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LEGISLATIVE INITIATIVES

Hours of Service Regulations and Fatigue

Commercial truck drivers work long hours under physically demanding conditions. Ensuring that drivers get enough rest is a critical component of truck safety. Thus the FMCSA has Hours of Service regulations.

Commercial truckers transporting property (the rules for passenger trucks are a bit different) are subject to daily and weekly limits on the number of hours they are permitted to work. Generally, drivers are permitted to work no more than 14 consecutive hours. Of that time, only 11 hours may be devoted to driving. (The remaining time may be devoted to paperwork, loading and unloading, etc.) After exhausting these limits, drivers are required to spend a minimum of 10 consecutive hours off duty.

Drivers are subject to weekly limits as well. The regulations prohibit driving after the driver has been on-duty 60 hours in 7 consecutive days, or 70 hours in 8 consecutive days. Drivers may restart the 60 or 70 hour clock by taking no less than 34 consecutive hours off duty.

In May 2000, the FMCSA proposed new rules and invited public comment. The final rule adopted in April 2003, however, diluted the safety protections afforded in the proposed rules. The changes to the final regulations lead consumer safety advocates to challenge the new rule in Court. In its decision invalidating the new rule, the Court of Appeals for the District of Columbia criticized the rule changes as "arbitrary and capricious." The Court criticized the new rule for, among other things, increasing from 10 to 11 the number of consecutive hours drivers may drive before resting and for failing to require the use of electronic on-board recording devices to assure compliance with the rules despite evidence that these changes may be detrimental to public safety.

In July 2004, Congress temporarily rescued the new regulation by allowing it to become effective until the FMSCA considered and addressed the federal Court's criticisms. In August 2005, FMSCA did just that by promulgating virtually the identical rule all over again. This time, FMSCA simply supported the changes with additional research and written findings.

Consumer advocacy groups again challenged the regulation in Court, claiming that the changes were detrimental to public safety. In its July 2007 Opinion, the D.C. Circuit Court of Appeals again invalidated portions of the new regulations, essentially finding that the FMSCA failed to publicly disclose its methodology in studying the new rules in time to allow public comment as required by law.

As recently as December 2007, the U.S. Senate held hearings about the new Hours of Service regulations. (These hearing can by viewed at C-Span website.) The debate, as it has for more than a decade, centered around the competition between public safety and trucking company profits. That debate, no doubt, will continue for years to come.

Drivers must record their status throughout the day as either "off-duty", "sleeper berth", "on duty, not driving", or "driving." An example of a completed log book is provided by the Federal Motor Carrier Safety Administration here.

In truck crash litigation, it is important to study the driver's logbook, but that is only a first step. The Hours of Service regulations are well known in the trucking industry, and commercial truck drivers will rarely confess to a violation in the log book. The possibility of falsified log books must always be considered. Log book entries should be compared to other evidence including receipts for fuel and food, credit card statements, cell phone records, bills of lading and other shipping records, loading dock security logs and serveilance tapes, and GPS tracking data. A determination about whether a trucking crash was caused by a violation of the Hours of Service rules can be made only after all of the evidence has been considered.

The regulations designed to prevent commercial truck drivers from becoming too tired to drive safely are only effective if they are enforceable. Most drivers are paid by the mile. As a result, the incentive to break the hours of service rules is built into the system -- sometimes with tragic results.

The rules impose daily and weekly limits on the number of hours commercial truck drivers are permitted to work. Generally, drivers are permitted to work no more than 14 consecutive hours. Of that time, only 11 hours may be devoted to driving. (The remaining time may be devoted to paperwork, loading and unloading, etc.) After exhausting these limits, drivers are required to spend a minimum of 10 consecutive hours off duty. The regulations also prohibit driving after being on-duty more than 60 hours in 7 consecutive days, or 70 hours in 8 consecutive days. Drivers may restart the 60 or 70 hour clock by taking no less than 34 consecutive hours off duty.

To assist in enforcing these regulations, drivers must record their status throughout the day as either "off-duty", "sleeper berth", "on duty, not driving", or "driving."  There is concern, however, that some drivers may falsify their driver logs to circumvent the rules.

In 2004, the Federal Motor Carrier Safety Administration (FMCSA) proposed a rule to make it easier to verify that drivers follow the rules. The proposed rules required drivers to maintain "supporting documents" to verify the entries recorded in the driver's log. In response to the proposed rule, however, the FMCSA received a large number of negative comments, mostly from within the trucking industry. As a result, the FMCSA withdrew the proposed rule as of October 25, 2007. For now, compliance with the federal hours of service regulations will remain frustratingly difficult to verify.

One way to ensure that regulations on hours of service are honored is to implement Electronic On Board Recorders (EOBRs) in trucks. A rule to require these EOBRs is in the works at the FMCSA.