It's interesting to note that the bulk of the Hours of Service changes don't take effect for 18 months. Is this possibly a reaction to the reality that there may be another court challenge? Since the regulations have been released neither the trucking industry nor the safety advocacy groups have been happy. Is this the sign of an attempt at a compromise?

Let's take a look at the two most controversial provisions:

1. Retaining the 11th hour of driving. Safety advocacy groups have long held that the 11th hour of driving is dangerous. FMCSA addressed this in the preamble by saying: "...the available (crash) data are not sufficiently robust to yield a statistically significant distinction between the crash risk associated with any two adjacent hours of work."
2. Retaining the 34-hour restart but adding two provisions.
   • Drivers can take only one every 7 days. This effectively takes drivers back to the 70-hour limitation, which is the stated intention of FMCSA.
   • The restart must contain two periods from 1 a.m. to 5 a.m. The purpose of this provision is to provide drivers who work nights two periods of restorative sleep to avoid prolonged sleep deprivation. The preamble states: "... virtually every healthy person is sleepy between 1 a.m. and 5 a.m. Sleep at that time is longer, less prone to interruptions, deeper and more restorative."

Who's happy? Who's not? Well, driving time wasn't cut and in doing so FMCSA pretty much nullified the safety advocates' claims that the 11th hour increased crashes. That makes the trucking industry and the ATA happy and takes away the plaintiff's safety argument. As far as the 34-hour restart changes, the safety advocates will certainly count that as a victory. One of their main complaints was the ability to use a restart to work in excess of 80 hours per week.

During the comment period the ATA submitted data that showed truck drivers averaging between 43 and 50 duty hours in 7 days. Their contention was that drivers were taking the restart not to maximize their work hours but rather to take extended off-duty periods. This data was intended to blunt the safety advocate's claim that truckers everywhere were using the 34-hour restart to work 80 hours per week.

This strategy may have backfired because in the preamble FMCSA says:
"The industry, in effect, made two contradictory arguments -- that the long hours allowed by the current rules are rarely used so that fatigue is not a problem and rule changes are not necessary, and that any reduction in those hours will have serious economic impacts. Both arguments cannot be true."

One other comment in the preamble seems to go right to the heart of the industry's argument that changes aren't necessary since the trucking industry's safety record has been steadily improving: "....the decline in crashes and crash rates for both trucks and cars started in the late 1970's...factors such as improved vehicle and road design are generally considered to have contributed to reductions."

FMCSA's stated goal was to reduce "excessively long work hours that increase both the risk of fatigue-related crashes and long-term health problems for drivers." If you remember that's where this all started. The original lawsuit claimed that the 2003 Hours of Service regulation failed to take into account the driver's health.

If there is a challenge by the industry will they be able to successfully argue that a workweek in excess of 80 hours is acceptable?
Is that something that the industry should be advocating? Is that really the path to profitability for companies and a reasonable way for drivers to earn a living wage?

Some observers have even called for Congress to get involved and legislate a solution. Based on all that's been happening in Washington it's doubtful that that's a route we want to go down.