[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
WRONG WAY: THE IMPACT OF FMCSA'S HOURS
OF SERVICE REGULATION ON SMALL BUSINESSES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CONTRACTING AND WORKFORCE
OF THE
COMMITTEE ON SMALL BUSINESS
UNITED STATES
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD
NOVEMBER 21, 2013
__________
[GRAPHIC] [TIFF OMITTED]
Small Business Committee Document Number 113-044
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HOUSE COMMITTEE ON SMALL BUSINESS
SAM GRAVES, Missouri, Chairman
STEVE CHABOT, Ohio
STEVE KING, Iowa
MIKE COFFMAN, Colorado
BLAINE LUETKEMER, Missouri
MICK MULVANEY, South Carolina
SCOTT TIPTON, Colorado
JAIME HERRERA BEUTLER, Washington
RICHARD HANNA, New York
TIM HUELSKAMP, Kansas
DAVID SCHWEIKERT, Arizona
KERRY BENTIVOLIO, Michigan
CHRIS COLLINS, New York
TOM RICE, South Carolina
NYDIA VELAZQUEZ, New York, Ranking Member
KURT SCHRADER, Oregon
YVETTE CLARKE, New York
JUDY CHU, California
JANICE HAHN, California
DONALD PAYNE, JR., New Jersey
GRACE MENG, New York
BRAD SCHNEIDER, Illinois
RON BARBER, Arizona
ANN McLANE KUSTER, New Hampshire
PATRICK MURPHY, Florida
Lori Salley, Staff Director
Paul Sass, Deputy Staff Director
Barry Pineles, Chief Counsel
Michael Day, Minority Staff Director
C O N T E N T S
OPENING STATEMENTS
Page
Hon. Richard Hanna............................................... 1
Hon. Grace Meng.................................................. 2
WITNESSES
Hon. Anne S. Ferro, Administrator, Federal Motor Carrier Safety
Administration, United States Department of Transportation,
Washington, DC................................................. 4
Duane Long, Chairman, Longistics, Research Triangle Park, NC,
testifying on behalf of the American Trucking Association...... 23
Tilden Curl, Jr., Tecco Trucking, Inc., Olympia, WA, testifying
on behalf of the Owner-Operator Independent Drivers Association 24
Brian Evans, President-Owner, L&L Freight Services, Inc., Cabot,
AR, testifying on behalf of the Transportation Intermediaries
Association.................................................... 26
Paul P. Jovanis, Ph.D., Professor, Civil and Environmental
Engineering, Director Transportation Operations Program, Larson
Transportation Institute, The Pennsylvania State University,
University Park, PA............................................ 28
APPENDIX
Prepared Statements:
Hon. Anne S. Ferro, Administrator, Federal Motor Carrier
Safety Administration, United States Department of
Transportation, Washington, DC............................. 39
Duane Long, Chairman, Longistics, Research Triangle Park, NC,
testifying on behalf of the American Trucking Association.. 49
Tilden Curl, Jr., Tecco Trucking, Inc., Olympia, WA,
testifying on behalf of the Owner-Operator Independent
Drivers Association........................................ 72
Brian Evans, President-Owner, L&L Freight Services, Inc.,
Cabot, AR, testifying on behalf of the Transportation
Intermediaries Association................................. 85
Paul P. Jovanis, Ph.D., Professor, Civil and Environmental
Engineering, Director Transportation Operations Program,
Larson Transportation Institute, The Pennsylvania State
University, University Park, PA............................ 89
Questions for the Record:
None.
Answers for the Record:
None.
Additional Material for the Record:
AGC of America............................................... 99
ARTBA - American Road & Transportation Builders Association.. 103
CVTA - Commercial Vehicle Training Association............... 109
Letter from Melissa Eichholz, President, Prospect
Transportation, Inc. & Alternative Fuels Transportation to
Hon. Richard Hanna......................................... 112
Truck Crash Victims/Survivors & Safety Groups on Truck Driver
Hours of Service Rule...................................... 113
WRONG WAY: THE IMPACT OF FMCSA'S HOURS OF SERVICE REGULATION ON SMALL
BUSINESSES
----------
THURSDAY, NOVEMBER 21, 2013
House of Representatives,
Committee on Small Business,
Subcommittee on Contracting and Workforce,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:00 a.m., in
Room 2360, Rayburn House Office Building. Hon. Richard Hanna
[chairman of the subcommittee] presiding.
Present: Representatives Hanna, Tipton, Huelskamp, Rice,
Meng, and Clarke.
Chairman HANNA. I would like to thank today's witnesses for
appearing before the Committee today to discuss the effects of
the Federal Motor Carrier Safety Administration's recently
enacted Hours-of-Service regulation on Small Business. Before I
read the rest of my statement, I would like to thank the FMCSA
administrator, Ann Ferro for being here. While we may disagree
deeply on this issue, I always appreciate how forthcoming you
have been, and it is kind of you to be here.
On July 1, 2013, the FMCSA enacted its new rule of Hours of
Service rule for Commercial Drivers. Among the rule's many
provisions, the revised 34-hour restart requirements have
caused the most damage to the integrity of the rulemaking
process and our nation's economy, particularly small
businesses. Whether it is a small carrier transporting goods to
the West Coast or a local grocery store awaiting a delivery
shipment, when truckers are slowed, small businesses suffer.
The Small Business Committee is deeply concerned about the
impact of these new regulations on small businesses.
The Moving Ahead for Progress, MAP 21, required the FMCSA
to conduct a statistically valid field study on the then-
proposed 34-hour restart provision to measure the effects of
the proposed rule on both large and small trucking operators.
This study was due to Congress by September 30, 2013. It has
not yet been delivered.
Under the MAP-21 provisions, Congress intended to have the
study completed before the enactment of the new rule; however,
even with the field study unfinished, the FMCSA finalized and
enacted these untested new Hours-of-Service regulations.
Since July, small businesses, workers, and consumers across
America have raised serious concerns about the restrictive 34-
hour restart provisions of the rule which went into effect
without being backed by solid data, research, or a
representative sample of the trucking industry.
While the FMCSA estimate that the new rule would cost
truckers less than one percent of revenue per year and impacted
less than 15 percent of commercial drivers, the trucking
industry, estimates that the Hours-of-Service rule, cost $376
million annually. By any measure, this is a large sum of money
and costs jobs.
In fact, the latest American Transportation Research
Institute (ATRI) survey of commercial drivers found that nearly
70 percent have lost pay since the enactment of the rule. The
survey also found that 80 percent of carriers are experiencing
a loss in productivity.
The trucking industry is a key link in the small business
supply chain. Not only are many trucking companies small
businesses, but also nearly every type of small business in our
country--food, logging, cement, retail, apparel, asphalt--
depends on efficient, on-time, reliable trucking to sell, move,
and use their goods.
Most disturbingly, there is a case to be made that the rule
does not only cause economic harm, but may also make our roads
less safe.
In the past, when drivers completed the 60- or 70-hour work
week, he or she would need to spend 34 hours not driving to
reset their week clock to zero hours. Now, the restart time
must include drivers resetting for two consecutive periods
between 1 AM and 5 AM.
The new rule therefore compels some truckers to stop
driving by 7 PM in order to take the most advantage for the
restart and begin driving again at 5 AM two days later.
Commercial motor vehicle drivers often drive at night, both as
a matter of necessity and convenience. The FMCSA, in effect, is
pushing truckers onto the road at an earlier time in the day
during morning and evening rush hours, slowing them down and
prompting safety concerns.
I look forward to hearing more about the new rules of
service and how they have affected small businesses across
America, and I want to again express to my appreciation to
Administrator Ann Ferro for appearing today.
I also want to take just a moment. This is a letter that I
received the day before yesterday from the Prospect
Transportation Company, a woman-owned business, been in
business I think since the 1950s or before, and I will try to
get to the meat of it here. She says, ``Unfortunately, the 34-
hour restart provision's specific requirement of two periods of
off between 1 AM and 5 AM has taken away the quality of life,
reduced the productivity, as well as disrupted the drivers'
normal sleep schedule and has done nothing to show its improved
safety.''
And I will give you a copy of this letter and I submit it
for the record.
Ms. MENG. Thank you, Mr. Chairman.
With more than $600 billion in revenue in 2012, the
trucking sector is the backbone of our nation's economy.
Employing nearly seven million individuals, it is essential to
the success of America's companies that depend on the timely
delivery of their goods to customers around the globe, and not
surprisingly, like so many other industries, the trucking
industry is dominated by small businesses. In fact, more than
97 percent of trucking companies maintain fleets with fewer
than 20 trucks.
Central to the performance of this industry is its ability
to operate in a safe manner for its employees, its consumers,
and the public that shares the road. On average, truck crashes
are responsible for nearly 4,000 deaths and 100,000 injuries
every year. In an attempt to reduce these accidents caused by
sleep deprivation, the Federal government has been regulating
hours of service for truck drivers since 1937.
These rules have gone through a number of changes over the
years in responses to evolving research on driver fatigue and
traffic-related accident patterns. This July, after years of
lawsuits and debate by industry participants and public safety
advocates, the newest version of these rules went into effect.
These new changes maintain the maximum driving limit at 11
hours but require that it take place within a 14-hour period.
Drivers are now limited to one 34-hour restart in a seven day
period and required to take periodic 30-minute breaks. Such
provisions were included to ensure that drivers were better
rested when they are behind the wheel. Taken as a whole, the
new rules represent a significant change in how and when
truckers will be able to operate.
From a public safety perspective, many have suggested that
the rule falls short and does not go far enough to address
driver fatigue. By not reducing the 11-hour driving limit, some
believe that the rule will not be effective in reducing driver
fatigue. Similarly, the 34-hour start rule could be used in a
manner that would result in operators being able to drive more
hours than before. Such outcomes could lead to more tired
drivers on the road and adversely impact highway safety.
From the industry perspective, we continue to hear that the
rules are costly and burdensome. A recent study by the American
Transportation Research Institute found that the changes FMCSA
made to the restart requirement will ultimately have a net
annual cost of up to $376 million, rather than the net benefit
of $133 million the agency claimed. In addition, the ATRI found
that the rule has led to a productivity decrease of 3 to 4
percent. This has led many carriers to have to spend more to
achieve the same level of performance as they did prior to the
rule's implementation.
Finally, research has indicated that the new rule has
increased drivers' dissatisfaction during a time when there is
driver shortage and led to no changes in safety performance.
Such outcomes call into question the justification for the
rule.
Taken as a whole, the rule reduces driver flexibility. This
tradeoff will undoubtedly affect drivers as weather delays and
the uncertainty associated with loading and unloading often
require them to be highly adaptable. By requiring mandatory
breaks and two consecutive nights at home, operators will be
less able to tailor their schedules to the constantly changing
factors that they confront each week.
Today, we will examine all of these claims and how the
Hours-of-Service rules are affecting small trucking companies,
as well as their potential to reduce traffic accidents. As with
so many rules, analysis done prior to implementation can only
tell us so much. Time will only show what the true effect of
this rule will be on the industry and on public safety.
With this in mind, it is imperative that Congress continue
to oversee the rule's implementation. Doing so will help ensure
that new regulations are striking the proper balance between
promoting safer roads with the economic impact on small
trucking companies and their drivers. Overall, it is important
that we seek to achieve our policy objectives without
unnecessarily burdening those small businesses that are subject
to these regulations.
In advance of the testimony, I want to thank Administrator
Ferro and all our witnesses today who traveled here for both
their participation and insights into this important topic.
Thank you, and I yield back.
Chairman HANNA. Thank you.
If Committee members have opening statements, they may
submit them for the record.
You are familiar with how the clocks work. We want to hear
from you so, you know.
Administrator Ferro, you may begin.
STATEMENT OF ANNE FERRO, ADMINISTRATOR, FEDERAL MOTOR CARRIER
SAFETY ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION
Ms. FERRO. Thank you, Mr. Chairman.
Mr. Chairman, Ranking Member Meng, thank you very much for
this opportunity today to talk about the hours-of-service rule
and its impact on small business.
The top priority of FMCSA is safety--reducing fatalities
and injuries due to large truck and bus crashes. According to
NHTSA's most recent report, in 2012, nearly 4,000 people were
killed in crashes involving trucks. That is a 4 percent
increase over 2011, which was actually a higher number than
2010. Truck drivers work some of the toughest and longest hours
of any business, and in some of the most difficult operating
conditions. It is a demanding and unappreciated job, certainly
under-appreciated.
FMCSA's changes to the hours-of-service rules will help
truck drivers avoid the long-term health problems that can be
caused by these demanding schedules, and will also help prevent
an estimated 1,400 crashes, 560 injuries, and save 19 lives a
year by reducing the risk of fatigue-related crashes. These 19
lives could be your community's kindergarten class, could be
your son's baseball team, could be members of your extended
family.
This rule was initiated by congressional requirements that
date back to the 1995 Interstate Commerce Commission
Termination Act. After a series of lawsuits, FMCSA developed
the current rule through solid data and an unprecedented level
of transparency, soliciting feedback from thousands of
stakeholders, including small business owners, drivers,
shippers, safety advocates, law enforcement, and trucking
companies. Recently, the D.C. Circuit Court largely upheld the
rule.
Critics have focused their attention on the change we made
to the 34-hour restart provision. A restart allows a driver to
work more than the maximum limits of 60 hours in seven days or
70 hours in eight days. The rule limits that restart, and it is
a voluntary restart, to once a week, which does reduce a
driver's work week to 70 hours on average from the 80 hours
that were potentially available under the prior rule. Again, a
restart is a voluntary tool that only a small percentage of
drivers really need to use. Someone driving 60 hours or less
does not ever need to use that restart.
DOT began examining the possibility of a restart as early
as 1998 when we first assembled an expert panel to reveal the
sleep science associated with excessively long work periods.
Prior to 2003, there was no restart, meaning drivers found
themselves many times a long way from home, waiting to have the
hours to be able to drive again. That 1998 panel recommended
``a continuous recovery time of sufficient length, to include
at least two midnight to 6 AM uninterrupted time periods.'' In
other words, the Washington State University study that is at
issue today, confirmed over a decade of sleep research relating
to the effects of fatigue and CMV operations. But we still
sought extensive public input on the WSU study, and in fact,
through that input, we were convinced to tighten up that period
of off-duty and rest time to include instead of midnight to 6
AM, a restart that included a period of 1 AM to 5 AM, with no
loss in safety.
Many critics want us to return to the restart provision
that was implemented in 2003. It is important for you to know
that that restart provision that the courts criticized when
they threw out the 2003 rule, is the same restart that had only
one lab study, a lab study with fewer participants than
anything we did. In fact, a lab study that was carried out by
ATA through a congressional earmark.
This rule will help save the trucking industry, and
actually our nation, the public at large, an estimated $87
billion a year in the costs and implications of crashes. In
fact, even ATA's own research is failing to show a significant
impact on a driver's hours. Their recent ATRI report that was
released shows that less than a third of 1 percent of drivers'
logbooks actually changed after the rule went into effect July
1. Even we estimated a larger impact than that. The only data
they have produced to show the drivers' schedules did change
was through that survey, but their logbook examples and their
logbook analysis showed a very small change.
Bringing the restart research full circle, I am happy to
report that the agency has been very diligent in pressing ahead
as soon as MAP-21 requirements and the congressional mandate
for a field study on the 34-hour restart get underway. We have
completed the data collection, and I am looking forward to
sharing our findings with Congress as soon as the full report
is complete.
I want to draw on my experience, my very recent experience
and a really treasured one, where I had the opportunity to ride
along for two days with Leo Wilkins, a professional owner-
operator. My time with this remarkable small business owner
helped me better understand the challenges truck drivers face
and to experience firsthand what the agency's safety rules mean
to a driver's daily life. I also saw how the shipper and
receiver drive the unpredictability that plagues the trucking
industry. Exempt from the Fair Labor Standards Act for more
than seven decades, truck drivers, by and large, are paid by
the mile or by the load, and the hours a driver might spend
waiting for a load could cost that driver a day's pay. Driver
pay and extreme loading dock delays have a significant impact
on a driver's ability to be efficient, professional, and safe.
In short, uncompensated delays force drivers to press legal and
physical limits to capture that day's pay. The logistics
industry gets this time free on the backs of drivers and the
backs of small business. Uncompensated detention time needs
your attention because what makes the job better often makes
the job and the driver safer.
Keeping people safe is not a choice. It must be achieved
with a mix of effective programs and enforcement that sets a
level playing field where companies that put safety first are
not competing against folk that are cutting corners or pushing
limits.
Saving lives is FMCSA's fundamental mission. It is our
solemn obligation to the public, and again, I thank you for
inviting me to speak on this topic today and look forward to
your questions.
Chairman HANNA. Thank you. Thank you very much.
I am going to ask Mr. Rice to----
Mr. RICE. Yes, Ms. Ferro, thank you again for meeting with
us a couple weeks ago, and thank you for being here today. I
know that it is not the easiest position to be faced with all
these questions, but you know, there are a lot of concerns. We
want to make sure that we do this right. Everybody is concerned
with safety. Everybody is also concerned with efficiency and we
do not want to take people--their ability to do business away
from them. So we do not want to insert the government into
their lives any more than we need to.
The rule that was in effect before, you say it was put into
effect in 2003?
Ms. FERRO. That is correct.
Mr. RICE. And what is the short version difference between
what is proposed today and the 2003 rule?
Ms. FERRO. Sure. Three key differences.
The 34-hour restart is retained. Its use is limited to once
in a week or once in 168 hours. That restart needs to include
two periods between 1 AM and 5 AM, two periods of off-duty time
in order to ensure the driver gets that kind of recovery sleep
they need. And it incorporates a 30-minute break during the
driver's workday, sometime before any driving occurs after the
eighth hour on duty, time anywhere within that eight.
Mr. RICE. What was the experience, the actual effect of the
2003 rule on injuries, fatalities, accidents, so forth?
Ms. FERRO. I would say that that question is still under
analysis. We generally gauge the impact of our rules and the
impact of our work within the mix of strategies that really
goes into achieving safety on our highways. And while the fatal
crash rate was I think collectively and with the economy we
successfully lowered it to its lowest point in history in 2009,
it has steadily climbed a few percent each year, and that is
really the fatal and injury crash rate relating to truck and
bus crashes.
Mr. RICE. Now, today, is it not 20, 30 percent below what
it was 15 years ago?
Ms. FERRO. That is correct. That is correct.
Mr. RICE. Okay. So it is way down?
Ms. FERRO. We are very pleased. And we continue to drive
it. Drive it, drive it, drive it lower to the extent feasible.
Mr. RICE. All right. And in this study that was done, how
many people participated in that?
Ms. FERRO. Are you referring to the current study or the--
--
Mr. RICE. The one that has been done but it is not
completed. How many people were in that?
Ms. FERRO. Oh, on our field study we have got 106 drivers
participating. Yeah, a good mix of industry types.
Mr. RICE. And in the Washington study, how many were in
that?
Ms. FERRO. Well, I will need to provide the detail for the
record, but there were at least, I believe, 9 to 12 in the
first round and perhaps 15. It is a two-phase study. So
combined I think it was close to 18 or 20 subjects.
Mr. RICE. All right. Today, how many trucking fatalities
from trucking accidents are there average in America today?
Ms. FERRO. Again, NHTSA just released its most recent data,
what they call the FARS report, and that identified just about
4,000 fatalities related to truck-related crashes. That
excludes the bus piece.
Mr. RICE. And your best estimate of the effect on that if
these new rules--as these new rules are implemented, what is
your best estimate?
Ms. FERRO. The analysis we incorporated into the rule
development is 19 lives per year are expected to be saved from
this rule.
Mr. RICE. Which is, you know, less than a half percent.
Ms. FERRO. Nineteen lives. Each life, each one of those
lives is very significant.
Mr. RICE. Actually, it is such a small percentage that we
will not even know if these rules are having any effect, will
we?
Ms. FERRO. The individuals whose lives are saved will know
every day. I know it is tough to prove a negative.
Mr. RICE. It is nice to say that and it tugs at
heartstrings, but the truth is that that sample is so small
that you will not know whether this rule has any effect or not.
Ms. FERRO. I disagree. Every life is precious. One life
lost is--you may think that sounds trifle, but I disagree.
Mr. RICE. My point is we do not know if it is going to save
any lives.
Ms. FERRO. Well, we have got 1,400 crashes that are
expected to be reduced, 450 injuries that are expected to be
avoided, 19 lives saved every year. It adds up.
Mr. RICE. The same is so small that we will not know that
this rule has any effect.
Ms. FERRO. Well, it is not a sample. Those are actual
lives. And I will absolutely continue to disagree vehemently on
that point with you. I think you also uphold the preciousness
of each life.
Mr. RICE. Oh, I do, but where I disagree with you is I do
not think that you know, and you cannot tell from your study
which is not complete, whether it is going to save one life or
not. But we do know that it is going to have a tremendous
economic effect on the trucking industry.
Did your study in its analysis of these 19 lives that could
be saved, did it take into account the fact that truckers are
now going to be moved into rush hour traffic? That the driving
hours are going to be forced into rush hour traffic because you
are taking them off of the highway at the times when they can
drive with no traffic?
Ms. FERRO. You know, it is so interesting, and I think that
is part of the----
Mr. RICE. Just a yes or no. Did it----
Ms. FERRO. Let me say no. This rule does not put trucks in
traffic any more than they already are in traffic.
Mr. RICE. Okay.
Ms. FERRO. Trucks are----
Mr. RICE. So you are saying your study did not take that
into account?
Ms. FERRO. The study accounted for the impact and the cost
on industry of this rule upwards of half a billion dollars. We
absolutely identified it.
Mr. RICE. I am not talking about the cost. What I am asking
you is did your study take into account the fact that under
this rule truckers are going to be taken off the road in early
morning hours when they want to drive when there is no traffic
and it is safer and forced to drive in hours--in rush hour
where it is going to be slower and it is going to be more
dangerous? Did it take that into account?
Ms. FERRO. Absolutely. The reg eval identified that roughly
7 percent of the 3 million drivers out there operating that are
affected by this rule are impacted by that one-time a week use,
1 AM to 5 AM inclusion, 34-hour restart, 7 percent.
Mr. RICE. You still have not answered my question.
Ms. FERRO. Yes, but what my point is, 93 percent of all
operations do not change. They continue to operate. Trucks
continue to operate overnight schedules.
Mr. RICE. Mr. Chairman, are we going to do another round of
questions? I see am over my time, but are we going to do
another round?
Chairman HANNA. Yes.
Mr. RICE. Okay, thank you.
Chairman HANNA. Ms. Clarke.
Ms. CLARKE. Thank you, Mr. Chairman. And thank you, Ranking
Member.
I have no questions at this time. Thank you.
Chairman HANNA. Mr. Tipton.
Mr. TIPTON. Thanks for taking the time to be here. I
appreciate, and I think everyone on this panel shares your
patience. It is something as Americans that we all value every
life. But I was curious. In the opening part of your statement
you said the purpose of this is actually safety, and you
attributed 4,000 people have been killed in crashes involving
trucks. Does your data show that all 4,000 crashes were caused
by the truck or was it caused by the other driver in the crash?
Ms. FERRO. Our data does not include an analysis of crash
causation. The last time we were able to do that was----
Mr. TIPTON. So you are taking the leap that it was the
truck driver's fault. You do not know.
Ms. FERRO. Out of 4,000 crashes, we certainly know that----
Mr. TIPTON. You do?
Ms. FERRO. Absolutely.
Mr. TIPTON. It is the truck driver's fault?
Ms. FERRO. I was about to complete the response. In 2003,
we carried out a thing called the Large Truck Crash Causation
Study, a very important study where we analyzed individual
crashes to determine causation factors, and that analysis
results in data that demonstrates up to 40 percent of fatal
crashes are in the hands of the truck driver. Actually, I am
afraid that is closer to 35 percent, and 45 percent injury
crashes are related to actions by the truck driver. So that is
the most recent----
Mr. TIPTON. Far less than half. I just wanted to kind of
clarify because----
Ms. FERRO. Yeah. Yeah, absolutely. That is the most----
Mr. TIPTON.--you were intimating in your testimony that
this was caused by trucks. You are now stating less than 50
percent of this was actually caused by the truck drivers.
Ms. FERRO. No, no, no. I am always very careful to say
4,000 crahses--4,000 deaths in crashes relating or involving
trucks and buses. It does not attribute fault. And in this
case, the rule estimates 19 lives saved relating to truck-
caused crashes.
Mr. TIPTON. I think that is just where we want to be very
cautious that you do not overreach in terms of trying to put in
a regulatory process that when we talk about families, some of
these truck drivers are trying to provide for their families.
They are paid by the mile, and when you are shutting them down
and they are not able to actually produce and generate revenue
for those families, there are going to be some real impacts.
I am curious, how many logs did you look at in terms of
what drivers in terms of trying to develop a rule?
