under normal driving conditions.'' However, the Agency relies 
heavily on anecdotal information provided by the ATA to justify its IFR 
(Carrier Safety Data Filed with the ATA Motion, pp.56-57; ATA 
Operational Usage Survey of Members, pp. 62-64; Carrier Information 
Filed with ATA Motion, pp. 65-66).

Agency Assumptions
    FMCSA believes the pre-2003 possibilities of ``extreme'' driving 
behavior are actually eliminated under the 2003 or 2005 rule. As stated 
above, the Agency is being naive if it truly thinks that this is the 
case.
    FMCSA argues that because the 2003 and 2005 rules prohibit driving 
after the 14th hour of coming on duty, drivers will not utilize 
``extreme'' driving behavior. However, according to the Hours-of-
Service Compliance Rates provided in Table 3 of the IFR, it was 
determined that HOS violations regarding the 15 or 14 hour rule 
increased 601 percent when comparing violations in 2003 with those in 
2006. Our understanding of the rule suggests that this violation 
documents that drivers are operating commercial motor vehicles after 
the 14 hour period has expired. Further, our experience, based on 
reports from our driver membership, suggests that as the HOS regulation 
matures, motor carriers are actively seeking ``loopholes'' to exploit 
in an effort to maximize the hours worked by drivers for productivity 
gains. For example, according to the exemption cited in 395.1(o), a 
property-carrying driver is exempt from the requirements of section 
395.3(a)(2) if:

        1. The driver has returned to the driver's normal work 
        reporting location and the carrier released the driver from 
        duty at that location for the previous five duty tours the 
        driver has worked;

        2. The driver has returned to the normal work reporting 
        location and the carrier releases the driver from duty within 
        16 hours after coming on duty following 10 consecutive hours 
        off-duty; and

        3. The driver has not taken this exemption within the previous 
        6 consecutive days, except when the driver has begun a new 7- 
        or 8-consecutive day period with the beginning of any off-duty 
        period of 34 or more consecutive hours as allowed by section 
        395.3(c).

    This 16 hour exemption permits a driver to operate after the 14th 
hour of coming on duty as long as the previous conditions are met. 
Therefore, the assumption is that in typical operating scenarios, some 
drivers who meet the above criteria will, at most, use the exemption 
one time per work week. The IBT has received numerous calls from our 
members who were seeking guidance on the legality of using the 
exemption more than one time per week. In these situations, the motor 
carriers are instructing drivers who have worked for two or 3 days and 
used the exemption on one of those days to use the 34 hour restart 
provision before expiring their available working hours. Upon their 
return to work, the motor carriers are instructing the drivers to use 
the 16-hour exemption for a second time that calendar week, and 
continue to work until they expire their hours for the remainder of the 
calendar week. In this scenario, a driver may work upwards of 88 hours 
in a 7 day period. Therefore, our experience suggests that if motor 
carriers can exploit the regulations to their advantage, they will do 
so. One must keep in mind that this is occurring among unionized 
carriers where the union and the collective bargaining agreements serve 
to dissuade motor carriers from violating the regulations. If this is 
happening in this situation, it begs the question of what is occurring 
in the nonunion sector.

Conclusion
    The rulemaking process for this important regulation has been 
unnecessarily lengthy and arduous. The FMCSA could have avoided many of 
the challenges to promulgating a final rule if the agency had simply 
taken the time to objectively review the existing scientific 
literature, commissioned researchers to conduct studies to fill any 
identified knowledge gaps, and obtained and seriously considered input 
from all stakeholders. Instead, the agency chose to be the stalking 
horse for the trucking industry by attempting to circumvent the 
required rulemaking process and promulgate a final rule that focuses on 
the priorities of motor carriers, which oftentimes do not emphasize the 
health and safety of the drivers and the motoring public.
    The IBT suggests that the FMCSA focus on its primary mission, which 
is to reduce crashes, injuries, and fatalities involving large trucks 
and buses. Increasing daily and weekly driving limits falls far short 
in attaining this goal. The FMCSA should discard the subjective 
preconceived notions that guided the creation of the current rule. The 
FMCSA must objectively re-examine the docket and based on sound 
science, revise the rule to address the health and safety of commercial 
motor vehicle drivers and the public. The burden is not the public's to 
prove that the current rule is inadequate. The court has already made 
that determination. The FMCSA must address the inadequacies that have 
been identified by the court.

    Senator Lautenberg. Thank you very much, Mr. Byrd.
    We look, with a degree of some significant surprise, at the 
suggestion that the longer you work, the more efficient you 
are.
    Mr. Osiecki, do you get better in your 15th, 16th hour of 
work in a day, more efficient and more alert?
    Mr. Osiecki. Thank you for the question, Senator.
    The honest answer is, no. The--what the scientific 
literature would say in response to----
    Senator Lautenberg. I asked you a question about how you 
think you would feel in your 12th to 15th hour of work. Do you 
think that you're as good at your job, as efficient as you 
might be as when you first started?
    Mr. Osiecki. No, sir----
    Senator Lautenberg. No?
    Mr. Osiecki.--you're not. The literature shows, at about--
at the 16th hour is where, essentially, you drop off the table.
    Senator Lautenberg. Yes.
    Mr. Osiecki. The length of the wakefulness period, from the 
time you wake up until the time you go to bed for your next 
sleep period, the literature says, is that--the problems come 
in at about the 16th hour, which is one of the reasons, we 
understand, that the agency limited the workday--a consecutive 
workday--to 14th hour--14 hours, to give that, sort of, 2-hour 
margin, if you----
    Senator Lautenberg. So, do you think you're as good at the 
11th hour of work as you are at the first hour of work?
    Mr. Osiecki. That, I don't know what the data seems to 
indicate at this point.
    Senator Lautenberg. Well, how was the data generated? First 
of all, in order to do this testing, you obviously had to be 
talking to people who were driving illegally, because they were 
way past the number of hours that they should be working in a 
day. So, how do you account for the fact that they're violating 
the law, and here you're using them as an example of what the 
law can be? Should we just open it up and say, ``Drive as many 
hours as you can, the heck with the rules''?
    Mr. Osiecki. I--no, sir. The--there is a study--there have 
been multiple studies done under the previous rules and looking 
at the risk of driving, hour by hour, when the driving limit 
was 10 and the off-duty period was 8. There is a recent study, 
using naturalistic driving data, which is important, because 
it's data collected via video cameras both on the truck and 
viewing the environment in which the truck is operating, and 
that study and that data indicates that there's no statistical 
difference in the safety between the 10th hour and the 11th 
hour. And that's a--it's a very recent study.
    Senator Lautenberg. So, then the idea that--your 
proposition develops here--is that you just keep going until at 
the end of a particular time, you stop driving, that's the 
safest thing you can do. It's very hard to understand that. 
And, frankly, it's impossible to believe it.
    Mr. Hill, your agency's rationale for the new hours-of-
service rule is that things have gotten no worse under this 
Administration. Now, 5,000 deaths a year is what's happening. 
And is the Administration going to continue to be content with 
that?
    Mr. Hill. Mr. Chairman, thank you for the question.
    Absolutely not. There's a whole group of people, back at 
FMCSA today, working very hard to get regulations out and to 
update our safety monitoring practices, and to improve 
oversight of motor carrier compliance.
    One of the things that we are currently doing is trying to 
address all the fatalities, and not just focus on the fatigue. 
Now, I've talked to the people in the room today who have lost 
loved ones, such as Ms. Izer, and there is no good response to 
any of those tragic situations. I firmly agree that we need to 
address driver fatigue, to the degree that we can. I want to 
assure you that we, as an agency, are committed to addressing 
truck safety in this country, and----
    Senator Lautenberg. Well, you've been committed for some 
time, because the Agency's goal of reducing truck fatalities, 
from the 1999 levels, by 50 percent within 9 years--are we now 
at that level? As it's roughly 8 years later, are you content 
with the fact that you're on track at this point?
    Mr. Hill. No, Mr. Chairman, we are not content with any 
deaths involving large trucks. We are pleased that we are 
seeing a downward trend in the commercial vehicle fatality 
rate. It is at the lowest on record in 30 years, it's at 1.93. 
That's the official rate----
    Senator Lautenberg. Do you want to comfort some of the 
people who are here who have lost some of their family that 
truck fatality rates are down?
    Mr. Hill. There--no, I cannot comfort them with that, but I 
want to assure you, and them, that we are working to address 
it, even though they have lost loved ones.
    Senator Lautenberg. And part of your proposal is that we 
increase the number of work hours that are allowed from 60 to 
77 hours, and what does that do to help truck operations get 
safer?
    Mr. Hill. Mr. Chairman, I think it's really important to 
keep in mind that, when we talk about increasing truck hours, 
we actually increased the amount of rest that truck drivers 
were required to take, from 8 hours off to 10 hours off, then 
we limited the workday to 14. Under the old rules, we could 
check their log books, and they could extend their workday 
almost in perpetuity, because they were allowed to use the 
sleeper berth for a fixed period of time to extend the workday. 
So, we have limited the workday, while increasing the driving 
time 1 hour.
    Now, I would say to you that, in our recent assessment, we 
went out and did a survey to see how widely the 11th hour is 
being used, and about 27 percent of those carriers that we--or 
the drivers that we surveyed are using the 11th hour of 
driving. So, it's not being used to the maximum, as some would 
purport. And the 34-hour restart----
    Senator Lautenberg. Well, do you want it to be used to the 
maximum? Is that what you're proposing?
    Mr. Hill. Well, it's designed to be for operational 
flexibility to help with congestion and----
    Senator Lautenberg. Yes.
    Mr. Hill.--weather issues that come up.
    Senator Lautenberg. We heard from Mr. Byrd that a 2-night 
rest is really essential for the physical well-being and 
alertness of truck drivers. Did I not remember your comment 
correctly, here?
    Mr. Byrd. Yes, Senator, that's our position. And there are 
studies that support that position, also.
    Senator Lautenberg. Ms. Claybrook, when an agency simply 
ignores its safety mandate on an important issue like this, 
what do you think the Congress ought to do? Should we legislate 
the appropriate hours-of-service for truck drivers, and maybe 
mandate all trucks be equipped with Electronic On-Board 
Recorders to ensure compliance with safety?
    Ms. Claybrook. Well, first of all, I think that the agency 
ought to be sanctioned. I think that an agency that ignores the 
courts ought to be sanctioned. And I've actually asked our 
attorneys to consider this. It's in the back of our minds at 
the moment. We haven't done it yet. But I believe that this 
agency should be sanctioned.
    Second, I do believe that the on-board recorder should be 
mandated, because this has been an issue that's been floating 
around and being discussed now for over 20 years. Every 
industrialized nation of the world requires them on their 
trucks, and--just about--not every single one, but just about. 
They're in wide use. They're very available. Companies use them 
for their own recordkeeping for their products, so why not have 
them on their trucks for enforcement of these hours-of-service? 
Without them, as we all know, the drivers keep what's called 
``comic books,'' rather than having accurate records. And with 
Mexican trucks coming into the United States, there's no way 
that you can accurately enforce any U.S. hours-of-service rules 
without on-board recorders.
    The on-board recorder portion of a rule that the agency 
proposed in 2000--has now been--been separated away, and 
there's a separate rulemaking going on, so that it's been 
separated from the hours-of-service rules. And what it covers 
is one-tenth of 1 percent of the trucks in the United States. 
And that rule hasn't been issued in final form yet, but it's in 
the proposal form. That is ludicrous, ridiculous. And so, I 
believe that it would be wonderful if Congress would mandate 
the use of these on-board recorders.
    Thank you so much, Mr. Chairman.
    Senator Lautenberg. Thank you.
    Ms. Claybrook. I also have some information that I could, 
maybe, submit for the record, or you could ask me more about 
the statistics that are being used. For example, I just would 
like to point out that the number of deaths, as opposed to the 
rate, which is notoriously inaccurate--because it's based on 
the vehicle miles traveled, which is notoriously inaccurate--
the number of deaths in 2004 went up by 200, and it was also--
about that same number was in 2005. It went down in 2006, but 
the variability of these numbers are affected by many, many 
other factors besides one regulation. It's affected by the 
weather, conditions--and the hours of driving--nighttime or 
daytime driving, and many other things. So, I don't think 
there's any way you could associate the reduction in the rate 
with----
    Senator Lautenberg. I agree.
    Ms. Claybrook.--or credit it to this rule that the agency 
has issued and has been overruled twice by the courts.
    Senator Lautenberg. With reality.
    Mr. Hill, last week the NTSB recommended that your agency 
require all interstate trucks to use Electronic On-Board 
Recorders to collect and maintain records of driver hours. Now, 
if you don't require this electronic supervision, how many 
additional Federal inspectors might be needed to achieve the 
same level of compliance with hours-of-service rules that we 
would get from using the on-board recorders?
    Mr. Hill. Mr. Chairman, that's a very insightful question. 
It would be a sizable number of employees that would have to be 
added to properly bring about zero violation of the hours-of-
service rules. I believe that the future of hours-of-service 
compliance is EOBRs, and I do agree with them, and we are 
working on a rule right now. And, contrary to what Ms. 
Claybrook said, even though, in our proposed rule, we had 
limited the number, I am looking to expand the population of 
carriers that would be covered by that significantly, and I 
plan to do that.
    Senator Lautenberg. Mr. Byrd, what do you think about the 
use of Electronic On-Board Recorders? Is that a reasonable way 
to monitor the hours-of-service?
    Mr. Byrd. We would think--Senator, thank you for the 
question--we would think that the use of EOBRs would be 
reasonable, but we, as a union, just have concerns about--that 
the data collected not be used, necessarily, to discipline 
drivers. You know, with these--this black-box technology, a lot 
more than just hours-of-service-related data can be collected, 
and our concerns would be more with the data collected that's 
outside the realm of hours-of-service. So, we----
    Senator Lautenberg. That's not unreasonable. But the fact 
is that it seems to be a better way of understanding what's 
happening, to have it done electronically, mechanically, et 
cetera, and to make sure that there's no abuse of the use of 
these files, and that it can be protected if we note that as a 
requirement.
    Is it common in the industry that the mileage be the 
measurement for salary--or compensation? Is that standard 
throughout the industry? Anybody.
    Ms. Claybrook. Yes, it is.
    Mr. Osiecki. In terms of the long-haul industry, Senator, 
mileage pay is the primary method of pay. But the trucking 
industry is far larger than just the long-haul industry; in 
fact, most trucking is regional or local, and most regional or 
local truck drivers are paid--local are paid by--typically, by 
the hour. They're commonly referred to as ``pickup and delivery 
drivers.'' Regional drivers are sometimes paid a combination of 
mileage and hour. In some cases, it's percentage of the load, 
or, some cases, it's just a flat contract. So, there are 
varying methods of pay.
    Senator Lautenberg. Yes.
    Mr. Osiecki. And we're not aware of any empirical data 
indicating that truck driver pay has any relationship to 
safety. Now, there have been suggestions, and we're open to 
looking at that idea.
    Senator Lautenberg. Well, the more home runs you hit, the 
higher your pay; the more miles you drive, I assume, the higher 
your pay; the faster you drive--there are a number of things 
that connect with that. And--I observe, myself--as I travel on 
the New Jersey Turnpike, one of the busier roads in the 
country, and I see driver behavior that is, at times, shocking. 
It's huge rigs going at 75, 80 miles an hour, cutting in 
traffic like a passenger car, and you can't control the erratic 
lawbreaker. I think there are a lot of things that have to be 
done to deal with this problem. We cannot stand by. We're 
looking at the terrible cost of life, at the--hundreds of 
thousands of injuries, did you say, Ms. Claybrook?
    Ms. Claybrook. It's over 100,000 injuries.
    Senator Lautenberg. Over 100,000----
    Ms. Claybrook. And they're terrible injuries, they're not 
just small injuries, but the----
    Senator Lautenberg. Yes.
    Ms. Claybrook. When there's a crash between a car and a 
large truck, the----
    Senator Lautenberg. Yes.
    Ms. Claybrook.--the car occupants are the ones that are 
most seriously damaged. But----
    Senator Lautenberg. Yes.
    Ms. Claybrook. And, even so, trucking is one of the most 
dangerous occupations in the world----
    Senator Lautenberg. Yes.
    Ms. Claybrook.--for just the drivers.
    Senator Lautenberg. And going beyond that--and there is 
nothing that does not have costs--financial cost matched up 
with the tragedy of human life lost, but the fact of the matter 
is that, in addition to the terrible pain and anguish that 
comes from losing an individual, the cost to society--the cost 
of the traffic that's backed up for hours, the cost of having 
rescue people out there on the job--is enormous.
    Ms. Izer, you've been a tireless advocate for improving 
truck safety, and the reason is, unfortunately, very obvious. 
But what do you think is the number-one thing that we can do to 
stop the number of deaths that occur each year by tired 
truckers? What would you propose that we do?
    Ms. Izer. Well, the EOBRs are certainly--you know, they 
need to be mandated. The industry is not going to do them on 
their own. And the driving hours should not be over ten. They 
shouldn't be over ten. And, until drivers are paid for their 
time, I don't know what'll make a difference.
    Senator Lautenberg. I didn't mean to put you on the spot, 
but the hearing, whatever you have to say, matters an awful 
lot. I heard one of your friends yesterday in the meeting in 
which we had people who lost a child, or a mother, sister--say 
that cruise control was being used in one of these accidents. 
Mr. Byrd, does cruise control do something--in your judgment, 
to lull a driver into kind of a less alert condition?
    Mr. Byrd. Well, Senator, there are--we've gotten no reports 
from our drivers that suggest that use of cruise control 
presents a problem on the road.
    Senator Lautenberg. Because there is a human condition 
that, after a number of hours, there is an inclination toward 
sleep or complacency.
    Mr. Hill, your agency was very concerned about having no 
clear hours-of-service standard among the 50 states, and it 
proposed what I consider a flawed rule quickly, rather than a 
good rule. But, after your 2003 proposal, only 22 states 
immediately adopted the rule, and others took years to comply. 
Why don't we just get it right and get it in place before 
asking the states to change our laws to follow along?
    Mr. Hill. Well, Mr. Chairman, as you have indicated, there 
were states who were delayed in that process. Under our current 
setup, 23 of the states in the country adopt our regulations 
automatically by reference, 27 require some kind of legislative 
activity or administrative process to promulgate a rule to make 
it in force in their state. And we believe that we did address 
that issue in 2003, and the courts have found differently, and 
we've been working, since that time, to address those 
procedural differences.
    And the problem with the States is that they have to go 
through the legislative process. And in some States, they don't 
have it every year; they may have it every 2 years. And so, it 
does create an incremental phased-in approach to the rule, 
nationally, which we're trying to avoid.
    Senator Lautenberg. Mr. Osiecki, does this change in the 
hours-of-service rule, produce some economic benefits to the 
industry?
    Mr. Osiecki. The shorter answer is: in some cases, yes; in 
some cases, no. In reality----
    Senator Lautenberg. Tell me why it wouldn't.
    Mr. Osiecki.--there has been a general decrease in 
productivity, overall, under these rules, in the range from the 
very low single-digit percentage--1 or 2 percent--up to as high 
as 9 percent. And in part, that's because of the--or, the 
consecutive or nonextendable nature of the workday, as the 
Administrator commented on earlier; in part, it's--in large 
part, it's due to the sleeper berth provision that Mr. Krupski 
talked about, the inflexibility in the sleeper berth. So, the--
and I mentioned the balance, the fact that these rules are a 
balanced set of rules. In some cases, they increase 
flexibility; in other cases, they took some serious flexibility 
away from past rules. And, because of that, that reduction in 
flexibility, that's reduced productivity overall in the 
industry.
    Now, there has been a minimum gain under the 11, but, as 
the administrator said, not all drivers use that, and certainly 
not all drivers use the 34-hour restart. In fact, when they use 
the restart, typically--and the average restart period is about 
2 days, it's about 49 hours, if my memory serves--so, there--
it's been a give-and-take, but, generally speaking, it's----
    Senator Lautenberg. I think it's more ``take.''
    Mr. Hill's testimony suggested that the benefit would be $2 
billion. Do you challenge that, Mr. Osiecki?
    Mr. Osiecki. Do I challenge that? No, sir.
    Senator Lautenberg. No. So, that sounds like, overall, it 
would be a economic benefit to the industry.
    Now, I'm just trying to understand whether or not dollars 
are gained by the risk of lowered safety rules. And since, to 
me--and--we'll do further study on this--it sure suggests that 
we are increasing the risk, despite the sharp, outrageous claim 
that a human can get better, after 10 hours of work, at doing 
their job than they did in the first 10 hours.
    Mr. Osiecki. If I may, Senator----
    Senator Lautenberg. Sure.
    Mr. Osiecki.--one way to look at the question in a simple 
manner is to look at the overall miles that the industry has 
driven since the new rules were put in place. And the mileage 
has not increased substantially. In fact, the mileage is very 
incrementally increasing, from about 220 billion per year up to 
about 221 billion per year. And the latest estimate is about 
222 billion per year. So--and that's not to mention the 
increase in registration of trucks. So, there are more trucks, 
there's only a slight number of mileage increase, and 
fatalities and injuries are coming down. So, again, I would 
emphasize--you know, you asked us to be honest--the honest data 
indicates that, in some way, the rules are working. And I can't 
sit here and honestly tell you how they're working, but safety 
is improving in the trucking industry, and that's the good 
news, at this point.
    Senator Lautenberg. Mr. Byrd, you noted, that the 
government cherry-picked certain studies to build support for 
its rules. What are the basic principles you feel the agency 
ignored in its rule change?
    Mr. Byrd. Well, I think that the agency selected studies 
that--this recent study, I think, that was referred to, it 
showed some indication that time on task had minimal impact 
on--I guess, on risk of fatigue-related crashes. But there are 
other studies that have had a differing conclusion. And we 
don't think that the agency just really gave equal weight to 
those studies. It seems as though they sought to identify some 
studies that supported their position, and they gave those 
studies heavier weight. That's basically, you know, what we 
found, or what we identified.
    Senator Lautenberg. Ms. Claybrook, do you have a view on 
how these studies were developed?
    Ms. Claybrook. Well, I'll submit some material for the 
record--
    [The information referred to is contained in the Appendix.]
    Ms. Claybrook.--but, just in general, let me just say, 
first of all, I do want to say, again, that the number of 
deaths went up, from 2004 to 2005, by 200, so that they went up 
from 5,036 to 5,235, so--and for 2005, it went up to 5,240. So, 
the number of deaths actually did go up in 2 of the years 
during which this rule was in place. They have come down for 
2006 by----
    Senator Lautenberg. You said that earlier.
    Ms. Claybrook. Yes, right. But--so, that's one thing. But, 
in terms of the studies, first of all, it's very difficult for 
the police, when a crash occurs with a big truck, to determine 
whether or not fatigue was a factor. Often, the driver of the 
car is killed, so, it's very difficult to have any objective 
discussion of what happened in this crash. The only voice 
that's heard is the truck driver. The truck driver is obviously 
wakened by the crash, if they were sleeping or near sleeping, 
so the police can't really take any test to determine whether 
fatigue was, in fact, a factor. So, they're notoriously 
inaccurate, when you just try to collect the data on the 
highway itself.
    The studies that have been done--and there are many of them 
that are in the record from our lawsuit in 2003 and 2005--show 
that the driving capacity of a driver, after 8 hours, goes 
down, and it goes down dramatically between the 10th hour and 
the 11th hour. That research has been done by independent 
parties, it's not industry research. And so, our view is that 
the longer the time on task--after 8 hours, particularly--the 
worse the driving capacity is, because the drivers are so 
tired. And if they take their eye off the road for a 
nanosecond, they can have a crash, because cars move much more 
quickly, they stop much more quickly, they get irritated with 
big trucks, and truckers also, if the driver's not alert, they 
just can't handle heavy traffic or bad weather and other 
things.
    So, we believe that the hours-of-service should be reduced, 
and that the time should be reduced. No person in America works 
14 hours a day and doesn't get paid overtime. These truck 
drivers don't get paid overtime for the hours from 8 to 11, so 
that's why being paid by the mile is such an incentive to them 
to drive as far and as fast as possible, because they're trying 
to make up, in fact, for the lack of that. And then, the hours 
from 11 to 14, that is available to work, as opposed to drive--
they often don't get paid at all. And then, they get only 10 
hours off. No one else in America is treated this way. It's an 
outrageous thing.
    Senator Lautenberg. It does challenge reality----
    Ms. Claybrook. Right.
    Senator Lautenberg.--reality--let me say ``sensibility''--
to post a claim that challenges all the rules of normal health. 
And so, we'll look very----
    Ms. Claybrook. Could I just say, also, Mr. Chairman, with 
regard to the chart that you have--this is it, in graph form--
--
    Senator Lautenberg. Yes.
    Ms. Claybrook.--and this is a paper* written by 
Kenneth Campbell, of the University of Michigan Transportation 
Research Institute, and it completely refutes that chart. What 
it says is that, ``The majority of accidents happen after only 
a few hours.''--They claim that they occur after a few hours of 
driving. This chart, what it does is, it looks at the fact 
that--most people are driving in the first hour; fewer people 
are driving in the second hour; fewer yet are driving in the 
third hour, etc. So--the chart is really a reflection of the 
number of people who are driving--the full 11 hours. And so, it 
does not have anything to do, necessarily, with the capacity of 
the drivers to drive. And so, we'll submit this for the record.
---------------------------------------------------------------------------
    \*\ This paper is available at http://deepblue.lib.umich.edu/
bitstream/2027.42/1319/2/933
57.0001.001.pdf.
---------------------------------------------------------------------------
    Senator Lautenberg. Thank you.
    Mr. Hill, now, have you seriously considered any public 
comment to the--I can't get over the nomenclature here--
``interim final rule'' that was published last week? Was that 
reviewed? And what was the number of inquiries or witnesses or 
contributors you had?
    Mr. Hill. Mr. Chairman, because we announced the interim 
final rule before it was published in the Federal Register, we 
are anticipating comments in the near future, but it was just 
in the Federal Register, published on December the 17. So, I 
think it is probably a little premature for us to have received 
those comments; it will take some time to do that. But I want 
to assure you and the members of this panel that we will give 
thoughtful consideration to the comments that are made, and 
that we will look at the data.
    Senator Lautenberg. But will you stimulate the opportunity 
for more public comment on this rule before it's finally put 
into place?
    Mr. Hill. We are open to listening to anyone who wants to 
comment on this rule.
    Senator Lautenberg. Will you advertise that you'd like----
    Mr. Hill. Sure, we can do that. When we put out that 
Federal Register already.
    Senator Lautenberg. Well, we'd appreciate it if you'd----
    Mr. Hill. And one thing that I would say, Mr. Chairman, is 
that since the publication of the 2005 rule, we now have 
empirical data that shows the crashes and the deaths that are 
involved, that we did not have when the rule was published in 
2005. That's an important part of this interim final rule, 
because if you'll look at the numbers of crashes involving 
fatigue, fatal crashes from the Fatality Accident Reporting 
System, in 2004, there were 69; in 2005, there were 82; and in 
2006, there were 69.
    Senator Lautenberg. These are verifiable fatigue----
    Mr. Hill. They come from NHTSA, yes. It's the database that 
we get from NHTSA.
    Then, if you look at when the fatalities occurred in the 
hour of driving, that is coming from the truck-involved 
fatality accidents analysis. It is done by the University of 
Michigan. And they looked at the fatalities, and they found 
that in 2004, there were zero fatal crashes involving the 11th 
hour of driving, and there was one fatal crash in the 11th hour 
of driving in 2005. Now, that is data that I must look at. And 
I would encourage Ms. Claybrook, and any others who have data, 
to bring it to us and look at it, because, as you know, sir, I 
am required to look at safety, and I do that. Twenty-nine years 
of law enforcement, that's what I believe in: safety. But I am 
also required by this Congress to look at cost benefits. And 
cost benefits are an incredibly important part of the process 
that I have to give an account to this Committee, as well.
    Ms. Claybrook. Mr. Chairman, could I just comment that this 
has to do with exposure data. In other words, as I said before, 
this University of Michigan work, that the majority do occur in 
the first hour or second hour or third hour, because there are 
more drivers on the road in their first hour of driving or 
their second hour of driving. And so, it's all a matter of 
exposure. But when you break it down, then it does not prove 
the point that Mr. Hill was making.
    Senator Lautenberg. Yes.
    Ms. Claybrook. And I would also say that, on the issue of 
the public comment, the reason that we have gone to court today 
to challenge the interim final rule, is because they put forth 
an interim final rule that is identical as to the hours of 
driving--to the 2003 and 2005 rules that were overruled by the 
court. It's been 5 months since the court overruled the last 
one, the 2005 rule was overruled in July of 2007. So, the 
agency's had 5 months to figure out what to do to comply with 
the court, and, instead of putting out a proposed rule right 
away that had a time for public comment and then making a 
decision, they waited until December, 5 months later, and then 
just issued it as a mandate. There's been no public comment on 
this mandate, and it's going to be in effect until they finish 
the final rulemaking.
    Senator Lautenberg. I don't want to create a debate here, 
but I feel it's fair to give Mr. Hill a chance to respond to 
Ms. Claybrook's comments.
    Mr. Hill. Thank you, Mr. Chairman. I appreciate your 
openness to this discussion.
    I wish that I were an attorney. I wish I could argue as 
eloquently as Counsel Claybrook has just argued. But I am not 
an attorney, and it is inappropriate for me to get into the 
litigation aspects of this rule.
    There will be litigation. And if we write the rule 
differently, somebody else will litigate us on it; I'm 
absolutely convinced. This rule is contentious. Everywhere you 
go in any direction, you're going to poke at somebody and 
you're going to take some kind of an area of their operation 
that they don't think that they ought to have governed. And so, 
it's going to be litigated.
    And I just would say to you, sir, that we did not sit idly 
by for 7 months, or 5 months, waiting for this to be done. We 
have been working tirelessly to address this. We have a 
clearance process to make sure that things get done. And it has 
been an ongoing----
    Senator Lautenberg. Well, obviously, this is going to be 
studied more closely in a court of law.
    And so, I want to ask Mr. Krupski a question, here. In your 
comments, you highlight the economic reasons that you think 
push drivers to drive when they're too tired. Might this be 
fixed if truckers were required to be paid on an hourly basis 
for both driving and nondriving time?
    Mr. Krupski. An hourly basis for driving/nondriving, maybe 
a combination of--maybe mileage while they're driving and 
hourly pay while they're unloading their truck or doing other 
tasks other than driving. So, you--there could be a mix in 
there that you--for mileage, you get paid this way. You won't 
have the incentive to try to cheat a little bit on your logbook 
because you were unloading your truck longer and you're 
fatigued. You'll be compensated for those hours, and then you 
don't have to drive as much, because you could make----
    Senator Lautenberg. Trying to make up for it by getting 
those extra miles.
    Mr. Krupski. Exactly.
    Senator Lautenberg. Yes.
    Senator Pryor, our colleague, very interested in trucking, 
and he asked that I ask you some questions. How do you feel 
about a speed limit for trucks--fixed? He suggests 68 miles an 
hour. But, how do each of you feel about a fixed speed limit 
for truck drivers? I would tell you, I would welcome it, based 
on what I see--in my time on the highway.
    Ms. Claybrook. If all the vehicles on a road were fixed at 
the same speed, it makes the flow of traffic go much easier. 
So, if you want to start fixing limits for trucks at 68 or 65, 
fix it for cars at 68 or 65, so there's not the congestion of 
cars going faster, when you're trying to pass another truck 
that's going up the hill 50 miles an hour.
    Senator Lautenberg. Mr. Byrd, what do you think about that?
    Mr. Byrd. I think we would share in that opinion. We 
wouldn't have any problems with a fixed speed limit, and we 
think that standardizing it would eliminate that problem with 
the congestion.
    Senator Lautenberg. Can we control that with a Governor in 
the truck that accounts for hills and things of that nature?
    Mr. Krupski. Well, you can. The computers--you just--you 
could--the existing technology out there in trucks today, you 
could control your top speed of your truck. Absolutely, it's 
not a problem.
    Senator Lautenberg. Yes. Mr. Osiecki?
    Mr. Osiecki. Yes, Senator. And I fully agree with that 
remark. Every large truck that's manufactured today has what's 
commonly referred to as an electronic control module in the 
engine. In fact, cars have them, as well. And that's the 
electronic setting that I've referred to in my prepared 
remarks. That setting can be set, for lack of a better word, at 
any number, and the number that we----
    Senator Lautenberg. Conditions.
    Mr. Osiecki.--suggest is 68. Yes. And the speed 
differential issue is a real issue, and that's an enforcement--
--
    Senator Lautenberg. Yes.
    Mr. Osiecki.--issue, as well.
    Senator Lautenberg. And Senator Pryor asked the question 
that we've reviewed about on-board recorders to monitor the 
speed, drivers hours, and that looks like it's a no-brainer, to 
use the language.
    And I thank each one of you----
    Ms. Claybrook. Mr. Chairman, could I just say that----
    Senator Lautenberg. I hope not.
    [Laughter.]
    Senator Lautenberg. Go ahead.
    Ms. Claybrook.--just briefly, that we do favor trucks 
having a speed limit, but if you don't have the Electronic On-
Board Recorders, the difficulty for the police in enforcing 
that law is enormous. And the proposal that Mr. Hill has 
issued, as I said, covers only one-tenth of 1 percent of the 
trucks with requirement for on-board recorders, even if you 
increase that to 10 percent of the trucks, it still is not 
going to do the job. It----
    Senator Lautenberg. No, but--except----
    Ms. Claybrook. It needs to be every truck.
    Senator Lautenberg.--at some point, you have to say that 
that would certainly be a step forward, and we can build on 
that. And----
    Ms. Claybrook. Well, it's a step forward, but--it doesn't 
mean that you can really have enforcement.
    Senator Lautenberg. Thank you all for the Claybrook 
hearing.
    Ms. Claybrook. Thank you.
    [Laughter.]
    Senator Lautenberg. Thanks.
    Now, Ms. Claybrook has a lot of experience and a lot of 
knowledge, and we respect it. And, all of you, thank you, for 
your excellent participation. There will be agreement with some 
parts of it, and disagreement with lots of it.
    And I want to enter a statement by Senator Snowe, from 
Maine, that she has for the record.
    [The prepared statement of Senator Snowe follows:]

