Hours-of-Service are dead, oh my. But before the motorcoach industry packs up its crayons, and the euphoria of “victory” wears off, it would be worthwhile to briefly examine the changes adopted for, and applicable to, the trucking industry, beginning on January 4, 2003. The overview that follows below is the first of several NBT articles which will explore the combined safety, liability and economic issues swirling through these regulatory changes – including a much-needed examination of missed opportunities.
Table 1 depicts the basic provisions of the three new alternatives evaluated by the FMCSA in its recent, exhaustive analysis, alongside similar provisions of the current regulations. These alternatives were presented by the American Trucking Association (ATA), Parents Against Tired Truckers (PATT) and FMCSA staff. Apart from some other positions that could fairly be characterized as extreme (including some best characterized as reckless or needless), the Report justifies the selection of the FMCSA staff recommendations. Comments from many other sources were considered in both developing and evaluating these alternatives. Reading the entire document – pp. 22455-22517 of the Federal Register, April 28, 2003, Volume 68, No. 81 [wais.access.gpo.gov; DOCID:fr28ap03-19] – is highly recommended.
Classes of Operations
In examining the impacts of the three alternatives on the trucking industry, the FMCSA initially proposed dividing operations into five categories (1) Long-haul operators, national; (2) Long-haul operators, regional; (3) Local (i.e., home-based) split-shift drivers (spending most on-duty time driving); (4) local drivers with single, on-duty shifts less than 12 hours long, and at least half spent driving, and (5) most on-duty time spent not driving. Largely because most safety advocacy groups did not care about these distinctions, law enforcement groups found them problematic, and operations within the categories overlapped considerably, the FMCSA dropped their incorporation into the regulatory changes. Such an approach has important implications for the subsequent analysis of motorcoach operations, as the FMCSA’s recent study of the motorcoach industry (no final report has yet been submitted) classified operations into four groups: (1) intercity/regular route; (2) charter; (3) tour, and (4) commuter/express. As with the motorcoach categories, many truck operators provide multiple types of service containing single runs or shifts operating in more than one mode.
Components of Analysis
The analysis, presented in the Report in considerable detail, covered a wide range of topics, all of which are directly analogous to motorcoach service:
- categories of operations
- passenger carrier operations
- NHS exemptions
- sleeper berth requirements
- carrier notification of drivers during their off-duty hours
- daily work/rest cycle
- 24-hour work/rest cycle
- daily off-duty time
- daily on-duty time
- daily driving time
- distinctions in duty time
- weekly or longer cycle
- weekly recovery periods
- short rest breaks during a work shift
- economic impacts
- electronic on-board recorders
- proposed compliance and enforcement
- regulatory impact analysis
Trucks and Coaches
A number of reasons were cited for the FMCSA’s non-application of the revised regulations to the motorcoach industry – although one suspects that the lack of ideas from carriers and membership organizations (compared to the plethora of often-intriguing comments from the trucking industry), and the comparatively small size of the motorcoach industry compared to its trucking counterpart, also affected this decision considerably. Among the reasons cited for this exclusion, the National Safety Council asserted that the agency’s assumption that “bus drivers operate in ways similar to truck drivers” was questionable for a rule purportedly based on “sound science,” and underscored the agency’s lack of understanding of the motorcoach industry’s unique operating characteristics. Otherwise, the UMA, ABA and several other organizations (Commercial Vehicle Safety Alliance, National Tour Association, Amalgamated Transitworkers Union, NSC) focused their objections on (a) the industry’s outstanding safety record, (b) the markedly different duty cycles and operating environments compared to trucking, (c) the devastating economic impacts of the proposed changes, and (d) no indication that there was a “safety problem.” Regarding these issues:
- The study commissioned by the FMCSA was intended to identify the differences between trucking and motorcoach duty cycles and operating environments, but that study has not been completed, through no fault of the FMCSA. It may never be completed.
- Wide differences of opinions existed regarding the percentage of fatal motorcoach and truck accidents of which fatigue was a component – largely due to variations and deficiencies at the accident-reporting level.
- The economic impacts of the regulations on the motorcoach industry were not explored, whereas they were explored in great detail for the trucking industry (and will be examined for the\C2 motorcoach service in subsequent NTB articles on the subject).
