[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
                WRONG WAY: THE IMPACT OF FMCSA'S HOURS 

               OF SERVICE REGULATION ON SMALL BUSINESSES
=======================================================================


                                HEARING

                               before the

               SUBCOMMITTEE ON CONTRACTING AND WORKFORCE

                                 OF THE

                      COMMITTEE ON SMALL BUSINESS

                             UNITED STATES

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              HEARING HELD

                           NOVEMBER 21, 2013

                               __________

                               [GRAPHIC] [TIFF OMITTED] 
                               

            Small Business Committee Document Number 113-044

              Available via the GPO Website: www.fdsys.gov





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                   HOUSE COMMITTEE ON SMALL BUSINESS

                     SAM GRAVES, Missouri, Chairman
                           STEVE CHABOT, Ohio
                            STEVE KING, Iowa
                         MIKE COFFMAN, Colorado
                       BLAINE LUETKEMER, Missouri
                     MICK MULVANEY, South Carolina
                         SCOTT TIPTON, Colorado
                   JAIME HERRERA BEUTLER, Washington
                        RICHARD HANNA, New York
                         TIM HUELSKAMP, Kansas
                       DAVID SCHWEIKERT, Arizona
                       KERRY BENTIVOLIO, Michigan
                        CHRIS COLLINS, New York
                        TOM RICE, South Carolina
               NYDIA VELAZQUEZ, New York, Ranking Member
                         KURT SCHRADER, Oregon
                        YVETTE CLARKE, New York
                          JUDY CHU, California
                        JANICE HAHN, California
                     DONALD PAYNE, JR., New Jersey
                          GRACE MENG, New York
                        BRAD SCHNEIDER, Illinois
                          RON BARBER, Arizona
                    ANN McLANE KUSTER, New Hampshire
                        PATRICK MURPHY, Florida

                      Lori Salley, Staff Director
                    Paul Sass, Deputy Staff Director
                      Barry Pineles, Chief Counsel
                  Michael Day, Minority Staff Director


                            C O N T E N T S

                           OPENING STATEMENTS

                                                                   Page
Hon. Richard Hanna...............................................     1
Hon. Grace Meng..................................................     2

                               WITNESSES

Hon. Anne S. Ferro, Administrator, Federal Motor Carrier Safety 
  Administration, United States Department of Transportation, 
  Washington, DC.................................................     4
Duane Long, Chairman, Longistics, Research Triangle Park, NC, 
  testifying on behalf of the American Trucking Association......    23
Tilden Curl, Jr., Tecco Trucking, Inc., Olympia, WA, testifying 
  on behalf of the Owner-Operator Independent Drivers Association    24
Brian Evans, President-Owner, L&L Freight Services, Inc., Cabot, 
  AR, testifying on behalf of the Transportation Intermediaries 
  Association....................................................    26
Paul P. Jovanis, Ph.D., Professor, Civil and Environmental 
  Engineering, Director Transportation Operations Program, Larson 
  Transportation Institute, The Pennsylvania State University, 
  University Park, PA............................................    28

                                APPENDIX

Prepared Statements:
    Hon. Anne S. Ferro, Administrator, Federal Motor Carrier 
      Safety Administration, United States Department of 
      Transportation, Washington, DC.............................    39
    Duane Long, Chairman, Longistics, Research Triangle Park, NC, 
      testifying on behalf of the American Trucking Association..    49
    Tilden Curl, Jr., Tecco Trucking, Inc., Olympia, WA, 
      testifying on behalf of the Owner-Operator Independent 
      Drivers Association........................................    72
    Brian Evans, President-Owner, L&L Freight Services, Inc., 
      Cabot, AR, testifying on behalf of the Transportation 
      Intermediaries Association.................................    85
    Paul P. Jovanis, Ph.D., Professor, Civil and Environmental 
      Engineering, Director Transportation Operations Program, 
      Larson Transportation Institute, The Pennsylvania State 
      University, University Park, PA............................    89
Questions for the Record:
    None.
Answers for the Record:
    None.
Additional Material for the Record:
    AGC of America...............................................    99
    ARTBA - American Road & Transportation Builders Association..   103
    CVTA - Commercial Vehicle Training Association...............   109
    Letter from Melissa Eichholz, President, Prospect 
      Transportation, Inc. & Alternative Fuels Transportation to 
      Hon. Richard Hanna.........................................   112
    Truck Crash Victims/Survivors & Safety Groups on Truck Driver 
      Hours of Service Rule......................................   113


 WRONG WAY: THE IMPACT OF FMCSA'S HOURS OF SERVICE REGULATION ON SMALL 
                               BUSINESSES

                              ----------                              


                      THURSDAY, NOVEMBER 21, 2013

                  House of Representatives,
               Committee on Small Business,
         Subcommittee on Contracting and Workforce,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10:00 a.m., in 
Room 2360, Rayburn House Office Building. Hon. Richard Hanna 
[chairman of the subcommittee] presiding.
    Present: Representatives Hanna, Tipton, Huelskamp, Rice, 
Meng, and Clarke.
    Chairman HANNA. I would like to thank today's witnesses for 
appearing before the Committee today to discuss the effects of 
the Federal Motor Carrier Safety Administration's recently 
enacted Hours-of-Service regulation on Small Business. Before I 
read the rest of my statement, I would like to thank the FMCSA 
administrator, Ann Ferro for being here. While we may disagree 
deeply on this issue, I always appreciate how forthcoming you 
have been, and it is kind of you to be here.
    On July 1, 2013, the FMCSA enacted its new rule of Hours of 
Service rule for Commercial Drivers. Among the rule's many 
provisions, the revised 34-hour restart requirements have 
caused the most damage to the integrity of the rulemaking 
process and our nation's economy, particularly small 
businesses. Whether it is a small carrier transporting goods to 
the West Coast or a local grocery store awaiting a delivery 
shipment, when truckers are slowed, small businesses suffer. 
The Small Business Committee is deeply concerned about the 
impact of these new regulations on small businesses.
    The Moving Ahead for Progress, MAP 21, required the FMCSA 
to conduct a statistically valid field study on the then-
proposed 34-hour restart provision to measure the effects of 
the proposed rule on both large and small trucking operators. 
This study was due to Congress by September 30, 2013. It has 
not yet been delivered.
    Under the MAP-21 provisions, Congress intended to have the 
study completed before the enactment of the new rule; however, 
even with the field study unfinished, the FMCSA finalized and 
enacted these untested new Hours-of-Service regulations.
    Since July, small businesses, workers, and consumers across 
America have raised serious concerns about the restrictive 34-
hour restart provisions of the rule which went into effect 
without being backed by solid data, research, or a 
representative sample of the trucking industry.
    While the FMCSA estimate that the new rule would cost 
truckers less than one percent of revenue per year and impacted 
less than 15 percent of commercial drivers, the trucking 
industry, estimates that the Hours-of-Service rule, cost $376 
million annually. By any measure, this is a large sum of money 
and costs jobs.
    In fact, the latest American Transportation Research 
Institute (ATRI) survey of commercial drivers found that nearly 
70 percent have lost pay since the enactment of the rule. The 
survey also found that 80 percent of carriers are experiencing 
a loss in productivity.
    The trucking industry is a key link in the small business 
supply chain. Not only are many trucking companies small 
businesses, but also nearly every type of small business in our 
country--food, logging, cement, retail, apparel, asphalt--
depends on efficient, on-time, reliable trucking to sell, move, 
and use their goods.
    Most disturbingly, there is a case to be made that the rule 
does not only cause economic harm, but may also make our roads 
less safe.
    In the past, when drivers completed the 60- or 70-hour work 
week, he or she would need to spend 34 hours not driving to 
reset their week clock to zero hours. Now, the restart time 
must include drivers resetting for two consecutive periods 
between 1 AM and 5 AM.
    The new rule therefore compels some truckers to stop 
driving by 7 PM in order to take the most advantage for the 
restart and begin driving again at 5 AM two days later. 
Commercial motor vehicle drivers often drive at night, both as 
a matter of necessity and convenience. The FMCSA, in effect, is 
pushing truckers onto the road at an earlier time in the day 
during morning and evening rush hours, slowing them down and 
prompting safety concerns.
    I look forward to hearing more about the new rules of 
service and how they have affected small businesses across 
America, and I want to again express to my appreciation to 
Administrator Ann Ferro for appearing today.
    I also want to take just a moment. This is a letter that I 
received the day before yesterday from the Prospect 
Transportation Company, a woman-owned business, been in 
business I think since the 1950s or before, and I will try to 
get to the meat of it here. She says, ``Unfortunately, the 34-
hour restart provision's specific requirement of two periods of 
off between 1 AM and 5 AM has taken away the quality of life, 
reduced the productivity, as well as disrupted the drivers' 
normal sleep schedule and has done nothing to show its improved 
safety.''
    And I will give you a copy of this letter and I submit it 
for the record.
    Ms. MENG. Thank you, Mr. Chairman.
    With more than $600 billion in revenue in 2012, the 
trucking sector is the backbone of our nation's economy. 
Employing nearly seven million individuals, it is essential to 
the success of America's companies that depend on the timely 
delivery of their goods to customers around the globe, and not 
surprisingly, like so many other industries, the trucking 
industry is dominated by small businesses. In fact, more than 
97 percent of trucking companies maintain fleets with fewer 
than 20 trucks.
    Central to the performance of this industry is its ability 
to operate in a safe manner for its employees, its consumers, 
and the public that shares the road. On average, truck crashes 
are responsible for nearly 4,000 deaths and 100,000 injuries 
every year. In an attempt to reduce these accidents caused by 
sleep deprivation, the Federal government has been regulating 
hours of service for truck drivers since 1937.
    These rules have gone through a number of changes over the 
years in responses to evolving research on driver fatigue and 
traffic-related accident patterns. This July, after years of 
lawsuits and debate by industry participants and public safety 
advocates, the newest version of these rules went into effect. 
These new changes maintain the maximum driving limit at 11 
hours but require that it take place within a 14-hour period. 
Drivers are now limited to one 34-hour restart in a seven day 
period and required to take periodic 30-minute breaks. Such 
provisions were included to ensure that drivers were better 
rested when they are behind the wheel. Taken as a whole, the 
new rules represent a significant change in how and when 
truckers will be able to operate.
    From a public safety perspective, many have suggested that 
the rule falls short and does not go far enough to address 
driver fatigue. By not reducing the 11-hour driving limit, some 
believe that the rule will not be effective in reducing driver 
fatigue. Similarly, the 34-hour start rule could be used in a 
manner that would result in operators being able to drive more 
hours than before. Such outcomes could lead to more tired 
drivers on the road and adversely impact highway safety.
    From the industry perspective, we continue to hear that the 
rules are costly and burdensome. A recent study by the American 
Transportation Research Institute found that the changes FMCSA 
made to the restart requirement will ultimately have a net 
annual cost of up to $376 million, rather than the net benefit 
of $133 million the agency claimed. In addition, the ATRI found 
that the rule has led to a productivity decrease of 3 to 4 
percent. This has led many carriers to have to spend more to 
achieve the same level of performance as they did prior to the 
rule's implementation.
    Finally, research has indicated that the new rule has 
increased drivers' dissatisfaction during a time when there is 
driver shortage and led to no changes in safety performance. 
Such outcomes call into question the justification for the 
rule.
    Taken as a whole, the rule reduces driver flexibility. This 
tradeoff will undoubtedly affect drivers as weather delays and 
the uncertainty associated with loading and unloading often 
require them to be highly adaptable. By requiring mandatory 
breaks and two consecutive nights at home, operators will be 
less able to tailor their schedules to the constantly changing 
factors that they confront each week.
    Today, we will examine all of these claims and how the 
Hours-of-Service rules are affecting small trucking companies, 
as well as their potential to reduce traffic accidents. As with 
so many rules, analysis done prior to implementation can only 
tell us so much. Time will only show what the true effect of 
this rule will be on the industry and on public safety.
    With this in mind, it is imperative that Congress continue 
to oversee the rule's implementation. Doing so will help ensure 
that new regulations are striking the proper balance between 
promoting safer roads with the economic impact on small 
trucking companies and their drivers. Overall, it is important 
that we seek to achieve our policy objectives without 
unnecessarily burdening those small businesses that are subject 
to these regulations.
    In advance of the testimony, I want to thank Administrator 
Ferro and all our witnesses today who traveled here for both 
their participation and insights into this important topic.
    Thank you, and I yield back.
    Chairman HANNA. Thank you.
    If Committee members have opening statements, they may 
submit them for the record.
    You are familiar with how the clocks work. We want to hear 
from you so, you know.
    Administrator Ferro, you may begin.