Ms. FERRO. Well, I will provide that for the record. We
certainly included a log survey, driver surveys, as well as
logbook analysis in our rulebook development.
Mr. TIPTON. Okay. So you do not have any idea of how many
logs you actually looked at.
Ms. FERRO. We look at logs every day across the country.
Mr. TIPTON. You look at logs----
Ms. FERRO. But in terms of an actual study, unbiased study
and a very clear study, that is actually documented in the reg
eval.
Mr. TIPTON. I believe by your estimation, 15 percent of
truck drivers operate at the maximum weekly. Is that correct?
Ms. FERRO. Yes. In our estimation, it was 15 percent of the
driving population impacted by this rule because of the nature
of their operations being overnight and on the road.
Mr. TIPTON. How is this going to impact the other 85
percent?
Ms. FERRO. Actually, insignificant to none.
Mr. TIPTON. Insignificant to none?
Ms. FERRO. That is correct.
Mr. TIPTON. So are they going to be allowed to use the same
34-hour restart?
Ms. FERRO. They may. It is voluntary. A driver operating 60
hours or less does not need the restart.
Mr. TIPTON. Does the rule imply that?
Ms. FERRO. Oh, that has been a longstanding rule.
Mr. TIPTON. That is a longstanding rule.
Ms. FERRO. That did not require anything new.
Mr. TIPTON. Okay.
Ms. FERRO. Yeah.
Mr. TIPTON. Okay, Administrator, you say in past research
you have found 240,000 drivers work an average of 70 hours or
more per week. Can you tell me how your 2007 field study shows
that drivers work that much time on average each week?
Ms. FERRO. I will certainly follow that up with--on the
record with that analysis. Yes.
Mr. TIPTON. Okay. If you can follow up and give us some
written testimony----
Ms. FERRO. Absolutely.
Mr. TIPTON.--we would certainly appreciate that.
And you stated that your restart study will be delayed
until next spring. I assume that is in part due to your peer
review process?
Ms. FERRO. It is under review as we speak. That is correct.
Mr. TIPTON. Okay. Did you have your 2011 Hours-of-Service
Regulatory Impact Study peer reviewed?
Ms. FERRO. Generally, it receives extensive review through
the Notice and Comment Rulemaking Process.
Mr. TIPTON. Generally, is it going to have peer review is
my question?
Ms. FERRO. Well, that is completed. The studies that are
incorporated and used in that analysis are peer reviewed
studies.
Mr. TIPTON. And that is completed?
Ms. FERRO. That is correct. Yes.
Mr. TIPTON. Good.
You know, I would like to shift a little bit, if I may, and
this is going to go over actually into some oil field work. Was
this rule a restatement or a revision?
Ms. FERRO. Which rule is that, sir?
Mr. TIPTON. Okay, this in regards to the FMCSA 1962
guidance in regards to off-duty for the Statement of Guidance
on CMV truck drivers subject to the OHS exemptions under 40
CFR.
Ms. FERRO. Yes, Congressman, what we refer to generally as
the oil field exemption is something that the ICC put in place
over 50 years ago, and there are two pieces to it. The first
provides any trucking operation or driver servicing an oil
field has certain special treatment under the hours-of-service
rule. They are allowed a 24-hour restart regardless, and that
is longstanding. That guidance has not been in dispute.
Mr. TIPTON. And I just want to clarify for me was this a
revision of the rule----
Ms. FERRO. No.
Mr. TIPTON.--or was it a restatement of the rule?
Ms. FERRO. No, the second piece relates to specialized
equipment and those eligible for certain off-duty time
accounting. It was not a change. It was a restatement of the
guidance that has been in place for 50 years.
Mr. TIPTON. That is a restatement. Did that go through the
formal rulemaking process?
Ms. FERRO. It went through the formal notice and comment
process. It is not a rulemaking.
Mr. TIPTON. It is not a rulemaking.
Ms. FERRO. It is not a rulemaking. No.
Mr. TIPTON. Is it having the impact of a rule?
Ms. FERRO. I believe it is not having the impact of a rule.
It is guidance that has been on the books for 50 years. The
origins of the restatement were the various ways, the
differences in the manner in which it was being enforced across
the country as our country's energy independence has really
expanded and the development and exploration has expanded.
Companies who were operating in four or five regions at a time
noticed that it was being enforced by local officers
differently, and they said can you please get some
clarification out there. That is what we did. It prompted some
real concerns about those who interpreted it differently. But
again, we restated the guidance, and we have worked very
intensely with industry to ensure that they understand there is
an exemption request for that specialized equipment that fits
in a gray area and that they need to go ahead and submit their
requests for consideration and for public notice. And that
process has begun in some cases.
Mr. TIPTON. Okay. I am out of time but I think we are going
to have a second round. We will follow up a little bit on that.
Thank you.
Ms. FERRO. Okay. Okay. You are welcome.
Chairman HANNA. Mr. Huelskamp.
Mr. HUELSKAMP. Thank you, Mr. Chairman. I appreciate having
this hearing today. This is an important issue to a number of
my constituents. I receive certainly complaints about this and
a couple questions. And I am sorry, I came late. To pronounce
your last name, Ms. Ferro?
Ms. FERRO. Ferro, that is correct.
Mr. HUELSKAMP. Okay. Well, thank you, Ms. Ferro. I
appreciate that.
Ms. FERRO. Certainly.
Mr. HUELSKAMP. And I appreciate your comment ``all life is
precious.'' That is actually not the official line of the
administration, and I would love to visit with you further
about that on a number of life issues. But I want to ask a
little more follow-up questions of my colleague from Colorado
as far as the MAP study is required under the law.
Was that required before you could finalize the restart
rule or was that just something you could do whenever you
decided it needed to be complete?
Ms. FERRO. The MAP-21 field study of our 34-hour restart
provisions was something that Congress said complete. It did
not connect it to the effective date of the rule. And the rule,
of course at the time, was already--had already been finalized
for over a year and published for just about a year.
Mr. HUELSKAMP. And it was being enforced at the time?
Ms. FERRO. Well, it took effect July 1 of last year. Of
this year, pardon me, July 1 of this year. Time flies. We are
already in December.
Mr. HUELSKAMP. And there is no way you could get it done in
12 months to have it completed?
Ms. FERRO. No, no, no. The mandate, the MAP-21 mandate was
something that we took on immediately as soon as that bill was
signed to begin identifying volunteers, companies that would
volunteer to participate in this kind of a field study.
Mr. HUELSKAMP. I understand. But that is 16 months later
and you are telling me it is still not complete.
Ms. FERRO. Yeah. Our data collection was completed this
summer and the report itself is now under peer review.
Mr. HUELSKAMP. So when do you actually expect to complete
that study and so folks outside the agency can actually review
the study? There are some questions about previous studies from
your agency.
Ms. FERRO. Yeah. Well, I would like to say the upcoming
months. I know one of the members just said in spring. Ideally,
we will have it to you in the first quarter of the next
calendar year.
Mr. HUELSKAMP. Do you think it is effective to start the
rule and then proceed with a study to determine whether it is
really needed or not?
Ms. FERRO. Well, again, the lab study on which the rule
provision that is in question today is based is a very solid
study, a two-faced study, again, based on over a decade of
sleep science analysis and discussion on this topic.
Mr. HUELSKAMP. But the data on the truck crashes, how old
is the data that is being used as the basis for this?
Ms. FERRO. Well, we certainly used the Large Truck Crash
Causation data.
Mr. HUELSKAMP. And when is that from? Is that not a decade
old?
Ms. FERRO. Yes, that is correct.
Mr. HUELSKAMP. Ten year old data and you still take 16
months, still do not have this study done using 10-year-old
data. Now, in that 10-year-old data from, again 2003, did it
not presume--the baseline was I think 434,000 crashes per year.
Is that correct?
Ms. FERRO. Yes. And let us separate two separate things.
The field study is not relying on any old data. The field study
is relying on the conditions established in the congressional
mandate under MAP-21. The 450,000 is a number that we used in
some of the earlier research on the hours-of-service rule. That
is correct.
Mr. HUELSKAMP. And so the crash data you are using though
is 10 years old?
Ms. FERRO. Yes, and you know, we have carried out an
analysis moving forward using more current numbers that were
not in existence at the time we were developing----
Mr. HUELSKAMP. And is this analysis public?
Ms. FERRO. Actually, we just completed it based on the
criticism that came out I think this week from one of the trade
associations.
Mr. HUELSKAMP. The analysis, is it public? Is it published,
ma'am, or is it still internal?
Ms. FERRO. I will certainly make it public for the record.
Mr. HUELSKAMP. So in answer it has not been public as of
today?
Ms. FERRO. No, again, we just got the claim yesterday from
one of the----
Mr. HUELSKAMP. Well, no, it has taken you 10 years to
update. I understand that takes time. You are using 10-year-old
data. We have a 40 percent decrease in the crashes as part of
this, and then it has taken you 16 months. You are still not
done with the study. You still have not released it at all. It
is still internal. You do not know whether it is even--well,
you are saying it is not even going to be released this year,
sometime in the spring, and then you come here and tell us you
know exactly what the impact is when you do not have the study,
it has not been peer reviewed, obviously. It has not been made
public. I mean, this is actually what upsets my constituents.
They understand the desire for safety, but they want it to be
based on science.
Ms. FERRO. That is right.
Mr. HUELSKAMP. And ability to actually work with folks that
are in the field that do it every day. That drive a truck every
day. And they are telling me this is not working and it is not
making sense. There have been independent studies that have
confirmed that in my opinion. It is costing us money and I
think it is hurting particularly our independents that are out
there driving.
And one last thing, I see another issue, a National Pork
Producers Council had proposed an exemption. Where is that at?
Ms. FERRO. That is under consideration. And let us put that
in two pieces but I want to quickly back up and remind you
again you are combining data in two separate studies. The
Washington State University Lab Study on which the 34-hour
restart is based is a two-phase substantive lab study peer
reviewed and absolutely solid outcome based on decades of sleep
science research, unrelated to the crash data that you were
referring to which was also part of the reg analysis, not part
of the sleep science analysis.
With regard to the exemption request by the Pork Producer
Council, yes, they in fact did submit a request for an
exemption from the 30-minute break, having nothing to do with
the restart. The agency, recognizing that last year's summer
heat were extreme, I granted a one-time 90-day waiver. I have
the authority to do that so over the summer, from the time--
July 1 of this year, the pork producers and the other livestock
industries they were representing, were operating, had a break
from the 30-minute requirement. They also submitted an
exemption request for a full two-year exemption from the 30-
minute break. That is under review today.
Mr. HUELSKAMP. And do you anticipate granting that or what
is your estimation?
Ms. FERRO. I will wait until, again, I agree with you. We
are very focused on research data-driven decisions in a very
open process, and so I will let the data and the research----
Mr. HUELSKAMP. But the exemption request that you did
grant, that was based on data?
Ms. FERRO. That was a waiver request. That was not an
exemption request. It was a 90-day waiver recognizing the
impact that heat has on livestock and the extreme heats we had
the summer before.
Mr. HUELSKAMP. Well, there are extreme heats every summer I
will note as well, ma'am. There is extreme cold as well. And as
far as animal welfare, that is a very serious issue. And so I
appreciate you continuing to look at that. And I would ask you
to extend that as well.
And I yield back, Mr. Chairman.
Ms. FERRO. Understood. Thank you.
Chairman HANNA. Thank you.
What is clear to me is that this is a philosophy, an
ideology, but not a solution to a problem. If you are indeed a
data-driven organization, why is it that the study simply--what
was the rush to this? And I agree that the 19 lives, that
percentage is conjecture. And there is no one here, and I find
it disquieting that you would even think anybody here would not
consider each life important. That is not the point. The point
is the cost-benefit analysis associated with this.
In your testimony you identified the economic benefit of
the restart study rather than a benefit. A recent study found
that the new restart rules have no net benefit. It will cost
the industry up to 376 million, which you have heard.
Additionally, a report compiled by the American Transportation
Research Institute identified the changes to the HOS rule will
have an operational impact on drivers' wages over the road
totaling $1.6 billion to $3.9 billion in annualized losses. And
what do you say to somebody actually in the business who did
not spend two days in a truck but spent a lifetime in a truck
when she says the 1 AM to 5 AM is taking away the quality of
life, reduced productivity, as well as disruption of the
drivers' normal sleep schedules, circadian rhythm, et cetera?
And yet, you are supposed to be a data-driven organization. You
know, a lot of this conversation is not about the 34-hour rule.
Nobody is objecting to that, but everyone, myself and most
people, I think, are objecting to the process and the arrogance
associated with it. And I do not mean that personally, I mean
that in general, that it is inflicting pain on people and yet
all we are really asking is that you prove your point.
So why did you rush to this, if you agree that you did?
Ms. FERRO. We absolutely did not. So I certainly do not
agree to that last point. There is no rushing involved. I think
as the ranking member indicated in her opening statement, the
hours-of-service conditions under which drivers operate are,
and will continue to be, hotly discussed because it impacts,
absolutely, that driver's quality of life, that individual's
ability to derive strong and successful and life-sustaining
income, and it impacts small businesses. We recognize the
impact on small business and on full aspects of the trucking
industry of this rule and our analysis. It absolutely is data-
based, research-based, fully vetted, unprecedented level of
transparency throughout the development of this rule process
which we started in 2010. So in terms of being either theory-
based or philosophy or arrogant----
Chairman HANNA. But how can you----
Ms. FERRO.--we have been as open----
Chairman HANNA. Well, how can you say that when you do not
take into consideration the change in the nature of the
drivers' workload, that you have actually through this process
pushed someone into hours that are more convenient, less
capable of moving around traffic because it is more congested,
and yet you said yourself earlier you did not take that into
consideration. So how is that a holistic study in any way when
that very thing is something that everybody is talking about?
And why is the agency so numb to the industry whose number one
concern is safety? There is not a person I have spoken to about
this issue that does not agree that safety is the most
important issue, especially in our very litigious society and
the cost of workman's comp, et cetera. And yet here we sit,
fighting back on a rule that the administration did not even
see fit to finish a study to at least patronize us? That is
where I come up with the term arrogance.
Ms. FERRO. Well, yeah. And I would deny both arrogance and
numbness. We are as sensitized to this industry and drivers'
conditions as any time in history when it comes to oversight of
the truck industry. The fact, you know, when you start a rule
and start a reg analysis, you look at the full population. Who
is affected by it? Who comes under the oversight of this rule
development itself and the hours-of-service rules? It is about
three million drivers. And again, the hours-of-service rule
itself that was put in place in 2003 has been litigated twice
and a third time almost, so we really have only had uncertainty
about this rule until today now that the Circuit Court has
upheld the rule that we put in place and we finally got some
certainty going forward. Again, it is a research- and data-
driven rule.
Looking at, and part of that analysis in the rule
development includes who is affected by what changes, and what
is the cost of that and what are the safety benefits. And we
weigh all of that together.
Congressman Rice earlier said, you know, ``Who is not
affected by it?'' Well, again, almost 85 percent of the driving
population continues to operate because the vast majority in
ATA's own submittal during the rulemaking process, the vast
majority of their members' drivers and drivers across the
country run between 45 and 50 hours a week on average. They
never need the restart.
Chairman HANNA. No, but that does not necessarily justify
the restart for the other percentage.
Ms. FERRO. You know, there are always tradeoffs and there
are people impacted by this rule. There are people who were
impacted by an 80-hour week, week after week after week. That
is double time. That is what could be averaged under the prior
rule without this restart. That has a level of health impact on
drivers. Chronic fatigue has an impact on blood pressure, has
an impact on diabetes.
Chairman HANNA. But then how do you respond to Prospect
Transportation, the lady whose letter I read. What do you say
to her when she is telling you just the opposite and she
actually sees these people every day.
Ms. FERRO. Yeah.
Chairman HANNA. And I do not want to sit here and say she
is being disingenuous. I believe these people. And frankly,
they are okay with the 34-hour rule from 2003. They are
comfortable. They have learned to live with it, and you said
yourself, it has been litigated a couple of times. But they
find this excessive, unproven, and Congress under MAP-21 did
ask to have a study completed. It was supposed to be done--the
last time we met it was supposed to be done I think September
30th. Now we are saying it is spring. I mean, how do you expect
people to be comfortable, respectfully, with a decision that
looks so--just the nature of it looks frankly sloppy?
Ms. FERRO. Yeah, I would like, with your agreement, of
course, I would like to follow up with your constituent and
talk with her about how they are applying the rules. It is
clear from the work, again, we have been on the radio several
times every month since long before the enactment of this rule
to, again, listen to drivers' questions. We are all across the
country talking. We have got logbook examples on our website. I
would very much like to follow up and find out how she is
applying it because in many cases we are finding that there is
a misunderstanding in this restart. So many drivers do not need
it. They are telling their own safety managers they do not need
it and safety managers saying, ``Yes, you do.'' Because, again,
it is a voluntary tool to reset a clock, but if the clock does
not need resetting, you do not need to get into that condition.
Chairman HANNA. But a lot of people find themselves there.
I will yield to Ranking Member Meng. Thank you.
Ms. MENG. Thank you.
The number of people killed in large truck- and bus-related
crashes has declined by about 29 percent between 2000 and 2011.
What do you think was the main reason for this decline?
Ms. FERRO. It is a combination--again, safety comes about
through very intense effort by a wide range of folks--by
industry, by government--state, local, federal--by enforcement,
by safety advocates, by the businesses that purchase the
services of that trucking sector, and generally a recognition,
again, that safety is a very solid bottom-line number when you
have got safety as a top priority. And so together, technology
investment, improved analysis of the carriers that are
operating unsafely, and actions against them, tougher
authorities that Congress has given us over the past few years,
all of those efforts combined continue, and we will continue to
work together to drive that number down and save lives.
Ms. MENG. How significant of a problem is driver fatigue
amongst truckers today and what role does it continue to play
in car crash, bus crash fatalities?
Ms. FERRO. Our analysis, both that we used in the rule, as
well as what we have spoken to in many ways, comes about
through several different datasets, including in a Large Truck
Crash Causation Study. In our rule development and evaluation,
we used a range from 7 percent to 13 percent and analyzed the
costs and benefits using both pieces of data.
Ms. MENG. What research and data has FMCSA used to support
this conclusion of, I am sorry, truck crash--this conclusion?
Ms. FERRO. The conclusion on the fatigue-rated research?
Again, it goes back to the very individualized analysis of each
of the crashes in that Large Truck Crash Causation Study. We
have also carried out surveys of drivers. In the past, in one
survey in particular, a significant number and percentage of
drivers, certainly better than 30 percent, identified that they
did, in fact, drive tired and had had an experience of, you
know, sort of a brief moment of sleep at the wheel. And that
was through surveys. That was not pre-crash, but that was
absolutely more than anecdotal.
Ms. MENG. Besides fatigue, are there any other factors that
contribute to these types of crashes?
Ms. FERRO. There are a wide range of factors that
contribute to crashes--speeding, aggressive lane changing,
unsafe braking or other equipment, inadequate visibility, the
actions of the passenger vehicle or other vehicle operating
around and the need for that driver, the professional driver to
take evasive action. There are a whole series. Weather. There
are many contributors. But again, the more significant
contributors, the highest contributor is going to be speed. And
any other action that could contribute to the inability to
respond quickly, such as fatigue, if someone is going too fast
for conditions and they come across a line of traffic, is going
to compound the result of that crash.
Ms. MENG. Thank you, I yield back.
Ms. FERRO. Thank you.
Chairman HANNA. How do you respond to the truckers in the
room? I mean, basically, you are saying they are wrong and you
are right; that the rule will help them. They do not think it
does. According to a recent study survey of the CMV operations
and carriers, more than 80 percent of the carriers report
significant impact on their operations as a result of changes
the agency has made to the 34-hour restart. You say it is 15
percent. You know, and how do you respond to criticisms from
small business trucking operators, the new Hours-of-Service
regulations actually increase fatigue? I am just----
Ms. FERRO. What do I say?
Chairman HANNA. Yeah, what do you say?
Ms. FERRO. Well, first I start by separating those two data
points that you talked about--the 80 percent and the impact on
income. The survey--there are two things that ATRI released
this week which was part of the American Trucking Association.
It included a logbook analysis that identified that less than a
third of 1 percent of the drivers' logbooks showed any change
in hours of operation pre-rule and post-July 1 of this year. So
that was the sort of hard, just clear and cut data from
logbooks. A separate piece that derived that 80 percent is a
survey that is sort of one of those kind of vote early, vote
often concepts, an online survey that they solicited their
members to respond to. I would be happy to understand what is
behind that survey. That is what I have not seen from them yet,
but again, we take this very seriously. It is important to
recognize that this rule and the prior hours-of-service rule
does impact some drivers' pay, and it absolutely impacts small
businesses. And in some cases, large businesses.
Detention time, inadequate compensation, 36 cents a mile
for a driver running 70 miles a week is just unconscionable.
That is the average pay.
Chairman HANNA. Well, you are not proposing--you are not
sitting here telling people--I mean, that is the market. You
know, that has got nothing to do with this issue. Why do you
even mention that? I mean, if you are going to criticize people
for what they are paying, I can appreciate that, but that is
not the point. We are saying that you are actually making it
worse for the very people that you are saying you want to help.
Ms. FERRO. No, I mention it because the survey in question
asked drivers about their pay and had it been impacted pre or
post. So again, the logbook analysis says no change. Drivers
being solicited, or whoever responded to the survey is saying
big change in my income. So, and in terms of loss, so
absolutely, it is very important to understand what is behind
that data. We would be happy to look at it more closely and
discuss it and provide our analysis for the record.
Chairman HANNA. Are you open to rolling this rule back and
waiting till the survey?
Ms. FERRO. No, absolutely not. This rule is a solid rule.
It has been upheld by the court. It is based on sound research.
However, there continue to be and should continue to be a
discussion about the hours of service and continued sensitivity
to the challenges that a lack of predictability imposes on a
driver in the context of a set of hours. And so we are pursuing
a pilot project that combines the results of some split sleep
research we did that we finished after this rule went into
effect and the electronic logging device rule that we were all
so eager to press forward on, but take advantage of those two
pieces. We do not have to wait for the ELD rule to be
complete--to analyze the benefits of trying to get towards this
question of improved flexibility while maintaining our
effective safety oversight.
Chairman HANNA. So if you find out you are wrong you are
saying that you are open to changing it because if you are
studying things but you have already enacted a rule, so I guess
I find that a little odd.
Ms. FERRO. Well, I hope I can continue to explain to you
how in fact it is absolutely to be expected and a solid
approach that an agency drives a very transparent discussion on
a rule that has this level of an effect on folks, on at least
15 percent of the driving population but not the other 85.
Yeah.
Chairman HANNA. Mr. Rice.
Mr. RICE. Thank you, sir.
I have got information here in front of me. I guess this
survey you are talking about is from the American
Transportation Research Institute?
Ms. FERRO. Right.
Mr. RICE. So is it more than 80 percent of motor carriers
surveyed had experienced productivity loss since the new rules
went into effect, 67 percent of drivers report decreases in pay
since the rules took effect, drivers' wages for all over-the-
road drivers fell by a total of 1.6 billion to 3.9 billion in
annualized loss? Do these findings concern you at all?
Ms. FERRO. Yeah, in fact, I was just speaking with the
chairman about that. That is correct. And when you separate
that data, again, as part of ATRI's work on this issue--they
also analyzed drivers' logs and found that the drivers' logs,
the hours they worked pre-July 1 and the hours they worked
post-July 1 changed nary a bit, but a third of 1 percent.
Mr. RICE. So you are saying that you do not necessarily
agree with the results of this study?
Ms. FERRO. Their survey, again, I would describe until I
can see what the basis of it is, is sort of a vote early, vote
often type of survey. I have no idea who actually was
contributing that survey information.
Mr. RICE. All right. Now, this rule, does it apply to
short-haul drivers?
Ms. FERRO. The 30-minute break requirement does not. The
remainder of the rule certainly does.
Mr. RICE. Why does it not?
Ms. FERRO. The 30-minute break requirement?
Mr. RICE. Yeah.
Ms. FERRO. Again, the D.C. Circuit Court, as I said, upheld
the majority of the substance of this rule but did strike down
the element of the 30-minute break requirement on the short-
haul industry.
Mr. RICE. Okay. So the court found that this rule was over-
expansive at least in that respect?
Ms. FERRO. That is correct, on the 30-minute piece. For
short-haul, yes.
Mr. RICE. And so people like, you know, people driving
bread trucks in the morning, people driving cement trucks, and
these people that they are in and out of their truck all day
long, it is not like they have got driving fatigue; right?
Ms. FERRO. And that would appear to be the nature certainly
of why we have special conditions for short-haul to begin with,
in that 100-150 mile radius as well as the court's decision on
the 30-minute break.
Mr. RICE. So you are saying these overnight rules do not
apply to the short-haul drivers?
