[Senate Hearing 110-1140]
[From the U.S. Government Publishing 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).
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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.
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\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.
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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\
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\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.
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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.
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\9\ 70 FR 50017.
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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\
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\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.
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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.
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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.
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\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
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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\
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\3\ DFAS, page ES-14.
\4\ Ibid, page 2-64.
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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\
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\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\:
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\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.
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\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.
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\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.
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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.
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\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.
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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\
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\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.
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\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\
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\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\
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\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\
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\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.
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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.
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\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.
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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\
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\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.
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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.
---------------------------------------------------------------------------
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.
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\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.
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\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.
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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.