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Potential Rule Changes Would Relax Hours of Service

Mon August 12, 2019 - Southeast Edition #17
Lori Lovely – CEG Correspondent

After years of challenging the rigid hours of service regulations in place for the trucking industry, the Owner-Operator Independent Drivers Association Inc. (OOIDA) may be seeing some progress
After years of challenging the rigid hours of service regulations in place for the trucking industry, the Owner-Operator Independent Drivers Association Inc. (OOIDA) may be seeing some progress
After years of challenging the rigid hours of service regulations in place for the trucking industry, the Owner-Operator Independent Drivers Association Inc. (OOIDA) may be seeing some progress Once notice has been posted of the proposed rulemaking, a 45-day comment period will allow organizations and individuals to voice their concerns, then it goes back to the OMB for the final ruling.

After years of challenging the rigid hours of service regulations in place for the trucking industry, the Owner-Operator Independent Drivers Association Inc. (OOIDA) may be seeing some progress. An announcement by the Department of Transportation is expected this summer, following a fact-gathering phase, of a proposed rulemaking.

At issue are strict Hours of Service (HOS) regulations that limit a long-haul driver's time to 11 hours in a 14-hour window, requiring 10 consecutive hours off-duty to reset the clock, and a mandate for a 30-minute break before completing eight hours.

These regulations have been in place since the 1930s and are enforced by the Federal Motor Carrier Safety Administration, but the White House's Office of Management and Budget is reviewing the proposed changes, which many see as a victory for trucking industry lobbyists, who have forged a relationship with President Trump. Under his administration, several transportation safety rules have been repealed and rules under development have been withdrawn or delayed.

"We have talked about this and challenged it for years," said Norita Taylor, media relations spokesperson of the organization that advocates for professional truck drivers. In fact, OOIDA has submitted petitions to pause the 14-hour clock for up to three hours and to eliminate the mandatory 30-minute break.

"There have been numerous revisions over the past several years," she said, adding that "the agency [Federal Motor Carrier Safety Administration] seems committed to moving through the process faster" lately.

A Different POV

Critics, such as Harry Adler, executive director of the Truck Safety Coalition, argue that the agency has prioritized the potential rule changes over advancing safety technology, including software that electronically limits speed.

Another expert skeptical about the benefits of the proposed change is Dr. Michael Belzer, associate professor of Economics at Wayne State University, who teaches courses in industrial organization, labor economics and transportation economics. He created and chaired the Transportation Research Board Committee on Trucking Industry Research for more than 12 years and served nine years on the TRB Committee on Truck and Bus Safety as well as nine years on the TRB Committee on Freight Transportation Economics and Regulation. He also has served on the National Institute for Occupational Safety and Health National Occupational Research Agenda Sector Council for Transportation, Warehousing and Utilities since 2006.

He views the "tweaks" to the 80-year-old rules as a "mind-boggling attempt" to increase the number of HOS and says that the rules put in place in the 1930s were intended to "reduce the tendency to overwork people and cut the costs of hiring extra people to get the job done," much like regulations regarding a 40-hour work week.

"The whole point of the regulation is to keep with the Circadian rhythm," Belzer said, adding that an earlier rule had a 15-hour maximum, but it was altered to adhere better to the 24-hour cycle. "The rules were written in the 1930s. There was no research back then. They didn't understand shift work or rotating people. Now we know that you need 10 hours off to get eight hours of sleep or you're in a sleep debt from breaking the Circadian rhythm."

Flexibility Vs. Fatigue

OOIDA wants to see the rules "relaxed." Taylor said drivers must still comply with the HOS, and points out that they are being electronically recorded by electronic logging devices (ELD), which have been mandated since December 2017. Prior to that, drivers kept paper logs of their on- and off-duty time, but those logs were easy to forge in order to get around the long-standing HOS limitations.

Not so with the ELD, which is wired to the truck's engine and cannot be tampered with. In fact, Taylor believes it was the ELD that brought the challenges of the restrictive regulations to the surface because it's much harder to cheat the system now.