 STATEMENT OF ANNE FERRO, ADMINISTRATOR, FEDERAL MOTOR CARRIER 
    SAFETY ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION

    Ms. FERRO. Thank you, Mr. Chairman.
    Mr. Chairman, Ranking Member Meng, thank you very much for 
this opportunity today to talk about the hours-of-service rule 
and its impact on small business.
    The top priority of FMCSA is safety--reducing fatalities 
and injuries due to large truck and bus crashes. According to 
NHTSA's most recent report, in 2012, nearly 4,000 people were 
killed in crashes involving trucks. That is a 4 percent 
increase over 2011, which was actually a higher number than 
2010. Truck drivers work some of the toughest and longest hours 
of any business, and in some of the most difficult operating 
conditions. It is a demanding and unappreciated job, certainly 
under-appreciated.
    FMCSA's changes to the hours-of-service rules will help 
truck drivers avoid the long-term health problems that can be 
caused by these demanding schedules, and will also help prevent 
an estimated 1,400 crashes, 560 injuries, and save 19 lives a 
year by reducing the risk of fatigue-related crashes. These 19 
lives could be your community's kindergarten class, could be 
your son's baseball team, could be members of your extended 
family.
    This rule was initiated by congressional requirements that 
date back to the 1995 Interstate Commerce Commission 
Termination Act. After a series of lawsuits, FMCSA developed 
the current rule through solid data and an unprecedented level 
of transparency, soliciting feedback from thousands of 
stakeholders, including small business owners, drivers, 
shippers, safety advocates, law enforcement, and trucking 
companies. Recently, the D.C. Circuit Court largely upheld the 
rule.
    Critics have focused their attention on the change we made 
to the 34-hour restart provision. A restart allows a driver to 
work more than the maximum limits of 60 hours in seven days or 
70 hours in eight days. The rule limits that restart, and it is 
a voluntary restart, to once a week, which does reduce a 
driver's work week to 70 hours on average from the 80 hours 
that were potentially available under the prior rule. Again, a 
restart is a voluntary tool that only a small percentage of 
drivers really need to use. Someone driving 60 hours or less 
does not ever need to use that restart.
    DOT began examining the possibility of a restart as early 
as 1998 when we first assembled an expert panel to reveal the 
sleep science associated with excessively long work periods. 
Prior to 2003, there was no restart, meaning drivers found 
themselves many times a long way from home, waiting to have the 
hours to be able to drive again. That 1998 panel recommended 
``a continuous recovery time of sufficient length, to include 
at least two midnight to 6 AM uninterrupted time periods.'' In 
other words, the Washington State University study that is at 
issue today, confirmed over a decade of sleep research relating 
to the effects of fatigue and CMV operations. But we still 
sought extensive public input on the WSU study, and in fact, 
through that input, we were convinced to tighten up that period 
of off-duty and rest time to include instead of midnight to 6 
AM, a restart that included a period of 1 AM to 5 AM, with no 
loss in safety.
    Many critics want us to return to the restart provision 
that was implemented in 2003. It is important for you to know 
that that restart provision that the courts criticized when 
they threw out the 2003 rule, is the same restart that had only 
one lab study, a lab study with fewer participants than 
anything we did. In fact, a lab study that was carried out by 
ATA through a congressional earmark.
    This rule will help save the trucking industry, and 
actually our nation, the public at large, an estimated $87 
billion a year in the costs and implications of crashes. In 
fact, even ATA's own research is failing to show a significant 
impact on a driver's hours. Their recent ATRI report that was 
released shows that less than a third of 1 percent of drivers' 
logbooks actually changed after the rule went into effect July 
1. Even we estimated a larger impact than that. The only data 
they have produced to show the drivers' schedules did change 
was through that survey, but their logbook examples and their 
logbook analysis showed a very small change.
    Bringing the restart research full circle, I am happy to 
report that the agency has been very diligent in pressing ahead 
as soon as MAP-21 requirements and the congressional mandate 
for a field study on the 34-hour restart get underway. We have 
completed the data collection, and I am looking forward to 
sharing our findings with Congress as soon as the full report 
is complete.
    I want to draw on my experience, my very recent experience 
and a really treasured one, where I had the opportunity to ride 
along for two days with Leo Wilkins, a professional owner-
operator. My time with this remarkable small business owner 
helped me better understand the challenges truck drivers face 
and to experience firsthand what the agency's safety rules mean 
to a driver's daily life. I also saw how the shipper and 
receiver drive the unpredictability that plagues the trucking 
industry. Exempt from the Fair Labor Standards Act for more 
than seven decades, truck drivers, by and large, are paid by 
the mile or by the load, and the hours a driver might spend 
waiting for a load could cost that driver a day's pay. Driver 
pay and extreme loading dock delays have a significant impact 
on a driver's ability to be efficient, professional, and safe. 
In short, uncompensated delays force drivers to press legal and 
physical limits to capture that day's pay. The logistics 
industry gets this time free on the backs of drivers and the 
backs of small business. Uncompensated detention time needs 
your attention because what makes the job better often makes 
the job and the driver safer.
    Keeping people safe is not a choice. It must be achieved 
with a mix of effective programs and enforcement that sets a 
level playing field where companies that put safety first are 
not competing against folk that are cutting corners or pushing 
limits.
    Saving lives is FMCSA's fundamental mission. It is our 
solemn obligation to the public, and again, I thank you for 
inviting me to speak on this topic today and look forward to 
your questions.
    Chairman HANNA. Thank you. Thank you very much.
    I am going to ask Mr. Rice to----
    Mr. RICE. Yes, Ms. Ferro, thank you again for meeting with 
us a couple weeks ago, and thank you for being here today. I 
know that it is not the easiest position to be faced with all 
these questions, but you know, there are a lot of concerns. We 
want to make sure that we do this right. Everybody is concerned 
with safety. Everybody is also concerned with efficiency and we 
do not want to take people--their ability to do business away 
from them. So we do not want to insert the government into 
their lives any more than we need to.
    The rule that was in effect before, you say it was put into 
effect in 2003?
    Ms. FERRO. That is correct.
    Mr. RICE. And what is the short version difference between 
what is proposed today and the 2003 rule?
    Ms. FERRO. Sure. Three key differences.
    The 34-hour restart is retained. Its use is limited to once 
in a week or once in 168 hours. That restart needs to include 
two periods between 1 AM and 5 AM, two periods of off-duty time 
in order to ensure the driver gets that kind of recovery sleep 
they need. And it incorporates a 30-minute break during the 
driver's workday, sometime before any driving occurs after the 
eighth hour on duty, time anywhere within that eight.
    Mr. RICE. What was the experience, the actual effect of the 
2003 rule on injuries, fatalities, accidents, so forth?
    Ms. FERRO. I would say that that question is still under 
analysis. We generally gauge the impact of our rules and the 
impact of our work within the mix of strategies that really 
goes into achieving safety on our highways. And while the fatal 
crash rate was I think collectively and with the economy we 
successfully lowered it to its lowest point in history in 2009, 
it has steadily climbed a few percent each year, and that is 
really the fatal and injury crash rate relating to truck and 
bus crashes.
    Mr. RICE. Now, today, is it not 20, 30 percent below what 
it was 15 years ago?
    Ms. FERRO. That is correct. That is correct.
    Mr. RICE. Okay. So it is way down?
    Ms. FERRO. We are very pleased. And we continue to drive 
it. Drive it, drive it, drive it lower to the extent feasible.
    Mr. RICE. All right. And in this study that was done, how 
many people participated in that?
    Ms. FERRO. Are you referring to the current study or the--
--
    Mr. RICE. The one that has been done but it is not 
completed. How many people were in that?
    Ms. FERRO. Oh, on our field study we have got 106 drivers 
participating. Yeah, a good mix of industry types.
    Mr. RICE. And in the Washington study, how many were in 
that?
    Ms. FERRO. Well, I will need to provide the detail for the 
record, but there were at least, I believe, 9 to 12 in the 
first round and perhaps 15. It is a two-phase study. So 
combined I think it was close to 18 or 20 subjects.
    Mr. RICE. All right. Today, how many trucking fatalities 
from trucking accidents are there average in America today?
    Ms. FERRO. Again, NHTSA just released its most recent data, 
what they call the FARS report, and that identified just about 
4,000 fatalities related to truck-related crashes. That 
excludes the bus piece.
    Mr. RICE. And your best estimate of the effect on that if 
these new rules--as these new rules are implemented, what is 
your best estimate?
    Ms. FERRO. The analysis we incorporated into the rule 
development is 19 lives per year are expected to be saved from 
this rule.
    Mr. RICE. Which is, you know, less than a half percent.
    Ms. FERRO. Nineteen lives. Each life, each one of those 
lives is very significant.
    Mr. RICE. Actually, it is such a small percentage that we 
will not even know if these rules are having any effect, will 
we?
    Ms. FERRO. The individuals whose lives are saved will know 
every day. I know it is tough to prove a negative.
    Mr. RICE. It is nice to say that and it tugs at 
heartstrings, but the truth is that that sample is so small 
that you will not know whether this rule has any effect or not.
    Ms. FERRO. I disagree. Every life is precious. One life 
lost is--you may think that sounds trifle, but I disagree.
    Mr. RICE. My point is we do not know if it is going to save 
any lives.
    Ms. FERRO. Well, we have got 1,400 crashes that are 
expected to be reduced, 450 injuries that are expected to be 
avoided, 19 lives saved every year. It adds up.
    Mr. RICE. The same is so small that we will not know that 
this rule has any effect.
    Ms. FERRO. Well, it is not a sample. Those are actual 
lives. And I will absolutely continue to disagree vehemently on 
that point with you. I think you also uphold the preciousness 
of each life.
    Mr. RICE. Oh, I do, but where I disagree with you is I do 
not think that you know, and you cannot tell from your study 
which is not complete, whether it is going to save one life or 
not. But we do know that it is going to have a tremendous 
economic effect on the trucking industry.
    Did your study in its analysis of these 19 lives that could 
be saved, did it take into account the fact that truckers are 
now going to be moved into rush hour traffic? That the driving 
hours are going to be forced into rush hour traffic because you 
are taking them off of the highway at the times when they can 
drive with no traffic?
    Ms. FERRO. You know, it is so interesting, and I think that 
is part of the----
    Mr. RICE. Just a yes or no. Did it----
    Ms. FERRO. Let me say no. This rule does not put trucks in 
traffic any more than they already are in traffic.
    Mr. RICE. Okay.
    Ms. FERRO. Trucks are----
    Mr. RICE. So you are saying your study did not take that 
into account?
    Ms. FERRO. The study accounted for the impact and the cost 
on industry of this rule upwards of half a billion dollars. We 
absolutely identified it.
    Mr. RICE. I am not talking about the cost. What I am asking 
you is did your study take into account the fact that under 
this rule truckers are going to be taken off the road in early 
morning hours when they want to drive when there is no traffic 
and it is safer and forced to drive in hours--in rush hour 
where it is going to be slower and it is going to be more 
dangerous? Did it take that into account?
    Ms. FERRO. Absolutely. The reg eval identified that roughly 
7 percent of the 3 million drivers out there operating that are 
affected by this rule are impacted by that one-time a week use, 
1 AM to 5 AM inclusion, 34-hour restart, 7 percent.
    Mr. RICE. You still have not answered my question.
    Ms. FERRO. Yes, but what my point is, 93 percent of all 
operations do not change. They continue to operate. Trucks 
continue to operate overnight schedules.
    Mr. RICE. Mr. Chairman, are we going to do another round of 
questions? I see am over my time, but are we going to do 
another round?
    Chairman HANNA. Yes.
    Mr. RICE. Okay, thank you.
    Chairman HANNA. Ms. Clarke.
    Ms. CLARKE. Thank you, Mr. Chairman. And thank you, Ranking 
Member.
    I have no questions at this time. Thank you.
    Chairman HANNA. Mr. Tipton.
    Mr. TIPTON. Thanks for taking the time to be here. I 
appreciate, and I think everyone on this panel shares your 
patience. It is something as Americans that we all value every 
life. But I was curious. In the opening part of your statement 
you said the purpose of this is actually safety, and you 
attributed 4,000 people have been killed in crashes involving 
trucks. Does your data show that all 4,000 crashes were caused 
by the truck or was it caused by the other driver in the crash?
    Ms. FERRO. Our data does not include an analysis of crash 
causation. The last time we were able to do that was----
    Mr. TIPTON. So you are taking the leap that it was the 