  Prepared Statement of Hon. Olympia J. Snowe, U.S. Senator from Maine

    Thank you, Mr. Chairman, for holding this hearing.
    A resolution to the Hours-of-Service issue has lingered for far too 
long, and it is my hope that we can start moving forward to finally 
forge a correct and lasting balance with regard to the latest 
rulemaking of the Federal Motor Carrier Safety Administration (FMCSA).
    I have long advocated for a comprehensive safety regime for the 
commercial truck operators across the country. Tragically, it was in my 
home State of Maine in the mid-1990s that we lost four innocent 
teenagers to a truck driver who had fallen asleep at the wheel. Since 
that horrible accident, I have urged the implementation of new, more 
practical Hours-of-Service regulations for truck operators, often 
joined by many of my colleagues here in the Senate. In fact, I have 
been pressing for more responsible safety measures on our roadways 
since before the creation of the Federal Motor Carrier Safety 
Administration. When that organization was created in 2000, I was 
eagerly looking forward to the expeditious development of a new safety 
regime that treated all elements of the trucking industry fairly, and 
protected the passenger vehicles that shared the road with them.
    However, I must confess my tremendous disappointment. These 
``revised'' Hours-of-Service regulations have struggled through several 
iterations of the same proposal, while failing to achieve the goals 
expressed upon their introduction, and have been unable to withstand 
court challenges and Congressional mandates. In fact, it seems without 
question that the most recent Hours of Service rule will face a court 
decision much like its predecessors, and the forecast is not positive. 
Each one of the past two rulemakings was voided by the U.S. Court of 
Appeals. Despite the legal hurdles imposed upon them, the FMCSA boldly 
came to us 2 years ago requesting the Senate codify the flawed Hours-
of-Service rule during the last highway bill. And now, rather than 
proposing new, innovative ideas to ensure truck safety, the so-called 
`new' rulemaking is simply a restatement of the previous efforts.
    I am eager to hear from our distinguished panelists to discern 
whether or not they envision this rulemaking surviving any sort of 
legal challenge, why they have not taken into account or commented on 
idling time and ``detention time,'' when an operator is forced to 
remain in his vehicle, wasting precious and costly fuel--and why they 
have failed to require Electronic On-Board Recorders, or EBORs. I 
contend that the uncertainty surrounding the survivability of the 
newest version of Hours of Service, which will form the cornerstone of 
our Federal trucking safety regime, leaves a gaping hole in our ability 
to provide other tools that would contribute to more secure roads.
    Lastly, I would like to take the time to recognize a very esteemed 
fellow Mainer--Ms. Daphne Izer, who is here representing the group she 
founded, Parents Against Tired Truckers. It was Mrs. Izer and her 
family who were forced to cope with the terrible tragedy I mentioned at 
the beginning of my statement, and due to her tremendous resolve and 
strength, she has formed an association that has provided both solace 
and a voice for families who have faced similar tragedies. I applaud 
her efforts, and thank her for being here.
    I look forward to the excellent panelists and hope this hearing is 
the start of a dialogue that will lead to safer roadways for all 
Americans.

    Senator Lautenberg. And we're going to keep this record 
open. So, if we can, we'll submit written questions to you for 
further elucidation.
    And I want to say, to the families that are here, the 
people who are part of P.A.T.T., would you mind just standing 
for just a moment? These are members of a family who lost 
people they dearly love. Mr. Martin lost five members of his 
family in a truck-related crash. And if we can keep in mind 
your faces and the faces of those that you so carefully hold 
there, we all have to commit to doing a better job here.
    Thank you all for your work.
    This hearing is concluded.
    [Whereupon, at 11:30 a.m., the hearing was adjourned.]

                            A P P E N D I X

     Prepared Statement of the National Private Truck Council, Inc.
    Mr. Chairman and Members of the Subcommittee:

    The National Private Truck Council, Inc. (``NPTC'') is a trade 
association representing the interests of over 400 companies that 
operate private truck fleets in furtherance of non-transportation 
primary businesses. NPTC members include both Fortune 500 companies and 
small local distribution companies. Our members are heavily represented 
in the food, retail, chemical and manufacturing industries, but 
encompass a broad cross-section of American business interests.
    NPTC members provide both long-haul trucking and local distribution 
service, depending on the type of industry and distribution 
requirements. They operate both tractor-trailers and a variety of 
straight trucks in meeting the transportation needs of their companies 
and their customers. All NPTC member companies and their drivers are 
subject to the driver hours of service regulations in 49 CFR Part 395 
that are the subject of this hearing and the related Federal Motor 
Carrier Safety Administration (``FMCSA'') rulemaking. 72 Federal 
Register 71247 (December 17, 2007).
    In short, NPTC supports the FMCSA's Interim Final Rule that 
reinstates the 11-hour daily driving limit and the 34-hour weekly reset 
provisions to the driver hours of service rules in 49 CFR Part 395. 
These two provisions have been accepted by both trucking management and 
drivers alike. Moreover, combined with the other changes made to the 
hours of service regulations in the FMCSA's 2005 rulemaking, they have 
helped to improve the safety record of the motor carrier industry since 
they were imposed by the FMCSA.
    NPTC seeks to maintain continuity and uniformity of HOS rules in 
the workplace by retaining the current rules as incorporated in the 
IFR. This will allow carrier management, drivers and enforcement 
officials to operate in an environment of certainty and understanding 
rather than doubt and frequent fluctuations in the rules. This 
continuity itself will assist carriers and drivers in operating in a 
safe manner going forward.
Industry Safety Record
    The 11-hour driving rule and 34-hour reset provisions were not 
implemented by themselves. In April 2003, FMCSA published a final rule 
that changed the requirements for drivers of property-carrying 
commercial motor vehicles. 68 Federal Register 22456 (April 28, 2003). 
Under this rule, driving was limited to 11 hours within a 14-hour (down 
from 15 hours), non-extendable window after coming on duty, following 
10 consecutive hours off-duty (an increase from the prior requirement 
of 8 hours). Moreover, drivers were no longer able to extend the daily 
on-duty period beyond the 14-hour daily limit by taking off-duty breaks 
during the duty period. Thus, a driver knew that the daily on-duty 
period would not exceed a standard of 14 hours, regardless of whether 
the driver took breaks throughout the day, and the driver was required 
to have an additional two consecutive hours off-duty each day before 
beginning another duty period. The increase in the daily driving limit 
from 10 to 11 hours was more than offset by the reduction in the daily 
on duty limit from 15 to 14 hours, and the prohibition on extending the 
daily on duty limit beyond 14 hours.
    Although the 60- and 70-hour weekly on-duty rules were unchanged, 
drivers could restart the calculation during any weekly time period 
after they took 34 consecutive hours off-duty. This was consistent with 
the FMCSA's analysis of the existing fatigue research that concluded 
that two consecutive ``nights'' of rests is sufficiently restorative to 
offset the effects of cumulative fatigue from prior activities. The 34-
consecutive hour period acts as a surrogate for two consecutive nights 
of rest in this requirement.
    These combined changes in the hours of service regulations have 
been in effect since January 4, 2004. On August 25, 2005 the HOS rules 
were further amended by requiring drivers using sleeper berths to spend 
at least 8 but less than 10 consecutive hours in the sleeper berth and 
take an additional 2 hours either off-duty or in the sleeper berth in 
order to begin a new duty period. 70 Federal Register 49978 (August 25, 
2005).
    Despite the claims of Public Citizen, these regulatory changes have 
had significantly diminished the safety performance of motor carriers 
since they went into effect in 2004. Looking at fatal crashes involving 
large trucks,\1\ total fatalities from such crashes, and fatal crashes 
per 100 million miles traveled, the data all shows stable or downward 
trends from 2003 (the last year under the prior rules) through 2006 
(the last year for which data is available).
---------------------------------------------------------------------------
    \1\ Source: National Highway Traffic Safety Administration, Fatal 
Analysis Reporting System.

------------------------------------------------------------------------
              Fatal Crashes                          Fatalities Per  100
  Year      Involving  Heavy      Total Fatalities     Million  Vehicle
                 Trucks                                Miles  Traveled
------------------------------------------------------------------------
  2003                 4,335                 5,036                 2.31
  2004                 4,478                 5,235                 2.37
  2005                 4,533                 5,212                 2.34
  2006                 4,321                 4,995                  xxx
------------------------------------------------------------------------

    The number of fatal crashes involving heavy trucks and the total 
fatalities resulting therefrom actually declined in 2006, despite an 
expected increase in the number of miles traveled by commercial motor 
vehicles. Under the new HOS rules, there are fewer fatal accidents 
involving large trucks than before, and fewer persons are dying in such 
accidents. Those data do not support the claims by purported safety 
groups that the 2003 changes to the HOS regulations have harmed public 
safety.
    Furthermore, U.S. Department of Transportation data shows that 
``fatigue-related large truck crashes as a percentage of total large 
truck crashes varied little [from 2003 to 2006], decreasing from 1.7 
percent in 2003 to 1.5 percent in 2004, increasing to 1.8 percent in 
2005 and decreasing to 1.6 percent in 2006.'' See Response of Federal 
Motor Carrier Safety Administration in Support of Motion to Stay the 
Mandate, Owner-Operators Independent Drivers Assn., Inc. v. FMCSA, D.C. 
Cir. No. 06-1035, filed September 21, 2007, at 5. These conclusions are 
supported by the experience of NPTC member companies. On March 10, 
2005, NPTC filed comments with the FMCSA on the rulemaking proposal to 
adopt the current HOS rules as a new rule after the court of appeals 
had invalidated the rules in July 2004. Docket No. FMCSA-2004-19608; 
formerly FMCSA-1997-2350. NPTC's comments supported the continuation of 
the ``current'' hours of service rules as originally set out in the 
final rule of April 28, 2003, 68 Federal Register 22456 and amended at 
68 Federal Register 56208 (September 30, 2003).
    Although NPTC did not have any scientific studies or data to prove 
that the current hours of service rules have improved, or at least have 
not harmed, driver health and motor carrier safety performance, NPTC 
offered self-reported data from 63 private fleets comparing their 
accident experience in 2003, the last year under the old rules, with 
2004, the first year under the new rules.
    The carriers collectively reported that they incurred 794 DOT-
recordable accidents \2\ while operating 1,613,465,000 miles in 2003, 
for a rate of .4921 accidents per million vehicle miles. In 2004 those 
same carriers reported incurring 673 DOT-recordable accidents while 
operating 1,584,031,000 miles, for a rate of .4248 accidents per 
million vehicle miles. These 63 NPTC companies experienced 15.2 percent 
fewer recordable accidents in the first year under the new HOS rules 
and a 13.7 percent reduction in accident frequency in that same year.
---------------------------------------------------------------------------
    \2\ A ``DOT-recordable accident'' is defined in 49 CFR  390.5 as 
an occurrence involving a commercial motor vehicle on a highway in 
interstate or intrastate commerce in which there is a fatality, bodily 
injury resulting in immediate medical treatment away from the scene, or 
disabling damage to one or more vehicles requiring towing away from the 
scene.
---------------------------------------------------------------------------
    Furthermore, this accident experience for private fleets is some 45 
percent better than the .763 average recordable crashes per million 
miles for large trucks as reported by the FMCSA for the year 2001, the 
last year for which data are available. See FY 2001 Compliance Review 
Crash Frequency Report, MCMIS, March 25, 2002.
    NPTC does not argue that this 13.7 percent reduction in accident 
frequency from 2003 to 2004 was caused by the change to the new hours 
of service rules. But the comments to the FMCSA docket noted that the 
change in the hours of service requirements was the only variable that 
changed for the entire motor carrier industry from 2003 to 2004. And 
this significant reduction in accident rate in the first year under the 
new hours of service rules substantially undermines the core arguments 
made by the petitioners challenging the new rules in Federal court that 
the new rules would have the opposite effect and reduce the level of 
safety among motor carrier operations.
    The court petitioners view the 11-hour daily driving limit and the 
34-hour reset views in a vacuum, concluding only that these changes 
allow drivers to operate a commercial motor vehicle for more time on a 
daily or weekly basis. This view ignores the other regulatory changes 
made by FMCSA and the experience of carriers in operating under the 
combined new rules. For example, NPTC members report that drivers 
receive more and better quality rest with the requirement for 10 
consecutive hours off-duty instead of 8, and therefore the drivers 
generally support that change. The 10-hour rule allows the drivers to 
return to home after a shift and take care of personal and family 
matters and still receive up to 8 hours of rest before reporting to 
work for the next trip.

Need for Continuity
    NPTC seeks the ongoing application of the current HOS rules to 
continue the improvements in carrier safety records and to avoid any 
disruptions in service and safety caused by frequent and unpredictable 
changes to the HOS requirements. Each time the HOS rules change, 
carriers must retrain their drivers, dispatchers and managers, 
reconfigure their pickup and delivery schedules, and re-program their 
electronic on-board recording devices that account for driving time (in 
the form of electronic log books) and other operational data. These 
changes take time and require significant financial expenditures.
    In addition, enforcement officials must also retrain their staffs 
each time there is a change in the regulations. The Commercial Vehicle 
Safety Alliance, the association of state, provincial, and Federal 
officials responsible for the administration and enforcement of motor 
carrier safety laws in the United States, Canada and Mexico, has 
suggested that a minimum of 6 to 8 months is necessary to retrain 
enforcement officers in changes to the HOS regulations. See Motion of 
CVSA for Leave to Participate as Amicus Curiae in Support of a Stay of 
the Court's Mandate, Public Citizen v. FMCSA, D.C. Cir. No. 06-1078, 
filed September 17, 2007, at 9. Thus, CVSA asked the court of appeals 
to stay the effect of its July 24, 2007 decision in order to avoid the 
disruption and uncertainty that would result from amendments to the HOS 
requirements.
    Because the 11-hour daily driving limit and the 34-hour reset are 
well-received by drivers and motor carriers, and their implementation 
(along with other revisions to the HOS rules) have not harmed motor 
carrier safety, and the alternative of requiring the FMCSA to start 
over with yet another rulemaking on hours of service would be 
disruptive and unnecessary to promote safety, NPTC asks that this 
subcommittee keep apprised of the current court of appeals challenge 
and intervene if necessary to restore the existing HOS rules as a 
matter of statute. Should the court of appeals once again vacate the 
11-hour daily driving limit and/or the 34-hour reset provision, or 
remand the rulemaking to FMCSA to reissue or revise the rulemaking, we 
ask that Congress step in to stop this procedural back and forth and 
allow the FMCSA to regulate the industry in an appropriate manner. This 
would preserve the benefits of the rules as presently implemented and 
preclude any further litigation challenges to such rules.
            Respectfully submitted,
                                         Dr. Gary F. Petty,
                                                 President and CEO,
                                   National Private Truck Council, Inc.
                                 ______
                                 
          Prepared Statement of the Canadian Trucking Alliance
Introduction
    The Canadian Trucking Alliance is pleased to submit to the 
Subcommittee these comments on the regulation of truck driver hours of 
service in the United States. The hours of service rule promulgated by 
the Federal Motor Carrier Safety Administration has a significant 
impact on the Canadian trucking industry. Canada is the United States' 
largest trading partner and over 85 percent of the goods traded between 
the two countries are transported by truck. In 2006, there were 12.9 
million truck crossings, southbound and northbound, at the Canada-U.S. 
border. That means 6.45 million trucks--both Canadian and U.S.-based 
vehicles--entered the United States from Canada. Transport Canada (the 
Canadian counterpart of the U.S. Department of Transportation) 
estimates that approximately two-thirds of the trucks crossing the 
Canada-U.S. border are Canadian-based vehicles. In other words, there 
are about 4.3 million entries into the United States each year by 
Canadian trucks and drivers. Many of these vehicles and drivers, of 
course, make repeat crossings and a conservative estimate is that 
cross-border traffic involves about 70,000 Canadian commercial vehicle 
drivers. All these drivers are subject to the U.S. Federal Motor 
Carrier Safety Regulations, including the hours of service rule, when 
they are operating in the United States.
About the Canadian Trucking Alliance
    The Canadian Trucking Alliance (CTA) is a nonprofit federation of 
Canada's seven provincial and regional trucking associations. With its 
head office in Ottawa and provincial association offices from coast to 
coast, CTA represents a broad cross-section of the Canadian trucking 
industry--some 4,500 motor carriers, owner-operators and industry 
suppliers. CTA is the voice of the Canadian trucking industry on both 
domestic and international legislative, regulatory and policy issues.

CTA Supports the Interim Final Rule Issued by FMCSA
    In October 2007, CTA petitioned FMCSA in support of a petition 
filed earlier by the American Trucking Associations (ATA), requesting 
that the agency issue an interim final rule to keep its current hours 
of service regulation in place. We agreed with ATA that the rule now in 
force represents a road safety improvement over its predecessor. In 
fact, FMCSA's own safety surveys and studies demonstrate favourable 
road safety results since the current rule was adopted--a point 
emphasized by the Administrator in his statement to the Subcommittee on 
December 19, 2007. The U.S. Circuit Court's decision of July 2007 to 
vacate a portion of the HOS rule found no substantive defect in the 
rule, only a failure of the agency to comply with certain procedures 
during the rulemaking process.
    The Canadian cross-border trucking industry was concerned over the 
potential business turmoil resulting from the costs that carriers and 
drivers would have incurred if parts of the current rule had been 
vacated and replaced, even on a temporary basis, by the old rule or 
some other interim rule. In the event of a rule change, drivers and 
carrier operating personnel would need to be retrained, systems would 
need to be overhauled and many freight contracts would need to be 
renegotiated. CTA's safety and compliance concerns were heightened by 
the fact that the Canadian industry would have had no way of 
determining which hours of service rule was in effect in the individual 
U.S. states in which its drivers and vehicles operate.

Daily Driving Limits in Canada and the U.S.
    Two major differences between the U.S. and Canadian hours of 
service rules are that Canada permits a commercial vehicle operator 13 
hours driving time during a 14-hour maximum on-duty period and has a 
36-hour restart rule, in comparison with an 11-hour driving limit and 
34-hour restart in the U.S.\1\ The 13-hour driving time rule has been 
in effect in Canada for several decades and the Canadian experience 
with these rules has been positive. We know of no evidence that the 
rate of fatigue-related accidents involving commercial motor vehicles 
is any higher in Canada than in the United States notwithstanding the 
longer driving period permitted in Canada.
---------------------------------------------------------------------------
    \1\ The regulations now in place in Canada require a minimum of 10 
hours of off-duty time per day, as is also the case in the United 
States.
---------------------------------------------------------------------------
    In revising the Canadian hours of service rules in November 2005, 
Transport Canada stated in its Regulatory Impact Analysis \2\ that:
---------------------------------------------------------------------------
    \2\ Canada Gazette Part II, November 16, 2005.