Ms. FERRO. No, the 30-minute break is the only piece that
the court struck down. The remainder of the rule absolutely
does apply.
Mr. RICE. The overnight rules do apply to short-haul
drivers.
Ms. FERRO. Absolutely. And again, they generally do not
need them because they do not work beyond a 60-hour week.
Mr. RICE. Then why do they apply to them at all? I mean, it
is ridiculous in my mind. These people are not suffering from
driving fatigue. They are in and out of their trucks all day
long. These people driving concrete trucks, they cannot drive
very far. The concrete will get hard. Asphalt drivers, they
cannot drive very far. And then when they get to where they are
going they sit and wait till they can dump their load and then
they drive for 30 minutes more. The idea that this rule would
apply to them is just absurd. This idea from the federal
bureaucracy that you are going to throw a wet blanket over
everybody and wait till a lawsuit comes and tells you who it
can apply to is just absolutely absurd. And particularly with a
half-baked thing. The study is not even complete. And you
cannot even tell if you are right whether or not it is going to
have any effect because the result is so small in terms of the
benefit but the cost is so great.
Ms. FERRO. Yes. And it is interesting you say that. The
hours-of-service rule that applies to the short-haul industry
is virtually identical to the rule that has been in place since
2003. And again, because those operators very rarely exceed 60
hours a week, and they already under the short-haul conditions
have the ability to extend the workday, that driving window to
16 hours from the normal 14 during certain times of the week or
a couple times a week, they already operate under conditions
that have not changed under this rule.
Again, hours of service for the trucking industry is the
purview of the Secretary of Transportation. It is not subject
to the Fair Labor Standards Act. So anybody that is operating a
commercial vehicle that comes under the oversight of the DOT is
going to be subject to some sort of an hours-of-service
requirement, and that set of requirements on short-haul
operators is virtually unchanged.
Mr. RICE. Well, I think that what we have got here is we
had a rule in place that had reduced traffic deaths,
fatalities, accidents by truckers by 29 percent I think is what
Ms. Meng said and that we have done a study with 27 graduate
students in Washington and determined that maybe possibly we
might be able to save 18 people. We are not going to know
because the sample is so small. And we are willing to impose
the Federal government on all these small businesses across the
country and have them incur this loss where we have got 60
percent of drivers report pay decreases, 80 percent of motor
carriers providing productivity loss and we have not even
finished the study. I do think it is arrogance. I absolutely
think it is arrogance. I think we need to rethink. We need to
reset. We need to at least finish our study and figure out if
we are basing this on the right conclusions.
So I thank you for appearing today. I hope you will
reconsider. Thank you.
Ms. FERRO. Thank you.
Chairman HANNA. Mr. Tipton.
Mr. TIPTON. Thank you, Mr. Chairman.
I think I would like to follow up on a couple of the
comments that you had made, Administrator. In your response to
the Chairman you said that you were sensitized to the industry
concerns.
Ms. FERRO. Absolutely.
Mr. TIPTON. And Mr. Rice was just noting 80 percent of the
motor carriers surveyed experienced productivity loss. A
majority of drivers, 67 percent report decreases in pay since
the rule took effect. And I think it is important to note these
are not oftentimes big businesses. The big company owner is the
guy driving the truck or the woman driving the truck, so you
are sensitized to that. Do you understand the frustration of
``one size fits all'' being thrown over an industry?
Ms. FERRO. Absolutely. I think that has been a frustration
that has prevailed for the hours-of-service rules for many,
many years. It absolutely predates this rule. It is the----
Mr. TIPTON. So we are adding another rule that is ``one
size fits all''?
Ms. FERRO. No, no, no. The same rule is virtually intact.
It is the 14-hour driving window and 11-hour drive time. It
provides for a restart for those that need to reset their
clock, and the vast majority do not.
The survey in question I think surveyed about 3,000
drivers. Again, we do not know who they were or the integrity
behind that process. I am happy to provide our analysis of that
survey for the record. But again----
Mr. TIPTON. You mentioned 3,000.
Ms. FERRO. Yeah.
Mr. TIPTON. I am just curious, how many drivers are there
in the country?
Ms. FERRO. Roughly three million affected by this rule.
Mr. TIPTON. Three million.
Ms. FERRO. But more than that certainly operating on
intrastate operations or smaller vehicle operations that are
not keeping records of duty.
Mr. TIPTON. Right. And just for my clarification, of these
3,000, was this nationwide in the sample survey?
Ms. FERRO. I do not know. I think whoever is responsible
for that survey, it was an industry survey, could be able to
answer that I hope.
Mr. TIPTON. Okay. And I think this begs back to the
Chairman's point, that we are implementing a rule. It is not
completed. We do not know if it was broad-reaching in terms of
different regions by your own admission right now, but we are
forging ahead with a rule that is going to impact real lives,
real businesses, and could have some very dramatic effects.
I appreciate your being here. I understand, and we all,
again, share the compassion of wanting to make sure that we are
safe. I happen to know some of the guys driving the trucks.
They want to be safe, too.
Ms. FERRO. Yeah, they do.
Mr. TIPTON. But they want to earn a living, too. And they
are seeing the Federal government stepping in with a broad-
based ``one size fits all'' across the nation policy on an
incomplete study with a small sample size that can really
impact them. And I hope you can understand that frustration
that is there.
Mr. Chairman, if I may, I think this speaks broadly to a
bill that we passed through the House of Representatives called
the Rains Act to where we can actually get Congress involved
back into the rulemaking process because I have to tell you, as
a member of Congress, it came from the state of Colorado, we
have sunset legislation where we can review rulemaking, and to
be able to actually bring in those real-life stories and those
real-life impact. I think this Rains Act is something I would
encourage the United States Senate to take up because as well-
intentioned as you are, I think there are some real impacts
that are not really being taken into consideration here. When I
was in business, before we made a decision, we had the final
product to be able to make the best decision.
Ms. FERRO. Well, look, the safety of the American people is
something we take into consideration utmost. That is why this
agency was created. Safety of the industry, health of the
driver, ultimately safety of the American people. The number of
fatalities, even taking your earlier example of what if it is
something closer to 25 percent or 30 percent that are caused by
the truck driver, you are talking two to three 747s. Two to
three 747s crashing every year. You would not tolerate it. The
American people would not tolerate it. We continue to press
forward with balanced rulemaking, research-driven, data-based.
The study you asked me about in terms of its nationwide impact
is an ATRI study. That is not a FMCSA study. The numbers you
quote were something that was just released this week. The data
and research behind this rule were fully vetted, fully peer
reviewed, fully available to stakeholders to comment on. This
has been a more transparent process than ever before. This is a
rule that has been upheld by the court. We now have certainty
in the hours of service, which we have not had since the ICC
Termination Act directed the agency to revisit truck drivers'
hours-of-service rule because of fatigue and its impact on
crash likelihood and safety.
Chairman HANNA. Sure. And Congress has still asked to have
a study completed for----
Ms. FERRO. And we will complete it.
Chairman HANNA. Well, I do not know. The intent is clearly
that the study be completed before the rule is enacted.
And I would like to note for the record that the agency,
unless I am mistaken, has not made your methodology of its
economic analysis public.
Ms. FERRO. Oh, well----
Chairman HANNA. Is that out there?
Ms. FERRO. Absolutely it is out there.
Chairman HANNA. All right.
Ms. FERRO. Yep. I have got a full docket with lots of
explanation.
Chairman HANNA. Can you send that along then?
Ms. FERRO. I will be pleased to send that along.
Chairman HANNA. Thank you.
I want to thank you for being here today.
Ms. FERRO. Yes, sir.
Chairman HANNA. And members of Congress may have additional
questions, so if you do, I just ask that you submit them in
writing.
As you can tell by the TV, we have votes so we are going to
adjourn to go to the floor. I would guess that we will be back
here by noon. And I invite you to stay if you like.
Ms. FERRO. Thank you.
Chairman HANNA. If you feel so inclined, and hear from the
industry themselves and get the counterpoint. But I also
understand that you may have to go.
Ms. FERRO. Thank you, Mr. Ch airman.
Chairman HANNA. Thank you. We will see you around noon.
[Recess]
Chairman HANNA. Ms. Meng is coming back, so hopefully she
will be here shortly, but I am going to in the interest of time
just proceed.
Thank you all for appearing today. I would like now to
introduce the first witness of the second panel, Mr. Duane
Long. Mr. Long is chairman of Longistics, a small business,
freight-hauling operation located in Raleigh, North Carolina.
Mr. Long started his business with one truck in 1984. Since
then he has built his business into 45 truck operations
employing over 105 people. He is testifying on behalf of the
American Trucking Association.
Mr. Long, thank you, and thank your wife for being here
today. You may proceed, sir.
STATEMENTS OF DUANE LONG, CHAIRMAN, LONGISTICS, TESTIFYING ON
BEHALF OF THE AMERICAN TRUCKING ASSOCIATION; TILDEN CURL, JR.,
TECCO TRUCKING, TESTIFYING ON BEHALF OF THE OWNER-OPERATOR
INDEPENDENT DRIVERS ASSOCIATION; BRIAN EVANS, PRESIDENT-OWNER,
L&L FREIGHT SERVICES, INC., TESTIFYING ON BEHALF OF THE
TRUCKING INTERMEDIARIES ASSOCIATION; PAUL P. JOVANIS,
PROFESSOR, CIVIL AND ENVIRONMENTAL ENGINEERING; DIRECTOR,
TRANSPORTATION OPERATIONS PROGRAM, LARSON TRANSPORTATION
INSTITUTE, THE PENNSYLVANIA STATE UNIVERSITY
STATEMENT OF DUANE LONG
Mr. LONG. Chairman Hanna, and members of the Subcommittee,
thank you for this opportunity.
ATA is the largest trade association for the trucking
industry. Through its affiliated associations, the ATA
Federation represents more than 30,000 members covering every
type of carrier.
I am Duane Long, chairman of Longistics, a trucking and
logistics company in North Carolina that my wife and I started
in 1984. We operate on average 45 trucks and employ an average
of 105 drivers who provide service for pharmaceutical customers
throughout the United States. We take pride in our outstanding
safety performance.
Mr. Chairman and Representative Rice, thank you for
introducing H.R. 3413. ATA full supports the bill. Simply put,
the hours-of-service changes were unnecessary. FMCSA's action,
while perhaps well intentioned, was not based on evidence or
analyses demonstrating a problem with the prior set of rules.
These new rules are having real-world impacts on thousands of
small trucking companies and the million-plus drivers that work
for them. Keep in mind, 97 percent of trucking companies are
small business with 20 trucks or less.
This past Monday, the 18th, the American Transportation
Research Institute issued a new report on the impacts of these
rules based on two separate surveys conducted in September and
October. The first collected data from more than 2,300
professional truck drivers, and the second survey yielded
responses from more than 400 truck fleets, 70 percent of which
were small fleets. ATRI also analyzed electronic logbook data
from more than 40,000 drivers over a 93-day period after July
1.
ATRI's findings are groundbreaking, and remarkably timely
for this hearing. ATRI found that 67.4 percent of surveyed
drivers reported a drop in their income since July 1st. The
aggregate annual loss is between $1.6 billion and $3.9 billion
spread across a million-plus over-the-road truck drivers; 82-1/
2 percent of drivers indicated a somewhat negative or very
negative impact on their quality of life. Ironically, 66
percent perceived increases in fatigue since these rules went
into effect. More than 80 percent of fleets surveyed indicated
a loss of productivity, and counter to FMCSA's claims,
electronic logbook data does not support the agency's claims of
drivers consistently working excessive hours. I can confirm
these findings. My drivers work reasonable hours yet they have
lost productivity. Bottom line, these rules are having a
widespread negative impact on productivity for drivers and
fleets.
A few specifics about my company. We employ team drivers,
typically husbands and wives, who take turns driving the truck
and one resting in the truck's sleeper berth. Their weekly
routine often keeps them on the road until around 2 AM early
Saturday morning. Under the previous restart rule, they could
depart on their next trip Sunday evening after being off more
than a day and a half in order to make a Monday morning
delivery required by our customers. Now, when taking the
restart, they cannot depart until after 5 AM on Monday and are
unable to meet the customer's expectations and the demands of
just in time delivery. Other small fleets have shared similar
concerns with ATA. Because restarts must now include this 1 AM
to 5 AM period, many trucks are entering the traffic flow at
about the same time just as rush hour begins. A regional food
transporter based in Minnesota that ATA has heard from
experienced a loss in productivity per truck of between 4 and 6
percent. Their drivers are frustrated and so are the customers
as late deliveries have doubled over the past three months. ATA
has heard similar problems and concerns from many companies,
both small and large. More importantly, ATRI has documented the
widespread nature of these problems and their huge cost. More
troubling is these new rules are not likely to result in any
kind of meaningful benefit. Not surprisingly, FMCSA has
announced no plans to collect data in an effort to determine if
the benefits are possible. We did not hear any plans to that
effect today. We encourage Congress to pass H.R. 3413 to stay
the restart provision until GAO completes an assessment of
FMCSA's cost-benefit work and its restart field study.
This is not just a trucking issue. The rule changes are
having negative impacts throughout the supply chain and
explains why the National Association of Manufacturers,
National Federal of Small Businesses, and more than 50 other
organizations are supporting H.R. 3413.
Again, thank you for this opportunity, and I look forward
to any questions.
Chairman HANNA. Thank you.
Our next witness is Mr. Tilden Curl. Mr. Curl is a single-
unit owner-operator from Olympia, Washington. He has more than
20 years of experience in the industry. In addition, Mr. Curl
was recently recognized as the 28th annual Good Year Highway
Hero. He received this distinction for risking his own life to
save a motorist whose disabled vehicle was almost hit by a
train. He is testifying today on behalf of the Owner-Operator
Independent Drivers Association.
Mr. Curl, thank you for being here. And I want to tell you,
I am a 35-year member of the Operating Engineers. So we share a
similar history.
Mr. CURL. We do. Thank you very much.
Chairman HANNA. You may begin, sir.
STATEMENT OF TILDEN CURL
Mr. CURL. Good morning.
My name is Tilden Curl. I am from Olympia, Washington, and
I have been a professional driver for over 20 years. I
currently operate throughout seven western states and
appreciate the opportunity to testify on behalf of the Owner-
Operator Independent Drivers Association. OOIDA represents the
small business truckers that are the majority of the U.S.
trucking industry. More than 90 percent of carriers own 20
trucks or less. Half of all trucking companies are one-truck
operations.
Small business truckers are committed to highway safety.
For us, accidents have an adverse impact on our businesses and
our livelihoods. OOIDA's average member has a quarter century
of experience and more than two million miles of accident-free
driving.
I want to thank Administrator Ferro, who recently saw our
commitment to safety and some of the challenges truckers face
every day as she joined an OOIDA board member on a two-day
ride-along from D.C. to St. Louis. As professional drivers, we
need flexibility to balance countless demands. Loss of
flexibility has an economic impact for small business truckers
and over time changes to the Hours-of-Service regulations have
reduced that flexibility. Less flexibility makes it more
difficult to stop for rest, avoid traffic, and keep a schedule
after being delayed by a shipper or receiver.
The recent Hours-of-Service rulemaking, which was the
result of a court settlement, was an opportunity to help
truckers balance these countless demands. Unfortunately, the
changes went in the opposite direction, adding new restrictions
to the 34-hour restart, requiring an arbitrary 30-minute break,
and retaining the unstoppable 14-hour duty clock. The impacts
of these changes are borne out in a recent survey of OOIDA's
membership. While only 3 percent said they felt less fatigued,
46 percent of respondents felt more fatigued after the changes;
79 percent have seen impacts in their ability to use the
restart; 65 percent responded that they have lost some income,
and more than half experienced reduced loads and mileage. My
own experience has mirrored these responses, especially with
the two 1 AM to 5 AM periods during the restart. This often
puts me in the middle of Seattle's rush hour and much like
D.C.'s beltway traffic, this means more time on the road at a
greater risk of accidents.
For these reasons, OOIDA supports H.R. 3413, Mr. Hanna and
Mr. Rice's legislation that will ensure a full examination of
the 34-hour restart restrictions. As it is now, the restart
restrictions could reduce my potential workweek by as much as
one day, possibly costing me as much as $4,000 to $5,000 a
month. While some would argue technology is the safety
solution, OOIDA's members see this as a false premise and a way
to ignore larger issues. This rings true when accident data
shows that carriers who depend on technologies, such as onboard
recorders and speed limiters crash twice as frequently as
carriers who use experienced and safe owner-operators.
With this in mind, what should be done? FMCSA itself can
act by returning flexibility to the hours of service, including
allowing truckers to pause the duty clock with rest breaks.
Trucking, government, and most importantly shippers and
receivers, must address the detention issue. Professional
truckers, will still considered unskilled labor, deserve to
have their time fully, fairly compensated. We must stop placing
more rigid requirements on the driver while allowing carriers
and customers to make demands beyond the allowances of
regulations and safety. FMCSA must act on an entry-level driver
training and driver trainer requirements as the foundation of a
healthy safety program. Advancing this policy first called for
by Congress in 1991 is OOIDA's top safety priority. Our
comprehensive driver training proposal forms the keystone of
our truckers for safety agenda. You can learn more about this
at truckersforsafety.com.
In closing, bringing our complete supply chain in as
partners to address the regulatory responsibilities of truckers
is the right direction to take. Further, FMCSA should
prioritize providing additional flexibility while addressing
core needs, like entry-level driver training. The wrong
direction is to rely on further restrictions and unproven
technology.
Thank you for the opportunity to testify and for holding
today's hearing.
Chairman HANNA. Thank you, Mr. Curl.
Our next witness is Mr. Brian Evans. Mr. Evans is president
and CEO of L&L Freight Services, a 12-employee transportation
brokerage located in Cabot, Kansas--Arkansas. Prior to joining
the freight brokerage business, Mr. Cabot (sic) was an over-
the-road trucker. He is testifying today on behalf of the
Transportation Intermediaries Association.
Mr. Evans, you may deliver your testimony.
STATEMENT OF BRIAN EVANS
Mr. EVANS. Thank you, sir. Chairman Hanna, Ranking Member
Meng, members of the House Small Business Committee, thank you
for this opportunity to speak with you today regarding concerns
affecting small businesses arising from the FMCSA Hours-of-
Service rules.
As mentioned, my name is Brian Evans. I am the owner of a
small transportation brokerage company. I serve as the
president and CEO of L&L Freight Services out of Cabot,
Arkansas. I am a 20-year veteran of the transportation, freight
brokerage, and supply chain management sector. I do come from a
family-owned, blue-collar, small business. Prior to working in
the brokerage industry, I drove over-the-road for almost one
million accident-free miles. Additionally, I currently serve on
the TIA Board of Directors. TIA represents 1,400 member
companies, 70 percent of which are small family-owned
businesses. Like the FMCSA, one of our primary missions is
promoting safe practices. As an organization, we seek to work
with FMCSA to make the Hours-of-Service regulations the best
possible tool to improve safety for the motoring public by
reducing truck driver fatigue.
Unfortunately, the new Hours-of-Service regulations were a
solution in search of a problem. No one wants unsafe trucks or
drivers on the road. To that end, we have a standing committee
that has published and regularly updates a carrier selection
framework. The TIA recommends that every broker and every
shipper have in place a written carrier selection policy for
hiring carriers. Safety improvements by the industry under the
previous Hours-of-Service rules reduced accidents. It allowed
the market to become more efficient and allowed American
business to be more competitive. The new rules, however, are
overly complicated, will reduce productivity, and have no
effect on reducing accidents beyond the previous level.
In the 24th annual State of Logistics report authored by
Rosalyn Wilson, she estimates that a loss of productivity close
to 6 percent for the transportation industry. This is a
significant amount in loss of productivity that could lead
companies to expand their near-shoring ventures into
neighboring countries, thus relegating valued American
transportation jobs to foreign nations.
I have spoken with many of my carrier customers who are
experiencing a major loss of productivity due to the new
restart provision. This rule is resulting in around five fewer
loads per week or a reduction of 3 percent in capacity for
their fleets. The cost of this loss of efficiency is felt by
the business and ultimately will be passed on to each of us,
the consumer. We are not suggesting that increased safety be
traded for increased efficiency. We are stating that safety
improvement was achieved under the old rules and that the new
rules will not result in dramatically increased carrier safety.
As you know, there is a pressing shortage of drivers across
America. The new Hours-of-Service rules will have a twofold
effect. First, it will chase out qualified drivers and deter
future motor carriers from entering the industry because the
rules limit the number of loads that a carrier can handle each
week. The rule will also likely require drivers to operate
during peak hours of operations, thereby increasing congestion,
and as a result, reducing safety.
The American Transportation Research Institute recently
released their 2013 edition, Critical Issues in the Trucking
Industry. The report places the new Hours-of-Service
regulations as this year's top concern for the transportation
industry. ATRI estimates that the changes to the restart
provision alone would cost the industry $189 million as opposed
to the $133 million benefit that is projected by the FMCSA.
The FMCSA's concerns about driver health and safety are to
be applauded. The TIA supports the passage of H.R. 3413, the
TRUE Safety Act. TIA urges the agency to examine the negative
effects of the 34-hour restart provision and to consider
amending the rule to give transportation the flexibility that
they need to ensure safety.
I appreciate very much this opportunity to testify before
the subcommittee today on the concerns of the new HOS rules and
the effects that it has on businesses like mine, whether a
third-party logistics provider, a motor carrier, or the entire
supply chain. I will be happy to answer any questions.
Chairman HANNA. Thank you, Mr. Evans.
Ranking Member Meng will be introducing our next witness.
Ms. MENG. Dr. Paul Jovanis is a professor of Civil
Engineering at Penn State University and has over 34 years of
experience in highway safety and traffic engineering. At Penn
State, he is also the director of the Transportation Operations
Program at the Larson Transportation Institute. He has
extensive expertise in the area of driver fatigue and motor
carrier safety and has published frequently on these subjects.
Prior to coming to Penn State in 1997, he was a professor and
associate director of the Institute of Transportation Studies
at the University of California Davis. Thank you for being
here.
STATEMENT OF PAUL P. JOVANIS
Mr. JOVANIS. Chairman Hanna, Ranking Member Meng, and
Committee members, thank you for the privilege of sharing and
participating in this hearing.
Understanding the relationship between truck driving hours
of service and crashes is a complex and challenging task.
Researchers working in this area come from backgrounds as
diverse as human factors, psychology, medicine, and road
safety. Some of the research in this field has been described
by the term ``fatigue'' even though questions have been raised
in the literature about the definition of the term ``fatigue''
itself. Others have focused on studying the association of
crashes to the duration of driving, rest breaks, scheduling of
driving over several days, and time of day. All of these
approaches contribute in different ways to our accumulation of
knowledge about hours of service and crashes. This testimony is
not an exhaustive review of this literature as there would
likely be hundreds of citations; rather, this is an attempt to
summarize the most recent work in the field with a few
additional references to well-cited research.
Concerning the effect of hours of service on crashes, I
offer the following summary.
Hours of continuous driving. Using data supplied by
carriers over a period of more than 20 years, there have been a
number of studies that support the basic principle that the
longer one drives, the greater the odds of a crash. And you see
the references in the testimony. These eight studies estimated
the effect of driving time, importantly, when controlling for
other factors such as experience, off-duty time, driving
pattern over multiple days, and in one case, time of day
directly. These studies are among the few that control for
multiple factors while seeking to estimate the effect of
driving time. A study using fatal truck involved crashes from
1980 to 2002 also indicated an increase in crash risk with
hours driving.
Using trucks instrumented with cameras and other vehicle-
based sensors, a series of studies have been conducted to
connect risky driving maneuvers to hours of service. Using
these measures, one study found little connection between the
observed events and hours driving. A second study with more
extensive data did find an association of driving time with the
occurrence of safety-critical events, including a few crashes.
This second study, like the first, also showed a close
correlation with time on duty. Other studies using regular work
conditions have found little association of these metrics with
hours driving.
In summary, based on a series of studies using carrier-
supplied data and one with fatal truck crashes measured over 20
years, I believe there is evidence that crash risk increases as
driving time increases. Concerning hours off duty, the increase
in required off-duty time was implemented in 2003. Crash-based
research using data from the 1980s indicates that drivers with
more than nine hours off duty had a lower crash risk when
returning to work than drivers with eight to nine hours off
duty. This is a case where the change in regulations,
increasing off duty time from eight to 10 hours, is consistent
with the research.
Concerning time of day. The effects of time of day are
particularly difficult to identify because trucks share the
road with other traffic which has marked peaks in urban areas
during the morning and evening rush. In a study using crash
data with a baseline of 10 AM to noon, crashes were elevated in
the early morning, 4 AM to 6 AM through about 10 AM, and then
again from 4 PM to 10 PM. Another study found an increase in
the odds of a crash from 11 PM through 6 AM. Using fatigue
tests and instrumented vehicle data, others found strong
association of declines in performance and fatigue tests linked
to time of day. Fatigue, self rated by the drivers, increased
more during night than day shifts in a study in Australia. So
time of day is associated with crash risk. The question is how
to best address this in regulations.