However, Belzer pointed out, the ELD only measures when the truck is moving.

"Drivers could be working during their ‘off' time."

He mentioned FMCSA loopholes and said several companies require drivers to log off while the truck is being loaded or unloaded — but they are usually still working … or, at least, not resting. He said a driver is not necessarily off-duty while waiting for the truck to be loaded or unloaded, or for a storm to pass.

The Truck Driver Occupational Safety and Health: 2003 Conference Report and Selective Literature Review by Belzer and G.M. Saltzman examined FMCSA regulations that cover the collection of data on delays experienced by CMV operators before the loading and unloading of their vehicles and to report on the effects of driver detention, as required by the Office of Inspector General. They found that accurate industrywide data on driver detention do not currently exist because most industry stakeholders measure only time spent at a shipper or receiver's facility beyond the limit established in shipping contracts. Despite the fact that "available electronic data cannot readily discern detention time from legitimate loading and unloading tasks," they were able to estimate that a 15-minute increase in average dwell time — the total time spent by a truck at a facility — increases the average expected crash rate by 6.2 percent.

The Advocates for Highway and Auto Safety, an alliance of insurance companies and consumer, public health and safety groups, believe the ELD is an effective way to prevent drowsy driving. Other groups, like OOIDA, believe they make regulating drivers too complicated and unnecessarily inflexible.

"Drivers run out of hours every day," Taylor said. "They're at the mercy of everyone else's schedules, traffic, construction …"

But many think the current regulations are appropriate and worry that the expected change would see drivers putting in longer days, leading to more fatigue. There's no guarantee a trucker will sleep during the three-hour stop; therefore, many could be on the clock for 17 hours, driving at the end of a long period of being awake, according to the American Academy of Sleep Medicine, a professional society of doctors and scientists.

Cathy Chase, president of Advocates for Highway and Auto Safety, an alliance of insurance companies and consumer, public health and safety groups, is quoted in the Insurance Journal as saying, "I think flexibility is a code word for deregulation." She believes the HOS are already "exceedingly liberal."

According to Belzer, an earlier rule allowed drivers to log an extra two hours to get to their destination if adverse weather conditions slowed them down. Thus, he sees no need for this new rule change. Instead, he thinks it's time to "tighten up the abuse" of HOS, viewing relaxation of the rule as a way to force drivers to work longer hours for less compensation.

Studies and Statistics

Commercial driver fatigue is a well-established problem on Interstate highways.

"The [National Transportation Safety Board] did a study back in 1995 titled, ‘Factors that affect fatigue in heavy truck accidents,'" recalled Susan Stevenson, Records Management Division.

The Safety Board analysis of Fatal Accident Reporting System data indicates that in 1993 there were 3,169 fatal accidents, in which 3,783 persons died (432 were occupants of heavy trucks). Fatigue was coded as a related factor for at least one truck driver in 1.67 percent (53 of 3,169) of these fatal heavy truck accidents.

The Safety Board believes, however, that the incidence of driver fatigue is under-represented in FARS in general and in FARS specifically with regard to truck drivers. Research has suggested that truck driver fatigue is a contributing factor in 30 to 40 percent of all heavy truck accidents.

The Large Truck Crash Causation Study, conducted by the Federal Motor Carrier Safety Administration and the National Highway Traffic Safety Administration, examined the reasons for serious crashes involving large trucks (trucks with a gross vehicle weight rating over 10,000 pounds). For this study, a nationally representative sample was selected from the 120,000 large truck crashes that occurred between April 2001 and December 2003. Each crash in the sample involved at least one large truck and resulted in a fatality or injury. According to NHTSA's estimate, there were approximately 120,000 fatal and injury crashes nationwide during the 33-month study period that involved at least one large truck; 141,000 large trucks were involved in those crashes. According to Belzer, the data suggest that economic factors affecting drivers contribute significantly to truck crashes.

