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House hearing on new HOS ‘contentious;’ trucking, Congressmen question common sense of rule

Subcommittee chair Rep. Chairman Thomas E. Petri, R-Wis., said the Highways and Transit Subcommittee would continue to urge the administration to hold off on implementing the rules until the court has finished deliberations and announced its decision.

By LYNDON FINNEY
The Trucker Staff

6/18/2013

WASHINGTON — Thirty months after the notice of proposed rulemaking was issued, 18 months after the Final Rule was issued and two weeks before the compliance date for two new key and controversial provisions, the House Subcommittee on Highways and Transit of the Committee on Transportation and Infrastructure gathered together six Hours of Service stakeholders in one room and to no one’s surprise, heard the same story lines that the trucking industry has been hearing since the Federal Motor Carrier Safety Administration released in December its ideas for the most sweeping changes in the rule since 2004.

In what subcommittee chair Rep. Chairman Thomas E. Petri, R-Wis., summed up as a “civil, but somewhat contentious” hearing on “The Impacts of DOT’s Commercial Driver Hours of Service Regulations,” lawmakers heard:

• An Obama administration official say the new rule would reduce fatigue among the nation’s truck drivers and thus reduce accidents and save lives.

• Trucking industry representatives say the new provisions would reduce productivity and reduce flexibility.

• Law enforcement officials say the new rule would be more difficult to enforce at the roadside without the use of electronic logging devices, and

• Safety advocates say that the new rule fails to ensure that all truck drivers, regardless of their schedules, could not continually use the 34-hour restart provision to maximize driving hours.

“I thought the hearing clearly showed the concerns, frustrations and questions that lawmakers and industry leaders have with the upcoming rules and hope that the administration took note of the comments that were made today,” Petri said in a statement to The Trucker Tuesday afternoon. “As I mentioned during the hearing, the rules allow little to no flexibility in their enforcement, especially for the different types of drivers out there and the work demands. For instance, long-haul drivers have different concerns than short-haul drivers.”

Petri said the Highways and Transit Subcommittee would continue to urge the administration to hold off on implementing the rules until the court has finished deliberations and announced its decision.

“The Subcommittee and the full Committee will be closely watching the implementation process and hearing feedback about how the rules are affecting those in the industry because it seems like there is a divide on how the rules will affect things in theory and in reality,” Petri said.

During his opening remarks, Petri noted that the real world implications of the new regulations are difficult to predict because of the diverse nature of the trucking industry.

“I’m receptive to the concerns of many of my constituents who argue that a one-size-fits-all approach won’t provide the flexibility some companies need to take the appropriate rest breaks,” he said. “For example, I have been asked, if a driver is resting in a chair while waiting for a load to be unloaded or for some other reason and is technically on-duty but undisturbed for 30 minutes, why can’t such a break be counted toward the 30 minute break requirement?  Some specific trucking operations, such as oil field equipment operators, have a special exemption from some provisions of the Hours of Service regulations, but why not others with similar operating characteristics?” 

Petri said he most frequently hears concerns that driving is just one small part of the overall job responsibilities and that the rule will impact more than just long-haul drivers.

“For instance, I have heard from hundreds of drivers in Wisconsin who transport materials and equipment for highway construction who drive only two or three hours during a work day, but seemingly will be very much affected.  Not only will the drivers themselves be impacted, but how our highway projects are completed will be affected as well.”

The portions of the new rule that will be enforced starting July 1 include (1) changes to the 34-hour restart that limit use of the restart to once every 168 hours and require any restart to include two consecutive 1 a.m. to 5 a.m. time periods and (2) requirement of a 30-minute break no more than eight hours after coming on duty.

However, an appeals court could halt that enforcement if it overturns the new rule as it has been asked to do by both trucking interests and safety advocates.

The court heard oral arguments March 15 on petitions for a review of the rule, but had not issued its ruling as of Tuesday.

During the hearing, some Congressmen and witnesses called on the Department of Transportation to delay enforcement of the new provisions until after the court ruled but DOT and FMCSA have denied those requests.

FMCSA Administrator Anne Ferro said during the hearing she expects the court to uphold the rule.

“The HOS rule limits the use of the ‘34-hour restart’ to once a week [and] thus limits a driver’s work week to an average of 70 hours in seven days, compared to the current rule, which allows up to approximately 82 hours when the restart is used more than once in a seven-day period,” Ferro testified.

“The agency took this action because FMCSA research shows that working long daily and weekly hours on a continuing basis is associated with chronic fatigue, a high risk of crashes and a higher risk of death for drivers. The new restart provision does not affect drivers averaging 60 hours or less per week of work time. For those 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 two-night restriction in the restart provision. The impact of the restart for drivers working an average of 80 hours per week is estimated to result in an average loss of 8.7 work hours per week.”

In his testimony, Steve Williams, chairman and CEO of Maverick USA and who was appearing on behalf of the American Trucking Associations, said the upcoming changes are costly and unsupported by data or research.