Rest breaks. Breaks are included in the Hours-of-Service
rules for the European Union, which require 45 minutes for each
four and a half hours of driving. In 2013, the new U.S. rule
required a 30-minute rest break before eight hours of driving.
Lack of mandatory inclusion in this policy allowed researchers
to compare drivers with the break and those without. The
presence of two breaks reduced crash odds by 30 percent in a
2011 study. Safety benefits of rest breaks seem overwhelming.
Cumulative driving over several days. The introduction of
the 34-hour restart in 2003 has triggered a series of studies
of the effect of cumulative driving both with and without a
restart. Two laboratory studies have been recently completed
that focus on the 34-hour restart. In the first, subjects were
split into two groups, one working a daytime schedule for five
days, off duty for 34 hours, then working five more 14-hour
days. The second group had a similar schedule except the
participants worked at night for five days, had a 34-hour day-
oriented break, and then another five days of night work. The
principal finding is that the day-oriented work group showed no
decline in performance, while those with the night work showed
a decline when they returned to work after the 34-hour restart.
These studies were enhanced in a follow-up experiment in which
participants were subjected to night work periods separated by
a 58-hour restart aimed at emulating the effect of an
additional day on top of the 34-hour regulation. In this case,
drivers were compared against each other before and after the
restart. The longer restart resulted in no performance
degradation after return from a 58-hour off-duty period.
This concludes my oral testimony. I am happy to answer any
questions that you may have. Thank you.
Chairman HANNA. Thank you.
Ranking Member Meng.
Ms. MENG. Thank you, Mr. Chairman, for the courtesy.
Question for Dr. Jovanis. The new HOS rule does not restore
the allowable driving time to 10 hours. What is the effect of
an extra driving time on driver fatigue and truck accident
rates?
Mr. JOVANIS. Well, I guess I could answer most directly by
saying all the evidence that we have and all the work that we
have done for over 20 years are that increasing from 10 to 11
hours increases the likelihood of crashes. The curve goes up.
We do not do work with the word ``fatigue'' so I will just
answer the question in terms of crashes.
Increasing from nine to 10--changing from nine hours to 10
hours increases the risk; going from 10 hours to 11 hours
increase the risk of a crash.
Ms. MENG. And question for Mr. Curl.
FMCSA claimed that truck drivers' health will benefit
substantially from the new rule. They asserted that more time
off results in more sleep. What is your view of this
assessment? Does more time off necessarily mean more sleep for
drivers?
Mr. CURL. No, it really does not. To address the issue of
fatigue you need to take rest or take sleep at times when your
body is ready for it. You cannot legislate sleep or rest from
anything other than the cab of a truck.
I would like to weigh in a little bit on your recent
question regarding fatigue and the difference in the hours of
driving. I believe there was an ATRI study that was done once
that showed the greatest risk was actually in the first hour of
driving rather than in the last hour of driving, which almost
mirrored the danger in the 11th hour was almost as high but not
quite as high as the first hour. So, also fatigue or asleep
truck drivers were a factor in 1.8 percent of all truck-
involved fatality accidents, 64 accidents total in 2011.
Ms. MENG. Thank you. Same to Mr. Curl, as a small business
owner, most trucking firms are small businesses. As a small
business owner, how easy would it be to hire additional drivers
and buy new trucks to make up for lost productivity caused by
the Hours-of-Service rule?
Mr. CURL. Hiring more trucks is not going to be the
solution because each and every truck has to be profitable of
itself, in and of itself. So, you know, hiring another truck to
make up for it is, I do not know, it is like--it is not going
to address the real underlying issue. The real issue. And
actually, Hours-of-Service does have a huge impact on what we
do. But it is one of several issues that we face in the
industry. Truthfully, detention time has a greater impact on
what we do than the hours of service.
Ms. MENG. Thank you. I yield back.
Chairman HANNA. Mr. Rice.
Mr. RICE. Mr. Jovanis, do you think that the proposed rule
will have a meaningful impact on accidents and injuries? Yes or
no?
Mr. JOVANIS. I do not know. I do not know because I have
not studied----
Mr. RICE. Thank you, sir.
Mr. Evans, do you think it will?
Mr. EVANS. No, sir, I do not.
Mr. RICE. Mr. Curl?
Mr. CURL. No.
Mr. RICE. Mr. Long?
Mr. LONG. No, sir. I do not.
Mr. RICE. Thank you.
Mr. Curl, you hit on something that I think is important.
You said that drivers need flexibility, and it appears to me
that the federal bureaucratic framework, not just related to
truckers or transportation or anything else, the problem with
it is that we try to write these rules that apply to everybody
and you cannot do it in a logical way that it does apply to
everybody. When you say flexibility, I mean, if you get held up
by a supplier and you have to have your load to a certain place
and you were planning on driving the next day but you know now
you are going to be thrown to the day after and you have got a
restart in the middle, it might force you to drive when you are
tired; correct?
Mr. CURL. Absolutely.
Mr. RICE. So actually, these rules could force you into a
situation that you would normally thin was unsafe; correct?
Mr. CURL. That is correct.
Mr. RICE. Can you be more descriptive of a situation like
that than I could, because I am not a driver. Can you help me
with that?
Mr. CURL. Well, I can. But you have to understand that in
the trucking industry we are such a diverse industry that of
all the types of operations that we have, several of them are
alike maybe but the majority of them are individual by nature.
So flexibility comes in addressing the issues of each
particular operation, you know, and in my particular operation,
if I could leave my house at say four in the morning and get
through Seattle before the rush hour traffic hits, it would be
great. But that violates my 1 AM to 5 AM periods that is
required for the 34-hour restart. I mean, that is one example
of flexibility.
Mr. RICE. Mr. Long, do you think that these rules could
force truck drivers to drive in a fatigued situation when they
otherwise would not?
Mr. LONG. I would hope not but Mr. Curl gave an example
where I think it could possibly happen. We would not do that at
my company. We would make sure our drivers were always safe.
But that could happen given the example that Mr. Curl gave.
Mr. RICE. Mr. Jovanis, you mentioned a number of studies
that seemed to have differing conclusions. On one hand you said
hours of driving did not have a meaningful impact on--what did
you say? You said longer drive times did not necessarily
increase--give a greater chance of accidents. Is that not what
you said?
Mr. JOVANIS. I do not think so.
Mr. RICE. Okay.
Mr. JOVANIS. But let me try to clarify.
Mr. RICE. All right.
Mr. JOVANIS. One of the complicating factors in this area
is that different studies have had different findings. So the
studies done sponsored by FMCSA in 2003 and 2004 by Virginia
Tech did not find an association of driving time with what they
called safety critical events.
Mr. RICE. That is almost unbelievable to me. So they are
saying you could drive for 48 hours straight and not have a
higher chance of an accident?
Mr. JOVANIS. Well, given the data that they collected over
say a 14-hour period of work, they saw no difference from the
first hour to the 14th hour. It was uniform in terms of the
rate at which bad driving or errors were occurring.
Mr. RICE. You also said that the chances of an accident
increase in the morning and in the evening.
Mr. JOVANIS. Right.
Mr. RICE. And I presume you are talking about rush-hour
times?
Mr. JOVANIS. Right. Right.
Mr. RICE. Okay. Do you know if the study that has been done
by the--whatever the acronym is, FMCSA or whatever it is--takes
into account--I know they are aimed at fatigue and they think
that by keeping people off the road from 1 AM to 5 AM lowers
fatigue and that lowers the chance of an accident. Do you know
if it takes into account the increased risk that you are
talking about of forcing drivers to drive in that rush hour
time?
Mr. JOVANIS. Well, they funded some of my work, so the more
recent report that you have in the testimony from 2011 is
funded by FMCSA and we use crash data. FMCSA chooses a number
of different sort of scientific mechanisms to do these things.
Mr. RICE. You do not know whether it takes that into
account or not?
Mr. JOVANIS. My studies did. I do not know the extent to
which the other studies did.
Mr. RICE. So you did a study that analyzed fatigue and
determined that people were less fatigued if they had these two
periods of time in the early morning--what did I say, 1 AM to 5
AM. Is that not the time that they are requiring to have off?
That they are less fatigued if they do that rather than under
the current rule. Is that right?
Mr. JOVANIS. I would not use the word ``fatigue.'' The
reference that I gave in the testimony was that if they are
driving in the early morning hours, from say 4 AM to about 10
AM, then they have a higher risk of a crash.
Mr. RICE. But under the rule as proposed, are we not
forcing drivers into those hours? Yes, clearly we are. Yes, we
are.
Mr. JOVANIS. Let me say this. What has surprised me about
this particular set of rules is it is the first time that the
agency has specified particular times of day when people have
to be off duty. If you look at the regulations prior to that,
we talked about flexibility on the panel. They have never
specified a particular time of day when you had to be off duty.
This is the first time that they have done that.
Mr. RICE. But under this current rule, under the proposed
rule or whatever--it is in effect already--they are off the
road from 1 AM to 5 AM; right?
Mr. JOVANIS. If they want to use the restart, they have to
be off the road for two consecutive days.
Mr. RICE. Which increase the likelihood that they are going
to be on the road from 5 AM to whenever; correct?
Mr. JOVANIS. Well, I would presume that but I do not know
that in fact.
Mr. RICE. And you are saying that your studies show that
from 5 AM to 10 AM there is an increased chance of accidents;
correct?
Mr. JOVANIS. That is right.
Mr. RICE. So we are forcing them into a time when they are
more prone to accidents?
Mr. JOVANIS. Well, like I said, I do not know that for a
fact, so I would be uncomfortable saying that as directly as
you.
Mr. RICE. Thank you, sir.
Chairman HANNA. Let me say it directly then.
What we heard--Doctor, I really appreciate--I read your
testimony in advance. I appreciate the openness with which you
presented it here today and the way it is written.
What we know though is that the study, the proposed study
and the process that they went through for the rulemaking did
not include, and we heard Administrator Ferro say, did not
include the consideration of those early morning hours which we
know people are forced to work in when traffic is more. So let
me just ask you this because it is going to be abstract and we
do not have a study about this. We should have but we do not.
What is your best guess that telling people--I mean, you can be
direct--we are just trying to get to the bottom of this. What
is your best guess happens when you do not study the effects or
something but yet you tell people when to go to bed and when
not to go to bed. And we know that it pushes them into hours
that are much busier, makes them perhaps even drive longer
because of the congestion. I will just ask it this way. Do you
think that should have been part of the study? And if so, do
you think that would change the results of the study?
Mr. JOVANIS. I think it would have been a very good idea if
they had looked at that very explicitly. And as near as I can
tell, they have not prior to the study that is in activity
right now.
Chairman HANNA. Well, as near as we have heard they have
not.
Mr. JOVANIS. Right. And yet have no intention of doing
that.
Chairman HANNA. So, and I do not want to put words in your
mouth. I will do this on my own. So if I were to suggest to you
that had they included that, they may have come up with
actually causing more accidents, more deaths, more fatigue,
more stress to the overall system. I mean that is kind of what
it feels like to me, especially being a guy who has spent
thousands of hours on heavily equipment.
Mr. JOVANIS. It is certainly possible. And then whenever
you get into a situation like you are in with the extended
hours of driving out to 10 hours or 11 hours, you are left with
an assessment that says is the benefit of doing something
greater than the cost? And presumably, when they did the
benefit assessment on increasing from 10 to 11 hours, they
assessed in their regulatory impact assessment that there was a
benefit from doing that. Presumably, they would have a similar
kind of a benefit assessment. But please do not ask me about
that because I do not do benefit assessments.
Chairman HANNA. No, but I mean, the conclusion is that we
do not know the truth because we have not--the study not only
is not complete but it is not even inclusive enough to come up
with a result that is based on science in your industry or in
your field.
Mr. JOVANIS. Yeah. I do not know of any study that has
looked at that particular restart configuration.
Chairman HANNA. but you would agree that that should
potentially be part of it?
Mr. JOVANIS. Yes.
Chairman HANNA. I throw the word ``potentially'' out there
just to make it be a little easier for you to say.
Mr. JOVANIS. Yes. Yes.
Chairman HANNA. Thank you very much.
We are taking up other people's time, but sure, Mr. Rice, I
am happy to----
Mr. RICE. I figure you guys came all the way here. You do
not mind five more minutes, do you?
You guys, Mr. Evans, Mr. Curl, Mr. Long, do any of you all
short-haul or are you all long-haul?
Mr. EVANS. My company does both long and short-haul.
Mr. CURL. I do limited short haul.
Mr. RICE. Do you think these driver fatigued regulations
are really applicable to short haul? I mean, it seems to me
that what we are aiming at here is somebody that is driving,
you know, 10 hours a day continuously and the effect of the
highway driving, do you think these are applicable? I am
thinking about the guy who delivers the beer to the grocery
stores or the bread or the guy who is driving an asphalt truck
or a concrete truck. He is not driving for hours on end. They
are driving, stopping, waiting, getting out of the truck,
delivering a load. Do you think these regulations are really
applicable to those people?
Mr. EVANS. I do not.
Mr. CURL. I think to address that directly I would say no,
but if I could expand on that a little bit more.
Mr. RICE. Please do, sir.
Mr. CURL. I think when we are talking about fatigue, we are
talking about something that I can look up here at this panel
and I can see fatigue. You know. So how do you----
Mr. RICE. Wait a minute.
Mr. CURL. So it begs the question how do you quantify
fatigue?
Now, I know Mr. Jovanis is involved in a lot of studies
that try to identify that, but you know, if you stay up and
watch the football game one night and then you come back to
work the next day, you may be somewhat fatigued but it does not
mean that you cannot conduct your duties safely and efficiently
as necessary. So fatigue is a relative factor. Working short-
haul, you know, day-to-day, sometimes I am more fatigued by it
because it is a lot of work. But again, you have to go back to
giving the drivers themselves the control of knowing when they
need to rest, you know, given a set of hours to work in. But to
have a blanket law that covers everybody, it is going to help a
few but it is going to hurt a lot more. So the hours of service
as they are--and we do need hours of service, let me throw that
in there--and returning to the old hours of service would be an
advantage but it is not a solution.
Mr. RICE. Do you think that the old Hours-of-Service rules
were effective in reducing injuries and fatalities?
Mr. CURL. To a degree I do.
Mr. RICE. I agree with you. I think they were, too.
Mr. CURL. I believe they needed modification as well. I
just happen to believe that the modifications we made were not
the right ones.
Mr. RICE. Thank you, sir.
Mr. Long, your opinion on this?
Mr. LONG. Yes. I believe that the older regulations, if you
will, the 2003, the statistics prove out that they were safe
and that we had a big reduction in fatalities. And safety is
our number one priority in the trucking industry.
Now, from the perspective of long-haul versus short-haul,
my company, we provide mainly the longer haul, more miles. And
we are, again, we are having the biggest difficulty with our
drivers. It has to do with their reduction in their
productivity, being able to go out and make a, for example, a
trip from Memphis to Chicago, it is about 500 miles. Our
customers want the shipment to be delivered at 7 o'clock in the
morning, but if the drivers cannot leave until 5 o'clock
because they came in at a certain time, the example that I
gave, then that team cannot go out on that run. We may have to
use another team. So that team loses that day. In fact, we have
calculated just using the last quarter of our information that
if this continues on the rest of the year, a lot of our teams
are going to lose as much as one week's pay per year, which
that is a lot of money to our people. For example, about $1,300
where they average about 60,000 per year.
Mr. RICE. How many teams do you have?
Mr. LONG. About 45.
Mr. RICE. Okay. So if each one loses a week, that is 45
weeks; right?
Mr. LONG. That is right.
Mr. RICE. So that means you are going to have to have
another team. What does that do to the cost of shipping?
Mr. LONG. It makes it go up.
Mr. RICE. What does that do to our manufacturers when they
are shipping stuff around the world?
Mr. LONG. It will make a cost on the products.
Mr. RICE. It makes them less competitive, does it not?
Mr. LONG. Absolutely.
Mr. RICE. So their stuff costs more around the world. They
may be laying people off. You might have to hire another team
after all. That is what I want to get rid of. The whole thing
is American competitiveness.
Mr. LONG. We want to be efficient and productive, and we
want our people to be compensated well.
Mr. RICE. I agree.
Mr. LONG. And safe.
Mr. RICE. Mr. Jovanis, you work on statistics, right, sir?
Mr. JOVANIS. Yes, sir.
Mr. RICE. Yes, sir.
The administrator this morning said that this could save as
many as 19 lives a year, right? That is what she said.
Mr. JOVANIS. Yes, she did.
Mr. RICE. Okay. How many people are being killed on the
road every year by trucks? Or in trucking accidents?
Mr. JOVANIS. In trucking accidents, on the order of 4,000
fatalities or a little more.
Mr. RICE. So if we are talking about 19, we are talking
about less than half a percent. If we put this rule in effect,
are we going to know that it has had any effect at all? Is
there any way to statistically establish whether this rule is
going to have any effect at all?
Mr. JOVANIS. I would say there is and you need to be able
to fund the research study that uses crash data and determines
that the effect of the restart policy in particular either has
an effect one way or the other. I am not real enthusiastic
about using the nationwide statistics on fatalities in truck
involvement only because there are so many other factors
involved that you can never really tell on a national scale
whether your particular action is really having the result that
you are observing in fatalities. So certainly, you would
believe that the downturn in the economy since 2006 has had a
big impact on reducing travel, and so fatalities and crashes
are down all over the country in all travel modes.
Mr. RICE. They were going down before that.
Mr. JOVANIS. A bit. But we were pretty much stuck on about
40,000, and we took a big nose dive when the economy went down.
So there is a study being proposed by the Transportation
Research Board to answer just this question of why is it that
we had such a big decline? Can we identify the actions that we
took to contribute to that? Because right now a lot of people
are claiming credit but I would say we really do not know.
Mr. RICE. That graphs that I have seen showed truck
injuries and deaths dramatically dropping beginning around
2000.
Mr. JOVANIS. I would have to look at the numbers again to
be sure.
Mr. RICE. And then they come back up in the last two or
three years, but they are still down 30 percent.
Mr. JOVANIS. But----
Mr. RICE. My point is statistically, I do not know how in
the world you are ever going to know whether these things--if
we are talking about 19, maybe possibly 19 based on an
uncompleted study of 27 graduate students, how in the world are
you going to know that costing these people this productivity
and affecting American competitiveness the way that the
trucking industry certainly does, how are we going to know that
that is offset by lives saved with such a small potential
reward? I mean, certainly every life is vital and important and
precious, but I do not know that we are ever going to know that
we saved one life.
Mr. JOVANIS. Well, all I can tell you is on the crash side,
in one of the reports that is in my testimony, we are able to
do a very limited study of the restart provision, and that is
because we had only a limited amount of two-week data in our
study. And in that study we showed that drivers had got past
the first day of the restart pretty well but it was in the
second day of the restart that they had an increase in crash
risk. Now, we have not really publicized that widely because we
had a very small number of drivers that actually experienced
the restart and allowed us to do that comparison, but if we
could do it with the data that we had back in 2010, certainly
people can do that again and try to quantify that particular
effect. So the best answer I can give you is research can help
give you the answer on the increase in the probability of a
crash or the number of crashes and then somebody has to hand
that over to the economists and the regulators and say, well,
how does that get balanced against any kind of productivity
losses or gains.
Mr. RICE. Well, if I am bouncing between the economists and
regulators and the truckers, I am going to take the truckers
every time.
Mr. JOVANIS. I like them, too.
Mr. RICE. Do you think it is going to make any difference?
And I heard an ``I do not know'' from you and three nos from
these guys. I will take that.
Thank you very much. Thank you all for coming today. Thank
you for putting up with us.
Chairman HANNA. Just one last question. Maybe two.
Some drivers say the new rules actually result in them
taking breaks when they are alert and forcing them into a
situation that they are more tired. Maybe is that true, Mr.
Long, Mr. Curl, Mr. Evans?
Mr. LONG. Yes, I am hearing stories like that. One of the
effects of this has been also where trucks are having a
difficulty finding parking spaces in truck stops. The truck
stops are overloaded at times, and that presents a lot of
stress trying to get in and park and fuel and so forth. So yes,
I am hearing some of those stories like you just described.
Chairman HANNA. Mr. Curl?
Mr. CURL. As for me, it has made quite a difference because
a lot of my stuff is planned out to make certain--I have to get
in my 11 hours of driving each day to be able to arrive on the
proper date for me to deliver and reload. So on some days, when
I have 30-minute required breaks, sometimes rather than driving
three to four hours and taking a quarter hour break, driving
three to four hours, taking a quarter hour break, and each time
I take a break I take care of my personal needs, but I also
walk around, inspect my truck, and look at my load. And now
because of this stipulation, it is going to move me further and
further into the end of my day, into the period that Mr.
Jovanis referred to earlier as being more dangerous. And that
time period is added on to the following day, so I start the
following day a little bit later because of that. And so even
if the 30-minute breaks could be cumulative, that would be
helpful.
Chairman HANNA. Thank you.
Mr. Evans?
Mr. EVANS. Yes, sir. I think there are too many
inconsistent circumstances with each driver, with each type of
load, with each origin, with each destination, and to put a
regulation that says that a driver has to take a 30-minute
break at a certain period of time, at a certain period of day
really puts a whole kink in the supply chain. And it is not
going to make him a more safer driver by any means.
Chairman HANNA. Go ahead, Doctor.
Mr. JOVANIS. Well, I am sure that there are some people
somewhere who do not want to stop after eight hours and take a
mandatory break, but when you are dealing with large numbers of
drivers as we have, the first five hours or so of driving has a
relatively constant risk of a crash. After that, the increase
of a crash with driving time goes up nonlinearly. So you are
looking at 20 percent, 30 percent, 40 percent, 50 percent the
farther you go into you drive. So if you are into the eighth
hour, you are into an elevated crash risk.
Now, Mr. Curl's suggestion about cumulative off-duty time,
if you take a 15-minute break, drive for a while, take another
15-minute break, I think if you look at the literature on this,
that half an hour that you experienced is almost the same as a
half an hour single break in terms of its benefit, and the
benefit is unmistakable in terms of reducing the risk of a
crash. So I am surprised that the regulations do not allow
that, exactly what you said, because if you look in the
literature at how you should undertake tasks like driving a
truck, exactly what Mr. Curl said is exactly how you should
from a performance maintenance point of view. You know, you
take a periodic break, you take care of whatever you have to do
physically, you inspect the truck, you get back in.
Chairman HANNA. So once again the government is overly
prescriptive. And telling drivers something they already know
that they want to live, live safely, and live to drive another
day, and yet here we are telling them that they have to follow
our rules rather than their own needs and experience.
I want to thank you all for being here today. You provided
important insights in how decisions are made in Washington, and
how they affect small business. I also want to say that there
is no one here that I have heard that does not find that the
2003 rule provided benefits and the studies show that. The
question here today is does the additional rule provide any
benefit? In fact, does it provide a disbenefit? And you have
been helpful in that direction.
I ask unanimous consent that members in the public have
five legislative days to include supporting material into the
hearing record. Hearing no objection, this is now adjourned.
And again, thank you very much.
[Whereupon, at 12:00 p.m., the Subcommittee was adjourned.]
A P P E N D I X
STATEMENT OF THE HONORABLE ANNE S. FERRO, ADMINISTRATOR
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION
U.S. DEPARTMENT OF TRANSPORTATION
BEFORE THE
COMMITTEE ON SMALL BUSINESS
SUBCOMMITTEE ON CONTRACTING AND WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
THE IMPACT OF THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION'S
HOURS OF SERVICE REGULATIONS ON SMALL BUSINESSES
NOVEMBER 21, 2013
Mr. Chairman, Ranking Member Meng, and Members of the
Subcommittee, thank you for inviting me to testify today on the
impact of the Federal Motor Carrier Safety Administration's
(FMCSA) December 27, 2011, hours of service (HOS) final rule on
small businesses.
Safety is FMCSA's number one priority. Our employees and
State partners are committed to preventing crashes and saving
lives. Since FMCSA's inception in 2000, we have witnessed a
drop in the fatality rate from 0.205 fatalities in large truck
and bus crashes per 100 million vehicle miles traveled by all
motor vehicles to 0.136 in 2011, the most recent calendar year
for which we have the final highway travel data. We have also
seen a 26 percent decrease in the number of lives lost in large
truck- and bus-related crashes, from 5,620 in 2000 to 4,183 in
2012.
While the numbers represent significant progress, it is
clear that much more must be done. Every life is precious and
every FMCSA employee and each of our State partners are
committed to doing everything we can to save as many lives as
possible. The December 2011 HOS final rule made reasonable and
common sense changes to the HOS rules while helping to realize
important safety benefits for the American public. We estimate
the new requirements will prevent 1,400 crashes, 560 injuries,
and save 19 lives each year.
