FMCSA Says It May Miss HOS Deadline After Posting Four New Fatigue Studies

This story appears in the May 16 print edition of Transport Topics.

The Federal Motor Carrier Safety Administration last week placed four new driver fatigue studies into its hours-of-service docket and said the studies probably would cause the agency to miss a court-imposed July 26 deadline for posting its final hours rule.

“We still plan to issue a final rule this year and are going to try desperately to meet the settlement agreement deadline, even though it’s looking less likely that we will do so,” said Larry Minor, FMCSA’s associate administrator for policy and program development.

“But we are committed to doing the final rule this year,” Minor told a group of industry representatives at a truck and bus safety forum May 10 in Washington sponsored by the National Transportation Safety Board.

FMCSA also announced last week it is reopening the proposed hours rule docket to accept public comment until June 8 on the four new studies that it said were not completed in time to be included in the record when the agency first proposed the hours-of-service rule on Dec. 23.

Two of the new studies focused on truck driver fatigue, and two less in-depth studies focused on intrastate bus driver fatigue in Florida.

One of the studies concluded that although driving for 11 hours was not shown to increase crash risk compared with the 10th driving hour, if truck drivers drove late in their 14-hour shift, the risk of a “safety critical event” increased. That study was conducted by researchers at the Virginia Tech Transportation Institute who studied for four weeks 97 drivers who drove a total of 735,000 miles.

The other truck study, by the Larson Transportation Institution at Pennsylvania State University, said there was significantly elevated crash risk in the 11th hour of driving, but that study did not consider when during the workday the 11th driving hour occurred.

The two bus driver studies generally suggested that preventable collisions occur predominantly with drivers who have long driving schedules, but they noted the drivers who worked split schedules had the highest crash risk.

Before it reopened the HOS docket last week, FMCSA was working toward a final rule deadline of July 26, set by a federal judge.

The judge set the deadline after an agreement reached in October 2009 settled a lawsuit against FMCSA brought by several groups challenging the current HOS rule. Public Citizen, the Teamsters union and Advocates for Highway and Automotive Safety filed the lawsuit.

Some in the trucking industry said last week it seemed suspicious that FMCSA filed the studies so late in the rulemaking process.

“We are intrigued by today’s unusual announcement that the Department of Transportation is reopening its hours-of-service docket in order to insert into the record and seek comment on a number of DOT-selected studies,” Bill Graves, president of American Trucking Associations, said in a recent statement.

“ATA believes decisions about the future of this important regulation should be made based on sound science and research and not political pressure, but we’re clearly skeptical of new research that has been discovered or generated by DOT at the ‘11th hour,’ ” he said.

Joe Rajkovacz, regulatory affairs director for the Owner-Operator Independent Drivers Associations, called the FMCSA’s action “suspect.”

“Looking at bus drivers is so irrelevant to trucking,” Rajkovacz told Transport Topics. “They’re not covered by federal hours of service. It’s like trying to compare apples and oranges.”

Bus drivers who operate solely within the state of Florida are permitted to drive for 12 hours, provided that 16 hours of on-duty time is not exceeded in any 24-hour period, according to the bus driver study.

“We’re going to be really looking at the whole statistical validity and science of what they’ve done,” Rajkovacz added. “Industry has spoken with one voice that the agency does not have the scientific justification to reduce trucking productivity.”

Indeed, motor carriers overwhelmingly have opposed the hours-of-service proposal that leans toward cutting allowable driving time before a mandated break to 10 hours from the current 11 hours. The proposed rule also would modify the 34-hour reset provision by requiring that it include two rest periods of at least six hours between midnight and 6 a.m.

A spokesman for the Teamsters union declined comment on the FMCSA announcement, and Public Citizen did not respond to a request for comment by press time.

Rob Abbott, vice president of safety policy for ATA, said the association would review the studies carefully to see if they meet legitimate research standards.

“However, the manner in which FMCSA has presented this research — particularly the two FMCSA-funded studies published just this month — certainly takes on an odd appearance,” Abbott said.

Henry Jasny, senior counsel for the Advocates for Highway and Automotive Safety, said the studies support both sides of the argument on the 11th hour of driving issue. Though he’s not happy with the expected delay in posting the final rule, Jasny said he doubts the studies will make a difference in the rule’s final form.

“There’s some support for one side and some support for the other side,” Jasny told Transport Topics. “So I don’t have a conspiracy theory.”