truck driver's fault. You do not know.
    Ms. FERRO. Out of 4,000 crashes, we certainly know that----
    Mr. TIPTON. You do?
    Ms. FERRO. Absolutely.
    Mr. TIPTON. It is the truck driver's fault?
    Ms. FERRO. I was about to complete the response. In 2003, 
we carried out a thing called the Large Truck Crash Causation 
Study, a very important study where we analyzed individual 
crashes to determine causation factors, and that analysis 
results in data that demonstrates up to 40 percent of fatal 
crashes are in the hands of the truck driver. Actually, I am 
afraid that is closer to 35 percent, and 45 percent injury 
crashes are related to actions by the truck driver. So that is 
the most recent----
    Mr. TIPTON. Far less than half. I just wanted to kind of 
clarify because----
    Ms. FERRO. Yeah. Yeah, absolutely. That is the most----
    Mr. TIPTON.--you were intimating in your testimony that 
this was caused by trucks. You are now stating less than 50 
percent of this was actually caused by the truck drivers.
    Ms. FERRO. No, no, no. I am always very careful to say 
4,000 crahses--4,000 deaths in crashes relating or involving 
trucks and buses. It does not attribute fault. And in this 
case, the rule estimates 19 lives saved relating to truck-
caused crashes.
    Mr. TIPTON. I think that is just where we want to be very 
cautious that you do not overreach in terms of trying to put in 
a regulatory process that when we talk about families, some of 
these truck drivers are trying to provide for their families. 
They are paid by the mile, and when you are shutting them down 
and they are not able to actually produce and generate revenue 
for those families, there are going to be some real impacts.
    I am curious, how many logs did you look at in terms of 
what drivers in terms of trying to develop a rule?
    Ms. FERRO. Well, I will provide that for the record. We 
certainly included a log survey, driver surveys, as well as 
logbook analysis in our rulebook development.
    Mr. TIPTON. Okay. So you do not have any idea of how many 
logs you actually looked at.
    Ms. FERRO. We look at logs every day across the country.
    Mr. TIPTON. You look at logs----
    Ms. FERRO. But in terms of an actual study, unbiased study 
and a very clear study, that is actually documented in the reg 
eval.
    Mr. TIPTON. I believe by your estimation, 15 percent of 
truck drivers operate at the maximum weekly. Is that correct?
    Ms. FERRO. Yes. In our estimation, it was 15 percent of the 
driving population impacted by this rule because of the nature 
of their operations being overnight and on the road.
    Mr. TIPTON. How is this going to impact the other 85 
percent?
    Ms. FERRO. Actually, insignificant to none.
    Mr. TIPTON. Insignificant to none?
    Ms. FERRO. That is correct.
    Mr. TIPTON. So are they going to be allowed to use the same 
34-hour restart?
    Ms. FERRO. They may. It is voluntary. A driver operating 60 
hours or less does not need the restart.
    Mr. TIPTON. Does the rule imply that?
    Ms. FERRO. Oh, that has been a longstanding rule.
    Mr. TIPTON. That is a longstanding rule.
    Ms. FERRO. That did not require anything new.
    Mr. TIPTON. Okay.
    Ms. FERRO. Yeah.
    Mr. TIPTON. Okay, Administrator, you say in past research 
you have found 240,000 drivers work an average of 70 hours or 
more per week. Can you tell me how your 2007 field study shows 
that drivers work that much time on average each week?
    Ms. FERRO. I will certainly follow that up with--on the 
record with that analysis. Yes.
    Mr. TIPTON. Okay. If you can follow up and give us some 
written testimony----
    Ms. FERRO. Absolutely.
    Mr. TIPTON.--we would certainly appreciate that.
    And you stated that your restart study will be delayed 
until next spring. I assume that is in part due to your peer 
review process?
    Ms. FERRO. It is under review as we speak. That is correct.
    Mr. TIPTON. Okay. Did you have your 2011 Hours-of-Service 
Regulatory Impact Study peer reviewed?
    Ms. FERRO. Generally, it receives extensive review through 
the Notice and Comment Rulemaking Process.
    Mr. TIPTON. Generally, is it going to have peer review is 
my question?
    Ms. FERRO. Well, that is completed. The studies that are 
incorporated and used in that analysis are peer reviewed 
studies.
    Mr. TIPTON. And that is completed?
    Ms. FERRO. That is correct. Yes.
    Mr. TIPTON. Good.
    You know, I would like to shift a little bit, if I may, and 
this is going to go over actually into some oil field work. Was 
this rule a restatement or a revision?
    Ms. FERRO. Which rule is that, sir?
    Mr. TIPTON. Okay, this in regards to the FMCSA 1962 
guidance in regards to off-duty for the Statement of Guidance 
on CMV truck drivers subject to the OHS exemptions under 40 
CFR.
    Ms. FERRO. Yes, Congressman, what we refer to generally as 
the oil field exemption is something that the ICC put in place 
over 50 years ago, and there are two pieces to it. The first 
provides any trucking operation or driver servicing an oil 
field has certain special treatment under the hours-of-service 
rule. They are allowed a 24-hour restart regardless, and that 
is longstanding. That guidance has not been in dispute.
    Mr. TIPTON. And I just want to clarify for me was this a 
revision of the rule----
    Ms. FERRO. No.
    Mr. TIPTON.--or was it a restatement of the rule?
    Ms. FERRO. No, the second piece relates to specialized 
equipment and those eligible for certain off-duty time 
accounting. It was not a change. It was a restatement of the 
guidance that has been in place for 50 years.
    Mr. TIPTON. That is a restatement. Did that go through the 
formal rulemaking process?
    Ms. FERRO. It went through the formal notice and comment 
process. It is not a rulemaking.
    Mr. TIPTON. It is not a rulemaking.
    Ms. FERRO. It is not a rulemaking. No.
    Mr. TIPTON. Is it having the impact of a rule?
    Ms. FERRO. I believe it is not having the impact of a rule. 
It is guidance that has been on the books for 50 years. The 
origins of the restatement were the various ways, the 
differences in the manner in which it was being enforced across 
the country as our country's energy independence has really 
expanded and the development and exploration has expanded. 
Companies who were operating in four or five regions at a time 
noticed that it was being enforced by local officers 
differently, and they said can you please get some 
clarification out there. That is what we did. It prompted some 
real concerns about those who interpreted it differently. But 
again, we restated the guidance, and we have worked very 
intensely with industry to ensure that they understand there is 
an exemption request for that specialized equipment that fits 
in a gray area and that they need to go ahead and submit their 
requests for consideration and for public notice. And that 
process has begun in some cases.
    Mr. TIPTON. Okay. I am out of time but I think we are going 
to have a second round. We will follow up a little bit on that. 
Thank you.
    Ms. FERRO. Okay. Okay. You are welcome.
    Chairman HANNA. Mr. Huelskamp.
    Mr. HUELSKAMP. Thank you, Mr. Chairman. I appreciate having 
this hearing today. This is an important issue to a number of 
my constituents. I receive certainly complaints about this and 
a couple questions. And I am sorry, I came late. To pronounce 
your last name, Ms. Ferro?
    Ms. FERRO. Ferro, that is correct.
    Mr. HUELSKAMP. Okay. Well, thank you, Ms. Ferro. I 
appreciate that.
    Ms. FERRO. Certainly.
    Mr. HUELSKAMP. And I appreciate your comment ``all life is 
precious.'' That is actually not the official line of the 
administration, and I would love to visit with you further 
about that on a number of life issues. But I want to ask a 
little more follow-up questions of my colleague from Colorado 
as far as the MAP study is required under the law.
    Was that required before you could finalize the restart 
rule or was that just something you could do whenever you 
decided it needed to be complete?
    Ms. FERRO. The MAP-21 field study of our 34-hour restart 
provisions was something that Congress said complete. It did 
not connect it to the effective date of the rule. And the rule, 
of course at the time, was already--had already been finalized 
for over a year and published for just about a year.
    Mr. HUELSKAMP. And it was being enforced at the time?
    Ms. FERRO. Well, it took effect July 1 of last year. Of 
this year, pardon me, July 1 of this year. Time flies. We are 
already in December.
    Mr. HUELSKAMP. And there is no way you could get it done in 
12 months to have it completed?
    Ms. FERRO. No, no, no. The mandate, the MAP-21 mandate was 
something that we took on immediately as soon as that bill was 
signed to begin identifying volunteers, companies that would 
volunteer to participate in this kind of a field study.
    Mr. HUELSKAMP. I understand. But that is 16 months later 
and you are telling me it is still not complete.
    Ms. FERRO. Yeah. Our data collection was completed this 
summer and the report itself is now under peer review.
    Mr. HUELSKAMP. So when do you actually expect to complete 
that study and so folks outside the agency can actually review 
the study? There are some questions about previous studies from 
your agency.
    Ms. FERRO. Yeah. Well, I would like to say the upcoming 
months. I know one of the members just said in spring. Ideally, 
we will have it to you in the first quarter of the next 
calendar year.
    Mr. HUELSKAMP. Do you think it is effective to start the 
rule and then proceed with a study to determine whether it is 
really needed or not?
    Ms. FERRO. Well, again, the lab study on which the rule 
provision that is in question today is based is a very solid 
study, a two-faced study, again, based on over a decade of 
sleep science analysis and discussion on this topic.
    Mr. HUELSKAMP. But the data on the truck crashes, how old 
is the data that is being used as the basis for this?
    Ms. FERRO. Well, we certainly used the Large Truck Crash 
Causation data.
    Mr. HUELSKAMP. And when is that from? Is that not a decade 
old?
    Ms. FERRO. Yes, that is correct.
    Mr. HUELSKAMP. Ten year old data and you still take 16 
months, still do not have this study done using 10-year-old 
data. Now, in that 10-year-old data from, again 2003, did it 
not presume--the baseline was I think 434,000 crashes per year. 
Is that correct?
    Ms. FERRO. Yes. And let us separate two separate things. 
The field study is not relying on any old data. The field study 
is relying on the conditions established in the congressional 
mandate under MAP-21. The 450,000 is a number that we used in 
some of the earlier research on the hours-of-service rule. That 
is correct.
    Mr. HUELSKAMP. And so the crash data you are using though 
is 10 years old?
    Ms. FERRO. Yes, and you know, we have carried out an 
analysis moving forward using more current numbers that were 
not in existence at the time we were developing----
    Mr. HUELSKAMP. And is this analysis public?
    Ms. FERRO. Actually, we just completed it based on the 
criticism that came out I think this week from one of the trade 
associations.
    Mr. HUELSKAMP. The analysis, is it public? Is it published, 
ma'am, or is it still internal?
    Ms. FERRO. I will certainly make it public for the record.
    Mr. HUELSKAMP. So in answer it has not been public as of 
today?
    Ms. FERRO. No, again, we just got the claim yesterday from 
one of the----
    Mr. HUELSKAMP. Well, no, it has taken you 10 years to 
update. I understand that takes time. You are using 10-year-old 
data. We have a 40 percent decrease in the crashes as part of 
this, and then it has taken you 16 months. You are still not 
done with the study. You still have not released it at all. It 
is still internal. You do not know whether it is even--well, 
you are saying it is not even going to be released this year, 
sometime in the spring, and then you come here and tell us you 
know exactly what the impact is when you do not have the study, 
it has not been peer reviewed, obviously. It has not been made 
public. I mean, this is actually what upsets my constituents. 
They understand the desire for safety, but they want it to be 
based on science.
    Ms. FERRO. That is right.
    Mr. HUELSKAMP. And ability to actually work with folks that 
are in the field that do it every day. That drive a truck every 
day. And they are telling me this is not working and it is not 
making sense. There have been independent studies that have 
confirmed that in my opinion. It is costing us money and I 
think it is hurting particularly our independents that are out 
there driving.
    And one last thing, I see another issue, a National Pork 
Producers Council had proposed an exemption. Where is that at?
    Ms. FERRO. That is under consideration. And let us put that 
in two pieces but I want to quickly back up and remind you 
again you are combining data in two separate studies. The 
Washington State University Lab Study on which the 34-hour 
restart is based is a two-phase substantive lab study peer 
reviewed and absolutely solid outcome based on decades of sleep 
science research, unrelated to the crash data that you were 
referring to which was also part of the reg analysis, not part 
of the sleep science analysis.
    With regard to the exemption request by the Pork Producer 
Council, yes, they in fact did submit a request for an 
exemption from the 30-minute break, having nothing to do with 
the restart. The agency, recognizing that last year's summer 
heat were extreme, I granted a one-time 90-day waiver. I have 
the authority to do that so over the summer, from the time--
July 1 of this year, the pork producers and the other livestock 
industries they were representing, were operating, had a break 
from the 30-minute requirement. They also submitted an 
exemption request for a full two-year exemption from the 30-
minute break. That is under review today.
    Mr. HUELSKAMP. And do you anticipate granting that or what 
is your estimation?
    Ms. FERRO. I will wait until, again, I agree with you. We 