Changes to the HOS Rules Will Improve Safety
Fatigue is a leading factor in large truck crashes. Under
the previous HOS rules that were in effect until July 1, 2013,
drivers operating large trucks could have faced demanding
driving schedules that may have included workweeks up to
approximately 82 hours. These extreme schedules, week after
week, increase both the risk of fatigue-related crashes and
long-term health problems for drivers. While the new rule
issued on December 27, 2011, still allows for a demanding
driving schedule, it reduces a driver's average maximum
allowable hours of work per week from 82 to 70 hours, ensuring
that drivers have more time off to obtain adequate rest on a
daily and weekly basis.
The final rule is the product of years of fatigue research,
safety studies, and analysis of public comments. FMCSA sought
input from a wide range of stakeholders, including trucking
companies, drivers, law enforcement, unions and safety
advocates, and held numerous public listening sessions
throughout the rulemaking process for the final rule. This
unprecedented public engagement contributed to a balanced final
rule that provides a net gain in public safety and driver
health.
In general, the changes in the 2011 final rule that took
effect on July 1, 2013, particularly the changes to the 34-hour
restart provision, are designed to help those drivers working
the most intense schedules. The changes have the biggest impact
on approximately 15 percent of the drivers subject to the HOS
requirements. These drivers used to average more than 70 hours
of work per week. By contrast, drivers who averaged less than
70 hours per week were not significantly affected by the
changes to the rule, including the new restart provision. They
are not likely to approach the daily driving time limit, the
daily on-duty limit after which driving is prohibited, or
weekly on-duty limits after which driving is prohibited.
Our research shows that 85 percent of the truck driver
workforce (1.36 million drivers) has an average weekly work
time of 60 hours or less and, thus, does not need to use the
voluntary 34-hour restart. Of the remaining 15 percent (240,000
drivers), 160,000 work an average of 70 hours per week and
approximately 80,000 drivers worked an average of 80 hours per
week prior to July 1, 2013. While the Agency recognizes that
the reduction in maximum weekly on-duty hours to 70 hours and
34-hour restart constraint impacts some drivers and companies,
the trade-off is improved safety for everyone. This rule is
expected to prevent 1,400 crashes and 560 injuries, and save 19
lives each year.
Overview of Changes to HOS Rules
The changes made in the 2011 final rule keep in place many
of the regulatory provisions implemented in the 2003 rule. For
example, it maintains the 11 hour driving/14 hour daily work
allowance and the long-standing weekly maximum working limits
of 60 hours in 7 days and 70 hours in 8 days. Additionally, it
maintains the option for a driver to use a ``restart'' if that
driver wishes to drive more than the weekly maximum hours.
For those drivers wanting to exceed the maximum weekly
working limits, the 2011 HOS rule limits the use of the ``34-
hour restart'' to once a week (168 hours). This change limits a
driver's work week to 70 hours on average, compared to the
previous rule, which allowed up to approximately 82 hours when
the restart was used more than once in a seven-day period. The
Agency took this action because working long daily and weekly
hours on a continuing basis is associated with chronic fatigue,
a high risk of crashes, and a number of serious chronic health
conditions for drivers. The new restart provision does not
affect drivers average 60 hours or less per week of work time.
For drivers working an average of 70 hours per week, the new
restart is estimated to result in a loss of half an hour per
week due to the requirement that two nighttime period between
1:00 and 5:00 am be included within the restart. It is
important to note that the Agency's research as well as
information provided by industry representatives documented
that a vast majority of drivers of large trucks will rarely, if
ever, need to use a ``restart.''
Under the previous rules, alternating 14 hours on-duty and
10 hours off-duty, a driver would reach 70 hours in less than
five full days. After a 34-hour break, the driver could then
begin this same cycle again, totaling 70 hours on-duty every 6
calendar days, for an average of almost 82 hours per calendar
week. Limiting restarts to once every 168 hours--measured from
the beginning of the previous restart--prevents this excessive
buildup of on-duty hours, while still allowing a driver to use
the restart provision to his/her advantage and avoiding the
safety risks associated with more frequent restarts.
Another key element of the 2011 final rule is the
requirement that the 34-hour restart must include at least 2
periods between 1:00 a.m. and 5:00 a.m. We did not opt for two
periods between midnight and 6:00 a.m. as proposed in 2010.
Only nighttime drivers who work m ore than 60 hours in seven
consecutive days, or 70 hours in eight consecutive days will be
impacted by this change. Generally, the drivers most likely to
be impacted by this provision work grueling and irregular
schedules that include some nighttime driving. By contrast,
nighttime operations of the major less-than-truckload (LTL)
carriers should be impacted minimally, as their drivers
generally receive 2 days off-duty a week.
In an effort to address acute fatigue during the workday,
the final rule requires drivers to take a 30-minute break, if
more than 8 consecutive hours on-duty have passed since the
last off-duty (or sleeper-berth) period of at least 30 minutes,
before continuing to drive. The driver can take this break at a
time and place of his or her choosing, and may include meals,
rest stops, and other rest periods. It is important to note
that most drivers were already taking multiple short breaks
during the work day. And the rule does not require that drivers
take an additional break. The rule only requires that at least
one of those breaks consist of at least 30 consecutive minutes
off duty.
The Agency acknowledges the concerns about the impact of
the 30-minute break requirement on small businesses and took
appropriate action on July 12, 2013, to align its long-standing
regulatory guidance concerning off-duty time with the 30-minute
rest break provision of the 2011 final rule. We determined that
the guidance, which was originally issued in 1997, could have
the unintended consequences of making it difficult for drivers
and carriers, including many small businesses, to determine
whether certain routine breaks during the workday may fulfill
the 30-minute rest break.
A Net Gain for the U.S. Economy
The estimated annual cost of the 2011 final rule is 50
percent less ($530 million less) than FMCSA's preliminary
estimates discussed in the 2010 notice of proposed rulemaking.
The new HOS rule will result in many public safety benefits, as
well as benefits to the industry, through reduced health care
costs associated withy crash injuries and overall improved
driver health. The rule will provide an estimated $280 million
in savings from fewer crashes and $470 million in savings from
improved driver health.
The economic benefits of the rule extend to small
businesses through every crash that is avoided. Small trucking
companies are the least likely in the industry to withstand the
financial impact associated with a fatigue-related crash. The
loss of revenues associated with the disabled commercial
vehicle and the resulting litigation and settlements for a
fatigue-related crash could easily wipe out a small trucking
company. Safety is first and foremost about saving lives but it
is also good business for the industry.
U.S. Court of Appeals Decision
On August 2, 2013, the DC Circuit Court of Appeals issued
its opinion on petitions for review of the 2011 HOS rule filed
by the American Trucking Associations, Public Citizen, and
others [American Trucking Associations, Inc., v. Federal Motor
Carrier Safety Administration, No. 12-1092 (D.C. Cir. Aug. 2,
2013)]. The Court upheld the 2011 HOS regulations in all
respects except for the 30-minute break provision as it applies
to short-haul drivers.
As a result of the Court decision, the following drivers
are no longer subject to the 30-minute break requirement:
All drivers (whether they hold a commercial
driver's license (CDL) or not) that operate within 100
air-miles of their normal work reporting location and
satisfy the time limitations and recordkeeping
requirements of 49 CFR Sec. 395.1(e)(1).
All non-CDL drivers that operate within a
150 air-mile radius of the location where the driver
reports for duty and satisfy the time limitations and
recordkeeping requirements of 49 CFR Sec. 395.1(e)(2).
While the Court's mandate was not scheduled to take effect
until 52 days after entry of judgment, the Agency ceased
enforcement of the 30-minute rest break provision against
short-haul operations effective August 5, 2013, three days
after the ruling. The Agency also requested that its State
enforcement partners cease enforcement of the State versions of
this provision beginning August 5, 2013, with the understanding
that they would not be found in violation of the Motor Carrier
Safety Assistance Program (MCSAP) regulations (49 CFR Part 350)
for doing so. And, on October 28, FMCSA formally amended the
2011 final rule to provide an exception from the 30-minute rest
break requirement for the short-haul drivers who are not
required to prepare records of duty status (RODS), consistent
with the Court's decision.
Through our quick action following the Court's decision, we
worked to ensure that the small businesses affected by the
decision were provided with immediate relief from the 30-minute
rest break requirement.
Applying the HOS Requirements to a Complex and Diverse
Trucking Industry
Over almost 2 decades of HOS controversy, a common concern
has been leveled by the trucking industry over what is often
referred to as a ``one size fits all'' HOS rule. The Agency has
crafted a rule that provides as much flexibility as possible.
Our past experience from the May 2000 HOS notice of proposed
rulemaking proves that efforts to put into regulations multiple
options for such a complex and diverse industry are more likely
to result in a rule that neither the industry nor the
enforcement community can understand and apply consistently.
With this in mind, FMCSA has maintained an open-door policy
with the industry and demonstrated a willingness to have face-
to-face meetings with various segments of the trucking industry
to explore the feasibility of limited 2-year exemptions, as
authorized by Congress in the Transportation Equity Act for the
21st Century (TEA-21).
Exemption Requests to the 30-Minute Off-Duty Break Rule
Our efforts to provide flexibility through the exemption
process have enabled the Agency to address in a transparent
manner the most pressing concerns of the trucking industry. The
transparency involves a Federal Register notice-and-comment
process through which all interested parties, including
enforcement agencies, safety advocacy groups and other members
of the trucking industry, have the opportunity to see all
applications for exemptions from the HOS requirements and to
submit comments to the Agency for consideration.
To date, the major concern expressed by several segments of
the industry has been the 30-minute break requirement.
Specifically, certain industries have identified operational
challenges with the locations at which the break would be taken
and whether certain limitations on drivers' ability to leave
the vehicle would prevent them from using their rest breaks to
satisfy the new rule.
The Agency included the 30-minute break provision in the
final rule to address acute fatigue during the workday,
requiring drivers to take a 30-minute off duty break, if more
than 8 consecutive hours on-duty have passed since the last
off-duty (or sleeper berth) period of at least 30 minutes,
before continuing to drive. The driver can take this break at a
time and place of his or her choosing, and the break may
include meals, rest stops, and other rest periods.
Several organizations, including two Federal departments,
have applied for exemptions to the 30-minute rest break
provisions. The Agency has worked quickly to seek public
comment on each of these applications and to address industry
concerns to the extent that the exemption would achieve a level
of safety equal to or greater than the 2011 final rule would
provide.
U.S. Department of Energy (DOE) and the U.S.
Department of Defense (DOD), Military Surface
Deployment and Distribution Command (SDDC). FMCSA
granted exemptions to the 30-minute rest break
provision to the DOE and DOD's SDDC to enable their
contract driver-employees transporting security-
sensitive materials to be treated the same as drivers
transporting explosives, allowing these drivers to use
30 minutes or more of ``attendance time'' to meet the
rest break requirement, provided they are performing no
other work-related activity during this time.
National Pork Producers Council (NPPC).
FMCSA received an application from the NPPC on behalf
of its members and other agricultural organizations for
a complete exemption from the 30-minute rest break
requirements for commercial motor vehicle (CMV) drivers
transporting livestock. The request is based on
assertions of risk to livestock being transported
during hot and cold weather if the transporting vehicle
remains stationary for an extended period of time. The
Agency solicited and received public comments and is
reviewing the request. Prior to this exemption request,
the NPPC requested and was granted a 90-day waiver from
the rest break provision from July 11-October 9 to
protect the livestock from extreme summer heat that
could have proved dangerous to the animals' health.
National Ready Mixed Concrete Association
(NRMCA). FMCSA received an application from the NRMCA
for an exemption from the 30-minute rest break
provision. The exemption would apply industry-wide to
all motor carriers and CMV drivers operating ready-
mixed concrete trucks. Although transportation of many
ready-mixed concrete loads takes place within the
parameters of the Agency's ``short haul'' provisions
and is not subject to the rest break requirement, the
NRMCA requested the exemption for those instances when
the short-haul requirements cannot be met. The Agency
has solicited and received public comments and its
reviewing this request.
National Armored Car Association (NACA).
FMCSA received an application from the NACA for an
exemption to the 30-minute rest break provision. The
exemption would have applied industry-wide to all
armored vehicle carriers and drivers and would have
enabled drivers engaged in the transportation of
currency, coins, precious metals, and other valuables
to use any period of 30 minutes or more of ``attendance
time'' to meet the rest break requirements. NACA
submitted its application prior to the August 2 D.C.
Circuit Court decision that vacated the 30-minute rest
break provisions as it applies to short haul drivers.
As the requirement would, therefore, no longer apply to
most short-haul transportation by armored cars, NACA
withdrew its application for an exemption.
Oregon Trucking Association (OTA). FMCSA
received an application for an exemption from the OTA
for a limited exemption from the 30-minute rest-break
requirement on behalf of motor carriers and their
drivers who transport timber from Oregon forestlands
during periods in which fire safety restrictions limit
their hours of operation. FMCSA will soon publish a
Federal Register notice requesting public comment on
the OTA's October 2013 application.
In addition, FMCSA's consideration of the various
applications for exemptions, the Agency has fulfilled its
commitment to continue to gather additional information and
data concerning the HOS requirements. We made a commitment in
the preamble of our December 2011 final rule to conduct a
comprehensive analysis of the relative crash risk by driving
hour and the impacts of the final rule. We look forward to
continuing to review new information as it becomes available.
Field Study on the 34-Hour Restart
The Moving Ahead for Progress in the 21st Century Act (MAP-
21, Pub. L. 112-141), enacted on July 6, 2012, mandated that
FMCSA conduct a field study on the efficacy of the restart
rule. I am pleased to report to you that FMCSA has completed
the work mandated by Congress and we are currently in the
process of preparing the final rule report.
Researchers worked with three motor carriers to conduct a
naturalistic field study with drivers who used the restart
provisions. The study ran from January-July 2013 and included
106 CMV drivers aged 24-69 with commercial driving experience
ranging from less than one year to more than 39 years. The
drivers represented diverse types of trucking operations,
including 44 local drivers, 26 regional drivers, and 36 over-
the-road drivers. Participating drivers provided a total of
1,260 days of data and drove a total of 414,937 miles during
the study.
Using the drivers' official duty logs to identify the
periods when they were on duty and when they were driving and
to define their duty cycles and restart breaks, the drivers
wore wrist activity monitors to monitor their sleep/wake
patterns. A Psychomotor Vigilance Test (PVT) measured driver
fatigue levels 3 times a day, and drivers also self-reported
their own sleepiness. Additionally, a truck-mounted lane
tracking system measured lane departures.
Comparisons were made among all these factors preceded by a
restart break containing only one nighttime period versus duty
cycles preceded by a restart break containing two or more
nighttime periods. FMCSA will transmit these findings to
Congress by spring 2014.
Assessing the Feasibility of a Split Sleeper Berth Pilot
Program
From January 2010 to May 2011, the Agency conducted an in-
residence laboratory study that examined three sleep
conditions: consolidated nighttime sleep; split sleep; and
consolidated daytime sleep. The study found that daytime
consolidated sleep resulted in less total sleep time, increased
sleepiness, and an increase in blood glucose and testosterone
at the end of the workweek. However, the study found that
performance was not significantly affected by the period during
the day when a driver had the opportunity for sleep. Results of
this study suggest that when consolidated nighttime sleep is
not possible, split sleep is preferable to consolidated daytime
sleep.
At this time, FMCSA is developing a pilot study to
demonstrate how split sleep in conjunction with the Fatigue
Management Program (FMP) and the use of Electronic Logging
Devices (or ELDs) could be used to improve driver rest and
alertness. The Agency requests the participation of motor
carriers that would benefit from flexibility with regard to the
sleeper berth provision, with appropriate constraints on the
use of split sleep, and would be willing to measure driver
alertness and changes in health metrics. The Agency plans to
work with the National Association of Small Trucking Companies,
the American Trucking Associations, and the Owner-Operator
Independent Drivers Association to recruit drivers and motor
carriers for this study.
Opportunities and Challenges to Implementing the New HOS
Rules
Throughout the public engagement process we used in
developing the new HOS requirements, the Agency heard about the
need for flexibility in the HOS rules from the trucking
industry. We included two changes to help the industry and
drivers with options for recording certain rest breaks as off-
duty time. These changes went into effect on February 27, 2012.
Off-Duty in a Parked CMV
Prior to February 2012, the definition of ``on-duty time''
included all time that the driver spends in the CMV, with the
exception being the time the driver spends in the sleeper
berth. The 2011 final rule changed the definition to provide
drivers with greater flexibility. As a result, the time a
driver spends resting in a parked CMV may be considered ``off-
duty time'' provided the driver is relieved of all duties and
responsibilities for performing work, including paperwork.
Off-Duty in Passenger Seat for Team Drivers
The final rule also allows truck drivers in team-driver
operations to include up to 2 hours in the passenger seat
immediately before or after 8 consecutive hours in the sleeper
berth as off-duty time. This means the driver may log up to 2
hours in the passenger seat as off-duty time and combine it
with the 8 consecutive hours in the sleeper berth to accumulate
10 consecutive hours off duty. As an alternative, the driver
may use 1 hour in the passenger seat before the 8-hour sleeper
berth period and 1 hour in the passenger seat after the sleeper
berth period to accumulate 10 consecutive hours. Truck drivers
were allowed to begin using this new, more flexible regulatory
provision on February 27, 2012.
Compliance Assistance Materials for the Industry
Knowing the impact the rule has on small businesses, the
Agency continues to provide comprehensive compliance assistance
information at its website (http://www.fmcsa.dot.gov/HOS) to
assist trucking companies that are still training their drivers
and dispatchers on the changes to the 34-hour restart and the
new 30-minute rest-break requirement.
Prior to the July 1 compliance date, the Agency posted
``Hours of Service Logbook Examples'' at its website--this
publication provides detailed illustrations of how the new
rules would apply in many common scenarios that truck drivers
face in filling out their logbooks. The examples cover the
changes to the on-duty definition and how the time would be
recorded in the logbooks and the changes to the 34-hour
restart. The examples have been updated to cover the Court-
imposed changes to the 30-minute break requirement.
In addition to our publications, FMCSA participates on a
monthly basis on two separate satellite radio programs geared
towards the trucking community (i.e., the Dave Nemo Show and
the Mark Willis Show--the successor to the Evan Lockridge
Report), during which senior Agency officials provide updates
on the Agency's major safety initiatives and answer questions
from drivers and carriers. Most of the broadcasters over the
past year have included extensive discussions about the HOS
requirements. We provided numerous clarifications of the new
rule and frequent reminders of the July 1, 2013, compliance
date for the changes to the 34-hour restart and the new 30-
minute break requirement.
Through the development of compliance assistance materials
and participation in satellite radio broadcasts, the Agency
provided carriers and drivers a means of learning about the new
HOS requirements at minimal cost.
To supplement the HOS regulations, FMCSA partnered with
Transport Canada and a consortium of government, motor carriers
and researchers to develop the North American Fatigue
Management Program (NAFMP). This free online website provides
extensive training and educational resources for truck and bus
drivers. Based on years of research on fatigue, a series of 10
instructional modules inform drivers, their families, and
carrier safety officials on effective ways to prevent driver
fatigue. The NAFMP can be found at www.nafmp.org.
Conclusion
Since Congress directed the Department of Transportation to
undertake an HOS rulemaking in ICC Termination Act of 1995, the
Department has focused on implementing a new rule that will
help reduce the number of fatigue-related fatal crashes
involving large trucks. FMCSA remains committed to working with
its safety partners and stakeholders to provide an HOS
regulatory approach that raises the safety bar for the industry
and saves lives on our roadways. Additionally, we remain
committed to ensuring that this regulation, like all our
regulations, takes into account the specific needs of small
businesses, which represent so much of the industry we
regulate.
Thank you for the opportunity to discuss FMCSA's
implementation of the 2011 HOS final rule and its impact on
small businesses. I am glad to answer your questions.
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Good morning Chairman Hanna, Ranking Member Meng, and
distinguished members of the Subcommittee. Thank you for
inviting me to testify on matters of importance to our nation's
truck drivers and the tens of thousands of small business
trucking professionals who are members of the Owner-Operator
Independent Drivers Association (OOIDA).
My name is Tilden Curl. I am a small business trucker from
Olympia, Washington. I have more than 20 years of trucking
experience and have been an OOIDA member since 2001. I
currently operate a step-deck trailer through seven western
states, often hauling specialized freight. I am proud to be
here today testifying on behalf of OOIDA and my fellow
professional drivers.
As you are likely aware, OOIDA is the national trade
association representing the interests of independent owner-
operators and professional drives on all issues that affect
small business truckers. The more than 150,000 members of OOIDA
are small business men and women in all 50 states and every
Congressional district who collectively own and operate more
than 200,000 individual heavy-duty trucks.
The majority of the trucking industry in our country is
made up of small businesses, as more than 93 percent of all
motor carriers have less than 20 trucks in their fleet and 78
percent of carriers have fleets of just five or fewer trucks.
In fact, one-truck motor carriers represent nearly half of the
total number of trucking companies operating in the United
States. It is estimated that OOIDA members and their small
business trucking peers collectively haul around 40 percent of
the freight moved by truck nationally each year.
Before discussing the hours-of-service (HOS) regulations, I
would like to personally thank Administrator Ferro for recently
joining an OOIDA Board Member during a two-day, thousand-mile
``ride-along'' from the Washington, DC area to St. Louis. She
is the first Federal Motor Carrier Safety Administration
(FMCSA) Administrator to join a trucker out on the road over a
multiple day period, and OOIDA appreciates her willingness to
experience some of the challenges truckers face on a daily
basis.
I also want to highlight OOIDA's commitment to highway
safety and discuss a very memorable day in my life as an
example of the focus our nation's professional truckers place
on safety.
Just after noon on October 27, 2010, I was driving
southbound on Highway 99 near Tulare, California in the San
Joaquin Valley. A vehicle lost control and crossed traffic,
finally coming to rest with its front wheels stuck over the
railroad tracks that parallel the highway. After stopping my
truck to provide assistance, I saw a train coming up the
tracks.
An elderly woman exited the passenger side of the car, and
I yelled for her to get clear of the tracks. I then noticed
that the driver was unresponsive and trapped inside. At first,
the door was locked and could not be opened, but I was able to
squeeze my arm through the slightly lowered driver's window and
unlock it. Working quickly, I was able to unfasten the man's
seatbelt and drag him out of the car and away from the area
just seconds before the train collided with the stranded
vehicle.
I was honored as the 28th annual Goodyear Highway Hero for
my action that day, but I feel that what I did was what most
professional truckers would do if presented with the same
situation--intervening to save the life of another motorist on
the highway.
Safety is something that truckers must focus on every
single day, and as small business owners, OOIDA members have a
unique perspective. The vast majority of OOIDA's members own
their own truck, so if we are involved in an accident, no
matter who is at fault, our businesses and our family incomes
are directly impacted. Indeed, many small truckers have had to
declare bankruptcy due to the impacts from an accident that was
the fault of another motorist.
Safety and economics are inherently linked, and that is
reflected in the safety record of OOIDA members out on the
road. With a quarter century of truck driving experience, the
average OOIDA member has safely driven around two million miles
over the course of their career in trucking without a
reportable accident.\1\ To put that in perspective, the average
passenger car driver would need to drive for at least 150 years
to reach that level of experience out on the highway.\2\
Indeed, Administrator Ferro recently honored several dozen
OOIDA Safe Driving Award recipients, with many members having
30 to 40 years of accident-free driving, and one award
recognizing an OOIDA Board Member with 62 years of safe
driving.
---------------------------------------------------------------------------
\1\ OOIDA Foundation, ``Owner-Operator Independent Drivers Profile
2012,'' AVAILABLE: http://www.ooida.com/OOIDA%20Foundation/
RecentResearch/OOIDP.asp.
\2\ Based on the ``Average Annual Miles Per Driver'' of 13,476
miles driven per year as calculated by the Federal Highway
Administration, see http://www.fhwa.dot.gov/ohim/onh00/bar8.htm.
Coming from this viewpoint, OOIDA strongly feels that the
key to highway safety above any regulation or technology is
ensuring there is a safe, well-trained, and knowledgeable
driver behind the wheel of every tractor-trailer on the
highway. To see why this is so important, one only has to
review safety data from recent years which showed a
considerable drop in truck-involved facility accidents during
2008 and 2009 when the economy faced significant challenges.
This time period saw a significant reduction in the number of
new truckers out on the road, while experienced drivers stuck
through the rough patch. The result was a drop in accident
rates during that period.\3\ With the improvement in the
economy, we have seen an increase in both entry-level drivers
on the road and in truck-involved fatality accidents.