Drivers work long hours because they need to make a certain wage, according to Belzer, who said research indicates that 25 percent of drivers work 75-100 hours per week.

"For the past 30 years, there has been an effort to reduce the likelihood of crashes through more regulation," he said, "but things have gone downhill since 2004."

That's when HOS rules were "tweaked," raising the number of working hours legally allowed by "a great number — about 25 percent, to 84 hours a week." He believes the purpose of that change — as well as this proposed one — is to have drivers work more hours, not fewer.

From a micro-economics perspective, Belzer said, if truck drivers are paid for all their time, the industry will find ways to be more efficient.

"Paying for all the time worked would solve lots of problems. The evidence suggests it works. The average trip is 550 miles, which means drivers load and unload every day. That's up to four hours unpaid."

Unpaid but not resting as part of their 10 hours off the clock. "That needs to change," he said.

Drivers who are fatigued can become a hazard behind the wheel. For example, 2017 saw a 10 percent increase in fatal crashes in 2017 (total of 4,657) involving large trucks from the year before, according to a May report issued by the Federal Motor Carrier Safety Administration, an agency of the Transportation Department. Sixty of the truckers in these accidents were identified as "asleep or fatigued," although the National Transportation Safety Board has said this type of driver impairment is likely underreported on police crash forms.

In fact, the NTSB has declared fatigue a "pervasive problem" in all forms of transportation and added reducing fatigue-related accidents to its 2019-2020 "most wanted list" of safety improvements. A groundbreaking study by the Transportation Department more than a decade ago reported 13 percent of truck drivers involved in crashes that resulted in fatalities or injuries were fatigued at the time of the accidents.

Parking Spaces

The OOIDA filed comments with the Transportation Department, recommending that truckers be allowed to pause the 14-hour clock for up to three consecutive hours to wait out bad weather, heavy traffic or traffic delays, loading or unloading or other interruptions keeping them from driving. Under current rules, the clock keeps ticking, adding pressure to drivers to make up time once the interruption is past, believes Todd Spencer, president.

Under the proposed new rule, "drivers would still have to cite conditions to justify stopping the clock," Taylor said. She believes drivers will self-regulate, minimizing the risk of fatigued driving. One factor influencing truckers to adhere to the rules is the consequences of breaking them, which can include fines and possible penalties levied by their employer.

However, the National Institute for Occupational Safety and Health indicated in a 2010 survey that OTR truck drivers continue to work similar unusually long hours, with long-haul truck drivers working an average of 60 hours per week and regularly exceed maximum working hours prescribed by Federal Motor Carrier Safety Administration HOS regulations.

One of the contributing factors, according to the Trucking Research Institute, is a shortage of truck parking space at both public and private facilities. Survey data indicates the majority of commercial truck drivers think there are not enough parking options, and that the Northeastern United States has the greatest shortage of parking. The report indicates that "truckers stated that when given the option, they would prefer to park at private facilities (versus rest stops); however, they frequently reported that at such areas, parking spaces were often not suitable for their vehicles, and that even when they find spaces, they do not always get restful sleep there."

With the 30-minute break rule, Taylor said some drivers are forced to stop in areas not conducive to sleep, unsafe areas such as highway shoulders or when they aren't tired. She said OOIDA is working on the parking issue and hope that the relaxation of the rules will allow drivers to rest when they're tired, not when they have to.

Belzer, however, doesn't believe that self-regulation will occur because drivers will be pressured to meet demanding delivery schedules.

"The OOIDA wants flexibility," Belzer said, "but it's about limitations on the amount of waiver offered."

In short, he believes insurance costs will offset the risk of having drivers on the road more hours.

Next Steps

Once notice has been posted of the proposed rulemaking, a 45-day comment period will allow organizations and individuals to voice their concerns, then it goes back to the OMB for the final ruling.

"I'm optimistic that they take our suggestions regarding flexibility," Taylor said, adding that OOIDA has received "lots of hints" that things will go their way. CEG

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