        ``The main objective of the new Regulations is to reduce the 
        risk of fatigue-related commercial vehicle collisions by 
        providing drivers with the opportunity to obtain additional 
---------------------------------------------------------------------------
        rest . . .

        Under the new Regulations, the maximum driving time, per shift, 
        will be maintained at 13 hours . . .''
The Scientific View of Driving Shift Length
    Researchers and safety regulators around the world have long 
debated the degree to which shift length contributes to transport 
operator fatigue. While some studies over the years have reported 
degradation of operator performance toward the end of a work shift, 
there is ample evidence that fatigue onset can also occur very early in 
a shift--even after one or 2 hours on duty. The prevailing view is that 
the so called time-on-task effect as a fatigue contributor cannot be 
considered in isolation from other key ``sleepiness'' factors, all of 
which, to one degree or another, are a function of the quantity, 
quality and timing of restorative rest obtained by the operator.
    The Commercial Vehicle Driver Fatigue and Alertness Study (DFAS), 
published in November 1996 by the U.S. Department of Transportation and 
Transport Canada, found that ``there was no difference in the amount of 
drowsiness observed in the video data during comparable . . . trip 
segments of the 10-hour and 13-hour trips.'' \3\ The study also 
reported ``evidence of significant driver fatigue within the current 
Federal 10-hour driving limitation after 8 hours off-duty. While 
sleeping behavior itself cannot be regulated, a key determinant of 
alertness is whether the driver obtains adequate amounts of sleep 
during off-duty time.'' \4\
---------------------------------------------------------------------------
    \3\ DFAS, page ES-14.
    \4\ Ibid, page 2-64.
---------------------------------------------------------------------------
    In February 2001, the National Road Transport Commission of 
Australia, the Australian Transport Safety Bureau and the New Zealand 
Land Transport Safety Authority jointly commissioned a report by an 
expert group of sleep scientists, who had been asked to consider 
regulatory approaches to the management of truck driver fatigue. The 
expert group expressed the now widely held view that opportunity for 
sleep should be a key determinant of maximum allowable working time. 
The scientists made the following comment in their report:

        ``. . . it is hard to set a definitive safe limit for the 
        acceptable duration of work in terms of absolute safety 
        standards. However, it is possible to consider the options for 
        what constitutes an upper bound for the duration of work, 
        beyond which it is normally unreasonable to work. That upper 
        bound is determined by what constitutes an acceptable time off 
        to achieve satisfactory sleep and all the other necessities of 
        life including social activities. That upper bound will lie in 
        the period between 12 and 14 hours of work.'' \5\
---------------------------------------------------------------------------
    \5\ Fatigue Expert Group: Options for Regulatory Approach to 
Fatigue in Drivers of Heavy Vehicles in Australia and New Zealand , 
NRTC, ATSB & NZLSTA, February 2001, page 36.

    When the commercial driver hours of service rules in both Canada 
and the United States were under review following the publication of 
the DFAS report, sleep scientists and regulators on both sides of the 
border were in overall agreement that one of the cornerstones of a 
modernized regulatory regime should be to provide increased 
opportunities for sleep. The revised regulations--the United States in 
2003 and Canada in 2007--raised the minimum daily off-duty time by 25 
percent, from 8 to 10 hours. While as mentioned in the DFAS report, it 
is not possible to mandate when and for how long a driver must sleep, 
the regulations in both countries now give drivers sufficient off-duty 
time to obtain what scientific experts consider to be an adequate 
``anchor'' sleep of about 8 hours per day. In Canada, where it is 
permissible to split the 10 hour off-duty requirement, as long as one 
of the periods is at least 8 consecutive hours, drivers are afforded 
the additional opportunity to take rest breaks and naps during the 
shift without losing productive time.

Canadian and U.S. Restart Provisions
    Both the U.S. and Canadian hours of service rules include 
provisions allowing for a restart in calculating a commercial driver's 
weekly cumulative driving time. The restart provisions--34 hours in the 
U.S. and 36 hours in Canada--were included in each country's new 
regulations for two main purposes:

   to reduce undue amounts of off-duty time a driver must spend 
        away from home at the end of a cycle, and

   to provide drivers with sufficient off-duty time during the 
        restart period to allow two principal sleep periods of at least 
        8 hours, which are generally considered sufficient to enable 
        the driver to recover from cumulative fatigue.

    Since the Canadian and U.S. restart provisions have been put in 
place, they have been widely used by Canadian drivers operating on both 
sides of the border. A survey conducted by CTA in September 2007 
reported that the carriers' safety experience with the restart 
provisions has been positive.

Concluding Comment
    For the foregoing reasons, CTA supports the issuance of an interim 
final rule which will allow the current 11-hour driving limit and the 
34-hour restart provision to remain in place pending a public comment 
period and publication of a final rule by FMCSA.
                                 ______
                                 
         Supplemental Information Submitted by Joan Claybrook, 
                       President, Public Citizen

Petition for Reconsideration Filed with the Federal Motor Carrier 
        Safety Administration Regarding the Order Issued on Hours of 
        Service of Drivers; Final Rule 249 CFR Parts 385, 390, and 395 
        70 Federal Register 49977 et seq., August 25, 2005
    This is a petition for reconsideration of the final rule 
promulgated by the Federal Motor Carrier Safety Administration (FMCSA) 
establishing the hours of service (HOS) for drivers of commercial motor 
vehicles (CMVs), published at 70 FR 49977 et seq. (Aug. 25, 2005) 
(``2005 final rule''). This petition is filed by Advocates for Highway 
and Auto Safety, Citizens for Reliable and Safe Highways (CRASH), the 
International Brotherhood of Teamsters (IBT), Parents Against Tired 
Truckers (P.A.T.T.), Public Citizen and Trauma Foundation, pursuant to 
49 C.F.R. Part 389.35 (Oct. 1, 2004). Petitioners delineate below the 
numerous reasons why major aspects of the 2005 final rule are not 
practicable, are unreasonable, and are not in the public interest.

I. Introduction
    The rulemaking proceeding to adopt a revised hours of service (HOS) 
regulation suffers from a number of major shortcomings in terms of the 
approach taken by the FMCSA to address serious health and safety 
concerns for truck drivers and the public. In establishing the FMCSA as 
a safety agency for motor carrier operations,\1\ Congress made it the 
fundamental goal of this new agency that it shall ``consider the 
assignment and maintenance of safety as the highest priority, 
recognizing the clear intent, encouragement, and dedication of Congress 
to the furtherance of the highest degree of safety in motor carrier 
transportation.'' 49 U.S.C.  113(b) (2004) (emphasis added). Safety is 
the paramount mission of the FMCSA. While the agency has inherited pre-
existing requirements that obligate the agency also to consider the 
costs and benefits that its regulations may impose on the trucking 
industry and the public in the course of rulemaking, the touchstone of 
the agency mission remains and must be public safety and the safety of 
the truck drivers it regulates.
---------------------------------------------------------------------------
    \1\ Motor Carrier Safety Improvement Act of 1999, Pub. L. 106-159, 
Title I,  106 (Dec. 9, 1999).
---------------------------------------------------------------------------
    Nevertheless, throughout the preamble of the 2005 final rule, the 
agency repeatedly cites its general obligation to pursue benefit/cost 
analysis while submerging its specific mission to ensure public safety 
to second rank importance. Time and again the preamble to 2005 final 
rule cites the economic efficiencies that benefit the trucking industry 
as outweighing the safety costs that will be borne by the public. In 
every instance where safety and economic burdens are balanced, the 
agency has opted to choose economic productivity of the trucking 
industry instead of determining the issue in favor of public safety. 
The determinations made in the 2005 final rule are openly contrary to 
the agency's mission and highest priority, and should be reconsidered.
    In addition, the FMCSA's approach to its evaluation of the relevant 
data and research amounts to a misuse of the scientific evidence in the 
administrative record. Admittedly, the agency has an onerous task of 
reviewing and assessing the validity of numerous research reports and 
studies from various fields of sleep science, medicine, and 
environmental health, as well as many types of other data. While no 
small task, the agency must accomplish this obligation fairly and 
evenhandedly. It is evident, however, that the only studies that the 
agency finds to be accurate and credible are those that reinforce the 
agency's previous and preexisting view, embodied in the existing HOS 
regulation adopted April 28, 2003 (68 FR 22456) (``2003 final 
rule'').\2\ Studies that disagree with the agency determinations in the 
2003 final rule are faulted, distinguished, and otherwise found wanting 
in the 2005 final rule. Yet, studies with similar faults or 
shortcomings that support the agency's previous position are 
nevertheless found to be credible and are relied on by the agency to 
justify the 2005 final rule. The agency has carefully cherry-picked the 
relevant research in order to find support. The body of scientific and 
medical research that does not support the agency determinations in 
this rule is substantial and cannot readily be dismissed. The agency 
should reconsider its selective use of the applicable studies and place 
more weight on the need for prudence and caution in regard to public 
safety. Even where the agency states that the research evidence is 
unclear, not conclusive, or divided, the agency discards any 
countervailing science and research findings and unerringly determines 
that its prior policy choices in the 2003 final rule should be 
sustained. In light of the massive amount of evidence that does not 
support the agency's conclusions, and given the agency's mission to 
uphold safety as its highest priority, the results of FMCSA's review of 
the scientific evidence in the record is unfair and heavy-handed, and 
its final rule consistently places a thumb on the side of the scale for 
industry productivity in order to outweigh any safety benefits or-to 
dismiss adverse safety impacts.
---------------------------------------------------------------------------
    \2\ Except for regulatory modifications to the provisions governing 
short-haul drivers and sleeper berth use, the 2005 final rule is 
identical to the 2003 final rule.
---------------------------------------------------------------------------
    This petition for reconsideration demonstrates that the FMCSA has 
not justified the main features of the HOS regulation contained in the 
2005 final rule in several major respects, including the failure to 
adequately explain and justify: the dangerous consequences of the 
dramatic increases in potential exposure to adverse health impacts 
commensurate with the much longer working and driving hours over 7 and 
8 consecutive calendar days; the addition of an 11th hour of 
consecutive driving time in each shift; the adverse safety impacts of 
the much longer cumulative working and driving hours; adoption of only 
a 34-hour off-duty restart period; permitting a 21-hour rearward 
rotating shift schedule; the determination to allow a shift work limit 
of 16 hours for short-haul drivers for any two (2) days in a weekly 
tour of duty; and the deferral of rulemaking for time-certain action on 
the adoption of Electronic On-Board Recorders. A number of other issues 
including the assumptions used in the agency's regulatory impact 
analysis are also specifically addressed in this petition.

II. Misuse of Data
    In its explanation of the 2005 final rule, FMCSA cites a number of 
sources for relevant information and data for the nearly identical rule 
that is, on an interim basis, already in effect as a result of the 2003 
final rule. Much of this information is anecdotal, self-reported, 
unscientific, biased, or inapposite, and cannot be relied on by the 
agency as the basis for promulgating this final rule. The agency, 
nevertheless, invokes these sources in the preamble of the final rule 
in order to produce an avalanche of pseudo-factual information tending 
to support the determinations in the final rule.
    Among these efforts, FMCSA attempts to foster acceptance of an 
improved safety record of drivers and motor carriers occurring in the 
first three-quarters of 2004 as compared with the first three-quarters 
of 2003 as somehow evidencing the positive influence of the January 
2004 implementation of the 2003 final rule in reducing fatigue-related 
crashes. Although the FMCSA ultimately rejects reliance upon carrier-
reported information that supposedly shows lower crash rates in 2004 
following the January implementation of the final rule, id. At 50010, 
it nevertheless relies upon a comparison of allegedly favorable crash 
figures from the Fatality Analysis Reporting System (FARS) showing that 
over the first 9 months of 2004, fatigue-related crashes declined 11.8 
percent from 1.7 percent to 1.5 percent in 2004.
    The attempt to invoke fatigue-related truck crashes in the year of 
initial implementation of the 2003 final rule is clearly inappropriate 
and cannot be relied on by FMCSA for several reasons and, accordingly, 
can form no part of the agency's failed effort to justify the 2005 
final rule.
    First, the agency itself has provided a previous, extended 
discussion of why fatigue-related crash reporting by police as entered 
in the FARS data system is unreliable. In fact, the agency itself, 
because of the unreliability of police accident reports (PARs) that 
code the presence of fatigue, augmented its estimate of fatigue-related 
crashes by the use of other methods to reach a much greater quantified 
fatigue contribution to fatal fatigue-related crashes in the 2000 HOS 
Notice of Proposed Rulemaking (NPRM) and in its accompanying 
Preliminary Regulatory Evaluation and Regulatory Flexibility Act 
Analysis (PRE) \3\:
---------------------------------------------------------------------------
    \3\ Preliminary Regulatory Evaluation and Regulatory Flexibility 
Act Analysis, Notice of Proposed Rulemaking, 65 FR 25540 et seq., May 
2, 2000, Docket No. FMCSA-1997-2350.

        There are a number of difficulties police face in determining 
        whether fatigue contributed to an accident. First, the 
        responding officer's primary concern is assisting accident 
        victims and restoring the flow of traffic. Investigating the 
        causes of the accident is often a second (or lower) level 
        concern. Second, few officers are trained in accident 
        reconstruction, and they therefore do not have the training to 
        conduct a detailed investigation of the physical and mechanical 
        evidence. Therefore, many police officers must rely on 
---------------------------------------------------------------------------
        eyewitness and other oral evidence.

        This results in an additional problem. By the time an officer 
        interviews surviving crash-involved drivers, any signs of 
        fatigue are likely to have worn off. The stress of the crash 
        produces an adrenaline surge, eliminating any traces of fatigue 
        and in fact enhancing the drivers [sic] sense of alertness and 
        awareness and acuity, at least for the short term.

PRE at 21.
    The FMCSA points out that FARS data coders ``must rely on the 
original police accident report[,]'' but that ``[f]atigue, of course, 
is particularly difficult to assess, even with in-depth investigations, 
since there is no physical evidence of fatigue. The assessment is 
usually based on statements of the involved parties or witnesses.'' Id. 
at 25.
    Furthermore, the agency argues that fatigue crashes are probably 
underestimated because it may often play a less direct role in 
triggering a crash given the fact that ``a sizable literature 
demonstrates that fatigued individuals are prone to a variety of mental 
and physical errors[,]'' including studies that show that cognitive 
functions of tired drivers are more compromised than their physical 
performance. Id. at 22. This indicates that other errors indicated on a 
PAR may be also due to fatigue because this impairment produces low 
vigilance or alertness. Id.
    This evaluation led the agency to emphasize ``the magnitude of the 
fatigue problem, and demonstrate the substantial differences in 
estimates of the size of the problem.'' Id. at 25. The FMCSA then 
reviewed research literature and other data sources, which led the 
agency to regard the PARs-based annual fatigue-related crash data in 
FARS as an underestimation of its contribution to truck fatal crashes. 
Id. at 24-30.

        Most analysts believe that the incidence of fatigue-related 
        crashes is higher than the 2 percent figure from the PARs, and 
        many put the true figure well above the 2.8 to 6.1 percent 
        range presented in table 14. As noted above, fatigue increases 
        the likelihood that drivers do not pay sufficient attention to 
        driving or commit other mental errors. * * * [I]in-depth 
        studies of crashes have found that inattention and other mental 
        lapses contribute up to 50 percent of all crashes. While 
        fatigue many not be involved in all these crashes, it clearly 
        contributes to some of them. We estimate that 15 percent of all 
        truck involved fatal crashes are `fatigue-relevant', that is, 
        fatigue is either a primary or secondary factor.''
Id. at 30 (emphasis supplied).

    The agency essentially halved this figure in the 2003 final rule, 
primarily because the reduction in the percentage of fatigue-related 
fatal crashes aided its benefit-cost analysis, by enabling the 
industry's productivity gains overwhelm the increase in both the 
relative and absolute risk of fatigue-related crashes that result from 
extending driving shift each day from 10 to 11 consecutive hours. See, 
e.g., Regulatory Impact Analysis and Small Business Analysis for Hours 
of Service Options, Federal Motor Carrier Safety Administration, 
December 2002, at 8-10 to 8-15. Nevertheless, this estimate still 
relied upon sustained agency doubts about the accuracy of PARs-based 
FARS fatigue-related crash figures (id. at 8-10) and, therefore, FMCSA 
augmented the low figures of FARS-reported fatigue crash data with the 
addition of crashes due to the influence of fatigue on driver 
attention, for example. Id. at 8-14. As a result, the agency reduced 
its estimate of fatigue-related fatal crashes from its figure in the 
2000 NPRM by adding inattention/fatigue inattention crashes to FARS 
fatigue-only figures, modified by data from the Motor Carrier 
Management Information System, and arrived at an average of 8.15 
percent of fatal truck crashes due to fatigue.\4\ Id.
---------------------------------------------------------------------------
    \4\ Petitioners repeat here their longstanding disagreement with 
the FMCSA's efforts to reduce the impact of fatigue in its contribution 
to large truck crashes, including fatal crashes, by relying on 
manipulation of FARS coded information on fatigue. In the RIA, the 
FMCSA states that it used FARS, but that the database ``was edited to 
eliminate records on individual crashes where key data were missing, 
and also where primary, fault appeared to lie with other vehicles (not 
trucks) involved in the crash, and with certain hazardous weather 
conditions.'' RIA at 43. In combination with an addition of inattention 
crashes, whose representation in the final calculation of 8.15 percent 
of fatal large truck crashes of 20 percent also is not shown by other 
than conclusory statements, the agency arrived at the fatigue factor 
used as the platform for its calculation of safety costs and benefits.
    The agency has previously rejected as a matter of record the 
assignment of fault to other drivers based on FARS codes. See, Motor 
Carrier Safety Analysis, Facts, & Evaluation (MCSAFE), 2:I (October 
1996), 2:II (November 1996). Moreover, even studies invoked and relied 
on by the agency make it clear that raw FARS coded data cannot be used 
to judge which vehicle initiated a maneuver leading to a two-vehicle 
crash between a large truck and a passenger vehicle. The Research 
Analysis Brief published by the Federal Highway Administration, Driver-
Related Factors in Crashes between Large Trucks and Passenger Vehicles, 
FHWA-MCRT-99-011, April 1999, admits that the extent to which the 
drivers of the trucks and of the cars were both able to accurately 
describe events to investigating officers following the fatal crashes 
is unknown. Moreover, the agency admits that only one-half of the fatal 
crashes between one large truck and one passenger vehicle even has any 
physical evidence about each vehicle's maneuver and physical position 
prior to the crash for supporting assignments of FARS driver codes. Id. 
at 4. As a result, FARS coders are relying on PAR indications of the 
presence of fatigue that often are the product of a surviving party--
usually the truck drivers--interviews that may not reveal the presence 
of fatigue, as the agency itself has acknowledged during this 
rulemaking. PRE at 21, 25.
---------------------------------------------------------------------------
    Consequently, it is patent that the agency cannot claim an 
improvement in fatigue-related fatal crashes based only on a 9-month 
data change of 2003 to 2004 unadjusted FARS figures by assuming a far 
higher contribution to fatigue in its preamble to this final rule and 
in its accompanying RIA. In fact, the agency dismisses reliance on this 
early FARS data in the preamble of the instant final rule: ``Although 
this data suggests that fatigue-related crashes have fallen since the 
2003 rule became effective, this newer data is mostly preliminary, 
self-reported without statistical controls, and also reflects small 
sample sizes, all of which--once again--sometimes leads to inconsistent 
findings.'' 70 FR 49981 (emphasis supplied). Moreover, the agency 
further negates its own case for this claimed improvement in fatigue-
related crashes in 2004: ``It is impossible to definitively link a 
specific provision of the 2003 rule with the improved safety 
performance during 2004.'' Id. at 50013.
    It therefore is clear that the FMCSA cannot invoke a comparison of 
unadjusted, preliminary FARS figures of part of 2004 with part of 2003, 
figures which the agency itself acknowledges constitute a chronically 
underreported incidence of fatigue-related crashes, to claim somehow 
that the final rule implemented in January 2004 has led to a reduction 
in fatal fatigue-related crashes.

III. FMCSA Should Reconsider the Determination That a Substantial 
        Increase in Allowable Driving and Working Hours in the Final 
        Rule Will Have No Adverse Health Impacts On Truck Drivers
    Although this 2005 final rule, as was the case with the 2003 final 
rule that preceded it, allows drivers to accumulate far more working 
and driving hours than permitted under the pre-2003 regulation (49 CFR 
Pt. 395 (Oct. 1, 2002)), the agency nevertheless has concluded that the 
much greater potential exposure by drivers operating CMVs \5\ to a 
variety of health threats, including diesel emissions, ``does not have 
a deleterious effect on the physical condition of drivers.'' 70 FR 
49981. The FMCSA reaches this conclusion on the basis of three major 
considerations, none of which withstands close scrutiny.
---------------------------------------------------------------------------
    \5\ Since the 2005 final rule includes, as in 2003, an exemption 
for motor coach drivers, who continue to operate under the pre-2003 HOS 
regulations, this petition applies only to HOS regulation of truck 
drivers.
---------------------------------------------------------------------------
    First, the agency claims that, although there are far longer 
working and driving hours permitted by the 2005 final rule,\6\ the 
potentially very large increase in exposure to health insults and 
pathologies such as diesel emissions, diabetes, cardio-vascular 
disease, and whole body vibration will not be correlated with increased 
health risks in these areas because of a lack of definitive studies 
demonstrating conclusive, direct causal relationships between exposure 
(the dose) and the severity of the adverse health impact (the 
response),\7\ including those studies reviewed by the Transportation 
Research Board's special committee empanelled to perform a health 
literature review (TRB Health Panel).\8\ Accordingly, FMCSA claims it 
cannot quantify health risks to drivers in connection with the larger 
number of driving and working hours permitted by the final rule, and 
therefore cannot conclude that fewer hours working or driving would 
reduce the health risk of exposure to diesel emissions, for example, 
which, in turn, would reduce the incidence of cancer in CMV drivers. 
Id. at 49986. In this connection, the agency also dismisses even 
credible epidemiological studies because ``[e]pidemiological studies 
can never prove causation; that is, they cannot prove that a specific 
risk factor actually causes the disease being studied.'' Id. at 49982. 
However, FMCSA later concedes that ``[s]tudies show a causal 
relationship between exposure to diesel emissions and lung cancer,'' 
id. at 49985, and that the National Institute for Occupational Safety 
and Health (NIOSH) ``review [submitted to the docket] generally 
concluded that long work hours appear to be associated with poorer 
health, increased injury rates, more illnesses, or increased 
mortality.'' \9\ Id. at 49989.
---------------------------------------------------------------------------
    \6\ The FMCSA describes these dramatic increases in driving and 
working hours under the new HOS regulation in only one section of the 
preamble, 70 FR 50021-50022, and again in the accompanying Regulatory 
Impact Analysis. In the 2005 NPRM, the Agency explained that the 
restart provision:

    provides an opportunity for increases in the total hours of 
permissible on-duty time in a 7-day period, after which a driver may 
not drive a CMV, from 60 hours to 84 hours. It also provides an 
opportunity for increases in the total hours of permissible on-duty 
time in an 8-day period, after which a driver may not drive a CMV, from 
70 hours to 98 hours and, [sic] provides an opportunity for increases 
in the maximum driving time permitted in an 8-consecutive-day period 
(from 70 hours to 88 hours). 70 FR 50021.
    \7\ See, id., at 49988-49989 for this agency argument with respect 
to cardiovascular disease.
    \8\ CTBSSP Synthesis 9: Literature Review on Health and Fatigue 
Issues Associated with Commercial Motor Vehicle Driver Hours of Work 
(TRB Health Panel), Transportation Research Board, National Academy of 
Sciences, August 9, 2005, FMCSA Docket No, 2004-19608-2084, filed 
August 10, 2005.
    \9\ However, the agency attempts to blunt this overall NIOSH 
finding by pointing out that the NIOSH review concluded that the 
relation between long working hours and health is uncertain from 
available studies. Id. at 49990.
---------------------------------------------------------------------------
    This stance by the agency--rejecting all relevant health-related 
literature whose weight overwhelmingly links increased exposure to 
specific health risks with increased numbers and percentages of workers 
suffering disease, injury, and death--is both imprudent and 
countermanded by the agency's own contracted TRB Health Panel review of 
relevant health literature. Although that review radically reduced the 
number of research studies subjected to specific written evaluation in 
the previously cited TRB Health Panel review,\10\ even the 25 health-
relevant studies that were summarized in the Synthesis provided the 
basis for the Health Panel to find that:
---------------------------------------------------------------------------
    \10\ The 6 members of the Health Panel assigned to evaluate health-
related research publications found more than 1,850 articles, which 
were screened for actual review. Of that number, 55 articles were 
reviewed and, of that number, 25 articles were chosen for written 
summarization by one of the primary reviewers to be included in the 
synthesis ``based on the validity of the methodology, the relevance of 
the studied population to truck driving, and the quality of the 
statistical analysis of health outcomes.'' ``CTBSSP Synthesis 9 . . . 
,'' op. cit., at 8. Petitioners do not agree with the judgment of the 
Health Panel that many of the studies excluded from written review are 
not directly relevant to the issue of adverse health impacts on CMV 
drivers, particularly those studies that were excluded on the basis 
that the study population was not relevant to the health impacts of 
long working and driving hours on CMV drivers.

   Lung cancer is likely caused by exposure to diesel exhaust 
        and the longer that exposure lasts the more likely it is that a 
        cancer will develop. Though the evidence linking this exposure 
        to bladder cancer is less robust than that to lung cancer, it 
        remains likely that there is such a relationship and that it is 
---------------------------------------------------------------------------
        governed by a positive dose-response curve.

   There is some evidence that cardiovascular disease is caused 
        in part by truck driving and its risk increases with the 
        duration of this activity and the disruption of the sleep 
        cycle.

   Based on exposure assessments, noise-induced hearing loss 
        could well be a result of a working lifetime as a driver, * * *

   There are several studies available . . . that contain 
        objective evidence of vertebral pathology related to an 
        occupation as a professional driver. In conclusion, the 
        available data support the hypothesis that there is likely a 
        causative relationship between professional driving and a 
        variety of vertebral disorders as well as LBP [Low back pain] 
        syndrome.\11\
---------------------------------------------------------------------------
    \11\ Id. (Emphasis added). The TRB Health Panel found less strong 
relationships in the reviewed health research literature between 
commercial driving and other musculoskeletal disorders, 
gastrointestinal disorders as related to differing shift assignments 
and circadian rhythm disruptions, separate adverse health impacts due 
to circadian shifts alone in working and rest schedules, and 
reproductive health.