---------------------------------------------------------------------------
\3\ Federal Motor Carrier Safety Administration--Analysis Division,
``Large Truck and Bus Crash Facts 2011,'' Trends Table 1. Large Truck
and Bus Fatal Crash Statistics, 1975-2011, page 4, AVAILABLE: http://
www.fmcsa.dot.gov/facts-research/LTBCF2011/
LargeTruckandBusCrashFacts2011.aspx.
Further, OOIDA's examination of FMCSA-published accident
data has shown that the technologies that many vendors, major
motor carriers, and government agencies are advancing as
highway safety solutions miss the mark by a wide margin,
especially when compared to safe and experienced truckers.
OOIDA's research arm, the OOIDA Foundation, has compared crash
data for major carriers who utilize ``safety technology'' such
as electronic on-board recorders, speed limiters, and stability
control systems in trucks owned by the carriers and driven by
company drivers to crash data for major carriers that utilize
owner-operators who own their own trucks that generally do not
have this technology. The experienced drivers for large owner-
operator carriers drive an average of 1.72 million miles, while
technology-focused carriers on average drive 500,000 fewer
miles between accidents. Indeed, several of these carriers had
half as many miles between accidents as the owner-operators.
These statistics, which reflect real on-the-road safety
performance, certainly point to a reality where safety
technology replacing safe, knowledgeable, and experienced
---------------------------------------------------------------------------
drivers is wishful thinking.
OOIDA's top safety priority is ensuring that long-overdue
entry-level driver training requirements are addressed in short
order. Earlier this year, OOIDA issued a comprehensive entry-
level driver training proposal as part of its ``Truckers for
Safety'' highway safety agenda. You can find more about this
proposal online at http://www.truckersforsafety.com. In the
view of OOIDA and the professional truckers we are proud to
have as members, ensuring that new drivers are well trained
will lead to improvements on a long-list of issues facing the
industry, including those beyond safety matters.
We appreciate Administrator Ferro's public commitment to
move forward on entry-level driver training requirements. OOIDA
is hopeful that FMCSA will soon be taking steps toward
development these long overdue rules. Instead of focusing on
more restrictive regulations and costly technology mandates,
the priority should be on the lower cost and more effective
approach of ensuring that new long-haul tractor-trailer drivers
get the safety skills they need at the beginning of their
trucking careers. The most important and most impactful piece
of safety equipment on a truck is a properly trained and
knowledgeable driver, and actions to make that happen should be
supported by the entire industry.
WHY FLEXIBILITY IN HOS RULES IS IMPORTANT FOR PROFESSIONAL
TRUCK DRIVERS
From the perspective of many truckers, increasingly
restrictive HOS rules combine with industry pressures to put us
in a constant Catch-22 situation as we work to operate safely
and efficiently.
Trucking is a very diverse industry, with many different
types of operations and countless demands. A significant part
of our work as professional drivers is balancing all of these
demands while ensuring that we operate our vehicle as safely
and efficiently as possible. Over time, changes to HOS
regulations have reduced the flexibility we depend upon to
maintain that balance, putting professional truckers in a
situation where they are at risk of being penalized by either
enforcement officials or by the economic realities of the
industry for stopping to rest, avoiding traffic or another
hazard, or being delayed at a shipper or receiver.
Truckers are normally paid by how many miles the drive,
hence the saying ``if the wheels aren't turning, you aren't
earning.'' While there is certainly an incentive to drive as
many miles as possible during the day, there are also other
factors that pressure drivers. Some examples include potential
fines from customers for missing a delivery window and constant
contact from your carrier's dispatcher insisting you drive just
a little further, even if you are fatigued or too tired to
safely accommodate a customer's demands. Indeed, most of the
challenges within this industry find their root cause in
requirements and demands from shippers and receivers who are
not subject to the same regulatory restrictions and economic
consequences as truckers.
Under current rules, a driver is allowed to drive a maximum
of 11 hours while operating within a 14-hour-on-duty window.
The driver is then required to be off-duty for 10 consecutive
hours, of which 8 hours are to be used as sleeper berth time.
The combination of the 14-hour on-duty period and the required
10-hour break period constitutes a 24-hour cycle. The only
exception to this is that after 8 hours of sleeper time, a
driver may proceed to a location where driver services can be
obtained and be off-duty not driving for the remaining 2 hours.
This allowance still does not allow the driver to exceed the 11
hours of driving in a 24-hour period without a total of 10
hours off duty.
Because of the industry's pay-by-mile system, the vast
majority of truckers are not compensated for any of the time
spent not driving or for any non-driving activities. This is
the case even if that time is spent doing what the HOS
regulations consider ``on-duty'' because the trucker is working
or is required to be ready to work. Activities that fall under
the definition of ``on-duty/not-driving'' include completing
paperwork, fueling, performing pre- or post-trip inspections,
undergoing random safety inspections, and general maintenance.
Loading and unloading the truck and waiting in the truck for
the loading dock at the shipper or receiver to open up are also
``on-duty/not-driving.'' Hence the pressure to maximize time
driving.
Further, while some of these activities are predictable,
being detained by a shipper for multiple hours is not, and even
less predictable are challenges like being stuck in traffic due
to an accident, congestion, inclement weather, or having to
pull into a truck stop for a tire replacement or an engine
repair. Predictable or not, these ``on-duty/not-driving''
activities cut into the trucker's 14-hour day, impacting their
ability to spend time driving and earning compensation.
Without flexibility, a few hours of unanticipated delay can
have a significant impact on a trucker's schedule across many
days. Flexibility does not mean, and I cannot emphasize this
enough, that truckers should be given a green light to drive
when they are tired or without sufficient rest. Instead,
flexibility means giving the professional truck driver the
ability to better manage their daily and weekly schedule. To
operate safety and efficiently, we need the ability to take
rest when we are best able to get the rest we need, to drive
when we determine that we are in the best position to do so,
and to manage our schedule appropriately.
One of the key reasons why flexibility is important is that
we will spend many hours during our week waiting at a shipper
or receiver for the opportunity to load or unload. Shippers and
receivers, including many Fortune 100 and 500 companies that
tout how efficiently their businesses operate and how much
attention they pay to ensuring they are ``good places to
work,'' have little concern for making more efficient use of
the truck driver's time.
Not only is this detention time generally uncompensated,
but also this time spent waiting is considered work under HOS
rules; as such, it cuts into our available on-duty time. This
directly reduces the amount of time we are able to be
productive, even though much of this time is often taken in the
sleeper berth in preparation for the upcoming on-duty period.
The issue of detention time is not endemic to the U.S. trucking
industry, as Australia has recently passed legislation
recognizing that the entire logistic chain is responsible for
the safe and efficient movement of freight and passengers. They
have initiated a ``chain of responsibility'' where all parts of
the supply chain are held accountable for safety and security
on the roadways.
Flexibility in HOS rules is a key factor in ensuring that
professional drivers are able to make other safety-focused
decisions. While sitting through congestion, accidents, and
construction naturally impact driving time, the majority of
experienced truckers understand the benefits of avoiding these
situations altogether. Most of us will plan our trips through
major cities to avoid rush hour traffic, not only because it
improves our timing, but also because it significantly reduces
our risk of being involved in an accident because there will be
fewer passenger cars on the road. Scheduling flexibility is
necessary for this to happen.
Most importantly, experienced truckers are able to follow
their own bodies when it comes to ensuring they are alert and
refreshed while driving. HOS regulations should ensure that
drivers are not penalized if they take a break whenever or for
whatever length of time they need during their driving day to
get needed rest. One driver may need several breaks of varying
lengths distributed throughout the driving window, another may
need multiple breaks later in the driving window, and yet
another may need only one daily break for a meal or rest during
this time. The much-studied circadian rhythms vary widely from
person to person, making it difficult for a one-size-fits-all
approach.
Certain types of trucking will present unique challenges
for the trucker as they work to navigate between regulatory
restrictions and shipper demands while driving safely and
efficiently. Specialized over-dimensional and over-weight loads
are an example. The movement of these loads is not only
governed by hours-of-service rules and other federal
regulations, but also by state and local restrictions. In many
instances, big and heavy loads are restricted to daylight-only
operations only on certain highways. There are safety reasons
behind these restrictions, but a misalignment between the
permit restrictions and federal HOS rules can make scheduling
extremely difficult. Further, the new 30-minute break
requirement has added new difficulties, as drivers for
permitted loads face challenges locating safe parking and the
break cuts into the time they are able to drive before the
permit's curfew.
Truckers must also deal with customer schedules that do not
reflect HOS restrictions. Many shippers demand ``just-in-time''
deliveries and require that deliveries or pick-ups be made at a
certain time of day. Truckers must operate accordingly to meet
the demands of these shippers. An example of this in my current
operations is one customer only receives between six in the
morning and noon. Another usually only has product ready to
ship after three in the afternoon.
It's my responsibility to get there on time, and running
out of hours is not a valid reason for being late, and we can
only plan for what we can control.
One major area of concern for OOIDA, especially when
considering the role of HOS rules and highway safety, is the
pressure that the continuous on-duty clock places on truckers.
The non-stoppable nature of the 14-hour clock, which has been
in place since 2005, demands that we constantly push ahead to
ensure we maximize our driving time for the day. This
discourages drivers from taking short rest breaks throughout
their day, with clear safety impacts. Another change from 2005,
the elimination of the ability for truckers to split their time
in the sleeper berth, adds additional pressure on truckers to
push through and drive, even when they may want or need rest
because they cannot afford to trade on-duty time for rest.
SUMMARY OF 2011'S CHANGES TO THE HOS REGULATIONS & RECENT
ACTIONS
On July 1st of this year, changes to the hours-of-service
regulations finalized by FMCSA in 2011 went into effect. It is
important to note that these changes were the result of a court
settlement between the agency and a number of advocacy groups
who sought further restrictions on the HOS regulations. While
FMCSA did not initiate these changes, OOIDA feels that they do
not advance the goal of improving highway safety, and as you
will see, are likely to have a negative impact on safety while
focusing on micro-managing a driver's time.
The main provisions of these changes were to place
restrictions on the use of the ``34-hour restart'' and a
requirement that drivers take a minimum rest break during their
driving period. While many groups argued for a reduction in the
11-hour total driving time period, FMCSA thankfully rejected
this proposal.
The restart is a minimum 34-hour off-duty period that
allows a trucker to restart their 70-hour ``on-duty'' cycle.
Prior to the most recent change, truckers were able to reset
their duty clock more than once a week by taking any
consecutive 34-hour period off. Under the current rule, that
restart is limited to once per seven day/168 hour period. The
34 hours of off-duty time must include two consecutive periods
from 1 AM to 5 AM based on the trucker's ``home terminal'' time
zone and not the time zone where the trucker is currently
operating.
The new regulations also require a mandatory break of at
least a 30-minute period after eight hours of elapsed on-duty
time. Drivers may drive only if less than eight hours has
passed since the end of the driver's last off-duty period of at
least 30 minutes. However, the break does not pause the 14-hour
on-duty clock.
On August 2nd, the U.S. Court of Appeals for the District
of Columbia issued a decision in response to a pair of
challenges brought against the new regulations. The first
challenge was filed by the American Trucking Associations
(OOIDA was an intervener on this suit) and the second was filed
by the Advocates for Highway and Auto Safety, Public Citizen,
and the Truck Safety Coalition. The decision vacated the rule's
application of the mandatory 30-minute break to short-haul
drivers while not making other changes.
On October 31, Representatives Hanna, Rice, and Michaud
introduced H.R. 3403, the True Understanding of the Economy and
Safety Act. This legislation, which OOIDA supports, calls for a
comprehensive review by the Government Accountability Office of
the new restart provision, including a review of a still
forthcoming naturalistic driving study of the restart required
by Congress in the most recent highway bill. Until that review
is completed, H.R. 3404 mandates that the industry resume
operating with the previous version of the restart provision
that does not include two overnight 1 AM to 5 AM periods and
restricts its use to once every seven days.
OOIDA'S ``NEW HOS REGULATIONS SURVEY''
In light of these recent changes and the continuing
discussion regarding the regulations, OOIDA reached out to its
membership in October, four months after the changes went into
effect, to gain an understanding of how they were impacting
truckers, their operations, and their safety behind the wheel.
The OOIDA Foundation received over four thousand responses
to the e-mailed survey request and found, in short, that the
``rule changes have had a dramatic effect on the lives and
livelihoods of small business truckers and professional
drivers.'' \4\ A copy of the survey results has been provided
to the Committee, and I will highlight some of the findings
below.
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\4\ OOIDA Foundation, ``OOIDA New HOS Regulations Survey,''
November 2013.
The FMCSA announced the purpose of the rule changes was to
reduce the possibility of truck driver fatigue; however,
feedback from professional truckers shows differently. While 53
percent of the respondents said the new regulations did not
decrease nor increase their fatigue, 46 percent stated they
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actually felt more fatigued following the changes.
Comments from truckers explained how this is the case:
``There will be more driver fatigue because of this rule, not
less, because drivers will try to maximize as many miles and
hours of driving as possible; because of the new rules, they
can only get a reset once in a seven day period.'' Members
stated that the new rules caused ``more fatigue, less home
time, less flexibility, and less money.'' Another member said,
``The new 30-minute rule has had no positive effect on reducing
my fatigue.''
In addition, the new 34-hour restart provision has impacted
the ability of OOIDA members to best schedule their loads and
time home with their families. 79 percent of the respondents
claimed that the limitation of one restart per week has
affected their use of the 34-hour restart to best schedule
their time on the road and at home, with 31 percent stating
they have been significantly impacted:
``The restrictive nature of only using the
reset once every 168 hours not only has decreased the
number of hours and miles I can drive, but [also] when
I'd normally be off weekends. Now if I experience a
delay in getting home my reset keeps getting pushed
back further and throwing off my schedule.''
``I used the 34 hr restart every weekend and
it gave me more time to work thru the week, which
increased my productivity and gave me more home time.
[Now] I sometimes have to take the time off away from
home...This has effectively taken Family Time away.''
Further, this change has caused 65 percent of respondents
to lose income, with more than half of all respondents
reporting lost mileage and a reduced number of loads hauled per
week. On several occasions, members had long wait periods
between loads but were unable to utilize the restart either
because the 34 hours did not cover two periods between 1 AM and
5 AM, or because 168 hours had not elapsed since their previous
restart. In general, this forced members to lose time at home,
which caused them to take on shorter hauls and reduced their
income.
``Where before I could rest due to shipper/
receiver delays, weather, or whatever, now its run,
run, run till 7 days have passed then get a rest or
slow down till hours catch up.''
``Since shippers and receivers control my
hours of service, my time is no longer as flexible, I
must enter larger cities/more traffic areas in the
morning & evening rush hour times instead of regulating
my own time and working around traffic.
The mandatory break has impacted 86 percent of the
respondents, and over 60 percent stated that their operations
were either moderately or significantly affected by the
regulation. Frequently, members stated they felt more fatigued
because of the mandatory break, and instead of taking a nap,
truckers are simply sitting in their truck, waiting for their
break to end.
Perhaps one of the biggest concerns was taking the time to
find parking just in order to take the 30-minute break: ``Most
of the time my 30 minutes turns into 60 minutes or more by the
time you find parking and get back on the road.'' One member
stated the ``half hour break has increased stress, cut down
time to drive, cut down on the ability to find a parking spot,
and extended my day, increasing fatigue.''
The final question proposed, ``If you could change one
hours-of-service regulation, what and how would you change
it.'' The two largest responses were changing the 34-hour
regulations back to the previous structure (46%) and
eliminating the 14-hour running clock provision (30%) and
allowing truckers to stop that clock through a rest break or
some other off-duty activity.
These opinions are the views of the actual truckers that
have to operate under the dual pressures of regulatory
constraints and pressures from shippers, carriers, and others
in the industry. The comments from truckers responding to the
survey focused significantly on the impact these changes are
having on their ability to get the rest they need. They also
focused on the pressure that has resulted from limiting the
flexibility they as truckers have under the regulations.
Importantly, they also addressed the impact that the
regulations have had on their ability to earn a living.
Ensuring that truckers are able to earn a good living has
unavoidable ties to highway safety, and these impacts should be
considered as part of any regulatory review.
IMPACT OF THE NEW RULES ON MY OPERATIONS
The impacts of these new rules on my operations closely
tracks the results of the survey OOIDA conducted of our
membership. I have experienced an impact with all of the
aforementioned issues. I have less home time, more pressure,
and increased fatigue. These rules remove the flexibility that
is so badly needed to operate safely and efficiently.
The 30-minute beak rule. - Before this rule was enacted, I
would take a break every 2\1/2\ to 4 hours. I would stop and
attend to my personal needs and walk around my truck to
visually inspect my load and equipment, taking about 15 minutes
each time. An example of my day would be driving for four
hours, a 15-minute break, four more hours of driving, another
15-minute break, and then three hours of driving until I went
off-duty. Now, because I no longer have control over my break
times and duration, I frequently drive 5-6 hours, take my 30-
minute break, and drive the remaining time available under the
11-hour driving window straight through. Instead of having my
driving day split out into smaller periods with short breaks in
between, my driving day is split into two longer periods with
only one break.
Two 1 AM-5 AM periods. - This provision has caused me to
delay my start time on many occasions, which often puts me in
the middle of Seattle rush-hour traffic or other heavy traffic
along my route. When 34 hours without time stipulations was the
rule, I could take my 34 hours off and leave early enough to
avoid traffic during rush hour in the morning in Seattle and
Portland, OR in the afternoon. My inability to avoid traffic
now costs me as much as 2 hours of travel time in one day while
opening me up to significantly greater risk of accidents due to
the larger number of vehicles on the road. This has a domino
effect across my trip, as the following day I am forced to
drive through Sacramento's rush hour. The third day is my
delivery day, and I am now making these deliveries 3 to 6 hours
later than they were under the prior regulations.
While I do not generally drive coast-to-coast, if I did, I
would feel the impact of another aspect of the rule change. The
1 AM to 5 AM period is based upon the time at the trucker's
home terminal and not in the area they are currently operating.
Calling the West Coast home, this means that were I to work on
the East Coast, my restart periods would need to include two
consecutive periods between 4 AM and 8 AM, and a driver based
on the East Coast would need to include two periods between 10
PM and 2 AM when they are on the West Coast.
Limiting restarts to once every seven days. - The new
provision requiring 168 hours or seven days to have passed
before I can take a 34-hour restart has not made me any safer
or less fatigued. It has, however, had a dramatic effect on my
productivity and has forced me to stay on the road more and
away from home. After I have had 70 hours of total on-duty time
within a eight day period. the change in the regulations
requires me to sit away from home until the 168 hours has
accumulated plus an additional 34 or more hours to get in the
required two 1 AM to 5 AM periods. This artificial limitation
on my use of the restart has caused me to take my 34-hour
restart--time that I am supposed to be getting rest--three
hours from being at my home several times over the past 4
months. I think common sense will tell you a driver can get
much better rest at home than at a noisy truck stop.
Lost revenue. - The impact of these rules effects each
trucking operation differently. In my business, I have
experienced more pressure to keep moving to maintain revenue.
It is easy to lose as much as one day a week of driving due to
scheduling conflicts between HOS requirements and demands from
shippers and receivers. This equates to $4,000 to $5,000 per
month. The only way to avoid this loss is to forget about going
home and maximize hours on the road.
STEPS TO ADDRESS HOS INFLEXIBILITY AND TO IMPROVE HIGHWAY
SAFETY
Throughout the Department's HOS rulemaking process, OOIDA
has held that to meaningfully improve highway safety, any
changes to the rules would need to include all aspects of a
truckers' workday that affect their ability to drive safety.
This includes loading and unloading times, split sleeper berth
capabilities, and the ability to interrupt the 14-hour on-duty
period for needed rest periods.
Unfortunately, the new rule misses clear opportunities to
provide needed flexibility for truckers to address these
challenges; instead, it goes in the opposite direction and adds
additional restrictions that makes it more difficult for
truckers to balance out the dynamic demands of their work day
while operating safety and efficiently.
The Department of Transportation can take important steps
to improve the HOS rules to help truckers meet those goals of a
safe and efficient operation. In addition to returning to the
prior rule regarding use of the 34-hour restart, the Department
could make the following improvements: 1) allow truckers break
up their 14-hour on-duty window with short breaks on their
terms that do not count against the driver's available duty
time; 2) provide the opportunity to extend the driving window
beyond 14 hours while still ensuring the driver obtains
sufficient rest; and 3) return to the pre-2005 split sleeper
berth rule.
Further, all of us within the trucking industry, within
FMCSA, and most importantly within the community of shippers
and receivers, need to take steps to address the detention
issue. Truckers are professionals, and their time and their
labor should be treated with value by their employers and their
customers, because the current situation is having dramatic and
negative safety and economic impacts for the men and women who
drive our nation's trucks and their families.
Speaking of those men and women, we need to develop and
enact long-overdue entry-level driver training requirements.
Meeting this goal, which is the keystone of OOIDA's Truckers
for Safety agenda, would have countless benefits, from
improving highway safety to addressing industry challenges,
including trucking's consistently high turnover rate.
More broadly, OOIDA urges Congress and the Department to
shift the focus of regulatory and enforcement activities back
to the core causes of accidents. All too often, we have seen
regulations move based on suppositions from studies of limited
basis or arguments made by technology vendors or others within
the industry. One clear example of this is the on-going effort
to mandate speed limiters on heavy-duty trucks. This effort,
which was made at the urging of several mega motor carriers, is
continuing despite the fact that the Department does not have
real-world data showing that speed limiters would make a
difference in highway safety.\5\
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\5\ Tanner, David, ``Feds pursuing speed limiters for heavy trucks
lack real-world,'' Land Line, November 1, 2013.
The current approach has resulted in costly regulations
that simply continue to put added pressure on truckers with
little true safety benefit. Focusing on true accident causes
and steps that can be taken to reduce accidents would go a long
way towards improving highway safety in a way that values the
---------------------------------------------------------------------------
commitment of professional truckers to safe roads.
CONCLUSION
While the HOS rules are intended to make our highways safer
and more productive, the results of continued micro-management
of drivers' time has shown a very different outcome. Almost
half of OOIDA members responding to our recent survey feel more
fatigued following the changes, nearly 80 percent have seen
impacts to their ability to schedule loads and home time, and
nearly two thirds of respondents have lost income, with more
than half driving fewer miles and fewer loads.
We at OOIDA support safety first by requiring properly
trained truckers as the foundation of all safety programs. Once
properly trained, make sure that the trucker has the tools
needed to carry out this very unique task as safely and
efficiently as possible, including reasonable flexibility under
the HOS regulations. Rest is something a well-trained driver
understands and knows his own personal needs better than any
one size fits all rule ever could.
It goes without saying that OOIDA supports the mission of
removing bad actors and ending unsafe practices--our members
are on the road and exposed to the risk that comes with that
environment every single day. However, placing more and more of
the responsibility and the punishment on the driver, while not
holding accountable the motor carriers and customers who make
demands irrespective of regulations and safety, is not the way
to move forward.
Addressing the inflexibility of the HOS regulations,
including the new limits on the 34-hour restart as well as
enabling truckers to pause their on-duty clock, would be a
positive step forward, but regulations are only one set of
challenges that truckers must navigate as they work to operate
safety and efficiently. Demands from customers, keeping drivers
waiting countless hours at the dock, the challenge of driver
pay, and the pressure from motor carriers to keep operating are
elements of the industry that all have negative impacts on
truckers and safety. While the Department and Congress are not
the best sources for solutions in all of these areas, they
certainly deserve attention from all who are concerned about
highway safety and the success of small business truckers.
Thank you for the opportunity to testify. I look forward to
answering any questions.
[GRAPHIC] [TIFF OMITTED] 85596.025
Chairman Hanna, Ranking Member Meng, and members of the
House Small Business Committee, thank you for the opportunity
to speak with you today regarding concerns affecting small
businesses arising from the FMCSA's Hours-of-Service Rules.
My name is Brian Evans; I am the owner of a small business
transportation brokerage. I serve as the President, and CEO for
L&L Freight Services located in Cabot, Arkansas, and I am a 20-
year veteran of the transportation, freight brokerage, and
supply chain management sectors. I come from a family owned,
blue collar, small business and prior to working in the
brokerage industry; I drove over-the-road almost 1,000,000
accident free miles.
Additionally, I serve on the Board of Directors for the
Transportation Intermediaries Association (TIA). TIA represents
more than 1,400 member companies; of which 70 percent of these
companies are small family owned businesses.
TIA is the professional organization of the $162 billion
third-party logistics industry. TIA is the only organization
exclusively representing transportation intermediaries of all
disciplines doing business in domestic and international
commerce.
Like the FMCSA, one of our primary missions is promoting
safe practices. As an organization, TIA has sought to work with
FMCSA to make the Hours-of-Service regulations the best
possible tool for the Agency to improve safety for the motoring
public by reducing truck driver fatigue.