are very focused on research data-driven decisions in a very 
open process, and so I will let the data and the research----
    Mr. HUELSKAMP. But the exemption request that you did 
grant, that was based on data?
    Ms. FERRO. That was a waiver request. That was not an 
exemption request. It was a 90-day waiver recognizing the 
impact that heat has on livestock and the extreme heats we had 
the summer before.
    Mr. HUELSKAMP. Well, there are extreme heats every summer I 
will note as well, ma'am. There is extreme cold as well. And as 
far as animal welfare, that is a very serious issue. And so I 
appreciate you continuing to look at that. And I would ask you 
to extend that as well.
    And I yield back, Mr. Chairman.
    Ms. FERRO. Understood. Thank you.
    Chairman HANNA. Thank you.
    What is clear to me is that this is a philosophy, an 
ideology, but not a solution to a problem. If you are indeed a 
data-driven organization, why is it that the study simply--what 
was the rush to this? And I agree that the 19 lives, that 
percentage is conjecture. And there is no one here, and I find 
it disquieting that you would even think anybody here would not 
consider each life important. That is not the point. The point 
is the cost-benefit analysis associated with this.
    In your testimony you identified the economic benefit of 
the restart study rather than a benefit. A recent study found 
that the new restart rules have no net benefit. It will cost 
the industry up to 376 million, which you have heard. 
Additionally, a report compiled by the American Transportation 
Research Institute identified the changes to the HOS rule will 
have an operational impact on drivers' wages over the road 
totaling $1.6 billion to $3.9 billion in annualized losses. And 
what do you say to somebody actually in the business who did 
not spend two days in a truck but spent a lifetime in a truck 
when she says the 1 AM to 5 AM is taking away the quality of 
life, reduced productivity, as well as disruption of the 
drivers' normal sleep schedules, circadian rhythm, et cetera? 
And yet, you are supposed to be a data-driven organization. You 
know, a lot of this conversation is not about the 34-hour rule. 
Nobody is objecting to that, but everyone, myself and most 
people, I think, are objecting to the process and the arrogance 
associated with it. And I do not mean that personally, I mean 
that in general, that it is inflicting pain on people and yet 
all we are really asking is that you prove your point.
    So why did you rush to this, if you agree that you did?
    Ms. FERRO. We absolutely did not. So I certainly do not 
agree to that last point. There is no rushing involved. I think 
as the ranking member indicated in her opening statement, the 
hours-of-service conditions under which drivers operate are, 
and will continue to be, hotly discussed because it impacts, 
absolutely, that driver's quality of life, that individual's 
ability to derive strong and successful and life-sustaining 
income, and it impacts small businesses. We recognize the 
impact on small business and on full aspects of the trucking 
industry of this rule and our analysis. It absolutely is data-
based, research-based, fully vetted, unprecedented level of 
transparency throughout the development of this rule process 
which we started in 2010. So in terms of being either theory-
based or philosophy or arrogant----
    Chairman HANNA. But how can you----
    Ms. FERRO.--we have been as open----
    Chairman HANNA. Well, how can you say that when you do not 
take into consideration the change in the nature of the 
drivers' workload, that you have actually through this process 
pushed someone into hours that are more convenient, less 
capable of moving around traffic because it is more congested, 
and yet you said yourself earlier you did not take that into 
consideration. So how is that a holistic study in any way when 
that very thing is something that everybody is talking about? 
And why is the agency so numb to the industry whose number one 
concern is safety? There is not a person I have spoken to about 
this issue that does not agree that safety is the most 
important issue, especially in our very litigious society and 
the cost of workman's comp, et cetera. And yet here we sit, 
fighting back on a rule that the administration did not even 
see fit to finish a study to at least patronize us? That is 
where I come up with the term arrogance.
    Ms. FERRO. Well, yeah. And I would deny both arrogance and 
numbness. We are as sensitized to this industry and drivers' 
conditions as any time in history when it comes to oversight of 
the truck industry. The fact, you know, when you start a rule 
and start a reg analysis, you look at the full population. Who 
is affected by it? Who comes under the oversight of this rule 
development itself and the hours-of-service rules? It is about 
three million drivers. And again, the hours-of-service rule 
itself that was put in place in 2003 has been litigated twice 
and a third time almost, so we really have only had uncertainty 
about this rule until today now that the Circuit Court has 
upheld the rule that we put in place and we finally got some 
certainty going forward. Again, it is a research- and data-
driven rule.
    Looking at, and part of that analysis in the rule 
development includes who is affected by what changes, and what 
is the cost of that and what are the safety benefits. And we 
weigh all of that together.
    Congressman Rice earlier said, you know, ``Who is not 
affected by it?'' Well, again, almost 85 percent of the driving 
population continues to operate because the vast majority in 
ATA's own submittal during the rulemaking process, the vast 
majority of their members' drivers and drivers across the 
country run between 45 and 50 hours a week on average. They 
never need the restart.
    Chairman HANNA. No, but that does not necessarily justify 
the restart for the other percentage.
    Ms. FERRO. You know, there are always tradeoffs and there 
are people impacted by this rule. There are people who were 
impacted by an 80-hour week, week after week after week. That 
is double time. That is what could be averaged under the prior 
rule without this restart. That has a level of health impact on 
drivers. Chronic fatigue has an impact on blood pressure, has 
an impact on diabetes.
    Chairman HANNA. But then how do you respond to Prospect 
Transportation, the lady whose letter I read. What do you say 
to her when she is telling you just the opposite and she 
actually sees these people every day.
    Ms. FERRO. Yeah.
    Chairman HANNA. And I do not want to sit here and say she 
is being disingenuous. I believe these people. And frankly, 
they are okay with the 34-hour rule from 2003. They are 
comfortable. They have learned to live with it, and you said 
yourself, it has been litigated a couple of times. But they 
find this excessive, unproven, and Congress under MAP-21 did 
ask to have a study completed. It was supposed to be done--the 
last time we met it was supposed to be done I think September 
30th. Now we are saying it is spring. I mean, how do you expect 
people to be comfortable, respectfully, with a decision that 
looks so--just the nature of it looks frankly sloppy?
    Ms. FERRO. Yeah, I would like, with your agreement, of 
course, I would like to follow up with your constituent and 
talk with her about how they are applying the rules. It is 
clear from the work, again, we have been on the radio several 
times every month since long before the enactment of this rule 
to, again, listen to drivers' questions. We are all across the 
country talking. We have got logbook examples on our website. I 
would very much like to follow up and find out how she is 
applying it because in many cases we are finding that there is 
a misunderstanding in this restart. So many drivers do not need 
it. They are telling their own safety managers they do not need 
it and safety managers saying, ``Yes, you do.'' Because, again, 
it is a voluntary tool to reset a clock, but if the clock does 
not need resetting, you do not need to get into that condition.
    Chairman HANNA. But a lot of people find themselves there.
    I will yield to Ranking Member Meng. Thank you.
    Ms. MENG. Thank you.
    The number of people killed in large truck- and bus-related 
crashes has declined by about 29 percent between 2000 and 2011. 
What do you think was the main reason for this decline?
    Ms. FERRO. It is a combination--again, safety comes about 
through very intense effort by a wide range of folks--by 
industry, by government--state, local, federal--by enforcement, 
by safety advocates, by the businesses that purchase the 
services of that trucking sector, and generally a recognition, 
again, that safety is a very solid bottom-line number when you 
have got safety as a top priority. And so together, technology 
investment, improved analysis of the carriers that are 
operating unsafely, and actions against them, tougher 
authorities that Congress has given us over the past few years, 
all of those efforts combined continue, and we will continue to 
work together to drive that number down and save lives.
    Ms. MENG. How significant of a problem is driver fatigue 
amongst truckers today and what role does it continue to play 
in car crash, bus crash fatalities?
    Ms. FERRO. Our analysis, both that we used in the rule, as 
well as what we have spoken to in many ways, comes about 
through several different datasets, including in a Large Truck 
Crash Causation Study. In our rule development and evaluation, 
we used a range from 7 percent to 13 percent and analyzed the 
costs and benefits using both pieces of data.
    Ms. MENG. What research and data has FMCSA used to support 
this conclusion of, I am sorry, truck crash--this conclusion?
    Ms. FERRO. The conclusion on the fatigue-rated research? 
Again, it goes back to the very individualized analysis of each 
of the crashes in that Large Truck Crash Causation Study. We 
have also carried out surveys of drivers. In the past, in one 
survey in particular, a significant number and percentage of 
drivers, certainly better than 30 percent, identified that they 
did, in fact, drive tired and had had an experience of, you 
know, sort of a brief moment of sleep at the wheel. And that 
was through surveys. That was not pre-crash, but that was 
absolutely more than anecdotal.
    Ms. MENG. Besides fatigue, are there any other factors that 
contribute to these types of crashes?
    Ms. FERRO. There are a wide range of factors that 
contribute to crashes--speeding, aggressive lane changing, 
unsafe braking or other equipment, inadequate visibility, the 
actions of the passenger vehicle or other vehicle operating 
around and the need for that driver, the professional driver to 
take evasive action. There are a whole series. Weather. There 
are many contributors. But again, the more significant 
contributors, the highest contributor is going to be speed. And 
any other action that could contribute to the inability to 
respond quickly, such as fatigue, if someone is going too fast 
for conditions and they come across a line of traffic, is going 
to compound the result of that crash.
    Ms. MENG. Thank you, I yield back.
    Ms. FERRO. Thank you.
    Chairman HANNA. How do you respond to the truckers in the 
room? I mean, basically, you are saying they are wrong and you 
are right; that the rule will help them. They do not think it 
does. According to a recent study survey of the CMV operations 
and carriers, more than 80 percent of the carriers report 
significant impact on their operations as a result of changes 
the agency has made to the 34-hour restart. You say it is 15 
percent. You know, and how do you respond to criticisms from 
small business trucking operators, the new Hours-of-Service 
regulations actually increase fatigue? I am just----
    Ms. FERRO. What do I say?
    Chairman HANNA. Yeah, what do you say?
    Ms. FERRO. Well, first I start by separating those two data 
points that you talked about--the 80 percent and the impact on 
income. The survey--there are two things that ATRI released 
this week which was part of the American Trucking Association. 
It included a logbook analysis that identified that less than a 
third of 1 percent of the drivers' logbooks showed any change 
in hours of operation pre-rule and post-July 1 of this year. So 
that was the sort of hard, just clear and cut data from 
logbooks. A separate piece that derived that 80 percent is a 
survey that is sort of one of those kind of vote early, vote 
often concepts, an online survey that they solicited their 
members to respond to. I would be happy to understand what is 
behind that survey. That is what I have not seen from them yet, 
but again, we take this very seriously. It is important to 
recognize that this rule and the prior hours-of-service rule 
does impact some drivers' pay, and it absolutely impacts small 
businesses. And in some cases, large businesses.
    Detention time, inadequate compensation, 36 cents a mile 
for a driver running 70 miles a week is just unconscionable. 
That is the average pay.
    Chairman HANNA. Well, you are not proposing--you are not 
sitting here telling people--I mean, that is the market. You 
know, that has got nothing to do with this issue. Why do you 
even mention that? I mean, if you are going to criticize people 
for what they are paying, I can appreciate that, but that is 
not the point. We are saying that you are actually making it 
worse for the very people that you are saying you want to help.
    Ms. FERRO. No, I mention it because the survey in question 
asked drivers about their pay and had it been impacted pre or 
post. So again, the logbook analysis says no change. Drivers 
being solicited, or whoever responded to the survey is saying 
big change in my income. So, and in terms of loss, so 
absolutely, it is very important to understand what is behind 
that data. We would be happy to look at it more closely and 
discuss it and provide our analysis for the record.
    Chairman HANNA. Are you open to rolling this rule back and 
waiting till the survey?
    Ms. FERRO. No, absolutely not. This rule is a solid rule. 
