I thought the new Hours of Service (HOS) Regulations made sense, and that there wouldn't be much controversy about the new regulations. After all, the new regulation just put back into place the old rule. The old rule required drivers of 80,000 pound tractor trailers to stop after driving 10 hours.  The law was changed under President Bush to allow truckers to drive 11 hours, an extra hour over the prior regulations. So the proposed regulations just put things back the way they were. No harm, no foul, the government gets a do over because they messed up when they extended the HOS to 11 hours. Not a controversial move I thought when I first read it. WOW was I wrong! The trucking companies hate this proposal.

But why? Studies, such as the Penn State study (“On the Relationship of Crash Risk and Driver Hours of Service”) presented by Dr. Paul Jovanisat the 2005 International Truck & Bus Safety Security Symposium in Alexandria, Va. have shown that " the crash risk is statistically similar for the first six hours of driving and then increases in significant steps thereafter. The 11th hour has a crash risk more than three times the first hour."  The 11th hour of driving is therefore 300 percent more dangerous than the first hour of driving. Of course the longer a truck is in motion the more money the trucking company makes. Should those profits really come at our, the public's, expense? 

Don Schneider was able to make the Forbes 400 list as a Billionaire as the owner of Schneider trucking. Perhaps an industry that creates BILLIONAIRES can think about public safety... at least this once? Most drivers would also appreciate being limited to 10 hours of driving. They know that 11 hours is to long to be on the road. There is a reason they call trucks rolling sweatshops. 

Here is hoping that the industry outcry doesn't overcome common sense on this. The 10 hour rule is far safer and simply puts the industry back where they were before the Bush expansion. It should be the law.

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The FMCSA and the trucking industry knows how dangerous sleep apnea is for a truck driver. The FMCSA states HERE that: 

Staying awake means staying alive. Sleep apnea is a major contributor to daytime drowsiness—a condition that could prove deadly for commercial truck drivers and everyone sharing the road with them. It is a condition where, during sleep, a narrowing or closure of the upper airway causes repeated sleep disturbances leading to poor sleep quality and excessive daytime sleepiness. Since excessive sleepiness can impact a driver’s ability to safely operate the commercial vehicle, it is important that drivers with sleep apnea are aware of the warning signs.

The research arm of the American Trucking Association (ATA), American Transportation Research Institute (ATRI), states that sleep apnea exists in almost 1/3 of commercial driver and contributes to wrecks. See the white paper HERE.

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Bill ignites war of words over trucking safety

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FMCSA ordered JBS Carriers Inc., of Greeley, Colo., to install Electric On Board Recorders (EOBR's) after the agency’s western service center found the company “in serious violation of federal HOS rules and commercial driver’s license requirements,” FMCSA said in a statement. The ruling applies to all 700 trucks in the JBS fleet.

The order announced November 4, 2010, is believed to be the first of its kind. If JBS fails to comply, it is subject to $81,780 in fines.

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Supporting documents have long been required to ensure drivers remained within hours of service and were not driving in a fatigued state. These documents, when compared to the drivers log books, would prove whether the driver was where he said he was, when he said he was, doing what he said he was. For example, if the driver said he was sleeping in TN, a supporting document showing he was getting fuel in GA would prove his logs were fake. As the years progressed, more technology and different documents that were created (think Comdata, Qualcom, etc...) in the industry resulted in a hodge podge of different orders from the FMCSA. It was not the FMCSA's fault, they simply issued new directives when technology changed.

The ATA filed suit in federal court and the judge required the FMCSA to issue a complete list of all documents it required truckers to keep for supporting hours of service regulations by December 30th. I think this is a good decision as all parties should be clear on what should be retained to support a drivers logs and his hours of service.

While I don't think there is an issue (you simply keep anything that will verify that your driver was following the law), I can see where others would like to have that set out in one place, and with the advent of EOBR's and satellite GPS monitoring, technology is changing in the trucking industry. I will look forward to reviewing the proposed rule when it is published.

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The FMCSA, in compliance with the settlement agreement in the lawsuit brought by Public Citizen and other public interest groups, sent its new proposed hours of service (HOS) regulations to the White House. The FMCSA now has until July 2011 to publish the new rule.

The HOS regulations govern how long a truck driver can work before having to take time off to rest. The are in place because it is well known that a tired fatigued driver is a dangerous driver, far more likely to be in a wreck. I have multiple posts on the dangers of fatigue as this is a huge issue in the trucking industry. I have posted on the harsh conditions driver endure when forced to work long hours before, conditions that have caused many to call trucks rolling sweatshops and increased the danger to everyone that uses the roads and highways of America.

The last time the HOS rules were amended was on Jan 4, 2004, when the time a driver was able to spend driving was increased from 10 hours to 11 hours. HOS regulations were first adopted in 1939. There was a modification in 1962 and then again in 1995. The 2004 modifications, extending a driver's hours, brought about the current lawsuit and settlement, requiring the FMCSA to publish a new HOS rule.