Freight brokers, interchangeably referred to as
``transportation intermediaries,'' third party logistics
companies (``3PLs''), and non-asset based logistics companies,
are professional businesses that act similarly to ``travel
agents'' for freight. Freight brokers serve tens of thousands
of US businesses and manufacturers (shippers) and motor
carriers (carriers), bringing together the shippers' need to
move cargo, with the corresponding capacity and equipment
offered by rail and motor carriers, or, depending on a
company's authorities, air and ocean carriers as well.
We are an incredibly ``green'' industry, and have
contributed to U.S. economic growth in innumerable ways.
Freight broker businesses are generally growth businesses,
finding new ways to serve our manufacturing and distributing
customers every year. By matching capacity with available
shipments, we dramatically reduce the empty miles trucks drive
between shipments, saving fuel and adding money to the bottom
lines of carriers and shippers. Our industry has helped lower
logistics costs as a percent of GDP by several percentage
points since deregulation.
Transportation intermediaries are primarily, non-asset
based companies whose expertise is providing mode and carrier
neutral transportation arrangements for shippers with the
underlying asset owning and operating carriers. They get to
know the details of a shipper's business, then tailor a package
of transportation services, sometimes by various modes of
transportation, to meet those needs. Transportation
intermediaries bring a targets expertise to meet the shipper's
transportation needs.
Many shippers in recent years have streamlined their
acquisition and distribution operations. They have reduced
their in-house transportation departments, and have chosen to
deal with only a few ``core carriers'' directly. Increasingly,
they have contracted out the function of arranging
transportation to intermediaries or third party logistics
experts. Every Fortune 100 Company now has at least one third
party logistics company (3PL) as one of its core carriers.
Since the intermediary or 3PL, in turn, may have relationships
with dozens, or even thousands, of underlying carriers, the
shipper has many service options available to it from a single
source by employing an intermediary.
Shippers count on transportation intermediaries to arrange
and report on the smooth and uninterrupted flow of goods from
origin to destination. Most carriers rely upon brokers to
operate as supplements to their sales force, and in some cases,
their entire sales force. Whatever the case, brokers keep
carriers' equipment filled and moving. There are more than
15,000 licensed freight brokers in operation, and they range
from small, family owned businesses to multi-billion dollar,
publicly traded corporations.
Unfortunately, the new HOS regulations were a solution in
search of a problem. No one wants unsafe trucks or drivers on
the road. There is no one with a greater interest of the
security of a driver than his or her employer. To that end, TIA
has a standing committee that has published and regularly
updates, a carrier selection framework. TIA recommends that
every broker and shipper have in place a written carrier
selection policy for hiring carriers. Safety improvements by
the industry under the previous hours-of-service rules, reduced
accidents, allowed the market to become more efficient, and
allowed American business to be more competitive.
The new rules are overly complicated, will reduce
productivity, and have no effect on reducing accidents beyond
the previous level. In the 24th annual State of Logistics
report authored by Rosalyn Wilson, she estimates a loss of
productivity between 2% and 10% for the transportation
industry. This significant amount of loss of productivity could
lead companies to expand their near shoring ventures into
neighboring countries; thus relocating valued American
transportation jobs to foreign nations.
I have spoken with many of my carrier customers who are
experiencing a major loss of productivity due to the new
restart provision. This rule is resulting in around five fewer
loads per week or a reduction of 3% in capacity for their
fleets. The cost of this loss of efficiency is felt by the
business and ultimately passed on to the consumer.
We are not suggesting that increased safety be traded for
increased efficiency. We are stating that safety improvement
was achieved under the old rules, and the new rules will not
result in dramatically increased carrier safety. According to a
report disseminated by the U.S. Department of Transportation in
March of 2013 \1\, police reported commercial motor vehicle
traffic crashes actually decreased 3% between the years 2009
and 2011.
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\1\ U.S. Department of Transportation. Federal Motor Carrier Safety
Administration. Commercial Motor Vehicle Facts - March 2013.
As you know, there is a pressing shortage of drivers. The
new HOS rule will have a twofold effect. It will chase out
qualified drivers and deter future motor carriers from entering
the industry, because the rules limit the number of loads a
carrier can handle. The rule will likely also require drivers
to operate during peak hours of operations, thereby increasing
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congestion and reducing safety.
The American Transportation Research Institute (ATRI)
recently released their 2013 edition of the ``Critical Issues
in the Trucking Industry.'' The report places the new HOS
regulations as this year's top concern for the trucking
industry. It further examines the 34-hour restart provision and
states, ``Many in the industry believe that these new HOS rules
will have a negative impact of productivity. Additionally,
there are concerns that the safety benefits that FMCSA expects
these changes to generate will not materialize.'' \2\ ATRI
estimates that the changes to the restart provision alone would
cost the industry $189 million dollars, as opposed to the $133
million benefit projected by the FMCSA.\3\
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\2\ American Transportation Research Institute. Critical Issues in
the Trucking Industry - 2013. October 2013.
\3\ American Transportation Research Institute. Assessing the
Impacts of the 34-Hour Restart Provisions. June 2013.
The FMCSA's concerns about driver health and safety are to
be applauded. The new HOS rules, however, fail to demonstrate
that further restrictions will lead to any measurable decrease
in crashes or injuries beyond that already being achieved with
the previous measures. TIA supports the passage of H.R. 3413,
the ``TRUE Safety Act.'' TIA urges the Agency to examine the
negative effects of the 34-hour restart provision and consider
amending the rule to give transportation the flexibility they
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need to ensure safety.
I appreciate the opportunity to testify before the
subcommittee today on the concerns of the new HOS rules and its
effects on small business owners whether a third-party
logistics provider, motor carriers, or the entire supply chain.
I would be happy to answer any questions.
Testimony of Paul P. Jovanis Ph.D.
Professor, Civil and Environmental Engineering
Director, Transportation Operations Program
The Larson Institute
College of Engineering
Pennsylvania State University
On
The Effect of Truck Driver Hours of Service on Crash Risk
Before
The House Committee on Small Business
Contracting and Workforce Subcommittee
November 21, 2013
The relationship of crashes to driver hours of service
Submitted by Paul P. Jovanis Ph.D.
Professor, Civil and Environmental Engineering
Director, Transportation Operations Program
Larson Transportation Institute
Pennsylvania State University
Summary
Understanding the relationship between truck driver hours
of service and crashes is a complex and challenging task.
Researchers working in this area come from backgrounds as
diverse as human factors, psychology, medicine and road safety.
Some of the research in this field has been described by the
term ``fatigue'', even though questions have been raised in the
literature about the definition of the term fatigue itself
(Haworth, et al., 1988). Others (e.g. Jovanis et al., 2012)
have focused on studying the association of crashes to the
duration of driving, use of rest breaks, schedule of driving
over several days and time of day. All approaches contribute in
different ways to our accumulation of knowledge about hours of
service and crashes. This testimony is not an exhaustive review
of this literature as there would likely be hundreds of
citations. Rather this is an attempt to summarize the most
recent work in the field, with a few additional references to
well-cited research.
Concerning the effect of hours of service on crashes, I
offer the following summary:
Hours of continuous driving - Using data supplied by
carriers over a period of more than 20 years, there are a
number of studies that support the basic principle that the
longer one drives the greater the odds of a crash (e.g. Jovanis
and Chang, 1989; Jovanis et al., 1991; Kaneko and Jovanis,
1992; Lin, et al., 1993; Lin at al., 1994; Jovanis et al.,
2011; Jovanis, et al., 2012). These eight studies estimated the
effect of driving time, when controlling for other factors such
as experience, off duty time, driving pattern over multiple
days and, in one case, time of day directly. These studies are
among the few that control for multiple factors while seeking
to estimate the effect of driving time. A study using fatal
truck-involved crashes from 1980-2002 (Campbell and Hwang,
2005) also indicated an increase in crash risk with hours
driven.
Using trucks instrumented with cameras and other vehicle-
based sensors a series of studies have sought to connect risky
driving maneuvers to hours of service. Using these measures,
one study (Hanowski, et al., 2008) found little connection
between the observed events and hours of service. A second
study with more extensive data (Blanco, et al., 2011) did find
an association of driving time with the occurrence of safety
critical events (including a few crashes). This second study,
like the first, also showed a close correlation with time on
duty. Other studies using instrumented vehicles, physiological
or other tests of fatigue for a limited number of drivers
during regular work conditions have found little association of
these metrics with hours driving (e.g. Wylie, et al., 1996).
In summary, based on a series of studies using carrier-
supplied data and one with fatal truck crashes measured over 20
years, I believe there is evidence that crash risk increases as
driving time increases.
Hours off duty - the increase is required off-duty time was
implemented in 2003. Crash-based research using data from the
1980's (Lin et al., 1993) indicates that drivers with more than
9 hours off duty have a lower crash risk when returning to work
than drivers with 8-9 hours off-duty. This is a case where the
change in regulations (increasing off-duty time from 8 to 10
hours) is consistent with the research.
Time of day - the effects of time of day are particularly
difficult to identify because trucks share the road with other
traffic, which has marked peaks in urban areas during the
morning and evening rush. In a study using crash data (Lin, et
al., 1993), with a baseline of 10am to noon, crash risks were
elevated in the early morning (4am to 6am) through to 10am; and
then again elevated from 4 to 10pm. Another study (Campbell and
Hwang, 2005) found an increase in the odds of a crash from 11pm
through 6am. Using fatigue tests and instrumented vehicle data
(Wylie, et al., 1996), others found strong association of
declines in performance and fatigue tests linked to time of
day. Fatigue (self rated) increased more during night than day
shifts in a study in Australia (Williamson et al., 2004). Time
of day is associated with crash risk; the question is how to
address this in regulations.
Rest breaks - Breaks are included in the hours of service
rules for the European Union, which require 45 minutes for each
4.5 hours of driving (Wikipedia, 20013). In 2013, the new US
rule requires a 30-minute rest break after 8 hours driving.
Lack of mandatory inclusion in the policy allowed researchers
(Jovanis et al., 2012) to compare drivers with break and those
without. The presence of two breaks reduced crash odds by 30%
in a 2012 study (Jovanis, et al., 2011). The benefits of rest
breaks seem overwhelming.
Cumulative driving over several days - the introduction of
the 34-hour restart in 2003 has triggered a series of studies
of the effect of cumulative driving both with and without a
restart.
Two laboratory studies have been recently completed that
focused on the 34-hour restart. In the first study (Van Dongen
and Belenky, 2010) subjects were split into two groups: one
group worked a daytime schedule for 5 days, was off duty for 34
hours, then worked 5 more days for 14 hours per day. The second
group had a similar schedule except the participants worked at
night for 5 days, had a 34-hour day-oriented break and then
another 5 days of night work. The principal finding is that the
day-oriented work group showed no decline in performance, while
those with the night work showed a decline when they returned
to work after the 34-hour ``restart''. These studies were
enhanced in a follow-up experiment in which participants were
subjected to night work periods separated by a 58-hour
``restart'' aimed to emulate the effect of an additional day
required from the 34-hour regulation. In this case drivers were
compared against each other before the restart compared to
after. This longer restart resulted in no performance
degradation after return from the 58-hour off-duty period.
This concludes my oral testimony; I'll be happy to answer
any questions you may have.
Brief summary of older research:
Federal hours of service were largely unchanged from the
1940's until 2003. Since then, there have been a series of
changes to those regulations including those implemented this
year. Federally sponsored research underlying changes in the
regulations were conducted in the U.S. in the early 1970's
(Harris and Mackie, 1972; Mackie and Miller, 1978) and during a
major field study conducted i the 1990's, the Driver Fatigue
and Alertness Study, (Wylie, et al., 1996). At the same time,
there was research underway outside of federal funding (Jovanis
and Chang, 1989, Chang and Jovanis, 1990; Jovanis, et al.,
1991; Kaneko and Jovanis, 1992; Lin et al., 1993, and 1994)
seeking to associate crash occurrence with driving hours use
carrier-supplied data.
Detailed Comments on recent studies:
Recent crash-based analyses:
A study was recently completed using crash data from
carriers during 2004-05 and 2010 (Jovanis et al., 2011). The
study team used a methodology similar to one used in many
previous papers (e.g. Kaneko and Jovanis, 1992), which compared
crashes and non-crashes using a method called case-control
analysis. Over 500 crashes and 1000 non-crashes were used in
the study; all crashes were sufficiently severe to be
reportable to FMCSA through state safety organizations (i.e. a
person was killed or required medical attention or a vehicle
had to be towed from the scene). Factors included in the
modeling included driving time along with multiday driving
(derived from driving schedules over a seven day period) to
estimate crash risk. Central to the modeling is the notion of
survival: a driver who has a crash in the 5th hour, for
example, survives, that is successfully completed the first 4.
The statistical modeling used by the team represents this
survival process. Findings in the report and a recent paper
based on the research (Jovanis et al., 2012) include an
increase in crash risk after the 5th hour of driving and an
increased risk when returning to work after extended (34 hours
or more) off duty. This was not a test of the restart policy,
but a test of crash risk immediately after return to work after
extended time off. The risk was higher for drivers returning to
a night shift compared to a day shift. Because the study was
conducted before the currently required rest breaks the
research was able to identify a reduction associated with short
driving breaks from driving (typically 15 to 60 minutes)
reduced crash risk by 20-50% depending on the number of breaks
and type of operation.
A limitation of the study was that there were only 66
observations of the 1564 total (4%) that remained in the 11th
hour. As a result of this data loss, the estimate of crash risk
in the 11th hour is quite large. It is interesting to note how
relatively few trucks in the study drove into the 11th hour.
Considering non-crash data alone, 50 of 1022 (4.9%) of trucks
utilized the 11th hour. Further, data were limited to most
cases to 7 days prior to a crash, restricting the ability to
assess the effect of the 34-hour restart.
Recent naturalistic driving analyses:
In the naturalistic method, a set of participants are
observed while driving ``naturally''; in this case during the
conduct of their jobs. In addition to any crashes observed,
near misses and crash-relevant conflicts (events where evasive
maneuvers are needed to avoid a crash) are tracked to assess
driving performance. The vehicles are instrumented with
cameras, GPS and other sensors to measure vehicle motion. A
recent study (Hanowski, et al., 2008) used naturalistic driving
methods to measure truck critical event occurrence during
vehicle movement. Naturalistic driving means the vehicle is
instrumented with a set of cameras, radar, accelerometers,
gyroscopes and GPS (among others), to watch and record how
people drive. The critical events observed included crashes,
near crashes (when extreme braking or driver reaction avoided a
collision) and crash-relevant conflicts (where an avoidance
maneuver resulted in no collision). In this study, 710 of 819
events observed were crash-relevant conflicts so these events
dominated all analyses. Recording of events began when vehicle
motion started (speed greater than zero).
This study found little association of event risk and
driving time, particularly between the 10th and 11th hour;
rather a stronger association was found with hours worked. A
follow-on study using a larger data set and more quantitative
statistical methods (Blanco et al., 2011) found associations
with driving time and hours worked. This second study also
found positive safety aspects to rest breaks.
One potential difficulty of this use of naturalistic
studies is that events occurring in the first hour may be
occurring in the terminal or marshaling areas. This is not
necessarily equivalent to occurring on the road and may effect
the assessment of driving time effects. The analyses largely
assessed one factor at a time; there was no combined assessment
of driving time, cumulative driving and rest breaks as in the
crash analyses. Further, the process represented by the models
is different. When a crash occurs, the truck driver does not
typically continue to drive. With the naturalistic approach,
drivers involved in near crashes and crash-relevant conflicts
continue to operate. It is not known if the occurrence of one
of these non-crash events influences subsequent driver
behavior, and thus subsequent risks associated with driving
time and hours worked.
Lastly, there is a concern about the implied equivalence of
crashes and the non-crash events. Research has shown (Wu and
Jovanis, 2012; Wu and Jovanis 2013 a, b) that the definition of
near crashes and crash-relevant conflicts depends details of
the search algorithm used to identify the events. Depending on
the method used, some non-crash events may differ from the
crash events they are being compared to. This is a potential
source of error in the hours of service data used in the
naturalistic studies.
Laboratory studies of the 34-hour restart:
The summary of findings concerning the 34-hour restart
referenced two recently conducted studies at Washington State
University (Van Dongen and Belenky, 2010; Van Dongen et al.,
2010). In addition to the description of findings provided on
Page 4 of this testimony, there are a few additional issues in
need of discussion. One could raise a question about
establishing a policy based primarily on laboratory studies of
39 individuals. However, the studies appear to have been
carefully conducted and would, in my view pass scientific
scrutiny. The positive results with the 58-hour recovery period
lead to wonder if another off-duty period between 34 and 58
would be successful. Further, it would be interesting to test
longer work and duty periods with more extended use of the
restart, both to increase the sample size of participants and
to see better understand the changes in performance that
result.
Concluding remarks:
I hope the testimony provided additional understanding of
this complex topic. I place greater weight on use of crashes as
a performance measure for assessing hours of service effects,
primarily because I have worked with these data for over 25
years. In addition, the engineering profession has focused on
the use of crashes and their outcomes (fatalities, injuries and
property damage) to assess safety; this applies in research
(e.g. Hauer, undated) and in education programs (NCHRP 667,
2010). In my view other techniques offer important insights,
but crash-based studies should be given priority consideration.
References
Blanco, M., R. J. Hanowski, R. L. Olson, J. F. Morgan, S.
A. Soccolich, S.C. Wu, F. Guo, (2011), The Impact of Driving,
Non-Driving Work, and Rest Breaks on Driving Performance in
Commercial Motor Vehicle Operations, FMCSA-RRR-11-017, 102 p.
Campbell, K., and Hwang, H.L. (2005). Estimates of the
Prevalence and Risk of Fatigue in Fatal Accidents Involving
Medium and Heavy Trucks from the 1991-2001 TIFA Files, Center
for Transportation Analysis, Oak Ridge national Laboratory, Oak
Ridge, Tennessee, 14 pages
Chang H.L. and P.P. Jovanis. (1990) ``Formulating Accident
Occurrence as a Survival Process,'' Accident Analysis and
Prevention, Vol. 22, No. 5, pp. 407-419.
ec.europa.eu/transport/modes/road/
social--provisions/driving--time/; web
access on November 16, 2013
Hanowski, R. J., R. L. Olson, J. Bocanegra, and J. S.
Hickman, ``Analysis of Risk as a Function of Driving-Hour:
Assessment of Driving-Hours 1 Through 11, FMCSA RRR-08-002,
January 2008, 80p.
Harris, W., and Mackie, R.R. (1972) A study of the
relationship among fatigue, hours of service, and safety of
operations of truck and bus drivers, Final Report, BMCS RD 71-
2, Washington: U.S. Department of Transportation, Federal
Highway Administration, Bureau of Motor Carrier Safety.
Hauer, E., Two harmful myths and a thesis, presented at
Traffic Safety Summit, October 4-7, Kananaskis, Alberta, Canada
(no year provided).
Haworth, N. L., Triggs, T. J. and Grey, E. M. (1988).
Driver fatigue: Concepts, measurement and accident
countermeasures. Canberra: Federal Office of Road Safety.
Jovanis, P.P., Aguero, K.F. Wu, and V. Shankar,
``Naturalistic Driving Event Data Analysis: Omitted Variable
Bias and Multilevel Modeling Approaches'', Transportation
Research Record: Journal of the Transportation Research Board
2236, p. 49-57, 2011.
Jovanis, P.P. and H.L. Chang. (1989) ``Disaggregate Model
of Highway Accident Occurrence Using Survival Theory,''
Accident Analysis and Prevention, Vol. 21, No. 5, pp. 445-458.
Jovanis, P.P., Kaneko, T., and Lin, T. (1991) Exploratory
Analysis of Motor Carrier Accident Risk and Daily Driving
Pattern, Transportation Research Record 1322, Transportation
Research Board, Washington, D.C., pp. 34-43.
Jovanis, P.P., K.F. Wu, C. Chen, Effects of Hours of
Service and Driving Patterns on Motor Carrier Crashes,
Transportation Research Board, Journal of the Transportation
Research Board, No. 2231, p 119-127, 2012 (awarded best paper
of the year by the TRB Truck and Bus Safety Committee, 2012).
Jovanis, P. P.; K.F. Wu; and Chen Chen, Hours of Service
and Driver Fatigue: Driver Characteristics Research, FMCSA-RRR-
11-018, Washington, D.C., 88p.
Kaneko, T., and Jovanis, P.P. (1992) Multiday Driving
Patterns and Motor Carrier Accident Risk: A Disaggregate
Analysis, Accident Analysis and Prevention, Vol. 24, No. 5, pp.
437-456.
Lin, T.D., Jovanis, P.P., and Yang, C.Z. (1993). Modeling
the Effect of Driver Service Hours on Motor Carrier Accident
Risk Using Time Dependent Logistic Regression, Transportation
Research Record 1407, Transportation Research Board,
Washington, D.C., pp. 1-10
Lin, T.D., P.P. Jovanis, and C.Z. Yang, (1994). Time of Day
Models of Motor Carrier Accident Risk, Transportation Research
Record 1467, Transportation Research Board, Washington, D.C.,
pp. 1-8.
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 Report HS-5-01142, Washington, D.C.:
National Highway Traffice Safety Administration, (NTIS PB
290957).
NCHRP 667 (2010), Model curriculum for Highway safety core
competencies, Transportation Research Board, 12 p.
Park, S-W, Mukherjee, A., Gross, F., and Jovanis, P.P.
(2005) ``Safety Implications of Multi-day Driving Schedules for
Truck Drivers: Comparison of Field Experiments and Crash Data
Analysis'', Journal of the Transportation Research Board, No.
1922, pp. 167-174.
Shankar, V., P.P. Jovanis, J. Aguero and F. Gross,
``Analysis of Naturalistic Driving Data: A Prospective View on
Methodological Paradigms'', Journal of the Transportation
Research Board, No. 2061, November 2008, P1-8.
Van Dongen, H. P.A., and G. Belenky, (2010) Investigations
into Motor carrier Practices to achieve optimal commercial
Motor Vehicle Driver Performance: Phase I, FMCSA-RRR-10-005,
Sleep Performance and Research Center, Washington State
University, 78p.
Van Dongen, H. P.A., M. Jackson and G. Belenky, (2010),
Duration of Restart Period Needed to Recycle with Optimal
Performance: Phase II, FMCSA-MC-RRR-10-062, Federal motor
carrier Safety Administration, 59p.
Wikipedia search: en.wikipedia.org/wiki/
Hours--of--service; November 17, 2013.
Williamson, A., Friswell, R., and Feyer, A.M., (2004),
Fatigue and Performance in Heavy Truck Drivers Working Day
Shift, Night Shift or Rotating Shifts, National Transportation
Commission, 113 p.
Wylie, D.D., Shultz, T., Miller, J.C., Mitler, M.M., and
Mackie, R.R. (1996) Commercial Motor Vehicle Driver fatigue and
Alertness Study: Technical Summary, Publication FHWA-MC-97-001.
FHWA, U.S. Department of Transportation
Wu, K.F., P. Jovanis, (2013), Screening Naturalistic
Driving Study Data, in press, Journal of Transportation
Research Board
Wu, K.F., and P.P. Jovanis, (2013), Defining and Screening
Crashes and Crash-Surrogate Events Using Naturalistic Driving
Data, Accident Analysis and Prevention, Volume 61, Pages 10-22
Wu, K.F., and P.P. Jovanis, (2012), Crashes and Crash-
Surrogate Events: Exploratory modeling with naturalistic
driving study data, Accident Analysis and Prevention, Vol. 45 p
507-516.
[GRAPHIC] [TIFF OMITTED] 85596.026
Statement of the Associated General Contractors of America
to
House Small Business Contracting and Workforce Subcommittee
on
Impact of the Federal Motor Carrier Safety Administration's (FMCSA)
Hours of Service Regulation on Construction Industry Small Businesses
The Associated General Contractors of America (AGC) is the
leading association in the construction industry representing
more than 26,000 firms in 94 chapters throughout the United
States. Among the association's members are approximately 6,000
of the nation's leading general contractors, more than 9300
specialty contractors, and more than 10,000 material suppliers
and service providers to the construction industry. These firms
are engaged in the construction of highways, bridges, tunnels,
airports, transit, railroad, ports, buildings, factories,
warehouses, shopping centers, water treatment plants and other
public and privately owned facilities. AGC members perform
construction contracts in all 50 states and own and operate
fleets of commercial motor vehicles to carry out these
construction contracts. AGC members are therefore directly
impacted by the Federal Motor Carrier Safety Administration's
(FMCSA) Hours of Service regulations and indirectly by how
these rules impact their suppliers.