    It is clear, then, that, in the best judgment of the TRB Health 
Panel members charged by the FMCSA with reviewing health literature 
relevant to the health risks of CMV driving, the preponderance of the 
evidence in the research literature reviewed shows an association 
between the amount of exposure to certain specific health insults and 
the level of injury and disease incurred by commercial drivers. This 
finding is not directly engaged by the FMCSA anywhere in the final rule 
or in the Regulatory Impact Analysis (RIA).\12\ In fact, the latter 
document takes no quantitative notice of the benefits and costs of 
raising the number of driving hours over 8 consecutive calendar days 
from 70 hours under the old rule to 88 hours under both the 2003 and 
2005 final rule, and the amount of working hours over 8 consecutive 
calendar days from 70 under the old rule to 98 under both the 2003 and 
2005 final rules. The increase in available driving hours over 8 
consecutive days through the maximum use of the agency's 34-hour 
``restart'' provision is 28 percent more than under the pre-2003 HOS 
regulation and, similarly, the increase in available total working 
hours over 8 consecutive days is 40 percent more than under the pre-
2003 regulation. This policy choice therefore subjects drivers to 
dramatically increased amounts of risk exposure to several serious and 
identified health threats.
---------------------------------------------------------------------------
    \12\ Regulatory Impact Analysis and Small Business Impact Analysis 
for Hours of Service Options,'' prepared by FMCSA and ICE Consulting, 
Inc., August 15, 2005.
---------------------------------------------------------------------------
    The FMCSA disregards both the enormous weight of the research 
literature, as well as the professional conclusions of its own 
empanelled group of prominent health researchers on the TRB Health 
Panel, that several major areas of commercial driver health were 
increasingly subject to adverse impacts as the hours of working and 
driving also are increased above levels permitted by the pre-2003 HOS 
regulation. It is difficult to imagine a more imprudent posture assumed 
by an agency explicitly charged with protecting the health of CMV 
drivers and ensuring that its regulations do not have a deleterious 
effect on the physical condition of CMV drivers.
    The agency's disregard of an enormous wealth of health literature 
showing the dangerous health effects of increasing the frequency or 
amount of exposure to disease mechanisms \13\ as well as the findings 
of its own TRB Health Panel permits an increase of driving hours over 
the pre-2003 HOS regulation from 10 to 11 and the abbreviation of the 
tour of duty ``restart'' time to only a minimum of 34 hours. This 
disregard of adverse health effects on drivers permits the agency in 
its RIA to purportedly show that productivity benefits to industry from 
having an extra, 11th, hour of driving in each shift and fewer hours 
off-duty at the end of a tour of duty than often obtained under the 
pre-2003 HOS regulation trump health and safety benefits of shorter 
consecutive driving hours and longer off-duty layovers before beginning 
another multi-day tour of duty.
---------------------------------------------------------------------------
    \13\ Many of the studies showing these deleterious health effects 
of longer working and driving hours have been entered into Docket No. 
2004-19608 by the agency itself over the last year and a half.
---------------------------------------------------------------------------
    The second tactic of FMCSA in this final rule to minimize both the 
adverse health impacts, and the safety impacts, of the much longer 
driving and working hours that it has allowed is to rely upon a 
snapshot of the trucking industry that uses small samples in the 
agency's own industry survey \14\ and drawn from other motor carriers' 
information,\15\ 70 FR 49984, to claim that the use of the larger 
number of working and driving hours in the 2003 final rule has been 
limited: ``There is no indication that drivers are averaging more hours 
of work, as opponents of the 2003 rule had feared.'' Id. at 49981. Yet 
the agency's survey shows that 22.9 percent of over-the-road drivers 
exceeded 10 hours of driving, so the agency's own limited review shows 
that the motor carrier industry since the 2003 rule was fully 
implemented and enforced beginning in January 2005, has begun to use 
the 11th consecutive hour of driving in each shift.\16\
---------------------------------------------------------------------------
    \14\ Special Report--FMCSA Field HOS Survey: Motor Carrier Industry 
implementation & Use of the April 2003 Hours of Service Regulations, 
Federal Motor Carrier Safety Administration, June 2005. The survey only 
reviewed the hours of 542 commercial drivers from 269 motor carriers 
for 2 weeks over the span of July 2004 through January 2005 by 
reviewing the drivers' log books or time records.
    \15\ The company data on hours worked drawn from motor carriers 
such as Schneider and J.B. Hunt are not susceptible of independent 
validation of their accuracy.
    \16\ Also see, the RIA at 19 where the FMCSA states the findings of 
a survey conducted by the Owner-Operator Independent Drivers 
Association (OOIDA) that member drivers were already driving 10 or more 
hours in more than 25 percent of their work days during the first year 
of the new, 2003 HOS rule.
---------------------------------------------------------------------------
    The final rule establishes minimum and maximum requirements for CMV 
driver HOS. As compared to the pre-2003 HOS regulation, the final rule 
permits drivers to drive 11 consecutive hours instead of 10, to rest 
for as little as just 34 hours between driving tours instead of having 
as much as 3 days or more off-duty at the end of a driving tour (for 
drivers who maximized the use of their driving time under the pre-2003 
rule), and allows drivers who maximize their driving time per shift and 
tour of duty under this final rule to drive 17 additional hours in a 7-
day driving tour and 18 additional driving hours in an 8-day driving 
tour. Having established by regulation increased maximum driving and 
working limits, as well as a reduced minimum off-duty time for each 
tour of duty, the agency cannot hide from the probable effect of these 
more taxing HOS limits on drivers' health. The agency is required to 
consider alternative implementation schemes with most or all drivers 
driving and working these permitted maximum hours while only taking the 
minimum off-duty time.
    Since the 2003 and 2005 final rules adopt these limits, the agency 
cannot ignore the impact on drivers who avail themselves of the legal 
HOS limits. It is wholly inappropriate for the agency, having asserted 
that the rule changes are necessary to provide ``flexibility'' to the 
industry, to claim that few drivers will work to the HOS limits in the 
final rule and, therefore, that the final rule will have little or no 
impact on drivers. This posture is even less supportable when the 
agency simultaneously asserts that there will be large economic 
benefits to the industry from the same rule changes. Moreover, agencies 
do not generally engage in idle regulatory action that will have no 
practical effect. The ``flexibility'' which the agency claims is 
needed, and which will reap significant economic benefits to the 
industry, can only be of benefit if drivers are in fact driving and 
working the longer permissible hours, and taking fewer rest and off-
duty hours. Indeed, regardless of the reliability of the information, 
FMCSA reports that in less than 1 year over one-fifth of drivers are 
already using the expanded HOS regime. This is precisely what the FMCSA 
intended in adopting the final rule. The agency must fairly confront 
and reasonably address the likely impacts to the health of drivers who 
avail themselves of its rule changing the HOS maximum driving and work 
hours and minimum off-duty time.
    It is clear on its face that there is no reasonable basis to expect 
and believe that the enormous U.S. trucking industry has evolved to 
full use of the new 2003 HOS regulation in a single year. The agency's 
own citation of the driver survey conducted by Campbell and Belzer that 
drivers self-reported working on average 64.3 hours per week, a figure 
combining both 7-day (60 hours) and 8-day (70 hours) tours of duty 
permitted by the pre-2003 HOS regulatory regime. This survey, and many 
other comparable surveys, over the years have shown that long-haul, 
over-the-road drivers have made nearly maximum use of available driving 
hours and, because the pre-2003 HOS rule allowed an extension of 
working time beyond the 15 hours limit in each shift if the driver did 
not then resume driving,\17\ maximum use of the flexible working hours 
that were allowed.
---------------------------------------------------------------------------
    \17\ Title 49 CFR 395.3 (Oct. 1, 2002),
---------------------------------------------------------------------------
    Furthermore, there is a contradiction between the preamble 
statements that repeatedly play down the industry's likely use of the 
maximum available, increased number of both working and driving hours 
over 7 or 8 consecutive days, as well as the additional, 11th hour of 
driving provided by the 2003/2005 final rules and the agency's 
statements in its RIA. The FMCSA attempts to foster acceptance at 
multiple points in the preamble to this rule that the future of the 
trucking industry's use of the increased available driving and working 
hours will, for some unknown reason, reflect only the amounts used 
during 2004, that ``[t]he theoretical availability of many more driving 
and on-duty hours under the 2003 rule is largely irrelevant[,]'' id. at 
50005, and that ``[t]here is no reason to believe that a full 11 hours 
of driving will ever become the standard for the industry.'' Id. at 
50010. However, the agency assumes in the RIA a very different view of 
the potential for increasingly intensive use of these dramatic leaps in 
the number of available driving and working hours.
    In that RIA, the FMCSA relies on information drawn from Schneider, 
the Owner-Operator Independent Driver Association (OOIDA) survey, the 
agency's field survey of only 542 drivers, and the Prof. Burks survey 
to strike the positive note that ``the 11th hour is definitely being 
used.'' RIA at 2-24. Similarly, the agency emphasizes that the industry 
is still evolving in its use of the 11th, additional hour of 
consecutive driving time and that ``many of the responding companies . 
. . may be building the 11th hour into their schedules,'' and that 
``[s]ome of the information from the Edwards interviews tells us that 
LTL [less than truckload] managers are now planning some runs that use 
the 11th hour. This would occur, for example, when a company finds that 
use of the 11th hour would bring one or more additional terminals 
within the overnight reach of a given terminal.'' Id. In fact, the 
agency expresses its optimism that the use of the 11th, additional hour 
of consecutive driving will expand: ``[A]s the 11th hour of driving 
becomes more incorporated into normal operations in the future, we 
believe its use much more likely to increase rather than decrease.'' 
Id. at 6-77. This position in the RIA contradicts the preamble of the 
final rule and acknowledges that carrier operations will evolve to 
utilize the additional hour of consecutive driving. In fact, the agency 
goes out of its way to show how much more strongly productivity 
benefits for industry trump the safety Option 1 with a reduction in 
consecutive driving hours from 11 to 10 if carrier operations 
eventually utilize the extra hour: ``If the use of the 11th driving 
hour doubled, Option 2 with 10 hours would become even less cost-
beneficial relative to the original Option 2. Also note that even if 
the use of the 11th hour dropped, because the use of the 11th hour is 
cost-beneficial regardless of how often it is used, variation of this 
single assumption could never make the restriction of the 11th hour of 
driving cost-beneficial.'' \18\ Id. (emphasis supplied).
---------------------------------------------------------------------------
    \18\ A summary statement of the considered regulatory options 
considered for costs and benefits is found in the RIA at ES-1-2.
---------------------------------------------------------------------------
    It is evident that the agency would like to have it both ways in 
this final rule: it relies on the considerable productivity gains 
triggered by the use of the additional 11th hour of driving that FMCSA 
allows in the 2005 final rule and yet also downplays in the preamble 
the potential increase in crash risk due to adding more driving hours 
by claiming that industry is not using--and will not use--the extra 
consecutive hour of driving. It is apparent that the agency, in fact, 
expects the trucking industry to evolve to a fuller use of the 11th 
hour of driving in the relatively near future, an action that 
undermines any unsupported suggestion that a single year of carrier 
operations under the new, 2005 version of the HOS rule that supposedly 
shows working and driving hours as similar to the pre-2003 regulatory 
regime, somehow means that industry will never take full advantage of 
the expanded HOS permitted by the 2005 final rule.
    Accordingly, the agency's effort to assert that the 2005 final rule 
is health-neutral fails. Not only has the agency dramatically increased 
the number of hours commercial drivers can be exposed to diesel 
emissions, noise, and driving and working demands that, with such 
increased exposure, commensurately increase the risk of cancer, 
cardiovascular disease, and vertebral disorders, but its futile effort 
to convince the public that the trucking industry will not modify or 
expand its operations to increasingly take advantage of the enormous 
number of additional hours of work and driving made available by the 
2005 final rule is nothing more than a unsupported pronouncement.

IV. The Regulatory Impact Analysis (RIA) Is Flawed and Does Not Support 
        the Determinations Made in the Final Rule
    FMCSA attempts to justify some of the main features of the 2005 
final rule by relying on the benefits-cost analysis in the RIA. The RIA 
contains fatal errors and it fails altogether to model key features of 
the new final HOS regulation that are not justified anywhere in either 
the preamble of the final rule or in the RIA itself.
A. The RIA Does Not Model the 14-Hour Work Shift
    The RIA fails to model and monetize the safety costs and benefits 
of a 14-hour work day shift. Instead, FMCSA models and quantifies only 
the effects of the incremental increase in driving hours allowed in 
each shift from the prior maximum of 10 hours to the 11 hours allowed 
under both the April 2003 and August 2005 final rules. The agency does 
not believe that the effects of work demanded of drivers apart from the 
driving task have time-on-task effects on driver fatigue, alertness, 
and performance during the work day due to such activities as loading 
and unloading. However, the agency itself contracted for and reported 
on the fatiguing effects of the additional work required of drivers and 
how the additional work impacts the ability of drivers to perform 
safely when actually operating their commercial motor vehicles.\19\
---------------------------------------------------------------------------
    \19\ See, e.g., T. O'Neill, et al., Effects of Operating Practices 
on Driver Alertness, 1999.
---------------------------------------------------------------------------
    FMCSA is on record as conceding that time-on-task fatigue effects 
accrue not just from driving, but from the adverse impact on alertness 
and performance from all the duties and work performed by a driver over 
the course of a daily shift.\20\ Furthermore, it recognizes that the 
effects of total time on duty directly impact the amount of driver 
fatigue in the preamble of the final rule: ``[C]ontinuous daily 
wakefulness is among the strongest predictors of fatigue, and the 
Agency's best judgment indicates it outweighs driving time as a 
predictor of fatigue.'' 70 FR 50038. If total duty time is the 
yardstick for the measuring the production of fatigue among truck 
drivers, then the FMCSA was duty bound to model and quantitize its 
effects on driver alertness and performance both when driving and 
performing other tasks during each shift. Yet the RIA contains no 
benefit-cost analysis of allowing 14 hours of work each day that 
includes both a maximum of 11 hours of consecutive driving and 3 hours 
of other duty time.
---------------------------------------------------------------------------
    \20\ The rulemaking record is so heavy with citational support for 
the fatiguing effects of total shiftwork time-on-task, and not just 
accrued driving time in each shift, that one reference should suffice 
that was produced by the FMCSA itself with multiple research studies 
cited in support:

    The research suggests that performance degrades and crash risk 
increases markedly after the 12th hour of any duty time during a work 
shift (Hamelin (1987); Brown (1994); Campbell (1988); Rosa and Bonnet 
(1993); Rosa (1991); Rosa et al. (1989); Harris and Mackie (1972); 
Mackie and Miller (1978); U.S. Army (1983); Transportation Research and 
Marketing (1985)). 65 FR 25540, 25556 (emphasis supplied).
    Moreover, the effects of total time-on-task and their palpable 
effects on worker and driver alertness and performance were documented 
with extensive support in Advocates' 1997 docket submission dated June 
30, 1997, to the agency's advance notice of proposed rulemaking Docket 
No. FMCSA-1997-2350 and in our 2000 docket submission dated December 
15, 2000, to the agency's notice of proposed rulemaking in FMCSA Docket 
No. 1997-2350. Both sets of Advocates' docket comments are incorporated 
by reference in their entirety in this petition for reconsideration.
---------------------------------------------------------------------------
B. The RIA Does Not Take Into Account Cumulative Increases in Driving 
        and Work Hours Permitted Under the Final Rule
    FMCSA completely ignores a quantified assessment of the costs and 
benefits of dramatically increasing cumulative truck driver hours of 
service for both work and driving under both the 2003 and 2005 final 
rules. That increase in total cumulative working and driving hours is 
mentioned once in the RIA (but discarded for analysis) \21\ and 
mentioned with quantitative information in only one place in the 
preamble of the 2005 final rule where the agency states explicitly that 
the use of the restart provision:
---------------------------------------------------------------------------
    \21\ ``Also the data do not include any information on the driver 
schedule over a longer period than the shift in which the crash took 
place. Thus, it is not possible to determine if cumulative fatigue may 
have been a factor.'' RIA at 44. With a single reference to a lack of 
data collected by Kenneth Campbell and the University of Michigan 
Transportation Research Institute (UMTRI), FMCSA cannot evade its 
burden to model the much greater working and driving hours permitted by 
both the 2003 and 2005 final rules due to the application of the 34-
hour restart provision that created a sea change in HOS regulation by 
ending the use of a fixed work week of either 7 or 8 days and, instead, 
installing a ``floating'' work week which permits commercial drivers 
and motor carriers to dramatically expand the number of both driving 
and working hours over 7 or 8 consecutive calendar days.

        Provides an opportunity for increases in the maximum driving 
        time permitted in a 7-consecutive-day period (from 60 to 77 
        hours). Likewise, the restart provision provides an opportunity 
        for increases in the total hours of permissible on-duty time in 
        an 8-day period, after which a driver may not drive a CMV, from 
        70 hours to 98 hours and, [sic] provides an opportunity for 
        increases in the maximum driving time permitted in an 8-
---------------------------------------------------------------------------
        consecutive-day period (from 70 hours to 88 hours).

70 FR 50021 (emphasis supplied). Also see, id., at 50022.

    FMCSA cannot argue that it was not reminded by its own contracted 
researchers about the importance of cumulative fatigue and the need to 
take it explicitly into account in its evaluation of the effects of 
longer driving and working hours in both the 2003 and 2005 final rules. 
On the very first page of the Trucks In Fatal Accidents study produced 
by Kenneth Campbell for the agency, the author asserts that, ``[b]ased 
on the study of fatigue in other industrial settings, there are three 
factors that produce fatigue:

   Time on task

   Time of day (circadian component)

   Cumulative fatigue'' \22\
---------------------------------------------------------------------------
    \22\ Kenneth Campbell, Estimates of the Prevalence and Risk of 
Fatigue in Fatal Crashes Involving Medium/Heavy Trucks from the 1991-
2002 TIFA Files, Final Report, August 2005 (``TIFA Report'').

    Similarly, the FMCSA itself acknowledges the findings of the 
preliminary reports of Jovanis et al. (2005) that, ``[t]hrough time-
dependent logistic regression modeling, the study found a pattern of 
increased crash risk associated with hours of driving, particularly in 
the 9th, 10th, and 11th hours, and multi-day driving.'' \23\ 70 FR 
50021. Similarly, Dingus et al. found in their evaluation of the 
adverse effects of sleeper berth use that critical incidents of solo 
drivers began to mount after the second and third shift over a multi-
day driving bout due to the evident impact of cumulative fatigue that 
was not being eliminated with sleeper berth use.\24\
---------------------------------------------------------------------------
    \23\ P. Jovanis, et al., Crash Risk and Hours Driving: Interim 
Report II, Pennsylvania Transportation Institute, Penn State 
University, April 15, 2005 (hereafter Jovanis Report).
    \24\ T. Dingus, et al., Impact of Sleeper Berth Usage on Driver 
Fatigue, Final Report FMCSA-RT-02-070, 2002. Also see, http://
www.fmcsa.dot.gov/facts/-research/briefs/Sleeper-Berth-Technical-
Briefing.htm.
---------------------------------------------------------------------------
    The FMCSA might be tempted to claim that it addressed cumulative 
fatigue in the RIA because of its consideration in the cost-benefit 
analysis of two other, longer restart periods (Option 3: 58 hours; 
Option 4: 44 hours, RIA at ES-1), but that effort would fail because 
the purpose of the exercise had nothing to do with modeling and 
quantifying the safety costs and benefits of the longer cumulative 
working and driving hours allowed by the 2005 final rule. Instead, the 
agency wanted to demonstrate lower productivity benefits for the 
trucking industry that would occur with a longer restart period. A 
longer restart interval would result in drivers accruing fewer working 
and driving hours over 7 or 8 consecutive days. FMCSA also wanted to 
show that longer restarts do not supposedly result in improved sleep 
for commercial drivers. This is made clear by the agency's eagerness in 
Section 6 of the RIA to show that a shorter 34-hour restart period 
produces these larger number of working and driving hours over the same 
7 or 8 consecutive calendar days, allegedly without any detrimental 
effect on drivers' ability to get sufficient sleep as compared with the 
longer minimum restart periods of Options 3 and 4.\25\
---------------------------------------------------------------------------
    \25\ And, again, the FMCSA tries to have it both ways by showing 
the productivity benefits that result when the 34-hour restart 
provision is reduced close to the minimum layover time, and yet also 
attempt to argue that drivers are often taking far more time off than 
just the minimum of 34 consecutive hours. See, 70 FR 50022.
---------------------------------------------------------------------------
C. The RIA Does Not Use the Pre-2003 Regulation as the Baseline for 
        Assessing Costs and Benefits
    Finally, the agency's entire effort to justify its 2005 version of 
the HOS final rule fails at the threshold because it has chosen the 
wrong regulation as the baseline for analysis of the four regulatory 
options premised in the RIA. Although it is true that the agency 
reviews portions of the 2003 final with regard to the 10-hour driving 
maximum, the agency essentially imposes the 2003 regulation as the 
analytic baseline for its benefit-cost analysis. For example, the FMCSA 
considers two variations of the 34-hour restart provision that will 
allow longer layover periods before starting a new tour of duty, but 
fails to directly model and quantitatively assess costs and benefits of 
the new rule with its much longer working and driving hours in 
comparison with the pre-2003 rule.
    Instead, the FMCSA picks only two main features of the 2003/2005 
final rules, the 11th consecutive driving hour and the 34-hour restart 
provision, and then constructs strawman arguments to show that no 
benefits analysis, no matter how extreme, can justify a return to only 
a maximum of 10 consecutive hours of driving and an expansion of the 
restart provision beyond 34 consecutive hours off-duty. As a result, 
the RIA of the 2005 final rule is a chimera--a strange hybrid of 
selected features of the 2003 final rule commingled with selected 
features of the pre-2003 final rule. Yet FMCSA fail to directly compare 
the August 2005 HOS final rule with the pre-2003 HOS regulation that 
includes, among other things, a fixed work week, no restart provision, 
and far lower total working and driving hours allowed over 7 and 8 
consecutive calendar days. This bizarre exercise does not fulfill the 
agency's burdens to justify the 2005 final rule in comparison with the 
pre-2003 baseline regulatory regime.
    The FMCSA, as already discussed above, attempts to dismiss the 
impact of this enormous increase in available total working and driving 
hours over 7 or 8 consecutive calendar days by appealing to information 
about carrier and driver practices during the first year of the 
implemented 2003 rule--information that cannot be independently 
corroborated.\26\ This information purportedly shows that motor 
carriers and drivers are only partially availing themselves of these 
additional working and driving hours in the first year of the rule 
after full implementation in January 2004. However, a FMCSA snapshot of 
an evolving industry during its first year of operating under a 
dramatically different HOS regime cannot be used to predict what and 
how the trucking industry will change to accommodate the economic 
benefits of much longer working and driving hours in succeeding years. 
In fact, the agency has no support whatever in the rulemaking record 
for its pretense of being able to forecast the future operations of the 
trucking industry under the 2005 final rule. However, if the agency 
believes that the industry will not change under the greatly expanded 
hours of work and driving that it has permitted by the 2005 final rule, 
then it cannot rely on the claims and quantification of improved 
productivity benefits to industry that it makes repeatedly in the RIA 
by invoking exactly the increased use of these dramatically increased 
hours that it is at pains to deny in the preamble of the final rule 
will ever occur.
---------------------------------------------------------------------------
    \26\ The actual data and methods of collection for the various 
contractor and motor carrier company data relied on by the agency are 
not in the rulemaking record for evaluation of their accuracy by the 
public.
---------------------------------------------------------------------------
V. FMCSA Should Reconsider the Additional, Eleventh Hour of Consecutive 
        Driving in Each Shift
    In this final rule, the FMCSA attempts to show that the safety 
effects of the 11th hour of driving are relatively minor, and, 
moreover, those adverse safety impacts are outweighed by the 
productivity benefits of the extra hour of driving. 70 FR at, e.g., 
50012; RIA, Secs. 5 and 6. Basically, the agency attempts to convince 
readers that drivers are still well-rested and therefore able to drive 
the longer consecutive hours in each shift. However, the record 
includes startling results from the Hanowski et al. (2005) study \27\ 
that drivers were receiving only an average of 6.28 hours of sleep, the 
``approximately 6 hours of sleep'' that the agency itself is forced to 
acknowledge from the research means that drivers under the 11 hours 
regime are chronically sleep deprived. This petition sets forth 
elsewhere (see, below, Section VII) the tortured--and self-
contradictory--rationalizations that the FMCSA offers to lower the bar 
for the required amount of sleep from 8 hours, to 7 hours, to nearly 6 
hours as adequate for ensuring driver health, expunging sleep debt, 
eliminating fatigue, and restoring performance.
---------------------------------------------------------------------------
    \27\ R. Hanowski, et al., Assessment of the Revised Hours-of-
Service Regulation: Comparison of the 10th and 11th Hour of Driving 
Using Critical Incident Data and Measuring Sleep Quantity Using 
Actigraphy Data, Virginia Polytechnic University, June 2, 2005, 
transmitted under cover letter dated July 11, 2005, to the FMCSA, 
entered into Docket No. FMCSA-2004-19608 on August 16, 2005, as Entry 
#2089.
---------------------------------------------------------------------------
    Because the RIA contains a fuller explanation, the following 
discussion will analyze the RIA's conclusion that productivity benefits 
trump any reduction of consecutive driving time from 11 to 10 hours. 
According to the RIA, this is true even if one assumes, for example, 
that the contribution of fatigue to fatal truck crashes was far higher 
than the 8.15 percent assumed in both the 2003 and the 2005 final 
rules, and the capital value of a life in calculating the number of 
additional lives saved from moving from an 11 to a 10 hour limit on 
consecutive driving is effectively tripled. RIA at 6-77-78.
    Apparently, the agency believes that it has decisively shown that 
an extra hour of consecutive driving time trumps any claim to the 
superior safety benefits of reducing driving time by an hour. However, 
the agency repeatedly undermines its own argument for the central 
reliability it places on the TIFA Study that it contracted for with 
Kenneth Campbell of the Oak Ridge National Laboratory.\28\
---------------------------------------------------------------------------
    \28\ Kenneth Campbell, ``Estimates of the Prevalence and Risk of 
Fatigue in Fatal Crashes,'' op. cit.
---------------------------------------------------------------------------
    The T1FA Report claims to show that the relative risk of a fatigue-
related fatal truck crash begins to increase at a rapid rate from the 
6th hour of consecutive driving time until, at the 13th or greater 
number of hours of driving, the risk has effectively increased by 14 
times in comparison with the relative risk at the completion of 6 hours 
of driving. TIFA Report, Figure 9 and accompanying narrative, at 12. At 
the 10th hour of driving, there is a 2.63 percent contribution of 
fatigue to fatal crashes, and a 4.71 percent fatigue contribution to 
the relative risk of fatal crashes after 11 hours of driving. This is a 
startling 79 percent jump in relative risk from increasing consecutive 
driving time by only 1 hour.
    It is clear that the agency's benefit-cost analysis stands or falls 
on the use of the TIFA data, as modified by preliminary data from the 
Large Truck Crash Causation Study (LTCCS). However, the sleep model, 
including the TIFA data, is not reliable on several counts in light of 
the agency's own caveats about their uncertainty.
    The agency uses the Walter Reed dose-response (sleep restriction) 
model to quantify the effects of fatigue.\29\ RIA at 5-41. That model, 
however, does not rely on actual vehicle operational data but rather on 
driver performance in driving simulators as well as performance on a 
Psychomotor Vigilance Test (PVT).\30\ Most importantly, the Walter Reed 
study has no time-on-task considerations. A small sample group (50 
subjects) of commercial drivers were controlled and monitored simply 
for the different amounts of sleep they obtained and how different 
groups with different amounts of sleep performed on a PVT test and in a 
driving simulator, as well as how much sleep was needed by subjects in 
the different groups to recover from varying amounts of sleep 
restriction.\31\
---------------------------------------------------------------------------
    \29\ Balkin et al, Effects of Sleep Schedules on Commercial Motor 
Vehicle Driver Performance, DOT-MC-00-133, May 2000. Also see, the 
FMCSA Tech Brief MCRT-00-014, September 2000. (The study is incorrectly 
cited in the bibliography of the RIA with a 2004 publication date. RIA 
at SB-1.)
    \30\ Advocates is already on record in several docket filings with 
the FMCSA about the unreliability of studies involving fatigue and 
alertness for workers, including vehicle operators, that use driving 
simulators to show any changes in worker or driver vigilance and 
performance.
    \31\ See, the summary of findings in FMCSA Tech Brief MCRT-00-014, 
op. cit., at 4.
---------------------------------------------------------------------------
    To remedy the lack of a time on task (TOT) multiplier to account 
for increases in relative risk as the hours of consecutive driving 
mount for a CMV operator, the FMCSA uses the TIFA relative risk 
calculations of the Campbell 2005 study (TIFA Study) and considered the 
additional hour-by-hour relative risk calculations drawn from the 
uncompleted FMCSA-contracted study by Paul Jovanis.\32\ Jovanis's study 
``data show an 11th hour risk factor of about 3.4, which would be 
substantially higher than the equivalent estimates derived from the 
Campbell-LTCCS [Large Truck Crash Causation Study] data discussed 
above.'' \33\ RIA at 47. However, for reasons that are not made clear 
in the RIA, the use of the Jovanis findings showing a much higher 
relative risk factor for the 11th hour of driving was eliminated from 
use in the benefits-cost analysis.\34\
---------------------------------------------------------------------------
    \32\ P. Jovanis, et al., Crash Risk and Hours Driving: Interim 
Report, Pennsylvania Transportation Institute, Penn State University, 
February 25, 2005; P. Jovanis, et al., ``Crash Risk and Hours Driving: 
Interim Report II,'' op. cit. The agency also considered other, recent 
research that it contracted with investigators at Virginia Polytechnic 
University (Hanowski et al., op cit.), but decided not to rely on it 
because the study does not calculate relative risk increases over the 
gamut of consecutive hours of driving but only compares the 10th with 
the 11th hour for any changes in crash risk. RIA at 44. This was a wise 
decision by the agency on other grounds given the fact that this study 
has a very small sample size permitting no credible generalizability to 
the trucking industry as a whole and fails to control for major 
confounders that would heavily influence relative crash risk from hour 
to hour. These and other shortcomings include:

       the use of only driving files--the researchers had no 
records of any non-driving work activities that would also impact 
driver alertness and performance;

     there was non-driving work even performed during breaks 
and, so, there is no way to separate non-driving work from rest breaks 
since there is only a record of driving time;

     an operating assumption of the study was to assume that 
any non-driving interlude of 34 or more hours meant that the driver had 
taken a restart layover before starting a new tour of duty, and there 
was no independent means of determining whether the driver worked 
during this period of 34 or more hours without driving;

     the investigators did not know whether data were not 
collected for any given shift;

     the investigators included partial 11th hours of driving, 
i.e., less than a full, additional 11th hour, which can substantially 
alter the change in relative risk from the 10th to the 11th hour of 
driving;

     additional reductions of data involving the original 50 
study subjects occurred.

    Basically, the study has no value in demonstrating any changes in 
crash risk from the 10th to the 11th hour of driving because threshold 
research design principles were violated in conducting the study. 
Nevertheless, these manifold defects do not deter the FMCSA from 
repeatedly asserting that the Hanowski Study shows that there is no or 
a negligible adverse safety impact from drivers moving from a maximum 
of 10 to a maximum of 11 hours of consecutive driving time, much less 
averaging only 6.28 hours of sleep each day.
    \33\ The agency, however, does not rely on the Campbell LTCCS data 
analysis: ``(I]t is important to note that the LTCCS data are still 
preliminary and have not yet been published in final form.'' Those 
data, however, are overwhelmingly based on post-crash representations 
of driving hours by the surviving truck drivers involved in crashes and 
through inspection of their log books which are notoriously manipulated 
by drivers to simulate compliance with HOS regulations. See, Large 
Truck Crash Causation Study--Interim Report, DOT HS 809 527, September 
2002; K. Campbell and M. Belzer, Hours of Service Regulatory Evaluation 
Analytical Support--Task 1: Baseline Risk Estimates and Carrier 
Experience; D. Belman and K. Monaco, University of Michigan Trucking 
Industry Program Driver Survey 1997, 1998, 1999; M. Belzer, Sweatshops 
on Wheels: Winners and Losers in Trucking Deregulation, Oxford 
University Press, 2000.
    \34\ Presumably, the rationale for the exclusion of the Jovanis 
Study findings in the RIA stem from the statement that ``[t]he main 
limitation with this analysis is that it is representative of only one 
trucking industry segment (LTL carriers). Additionally, there are very 
few driver cases showing 11 hours of driving . . .'' RIA at 47. 
However, this implied stance on the merits of the Jovanis Study is 
countered by the FMCSA' s assertion in the preamble of the final rule 
that the Jovanis Study methods appear to be valid. 70 FR 50012.
---------------------------------------------------------------------------
    Accordingly, the agency has based its benefit-cost analysis on a 
model (called the Fatigue Avoidance Scheduling Tool or ``FAST'') 
derived from the Balkin Study in an adaptation produced by Hursh et 
al.,\35\ with the addition of a TOT multiplier based on the TIFA Study 
analysis.
---------------------------------------------------------------------------
    \35\ S. Hursh, et al., ``Fatigue Models for Applied Research in 
Warfighting,'' Aviation Space and Environmental Medicine 75:3 Suppl. 
(2004).
---------------------------------------------------------------------------
    Yet the agency acknowledges that these data are deeply flawed. 
FMCSA erodes its reliance on the TIFA relative risk calculation in the 
RIA itself and further undermines its credibility to the brink of 
discarding it in the preamble of the 2005 final rule. First, the agency 
points out a central shortcoming of the TIFA data themselves--they do 
not reflect driving in the 10th and 11th hours under the implementation 
period of the 2003 final rule HOS regime, but rather under the pre-2003 
HOS regulation:

        [B]ecause this data collection effort predates the 2003 rule 
        change, the results reflect pre-2003 HOS regulations: driving 
        time was limited to 10 hours, the minimum rest time between 
        trips was only 8 hours, and there were no provisions for a 
        restart of the cumulative 7/8 day duty period. Also, the data 
        do not include any information on the driver schedule over a 
        longer period than the shift in which the crash took place. 
        Thus, it is not possible to determine if cumulative fatigue may 
        have been a factor.

RIA at 44.
    Further doubt is cast by the agency itself in its RIA on the 
reliability of the TIFA data from the Campbell analysis. Since the data 
claim on fatigue-related crashes in the 11th hour are few in the pre-
2003 regulatory era, ``[s]uch limited populations of fatigue-related 
crashes raises uncertainty with regard to the relative crash risk 
ratios associate later driving hours, since the misclassification of a 
single crash as fatigue-related can affect the resulting relative risk 
ratios quite substantially.'' RIA at 46. Furthermore, there are other 
baseline concerns with the pre-2003 TIFA due to the limitation of 
consecutive driving time to 10 hours--driving during the 11th hour was 
illegal at the time the TIFA data were collected. Id. ``As a result, 
the data on the frequency of driving 11 hours or more could be 
underreported. As such, it is unclear whether fatigue-related crashes 
are over- or under-represented in the TIFA data set, since it is not 
possible to determine whether any under-reporting involved all fatal 
crashes during the 11th hour of driving, or just those where the truck 
driver was determined to be fatigued.'' Id. Accordingly, ``the relative 
risk of the subpopulation of commercial drivers admitting to illegal 
driving during the 11th hour or later may not reflect the relative risk 
of drivers operating legally under the 2003 final rule. Unfortunately, 
TIFA data for calendar year 2004 (the first year when driving in the 
11th hour was permissible) will not be available until late 2006.'' Id.
    This complete lack of relevant data to show the relative risk of 
driving during the 11th hour undermines FMCSA's justification for 
adding another, 11th hour of consecutive driving time to the HOS 
regulation. The FMCSA's entire benefit-cost analysis purportedly 
showing that industry productivity benefits trump safety benefits 
triggered by a return to a regime of 10 hours maximum driving time is 
based on a TOT multiplier for relative risk ratios using only pre-2003 
data. Accordingly, the agency's effort to rationalize this maneuver by 
conducting a ``sensitivity analysis'' is a house of cards.
    Furthermore, FMCSA points out in the preamble of the 2005 final 
rule that the TIFA file ``combines data from the FARS with additional 
data on the truck and carrier collected by the University of Michigan 
Transportation Research Institute (UMTRI) in a telephone survey with 
the truck driver, carrier, or investigating officer after the fatal 
crash.'' 70 FR 49997. Because the TIFA file relies so strongly on 
interview information, ``[d]espite its scope and complexity, however, 
TIFA data must be treated with caution.'' Id. Because FARS data has no 
information about the amount of driving hours that were accumulated by 
a driver at the time of a crash:

        TIFA researchers therefore contact the driver (or the employing 
        carrier) after the fatal crash to collect such information. 
        However, a good deal of time can elapse (more than a year in 
        some cases) between the date of the crash and the date the TIFA 
        researcher first contacts the driver (or the employing 
        carrier). This delay raises the question whether the driver can 
        accurately recall his/her driving time so long after the 
        incident.

Id.

    The use of totally non-representative data from time periods 
preceding the implemented 2003 final rule and these concerns about both 
the accuracy and the fundamentally uncorroborated reliability of TIFA 
data undermine any effort by the FMCSA to rely on its benefit-cost 
analysis to justify the extra hour of consecutive driving time in the 
2003 and 2005 final rules.\36\ FMCSA itself warns at the outset of the 
preamble to the 2005 final rule that ``[a]ll in all, we must thus be 
careful in applying this data to the 2003 rule or today's rule . . .'' 
70 FR 49981. Unfortunately, the agency is not careful--it uses the TIFA 
data as the basis for a failed effort to demonstrate, using pre-2003 
data from an era governed by a different regulatory regime, that the 
safety downside from the additional hour of driving is both minimal and 
overwhelmed by productivity benefits to industry. In fact, the FMCSA 
acknowledges that ``[a]vailable information on the effect of allowing 
11 hours of driving time is inconclusive.'' Id. at 49999.
---------------------------------------------------------------------------
    \36\ Petitioners also point out the agency's repeated effort 
especially in the preamble of the 2005 final rule to suggest, or to 
foster acceptance of the wholly unsupported belief, that the risk of 
driving more consecutive hours is somehow offset or neutralized by the 
additional time off provided for truck drivers in each shift.

     ``Also, despite [TIFA] being the largest database 
available * * * we thus must be careful in applying this data to the 
2003 rule or today's rule, where the minimum off-duty time is 25 
percent greater.'' 70 FR at 49981.

     ``The 2003 rule, which allows up to 11 hours of daily 
driving but requires 10 hours off-duty, may have reduced the risk of 
driver fatigue and thus the percent of large truck fatal crashes 
involving fatigue.'' Id. at 49997 (emphasis supplied).

    The agency is well aware that it cannot demonstrate any causal 
relationship between allowing longer consecutive driving hours and 
requiring a longer off-duty period in each shift. For one thing, the 
research literature cited not only by Advocates but the studies even 
reviewed and entered into the docket by the agency itself, including 
summaries of studies (e.g., An Annotated Literature Review Relating to 
Proposed Revisions to the Hours-of-Service Regulation for Commercial 
Motor Vehicle Drivers, DOT-MC-99-129, November 1999, FMCSA-1997-2350-
956) have shown over many years of investigation that as workers are 
demanded to work longer and longer shifts, especially those in excess 
of about 9-10 hours, their ability to recover from the extraordinary 
demands placed on their protracted vigilance and performance cannot be 
countered by providing them longer daily off-duty periods.
---------------------------------------------------------------------------
VI. FMCSA Should Reconsider the Determination To Adopt Only a Thirty-
        Four Hours Off-Duty ``Restart'' Provision
    The whole purpose of the restart provision in both the 2003 and 
2005 final rules is clearly the desire of motor carriers to get drivers 
back on the job in contrast to the pre-2003 fixed-length work week in 
which drivers were prohibited from working or driving if they had 
already exhausted their available, maximum duty hours over 7 or 8 
consecutive days. The FMCSA asserts in the preamble of the instant 
final rule that it ``has determined that the research on CMV drivers 
supports the assessment that a recovery period of 34 hours is 
sufficient for recovery from cumulative fatigue. The importance of two 
night (midnight to 6 a.m.) rest periods was highlighted in the 1998 HOS 
expert panel report.'' 70 FR 50017. But the 34 hour restart provision 
does not require two midnight to 6 a.m. rest periods, but only that 
drivers take a minimum 34 hours off-duty before restarting their 
working and driving ``clock'' to accrue another tour of duty that can 
total up to 60 hours in 7 ``floating'' work days or 70 hours in 8 
``floating'' work days. Moreover, the agency itself has pointed out 
over the history of this rulemaking that LTL drivers often work 
entirely at night or that long-haul, over-the-road drivers can have 
changes in their shifts from one tour of duty to another, or even 
within the same tour of duty. RIA at 41. As a result, many drivers will 
be released from duty at a time when they can only manage a single 
sleeping period, not two, in a minimum 34-hour layover because their 
inverted or acircadian schedule undermines efforts to sleep more than 
once over a 34-hour ``restart'' period. The FMCSA implies as much in 
the preamble of the final rule: ``The majority of driver (about 80 
percent) are daytime drivers, who would likely start their recovery 
period between 6 p.m. and midnight, and therefore these drivers would 
have the opportunity for two full nights of sleep prior to the start of 
the next work week.'' It follows that many drivers, especially those on 
rotating shifts or inverted (nighttime driving, daytime sleeping) 
schedules would be able to manage only a single sleep period.
    The agency engages in an extensive discussion of some of the 
research showing that a 34 hours off-duty ``restart'' layover is 
insufficient for recuperative rest and sleep. The FMCSA instanced the 
research advanced by the Insurance Institute for Highway Safety, 
including ``a 1997 observational study of over-the-road drivers \37\ 
[that] found that a 36-hour recovery period was inadequate, and a 2005 
analysis of data from a national LTL firm suggest[ing] that there may 
be increases in crash risk associated with off-duty periods as long as 
48 hours.'' 70 FR 50017-50018. The agency also cited the arguments and 
research findings advanced by Elisa Braver of the University of 
Maryland School of Medicine who:
---------------------------------------------------------------------------
    \37\ This study is not cited by the agency, but refers to A. 
McCartt et al., Study of Fatigue-Related Driving among Long-Distance 
Truck Drivers in New York State, 1997, rev, 1998.

        asserted that there is an absence of scientific evidence that 
        the cumulative sleep deficits and fatigue incurred by working 
        60 hours can be remedied by having 34 hours off-duty. She said 
        that the scientific evidence cited by the Agency in support of 
        the restart is marred by small numbers, inapplicability to the 
        driving population, and failure to study the effects of having 
        34 hours off after working according to the schedule permitted 
        by the rule. As an example, Braver said that the study cited by 
        O'Neill [O'Neill, T.R., et al. (1999)] featured small numbers 
        of volunteers in driving simulators following a schedule unlike 
        that of typical drivers who had 58 hours off between five-day 
        work shifts.\38\
---------------------------------------------------------------------------
    \38\ The FMCSA has already undermined its reliance on the O'Neill 
et al. Study nearly 6 years ago by characterizing it in its November 
1999 literature review as a study design [that] provided a relatively 
benign schedule that provided 10 consecutive hours off-duty and also 
allowed the drivers to sleep at times most compatible with circadian 
rhythms. The end-of-week recovery periods allowed three sleep periods 
that allowed sleep during optimal times--between midnight and 6 a.m. 
The duty days also included three scheduled breaks. As the researchers 
note, the results of this study may not be generalizable to operations 
that are not day shifts, have shorter post-shift off-duty periods, have 
few or no breaks during the duty period, or vary from what the drivers 
is accustomed to in terms of circadian disruptions or longer-than-usual 
on-duty periods.

    An Annotated Literature Review Relating to Proposed Revisions to 
the Hours of Service Regulation for Commercial Motor Vehicle Drivers, 
DOT-MC-99-129, November 1999, at 115-116.

---------------------------------------------------------------------------
Id. at 50018.

    The Insurance Institute for Highway Safety also cited the baseline 
research design defects of the O'Neill et al. (1999) study. However, 
the FMCSA response to these studies is essentially to ignore the need 
to respond and, instead, to take refuge in a generalization that ``the 
research on adequate recovery periods is somewhat limited . . .'' Id. 
at 50021. In addition, the agency selectively accepts some studies that 
support its decision and rebuts or rejects any that are unfavorable to 
its policy choice.
    For example, the well-known and often-cited research survey 
performed by Smiley and Heslegrave (1997) is repeatedly glossed without 
any clear acknowledgement that the conclusion of the authors was that a 
36-hour restart provision was not acceptable for driver recovery from 
the effects of cumulative fatigue.\39\ Id. At 50024. Similarly, the 
Insurance Institute's citation of the study by Wylie et al. (1997) 
showing that drivers could not recover from cumulative fatigue with 
even 48 hours off-duty is rejected out of hand because of its small 
sample size. Id. Yet, despite small sample size, the 50 subjects in the 
Balkin et al. (2000) Walter Reed study used as the basis for the 
fatigue model in the RIA and the nominal 82 subjects (of an incomplete 
study conducted by Hanowski et al. (2005)), does not deter the agency 
from relying on these research efforts because they provide some 
support for the agency's foregone decisions. Moreover, under the cover 
of the agency's claim that ``the current scientific evidence is 
limited,'' the FMCSA avoids taking the prudent course of requiring more 
time off at the end of a work week than is allowed under both the 2003 
and 2005 final rules. Instead, the agency opts to be far more demanding 
on drivers than under the pre-2003 regulation and instead restricts 
off-duty ``restart'' time to a minimum of 34 hours. In addition, the 
agency cites the OOIDA survey of its member drivers that only 20 
percent responded that they were getting more time at home as a result 
of the 2003 rule. This means that fully 80 percent of OOIDA drivers--
the great majority--answered ``No''--they are not getting home more 
often to rest and recover. Id. at 50025. The agency simply disregards 
the negative feedback from this survey on the claimed benefit of more 
home time under the 2003 regulation.
---------------------------------------------------------------------------
    \39\ Even the agency's mention of the Smiley and Heslegrave study 
in one location in the preamble of the 2005 final rule characterizes it 
as ``their literature review regarding 36-hour recovery'' without 
acknowledging that the authors concluded from their literature survey 
that a 36-hour recovery period was not adequate for commercial drivers 
to expunge sleep debt and recover performance. 70 FR 50024.
---------------------------------------------------------------------------
    It is clear that the agency wants to justify the 34-hour restart 
provision because the economic benefits of cycling drivers back that 
much sooner into the longer working and driving hours allowed by the 
2003 and 2005 final rules produce economic gains for the trucking 
industry. Additional time off-duty would spawn delays that are 
generated by a longer minimum restart provision that reduces driver 
productivity.\40\ ``[W]e can say that at least one-third of restarts 
are short enough to bring a productivity gain.'' RIA at 2-22. However, 
that policy choice is not supported by the research that the agency 
advances, and it is countered by other research showing that the 34 
hours allowed as a minimum layover before a new tour of duty is 
inadequate to eliminate commercial driver fatigue accumulated from long 
working and driving hours over previous days. The agency needs to 
reconsider its decision to discount or ignore countervailing research 
that does not support its position.
---------------------------------------------------------------------------
    \40\ ``Because they limit driving hours and require longer restart 
periods, the relative productivity loss caused by Options 3 and 4 are 
substantially greater than that for Option 2 in almost all cases. Also, 
in almost all cases, the impact of Option 3 is greater than that of 
Option 4, due to the longer restart required under Option 3.'' RIA at 
ES-3.
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VII. The Adequacy of Rest and Sleep Time Allotted Under the Rule Should 
        Be Reconsidered
    In the final rule, FMCSA approaches the topic of the minimum rest 
time needed to ensure adequate sleep with ample sleight-of-hand. The 
agency attempts to foster the acceptance of a variety of off-duty sleep 
times as ``normal'' in this final rule, especially in the preamble, 
that vary between a low of 6 hours on average achieved by drivers to 
the 8.5 hours, when split rest time in sleeper berths is taken, 
recommended by Mark Rosekind and apparently endorsed by the FMCSA.\41\ 
The FMCSA should remember that it is already on record in more than one 
instance over the history of this rulemaking, beginning with the 
advance notice of proposed rulemaking in 1997, that drivers need a 
minimum of a full 8 hours of restorative sleep. For example, in the May 
24, 2000, NPRM, the agency asserted that drivers should get ``eight 
consecutive hours of uninterrupted sleep each day[,]'' and that ``to 
afford the driver an opportunity to obtain a minimum period of 8 hours 
to sleep, the research shows that the off-duty periods need to be 
increased.'' \42\ 65 FR 25554.
---------------------------------------------------------------------------
    \41\ ``Rosekind of Alertness Solutions concluded that translating 
these scientific results into operational practice would suggest that 
an `anchor sleep opportunity' of 6.5 hours and another sleep 
opportunity of 2 hours would likely provide the minimum number of sleep 
hours needed to maintain a performance equivalent to one 8-hour sleep 
period.'' 70 FR 50027-50028.
    \42\ Also see, 68 FR 22456, 22469.
---------------------------------------------------------------------------
    In contrast, the agency picks and chooses various amounts of sleep 
throughout the preamble of this final rule, always defending each 
different number as being adequate for drivers to recover performance 
and expunge sleep debt. Here is a sampling of the agency's shifting 
stance on the amount of daily sleep that truck drivers need:

   ``The circadian friendliness of today's rule is bolstered by 
        the requirement for 10 consecutive hours off-duty. This is 
        enough time to enable drivers to get the 7-8 hours of sleep 
        most people need to maintain alertness and prevent the onset of 
        cumulative fatigue.'' 70 FR 49980.

   ``While the Agency would like to see drivers obtain a sleep 
        period between 7 to 8 hours per day to maximize driver 
        alertness, the finding of 6.28 hours of sleep per night [in the 
        Hanowski, et al. Study] is within normal ranges consistent with 
        a healthy lifestyle and is a vast improvement over previous 
        sleep findings.'' \43\ Id. at 49983.
---------------------------------------------------------------------------
    \43\ As noted earlier, the Hanowski et al. Study had a very small 
sample size, and the authors point out several major variables that 
were uncontrolled in the research effort so that, in the end, they 
cannot account for the amounts of sleep taken in relation to fatigue 
and performance.

   ``Today's rule provides for 10 hours of consecutive off-duty 
        time, giving drivers the opportunity to obtain 7 to 8 hours of 
        restorative sleep per day. Research on the implementation of 
        the 2003 rule shows that drivers are sleeping 6.28 hours of 
        verified sleep and this is within normal ranges consistent with 
---------------------------------------------------------------------------
        a healthy lifestyle.'' Id. at 49991, also see, id., at 49993.

   ``The 2003 rule and today's final rule provide drivers an 
        additional 2 hours off-duty creating a much improved 
        opportunity for 7 or 8 hours of sleep.'' Id. at 50011.

   ``The research supports 6-8 hours of sleep on average, as 
        having a positive impact upon a driver's health.'' Final Rule 
        at 164. However, the FMCSA also asserts just prior to this 
        statement that:

                [T]he research overwhelmingly supports that on average 
                humans require between 7 and 8 consecutive hours of 
                sleep per day to restore performance. * * * 
                Establishing a rule requiring less than the average 
                would result in sleep restriction over time that would 
                lead to increased fatigue and reduced performance, thus 
                elevating crash risk and compromising safety. Id.

   And on the preceding page, the FMCSA favorably quotes 
        Rosekind (1997) who ``concluded that `scientific data are clear 
        regarding the human physiological requirement for 8 hours of 
        sleep to maintain performance and alertness','' id. At 50015. 
        On the same page the agency again cites the conclusion reached 
        by several studies that ``even a relatively small reduction in 
        average nighttime sleep duration (i.e., approximately 6 hours 
        of sleep) resulted in measurably decremented performance,'' 
        id., as well as Mark Rosekind's finding from other research 
        that had been conducted, ``that obtaining 2 hours less sleep 
        than needed (for an average adult this equates to about 6 hours 
        of sleep) produces a reduction in performance and alertness. 
        The data showed that obtaining a total of 8 hours of sleep per 
        24-hour period is critical.'' Id. at 50027.

   However, the agency lowers the bar even further: ``Based on 
        research that led to the 2003 rule, FMCSA knew that short sleep 
        (sleep less than 6 hours) among drivers was a concern from both 
        a safety and health perspective.'' Id. at 50027.