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One of the startling numbers that have been released from the 2010 Roadcheck was that violations for false logs were up over 18% from 2009. I have previously blogged about the problems with false logs and how tired truckers are dangerous truckers who are 2.5 times more likely to be in a wreck. While electric on-board recorders (EOBR's) are a long way from perfect, they will surely be better than the method we have now.

There are multiple other posts on this blog on the topics of fatigue, sleep apnea, and the dangers of tired truckers because so many people are killed each year as a result of these drivers trying to just get in a  few more miles. Drive safe and pull over when tired!

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Ken Shigley recently posted an entry on his trucking blog entitled  "Five common sense ideas for reducing the risk of truck driver fatigue." Ken has a lot of things right with this post but one thing I  believe is wrong is not asking for a 6th common sense reform, and that is simply to have drivers paid by the hour instead of by the mile.

Driving by the mile encourages drivers to push to make a few more dollars. Drivers are encouraged to push to exceed the hours of service requirements and push past the limits of safety. In fact trucking companies know this, government studies prove this, but companies still pay by the mile so that it is the driver that takes the risk of any slow down in on the highway due to construction or rush hour congestion. If the truck breaks down, the driver isn't paid until the problem is fixed. 

Perhaps because courts have held drivers who are paid hourly are entitled to overtime (Bostain v. Food Express, Inc.---P3d---, 2007 WL 611259 (Wash March 1, 2007), the Washington Supreme Court held that interstate truck drivers are entitled to overtime compensation for any hours worked in excess of 40 hours per week) trucking companies don't want to pay by the hour. Do you know that truck drivers have been exempted from the federal law that protects almost every other American worker from being overworked without fair pay, the Fair Labor Standards Act?

Paying by the mile also encourages speeding. After all, if you just go a bit faster you can travel more hours in your allotted number of driving hours and earn more money. Drivers also speed to make up the miles that were missed due to traffic, mechanical problems, or other delays.

If truck drivers were paid by the hour then the trucking company would assume the risk of any delay. The driver will get paid the same regardless so he is not given an incentive to speed or drive over his hours of service. Until the trucking industry faces this fact drivers will both continue to speed and drive past their hours of service. The wrecks due to speed and fatigue that could easily be prevented will continue, leading to more tragedies on our roads.  

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The FMCSA just issued its final rule on Electric On Board Recorders (EOBR's) which replace paper driver logs. Paper logs are often called comic books in the industry because the contents are so funny, because they are so false. A switch to EOBR's will try to eliminate this known problem in the trucking industry. The full text of the rule may be seen here. For known problems with EOBR's click the link to my prior blog here. For past posts regarding EOBR's just past EOBR into the search box and you will have a number of posts on the topic.

The FMCSA has new performance standards for electronic on-board recorders (EOBRs) installed in commercial motor vehicles (CMVs) manufactured on or after June 4, 2012. On-board hours-of-service (HOS) recording devices meeting FMCSA’s current requirements and installed in CMVs manufactured before June 4, 2012 may continue to be used for the remainder of the service life of those CMVs. Motor carriers that have demonstrated serious noncompliance with the HOS rules will be subject to mandatory installation of EOBRs meeting the new performance standards. If FMCSA determines, based on HOS records reviewed during a compliance review, that a motor carrier has a 10 percent or greater violation rate (‘‘threshold rate violation’’) for any HOS regulation listed in the new Appendix C to part 385, FMCSA will issue the carrier an EOBR remedial directive. The motor carrier will then be required to install EOBRs in all of its CMVs regardless of their date of manufacture and use the devices for HOS record keeping for a period of 2 years, unless the carrier (i) already equipped its vehicles with automatic on-board recording devices (AOBRDs) meeting the Agency’s current requirements under 49 CFR 395.15 prior to the finding, and (ii) demonstrates to FMCSA that its drivers understand how to use the devices.

The FMCSA also changes the safety fitness standard to take into account a remedial directive when determining fitness. Additionally, to encourage industry-wide use of EOBRs, FMCSA revises its compliance review procedures to permit examination of a random sample of drivers’ records of duty status after the initial sampling, and provides partial relief from HOS supporting documents requirements, if certain conditions are satisfied, for motor carriers that voluntarily use compliant EOBRs. Finally, because FMCSA recognizes that the potential safety risks associated with some motor carrier categories, such as passenger carriers, hazardous materials transporters, and new motor carriers seeking authority to conduct interstate operations in the United States, are such that mandatory EOBR use for such operations might be appropriate, the Agency will initiate a new rulemaking to consider expanding the scope of mandatory EOBR use beyond the ‘‘1 x 10’’ carriers that would be subject to a remedial directive as a result of today’s rule.

The Agency is still moving forward with new Hours of Service Rules.

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Schneider has replaced 1/4 of its fleets' computers to allow for EOBR's and better navigation. The replacements began in October of 2009 and Schneider is reportedly installing Qualcomm MCP200 units. The units allow cellular, Wi-Fi, and Internet connections for the driver.