In 1995, Congress recognized that the FMCSA's hours-of-
service regulations were too restrictive on several industries,
including the construction industry. In the National Highway
System Designation Act of 1995 (section 345), Congress modified
the regulations for construction industry drivers transporting
construction materials and equipment to and from an active
construction site within a 50-air-mile radius of the driver's
normal work reporting location. These drivers are allowed to
restart the on-duty clock after an off-duty period of 24 or
more consecutive hours. Congress also directed the Secretary of
Transportation to ensure that granting the construction
industry exemption would be in the public interest and would
not have a significant adverse impact on the safety of
commercial motor vehicles. If at any time the Secretary
determined that this was not the case, the Secretary could
``prevent the exemption from going into effect, modify the
exemption, or revoke the exemption.'' Now, nearly eighteen
years after the rules' implementation, FMCSA has found no
adverse impact from this exemption.
Congress created the exemption from the construction
industry in recognition of the unique circumstances faced by
the industry's drivers. These unique circumstances include:
seasonal limits on when work can be done, materials that must
be put in place within tight time limits or be lost forever,
drivers spending much of their time not actually driving but
waiting in lines to pick-up or deliver materials, and drivers
being under constant supervision as they return continuously to
the job site or the source of the materials. Construction
industry drivers generally drive only in good weather
conditions. No studies by FMCSA or others have concluded that
there is a safety deficiency specific to construction workers
driving under these rules.
Because these factors have not changed, FMCSA's July 1,
2013 revisions to the HOS regulations maintain the clock reset
provision for construction drivers.
While AGC applauds FMCSA's decision to maintain this
exemption in the new HOS regulations, this exemption needs to
be updated to address current construction industry realities
by expanding its coverage. Most of the material that is being
transported for inclusion in construction projects are natural
resources such as sand, aggregates, gravel, cement, lime, etc.
These products are extracted from the earth and therefore are
available only in their natural settings. As sources of these
resources are depleted, new sources must be located and these
tend to be in more remote locations and further away from the
site of the actual construction. Because locations are further
away from where much of the construction is being done drivers
must cover greater distances. Therefore, AGC recommends that
the distance covered be expanded to a radius of 100 miles.
While FMCSA's July 1 revised HOS regulations did not change
the construction exemption, the rules establish a new
impediment that negatively impacts the construction industry by
requiring that drivers take a 30-minute break during an 8 hour
on duty time period. While a federal appeals court directed
FMCSA to exempt short haul drivers from this requirement, this
unfortunately did not resolve the issue for the construction
industry. Construction driving often requires short haul
drivers to work shifts that may extend beyond 12 hours of on
duty service. Even though short haul, these drivers are still
required to take the 30 minute break in order to legitimately
fulfill their 12 hour shift. A 12 hour shift is often necessary
because drivers delivering perishable construction materials,
especially concrete and asphalt, will not know in advance how
long it will take to complete a delivery. Every day in
construction is different and not always predictable.
Construction contractors must have the flexibility to deliver
concrete, asphalt and other materials when they are needed at
the project. Deliveries are not always on a regular schedule
and delays can cause the material to be compromised. Therefore
it is difficult for drivers to schedule this 30 minute break in
a timely fashion that allows for delivery of the perishable
material on time and also allows the needed flexibility. Delays
in the delivery process can potentially cost a contractor
thousands of dollars to repair or replace out of spec concrete
or asphalt. Delays in material delivery can also impact the
completion of projects such as road improvements which can have
negative effects on both the contractor and motorists. While on
duty for a 12 hour shift these drivers nevertheless spend much
of their time waiting in line to pick up or deliver material
and not driving. Unfortunately this down time does not count
towards the 30 minute break requirements. AGC urges Congress to
direct FMCSA expand the construction industry exclusion to
eliminate the 30 minute rest period requirement for these
drivers.
Another reality of highway and bridge construction is that
much of this activity involves rebuilding, expanding and in
other ways improving existing transportation infrastructure.
This requires that much of the work be performed under traffic,
and in many cases heavy traffic. So as to not impact traffic
flow, and to protect the safety of construction workers and
motorists, significant amounts of road construction is required
to be performed at night. FMCSA's new HOS requirements that
drivers, including construction drivers that operate outside
the 50 air-mile-radius, can only restart the weekly on-duty
clock following a 34-hour off duty period that includes at
least two periods between 1:00 a.m. and 5:00 a.m. will have
significant cost impacts on construction contractors and the
public agencies for whom they work. It will also significantly
impact the wages drivers are able to earn while their companies
are working overnight on major infrastructure projects because
it will limit the hours they are allowed to work. These time
restrictions are a real problem for contractors working night
shifts in compliance with contract requirements.
AGC supports H.R. 3413, the ``True Understanding of the
Economy and Safety Act'' or the ``TRUE Safety Act'', sponsored
by Representatives Richard Hanna (R-NY), Michael Michaud (D-
ME), and Tom Rice (R-SC). The bill defers implementation of the
new restart provisions in the new truck driver hours of service
regulations that became effective July 1, 2013, pending
completion of Government Accountability Office (GAO) reviews
of: (1) the analysis used by the FMCSA to justify the new rules
and, (2) the MAP-21 required restart field study. AGC urges
that Congress quickly approve this legislation.
Thank you for consideration of this statement.
[GRAPHIC] [TIFF OMITTED] 85596.027
Chairman Hanna and Representative Meng, thank you for
convening this important hearing today. The federal hours of
service rule is important to the safety of the nation's
roadways, and constitutes an equally important area of
compliance for commercial motor vehicle operators in the
transportation construction industry. The American Road &
Transportation Builders Association (ARTBA) appreciates this
opportunity to present our views on this issue.
The more than 5,000 members of ARTBA represent the
consensus voice of the U.S. transportation construction
industry at the federal level. ARTBA's membership includes
public agencies and private firms and organizations that own,
plan, design, supply and construct transportation projects
throughout the country. Many of these are small and/or family-
owned businesses. About two-thirds of ARTBA members are
transportation construction companies of varying size and areas
of expertise. These include prime contractors, sub-contractors
and suppliers. Overall, our industry generates nearly $354
billion annually in U.S. economic activity and sustains the
equivalent of 3.5 million American jobs. ARTBA's membership
structure also includes nearly three dozen affiliated chapters.
ARTBA contractor-members who operate in interstate commerce
must comply with the hours of service rule for commercial motor
vehicle operators (49 CFR Parts 385, 386, 390, and 395).
Moreover, many states automatically incorporate the federal
hours of service into the state's controlling law for
intrastate commercial motor vehicle operators.
Above all else, these contractors are committed to safety--
for the traveling public and their own employees. They also
seek to build transportation improvement projects with the
maximum degree of efficiency, innovation and value to the
public.
The purpose of the hours of service rule--as administered
by the Federal Motor Carrier Safety Administration (FMCSA)--
appears clear. Agency publications note that the main reason
for the regulations is to ``keep fatigued drivers off the
public roadways.'' The rule limits when, and for how long,
operators may drive commercial motor vehicles. The limits
include length of drive time and length of on-duty time (even
though the driver may be behind the wheel for a small portion
of that time), as well as mandated off-duty or rest time.
Various other provisions of the rule require drivers to keep
log books reflecting these time records.
Throughout various FMCSA comment periods (starting in about
2000) addressing the hours of service rule, ARTBA has argued
the revised rule should not apply to drivers in the
transportation construction industry. In implementing the
latest revisions to the rule, FMCSA has not--to our knowledge--
seriously contemplated a comprehensive exemption for this
industry's short-haul drivers. As we have expressed over the
years in comments submitted to FMCSA and to the U.S. Department
of Transportation, ARTBA believes the rationale for this
exemption is strong and worthy of the agency's consideration.
It would relate to two major federal transportation policy
goals: increasing efficiency in the construction of
transportation improvement projects, and preserving the safety
of all involved.
Transportation construction industry drivers are not long-
haul operators who consistently spend many consecutive hours on
the road in a given day. In most cases, they are making drives
of less than 50 miles in radius, whether from their normal
reporting location or materials plant to the construction job
site. Many of our drivers spend substantial amounts of time off
the road during the work day, loading and unloading materials
or equipment. Others may be responsible for positioning a piece
of mobile equipment at the beginning of the work day, but may
not be back behind the wheel until day's end, so that their
daily drive time is actually minimal. Those who transport
construction materials may spend substantial time in a queue to
pick up or drop off those products. However, in the
indiscriminate eyes of the hours of service rule, these
examples of non-driving activities are still considered ``on-
duty time'' and can end up prohibiting industry employees from
carrying out their driving duties past 14 hours on a lengthy
work day.
Generally, transportation construction industry commercial
drivers do not operate in a manner that leads to concerns over
fatigue that is the focus of the hours of service rule.
Further, we are unaware of any conclusive data to demonstrate
that driver fatigue and ancillary health issues are a
significant problem in our industry.
Moreover, transportation project owners, the driving public
and commercial shippers are expecting more timeliness and
efficiency in the construction of transportation improvement
projects, as well as less disruption to traffic. Transportation
construction firms will often work very long hours to complete
these projects expeditiously, especially in regions of the
country where seasonal weather is a factor. In other
industries, a 14-hour window of on-duty time may seem more than
adequate. However, as described above, in the transportation
construction industry it can often limit the efficient
deployment of professionals and resources on the construction
job site, without a demonstrable increase in safety.
Ultimately, this is an example of two areas of federal
policy--hours of service as administered by FMCSA and
accelerated transportation project delivery as promoted by
other agencies at USDOT--that are simply in direct conflict. In
recent years, the transportation construction industry and many
public-sector transportation agencies have been eager partners
in utilizing accelerated construction techniques to increase
efficiency, maximize the safety of motorists and workers, and
minimize the inconvenience to the traveling public. This often
involves total closure of a bridge or stretch of highway so the
contractor can undertake an intense effort to replace or
renovate it within a very short time frame--sometimes over a
single weekend. In recent years, we have seen numerous safe,
swift, ingenious and high-profile examples of these techniques,
acclaimed by public agencies, elected officials, the media and
the general public alike. Similarly, natural or man-made
disasters may require contractors to be extremely resourceful
within even more challenging time frames, to repair or replace
critical infrastructure assets that have been damaged.
FHWA has used its Every Day Counts program to promote these
types of activities. A prominent example was the Massachusetts
Department of Transportation's ``Fast 14'' effort during the
summer of 2011, through which contractors replaced fourteen
bridges in just ten (10) weekends. The public and media
reaction to this innovative effort was extremely positive.
The industry is proud to be at the cutting edge of these
emerging techniques. The intensity of the work schedule for
these contractors, whether leading up to or during the weekends
in question, cannot be overstated--nor can the industry's
satisfaction in these accomplishments. However, in these
circumstances, the hours of service rule continues to make the
job more difficult by limiting the availability of certain key
personnel (none of whom are long-haul truck drivers) to
discharge job duties relating to commercial motor vehicles. The
rule may also disrupt the timely delivery of materials to the
construction site. For these reasons, the rule may increase the
project's cost (in terms of additional personnel required)
without accompanying safety benefits for all concerned.
The revised hours of service rule includes a restart
provision for drivers requiring two consecutive nights off duty
from 1:00 am to 5:00 am following a work week. The new rule
also limits this restart of the clock that tracks a driver's
duty time to only once in a given seven-day period. In
justifying this requirement, FMCSA cites research regarding
fatigue, night-time sleep patterns and long-haul drivers.
Again, however, the relevancy to short-haul transportation
construction industry drivers is questionable. While short-haul
construction-related drivers can utilize a 24-hour restart
under certain conditions, this new mandate will still affect
many drivers servicing transportation improvement projects.
Importantly, much of this work is done at night, so this new
provision has the potential to disrupt the efficiency of those
construction operations and materials deliveries.
For this reason, ARTBA applauds Chairman Hanna and his
bipartisan co-sponsors for recently introducing the True
Understanding of the Economy and Safety (``TRUE Safety'') Act
(H.R. 3413), which would defer further implementation of the
new restart mandate until the completion and review of related
research.
In looking at the hours of service rule as it currently
stands, ARTBA is also concerned about the ability of smaller
construction firms to participate in transportation
construction projects. We know this committee has an acute
interest in identifying overreaching regulations and their
effect on small firms. If the hours of service rule limits
deployment of industry drivers at certain times, then the
effect on smaller construction companies and subcontractors is
even more pronounced because they do not necessarily have the
resources or personnel to absorb these disruptions. It is
unfortunate, then, that conflicting federal policies may limit
the ability of small businesses to play a needed role in
accelerated and innovative transportation construction
activities.
Given all of these reasons, ARTBA reiterates its desire for
a full exemption relating to the drive-time and on-duty limits
for transportation construction industry drivers. Any standard
tailored for the transportation construction industry should be
based on clear facts that establish the degree to which--if at
all--fatigue for these drivers is a factor that could lead to
an increase in deaths and injuries on the nation's roadways.
It should be noted that many other classes of industries
are exempt from the general rule, or enjoy certain exceptions.
As one example of which we are always reminded in mid-summer,
FMCSA exempts members of the American Pyrotechnics Association
from the rule so they can transport explosives for Fourth of
July fireworks shows. One would think that, as a national
public policy goal, the improved efficiency in the delivery of
transportation improvement projects would rank at least as high
as the successful staging of holiday fireworks displays.
Other partial or full exemptions apply to:
Agricultural drivers during planting or
harvesting season
Vehicles operated by the federal, state or
local government
Drivers for movie and television productions
Oilfield operations drivers (through which
waiting time at a natural gas or oil well site does not
count as on-duty time)
Drivers transporting propane heating fuel
during the winter
Railroad signal employees
Retail store deliveries
Utility service vehicles
A transportation construction industry exemption could be
fashioned in a similar manner to those affecting other specific
industries, as described. Moreover, the existing rule includes
a 24-hour restart provision (as opposed to 34 hours under the
general rule) for commercial motor vehicle drivers of
construction materials and equipment. So the rule already
contemplates a unique place for our industry and it would be
possible to carefully craft a wider, viable exemption in a
similar vein. Such an exemption could address drive time and
on-duty limits for the unique aspects of our sector while
preserving safety. Like the rule for oilfield operations,
transportation construction supplier drivers waiting in a
``queue'' should not be considered on duty, nor should the time
for workers who drive a commercial vehicle or construction
equipment only incidentally to their main duties on a
construction project.
ARTBA and its members continue to be concerned about the
wholesale application of the hours of service rule to the
transportation construction industry. Contractors make every
effort to comply, but often to the detriment of efficiency in
the project's time and cost. Treating short-haul transportation
construction industry drivers the same as long-haul commercial
truckers defies common sense. Correcting this misapplication of
federal requirements is the type of regulatory reform that all
sides claim to support. ARTBA stands ready to work with
Congress, FMCSA and other transportation agencies in this
important effort.
Thank you for this opportunity to offer the views of
ARTBA's members and the transportation construction industry.
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November 20, 2013
The Honorable Richard Hanna, Chairman
The Honorable Grace Meng, Ranking Member
Committee on Small Business, Subcommittee on
Contracting and Workforce
United States House of Representatives
Washington, DC 20515
Dear Chairman Hanna and Ranking Member Meng:
As family members who have lost loved ones in preventable
crashes involving truck driver fatigue and as representatives
of organizations working for twenty years to improve truck
safety we are writing to provide the following information
regarding the safety issues related to the Committee on Small
Business, Subcommittee on Contracting and Workforce's hearing,
WRONG WAY: The Impact of FMCSA's Hours of Service Regulation on
Small Business. We respectfully ask that this letter be
submitted to the hearing record since our request to testify on
this important safety issue was denied.
Our organizations have a long history of involvement and a
detailed understanding of the troubled hours of service (HOS)
regulation adopted by the U.S. Department of Transportation
(DOT). This letter is intended to provide the Subcommittee with
factual information regarding the controversial 34-hour restart
provision, and the amendments to the restart that were adopted
by U.S. DOT in the 2011 HOS final rule. Despite assertions that
the current HOS rule is not working well or is inefficient, the
HOS rule changes adopted in 2011 were calculated to reduce
truck driver fatigue, which remains a serious safety problem
for truck drivers as well as the motoring public on our
highways. In part due to the adoption of the restart in 2004,
allowing an insufficient 34 hours of rest between weekly
driving tours of as long as 80 or more hours, studies have
found that a substantial percentage of truck drivers admit to
high levels of fatigued driving and actually falling asleep
behind the wheel.
Just last week the U.S. DOT released 2012 fatality figures
showing an increase in deaths and injuries last year. For the
third consecutive year, truck crash fatalities increased,
representing a 16 percent increase in crash deaths since 2009,
and including a 9 percent increase in fatalities to large truck
occupants compared to 2011. Truck driving remains one of the
most dangerous occupations in the United States today and
fatigue is a major safety problem. Reliable estimates indicate
that fatigue is a factor in at least 13 percent and as many as
31 percent of large truck crashes.\1\ The excessively long
driving and working hours allowed have led many to refer to
truck driving as ``sweatshops on wheels.'' The restart
provision adopted by the FMCSA is a modest but important
improvement. Efforts to repeal this provision will only
contribute to truck driver fatigue and crashes that result in
needless deaths and injuries.
Background
Driver fatigue has been a major safety concern under the
HOS rules since they were first adopted in 1937. Even though
that rule limited drivers to just 10 consecutive hours of
driving without a rest break, and did not permit a ``reset'' or
``restart'' during the week, driver fatigue and driving while
tired were recognized as serious safety problems that led to
countless fatal and injury crashes. The 1995 National Truck and
Bus Safety Summit, sponsored by the U.S. DOT, convened experts
and stakeholders to discuss all aspects of truck operations and
safety issues. The participants, including truck drivers,
representatives of motor carriers, researchers, members of the
safety community, victims and survivors of truck crashes and
government officials, concluded that driver fatigue was the
number one safety problem in the trucking industry. That same
year, Congress enacted section 408 of the Interstate Commerce
Commission Termination Act (ICCTA) which required DOT to deal
with fatigue-related issues and adopt necessary
``countermeasures for reducing fatigue-related incidents and
increasing driver alertness[].'' \2\
Despite the congressional directive to reduce fatigue and
improve driver alertness, in 2003 the Federal Motor Carrier
Safety Administration (FMCSA), the U.S. DOT modal
administration with jurisdiction over HOS regulation, adopted a
final rule that increased the maximum limit on consecutive
driving from 10 to 11 hours and, for the first time, instituted
the experimental 34-hour restart that effectively reduces the
end-of-week rest and recovery period for drivers who use up
their weekly driving hours before the end of the week. Both of
these changes to the original rule exacerbate driver fatigue,
but the 34-hour restart adds to weekly cumulative fatigue, or
sleep debt, that drivers suffer from when driving on short
sleep from shift-to-shift and from week-to-week.
The danger posed by the 34-hour restart is that it
undermines what was previously a hard number weekly driving cap
of 60-hours for drivers on a 7-day schedule, or 70 hours for
drivers on an 8-day schedule. Instead, the restart permits
drivers to reset their accumulated weekly driving hours to zero
and start a ``new'' driving week, at any point during the work
week they choose, after taking only 34 hours off-duty. This
permits drivers who use the restart provision to cram an extra
17 hours of driving into a 7-day schedule, actually operating
their trucks for up to a total of 77 hours in seven calendar
days instead of the stated limit of 60 hours. Drivers operating
on an 8-day schedule can drive an extra 18 hours in 8 days for
a total of up to 88 driving hours instead of the legal limit of
70-hours. While short 34-hour restart permits drivers to drive
these extremely long tours of duty and to work over 80 hours
per week, the short restart limits a driver to just 24
additional hours off-duty in which the driver is expected to
get enough rest to overcome built-up cumulative fatigue. These
hours of working and driving, week after week, month after
month, are dangerous and deadly compared to the typical 40 hour
work-week of the average American.
As a result, the 34-hour restart is often used to truncate
the extended off-duty time that long-haul drivers need to
recover from their weekly work cycle. The repeated use of the
restart permits truckers to drive and work excessive hours and
to get insufficient time off duty to compensate for the build-
up of cumulative driver fatigue. Instead of having a full
weekend of 48 to 72 hours off-duty for rest and recovery, as
was required under the previous HOS rule,\3\ the 34-hour
restart permits drivers to trade rest time for extra driving
hours in order to accommodate freight scheduling at the cost of
driver health and safety. Fewer hours of rest and more hours of
driving and work dramatically increase truck driver crash risk
exposure.
In a 2004 decision, the U.S. Court of Appeals for the
District of Columbia Circuit rules against the agency because
it found that the 2003 HOS final rule contradicted both the
scientific evidence and research regarding fatigue, and the
agency's own findings of fact, and because the agency neglected
to analyze the effect of the rule on driver health.\4\ The
Court ruled that, by ignoring the mandatory issue of driver
health, the HOS final rule violated federal law and had to be
vacated. The Court went on to state that there were serious
problems with the agency's rationale for failing to address the
inherent problem of cumulative fatigue in allowing drivers to
take as few as 34 hours off-duty to rest between weekly driving
tours of duty. The Court stated that ``the agency's failure to
address [the increase in the number of weekly driving hours] .
. . makes this aspect of the rule's rationality questionable.''
\5\
After the 2003 HOS rule was adopted, larger numbers of
truck drivers admitted to driving while tired and to falling
asleep at the wheel. Nearly 48 percent of drivers admitted that
they had fallen asleep while driving in the previous year.
About 45 percent of the drivers said they sometimes or often
had trouble staying awake while driving and about 13 percent
reported that they often or sometimes fell asleep while
driving. Nearly two-thirds of drivers, 65 percent, reported
that they often or sometimes felt drowsy while driving. A third
of the drivers reported that they became fatigued on a half or
more of their trips.\6\
2011 Amendments to Improve Safety of the Restart
In the 2011 HOS final rule, FMCSA partially addressed
safety concerns with the restart provision in two ways. First,
it limits use of the restart to once every 168 hours (one
calendar week). Thus, the rule limits the number of consecutive
weeks with extensive weekly driving hours but only for those
drivers operating on a 7-day work schedule. These drivers, if
they are pushing the schedule by continually alternating 11
hour driving shifts with 10-hour off-duty periods, are
constrained from taking the short, minimum 34-hour restart two
weeks in a row. This means that if a driver drives and works as
many as 70 or up to 80 hours in one week, the driver will be
required to take more than the minimum 34 hours off duty in the
following week.
This requirement ensures that drivers operating at or above
the legal limits of the HOS, and who have highly fatiguing
schedules, will be required to take an extended period off-duty
at the end of every other week. While not optimal from a safety
standpoint, at least it ensures that drivers operating on a 7-
day schedule who suffer from cumulative fatigue will get an
extended off-duty period once every two weeks. While this is
not sufficiently safe, which is why our organizations have
criticized the restart provision, at least the 168-hour limit
of the use of the restart keeps drivers from continually using
the short 34-hour restart every week, week-in and week-out.
The FMCSA acknowledged the need to curtail excessive
driving and work hours in stating that ``[t]he purpose of the
[168-hour provision] is to limit work to no more than 70 hours
a week on average. Working long daily and weekly hours on a
continuing basis is associated with chronic fatigue, a high
risk of crashes, and a number of serious chronic health
conditions in drivers.'' \7\
These findings of fact were based on the agency's review of
the applicable scientific research and available studies.
Second, the 2011 final rule improves safety by requiring
that the restart rest period include two night-time rest
periods between 1 a.m. and 5 a.m. This ensures that drivers
will be able to take two periods of off duty time in which to
obtain sleep under optimal conditions (at night and in sync
with the natural human circadian rhythm). In 2000, the FMCSA
HOS notice of proposed rulemaking cited the scientific basis
for requiring drivers to have two nights off-duty:
...the research indicates that to negate the effect
of accumulated weeklong sleep deprivation and restore
alertness to the human body it is necessary to have at
least two consecutive nights off-duty that include the
periods from midnight to 6:00 a.m. For long-haul CMV
drivers, this ``weekend'' (i.e., a period to permit
recovery from cumulative fatigue, not necessarily
falling on a Saturday and Sunday) should be up to 56
hours long, but could be reduced to 32 hours as long as
that period included two nights covering two periods
from midnight to 6:00 a.m. The research suggests that
drivers may need even more nights off duty if they have
a severe sleep deficit.\8\
In proposing this limitation on the HOS rule in 2010, the
FMCSA cited work by Washington State University which
identified the fact that the 34-hour restart was effective for
daytime workers who obtained two nights of sleep but not for
night workers who received only one night of sleep. The agency
also cited other works which found that daytime sleep is less
restorative than nighttime sleep and that time spent sleeping
during the day is less restful than sleep taken at night even
when the same amount of time is available for sleep.\9\ The
research supporting these findings is based on human biology
and the need for nocturnal rest. Working drivers long hours and
with little and insufficient rest is unsafe and deleterious to
the health and medical well-being of truck drivers.
These two changes to the HOS restart requirements provide
added safety benefits for the traveling public because they
will reduce acute and cumulative driver fatigue and will
therefore result in fewer truck crashes, including fatal and
injury crashes.
Sincerely,
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