The Backdrop to a Great Debate Concerning the Trucking Industry

October 20, 2010

The Federal Motor Carrier Safety Administration ("FMCSA") is very busy these days, as it considers implementing changes to the hours-of-safety ("HOS") rules governing the driving times and rest periods of drivers of commercial motor vehicles.

This consideration has been long in coming. The present HOS rules, instituted during the Bush administration, made material changes to laws that had existed essentially untouched for decades. The rules increased the hours truckers may drive consecutively (from 10 to 11) and decreased from 50 to 34 hours the time required for a driver to be off duty after reaching a prescribed driving limit within a seven- or eight-day period. The HOS rules also contain a sleeper-berth provision mandating that a driver opting to rest in his or her truck spend at least eight consecutive hours in the sleeper berth, plus an additional two hours in the berth, off duty, or in some combination of the two.

There have been repeated legal challenges to the rules in recent years by safety and labor advocates who claim the HOS provisions adversely affect drivers' health and increase roadway accidents, and the FMSCA settled a third lawsuit with plaintiffs in October 2009. The case has been stayed pending the FMSCA's review and reconsideration of the rules. This process has involved soliciting the views of all interested parties in a series of public hearings over the past several months.

The stakes are high. It is widely viewed that the Obama administration favors a tightening of the rules and will be closely examining evidence showing any demonstrated impact the rules have had on safety since the HOS provisions changed in 2003.

The trucking industry and other supporters of the relaxed provisions welcome the scrutiny, maintaining that the rules have actually promoted safety by reducing crashes and decreasing both injuries and fatalities. The American Trucking Association ("ATA") contends that a return to shorter driving times will not improve safety; moreover, it would be economically detrimental to an important industry and its workers.

Statistics on the FMCSA website support the ATA's safety assertions. Both bodies rely heavily on a recent study completed by the American Transportation Research Institute (ATRI) that compares 2009 safety data to 2004 data. A look at this study is informative.

The ATRI Hours-of-Service Rules Safety Impacts 2010 Analysis

ATRI's latest study is part of a more comprehensive HOS rules analysis that the Institute initially undertook in 2004, which has been cited by FMCSA. The 2010 report - which was commissioned by ATA - examines the safety impact of the HOS rules on the commercial trucking industry. The study solicited 2009 safety and driving-time information from approximately 260 commercial carrier companies and more than 127,000 drivers.

The most noteworthy commercial vehicle findings, comparing 2009 to 2004, are these:
- Total collisions per million miles decreased 11.7 percent
- Total driver injuries decreased 1.6 percent, a "statistically significant" number
- The great majority (87 percent) of collisions occurred within the first eight hours of driving
- Only one percent of collisions occurred after 11 hours of driving

These statistics facially and strongly support the ATA's stance that the present HOS rules have improved trucking safety and that an increased allowance in driving hours has had a negligible effect on accidents. In step with their conclusion is this recent input from the U.S. Department of Transportation: According to DOT, fatalities from truck accidents declined 12.3 percent in 2008 from 2007, the largest drop in one year ever recorded, with 2008 also marking the fifth consecutive year that trucking-related deaths have dropped.

The Sleeper-Berth Issue

This matter was not considered in the ATRI study, but has been raised repeatedly by the ATA and truckers of affiliates and member companies, who strongly urge a modification to the sleeper-berth provision in FMCSA's HOS regulation.

The argument goes like this: requiring all truckers to adhere to the same rigid sleeping regimen in their berths is non-sensical and, often, counterproductive. It completely ignores a host of differentiating factors among drivers and, rather than promoting safety, actually increases highway danger.

Proponents of change say that it needs to be more flexible, taking into account that truckers' body clocks are not easily synchronized with a hard-and-fast sleep rule. The ATA states that a better FMCSA focus would be on the following:
- Training and screening related to sleep-disorder awareness
- Promoting fatigue risk management programs
- Evaluating fatigue-detection devices
- Increasing the availability of truck parking on busy roadways
- Developing processes that better inform drivers of parking locations

The Road Ahead for HOS Rule Reconsideration

Public comment on the HOS rules recently came to a close, with the last of five listening sessions held in various locations across the country. The next step in the rulemaking process will be FMSCA's issuance of a notice of proposed rulemaking followed by a final rule being published within a year after that.

The outcome is important to many, as evidenced by a public debate that has featured impassioned advocacy from interest groups spanning a wide spectrum of American society. Supporters of the present rules and those seeking change will both be watching closely as the time nears for the FMCSA to act.

Article provided by Rosen Law Firm, LLC
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