   And on the same page there is a return to the position that 
        ``[T]o ensure that drivers are afforded the opportunity to 
        obtain 7 to 8 hours of sleep, the rule must afford a period of 
        time greater than the minimum required for sleep.'' Id. Yet the 
        agency in the immediately preceding pages has shown--and 
        endorsed--the position that less than 7 hours of sleep is 
        acceptable and that, indeed, even 6 hours of sleep is 
        acceptable, despite its own rebuttal of that view at, id., 
        50015.

    It is clear from this review that the FMCSA has a shifting, 
contradictory view in the record of what is needed as the minimum 
amount of sleep for recovery from fatigue. That agency view varies from 
8 hours of sleep, 7-8 hours of sleep, 6.28 hours of sleep, down to ``6-
8 hours of sleep,'' id. at 50016, which the agency itself contradicts 
only one page earlier by emphasizing the findings of several studies 
that showed that 6 hours of sleep is insufficient for expunging sleep 
debt and restoring performance. Id. at 50015. If 6 hours of sleep are 
insufficient at one point in the preamble of the final rule (id.), then 
the average amount of sleep of 6.28 hours which the agency found to be 
sufficient based on the Hanowski et al. Study--which is ``approximately 
6 hours of sleep,'' id. at 50015--is clearly inadequate on its face.
VIII. The Agency Should Reconsider Its Decision to allow CMV Drivers To 
        Drive and Rest on a Non-Circadian, 21-Hour Rearward Rotating 
        Shift Schedule
    In the 2000 NPRM, the FMCSA argued strongly in several places in 
the preamble that truck drivers would benefit in reduced fatigue, 
improved performance and alertness, and elimination of accumulated 
sleep debt if their working and driving cycle adhered to a fully 
circadian, 24-hour shift cycle of waking time and rest time. See, e.g., 
65 FR 25548, 25554-25556. The agency attempted to ensure this by a 
schedule for long-haul drivers that provided 10 hours off-duty, 12 
hours of work, and 2 hours of breaks. It even attempted to regularize 
the layover period for truck drivers following the end of a tour of 
duty by ensuring that drivers would be able to benefit from nighttime 
sleep and daytime activity before beginning a new tour of duty by 
essentially penalizing motor carriers that released drivers after 11 PM 
at the end of a tour of duty. Id. at, e.g., 25604. Overall, the FMCSA 
underpinned the entire HOS regime in the 2000 NPRM by attempting to 
ensure that drivers both during the work week and after its completion 
were aided in achieving alertness and eliminating accumulated sleep 
debt by a regulatory scheme that hewed closely to a circadian schedule. 
A circadian day for commercial drivers was, in fact, the centerpiece of 
the proposed rule.
    However, this dedication to a circadian work day for truck drivers 
disappeared in the 2003 HOS final rule. That final rule markedly 
diverged from the NPRM in several major ways, but the most far-reaching 
change was the abandonment of a strict circadian schedule for drivers 
during a shift. The final rule, although it provided up to 3 hours of 
non-driving duty time in each shift, nevertheless did not require any 
non-driving shift hours to be taken and, instead, permitted drivers to 
use a backward rotating 21-hour shift schedule consisting of only 11 
hours of consecutive driving followed by a minimum 10 hours of off-duty 
rest time. 68 FR 22456. The agency even went so far as to disagree with 
the American Trucking Associations' (ATA) espousal of a circadian work 
day \44\ to argue that ``the strict 24-hour work/rest cycle would be 
ideal from a scientific viewpoint, but it is simply not practical and 
too inflexible to require of the industry. A strict 24-hour work/rest 
cycle would cause unavoidable impacts to motor carrier operations that 
the agency cannot justify from a safety or economic standpoint.'' Id. 
at 22468. ``Moving toward a 24-hour work/rest cycle without requiring a 
rigid starting time could achieve safety benefits while causing less 
productivity disruptions to motor carrier operations than adopting the 
strict 24-hour work/rest cycle the NPRM and P.A.T.T. proposed.'' Id.
---------------------------------------------------------------------------
    \44\ Although it must be stressed that this ATA circadian schedule 
would be achieved by allowing drivers up to 14 hours of driving each 
day followed by a minimum 10 hours of off-duty rest time.
---------------------------------------------------------------------------
    In fact, these quotations show clearly that the agency retreated 
from the scientific research findings cited in more than one place in 
the 2000 NPRM and substituted a rationalization that had no support in 
the rulemaking record. Nowhere did the agency establish that drivers 
would in fact not be less fatigued and less well rested if they used a 
21-hour shift rotation rather than a fully circadian 24-hour work/rest 
schedule. The agency itself marshaled the research both in the preamble 
of the NPRM itself as well as in its accompanying Annotated Literature 
Review, op. cit., to show that schedules with less than a full 
circadian alternation of work with rest produced workers who got less 
rest and lower quality sleep, and also performed more poorly. The 
agency's argument that a 21-hour rotation was preferable to the 18-hour 
rotation was as gratuitous and unsupported as its conclusory 
blandishment, supra, that departing from a 24-hour work/rest schedule 
``could achieve safety benefits.'' Nowhere in the administrative record 
of this rulemaking did the agency show that the well-known decrements 
in the length and quality of sleep, and in worker performance with 
respect to mistakes, deaths, and injuries would be abated by a 21-hour 
schedule and that such a schedule would achieve the same safety 
benefits as a fully circadian, 24-hour schedule. The FMCSA simply 
pronounced that this 21-hour drive/rest shift cycle was just as 
acceptable in safety results as a 24-hour schedule, and proceeded on 
the basis of this circular argument to adopt the shorter, non-circadian 
schedule. No additional justification for continuing this major feature 
of the 2003 HOS regulation was provided by the FMCSA in the final rule.
    Accordingly, the agency has failed to justify imposition of a non-
circadian, rearward rotating 21-hour drive/rest schedule in the 2005 
HOS final rule, and that major aspect of the new regulation should be 
reconsidered by the FMCSA.
IX. FMCSA Should Reconsider the Determination To Allow Sixteen Hour 
        Work Days for Short Haul Truck Drivers
    This final rule adopts a second 16-hour work day for short haul 
drivers who operate commercial motor vehicles without commercial driver 
licenses (CDLs) between 10,001 and 26,000 pounds gross vehicle weight 
if they operate within a 150 air-mile radius \45\ of their work 
reporting location to which they must return at the end of each work 
day. In addition, these short-haul drivers will not have to keep 
records of duty status, that is, logbooks entering time worked, driven, 
and off-duty over the course of both work days and a tour of duty. 
Employers will be required to maintain time records for 6 months. The 
agency provides no narrative explanation of what is entered on such 
time records. 70 FR 50033.
---------------------------------------------------------------------------
    \45\ An air mile is identical to a nautical mile, both equivalent 
to 1.15 statute miles. Therefore, an air mile is equal to 162.5 statute 
or land miles.
---------------------------------------------------------------------------
    The agency attempts to justify the addition of a second 16-hour 
work day by appealing to a few studies supposedly evidencing driver 
tolerance of very long work days without any significant deterioration 
of performance or effects of fatigue. Id. at 49995, 50033-50035. The 
FMCSA also appeals to its analysis of short-haul operations within 
relatively circumscribed operating areas that shows such operations 
involve a relatively low proportion of driving in comparison with other 
work-related duties and tasks. Id. at 50033. The implication is that 
the amount of risk exposure per day and over a tour of duty has been 
considerably reduced and that this shows why short-haul drivers have 
relatively few fatigued-related fatal crashes.
    Each of these arguments needs to be taken in turn. First, it must 
be emphasized that, although the agency is claiming that ``longer 
workdays will not translate into longer driving times in the short-haul 
environment,'' id. at 50033, and ``short-haul drivers rarely, if ever, 
accumulate 11 hours of driving, regardless of work day length[,]'' id., 
these operations have not yet evolved to take advantage of the longer 
working hours provided by the final rule. The panoply of other 
permitted expanded working and driving hours are available to the 
short-haul trucking sector. Id. at 50032-50033. Petitioners have 
previously rebutted the agency's unsupported belief that the 2004 
snapshot of the trucking industry shows that the increased working and 
driving hours provided by the 2003 final rule will not be used. 
Similarly, the agency's supposition that the future will be like the 
recent past for the short-haul sector, such as its package delivery 
operations, is an ipse dixit--an utterly conclusory presumption without 
support in the record. Just as the RIA analysis of the use of the new, 
additional working and driving hours shows that the use, for example, 
of the 11th hour of driving is expected to increase in order to raise 
productivity benefits for the trucking industry, there is every reason 
to expect that the short-haul industry sector will evolve to expand 
operations over the greater number of working and driving hours first 
provided by the 2003 final rule and now further increased by the 2005 
final rule.
    Those hours, as stated openly by the FMCSA in the final rule, id. 
at 50033, consist of the same working and driving hours per shift and 
per tour of duty as those provided to other trucking industry sectors, 
save for the new sleeper berth exception. The short-haul sector may use 
an 11th hour of consecutive driving, may use the 34-hour minimum 
restart provision, and may use the maximum tours of duty limits of 60 
hours in 7 days or 70 hours in 8 days. Through the use of the new 
``floating'' work week triggered by the application of the 34-hour 
restart provision, this means that short-haul drivers may accrue 88 
hours of work in 7 days and 102 hours of work in 8 days. This means 
that over 7 consecutive days, short-haul drivers could work 47 percent 
more than permitted under the pre-2003 HOS rule, and over 8 consecutive 
days, they could work 46 percent more than under the prior rule.
    The potential impact of this dramatic increase in available hours 
on the health and safety of these drivers, who could eventually be 
tasked with working over 100 hours in an 8-day tour of duty, is waved 
off by the agency with the unsupported proclamation that the second 16-
hour day will not be used; therefore, the agency's cost-benefit 
analysis assumes that ``the risk impacts of the second 16-hour day 
would be essentially zero.'' RIA at 6-72. It is not logical for the 
agency to enshrine in amended regulations dramatically increased 
working and driving hours that it nevertheless insists will never be 
used by drivers and motor carriers.
    If the second 16-hour day is not expected to be used, then why does 
the agency provide it? The FMCSA response in the preamble of this final 
rule is that ``the Agency want[s] to give this segment of the motor 
carrier industry as much flexibility as possible to structure their 
operations efficiently . . .'' 70 FR 50033. The history of the industry 
clearly shows that if the additional time or increased flexibility is 
available, industry will make use of it to increase productivity. One 
has only to point to the sea change in HOS regulation adopted by the 
Federal Highway Administration in 1962 that no longer tied the maximum 
number of driving and off-duty hours to a circadian day of 24 hours, 
but rather allowed drivers to constantly alternate 10 of driving with 8 
hours off-duty along with no requirement to use any non-driving working 
hours. See 61 FR 57252, 57254 col. 2 (Nov. 5, 1996). The result was 
predictable: industry, especially the long-haul, over-the-road sector, 
began increasing productivity by more rapid delivery schedules covering 
more miles in fewer days--a practice that was key to the development 
over the last quarter-century of Just In Time delivery practices, 
especially following deregulation of the trucking industry at the start 
of the 1980s.
    The agency cannot have it both ways. It cannot provide a second 16-
hour work day which, on its face, is being adopted to allow the short-
haul industry sector to expand working times twice in a work week to 16 
hours and yet also claim that the day will not be used and, therefore, 
that the second 16-hour work day is safety neutral.
    The agency also tries to justify the addition of a second 16-hour 
work day by appealing to a few studies that supposedly show that 
driving and working 16 and even 17 hours does not produce significant 
changes in driver fatigue and performance. All of these studies are 
inadequate for demonstrating that short-haul drivers can operate 
vehicles and work extremely long days without adverse impacts on their 
health and safety. Even the agency admits that two studies of short-
haul drivers showed high levels of stress because these drivers 
regarded their work loads even under the working and driving hours 
permitted under the pre-2003 regulatory regime to be unreasonable. 70 
FR 50033. In another study conducted by Williamson et al. (2000) of 
drivers in New Zealand, the agency characterizes this study to have 
found that ``drivers could maintain their performance until about the 
17th hour of wakefulness, after which performance capacity was 
sufficiently impaired to be a safety concern.'' Id. But this study used 
a break of at least 24 hours before the start of the study's 16-hour 
working and driving day, and the study of a 16-hour work day was a 
simulation and was not conducted on-road at all. In fact, the 
``simulation'' involved drivers playing computer games. Moreover, the 
agency fails to report that the investigators found that ``performance 
deteriorated significantly by the middle of the second 16-hour period. 
In fact, performance levels at this time were considerably poorer than 
the 0.05 percent BAC alcohol equivalence standard.'' \46\ Moreover, the 
drivers ``tested'' by playing computer games for 16 hours had an 
immediately previous, full 24-hour break. Id. It is clear that the 
impromptu demands of the short-haul sector of the industry, such as 
regional package delivery services, will often find it advantageous to 
schedule not only one 16-hour work day without a prior 24 hour break, 
but that drivers can be compelled to work the available second 16-hour 
work day 2 days in row if, for example, accelerated holiday package 
delivery demands must be met. The Williamson et al. Study also shows 
that successive days of exceedingly long working hours dramatically 
increased fatigue and that recovery was not possible in the short term, 
a finding also ignored by the FMCSA.
---------------------------------------------------------------------------
    \46\ A. Williamson, et al., ``Demonstration Project for Fatigue 
Management Programs in the Road Transport Industry: Summary of 
Findings,'' Road Safety Research Report CR 192, Australian Department 
of Transport and Regional Services, 2000.
---------------------------------------------------------------------------
    As for the FMCSA's reliance on the study by Massie et al. (1997) 
study, Short-Haul Trucks and Driver Fatigue, DTFH61-C-00038, Federal 
Highway Administration, Washington, D.C., 70 FR at 50034-50035, even 
the agency's own review of this study in its literature review for the 
2000 NPRM \47\ points out that the authors reviewed local service 
trucks within a 50-mile operating radius and found that they had a 
fatal crash involvement rate 1.8 times higher than over-the-road 
trucks, a fact not mentioned by the FMCSA. Moreover, the authors 
analyzed crash data for driver fatigue involvement and found that 
fatigue was not coded often as a crash contributing factor, as is the 
case with all PARs used as the basis for FARS judgments on the presence 
of driver fatigue. As a result, the Massie et al. Study concluded that 
fatigue involvement was probably underreported. In any case, the 
control for trip distance for attempting to determine the presence of 
fatigue was 50 miles or less, not the 150 air miles adopted by the 
FMCSA in this final rule for allowing short-haul drivers to work two 
16-hour days each week.
---------------------------------------------------------------------------
    \47\ ``An Annotated Literature Review Relating to Proposed 
Revisions to the Hours-of-Service Regulation for Commercial Motor 
Vehicle Drivers,'' op. cit., at 42-43.
---------------------------------------------------------------------------
    The agency has no justification for allowing short-haul drivers to 
work between 88 and 102 hours over the course of a tour of duty and 
work two 16-hour days a week--which may be required back-to-back--on 
the basis of the arguments and research advanced in the preamble of 
this new HOS regulation. In fact, the agency's judgment should be to 
withdraw the use of the first 16-hour day permitted by the 2003 final 
rule.
X. Omission of Electronic On-Board Recorders From the Final Rule
    Finally, Petitioners regard the agency's explanation of why it will 
continue to defer the potential adoption of Electronic On-Board 
Recorders (EOBRs) to be another example of the FMCSA's long, well-
documented history of dilatory action on this major safety topic.\48\ 
70 FR 50041. The 2003 and 2005 final rules permit truck drivers to work 
and drive far longer hours than allowed under the pre-2003 regulation, 
and the agency is well aware of the documented, widespread 
falsification of log books entries by commercial drivers seeking to 
conceal their practices of exceeding maximum permitted on-duty and 
driving hours in each shift and over multi-day tours of duty, as well 
as illegally reducing their off-duty rest time below the minimum 
required in HOS regulations.\49\ Now that the agency has permitted even 
more hours of driving and working and less rest each week by allowing 
drivers to use only a minimum 34-hour restart layover that creates a 
more rapid cycling of work weeks than under the pre-2003 rule, it is 
more crucial than ever for the FMCSA to ensure that drivers do not 
become sleep-deprived and fatigued by violating these more extreme 
limits on driving, working, and off-duty hours that have been allowed 
by the instant final rule.
---------------------------------------------------------------------------
    \48\ The rulemaking comments of Advocates for Highway and Auto 
Safety on the need for EOBRs (ANPRM, 69 FR 53386, September 1, 2004), 
sets forth this protracted rulemaking history of both the Federal 
Highway Administration and the Federal Motor Carrier Safety 
Administration repeatedly denying petitions for opening rulemaking and 
indulging delaying tactics in addressing this major area of need for 
motor carrier safety despite prompting by Congress, the National 
Transportation Safety Board, and the Inspector General of the U.S. 
Department of Transportation. Comments of Advocates for Highway and 
Auto Safety, Docket No. FMCSA-2004-18940-310 (Nov. 30, 2004). See also 
comments of Public Citizen, Docket No. FMCSA-2004-18940-317 (dated Nov. 
30, 2004). Both sets of comments are incorporated by reference in this 
petition.
    \49\ See, supra, footnote 30.
---------------------------------------------------------------------------
    Accordingly, the FMCSA needs to accelerate the rulemaking process 
to adopt EOBRs to ensure that drivers do not exceed the new, higher 
driving hour limits. The FMCSA has already unconscionably delayed the 
rulemaking process by first issuing an advance notice of proposed 
rulemaking with no stated calendar of when the agency will actually 
issue a proposed rule. The agency's statement in this rulemaking is 
simply not an acceptable engagement of this need to propose adoption of 
EOBRs as soon as possible.
XI. Procedural Issues
    During the course of the rulemaking that resulted in the 2005 final 
rule, FMCSA committed procedural errors that should be reconsidered by 
the agency.
A. FMCSA's Flawed Procedural Approach to This Rulemaking Proceeding
    FMCSA chose to begin this rulemaking proceeding by proposing the 
same 2003 final rule that had been the subject of an adverse court 
decision and which was then vacated in its entirety. Public Citizen et 
al., v. FMCSA, 374 F.2d 1209 (2004). By proceeding in this manner, the 
agency deprived the public of any real opportunity to engage in and 
comment on the agency's intended rulemaking proposal and final rule.
    Since the 2003 final rule had been legally rendered null and void 
by the Federal court, the public at the very least should have been 
presented with the pre-2003 HOS rule as the baseline for initial public 
comments. If any rule was to be used as the baseline for comment, the 
agency was legally bound to make its starting point from the pre-2003 
regulation, the rule that was and is still in effect for motor coach 
operations.
    FMCSA, however, stated that it was not actually proposing the 
vacated 2003 final rule, but that in order ``[t]o facilitate 
discussion, the agency is putting forward the 2003 rule as the 
`proposal' on which public comments are sought'' 70 FR 3339 (Jan. 4, 
2005). Clearly, this was not a proposed rule because the agency merely 
restated the contents of the vacated 2003 rule and sought information 
about how the 2003 rule might be altered or justified to meet the 
deficiencies pointed out in the court decision. Moreover, the agency 
was conducting ongoing research and analysis of the issues raised 
regarding that rule. In fact, the agency was gathering information and 
conducting analysis but, as yet, had made no determinations about what, 
if any, changes would be made. The public was given no indication 
whether the agency would consider making major or only de minimis 
changes from the 2003 final rule when that rule was re-invoked as the 
basis for the January 24, 2005, notice. In this light, the January 2005 
notice was more in the nature of an advance notice of proposed 
rulemaking rather than a specific proposed rule. The agency itself 
points out in the preamble to the final rule, ``[a]s the quotation 
marks around the `proposal' indicate, the 2003 rule was merely the 
starting point of a research and rulemaking program to determine 
whether that rule could be reconciled with the Public Citizen 
decision.'' 70 FR 50043.
    This ``starting point'' could not also turn out to be the ending 
point of the rulemaking process. FMCSA was legally obligated to provide 
the public notice and an opportunity for comment on the rule it 
ultimately determined to proceed with, and to share its reasoning. Once 
the agency had sifted through information and made determinations 
regarding the shape the future HOS regulation should take, the agency 
was bound to present that proposal to the public and allow an 
opportunity for further comment. The agency in fact provided the public 
only one opportunity to comment on a ``proposal'' which even the agency 
acknowledges was merely a place-holder that was not intended to be the 
end result of the agency's rulemaking process. The agency then 
proceeded to make determinations about what should be in the new HOS, 
but those determinations and the rationale for those determinations 
were first presented to the public in this final rule, without prior 
public notice or an opportunity for public comment. This procedure 
violates the fundamental protections afforded in the Administrative 
Procedure Act (APA), 5 U.S.C.  553.
    As it turned out, the 2005 final rule makes two major changes to 
the previous 2003 final rule by changing the regulation regarding 
short-haul drivers and sleeper berth usage. However, because these 
specific changes were never presented to the public until the issuance 
of the final rule, the public had no opportunity to comment on those 
specific changes. As can be seen in this petition, petitioners would 
have opposed both those changes had they been offered as adopted in the 
2005 final rule for public comment prior to adoption. Equally 
important, the agency did not provide the public an opportunity for 
comment regarding its reasons and explanation for retaining critical 
aspects of the 2003 final rule in the 2005 final rule. Prior to the 
issuance of this final rule, the agency afforded no opportunity to 
evaluate or refute the agency's basis for determining that major 
portions of the 2003 final rule, including the 11-hour limit on 
consecutive hours of driving per shift and the minimum 34-hour restart, 
should be retained. This truncated proceeding violates basic principles 
of fairness and due process under which the agency is required to 
permit the public to comment on regulatory proposals. Such violation is 
especially egregious where, as in the present circumstances, the 
rulemaking is highly controversial, the previous and nearly identical 
rule has been overturned in Federal court, and the agency has 
determined that the rulemaking is significant from an economic 
standpoint. 70 FR 3351 (``this rulemaking constitutes an economically 
significant regulatory action under Executive Order 12866'').
    The agency asserts that this un-APA style procedure was necessary 
due to the one-year time limit for regulatory action set by 
Congressional action. Section 7(f) of the Surface Transportation 
Extension Act of 2004, Part V, Pub. L. 108-310 (Sept. 30, 2004). This 
position is belied by the fact that the agency took three (3) months, 
one fourth of the allotted year, to draft and issue the January 2005 
place-holder notice. The preamble of that notice runs just 10 pages in 
the Federal Register and essentially reviews the 2003 final rule and 
poses generalized questions regarding that rule, requests information 
on HOS issues and asks for public comment. Nothing in that notice 
necessitated the use of so much time that a true notice of proposed 
rulemaking could not be included in the agency's rulemaking schedule. 
Despite the fact that the 2003 final rule was maintained in place for 1 
year, FMCSA was obligated at some point to afford the public an 
opportunity to comment on the actual proposal the agency intended to 
present for ultimate adoption in this final rule.
    On reconsideration, FMCSA should undertake a new regulatory impact 
analysis that is published for public comment.
B. The Administrative Record
    Petitioners also complain regarding FMCSA's failure to provide a 
complete record for the public to review in two important respects.
    First, the agency decided to place abstracts in lieu of complete 
copies of studies and research reports relied on by the agency in the 
electronic rulemaking docket. Despite FMCSA's assertion that the ``full 
versions of the reports were readily available in the Library of 
Congress, the National Library of Medicine in Bethesda, and other 
sources such as university libraries,'' 70 FR 50044, many of those 
research reports are only available for a substantial fee through pay-
for-use or subscription services and would require a large expenditure 
of funds to collect all the sources cited in the abstracts. This placed 
a significant burden on the public, including the public interest 
organizations in this petition, to search for and pay to obtain 
documents and materials that the agency relied on in its rulemaking 
proceeding. All such documents should be made reasonably available to 
the public at no cost as part of the rulemaking proceeding. In response 
to complaints that such a process deprived the public of an opportunity 
to participate on an equal footing with the FMCSA in the regulatory 
process, ``FMCSA [ ] created a reading room where the copyrighted 
materials referred to in the NPRM may be examined.'' Id. However, the 
public was not notified of the availability of this material at the 
agency until the publication of the 2005 final rule on August 25, 2005. 
No prior notice to the general public was given.
    Counsel for Petitioner Advocates for Highway and Auto Safety 
contacted FMCSA's HOS Team in February 2005, before the close of the 
public docket, regarding the agency's use of abstracts but received no 
response from agency personnel until May 2005. Counsel for Petitioner 
Advocates for Highway and Auto Safety was later notified by letter that 
23 studies for which abstracts appeared in the electronic docket were 
available in a public reading room. That notification, however, was 
provided in a letter received on May 1, 2005, more than 50 days after 
the closing date for public comment and more than 2 months after 
counsel for Petitioner Advocates for Highway and Auto Safety had 
originally contacted the agency with an inquiry regarding those 
documents. Letter dated April 29, 2005, from Thomas L. Yager, FMCSA HOS 
Team, to Henry M. Jasny, General Counsel, Advocates for Highway and 
Auto Safety.
    Second, FMCSA did not place a number of important studies that the 
agency relies on in the final rule in the public docket until very late 
in the rulemaking process. For example, it was not until August 10, 
2005, that the literature review conducted by the National Academy of 
Sciences Transportation Research Board (TRB), with which FMCSA had 
contracted in order to ``review, first, the literature published 
between 1975 and the present concerning the health implications of the 
hours-of-service regulations for CMV drivers,'' 68 FR 3341, was entered 
into the docket. Docket No. FMCSA-2004-19608-2084. In addition, the 
study by Hanowski, et al., was not placed in the docket until August 
16, 2005 (Docket No. FMCSA-2004-19608-2089). The final rule was 
formally signed by the FMCSA Administrator and issued on August 16, 
2005 (70 FR 50073, Aug. 25, 2005). The agency did not provide the 
public with copies of other important studies the agency relied until 
after the 2005 final rule was issued, including the second interim 
report of the study by Jovanis, et al., (Interim Report II) which was 
placed in the docket on August 18, 2005 (Docket No. FMCSA-2004-19608-
2091), and the two versions of the study by Campbell, K.L., which were 
placed in the docket on August 25, 2005 (Docket No. FMCSA-2004-19608-
2115 (Feb. 2005 Draft Report)) (Docket No. FMCSA-2004-19608-2116 (Aug. 
2005 Final Report)). Finally, the agency's rule relies on critical 
analysis included in the RIA, a document that is dated August 15, 2005, 
and which was not placed in the public docket until August 19, 2005 
(Docket No. FMCSA-2004-19608-2094). As a result, the public was unaware 
of the existence of these documents, had no opportunity to review, 
evaluate, or comment on their contents in advance of issuance of the 
final rule.
            Submitted By:

Judith L. Stone,
President,
Advocates for Highway and Auto Safety.

