Monday, April 23, 2018

More restrictive restart provision appears to be history

Thursday, March 9, 2017
by LYNDON FINNEY/The Trucker Staff

The pre-July 1, 2013, rule, which now becomes the permanent rule, allowed unlimited use of the restart and does not require the two consecutive overnight periods. (Courtesy: OMNITRACS)
The pre-July 1, 2013, rule, which now becomes the permanent rule, allowed unlimited use of the restart and does not require the two consecutive overnight periods. (Courtesy: OMNITRACS)

WASHINGTON — The so-called July 1, 2013, 34-hour restart provision that required two consecutive overnight periods and could be used only once a week is history.

Less than one week after the Department of Transportation’s Office of the Inspector General sent a letter to the DOT and several members of Congress saying that based on a Congressionally-mandated study the 2013 rule did not explicitly identify a net benefit from the use of the two suspended provisions of the restart rule on driver operations, safety, fatigue and health, the Federal Motor Carrier Safety Administration passed on the report to Congress.

The July 1, 2013, rule required two consecutive 1 a.m. to 5 a.m. overnight periods and allowed the use of the restart provision only once a week.

The pre-July 1, 2013, rule, which now becomes the permanent rule, allowed unlimited use of the restart and does not require the two consecutive overnight periods.

Congress first mandated the study in December 2014 in the Consolidated and Further Continuing Appropriations Act, 2015, which also suspended the 2013 rule and replaced it with the pre-July 1, 2013 version.

Congress further reiterated the mandate in the Further Continuing and Security Assistance Appropriations Act, 2017, which was a continuing resolution extending funding for the federal government through April 28, 2017.

FMCSA on Wednesday sent the final report on the restart provisions to Congress.

Here is the agency's final conclusion to the report:

“The study was not able to demonstrate conclusively that the restart rule that went into operational effect on July 1, 2013, provided “a greater net benefit for the operational, safety, health and fatigue impacts” compared to the restart rule in operational effect on June 30, 2013. Because the study did not demonstrate that the revised restart rule satisfied even the initial outcome requirements in section 133 of The Act, FMCSA has elected not to re-open the study to assess the additional outcome requirements of the Further Continuing and Security Assistance Appropriations Act, 2017.”

Translation: The July 1, 2013, restart rule is dead in the water.

It is considered a victory for trucking interests who have railed against the July 1, 2013, restart provision since it first appeared in the December 2010 Notice of Proposed Rulemaking on Hours of Service, and became official when the final HOS rule was issued in December 2011 along with the July 1, 2013, implementation for that portion of the HOS rule.

“As we expected, the restrictions imposed by the Obama administration in 2013 yielded no safety benefit to America’s truck drivers. Had the agency undertaken a more data-driven, inclusive rulemaking process at the time, this long and largely unnecessary process could have been avoided," said Chris Spear, president and CEO of the American Trucking Associations. “That said, this study does highlight an important issue — that there is a need is a need to identify ways to increase the amount of time drivers spend sleeping within the 10 consecutive hours of off-duty time,’ under the current Hours of Service rules. We agree, and while there is no way to regulate or mandate what a driver does on their off-duty time, it is why ATA is supportive of initiatives like the North American Fatigue Management Program and similar efforts to educate drivers and work with them on managing fatigue and getting sufficient rest. We look forward to working with FMCSA and DOT on these efforts."

The decision has to be a defeat for safety advocates and unions who fought to keep the July 1, 2013, provision intact.

There are some in the trucking industry who feel the more restrictive restart rule was including in the 2011 final rule as an olive branch to safety advocates who wanted the FMCSA to reinstitute the 10-hour driving day, which had been in place prior to a major overhaul of HOS in 2003-2004.

The 2011 rule maintained the 11-hour driving day.

Teamsters General President James P. Hoffa blasted the report.

“The DOT inspector general signed off on a study which had been rigged by the trucking industry from the start. Their friends in Congress attached a rider to a spending bill which dictated the parameters of the study in order to ensure its outcome. DOT had to reach a very high evidentiary bar while examining limited data, and in turn came to a conclusion which runs counter to what Teamsters and common sense knows to be true, that more rest for drivers means greater safety.