- The FMCSA conceded that it did not have sufficient data to indicate that a safety-related problem exists.
Bowing to Science
Throughout its comments, the FMCSA stressed the dramatic leaps in the knowledge of sleep and fatigue that has emerged since the original regulations were promulgated in 1937, and the importance of employing them as a basis for regulatory change. As a consequence, the new regulations incorporated several dramatic adjustments (again, only as they apply to trucking operations) designed to increase the regulations’ orientation around a 24-hour day:
- The current 10/15 structure, with eight consecutive hours off after the last driving increment, was replaced by a requirement permitting 11 hours of consecutive driving within a 14-hour, on-duty span, followed by 10 consecutive hours off-duty. The maximum on/off-duty cycle possible within such requirements would therefore be a 21-hour sleep/wakefulness cycle – and this truncated cycle could only occur under unlikely scenarios like practically no rest stops – a pattern which the motorcoach industry has argued is rare. Since interstate, long-haul drivers frequently change time zones (and who might “socialize” themselves to 23- or 25-hour days as a result), this provision not only corresponds to physiological and biological reality, but includes a safe margin of flexibility to which the human body can generally respond and adjust.
- The restart interval was changed from 24 to 34 hours – essentially to provide a minimum recovery period equal to one complete 24-hour day plus the (new) daily 10-hour off-duty period. Under such a structure, drivers can be assured of the opportunity for two full nights’ sleep and rest.
In simple terms, these important linchpins of the revised HOS prohibit compliance with the HOS which the current 10 on/8 off rule allows by one’s creation of an artificial, 18-hour sleep/wakefulness cycle – the 9-on/9-off stunt employed by some motorcoach carriers which results in the dissociation of the driver’s body rhythms, and triggers an “inverted sleep cycle” which worsens on each successive cycle – with the most severe inversion possible occurring during the third cycle. Along the way to its scientifically-supportable HOS revisions, the FMCSA reviewed a considerable amount of data suggesting both that 11 hours of continuous driving (although unlikely as a practical matter) would not greatly expand the risks compared to 10 hours of such driving, while expanding it beyond the 11th hour (the ATA proposal recommended permitting 14 hours of continuous driving) would increase the risks of fatigue dramatically. (Some safety advocacy groups argued, with their own data, that performance deteriorated after the eighth hour, and dramatically after the 10th and 11th.)
As a practical matter, the FMCSA also recognized that the likelihood of a driver sleeping for all of an eight hour off-duty period sandwiched between on-duty assignments was remote, and that 10 hours off-duty would be needed to ensure a realistic opportunity to obtain the generally-needed seven or eight hours of uninterrupted sleep. The reduction of hours within this continuous period that might result from napping at other times of the day was accommodated only for drivers with access to sleeper berths – an exception well worth noting by both motorcoach manufacturers and operators.
In one fascinating historical reference, the Report noted that the original HOS regulations, proposed in 1937, called for a consecutive nine-hour rest period – which was revised downward to eight hours by the ICC in 1938 in response to pressure from organized labor. Today, one would not expect support for such reductions to come from this constituency. The rulemaking also cited corroboration from several recent studies that the risk of crashes increased noticeably with less than nine hours of off-duty time. Similarly, the FMCSA’s position about the unlikelihood of obtaining eight hours’ sleep in an eight-hour off-duty period was originally noted by the ICC in 1937.
Finally, bowing once more to science, the weekly limits established in the new regulations reflected the well-documented and well-accepted notion of “sleep debt.” Apart from the maximum weekly on/off-duty cycles established (60 within seven days, 70 within eight), the two most important concessions to this reality were:
- The requirement for a consecutive 34-hour off-duty period at the end of the work-week, and
- Maintaining the existing HOS provision that work-related interruptions during this period restart the off-duty period.
Concessions to Simplicity
In several key areas, the FMCSA also leaned strongly in favor of simplicity. Among these important concessions:
- No distinctions were made regarding where the driver slept – apart from the sleeper berth exceptions. (Some commenters actually suggested that drivers could sleep just as well in their seats!)
- As noted, the FMCSA eliminated the notion of operating categories – even though operating environments and duty cycles differed markedly among the trucking classes examined.
At the same time, some distinctions were retained – most notably the distinction between driving and non-driving activities during the on-duty period. (The ATA proposal contained no distinctions between these two activities, whereas the PATT proposal did.)