It has been upheld by the court. It is based on sound research. 
However, there continue to be and should continue to be a 
discussion about the hours of service and continued sensitivity 
to the challenges that a lack of predictability imposes on a 
driver in the context of a set of hours. And so we are pursuing 
a pilot project that combines the results of some split sleep 
research we did that we finished after this rule went into 
effect and the electronic logging device rule that we were all 
so eager to press forward on, but take advantage of those two 
pieces. We do not have to wait for the ELD rule to be 
complete--to analyze the benefits of trying to get towards this 
question of improved flexibility while maintaining our 
effective safety oversight.
    Chairman HANNA. So if you find out you are wrong you are 
saying that you are open to changing it because if you are 
studying things but you have already enacted a rule, so I guess 
I find that a little odd.
    Ms. FERRO. Well, I hope I can continue to explain to you 
how in fact it is absolutely to be expected and a solid 
approach that an agency drives a very transparent discussion on 
a rule that has this level of an effect on folks, on at least 
15 percent of the driving population but not the other 85. 
Yeah.
    Chairman HANNA. Mr. Rice.
    Mr. RICE. Thank you, sir.
    I have got information here in front of me. I guess this 
survey you are talking about is from the American 
Transportation Research Institute?
    Ms. FERRO. Right.
    Mr. RICE. So is it more than 80 percent of motor carriers 
surveyed had experienced productivity loss since the new rules 
went into effect, 67 percent of drivers report decreases in pay 
since the rules took effect, drivers' wages for all over-the-
road drivers fell by a total of 1.6 billion to 3.9 billion in 
annualized loss? Do these findings concern you at all?
    Ms. FERRO. Yeah, in fact, I was just speaking with the 
chairman about that. That is correct. And when you separate 
that data, again, as part of ATRI's work on this issue--they 
also analyzed drivers' logs and found that the drivers' logs, 
the hours they worked pre-July 1 and the hours they worked 
post-July 1 changed nary a bit, but a third of 1 percent.
    Mr. RICE. So you are saying that you do not necessarily 
agree with the results of this study?
    Ms. FERRO. Their survey, again, I would describe until I 
can see what the basis of it is, is sort of a vote early, vote 
often type of survey. I have no idea who actually was 
contributing that survey information.
    Mr. RICE. All right. Now, this rule, does it apply to 
short-haul drivers?
    Ms. FERRO. The 30-minute break requirement does not. The 
remainder of the rule certainly does.
    Mr. RICE. Why does it not?
    Ms. FERRO. The 30-minute break requirement?
    Mr. RICE. Yeah.
    Ms. FERRO. Again, the D.C. Circuit Court, as I said, upheld 
the majority of the substance of this rule but did strike down 
the element of the 30-minute break requirement on the short-
haul industry.
    Mr. RICE. Okay. So the court found that this rule was over-
expansive at least in that respect?
    Ms. FERRO. That is correct, on the 30-minute piece. For 
short-haul, yes.
    Mr. RICE. And so people like, you know, people driving 
bread trucks in the morning, people driving cement trucks, and 
these people that they are in and out of their truck all day 
long, it is not like they have got driving fatigue; right?
    Ms. FERRO. And that would appear to be the nature certainly 
of why we have special conditions for short-haul to begin with, 
in that 100-150 mile radius as well as the court's decision on 
the 30-minute break.
    Mr. RICE. So you are saying these overnight rules do not 
apply to the short-haul drivers?
    Ms. FERRO. No, the 30-minute break is the only piece that 
the court struck down. The remainder of the rule absolutely 
does apply.
    Mr. RICE. The overnight rules do apply to short-haul 
drivers.
    Ms. FERRO. Absolutely. And again, they generally do not 
need them because they do not work beyond a 60-hour week.
    Mr. RICE. Then why do they apply to them at all? I mean, it 
is ridiculous in my mind. These people are not suffering from 
driving fatigue. They are in and out of their trucks all day 
long. These people driving concrete trucks, they cannot drive 
very far. The concrete will get hard. Asphalt drivers, they 
cannot drive very far. And then when they get to where they are 
going they sit and wait till they can dump their load and then 
they drive for 30 minutes more. The idea that this rule would 
apply to them is just absurd. This idea from the federal 
bureaucracy that you are going to throw a wet blanket over 
everybody and wait till a lawsuit comes and tells you who it 
can apply to is just absolutely absurd. And particularly with a 
half-baked thing. The study is not even complete. And you 
cannot even tell if you are right whether or not it is going to 
have any effect because the result is so small in terms of the 
benefit but the cost is so great.
    Ms. FERRO. Yes. And it is interesting you say that. The 
hours-of-service rule that applies to the short-haul industry 
is virtually identical to the rule that has been in place since 
2003. And again, because those operators very rarely exceed 60 
hours a week, and they already under the short-haul conditions 
have the ability to extend the workday, that driving window to 
16 hours from the normal 14 during certain times of the week or 
a couple times a week, they already operate under conditions 
that have not changed under this rule.
    Again, hours of service for the trucking industry is the 
purview of the Secretary of Transportation. It is not subject 
to the Fair Labor Standards Act. So anybody that is operating a 
commercial vehicle that comes under the oversight of the DOT is 
going to be subject to some sort of an hours-of-service 
requirement, and that set of requirements on short-haul 
operators is virtually unchanged.
    Mr. RICE. Well, I think that what we have got here is we 
had a rule in place that had reduced traffic deaths, 
fatalities, accidents by truckers by 29 percent I think is what 
Ms. Meng said and that we have done a study with 27 graduate 
students in Washington and determined that maybe possibly we 
might be able to save 18 people. We are not going to know 
because the sample is so small. And we are willing to impose 
the Federal government on all these small businesses across the 
country and have them incur this loss where we have got 60 
percent of drivers report pay decreases, 80 percent of motor 
carriers providing productivity loss and we have not even 
finished the study. I do think it is arrogance. I absolutely 
think it is arrogance. I think we need to rethink. We need to 
reset. We need to at least finish our study and figure out if 
we are basing this on the right conclusions.
    So I thank you for appearing today. I hope you will 
reconsider. Thank you.
    Ms. FERRO. Thank you.
    Chairman HANNA. Mr. Tipton.
    Mr. TIPTON. Thank you, Mr. Chairman.
    I think I would like to follow up on a couple of the 
comments that you had made, Administrator. In your response to 
the Chairman you said that you were sensitized to the industry 
concerns.
    Ms. FERRO. Absolutely.
    Mr. TIPTON. And Mr. Rice was just noting 80 percent of the 
motor carriers surveyed experienced productivity loss. A 
majority of drivers, 67 percent report decreases in pay since 
the rule took effect. And I think it is important to note these 
are not oftentimes big businesses. The big company owner is the 
guy driving the truck or the woman driving the truck, so you 
are sensitized to that. Do you understand the frustration of 
``one size fits all'' being thrown over an industry?
    Ms. FERRO. Absolutely. I think that has been a frustration 
that has prevailed for the hours-of-service rules for many, 
many years. It absolutely predates this rule. It is the----
    Mr. TIPTON. So we are adding another rule that is ``one 
size fits all''?
    Ms. FERRO. No, no, no. The same rule is virtually intact. 
It is the 14-hour driving window and 11-hour drive time. It 
provides for a restart for those that need to reset their 
clock, and the vast majority do not.
    The survey in question I think surveyed about 3,000 
drivers. Again, we do not know who they were or the integrity 
behind that process. I am happy to provide our analysis of that 
survey for the record. But again----
    Mr. TIPTON. You mentioned 3,000.
    Ms. FERRO. Yeah.
    Mr. TIPTON. I am just curious, how many drivers are there 
in the country?
    Ms. FERRO. Roughly three million affected by this rule.
    Mr. TIPTON. Three million.
    Ms. FERRO. But more than that certainly operating on 
intrastate operations or smaller vehicle operations that are 
not keeping records of duty.
    Mr. TIPTON. Right. And just for my clarification, of these 
3,000, was this nationwide in the sample survey?
    Ms. FERRO. I do not know. I think whoever is responsible 
for that survey, it was an industry survey, could be able to 
answer that I hope.
    Mr. TIPTON. Okay. And I think this begs back to the 
Chairman's point, that we are implementing a rule. It is not 
completed. We do not know if it was broad-reaching in terms of 
different regions by your own admission right now, but we are 
forging ahead with a rule that is going to impact real lives, 
real businesses, and could have some very dramatic effects.
    I appreciate your being here. I understand, and we all, 
again, share the compassion of wanting to make sure that we are 
safe. I happen to know some of the guys driving the trucks. 
They want to be safe, too.
    Ms. FERRO. Yeah, they do.
    Mr. TIPTON. But they want to earn a living, too. And they 
are seeing the Federal government stepping in with a broad-
based ``one size fits all'' across the nation policy on an 
incomplete study with a small sample size that can really 
impact them. And I hope you can understand that frustration 
that is there.
    Mr. Chairman, if I may, I think this speaks broadly to a 
bill that we passed through the House of Representatives called 
the Rains Act to where we can actually get Congress involved 
back into the rulemaking process because I have to tell you, as 
a member of Congress, it came from the state of Colorado, we 
have sunset legislation where we can review rulemaking, and to 
be able to actually bring in those real-life stories and those 
real-life impact. I think this Rains Act is something I would 
encourage the United States Senate to take up because as well-
intentioned as you are, I think there are some real impacts 
that are not really being taken into consideration here. When I 
was in business, before we made a decision, we had the final 
product to be able to make the best decision.
    Ms. FERRO. Well, look, the safety of the American people is 
something we take into consideration utmost. That is why this 
agency was created. Safety of the industry, health of the 
driver, ultimately safety of the American people. The number of 
fatalities, even taking your earlier example of what if it is 
something closer to 25 percent or 30 percent that are caused by 
the truck driver, you are talking two to three 747s. Two to 
three 747s crashing every year. You would not tolerate it. The 
American people would not tolerate it. We continue to press 
forward with balanced rulemaking, research-driven, data-based. 
The study you asked me about in terms of its nationwide impact 
is an ATRI study. That is not a FMCSA study. The numbers you 
quote were something that was just released this week. The data 
and research behind this rule were fully vetted, fully peer 
reviewed, fully available to stakeholders to comment on. This 
has been a more transparent process than ever before. This is a 
rule that has been upheld by the court. We now have certainty 
in the hours of service, which we have not had since the ICC 
Termination Act directed the agency to revisit truck drivers' 
hours-of-service rule because of fatigue and its impact on 
crash likelihood and safety.
    Chairman HANNA. Sure. And Congress has still asked to have 
a study completed for----
    Ms. FERRO. And we will complete it.
    Chairman HANNA. Well, I do not know. The intent is clearly 
that the study be completed before the rule is enacted.
    And I would like to note for the record that the agency, 
unless I am mistaken, has not made your methodology of its 
economic analysis public.
    Ms. FERRO. Oh, well----
    Chairman HANNA. Is that out there?
    Ms. FERRO. Absolutely it is out there.
    Chairman HANNA. All right.
    Ms. FERRO. Yep. I have got a full docket with lots of 
explanation.
    Chairman HANNA. Can you send that along then?
    Ms. FERRO. I will be pleased to send that along.
    Chairman HANNA. Thank you.
    I want to thank you for being here today.
    Ms. FERRO. Yes, sir.
    Chairman HANNA. And members of Congress may have additional 
questions, so if you do, I just ask that you submit them in 
writing.
    As you can tell by the TV, we have votes so we are going to 
adjourn to go to the floor. I would guess that we will be back 
here by noon. And I invite you to stay if you like.
    Ms. FERRO. Thank you.
    Chairman HANNA. If you feel so inclined, and hear from the 
industry themselves and get the counterpoint. But I also 
understand that you may have to go.
    Ms. FERRO. Thank you, Mr. Ch airman.
    Chairman HANNA. Thank you. We will see you around noon.
    [Recess]
    Chairman HANNA. Ms. Meng is coming back, so hopefully she 
will be here shortly, but I am going to in the interest of time 
just proceed.
    Thank you all for appearing today. I would like now to 
introduce the first witness of the second panel, Mr. Duane 
Long. Mr. Long is chairman of Longistics, a small business, 
freight-hauling operation located in Raleigh, North Carolina. 
Mr. Long started his business with one truck in 1984. Since 
then he has built his business into 45 truck operations 
employing over 105 people. He is testifying on behalf of the 
American Trucking Association.
    Mr. Long, thank you, and thank your wife for being here 
today. You may proceed, sir.

