FMCSA announced Aug. 19 that it had made some revisions to the hours-of-service (HOS) rule it issued in April 2003, including a change to the sleeper berth provision that requires truckers to rest for a minimum of 8 consecutive hours during their off-duty time and a provision that allows short-haul drivers who do not need a commercial drivers' license to extend their workdays twice a week. The new rule takes effect Oct. 1, beginning with a 3-month transition period for the trucking industry and other stakeholders.
Prior to April 2003, the HOS rule which spells out the length of time commercial drivers can operate trucks before they are required to take a break had been in place since 1962.
FMCSA Administrator Annette Sandberg said the update to the 2003 rule was based on extensive research on driver health and fatigue and on nearly 1,800 public comments received during the proposed rulemaking process. Sandberg noted the agency "developed this rule on the basis of safety first and foremost" but added the agency also took into consideration "the operational realities of our complex national transportation system."
"This hours-of-service rule provides an increased opportunity for drivers to obtain necessary rest and restorative sleep, while also recognizing life's realities by providing the flexibility to move products and operate safely," Sandberg said.
However, Public Citizen a Washington-based consumer advocacy group that was one of three groups that filed a successful lawsuit challenging the 2003 rule argues the revised rule offers nothing new under the sun compared to the 2003 HOS rule, which the U.S. Court of Appeals for the District of Columbia Circuit struck down in its July 16, 2004, opinion.
"It's very misleading," Public Citizen President Joan Claybrook said of FMCSA's Aug. 19 announcement of a "new" HOS rule. "The agency is under a court order to re-issue these [regulations.]"
Appeals Court Ordered FMCSA to Rewrite Rule
The appeals court concluded, in its opinion, that FMCSA's 2003 HOS rule "is arbitrary and capricious because the agency neglected to consider a statutorily mandated factor the impact of the rule on the health of drivers."
The appeals court then ordered FMCSA to rewrite the rule.
Even so, much of the provisions in the revised HOS rule are the same as the 2003 rule. The 2003 rule increased truckers' maximum daily driving time from 10 to 11 hours, decreased the maximum daily shift from 15 to 14 hours and established a mandatory rest period of 10 hours per shift (up from 8 hours in the old rule.) All of those provisions carry over to the revised HOS rule.
The 2003 rule also established a 34-hour rest period to recover from fatigue that builds up over the workweek and it carries over to the revised rule. The 34-hour "restart" period is one of several provisions in the 2003 rule that the appeals court said "dramatically increases the maximum permissible hours drivers may work each week."
"Even assuming that the agency had adequately documented the beneficial effects from the decreased daily driving-eligible 'tour of duty,' the effects from the increased weekly driving hours may offset any decrease in fatigue flowing from the fact that drivers have shorter overall tours-of-duty," the court wrote.
Using more direct language, Claybrook called it a "rule of brutality" that permits "slave driving."
"It's a very harsh rule," she said. "It's written for and by the trucking industry. We think it ought to be written entirely differently, and so does the court of appeals."
Despite the court order, the HOS rule was included in the Surface Transportation Extension Act of 2004, allowing it to stay in effect until Oct. 1.
"No One Wants to Work These Outrageous Hours"
The appeals court points out that the 34-hour restart period allows truckers to drive up to 77 hours over 7 days compared to the pre-2003 rule, which capped the number of hours a trucker could driver each week at 60 hours over 7 days or 70 hours over 8 days regardless of whether a trucker got 34 hours' consecutive sleep during the week.
"A driver could work 77 hours over 7 days, for example, by working 21-hour driving/rest rotations 7 days a week, assuming the driver took 34 consecutive hours off after driving the maximum 55 hours and took the minimum 40 hours off over the first 4 calendar days," the court explained in its opinion.
Theoretically, a driver could continue with the same driving/rest rotation and drive 88 hours over 8 days, Claybrook added. She estimated it's an increase of 30 percent more weekly driving time compared to the pre-2003 rule.
"This is an outrageous rule, one going backward into the 18th century," Claybrook said. "It's time we got a handle on the workload these drivers are carrying. It's no wonder the trucking industry is having trouble recruiting drivers because no one wants to work these outrageous hours."
Tiffany Wlazlowski, a spokesperson for the American Trucking Associations, disagreed. Wlazlowski pointed to the 2003 HOS rule's increase in mandatory daily rest time and decrease in the maximum daily work shift as examples of how the rule promotes a sleep/work schedule that meshes with the body's natural Circadian rhythms.
"We think the existing rules are superior to the old industry standard that was put into effect more than 60 years ago," she said. "We think the current rules are effective in providing safety on the nation's highways and we think they provide for the health and safety of drivers."
Wlazlowski added that the "facts and figures bear out this argument." She pointed to a statistic FMCSA included in its Aug. 19 news release that 5.5 percent of fatal truck crashes are caused by driver fatigue. (According to ATA, trucking critics contend the figure is as high as 40 percent.)
Wlazlowski also said recent data provided by FMCSA and the AAA Foundation for Traffic Safety suggests that up to 75 percent of all fatal car-truck crashes are initiated by an error made by the car driver.
ATA and Public Citizen, however, both claim research supports their respective points of view on whether truck drivers' performance declines significantly after 8 hours of driving: Wlazlowski said research shows that most truck-involved fatal crashes occurs during the first 4 hours of a shift, while Public Citizen's Web site says "FMCSA's rule also ignores volumes of key research that show a significant degradation in performance after 8 hours on the job."
At press time, Claybrook said Public Citizen had not decided whether to take further legal action against FMCSA.