The long awaited Hours of Service changes have been announced. FMCSA has published the Notice of Proposed Rulemaking. We're devoting this issue to analyzing the changes and some of the possible effects. The bottom line is that work hours have been cut and some of the scheduling flexibility of the current regulations are now gone.

In 2003 the hours of service for property carrying vehicles underwent significant modifications. These changes prompted Public Citizen and others to challenge the Federal Motor Carrier Safety Administration (FMCSA) in court. Several court rulings sided with the plaintiff's view that FMCSA did not meet its statutory obligation to consider the effects of the regulations on the health of commercial motor vehicle (CMV) drivers. The two provisions that Public Citizen was most concerned with were the 11th hour of driving and the 34 hour restart. Last October both parties reached a settlement agreement that would put the court proceedings on hold allowing FMCSA time to publish a proposed rule (just published) followed by a final rule (no later than July 26th).

But is it really over?

Well, the short answer is it's too soon to tell. There are still several things in play. For one this is a Notice of Proposed Rulemaking (NPRM), not a Final Rule. It's subject to the standard comment period after which FMCSA will consider the data and comments gathered. The court settlement gives them until July 26th to publish the Final Rule. Also, since this is a proposed rule, not all of the issues are settled, and we'll discuss those. The most prominent of them is driving time: it could remain at 11 or be cut back to 10. Finally, Public Citizen could decide that they aren't happy with the results and return to court to once again litigate a solution.

FMCSA Goals

The preamble in the NPRM states three goals for the hours of service regulations:

• Improve safety by reducing fatigue in a cost-effective, cost-justified manner,
• The regulations do not have an adverse effect on driver health,
• The regulations should provide drivers with flexibility to encourage them to take rest breaks when they need them.

FMCSA states that the exact percentage of CMV crashes caused by fatigue is not known. Various studies have come up with figures as low as 1.5% (Fatal Truck Accident Data) up to 13% (Large Truck Crash Causation Study). FMCSA believes that the accident data understates the actual incidence of fatigue related crashes. In fact, in assessing the financial impact of this rule they have assumed that the percentage of crashes caused by fatigue is 13%. In order to drive down this number FMCSA decided to build into the regulations enough rest time so that drivers could achieve the recommended 7 - 8 hours of sleep per day. FMCSA believes that the current regulations do not allow a driver to regularly get that much sleep. In fact, one study showed that sleep time decreased as work time increased.

Truck drivers have to contend with sleep loss, long hours and sedentary work. All of these factors have a cumulative effect on health. FMCSA believes that by decreasing work hours and adding rest periods these adverse health effects can be reversed. In our last issue we discussed this topic. While a change in regulations may increase the time available for health maintenance, it will take positive action by both drivers and carriers to achieve positive results.

Comments Requested

It's standard procedure for FMCSA to ask for comments on a proposed rule, but this time there are some major points that are unsettled. FMCSA is asking for industry input in these areas:

• FMCSA is requesting statistically reliable data that would allow specification of relative crash risk for each hour of driving. It's interesting to note that a study done by the Virginia Tech Transportation Institute found no increase in risk between the 10th and 11th hour of driving. In fact, this study showed that the first hour of driving was the riskiest. FMCSA has stated that this study is not definitive because of the small number of drivers studied and the drivers knew they were being observed. Right now they're leaning toward a 10 hour driving limit but will consider leaving it at 11.
• Comments on whether the expanded driving window should be 15 hours instead of 16. Should this be allowed on consecutive days?
• Comments on whether or not duty hours should be reduced if 3 or more driving hours occur between midnight and 6am.
• Comments on increasing the 100 air mile logging exemption to 150 miles.
• Comments on what the compliance date should be after publication of the Final Rule in order to allow enough time for training, revision of software, and revising operating strategies.

Seven Changes

• Either 10 or 11 hours of driving. FMCSA prefers 10 but they'll wait for the comments.
• "Driving Window" of 14 hours remains. However, twice every 7 days (168 hours) the driving window can be extended to 16 hours.
• Duty time (combined on-duty and driving) is limited to 13 hours.
• Driving is permitted only if 7 hours or less have passed since the last off-duty or sleeper berth period of at least 30 minutes.
• 34 hour restart must include two periods from midnight to 6am. Restart period can start no sooner than 168 hours after the beginning of the last restart. Also the driver must specify on the log that this period is being used as a restart.
• "On-duty" is revised to exclude the following:
  1. Time spent resting in or on a parked vehicle
  2. Time spent resting in a sleeper berth
  3. Up to 2 hours in the passenger seat of a CMV while moving (applicable to team operation; must be either immediately before or after an 8 hour sleeper berth period)
• Oilfield operations exception language clarified such that waiting time is not included in calculating the driving window

The new regulation also amends the penalty schedule with the following: A driver who exceeds, and a motor carrier that requires or permits a driver to exceed, the 10/11 hour driving limit by more than 3 hours shall be deemed to have committed an egregious violation. FMCSA can impose a penalty up to the maximum permitted.

Expanded Driving Window

This proposed rule gives drivers the opportunity to have two 16 hour driving windows every 168 hours (7 days). Sounds good, but you're still only allowed 13 duty hours during that 16 hour window. Under the current rule this provision is reset after a 34 hour restart. Under the proposed rule this doesn't happen. Eligibility is determined by looking back over the last 168 hours. For example, suppose that last week a driver had two 16 hour days:

• starting at 6am on Tuesday
• starting at 8am on Thursday

Would the driver be eligible to have another 16 hour day the following Tuesday? The answer is, it depends on what time they start work that day. Under the 168 hour look back, if the driver starts working before 6am Tuesday then they would not be eligible to use the 16 hour driving window. The key here is that you're not looking at calendar days to determine eligibility.

34 Hour Restart

Let's take an example of a driver who normally works Monday through Friday and is off on the weekend. The driver's normal starting time is 4 am on Monday. This schedule allows ample time to utilize the 34 hour restart with two periods off duty from midnight to 6am (Friday night and Saturday night.). However, we all know that the volume of freight changes and sometimes our carefully crafted schedules must flex.

Suppose that this week the driver works on Saturday as well. The driver still has hours available and works until noon on Saturday and then begins the 34 hour restart. When can the driver begin working again? (Sounds like a story problem from school, doesn't it?)

Answer: 6 am Monday. Remember, the 34 hour restart must include two periods from midnight to 6 am. In this scenario the driver was required to be off for 42 hours.

Our driver hits the road at 6 am on Monday and works a normal week. The driver finished up the week on Friday at 6 pm. When can this driver start the 34 hour restart period?

Answer: Noon on Saturday. Why don't the hours from 6 pm Friday to Noon on Saturday count toward the restart? The proposed rule states that the 34 hour restart cannot begin sooner than 168 hours after the beginning of the previous restart. The previous restart began at Noon on Saturday so the next one cannot start any earlier than that. So, once again the earliest the driver can start work is 6 am on Monday.

How could this driver get back to his/her normal schedule of starting at 4 am on Monday? The only way is to not take a restart and then go back to work as scheduled on Monday at 4 am. The driver can then work subject to the 70 hours in 8 day limit. This could force a day off during the week depending on how many hours were available to work each day. After doing this, the driver could begin the 34 hour restart after finishing work on Friday since the elapsed time since the last restart will be well above 168 hours.

Keep in mind that one of the objectives of this proposal is to limit the number of working hours to avoid fatigue. In achieving that goal they have removed some of the scheduling flexibility that the current rules have. This is only a proposed rule and there's ample time for the industry to voice its opinion during the comment period.