 STATEMENTS OF DUANE LONG, CHAIRMAN, LONGISTICS, TESTIFYING ON 
BEHALF OF THE AMERICAN TRUCKING ASSOCIATION; TILDEN CURL, JR., 
  TECCO TRUCKING, TESTIFYING ON BEHALF OF THE OWNER-OPERATOR 
INDEPENDENT DRIVERS ASSOCIATION; BRIAN EVANS, PRESIDENT-OWNER, 
    L&L FREIGHT SERVICES, INC., TESTIFYING ON BEHALF OF THE 
     TRUCKING INTERMEDIARIES ASSOCIATION; PAUL P. JOVANIS, 
   PROFESSOR, CIVIL AND ENVIRONMENTAL ENGINEERING; DIRECTOR, 
   TRANSPORTATION OPERATIONS PROGRAM, LARSON TRANSPORTATION 
          INSTITUTE, THE PENNSYLVANIA STATE UNIVERSITY

                    STATEMENT OF DUANE LONG

    Mr. LONG. Chairman Hanna, and members of the Subcommittee, 
thank you for this opportunity.
    ATA is the largest trade association for the trucking 
industry. Through its affiliated associations, the ATA 
Federation represents more than 30,000 members covering every 
type of carrier.
    I am Duane Long, chairman of Longistics, a trucking and 
logistics company in North Carolina that my wife and I started 
in 1984. We operate on average 45 trucks and employ an average 
of 105 drivers who provide service for pharmaceutical customers 
throughout the United States. We take pride in our outstanding 
safety performance.
    Mr. Chairman and Representative Rice, thank you for 
introducing H.R. 3413. ATA full supports the bill. Simply put, 
the hours-of-service changes were unnecessary. FMCSA's action, 
while perhaps well intentioned, was not based on evidence or 
analyses demonstrating a problem with the prior set of rules. 
These new rules are having real-world impacts on thousands of 
small trucking companies and the million-plus drivers that work 
for them. Keep in mind, 97 percent of trucking companies are 
small business with 20 trucks or less.
    This past Monday, the 18th, the American Transportation 
Research Institute issued a new report on the impacts of these 
rules based on two separate surveys conducted in September and 
October. The first collected data from more than 2,300 
professional truck drivers, and the second survey yielded 
responses from more than 400 truck fleets, 70 percent of which 
were small fleets. ATRI also analyzed electronic logbook data 
from more than 40,000 drivers over a 93-day period after July 
1.
    ATRI's findings are groundbreaking, and remarkably timely 
for this hearing. ATRI found that 67.4 percent of surveyed 
drivers reported a drop in their income since July 1st. The 
aggregate annual loss is between $1.6 billion and $3.9 billion 
spread across a million-plus over-the-road truck drivers; 82-1/
2 percent of drivers indicated a somewhat negative or very 
negative impact on their quality of life. Ironically, 66 
percent perceived increases in fatigue since these rules went 
into effect. More than 80 percent of fleets surveyed indicated 
a loss of productivity, and counter to FMCSA's claims, 
electronic logbook data does not support the agency's claims of 
drivers consistently working excessive hours. I can confirm 
these findings. My drivers work reasonable hours yet they have 
lost productivity. Bottom line, these rules are having a 
widespread negative impact on productivity for drivers and 
fleets.
    A few specifics about my company. We employ team drivers, 
typically husbands and wives, who take turns driving the truck 
and one resting in the truck's sleeper berth. Their weekly 
routine often keeps them on the road until around 2 AM early 
Saturday morning. Under the previous restart rule, they could 
depart on their next trip Sunday evening after being off more 
than a day and a half in order to make a Monday morning 
delivery required by our customers. Now, when taking the 
restart, they cannot depart until after 5 AM on Monday and are 
unable to meet the customer's expectations and the demands of 
just in time delivery. Other small fleets have shared similar 
concerns with ATA. Because restarts must now include this 1 AM 
to 5 AM period, many trucks are entering the traffic flow at 
about the same time just as rush hour begins. A regional food 
transporter based in Minnesota that ATA has heard from 
experienced a loss in productivity per truck of between 4 and 6 
percent. Their drivers are frustrated and so are the customers 
as late deliveries have doubled over the past three months. ATA 
has heard similar problems and concerns from many companies, 
both small and large. More importantly, ATRI has documented the 
widespread nature of these problems and their huge cost. More 
troubling is these new rules are not likely to result in any 
kind of meaningful benefit. Not surprisingly, FMCSA has 
announced no plans to collect data in an effort to determine if 
the benefits are possible. We did not hear any plans to that 
effect today. We encourage Congress to pass H.R. 3413 to stay 
the restart provision until GAO completes an assessment of 
FMCSA's cost-benefit work and its restart field study.
    This is not just a trucking issue. The rule changes are 
having negative impacts throughout the supply chain and 
explains why the National Association of Manufacturers, 
National Federal of Small Businesses, and more than 50 other 
organizations are supporting H.R. 3413.
    Again, thank you for this opportunity, and I look forward 
to any questions.
    Chairman HANNA. Thank you.
    Our next witness is Mr. Tilden Curl. Mr. Curl is a single-
unit owner-operator from Olympia, Washington. He has more than 
20 years of experience in the industry. In addition, Mr. Curl 
was recently recognized as the 28th annual Good Year Highway 
Hero. He received this distinction for risking his own life to 
save a motorist whose disabled vehicle was almost hit by a 
train. He is testifying today on behalf of the Owner-Operator 
Independent Drivers Association.
    Mr. Curl, thank you for being here. And I want to tell you, 
I am a 35-year member of the Operating Engineers. So we share a 
similar history.
    Mr. CURL. We do. Thank you very much.
    Chairman HANNA. You may begin, sir.

                    STATEMENT OF TILDEN CURL

    Mr. CURL. Good morning.
    My name is Tilden Curl. I am from Olympia, Washington, and 
I have been a professional driver for over 20 years. I 
currently operate throughout seven western states and 
appreciate the opportunity to testify on behalf of the Owner-
Operator Independent Drivers Association. OOIDA represents the 
small business truckers that are the majority of the U.S. 
trucking industry. More than 90 percent of carriers own 20 
trucks or less. Half of all trucking companies are one-truck 
operations.
    Small business truckers are committed to highway safety. 
For us, accidents have an adverse impact on our businesses and 
our livelihoods. OOIDA's average member has a quarter century 
of experience and more than two million miles of accident-free 
driving.
    I want to thank Administrator Ferro, who recently saw our 
commitment to safety and some of the challenges truckers face 
every day as she joined an OOIDA board member on a two-day 
ride-along from D.C. to St. Louis. As professional drivers, we 
need flexibility to balance countless demands. Loss of 
flexibility has an economic impact for small business truckers 
and over time changes to the Hours-of-Service regulations have 
reduced that flexibility. Less flexibility makes it more 
difficult to stop for rest, avoid traffic, and keep a schedule 
after being delayed by a shipper or receiver.
    The recent Hours-of-Service rulemaking, which was the 
result of a court settlement, was an opportunity to help 
truckers balance these countless demands. Unfortunately, the 
changes went in the opposite direction, adding new restrictions 
to the 34-hour restart, requiring an arbitrary 30-minute break, 
and retaining the unstoppable 14-hour duty clock. The impacts 
of these changes are borne out in a recent survey of OOIDA's 
membership. While only 3 percent said they felt less fatigued, 
46 percent of respondents felt more fatigued after the changes; 
79 percent have seen impacts in their ability to use the 
restart; 65 percent responded that they have lost some income, 
and more than half experienced reduced loads and mileage. My 
own experience has mirrored these responses, especially with 
the two 1 AM to 5 AM periods during the restart. This often 
puts me in the middle of Seattle's rush hour and much like 
D.C.'s beltway traffic, this means more time on the road at a 
greater risk of accidents.
    For these reasons, OOIDA supports H.R. 3413, Mr. Hanna and 
Mr. Rice's legislation that will ensure a full examination of 
the 34-hour restart restrictions. As it is now, the restart 
restrictions could reduce my potential workweek by as much as 
one day, possibly costing me as much as $4,000 to $5,000 a 
month. While some would argue technology is the safety 
solution, OOIDA's members see this as a false premise and a way 
to ignore larger issues. This rings true when accident data 
shows that carriers who depend on technologies, such as onboard 
recorders and speed limiters crash twice as frequently as 
carriers who use experienced and safe owner-operators.
    With this in mind, what should be done? FMCSA itself can 
act by returning flexibility to the hours of service, including 
allowing truckers to pause the duty clock with rest breaks. 
Trucking, government, and most importantly shippers and 
receivers, must address the detention issue. Professional 
truckers, will still considered unskilled labor, deserve to 
have their time fully, fairly compensated. We must stop placing 
more rigid requirements on the driver while allowing carriers 
and customers to make demands beyond the allowances of 
regulations and safety. FMCSA must act on an entry-level driver 
training and driver trainer requirements as the foundation of a 
healthy safety program. Advancing this policy first called for 
by Congress in 1991 is OOIDA's top safety priority. Our 
comprehensive driver training proposal forms the keystone of 
our truckers for safety agenda. You can learn more about this 
at truckersforsafety.com.
    In closing, bringing our complete supply chain in as 
partners to address the regulatory responsibilities of truckers 
is the right direction to take. Further, FMCSA should 
prioritize providing additional flexibility while addressing 
core needs, like entry-level driver training. The wrong 
direction is to rely on further restrictions and unproven 
technology.
    Thank you for the opportunity to testify and for holding 
today's hearing.
    Chairman HANNA. Thank you, Mr. Curl.
    Our next witness is Mr. Brian Evans. Mr. Evans is president 
and CEO of L&L Freight Services, a 12-employee transportation 
brokerage located in Cabot, Kansas--Arkansas. Prior to joining 
the freight brokerage business, Mr. Cabot (sic) was an over-
the-road trucker. He is testifying today on behalf of the 
Transportation Intermediaries Association.
    Mr. Evans, you may deliver your testimony.