LaMont Byrd,
Director, Safety and Health Department,
International Brotherhood of Teamsters.

Joan Claybrook,
President,
Public Citizen.

John Lannen,
Executive Director,
Citizens for Reliable and Safe Highways.

Andrew McGuire,
Executive Director,
Trauma Foundation.

Daphne Izer,
President and Founder,
Parents Against Tired Truckers.
      
                                 ______
                                 
 Ol' Blue, USA (United Safety Alliance, Inc.TM)
                                    Van Nuys, CA, December 17, 2007
Hon. Frank R. Lautenberg,
Chair,
Senate Subcommittee on Surface Transportation and Merchant Marine 
            Infrastructure, Safety, and Security,
Washington, DC.

          Re: Hearing on Federal Truck Driver Hours-of-Service Rule
Dear Senator Lautenberg:

    In light of rescheduling of the previous two hearing dates, which I 
had made arrangements to attend, I am communicating my concerns via 
this document.
    The purpose of this letter is to provide you with some information 
regarding the lack of education by the FMCSA of commercial truck 
drivers concerning the various versions of the hours-of-service (HOS) 
regulation in effect since January 2004. This information was obtained 
through a survey conducted by the United Safety Alliance, Inc., d.b.a. 
Ol' Blue, USA, and an organization that is trusted by thousands of 
truckers throughout the Nation.
1. Background
    United Safety Alliance, Inc. is a non-profit charitable 
organization transacting business under the name ``Ol' Blue, USA.'' Ol' 
Blue, USA, was founded in 1986 and is dedicated toward educating the 
public on highway safety and improving relations between commercial 
drivers, law enforcement and the public. Ol' Blue, USA, conducts 
various educational programs including radio programs, Internet 
programs, a monthly magazine column, simulated truck inspections and 
logbook seminars at trucking trade shows. Our school program ``Big 
Wheels, Little Kids'' involves educating children about safety around 
large vehicles.
    The affairs of Ol' Blue, USA, are managed by our volunteer Board of 
Directors. Our seven (7) directors are individuals from the trucking 
industry, retired law enforcement, trucking media and education. I 
serve as a president of the organization at the pleasure of our Board 
of Directors of which I am also a member.
2. Sources of Funds
    Ol' Blue, USA, is funded through cash and in-kind donations from 
the public. Receiving no Federal, or state funding.
3. Survey Background
    Beginning on August 15, 2006 and terminating on October 31, 2006, 
Ol' Blue, USA began conducting an on-line survey of 1,094 CDL drivers. 
This survey was designed by Crump and Associates as a public service 
for Ol' Blue, USA, who states that sampling of more than 1,000 drivers, 
provides a more than adequate sampling to quantify the survey as valid. 
The identities of the survey participants were anonymous. Ol' Blue, USA 
conducted the survey because of the feedback we were receiving from 
listeners on our radio program and from Internet correspondence 
indicating that there was widespread misunderstanding of the hours-of-
service rule, not only among drivers, but also among management. We 
wanted to confirm this information through our survey and concentrate 
on what was lacking in the way of HOS education.
    This survey was used as source material for many trucking 
publications, and was never challenged as to the results, not even by 
FMCSA, who responded to a publication that the data was being 
evaluated.
4. Summary of Survey Results
    The results of the HOS survey conducted by Ol' Blue, USA indicated 
the following:

   67.5 percent of participants said the Hours-of-Service 
        regulations were difficult to understand and easy to violate 
        accidentally.

   48.7 percent of participants said that they needed more 
        training about Hours of Service regulations in plain language.

   54.9 percent of participants said they thought they 
        understood the Hours-of-Service regulations, but still have 
        some difficulties.

   62.7 percent of participants said they needed to know where 
        to find honest answers about Hours-of-Service regulations.

   51.1 percent of participants said that the people they work 
        for expect them to violate Hours-of-Service regulations as part 
        of their job.

    The Ol' Blue, USA 2006 HOS driver Survey can be found at http://
www.olblueusa.org/survey/.
5. Commercial Vehicle Safety Association (CVSA) Roadcheck 2007
    The CVSA is an organization consisting of representatives from 
commercial vehicle enforcement and the trucking industry. Law 
enforcement members of CVSA conduct an annual ``Roadcheck'' in June, 
the purpose of which is to inspect commercial vehicles and commercial 
vehicle operators to determine compliance with the Federal Motor 
Carrier Safety Regulations.
    From June 5-7, 2007, Commercial Vehicle Safety Affiance (CVSA) 
found that for the second straight year, the number of drivers placed 
out of service increased from 5.6 percent in 2006 to 6.2 percent in 
2007. This is the highest Roadcheck driver out of service rate since 
1999. The bulk of the drivers placed out of service (65.9 percent of 
the total) were done so for hours-of-service violations. This compares 
with 57.1 percent in 2006. Falsification of records of duty status was 
second in line, comprising 11.4 percent of the total--12.4 percent was 
the 2006 number. Hours-of-Service out of service violations continues 
its upward trend, with 4.9 percent of all inspections resulting in a 
driver being placed out of service for hours-of-service, up from 4.5 
percent last year, 3.5 percent in 2005 and 3.4 percent in 2004.
    Roadcheck 2007 results can be found at http://www.cvsa.org/
latestnews/cvsa_latestnews.cfm#jun29.
6. Oregon's DOT Inspections in July 2007 Put Nearly 300 Drivers Out of 
        Service
    In July 2007, ODOT inspectors checked driver's logbooks and 
qualifications to make sure they were complying with Federal and state 
regulations. Preliminary results indicated that more than 1,200 
inspections were completed at seven sites. About one quarter (25 
percent) of the inspections resulted in a driver being placed out of 
service. The national driver out-of-service rate is 7 percent. Final 
results will be posted on the agency's website, www.oregon.gov/ODOT/
MCT/. See also the article in The Trucker that can be found at http://
www.thetrucker.com/News/Stories/2007/8/10/
Julyinspectionputsnearly300Oregondriversoutofserviceforsafetyviolations
.aspx.
7. FMCSA's Hours-of-Service of Drivers Interim Final Rule
    O1' Blue, USA takes no position on what the interim or final hours-
of-service regulation should be. However, it is our organization's 
position that education of drivers by the FMCSA and by the motor 
carrier industry is woefully lacking. This is evidenced by the results 
of our HOS survey. I urge you to support measures that would provide 
for greater education of truck drivers on the hours-of-service 
regulation. As the FMCSA noted in its decision promulgating of the 
Interim Final Rule ``Uncertainty is the enemy of enforcement and 
compliance; it can only impair highway safety.'' See page 8, Notice of 
Interim Final Rule.
            Very truly yours,
                                               R.J. Taylor,
                                                         President.
cc: Subcommittee Members

Democrats
Frank R. Lautenberg (Chairman)
John D. Rockefeller IV
John F. Kerry
Byron L. Dorgan
Maria Cantwell
Mark Pryor
Thomas Carper
Claire McCaskill
Amy Klobuchar
Daniel K. Inouye (Ex-Officio)
Republicans
Gordon H. Smith (Ranking Member)
John McCain
Trent Lott
Kay Bailey Hutchison
Olympia Snowe
Jim DeMint
David Vitter
John Thune
Ted Stevens (Ex-Officio)
      
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Mark Pryor to 
                         Walter J. Krupski, Jr.
    Question 1. Would you share with the Subcommittee how the safety 
performance of motor carriers has changed since introduction of the new 
hours of service rules?
    Answer. In terms of motor carrier safety performance data 
collection and analysis neither I nor OOIDA have any additional 
information beyond the results presented by Administrator Hill that 
indicate in 2006 large truck crashes and crash rates were either nearly 
level or somewhat better than under the former hours-of-service 
regulations.

    Question 2. What have drivers been saying about the 11 hour and 34 
hour provisions?
    Answer. Results of a driver survey conducted by the OOIDA Safety 
Foundation indicate that the ``weekly'' 34-hour restart option is used 
4 times per month by 45 percent of respondents, never used by 10.5 
percent, and average usage is 3.1 times per month. When asked how often 
the ``daily'' 11th hour of driving is used, 26 percent of respondents 
indicated they use it from 1 to 4 times per month, 18 percent never use 
it, and the average number of times the 11th hour is used per month is 
8.2. The survey results appear to track fairly closely with what 
drivers are generally saying.
    When talking to drivers, the long-haul drivers particularly like 
the 34-hour restart because it shortens the time they must remain idle 
while away from home. Under the 70 hours in 8 days maximum weekly on-
duty limitation these drivers often run out of hours on the road, 
earning no income while spending money for food and other essentials 
for as much as 3 days waiting to regain income-producing driving time. 
Thirty-four hours is enough time to take two extended sleep periods to 
eliminate fatigue and otherwise rest or attend to personal matters 
without unnecessarily penalizing drivers. And since the restart is a 
minimum off-duty requirement, drivers may choose to take more time off 
at home or elsewhere if they so desire.
    Also as is indicated from the survey results, many drivers say they 
do not regularly use the 11th hour of driving. They view it more as 
providing flexibility to use when needed to make up for driving time 
lost due to bad weather, traffic congestion or any number of other 
delays drivers may face.

    Question 3. Are there improvements that can still be made in the 
hours of service rules?
    Answer. The 14-hour maximum on-duty limitation is a serious issue 
with most drivers. The daily 14-hour ``clock'' starts as soon as a 
driver begins any on-duty activity subsequent to a required minimum 
rest period. Breaks of less than 10 hours in duration do not stop the 
clock unless the sleeper berth exception is used. Drivers complain that 
they feel pressured to keep driving when they would like, or need, to 
take a break in the event that an unforeseen delay would interfere with 
completing their driving duties within the 14-hour window.
    The current sleeper berth exception is another major problem for 
team drivers and also adversely affects solo drivers. First, team 
drivers had become accustom to operating in shorter rotating shifts, 
for example, 5 hours on-duty and 5 hours in the sleeper berth. Under 
the current exception that is no longer possible forcing each team 
driver to drive for longer periods at a time while the off-duty driver 
is confined to the sleeper berth. If the ``off-duty'' driver is forced 
to leave the sleeper berth for reasons that may include inspections, 
border crossings, or to be in attendance of a hazardous materials load 
that driver must ``restart'' the sleeper berth time in order to meet 
the minimum consecutive hours required.
    Many solo drivers began to utilize the sleeper berth exception 
under the pervious hours-of-service regulations that first incorporated 
the 14-hour on-duty clock. Under that exception drivers could take 
shorter breaks that suspended the 14-hour clock for needed rest, or for 
operational purposes such as waiting for peak traffic times in urban 
locations to pass. That is not possible under the current exception 
because only the minimum 8-consecutive-hour portion of the sleeper 
berth period will suspend the clock.

    Question 4. What is your organization's position regarding 
Electronic On-Board Recorders? Speed Limiters? Setting a maximum speed 
limit?
    Answer. OOIDA opposes the mandated use of Electronic On-Board 
Records. EOBRs are no more a reliable or accurate record of a driver's 
compliance with the hours-of-service rules than paper logs. The only 
event that the devices can automatically detect is whether the vehicle 
is moving or sitting still. All other duty status entries--off-duty, 
sleeper berth, on-duty not driving--must be entered manually by the 
driver. If a driver were so inclined he/she could manipulate the hours-
of-service regulations by, for example, entering sleeper berth status 
when actually performing loading or unloading duties.
    OOIDA also opposes a mandated speed limiter setting. The current 
regulatory proposal calls for a required maximum setting of 68 mph. 
There are 22 states that have speed limits greater than 68 mph on 
certain highways. Such a setting would create dangerous speed 
differentials between large trucks and other classes of vehicles in 
those states, on those highways. Several studies indicate that speed 
differentials cause an increase in certain types of accidents, such as 
rear-end and side-swipe accidents. The vast majority of accidents occur 
on roadways and in areas with speed limits that are less than 68 mph, 
thus there would be little or no safety benefit to such a proposal. 
Also, while there are several academic studies that show the negative 
impact of speed differentials for cars and trucks on highways, there 
are no studies that demonstrate speed limiting commercial motor 
vehicles will have a positive effect on highway safety. There are also 
numerous other issues related to the mandating of speed limiters for 
trucks such as increased congestion, technical and enforcement problems 
that OOIDA would be happy to expand upon.
    A national maximum speed limit can also create unintended problems. 
The state Departments of Transportation are much better equipped to 
determine what speeds are appropriate for their needs to safely improve 
traffic flow and efficiencies on highways within their borders.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Mark Pryor to 
                              Dave Osiecki
    Question 1. Would you share with the Subcommittee how the safety 
performance of motor carriers has changed since introduction of the new 
hours of service rules?
    Answer. Government-collected safety data and metrics, as well as 
data collected from the industry, clearly indicate that the current HOS 
rules are an improvement over the pre-2004 rules. The rules have been 
in force for four years (2004-2007) and safety in the trucking industry 
has improved throughout this time period. The following data 
illustrates this improvement.

   The number of truck-involved fatalities decreased 4.7 
        percent in 2006--from 5,240 in 2005 to 4,995 in 2006--the 
        largest percentage drop in truck-involved fatalities since 
        1992.

   The truck-involved fatal crash rate for 2006 was 1.93 fatal 
        crashes per 100 million vehicle miles of travel (VMT). This 
        rate is at its lowest point since the U.S. DOT began keeping 
        these records in 1975.

   The number of injuries resulting from truck-involved crashes 
        decreased by 6,000 in 2004, 2,000 in 2005 and dropped another 
        8,000 in 2006.

   The injury crash rate for 2006 is also at its lowest point 
        since DOT recordkeeping began.

   The Department of Labor's Bureau of Labor Statistics tracks 
        truck driver non-fatal incidence rates of occupational injuries 
        and illnesses. For 2002 through 2006, per 100 full-time 
        employees, the data is below. The 2004-2006 rates reflect a 
        decrease of nearly 15 percent.


2002-2003                     (the 2 years prior to current       6.8
                               HOS rules)
2004-2005                     (the first 2 years operating        6.1
                               under current HOS rules)
2006                          (the last year of available         5.8
                               data operating under current
                               HOS rules)



    Question 2. What have drivers been saying about the 11-hour and 34-
hour provisions?
    Answer. Overwhelmingly, drivers like, appreciate, and support the 
34 hour rest and restart provision. In fact, ATA has heard nothing but 
positive comments from drivers, safety directors and fleet executives 
about the 34 hour restart. Drivers also appreciate the flexibility and 
cushion that the 11 hour rule provides to make pickups and complete 
deliveries with a lesser chance of a regulatory violation.
    ATA's comments are not based on opinion, rather they are based on 
research conducted in 2005 and 2006 by the American Transportation 
Research Institute (ATRI). This research assessed the safety and health 
impacts of the new hours of service rules implemented in 2004, and 
included a comprehensive driver survey and industry focus groups. An 
interesting survey finding was that drivers liked the new ``off-duty'' 
provisions the best--the 34 hour rest and restart, and the 25 percent 
increase in the minimum off-duty time between shifts (i.e., an increase 
from the previous minimum of 8 hours to the new minimum of at least 10 
hours).
    Upon request, ATA would be glad to provide ATRI's full report on 
its HOS research results.

    Question 3. Are there improvements that can still be made in the 
hours of service rules?
    Answer. Yes. Changes to the sleeper berth split rest provision are 
needed. The current sleeper-berth rule is too restrictive by 
constraining drivers to only one option--sleeper-berth rest periods 
must be split into no more than two periods, one of which must be at 
least eight consecutive hours. While the government should require 
rest, the government should not require drivers to be in a sleeper 
berth for eight consecutive hours . . . that's simply unrealistic for 
most people.
    A flexible and functional sleeper berth provision was available and 
used by truck drivers for decades prior to the change in the 2005 
rules. A return to a rule with flexibility for both solo and team 
drivers who utilize sleeper berths is needed.

    Question 4. Do you have any recommendations to share with the 
Committee for improving trucking/highway safety through additional 
means?
    Answer. ATA recommends, and has been advocating the initiatives 
listed below. This is just a partial list from ATA's comprehensive 
safety agenda. ATA urges the Subcommittee to take appropriate action to 
encourage or require the implementation of these recommendations.

   Primary safety belt laws in all states.

   Reinstatement of a national maximum speed limit of 65 mph 
        for all vehicles.

   A Federal regulation requiring that all new large trucks be 
        electronically speed limited (or ``governed'') to no more than 
        68 mph at the time of manufacture.

   A new car-truck behavior improvement program that focuses on 
        speed and traffic enforcement aimed at all vehicles, 
        particularly those operating unsafely around large commercial 
        vehicles.

   Creation of a national drug and alcohol test results 
        clearinghouse to centrally capture positive test results of 
        truck drivers to ensure drivers with a substance abuse problem 
        are getting the needed help, consistent with Federal 
        regulations, prior to operating a large truck in commerce.

   Creation of a national employer notification system to 
        electronically link trucking employers, drivers they employ, 
        and the state licensing agency that issued the driver his or 
        her commercial driver's license. This would allow driver 
        violation and conviction information to be received and acted 
        upon by trucking employers more timely than the current driver 
        self-reporting system.

    Question 5. What is your organization's position on setting a 
maximum speed limit, requiring EOBRs, speed-limiters?
    Answer. Please see the response to number 4 above for ATA's 
position on the speed limit and speed limiter issues. Regarding 
Electronic On-Board Recorders (EOBRs), in order for ATA to support a 
Federal regulation requiring the use of EOBRs for documenting 
compliance with hours-of-service rules, the following issues need to be 
satisfactorily addressed. However, prior to any regulation mandating 
EOBR use, ATA believes FMCSA should undertake a pilot program to 
determine the effectiveness of EOBRs in improving compliance and safety 
performance.

   There should be sound, consensus-based evidence that EOBR 
        use leads to enhanced fleet safety performance by such means as 
        accident rate reduction and improved compliance, therefore, 
        increasing the credibility of EOBR systems as a cost-effective 
        technology for motor carriers.

   EOBR systems should be based on the minimal, functional and 
        performance specifications necessary to accurately record and 
        report hours-of-service compliance and assure reliability and 
        utility of operation.

   Statutory protections should be afforded to motor carriers 
        pertaining to the control, ownership and admissibility/
        discoverability of data generated and derived from EOBRs, and 
        to assure the privacy rights of drivers.

   Drivers shall be responsible for operating the EOBR in full 
        compliance with all applicable regulations.

   Any EOBR regulation must address the operational diversity 
        of the trucking industry, continue existing exceptions to the 
        record of duty status, and consider additional exemptions that 
        balance compliance and the evolving industry diversity.

   Motor carriers using compliant EOBRs should be relieved of 
        the burden of retaining supporting documents for hours-of-
        service compliance and enforcement purposes.

   Any EOBR mandate, if instituted, should be made 
        simultaneously applicable to all vehicles of the affected 
        population of motor carriers, it should avoid any 
        implementation inequities identified and take measures to 
        eliminate them.

2   Any EOBR regulation that takes an incentive-based approach 
        should allow for reasonable and defensible flexibility in the 
        hours of service rules for drivers and motor carriers.

   Tax incentives should be pursued as a means to facilitate 
        adoption of EOBR systems.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Mark Pryor to 
                           Hon. John H. Hill
    Question 1. As you know, some trucking groups are pushing for 
government action on speed-related issues. Can you tell us what action 
FMCSA (and NHTSA if possible) has taken on the industry's petitions to 
set maximum speed limits and set truck electronic engine controls 
(speed limiters) at not more than 68 mph?
    Answer. In late 2006, Road Safe America submitted to the Federal 
Motor Carrier Safety Administration (FMCSA) a petition for rulemaking 
requesting the Agency require speed limiting devices set at 68 miles 
per hour on new trucks with a gross vehicle weight rating greater than 
26,000 pounds. The group also requested that FMCSA require motor 
carriers to retrofit trucks manufactured after 1990 with speed limiting 
devices and assess penalties against motor carriers for failing to 
maintain the speed limiting devices that would be required if a rule 
were issued.
    The American Trucking Associations (ATA) petitioned the National 
Highway Traffic Safety Administration (NHTSA) to require vehicle 
manufacturers to install speed limiting devices on newly manufactured 
trucks to limit the maximum speed of trucks to 68 miles per hour.
    As part of the Department of Transportation's effort to evaluate 
the petitions, FMCSA and NHTSA published a Federal Register notice on 
January 26, 2007, requesting public comment on the petitions. The 
comment period ended on March 27.
    No decision has been made whether to grant the petitions at this 
time. If the petitions are granted, a notice-and-comment rulemaking 
proceeding will be initiated in accordance with applicable Departmental 
procedures. However, the decision whether to issue a final rule would 
be based on a review of all available data and information gathered in 
the course of the rulemaking proceeding, and an analysis of the public 
comments the agencies receive in response to any rulemaking notices.
    In February 2008, Assistant Secretary for Transportation Policy 
Tyler Duvall, and FMCSA Administrator John Hill, met with 
representatives from Road Safe America and the American Trucking 
Associations to discuss the petition. We anticipate finalizing our 
decision in the next few months.

    Question 2. What was FMCSA's rationale for recalculating the risk 
of driving 11 consecutive hours instead of 10 in the Interim Final Rule 
(IFR)? Do you believe this approach will increase safety and save more 
lives?
    Answer. In preparing its economic impact analysis for the 2007 
hours-of-service (HOS) IFR, FMCSA made several analytical adjustments 
in response to the D.C. Circuit Court of Appeals' July 2007 ruling that 
the Agency had failed to adequately explain the methodology supporting 
its 2005 HOS final rule.
    One of those adjustments was in how FMCSA calculated the relative 
risk of a large truck being involved in a fatigue-related crash by hour 
of driving, if the 11th hour of daily driving were no longer available.
    Specifically, to account for the impact of time on task (TOT) on 
the risk of a fatigue-related large truck crash, FMCSA calculated a TOT 
factor that was based on the relative risk of a fatigue crash in each 
individual driving hour divided by the average risk of a fatigue crash 
across the first 11 hours. FMCSA adjusted its analysis from the 
original regulatory impact analysis because it determined that the 
estimate of the average fatigue crash risk should have been based on 
hours one through 10 (not hours one through 11 as was used in the 
original analysis). However, in the end, the adjustment had no impact 
on the results of the analysis, mainly because of the way the results 
were scaled in the final analysis. As such, this analytical adjustment 
did not change the safety benefits of the rule, and therefore, had no 
impact on the final benefit-cost analysis results of the 2007 HOS IFR, 
which showed that eliminating the 11th hour of driving and the 34-hour 
restart would result in significantly more economic costs to society 
than benefits.

    Question 3. Please discuss FMCSA's position on Electronic On-Board 
Recorders (EOBRs). What has FMCSA identified as the benefits and 
drawbacks of this technology? Can/Should a mandated requirement of 
EOBRs complement an HOS regulation?
    Answer. On January 18, 2007, FMCSA published a notice of proposed 
rulemaking (NPRM) to amend its safety regulations to establish new 
performance standards for EOBRs. The NPRM included certain technical 
performance standards for this next generation of on-board recorders, 
including that the new devices be able to record date, time, location 
and distance traveled.
    In addition, under the proposal motor carriers that have 
demonstrated a history of serious noncompliance with the hours-of-
service (HOS) rules would be subject to mandatory installation of these 
EOBRs. The proposal provides that if FMCSA determined--based on HOS 
records reviewed during each of two compliance reviews conducted within 
a 2-year period--that a motor carrier had a 10 percent or greater 
violation rate (``pattern violation'') for certain regulations, the 
Agency would issue the carrier an EOBR remedial directive. The motor 
carrier would be required to install EOBRs in all of its commercial 
motor vehicles (CMVs) regardless of their date of manufacture and to 
use the devices for HOS recordkeeping for a period of 2 years, unless 
the carrier already had equipped its vehicles with recording devices 
that meet the Agency's current requirements under 49 CFR 395.15 and 
could demonstrate to FMCSA that its drivers understand how to use the 
devices.
    Finally, under the proposed rule, FMCSA would encourage industry-
wide adoption of this technology by providing the following incentives 
for motor carriers to voluntarily use EOBRs in their CMVs: (1) revising 
the Agency's compliance review procedures to permit examination of a 
random sample of drivers' records of duty status; and (2) providing 
partial relief from HOS supporting documents requirements, if certain 
conditions are satisfied.
    The FMCSA has completed its review of the comments received in 
response to the NPRM and is completing additional data analyses as a 
result of those comments to determine the content of a final rule. 
Although there are many complex technical issues involved, we plan to 
publish a final rule addressing EOBR use in 2008.
    With regard to the benefits of EOBRs, the technology provides motor 
carriers with an effective tool to monitor and manage their drivers' 
hours of service to better ensure compliance with the rules than the 
handwritten log books. EOBRs may also help to deter some drivers from 
violating the maximum driving time rules. However, because EOBRs are 
not capable of automatically capturing drivers' duty status when the 
commercial motor vehicle is not in operation, motor carriers and 
enforcement officials must continue to rely on drivers' self-reporting 
of their non-driving duty status, and any accompanying supporting 
documents to determine the total number of on-duty hours, and sleeper-
berth time the driver has accumulated.
    As to whether an EOBR mandate would complement an hours-of-service 
(HOS) rule, the Agency's HOS rulemaking focuses on regulations to 
provide drivers with adequate opportunities for rest while the EOBR 
rulemaking focuses on the use of technology to monitor drivers' 
compliance with the HOS rules. The FMCSA plans to publish a final rule 
addressing EOBRs use in 2008, and a separate final HOS rule following 
up on the December 17, 2007, Interim Final Rule (IFR).