“The rollback of these rules is short-sighted and one that could jeopardize the lives of Americans traveling on the nation’s thoroughfares. Truckers, like most of us, do their job better when they get proper rest. That was more likely under the HOS rules originally approved in 2013 that required drivers to take two nighttime breaks during a 34-hour period and only use their restart once a week. But lawmakers continued the process of pushing drivers to the limit, by continuing the suspension of these rules as part of the approval of a budget continuing resolution last December.

“The consequences of curtailing rest breaks could be quite real. Already, nearly 4,000 lives are claimed each year on U.S. highways in accidents involving tractor-trailers. And in the most recent available numbers from 2013, 97 percent of vehicle occupants killed in two-vehicle crashes involving a passenger vehicle and a large truck were occupants of passenger vehicles.”

What is frustrating to trucking stakeholders is the fact that the report sat in the office of then Secretary of Transportation Anthony Fox 14 months before it was submitted to the OIG, time that could have been spent on other advocacy issues.

The agency had wasted little time in getting the study under way. The study was approved in February and March of 2015, recruitment of drivers to participate in the study concluded in April 2015, data collection ended in September 2015, and the report was sent to Foxx in December that year.

”It’s unfortunate they came out with the report 14 months after it was complete because the manpower alone dedicated to resolving this issue was astounding since all that time we could have focused on moving the needle on other issues that are equally important, issues that have been bogged down such as autonomous vehicles, hair testing, drug and alcohol clearinghouse … you name it … all caught in a logjam because of something that could have been fixed long ago,” said Dave Heller, vice president of government affairs for the Truckload Carriers Association.

When the OIG issued its reported Sunday, Heller said the restart study had been saying for years, that requiring the two 1 a.m. to 5 a.m. time periods and limiting the use of the restart to once a week didn’t hold any net benefit for the industry.

According to the report, the study:

  • Compared work schedules and assessed operator fatigue for two groups of drivers — those operating under the original restart provisions and those operating under the July 2013 restart provisions — each large enough to produce statistically significant results.
  • Compared work schedules and assessed safety-critical events and operator fatigue between drivers from a statistically significant sample of drivers comprising fleets of all sizes (e.g., long-haul, regional and short-haul operations) in various industry sectors, including flatbed, refrigerated, tank, and dry van to the extent practicable.
  • Assessed driver safety-critical events, fatigue, levels of alertness and driver health outcomes by using both electronic and hard copy records-of-duty status.
  • Used data from electronic logging devices to the extent practicable, and
  • Developed a plan and final report subject to independent peer review by a panel of individuals with relevant medical and scientific expertise.

The trucking industry has been at odds with FMCSA since the agency first revealed in December 2010 that it was recommending the restart rule be changed to include the two consecutive time periods and the once-a-week restriction, but to no avail, and the new provision went into effect July 1, 2013.

Two hundred thirty-five drivers participated in the study — 43 from small, 73 from medium-sized carriers and 119 from large carriers.

Of those, 187 were long-haul drivers, 31 were regional drivers and 17 were short-haul drivers.

One hundred thirty were dry van drivers, 35 were flat-bed drivers, 59 reefer were drivers and 11 were tank drivers.

During the study, drivers were monitored for up to five months, permitting up to 32 duty cycles (observational periods), each of which constituted a unique sampling unit for analysis. Each sampling unit was defined to include the restart period and the duty or non-restart period. The study team recruited CMV drivers who indicated they routinely drove duty cycles that involved one of the two restart provisions.

In total, 235 individual CMV drivers provided more than 3,000 restarts for analysis. Male drivers comprised 95 percent of the sample (mean age: 45 years; range: 22–67 years). Female drivers comprised 5 percent of the sample (mean age: 42 years: range: 26–56 years). All participating drivers were asked a series of questions about their health to identify whether there were any medication or health issues that could have an impact on their levels of fatigue or alertness. Participating drivers provided a total of 26,964 days of data (17,628 duty days and 49,336 restart days) and drove a total of 140,671 hours during this field study. Each driver received compensation for participating in the study.

The final report is in stark contrast to a January 2014 release of a field study the agency conducted involving 106 participants, 1,260 days of data and nearly 415,000 miles of driving that were recorded by the truck-based data acquisition systems.

Less than half the participants were long-haul drivers.

The agency said the study proved that the provision would reduce fatigue and improve safety in the trucking industry.

The agency said that real world, third-party study provided further scientific evidence that the more restrictive restart provision for truck drivers was more effective at combating fatigue than the one in force now. 

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