                    STATEMENT OF BRIAN EVANS

    Mr. EVANS. Thank you, sir. Chairman Hanna, Ranking Member 
Meng, members of the House Small Business Committee, thank you 
for this opportunity to speak with you today regarding concerns 
affecting small businesses arising from the FMCSA Hours-of-
Service rules.
    As mentioned, my name is Brian Evans. I am the owner of a 
small transportation brokerage company. I serve as the 
president and CEO of L&L Freight Services out of Cabot, 
Arkansas. I am a 20-year veteran of the transportation, freight 
brokerage, and supply chain management sector. I do come from a 
family-owned, blue-collar, small business. Prior to working in 
the brokerage industry, I drove over-the-road for almost one 
million accident-free miles. Additionally, I currently serve on 
the TIA Board of Directors. TIA represents 1,400 member 
companies, 70 percent of which are small family-owned 
businesses. Like the FMCSA, one of our primary missions is 
promoting safe practices. As an organization, we seek to work 
with FMCSA to make the Hours-of-Service regulations the best 
possible tool to improve safety for the motoring public by 
reducing truck driver fatigue.
    Unfortunately, the new Hours-of-Service regulations were a 
solution in search of a problem. No one wants unsafe trucks or 
drivers on the road. To that end, we have a standing committee 
that has published and regularly updates a carrier selection 
framework. The TIA recommends that every broker and every 
shipper have in place a written carrier selection policy for 
hiring carriers. Safety improvements by the industry under the 
previous Hours-of-Service rules reduced accidents. It allowed 
the market to become more efficient and allowed American 
business to be more competitive. The new rules, however, are 
overly complicated, will reduce productivity, and have no 
effect on reducing accidents beyond the previous level.
    In the 24th annual State of Logistics report authored by 
Rosalyn Wilson, she estimates that a loss of productivity close 
to 6 percent for the transportation industry. This is a 
significant amount in loss of productivity that could lead 
companies to expand their near-shoring ventures into 
neighboring countries, thus relegating valued American 
transportation jobs to foreign nations.
    I have spoken with many of my carrier customers who are 
experiencing a major loss of productivity due to the new 
restart provision. This rule is resulting in around five fewer 
loads per week or a reduction of 3 percent in capacity for 
their fleets. The cost of this loss of efficiency is felt by 
the business and ultimately will be passed on to each of us, 
the consumer. We are not suggesting that increased safety be 
traded for increased efficiency. We are stating that safety 
improvement was achieved under the old rules and that the new 
rules will not result in dramatically increased carrier safety.
    As you know, there is a pressing shortage of drivers across 
America. The new Hours-of-Service rules will have a twofold 
effect. First, it will chase out qualified drivers and deter 
future motor carriers from entering the industry because the 
rules limit the number of loads that a carrier can handle each 
week. The rule will also likely require drivers to operate 
during peak hours of operations, thereby increasing congestion, 
and as a result, reducing safety.
    The American Transportation Research Institute recently 
released their 2013 edition, Critical Issues in the Trucking 
Industry. The report places the new Hours-of-Service 
regulations as this year's top concern for the transportation 
industry. ATRI estimates that the changes to the restart 
provision alone would cost the industry $189 million as opposed 
to the $133 million benefit that is projected by the FMCSA.
    The FMCSA's concerns about driver health and safety are to 
be applauded. The TIA supports the passage of H.R. 3413, the 
TRUE Safety Act. TIA urges the agency to examine the negative 
effects of the 34-hour restart provision and to consider 
amending the rule to give transportation the flexibility that 
they need to ensure safety.
    I appreciate very much this opportunity to testify before 
the subcommittee today on the concerns of the new HOS rules and 
the effects that it has on businesses like mine, whether a 
third-party logistics provider, a motor carrier, or the entire 
supply chain. I will be happy to answer any questions.
    Chairman HANNA. Thank you, Mr. Evans.
    Ranking Member Meng will be introducing our next witness.
    Ms. MENG. Dr. Paul Jovanis is a professor of Civil 
Engineering at Penn State University and has over 34 years of 
experience in highway safety and traffic engineering. At Penn 
State, he is also the director of the Transportation Operations 
Program at the Larson Transportation Institute. He has 
extensive expertise in the area of driver fatigue and motor 
carrier safety and has published frequently on these subjects. 
Prior to coming to Penn State in 1997, he was a professor and 
associate director of the Institute of Transportation Studies 
at the University of California Davis. Thank you for being 
here.