    Question 4. What is the Administration's position on setting a 
maximum speed limit, requiring EOBRs, speed-limiters?
    Answer. The National Highway Designation Act of 1995 (NHS Act) 
repealed the National Maximum Speed Limit Compliance Program which 
limited maximum speed in the United States to 55 mph. Therefore, the 
Department of Transportation cannot withhold Federal funds from States 
that set speed limits above 55 mph. Currently, 25 States have a maximum 
speed limit of 70 mph or above for trucks, while another 19 have a 
maximum speed limit of 65 mph for trucks.
    With regard to petitions to require speed limiters, filed by Road 
Safe America and the American Trucking Associations, a decision has not 
been made. If the petitions are granted, a notice-and-comment 
rulemaking proceeding will be initiated in accordance with the 
applicable procedures. However, the decision whether to issue a final 
rule would be based on a review of all available data and information 
gathered in the course of the rulemaking proceeding, and an analysis of 
the public comments the agencies receive in response to any rulemaking 
notices.
    As for EOBRs, FMCSA has completed its review of the comments 
received in response to the NPRM, and is completing additional data 
analyses as a result of those comments to determine the content of a 
final rule. FMCSA believes the best way to address hours-of-service 
compliance is by targeting high-risk carriers which have demonstrated a 
pattern of non-compliance. Our data show the carriers non-compliant 
with HOS regulations account for greater involvement in crashes than 
compliant carriers. Rather than imposing an economic burden on all 
motor carriers, we believe this approach is in keeping with 
empirically-based rulemakings. Although there are many complex 
technical issues involved, we plan to publish a final rule addressing 
EOBR use in 2008.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Mark Pryor to 
                          Hon. Joan Claybrook
    Question 1. Would you briefly explain your views in opposition to 
these new rules and the rules that were on the books pre-2003? In your 
view, how have the new rules impacted truck and highway safety? What 
programs/policy/rules/regulations does Public Citizen currently 
support/oppose?
    Public Citizen believes that it is the duty of the Federal Motor 
Carrier Safety Administration (FMCSA) to develop a new, responsible 
hours-of-service rule that maximizes highway safety and driver health. 
We believe that the current interim final rule (IFR) for hours-of-
service, provisions of which have been twice struck down by a Federal 
appeals court, fails to maximize health and safety. In comparison to 
the pre-2003 rules, the IFR actually increases both the daily and 
weekly limits drivers can spend behind the wheel.
    Public Citizen opposes these rules in that they allow for 11 hours 
of daily driving and that contain a 34-hour ``restart'' provision. 
These provisions combined allow for a dramatic increase in weekly time 
behind the wheel. FMCSA is quick to note that the large truck crash 
fatality rate has decreased since the 34-hour restart and 11-hour 
driving day provisions have been in effect. This assertion, however, 
ignores that the number of occupant fatalities has steadily increased 
in the years since these provisions have been in use. In 2006 there 
were 805 occupant fatalities, whereas in 2003 there were only 726 
fatalities. The number increased every year. Drivers/operators are 
paying the price for longer driving hours with their health and safety.
    The cumulative fatigue created by extending both the daily drivable 
hours and the number of hours that can be driven in a rolling week 
period creates significant safety issues. The current rules allow for 
30 percent more driving hours and a 40 percent increase in on-duty time 
each week as compared to the pre-2003 rules, in addition to longer 
daily driving tours. Under the current rules, the 34-hour restart 
provision and 11-hour driving day allows for dramatic increases in 
total time behind the wheel and on-duty:


----------------------------------------------------------------------------------------------------------------
                                                        Maximum Driving Hours       Maximum Total On-Duty Hours
----------------------------------------------------------------------------------------------------------------
7-day floating week                                                           77                             84
8-day floating week                                                           88                             98
----------------------------------------------------------------------------------------------------------------

    Under the current rules, even if drivers obtained 8 hours of rest 
after on-duty periods, the dramatic increase in weekly driving hours 
permitted by the 34-hour ``restart''--28 percent for weekly driving 
hours and 40 percent for on-duty hours--ensures that drives will be 
more, not less, fatigued. As the operator fatality statistics indicate, 
this takes a dangerous toll on driver and highway safety.
    Public Citizen does not believe that the increase in allowable 
driving hours provides sufficient opportunity for drivers to obtain the 
rest necessary to safely operate. Given the economic motivation the 
pay-per-mile system creates to maximize on-duty driving hours, FMCSA is 
ignoring reality by assuming drivers will always be able to obtain 
eight uninterrupted hours of sleep, given that the 10-hour off-duty 
period must also be used for paperwork, fueling, loading, 
communications and other non-driving duties.
    FMCSA also has failed to sufficiently demonstrate how the extra 
off-duty time, when compared to the pre-2003 rules, enhances a driver's 
ability to drive an additional hour--this is especially true given the 
economic motivation to maximize driving time.
    IFR also fails to allow for a reasonable circadian sleep cycle and 
adequate resting weekend. The rules, in application, allow for a 
schedule in which drivers maximizing their driving would be on a 21-
hour, backward-rotating schedule. This is the likely schedule, because 
truckers have a strong economic motivation to maximize allowable 
driving time--in other words, to drive 11 hours and sleep the minimum 
of 10 hours. In reality, the IFR does not propose a 24-hour, circadian 
work/rest cycle. These rules have turned large trucks on our public 
highways into rolling time bombs.
Opposition to Pre-2003 Rules
    The regulations in effect prior to 2003 had been in effect since 
1939 and had not been substantially changed since 1962. Public Citizen 
believed these regulations were in desperate need of overhaul, to 
comport with modern scientific understanding of sleep cycles and driver 
fatigue. Public Citizen supported the development of a new set of rules 
consistent with the best available technology present.
    Public Citizen supported revision of the pre-2003 rules 
specifically because the regulations did not accommodate a circadian 
cycle. Since 1962, the rules allowed work/rest cycles as short as 18 
hours if drivers maximized or were required to maximize driving time. 
Such ``18-hour days'' run counter to human beings' circadian rhythm of 
just over 24 hours. The old rules also did not require that drivers 
take their 8 off-duty hours in one block, meaning that drivers might 
not get the significant benefits associated with one long block of 
uninterrupted rest. Under the old regulations, drivers could accumulate 
required rest in a sleeper berth (if each period was at least 2 hours 
long), staggering shorter driving and resting sessions until they 
reached weekly limits. Because sleep in short segments is less 
effective in restoring driving fitness than sleep in one long block, 
split-sleep patterns are among the strongest predictors of fatigue-
related truck crashes. Public Citizen disagreed and continues to 
disagree with regulations creating such a dangerous driving pattern.
Public Citizen's Position
    Motor carrier drivers deserve adequate health and safety 
protections as the law requires--protections that should be afforded to 
all American workers. Public Citizen supports the following guidelines 
for hours-of-service regulations:

   Maximum Driving Time in Each Shift: Drivers should accrue no 
        more than 10 consecutive hours of driving in a shift. We prefer 
        fewer consecutive hours, as the research literature and the 
        agency itself has shown, would result in safer operations. New 
        rules should strive for a maximum of 8 driving hours per shift.

   Minimum Off-Duty Time in Each Shift: Solo drivers should 
        take at least 12 consecutive hours off-duty in a single block 
        of time, regardless of whether the off-duty rest time occurs in 
        a sleeper berth or elsewhere. Studies are unanimous that 
        commercial drivers get both less sleep and lower quality sleep 
        when it is taken in two, separate sleeper-berth or other rest 
        periods.

   Shift Cycle: A shift schedule adhering fully to a circadian 
        cycle is more desirable than the 21-hour shift rotation of 
        drive/rest permitted under the current regulations.

   Ceiling on Total Accrued Driving Time in Each Tour of Duty: 
        Drivers should not be able to accrue more than 48 hours of 
        driving over 7 consecutive calendar days or more than 56 hours 
        of driving over 8 consecutive calendar days. Fewer hours of 
        driving would further improve safety.

   ``Restart'' Provision: Drivers should not be able to 
        ``restart'' their driving hours by taking only 34 hours off-
        duty. Drivers work on either a 7 or 8 day work rotation. Under 
        current rules, after reaching 66 hours of driving, a driver 
        must take a minimum of 34 hours to rest--time to travel home, 
        sleep, visit family and take care of any other personal 
        business. Public Citizen believes after reaching the weekly 
        hours cap, drivers should be afforded a weekly off-duty period 
        that includes at least two to three full nights of rest and not 
        an option to restart after only a 34-hour break.

   Maximum Shift Working Time: Drivers should work no more than 
        12 hours in each shift and should be paid overtime after 8 
        hours of work like the rest of workers in America.

   Other Activities during the Work Shift: Meals, fuel stops, 
        and similar activities should be ``on the clock''--that is, 
        included in the maximum hours of on-duty time in each shift 
        before a driver is able to drive again. Four hours of non-
        driving duty time in each shift would be available under a 8 
        driving hours/12 on-duty hours/12 off-duty hours schedule. 
        Drivers need this time for meals, fueling, loading/unloading, 
        and paperwork obligations.

    Question 2. What is your organizations' position regarding 
Electronic On-Board Recorders? Speed Limiters? Setting a maximum speed 
limit?
Electronic On-Board Readers
    Public Citizen strongly advocates the mandated use of Electronic 
On-Board Recorders (EOBRs) in all commercial trucking applications. 
Compliance is critical to reaping the benefits of hours-of-service 
regulations. FMCSA currently relies upon manual logbooks known as 
driver records of duty status (RODS) for documenting driver hours of 
service. This is essentially no more than an honor code system. RODS 
create enormous potential for abuse and falsification. By FMCSA's own 
admission, alteration and abuse of duty time is ``widespread.'' This 
method of documenting hours-of-service effectively undermines 
enforcement of any set of hours-of-service rules and denies truckers 
and the driving public the benefits of hours-of-service regulations. 
Drivers commonly refer to these record books as comic books.
    Automated recorders capable of more accurately documenting duty 
status have been available for over 35 years, and can now be purchased 
off-the-shelf. In addition to safety benefits for truckers that accrue 
from compliance with hours-of-service rules, EOBRs offer economic 
benefits to the trucking industry. EOBRs would reduce costs to the 
industry that are the result of fatigue-related crashes, allow for 
better scheduling and routing of trucks, and eliminate the costly 
paperwork burden associated with RODS. Indeed, many trucking companies 
have electronic systems for scheduling trucks and tracking deliveries, 
making the additional HOS tracking function a relatively simple matter. 
Public Citizen believes it illogical, dangerous and irresponsible to 
fail to mandate installation of EOBRs, given that FMCSA admits that 
violations of hours-of-service regulations are widespread. EOBRs 
represent an important means by which to deter many of these 
violations. FMCSA must proffer a rule requiring the use of EOBRs 
without further unnecessary delay. The current proposal, issued as a 
Notice of Proposed Rulemaking in January 2007, would require EOBRs only 
for carriers with a ``demonstrated history of non-compliance.'' In 
reality this mandate would apply to only \1/10\ of 1 percent of all 
trucks.
Speed Limiters for Commercial Trucks
    Public Citizen supports the adoption of speed limiting devices for 
use on commercial trucking fleets. FMCSA in 2001 reported that 
excessive speed was a contributing factor in 21 percent of large truck 
crashes. When adopted in conjunction with a reasonable set of hours-of-
service regulations, the use of speed limiting devices will provide 
assurance that truckers do not act on industry pressures to speed in 
order to achieve more deliveries. Public Citizen believes that a 
program integrating both speed limiting devices and an enforced, 
reasonable speed limit would greatly contribute to overall highway 
safety and reduce the number of truck crashes. As truck travel speeds 
increase, so does the crash risk. It follows that preventing a vehicle 
from exceeding the speed limit would eliminate the segment of higher-
speed crashes, reducing both injuries and fatalities.
    Ensuring that large trucks cannot operate in excessive speeds will 
also create environmental benefits. Increased fuel consumption is 
needed to operate at higher speeds, creating additional and unnecessary 
particulate and greenhouse gas emissions. Such pollutants place the 
general public at increased risk for asthma and other health 
conditions.
    Finally, Public Citizen believes that the installation of speed 
limiters on large commercial trucks will provide long term benefits to 
the trucking industry. In addition to the potential occupant lives that 
will be saved by reducing operating speeds and the saved expenses of 
truck crashes, speed limiters will prevent much of the unnecessary wear 
and tear on diesel engines associated with higher-speed operations. 
This will ultimately mean trucks will require less maintenance and that 
an engine can accumulate more mileage before it needs replacement. 
Speed limiters would also help establish better fuel economy among 
trucking fleets, sparing truckers the added and increasing expense of 
diesel fuel that would be burned through higher-speed operation.
National Maximum Speed Limit
    Public Citizen supports re-establishing a national speed limit for 
both commercial trucks and passenger vehicles traveling on the highway 
system as was in effect from 1974-1987. Public Citizen believes that in 
order for a national, maximum speed limit to be effective and have 
significant safety impacts that it must be enforced with the same speed 
limit for both commercial trucks and personal vehicles. Having a 
uniform speed limit for all vehicles on the road eases and steadies the 
flow of traffic, helping to avoid the congestion and vehicular spacing 
issues that occur when a passenger vehicle attempts to pass a much 
larger commercial truck.
    Setting a national, maximum speed limit would provide both safety 
and environmental benefits. If readily enforced, a national maximum 
speed limit could help to significantly reduce highway crashes, 
fatalities and injury. The National Highway Traffic Safety 
Administration reported that in 2006 speed was a contributing factor in 
31 percent of all fatal highway crashes. A maximum speed limit set at 
55 or 60 miles per hour would also increase fuel economy in the vast 
majority of vehicles utilizing the highway system. In short, a uniform, 
national maximum speed limit supports the ideals of improved safety and 
reducing greenhouse gas emissions, both of which are longstanding 
Public Citizen goals.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Mark Pryor to 
                              Daphne Izer
    Question 1. Would you briefly explain your views on these new FMCSA 
rules and the rules that were on the books pre-2003? In your view, how 
have the new rules impacted truck and highway safety? What programs/
policy/rules/regulations does your organization currently support/
oppose?
    Answer. The pre-2003 hours of service rules had a number of unsafe 
features that caused driver fatigue and led to many crashes by tired 
truckers. First, the 10-hour consecutive driving shift was very long 
and grueling, and studies showed that truck crash risk increases after 
8 hours of driving and is much higher by the 10th consecutive hour of 
driving. This is understandable and the reason why most employees, in 
far less demanding jobs than truck driving and where public safety is 
not on the line every moment, generally only have to work 8 hour days. 
Second, the 8-hour off-duty time was not long enough to allow drivers 
to get the rest and sleep they needed to be fresh for their next 
driving shift. Studies show that most workers, but especially truck 
drivers, need 8 hours of sleep, not just rest, to be able to perform 
their jobs well. But with only 8 hours off-duty, drivers had to travel 
home, complete errands, and take care of other household and life 
tasks, and sleep, all within 8 hours. As a result, getting 8 
consecutive and continual hours of sleep was not possible. For drivers 
stopping for 8 hours while on the road, not only was it physically 
difficult, if not impossible to get 8 hours of sleep, but the sleeper 
berth rule gave drivers permission to take only 5 hours off-duty at a 
time.
    As unsafe as the hours of service requirement was under the pre-
2003 HOS rule, the current rule that has been in place since 2004 makes 
things even worse. By letting truckers drive for 11 consecutive hours 
instead of 10 hours, the rule gives already exhausted truckers 
permission to continue driving and thus to become even more tired and 
less safe and to have more exposure time on the road while fatigued. 
The extra hour is not just a 10 percent increase in driving time, it 
adds another hour of driving a fully loaded, 80,000 pound rig down the 
highway at speeds of 60 miles an hour or more at the end of the 
driver's shift when the driver is at his most fatigued and least safe 
condition.
    The rule added 2 hours to the off-duty time, extending it from 8 to 
10 hours between driving shifts. However, surveys show that drivers 
still do not get 8 hours of sleep but only about 6 hours. The 10-hour 
off-duty time, while it might help a little, does not even provide the 
full amount of nightly sleep that drivers needed when they were limited 
to only 10 consecutive hours of driving. There is no evidence that the 
extra rest time provides any benefit to prevent fatigue or to offset 
the workload imposed by an additional consecutive hour of driving. 
Substantial research shows that you cannot offset the exhaustion of 
extremely long working and driving hours and that, in fact, both the 
length and the quality of sleep is impaired by very long working hours.
    Another dangerous and unsafe provision in the new HOS rule is to 
allow the 34-hour ``restart'' which permits drivers to ``restart'' 
their weekly driving and working clock after taking only 34 hours total 
off-duty. This provision permits truckers to drive far more hours than 
under the pre-2003 rule. It really lets the most tired, long-haul 
truckers who are using their driving hours as fast as possible to 
convert what used to be off-duty rest time under the pre-2003 rule into 
more driving hours. FMCSA has admitted that the 34-hour restart allows 
up to 17 more hours each week of driving time for drivers on a 7-day 
work schedule (77 hours instead of 60), and up to 18 more hours each 
week of driving time for drivers on an 8-day work schedule (88 hours 
instead of 70). Under the pre-2003 rule those 17 or 18 hours were 
available as off-duty rest time.
    The reason this poses a grave threat to safety is that it 
encourages the most tired drivers to drive the most hours. Under the 
pre-2003 rule, drivers with relatively relaxed driving schedules 
already got at least 34-hours off-duty between work weeks, but truckers 
driving aggressive schedules and trying to maximize their use of 
driving hours early in the week got far more off-duty rest time to 
recover toward the end of their week. For example, truckers who worked 
a regular schedule driving just one 10-hour driving shift a day for 6 
days (Monday through Saturday), were the most rested and least 
pressured drivers during the week and they were required to be off-duty 
for at least 34 hours at the end of the work week, from Saturday night 
until Monday morning. Typically, these drivers had 36 hours off-duty, 
from 6 p.m. Saturday to 6 a.m. Monday, or longer depending on when they 
stopped driving on Saturday and began driving on Monday. But for 
drivers that maximized their driving hours by alternating the 10-hour 
driving shift with the 8-hour off-duty period until they reached their 
60 or 70 hour weekly maximum driving hours, which was the case for many 
long-haul drivers, these truckers were required to be off-duty for the 
remainder of the week which could amount to as much as 52 or 56 hours 
off-duty.
    Under the current rule, however, the drivers that maximize their 
use of driving hours, and who are comparatively more tired, only need 
to take 34 hours off-duty, the same off-duty time that used to be 
required for the least exhausted drivers. As a result, this allows 
these tired drivers to convert what used to be mandatory off-duty time 
into more hours behind the wheel.
    While we support the longer 10-hour off-duty requirement, we oppose 
the increase in permitted driving hours from 10 to 11 hours per shift 
and we oppose the 34-hour restart provision. Both of these driving hour 
increases are counterproductive and encourage more tired and fatigued 
drivers. The 11 hours of consecutive driving should be reduced, even 10 
hours of consecutive driving is too much, and the 34-hour restart 
should be eliminated. Also, we support keeping the 14-hour workday 
maximum limit that cannot be extended by intervening off-duty time.

    Question 2. What is your organization's position regarding 
Electronic On-Board Recorders? Speed Limiters? Setting a maximum speed 
limit?
    Answer. We strongly support the need to require effective 
Electronic On-Board Recorder (EOBR) systems on all trucks. One of the 
difficulties with any hours of service rule is the widespread violation 
by truckers who want to earn more money and know that they will not get 
caught because enforcement is spotty. EOBRs will not only eliminate 
cheating and multiple logbooks (``comic books'') but it will make it 
much easier for law enforcement officials and for Federal and state 
motor carrier inspectors to determine whether the driver was operating 
illegally. EOBRs are an essential part of any comprehensive solution to 
truck safety.
    Studies and surveys have shown that between 30 percent and 56 
percent of truck drivers regularly exceed HOS limits and falsify their 
paper logbooks recording their duty status. HOS violations and logbook 
falsification have been at epidemic levels for decades.
    Mandatory On-Board Recorders in big trucks to measure the driving 
time of commercial drivers are currently required in all European Union 
countries, Morocco, Argentina, Brazil, Peru, Uruguay, Venezuela, 
Israel, Turkey, Japan, South Korea, Singapore, and are under 
consideration in Australia because of the very high rate of fatigued 
truck driver crashes.
    We also support the use of speed limiters or governors to prevent 
trucks from exceeding speed limits. Furthermore, we support a 
reasonable maximum speed limit for trucks in order to prevent large 
trucks from being driven at excessive speeds.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Mark Pryor to 
                              LaMont Byrd
    Question 1. Would you briefly explain your views on these new FMCSA 
rules and the rules that were on the books pre-2003? In your view, how 
have the new rules impacted truck and highway safety? What programs/
policy/rules/regulations does your organization currently support/
oppose?
    Answer. IBT did not have a problem with the pre-2003 regulation as 
our driver membership is covered by Collective Bargaining Agreements 
(CBA) that define the workday and workweek, therefore, ensuring that 
drivers had sufficient rest time on a daily and weekly basis. In 
addition, the CBAs typically include language that requires the 
signatory parties to comply with all Federal, state, and local safety 
and health regulations. Consequently, any violations of the HOS 
regulation (by the motor carrier or by the driver) may result in a 
grievance being filed that must be resolved through the grievance 
machinery included in the CBA. However, we acknowledge that for non-
union drivers, the pre-2003 HOS regulation was problematic. For 
example, the ``old'' rule only required drivers to have eight (8) hours 
of off-duty time between work shifts. There was abundant scientific 
evidence suggesting that a person needs roughly 7.5 hours of sleep to 
avoid experiencing cumulative fatigue. It was virtually impossible for 
a driver to attend to his/her personal or family needs and get 7.5 
hours of sleep in an 8-hour time period. Further, the ``old'' rule 
allowed drivers to extend their workday by declaring themselves to be 
``off-duty''. In effect, a driver could begin his/her work shift, work 
for several hours, go ``off-duty'', and resume driving many hours after 
beginning the workday. The problem with this practice is that the 
``off-duty'' period was not of sufficient duration to allow the driver 
to obtain restorative rest. Further, the ``off-duty'' period was 
oftentimes spent waiting in break rooms or on freight docks where no 
accommodations for rest were present (beds, quiet areas, etc.) 
Therefore, it was our opinion that under the previous regulatory 
system, combined with a ``Just In Time'' economy, many drivers were at 
risk of experiencing fatigue.
    The new Hours-of-Service Regulation provides somewhat more 
protection for drivers, but continues to fall short of what is needed 
to enable drivers to avoid experiencing cumulative fatigue. As 
indicated above, Teamster drivers are protected by CBAs that have been 
modified to address what we perceive as weaknesses in the new 
regulation and, therefore, does not have a significant impact on our 
membership. With respect to our position on the ``new rule'', we are of 
the opinion that requiring drivers to have a minimum of ten (10) hours 
of off-duty time between work shifts is a positive revision. The ten-
hour rest period should provide drivers with sufficient time to address 
personal and family responsibilities and obtain the necessary 7.5 hours 
of rest to avoid experiencing cumulative fatigue. The 14 hour work day 
is also a positive revision to the regulation as it, combined with the 
10 hour rest period places drivers in a work / rest cycle that more 
closely approaches the 24 hour circadian cycle that is essential for 
humans. However, the regulation still has weaknesses. For example, the 
34-hour restart provision allows drivers to work the normal 60 or 70-
hour workweek, rest for 34 hours, and resume working with a ``fresh 
set'' of hours. In effect, as was discussed by several stakeholders who 
participated in the hearing, the restart provision allows drivers to 
drive upwards of 88 hours per 8-day workweek, as compared to 70 hours 
for the ``old rule''. The IBT is of the opinion that it is very 
difficult to obtain two consecutive nighttime rest periods in 34 hours. 
Additionally, allowing drivers to drive additional hours during the 
workweek does not reduce driver fatigue; it stands to reason that it 
only contributes to fatigue. For these reasons, the IBT negotiated with 
our LTL carriers to develop contract language that prohibits drivers 
from using the restart provision.
    Overall, in our opinion, the new HOS regulation has not improved 
transportation safety because of provisions such as the 34-hour restart 
and the 16-hour workday extension. If such provisions were eliminated 
from the rule, we feel that the 10-hour rest period between shifts and 
the continuous 14-hour workday would significantly improve a driver's 
ability to obtain restorative rest.

    Question 2. What is your organization's position regarding 
Electronic On-Board Recorders? Speed Limiters? Setting a maximum speed 
limit?
    Answer. With respect to Electronic On-Board Recorders (EOBR), the 
IBT is of the opinion that the technology may have utility in ensuring 
compliance with the Hours-of-Service regulation. However, in our view, 
the use of the technology is not a panacea relative to compliance with 
the regulation. EOBRs are designed to automatically capture information 
regarding the time during which a commercial motor vehicle is 
operating, however, recording devices will not automatically capture 
data concerning ``on duty, not driving'' time. The driver will have to 
manually input this information, thus allowing an unscrupulous 
individual the opportunity to input erroneous information. Further, we 
have concerns about how drivers will be identified as actually being 
the operator of the EOBR-equipped CMV. There has been discussion about 
methods that could be employed to identify drivers, but it is possible 
that some of these methods could easily be defeated, thus allowing a 
driver who has no available driving hours to operate while using 
another driver's identity. In addition, we have serious concerns about 
other information that can be collected by the ``black box'' 
technology. It has been our experience that carriers that utilize this 
type of technology tend to want to combine it with Global Positioning 
Satellite (GPS) technology and collect information on the ``real-time'' 
position of the vehicle, information on various operational criteria 
(engine speed, braking operations, etc.) Some carriers have attempted 
to use this information to critique the driving patterns of drivers, 
including pressuring the drivers to maintain the posted speed limit in 
a particular area, although there may be weather or traffic conditions 
that preclude the driver from doing so. In extreme situations, motor 
carriers have attempted to use the information to implement 
disciplinary actions against drivers for failure to follow a management 
directive. We feel that this practice has contributed to job stress 
(which may contribute to driver fatigue), overall job dissatisfaction, 
and in some instances has an adverse impact on safety. We would 
strongly recommend that the Federal Motor Carrier Safety Administration 
(FMCSA) and any motor carriers that use EOBR and other electronic 
technologies limit how the technology is implemented.
Speed Limiters
    Many commercial motor vehicles operated by Teamster members are 
currently equipped with speed limiting devices and our drivers report 
no significant problems or safety hazards associated with the use of 
such equipment. However, in some instances the union and motor carriers 
negotiated contract language that requires the vehicles to be able to 
reach an agreed to speed to ensure that the vehicles can be safely 
operated on highways and throughways, e.g., 62 mph for LTL trucks. The 
union is particularly concerned that the vehicles be able to attain 
sufficient speeds to safely pass other vehicles, if necessary. Further, 
CMVs should also be able to maintain safe speeds while traveling up 
hills.
Maximum Speed Limit
    The union agrees that large commercial motor vehicles should not be 
operated at extreme speeds. As indicated above, a large percentage of 
CMVs operated by Teamster members are equipped with speed limiting 
devices that preclude the heavy trucks from operating at the maximum 
posted speed limit in many states. However, it is the opinion of the 
union that heavy trucks are able to maintain sufficient speeds to 
enable them to operate safely when driving among smaller, faster 
personal vehicles. Otherwise, the union has no issue with the current 
speed limit laws.