Williams cited an ATRI report that found “statistically significant” declines in the number of crashes under the basic framework of the current rules. Specifically he pointed to a 31percent drop in preventable collisions between 2004-2009.

“The industry will lose operating flexibility and productivity, and the rules will increase driver stress and frustration,” he said, noting that an estimated 1.5 percent to 4 percent reduction in productivity will translate to “between $500 million and $1.4 billion in lost productivity.”

Williams cited data from his own company which showed that between February and July 2012 Maverick drivers utilized 25,230 restarts; 13,761 (54 percent) met the new two consecutive 1 a.m. to 5 a.m. rest period requirement and that an additional analysis of 148,037 days of electronic logs showed that 44,106 (30 percent) of the logs would be in violation of the new working more than eight hours without a consecutive 30-minute break requirement.

Edward Stocklin, a professional owner-operator who testified on behalf of the Owner-Operator Independent Drivers Association, said the rule would curtail flexibility that is so necessary for today’s trucking environment.

“Flexibility for a truck driver is critical, as one small thing can have a significant impact on our schedule and quickly turn a profitable load into one that costs us money if we do not make the right decisions,” Stocklin testified. “Flexibility does not mean, however, that truckers drive when they are tired or without sufficient rest. Instead, flexibility means giving me, the professional truck driver, the ability to drive or take rest when I am best able to get the rest I need and when I am best positioned to operate my truck safely and efficiently.

What are some of those unpredictable factors that can impact a schedule? Most of us can think of several without much effort: an accident, a breakdown, unscheduled construction, or bad weather that forces me to pull off the highway. Further, for a trucker there are many other factors and challenges that can impact our day and our ability to operate both profitably and safely.”

Stocklin cited the prospect of waiting at a shipper or receiver as “one of the most significant” challenges drivers face today.

Joan Claybrook, consumer co-chair of the Advocates for Highway and Auto Safety and former administrator of the National Highway Traffic Safety Administration, said more improvements in the HOS rule were necessary because studies  have found that since the current rule went into effect nearly 48 percent of drivers admitted in an FMCSA study that they had fallen asleep while driving during the previous year, about 45 percent said they sometimes or often had trouble staying awake while driving, 13 percent reported that they often fell asleep while driving, 65 percent reported they often or sometimes felt drowsy while driving, and a third reported that they became fatigued on a half or more of their trips.

She said while the new rule makes several changes that will save lives — namely the new restriction on the restart and the 30-minute break — “it fails to address the serious underlying major sources of driver fatigue.”

One of those, she and safety advocates have long contended, is the 11-hour driving limit, which was raised from 10 hours.

Claybrook called it the most dangerous hour of driving.

Williams took issue with her statement, saying that only about 1 percent of fatal accidents occur during hour 11 of driving.

From the standpoint of the Commercial Vehicle Safety Alliance, while the new rules are fairly straightforward, “we do believe that several provisions will create enforceability challenges,” Maj. Mark Savage, CVSA president and officer in the Colorado State Patrol, said. “The three major regulatory changes — the  34-hour  restart  provision, the 30-minute  rest break requirement, and the new definition         of 'on-duty' time, provide  greater opportunity for concealment and misrepresentation of Hours of Service by drivers and carriers who are so inclined. These changes have the effect  of shortening  the  driver's  work  day and work  week, creating  more  incentive  for  some to falsify.

“Furthermore, the new rules will require more time and effort from the enforcement community to identify inconsistencies and concealed hours within a driver's record-of-duty status. The new Hours of Service rules will be more difficult to enforce roadside because the rules expand, rather than reduce, opportunities for concealing hours.”

The implementation of electronic logging devices will help to alleviate some of the concerns  regarding the enforceability of the  new rules,  but drivers should still be required to maintain supporting documents in the cab, Savage said.

Jeffrey Hinkle, manager of transportation for Chandler Concrete Co. of Burlington, N.C., and a former official of the National Ready Mixed Concrete Association, said the 30-minute break requirement would be particularly hurtful to concrete haulers.

“This new provision is by far the most over burdensome and difficult for the ready mixed concrete industry,” he said. “Ready mixed concrete drivers typically spend far less than 50 percent of their on-duty time actually driving (roughly only 2-6 hours per day); the other

50 percent to 75 percent is spent at the plant waiting to be dispatched, at the jobsite waiting for the contractor to receive the concrete, unloading concrete, and performing other administrative duties. Companies need to have the flexibility to give breaks as the schedule dictates throughout the day.”

Hinkle’s testimony brought some Congressmen to question whether there should be special accommodations in the rule for industries such as concrete haulers.

Ferro noted that some exemptions to the rule are granted.

In the recent years, 10 requests for exemptions were made, but only two or three were granted.

 The Trucker staff can be reached to comment on this article at editor@thetrucker.com.

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