June 15, 2011: Proposed hours of service (HOS) regulations currently being promulgated by the Federal Motor Carrier Safety Administration (FMCSA) to improve driver safety are unnecessary and could prove costly to small trucking businesses, lawmakers and witnesses told a House panel June 14.

During a hearing of the House Small Business Committee's Subcommittee on Investigations, Oversight, and Regulations, witnesses unanimously opposed the proposed rule that among other things, limits the time drivers spend behind the wheel to either 10 or 11 hours. Currently, drivers are limited to 11 hours behind the wheel.

Leading the attack on the proposed rule, Subcommittee Chairman Mike Coffman (R-Colo.) said that there has been a significant decline in large truck crashes since new HOS rules were implemented in 2003.

Since then, Coffman said, there has been a reduction in fatal truck-related crashes by more than 33 percent and a decline of crashes resulting in injury by 40 percent.

“Despite these major improvements in driver safety, the FMCSA has now proposed complicated and cumbersome travel requirements for drivers meant to increase truck safety by reducing the daily maximum driving limit, decreasing the maximum on-duty time limit, and requiring mandatory breaks,” Coffman said. “The decreased instances of crashes involving commercial trucks over recent years begs the question: ‘Is this new rule really necessary?'”.

Coffman said the new regulations could cost the small trucking industry $2.5 billion annually in lost revenue.

“The failure of the agency to take into account the significant improvements in driver safety over the last seven years has the potential to not only cost small businesses billions, but also lead to an increase of new and inexperienced drivers on the road to fill the employment holes created by the proposed rule,” he said.

Legal Challenge to Earlier Rule

The proposed rule, issued in December 2010 (247 DLR A-9, 12/27/10) following a legal challenge to a version proposed two years earlier, would, among other things, limit repeated use of a 34-hour “restart period” for calculating when drivers may begin driving again after a shift.

The rule would change the current regulation, which was promulgated in 2003 and took effect in 2004.

The Bush administration proposed revisions to the rule in 2008 that would have increased the number of hours truckers could drive in a workday, and that was challenged in federal court by a coalition made up of the International Brotherhood of Teamsters and several safety advocacy groups.

The U.S. Court of Appeals for the District of Columbia Circuit agreed to hold the rule in abeyance pending the release of a new proposed rule, when the plaintiffs and the agency reached a settlement agreement in October 2009 (206 DLR A-13, 10/28/09).

In releasing the revised rule in December, FMCSA said the new proposal would improve driver safety and health, lessen fatigue, and improve highway safety, among other benefits.

Rule Details

The proposed rule would limit the time drivers spend behind the wheel to either 10 or 11 hours, and would continue to require drivers to remain off duty for a minimum of 10 consecutive hours between shifts.

Under the rule currently in effect, drivers are limited to 11 hours behind the wheel, and FMCSA said it was considering again lowering the limit to 10 hours. Drivers were limited to 10 hours of driving time prior to 2003.

In addition, the proposed rule would maintain the current “driving window” of 14 consecutive hours after coming on duty following a break of at least 10 hours. A driver, however, would be permitted to be on duty for only 13 hours of that time as opposed to the current 14 hours. The on-duty time not spent driving includes such activities as waiting for cargo, having cargo unloaded, meals, and rest breaks.

Twice a week, to provide additional rest for drivers or to “respond to unanticipated conditions,” drivers would be allowed to extend the driving window to 16 hours, according to the proposed rule, but they would be required to take three hours of breaks.

The proposed rule also would leave unchanged the current rule's weekly limits for drivers of 60 hours on duty in a seven-day period, or 70 hours in eight days. The 34-hour restart allowed under the current rule, which permits drivers to restart the 60- or 70-hour “clock” by taking a break of at least 34 consecutive hours off duty, also would be retained, although it would require the restart period to include two periods between midnight and 6 a.m., and would prohibit drivers from taking another restart break prior to seven days after the last one.

‘Negative Impacts.'

Paul James, president of Denver-based Rex Oil Co., testifying on behalf of the Petroleum Marketers Association of America, said that his group opposes any reduction in the maximum daily drive time.

“A one-hour reduction as proposed would have negative impacts on drivers and small business petroleum transporters,” James said.

First, he said the reduction would hurt drivers who are largely paid at an hourly rate, and who thus would face reductions in their paychecks.

Second, he said the reduction in maximum daily driving hours would drive costs up for small business petroleum transporters. With fewer hours to drive each day, many companies, James said, would be forced to hire additional drivers or delay deliveries to the following day.

James said his group believes the proposed changes should not apply to short haul drivers.

“Fatigue is a less significant factor among short haul drivers as opposed to long haul drivers with sleeper berths that travel long distances for days on end along the nation's interstate highways,” James said.

Teamsters, Safety Advocates, Support Rule

While no witnesses were present at the hearing to defend the proposed changes, the International Brotherhood of Teamsters and highway safety advocates, such as the Advocates for Highway and Auto Safety, Public Citizen, and the Truck Safety Coalition, have jointly said they agreed with many parts of the proposed rule, but that their support was “contingent on the restoration of the 10-hour limit on the number of consecutive hours of driving permitted in each work shift,” which, the groups pointed out, was “the same limit that had been in place for 65 years from 1938 until 2004.”

In comments to the FMCSA in March, IBT and the safety groups said the proposed ban on using the 34-hour restart period more than once every seven days or 168 hours “would prevent long haul, truck load and other drivers on intensive and irregular schedules—from taking only the minimum 34-hour off duty restart on a regular basis” (54 DLR B-1, 3/21/11).

‘Negative Impact' on Small Businesses

Continuing the attack on the proposed rule, James Burg, president of Michigan-based James Burg Trucking Company, testifying on behalf of the American Trucking Associations, said the proposed changes would have a “profoundly negative impact” on small businesses, would restrict productivity, and would result in greater congestion and increased emissions.

“These proposed changes come at a time when the pool of qualified drivers has shrunk, the cost of purchasing equipment and maintaining new equipment has risen, and general operating costs have been climbing,” said Burg.

If the rule is finalized, Burg said he would need to add additional trucks and drivers simply to counter the loss in productivity.

“By my estimates, we would need to increase our retained earnings by between 20 percent and 25 percent just to maintain our current level of financial stability,” he said.

Rusty Rader, of Pennsylvania-based J.J. Kennedy, Inc., testifying on behalf of the National Ready Mixed Concrete Association, said while the current HOS regulations are not perfect, the rules are “manageable and much more flexible for operations.”

“The less time ready mixed producers spend with ‘bureaucratic overhead,' the more time they can spend pouring concrete, employing more people and building America's economy,” Rader said.

By Derrick Cain for BNA Daily Labor Report