Responsibility and Irresponsibility
As the diversity and often extreme variation among comments on the same subject well illustrated, many commercial interests appear to have yielded recommendations far afield from any scientific foundation. The ATA, for example, proposed not only that drivers be permitted to drive continuously for 14 hours (largely because it felt that few driver actually would!), but that, twice within the weekly cycle, the span of continuous driving should be increased to 16 hours. Yet even within such extreme proposals, the ATA suggested incorporating them into a 24-hour, solar cycle – coupling its proposed 14-hour driving and/or non-driving component proposal with the requirement for 10 hours of consecutive off-duty time (and in the process, severely limiting the backward rotation of the sleep/wakefulness cycle). Thus, while it felt that drivers could safely operate modern 18-wheelers for 16 hours straight, even the ATA conceded that they could not do so twice in a row without at least 10 hours of consecutive time in between in which to sleep and rest. With the dynamics of both science and corporate forces driving it, the FMCSA decided to re-structure its regulations around a 360-degree rotation of the Earth on its axis, rather than around the 270-degree rotation to which the motorcoach industry remains convinced is both safe and appropriate.
The FMCSA also acknowledged the promise of both performance-based scheduling and driver assignment, and fatigue detection and monitoring technology. A considerable portion of the Report was devoted to both, particularly the latter. However, the FMCSA acknowledged that while both subjects have been demonstrated in a number of countries, it did not feel it yet possessed adequate knowledge to make a ruling on these subjects.
Missed Opportunity: Part 1 of Many
Some of the provisions afforded (some might argue awarded) to the trucking industry are intriguing, if those in the motorcoach industry should not indeed envy them:
- 11 hours of driving within 14 hours on-duty. The safety concession for allowing more driving time is the fact that the on-duty period must be followed by 10 consecutive hours of off-duty time. Clearly, the FMCSA feels that a decent night’s sleep adds more to the alertness equation than an hour less of driving. My own research and experience suggest that this is valid. (The commercial ramifications of such flexibility will be explored in a future NBT Article: “Pi D Squared.”)
- One 16-hour on-duty period per week (or per cycle so long as it is separated from the next one by 34 hours off-duty). Particularly with the 34-hour new-cycle trigger, one can only wonder what such flexibility might do for motorcoach industry economics. More interestingly, this provision does not even include a napping requirement. One can only wonder what exceptions might be safely possible – and possibly allowable – with proof of a sound nap.
In contrast to these benefits, existing HOS provisions give passenger carriers (a) a longer on-duty work-day, and (b) the application of some off-duty time to the extension of the work-day (for example, drivers may extend the on-duty span by sandwiching between it a maximum of one two-hour stretch of sleeper berth time).
Safety and Liability
The only serious benefits which the current HOS structure would appear to provide to motorcoach operators – compared to the structure now afforded truck operators – are an hour longer for rest stops, and permission to assign drivers to severely non-solar work shifts – to the degree one could characterize the latter as any form of benefit. It is inconceivable that a driver would voluntarily select such a shift pattern – which the new HOS requirements greatly limit the range of. So unless longer lunches can sell, it is difficult to imagine how such perks will benefit the motorcoach industry economically. Yet it is easy to see how they will contribute to its risks.
About such results, motorcoach industry insurance carriers and manufacturers alike must be either extremely uneasy – unless they are extremely sleep-deprived, extremely carefree, or extremely ignorant. If they are not uneasy, they should be. I am betting both their sets of attorneys – even moreso their contingent-fee-oriented opposing counsel – welcome the continuing work and the growing profits. Insurance carriers and manufacturers must be sharpening their pencils. Expect higher premiums and acquisition costs to follow.
Sleep and Dreams
Given the significant and dramatic advances these regulations represent for the trucking industry – despite their many and strong objections to them – any notion that the motorcoach industry should snooze through another 66 years of obsolete regulatory applications is foolhardy. The notion that it will be allowed to is hopelessly naïve. The only understanding of sleep the status quo (The Victory) represents is a silly dream one accident removed from becoming a serious nightmare.
Walt Disney once said, “A dream is a wish your heart makes.” So, while we were so valiantly fending off the regulatory changes with which our trucking counterparts were anointed, it is only natural to ask, “What were we wishing for?”