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I predict within the next three years that Congress will mandate Electric On Board Recorders (EOBR) because EOBR's make the trucking industry safer. While the FMCSA has a final rule to require EOBR's on about 1,000 motor carriers, I would expect that this rule will be significantly expanded. While EOBR's can still be faked, and I have blogged on the subject before, they are much more difficult to fake making it easier to show violations of the FMCSR.

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I have discussed the hours of service regulations extensively in prior posts. It is my position, and I believe most non-industry safety professional that drivers are on the road too many hours of the day, resulting in needless and preventable accidents.

The FMCSA has sent the new HOS rule to the White House for review. While it typically uses the 90 days alloted to it to make a decision (which would have the decision out Jan 19th, one day before the next president is sworn in), the White House has promised to expedite matters and have a decision out this year.

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EOBR's (Electric On Board Recorder's) have been the subject of earlier posts and on the whole are a step forward for safety. EOBR's can be very beneficial in ensuring tired truckers are not allowed on the roads in violation of the law. Unfortunately there are ways to "fix" the EOBR's to allow violations of the FMCSR Hours of Service (HOS) regulations. Knowing how to prove an EOBR was "fixed" in order to allow a driver to stay on the road longer than the HOS regulations allows is an important reason to hire an experienced tractor trailer attorney.

This story appears in the Aug. 20th print edition of Transportation Topics:

HILTON HEAD, S.C. — Four months after the public comment period for the proposed electronic onboard recorder rule closed, a Federal Motor Carrier Safety Administration official said those comments were still being reviewed and no final rule was imminent.

At the same time, a trucking official suggested the uncertainty regarding hours-of-service rules for drivers could delay any final EOBR rule.

“No final decision has been made about the outcome of the rulemaking,” Debbie Freund, senior transportation specialist for FMCSA, said here Aug. 14 during a presentation at the 2007 PeopleNet user conference.

“The [notice of proposed rulemaking] is a proposal based on the best information available at the time it was developed,” Freund said.

Announced in January, the rule would mandate EOBRs for the worst violators of its hours-of-service rules and provide incentives in the form of relaxed record keeping requirements for carriers who adopt them voluntarily (1-15, p. 1).

The public comment period closed April 18.

When the rule was published, officials estimated it would take four years between the time a final rule was published and full implementation.

But Dave Potts, director of safety and operations for American Trucking Associations, said here that last month’s decision by a federal appeals-peals court to overturn the HOS rule (7-30, p. 1) could push that potential timetable back.

He said any change, through a new FMCSA rule or other methods, in on-duty time, driving hours, the 34-hour restart or sleeper-berth time could result in the need for new EOBR performance specifications, updates to vendors’ EOBR software programs and additional time to train drivers, management and law enforcement.

Freund declined to discuss the hours-of-service case, other than to say the “agency was still reviewing the court’s decision,” or the case’s potential effect on the EOBR proposal.

She did say, however, that in response to the comments on the EOBR proposal, the agency may conduct additional technology assessments to ensure that data obtained from EOBRs not integrally synchronized with the engine or vehicle are accurate.

She added that other EOBR subjects drawing the agency’s attention, based on comments it received, included data security and integrity, interoperability and manufacturer self-certification.

Still, Freund said the agency believes its proposed rule provides the greatest safety benefit because the small number of carriers required to use EOBRs have a much higher crash rate than all other carriers.

Increasing the level of compliance with HOS rules would decrease the incidence of fatigue-related crashes, she said.

Potts, meanwhile, reiterated that ATA generally supports FMCSA’s proposed EOBR rule but said the federation believes more definitive performance specifications were needed and a pilot program should be undertaken to obtain and analyze “real-world data” before any final rule is implemented.

He also said a larger number of the worst HOS violators — 10% or more — should be required to use EOBRs.

Gerry Krolikowski, chairman of the Commercial Vehicle Safety Alliance’s driver-traffic enforcement committee, gave a similar assessment of the proposed EOBR rule.

He said that, while the law enforcement community is in favor of electronic onboard recorders, CVSA wants to be sure the devices are tamper-resistant and standardized for easy accessibility.

Krolikowski is a lieutenant with the Nebraska State Patrol.


 

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Electronic On Board Recorders (EOBR's) have been touted as the best way to eliminate chronic Hours of Service (HOS) violations which lead to fatigue, a major cause of trucking collisions. For example on Aug 9, 2007 the Chattanooga Times reported that in an Atlanta collision which killed 4, the driver state "he had fallen asleep at the wheel."  Anything that would eliminate these tragedies should be applauded, but EOBR's are not a panacea.

In my business I often represent severely injured truckers that have been hung out to dry by their own trucking company. One of my clients recently told me that when he drove a truck with an EOBR, the company gave him the company code which places the EOBR into a "test" mode. While in the test mode the EOBR is offline and doesn't record his hours. He could therefore drive longer hours, in violation of the HOS regulations.

Without the use of an experienced trucking lawyer critical issues like this are likely to be overlooked. A case involving a tractor trailer is not just a big car wreck case and requires significant expertise to handle properly. Make sure any lawyer you hire has that experience.

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