                  STATEMENT OF PAUL P. JOVANIS

    Mr. JOVANIS. Chairman Hanna, Ranking Member Meng, and 
Committee members, thank you for the privilege of sharing and 
participating in this hearing.
    Understanding the relationship between truck driving hours 
of service and crashes is a complex and challenging task. 
Researchers working in this area come from backgrounds as 
diverse as human factors, psychology, medicine, and road 
safety. Some of the research in this field has been described 
by the term ``fatigue'' even though questions have been raised 
in the literature about the definition of the term ``fatigue'' 
itself. Others have focused on studying the association of 
crashes to the duration of driving, rest breaks, scheduling of 
driving over several days, and time of day. All of these 
approaches contribute in different ways to our accumulation of 
knowledge about hours of service and crashes. This testimony is 
not an exhaustive review of this literature as there would 
likely be hundreds of citations; rather, this is an attempt to 
summarize the most recent work in the field with a few 
additional references to well-cited research.
    Concerning the effect of hours of service on crashes, I 
offer the following summary.
    Hours of continuous driving. Using data supplied by 
carriers over a period of more than 20 years, there have been a 
number of studies that support the basic principle that the 
longer one drives, the greater the odds of a crash. And you see 
the references in the testimony. These eight studies estimated 
the effect of driving time, importantly, when controlling for 
other factors such as experience, off-duty time, driving 
pattern over multiple days, and in one case, time of day 
directly. These studies are among the few that control for 
multiple factors while seeking to estimate the effect of 
driving time. A study using fatal truck involved crashes from 
1980 to 2002 also indicated an increase in crash risk with 
hours driving.
    Using trucks instrumented with cameras and other vehicle-
based sensors, a series of studies have been conducted to 
connect risky driving maneuvers to hours of service. Using 
these measures, one study found little connection between the 
observed events and hours driving. A second study with more 
extensive data did find an association of driving time with the 
occurrence of safety-critical events, including a few crashes. 
This second study, like the first, also showed a close 
correlation with time on duty. Other studies using regular work 
conditions have found little association of these metrics with 
hours driving.
    In summary, based on a series of studies using carrier-
supplied data and one with fatal truck crashes measured over 20 
years, I believe there is evidence that crash risk increases as 
driving time increases. Concerning hours off duty, the increase 
in required off-duty time was implemented in 2003. Crash-based 
research using data from the 1980s indicates that drivers with 
more than nine hours off duty had a lower crash risk when 
returning to work than drivers with eight to nine hours off 
duty. This is a case where the change in regulations, 
increasing off duty time from eight to 10 hours, is consistent 
with the research.
    Concerning time of day. The effects of time of day are 
particularly difficult to identify because trucks share the 
road with other traffic which has marked peaks in urban areas 
during the morning and evening rush. In a study using crash 
data with a baseline of 10 AM to noon, crashes were elevated in 
the early morning, 4 AM to 6 AM through about 10 AM, and then 
again from 4 PM to 10 PM. Another study found an increase in 
the odds of a crash from 11 PM through 6 AM. Using fatigue 
tests and instrumented vehicle data, others found strong 
association of declines in performance and fatigue tests linked 
to time of day. Fatigue, self rated by the drivers, increased 
more during night than day shifts in a study in Australia. So 
time of day is associated with crash risk. The question is how 
to best address this in regulations.
    Rest breaks. Breaks are included in the Hours-of-Service 
rules for the European Union, which require 45 minutes for each 
four and a half hours of driving. In 2013, the new U.S. rule 
required a 30-minute rest break before eight hours of driving. 
Lack of mandatory inclusion in this policy allowed researchers 
to compare drivers with the break and those without. The 
presence of two breaks reduced crash odds by 30 percent in a 
2011 study. Safety benefits of rest breaks seem overwhelming.
    Cumulative driving over several days. The introduction of 
the 34-hour restart in 2003 has triggered a series of studies 
of the effect of cumulative driving both with and without a 
restart. Two laboratory studies have been recently completed 
that focus on the 34-hour restart. In the first, subjects were 
split into two groups, one working a daytime schedule for five 
days, off duty for 34 hours, then working five more 14-hour 
days. The second group had a similar schedule except the 
participants worked at night for five days, had a 34-hour day-
oriented break, and then another five days of night work. The 
principal finding is that the day-oriented work group showed no 
decline in performance, while those with the night work showed 
a decline when they returned to work after the 34-hour restart. 
These studies were enhanced in a follow-up experiment in which 
participants were subjected to night work periods separated by 
a 58-hour restart aimed at emulating the effect of an 
additional day on top of the 34-hour regulation. In this case, 
drivers were compared against each other before and after the 
restart. The longer restart resulted in no performance 
degradation after return from a 58-hour off-duty period.
    This concludes my oral testimony. I am happy to answer any 
questions that you may have. Thank you.
    Chairman HANNA. Thank you.
    Ranking Member Meng.
    Ms. MENG. Thank you, Mr. Chairman, for the courtesy.
    Question for Dr. Jovanis. The new HOS rule does not restore 
the allowable driving time to 10 hours. What is the effect of 
an extra driving time on driver fatigue and truck accident 
rates?
    Mr. JOVANIS. Well, I guess I could answer most directly by 
saying all the evidence that we have and all the work that we 
have done for over 20 years are that increasing from 10 to 11 
hours increases the likelihood of crashes. The curve goes up. 
We do not do work with the word ``fatigue'' so I will just 
answer the question in terms of crashes.
    Increasing from nine to 10--changing from nine hours to 10 
hours increases the risk; going from 10 hours to 11 hours 
increase the risk of a crash.
    Ms. MENG. And question for Mr. Curl.
    FMCSA claimed that truck drivers' health will benefit 
substantially from the new rule. They asserted that more time 
off results in more sleep. What is your view of this 
assessment? Does more time off necessarily mean more sleep for 
drivers?
    Mr. CURL. No, it really does not. To address the issue of 
fatigue you need to take rest or take sleep at times when your 
body is ready for it. You cannot legislate sleep or rest from 
anything other than the cab of a truck.
    I would like to weigh in a little bit on your recent 
question regarding fatigue and the difference in the hours of 
driving. I believe there was an ATRI study that was done once 
that showed the greatest risk was actually in the first hour of 
driving rather than in the last hour of driving, which almost 
mirrored the danger in the 11th hour was almost as high but not 
quite as high as the first hour. So, also fatigue or asleep 
truck drivers were a factor in 1.8 percent of all truck-
involved fatality accidents, 64 accidents total in 2011.
    Ms. MENG. Thank you. Same to Mr. Curl, as a small business 
owner, most trucking firms are small businesses. As a small 
business owner, how easy would it be to hire additional drivers 
and buy new trucks to make up for lost productivity caused by 
the Hours-of-Service rule?
    Mr. CURL. Hiring more trucks is not going to be the 
solution because each and every truck has to be profitable of 
itself, in and of itself. So, you know, hiring another truck to 
make up for it is, I do not know, it is like--it is not going 
to address the real underlying issue. The real issue. And 
actually, Hours-of-Service does have a huge impact on what we 
do. But it is one of several issues that we face in the 
industry. Truthfully, detention time has a greater impact on 
what we do than the hours of service.
    Ms. MENG. Thank you. I yield back.
    Chairman HANNA. Mr. Rice.
    Mr. RICE. Mr. Jovanis, do you think that the proposed rule 
will have a meaningful impact on accidents and injuries? Yes or 
no?
    Mr. JOVANIS. I do not know. I do not know because I have 
not studied----
    Mr. RICE. Thank you, sir.
    Mr. Evans, do you think it will?
    Mr. EVANS. No, sir, I do not.
    Mr. RICE. Mr. Curl?
    Mr. CURL. No.
    Mr. RICE. Mr. Long?
    Mr. LONG. No, sir. I do not.
    Mr. RICE. Thank you.
    Mr. Curl, you hit on something that I think is important. 
You said that drivers need flexibility, and it appears to me 
that the federal bureaucratic framework, not just related to 
truckers or transportation or anything else, the problem with 
it is that we try to write these rules that apply to everybody 
and you cannot do it in a logical way that it does apply to 
everybody. When you say flexibility, I mean, if you get held up 
by a supplier and you have to have your load to a certain place 
and you were planning on driving the next day but you know now 
you are going to be thrown to the day after and you have got a 
restart in the middle, it might force you to drive when you are 
tired; correct?
    Mr. CURL. Absolutely.
    Mr. RICE. So actually, these rules could force you into a 
situation that you would normally thin was unsafe; correct?
    Mr. CURL. That is correct.
    Mr. RICE. Can you be more descriptive of a situation like 
that than I could, because I am not a driver. Can you help me 
with that?
    Mr. CURL. Well, I can. But you have to understand that in 
the trucking industry we are such a diverse industry that of 
all the types of operations that we have, several of them are 
alike maybe but the majority of them are individual by nature. 
So flexibility comes in addressing the issues of each 
particular operation, you know, and in my particular operation, 
if I could leave my house at say four in the morning and get 
through Seattle before the rush hour traffic hits, it would be 
great. But that violates my 1 AM to 5 AM periods that is 
required for the 34-hour restart. I mean, that is one example 
of flexibility.
    Mr. RICE. Mr. Long, do you think that these rules could 
force truck drivers to drive in a fatigued situation when they 
otherwise would not?
    Mr. LONG. I would hope not but Mr. Curl gave an example 
where I think it could possibly happen. We would not do that at 
my company. We would make sure our drivers were always safe. 
But that could happen given the example that Mr. Curl gave.
    Mr. RICE. Mr. Jovanis, you mentioned a number of studies 
that seemed to have differing conclusions. On one hand you said 
hours of driving did not have a meaningful impact on--what did 
you say? You said longer drive times did not necessarily 
increase--give a greater chance of accidents. Is that not what 
you said?
    Mr. JOVANIS. I do not think so.
    Mr. RICE. Okay.
    Mr. JOVANIS. But let me try to clarify.
    Mr. RICE. All right.
    Mr. JOVANIS. One of the complicating factors in this area 
is that different studies have had different findings. So the 
studies done sponsored by FMCSA in 2003 and 2004 by Virginia 
Tech did not find an association of driving time with what they 
called safety critical events.
    Mr. RICE. That is almost unbelievable to me. So they are 
saying you could drive for 48 hours straight and not have a 
higher chance of an accident?
    Mr. JOVANIS. Well, given the data that they collected over 
say a 14-hour period of work, they saw no difference from the 
first hour to the 14th hour. It was uniform in terms of the 
rate at which bad driving or errors were occurring.
    Mr. RICE. You also said that the chances of an accident 
increase in the morning and in the evening.
    Mr. JOVANIS. Right.
    Mr. RICE. And I presume you are talking about rush-hour 
times?
    Mr. JOVANIS. Right. Right.
    Mr. RICE. Okay. Do you know if the study that has been done 
by the--whatever the acronym is, FMCSA or whatever it is--takes 
into account--I know they are aimed at fatigue and they think 
that by keeping people off the road from 1 AM to 5 AM lowers 
fatigue and that lowers the chance of an accident. Do you know 
if it takes into account the increased risk that you are 
talking about of forcing drivers to drive in that rush hour 
time?
    Mr. JOVANIS. Well, they funded some of my work, so the more 
recent report that you have in the testimony from 2011 is 
funded by FMCSA and we use crash data. FMCSA chooses a number 
of different sort of scientific mechanisms to do these things.
    Mr. RICE. You do not know whether it takes that into 
account or not?
    Mr. JOVANIS. My studies did. I do not know the extent to 
which the other studies did.
    Mr. RICE. So you did a study that analyzed fatigue and 
determined that people were less fatigued if they had these two 
periods of time in the early morning--what did I say, 1 AM to 5 
AM. Is that not the time that they are requiring to have off? 
That they are less fatigued if they do that rather than under 
the current rule. Is that right?
    Mr. JOVANIS. I would not use the word ``fatigue.'' The 
reference that I gave in the testimony was that if they are 
driving in the early morning hours, from say 4 AM to about 10 
AM, then they have a higher risk of a crash.
    Mr. RICE. But under the rule as proposed, are we not 
forcing drivers into those hours? Yes, clearly we are. Yes, we 
are.
    Mr. JOVANIS. Let me say this. What has surprised me about 
this particular set of rules is it is the first time that the 
agency has specified particular times of day when people have 
to be off duty. If you look at the regulations prior to that, 
we talked about flexibility on the panel. They have never 
specified a particular time of day when you had to be off duty. 
This is the first time that they have done that.
    Mr. RICE. But under this current rule, under the proposed 
rule or whatever--it is in effect already--they are off the 
road from 1 AM to 5 AM; right?
    Mr. JOVANIS. If they want to use the restart, they have to 
be off the road for two consecutive days.
    Mr. RICE. Which increase the likelihood that they are going 
to be on the road from 5 AM to whenever; correct?
    Mr. JOVANIS. Well, I would presume that but I do not know 
that in fact.
    Mr. RICE. And you are saying that your studies show that 
from 5 AM to 10 AM there is an increased chance of accidents; 
correct?
    Mr. JOVANIS. That is right.
    Mr. RICE. So we are forcing them into a time when they are 
more prone to accidents?
    Mr. JOVANIS. Well, like I said, I do not know that for a 
fact, so I would be uncomfortable saying that as directly as 
you.
    Mr. RICE. Thank you, sir.
    Chairman HANNA. Let me say it directly then.
    What we heard--Doctor, I really appreciate--I read your 
testimony in advance. I appreciate the openness with which you 
presented it here today and the way it is written.
    What we know though is that the study, the proposed study 
and the process that they went through for the rulemaking did 
not include, and we heard Administrator Ferro say, did not 
include the consideration of those early morning hours which we 
know people are forced to work in when traffic is more. So let 
me just ask you this because it is going to be abstract and we 
do not have a study about this. We should have but we do not. 
What is your best guess that telling people--I mean, you can be 
direct--we are just trying to get to the bottom of this. What 
is your best guess happens when you do not study the effects or 
something but yet you tell people when to go to bed and when 
not to go to bed. And we know that it pushes them into hours 
that are much busier, makes them perhaps even drive longer 
because of the congestion. I will just ask it this way. Do you 
think that should have been part of the study? And if so, do 
you think that would change the results of the study?
    Mr. JOVANIS. I think it would have been a very good idea if 
they had looked at that very explicitly. And as near as I can 
tell, they have not prior to the study that is in activity 
right now.
    Chairman HANNA. Well, as near as we have heard they have 
not.
    Mr. JOVANIS. Right. And yet have no intention of doing 
that.
    Chairman HANNA. So, and I do not want to put words in your 
mouth. I will do this on my own. So if I were to suggest to you 
that had they included that, they may have come up with 
actually causing more accidents, more deaths, more fatigue, 
more stress to the overall system. I mean that is kind of what 
it feels like to me, especially being a guy who has spent 
thousands of hours on heavily equipment.
    Mr. JOVANIS. It is certainly possible. And then whenever 
you get into a situation like you are in with the extended 
hours of driving out to 10 hours or 11 hours, you are left with 
an assessment that says is the benefit of doing something 
greater than the cost? And presumably, when they did the 
benefit assessment on increasing from 10 to 11 hours, they 
assessed in their regulatory impact assessment that there was a 
benefit from doing that. Presumably, they would have a similar 
kind of a benefit assessment. But please do not ask me about 
that because I do not do benefit assessments.
    Chairman HANNA. No, but I mean, the conclusion is that we 
do not know the truth because we have not--the study not only 
is not complete but it is not even inclusive enough to come up 
with a result that is based on science in your industry or in 
your field.
    Mr. JOVANIS. Yeah. I do not know of any study that has 
looked at that particular restart configuration.
    Chairman HANNA. but you would agree that that should 
potentially be part of it?
    Mr. JOVANIS. Yes.
    Chairman HANNA. I throw the word ``potentially'' out there 
just to make it be a little easier for you to say.
    Mr. JOVANIS. Yes. Yes.
    Chairman HANNA. Thank you very much.
    We are taking up other people's time, but sure, Mr. Rice, I 
am happy to----
    Mr. RICE. I figure you guys came all the way here. You do 
not mind five more minutes, do you?
    You guys, Mr. Evans, Mr. Curl, Mr. Long, do any of you all 
short-haul or are you all long-haul?
    Mr. EVANS. My company does both long and short-haul.
    Mr. CURL. I do limited short haul.
    Mr. RICE. Do you think these driver fatigued regulations 
are really applicable to short haul? I mean, it seems to me 
that what we are aiming at here is somebody that is driving, 
you know, 10 hours a day continuously and the effect of the 
highway driving, do you think these are applicable? I am 
thinking about the guy who delivers the beer to the grocery 
stores or the bread or the guy who is driving an asphalt truck 
or a concrete truck. He is not driving for hours on end. They 
are driving, stopping, waiting, getting out of the truck, 
delivering a load. Do you think these regulations are really 
applicable to those people?
    Mr. EVANS. I do not.
    Mr. CURL. I think to address that directly I would say no, 
but if I could expand on that a little bit more.
    Mr. RICE. Please do, sir.
    Mr. CURL. I think when we are talking about fatigue, we are 
talking about something that I can look up here at this panel 
and I can see fatigue. You know. So how do you----
    Mr. RICE. Wait a minute.
    Mr. CURL. So it begs the question how do you quantify 
fatigue?
    Now, I know Mr. Jovanis is involved in a lot of studies 
that try to identify that, but you know, if you stay up and 
watch the football game one night and then you come back to 
work the next day, you may be somewhat fatigued but it does not 
mean that you cannot conduct your duties safely and efficiently 
as necessary. So fatigue is a relative factor. Working short-
haul, you know, day-to-day, sometimes I am more fatigued by it 
because it is a lot of work. But again, you have to go back to 
giving the drivers themselves the control of knowing when they 
need to rest, you know, given a set of hours to work in. But to 
have a blanket law that covers everybody, it is going to help a 
few but it is going to hurt a lot more. So the hours of service 
as they are--and we do need hours of service, let me throw that 
in there--and returning to the old hours of service would be an 
advantage but it is not a solution.
    Mr. RICE. Do you think that the old Hours-of-Service rules 
were effective in reducing injuries and fatalities?
    Mr. CURL. To a degree I do.
    Mr. RICE. I agree with you. I think they were, too.
    Mr. CURL. I believe they needed modification as well. I 
just happen to believe that the modifications we made were not 
the right ones.
    Mr. RICE. Thank you, sir.
    Mr. Long, your opinion on this?
    Mr. LONG. Yes. I believe that the older regulations, if you 
will, the 2003, the statistics prove out that they were safe 
and that we had a big reduction in fatalities. And safety is 
our number one priority in the trucking industry.
    Now, from the perspective of long-haul versus short-haul, 
my company, we provide mainly the longer haul, more miles. And 
we are, again, we are having the biggest difficulty with our 
drivers. It has to do with their reduction in their 
productivity, being able to go out and make a, for example, a 
trip from Memphis to Chicago, it is about 500 miles. Our 
customers want the shipment to be delivered at 7 o'clock in the 
morning, but if the drivers cannot leave until 5 o'clock 
because they came in at a certain time, the example that I 
gave, then that team cannot go out on that run. We may have to 
use another team. So that team loses that day. In fact, we have 
calculated just using the last quarter of our information that 
if this continues on the rest of the year, a lot of our teams 
are going to lose as much as one week's pay per year, which 
that is a lot of money to our people. For example, about $1,300 
where they average about 60,000 per year.
    Mr. RICE. How many teams do you have?
    Mr. LONG. About 45.
    Mr. RICE. Okay. So if each one loses a week, that is 45 
weeks; right?
    Mr. LONG. That is right.
    Mr. RICE. So that means you are going to have to have 
another team. What does that do to the cost of shipping?
    Mr. LONG. It makes it go up.
    Mr. RICE. What does that do to our manufacturers when they 
are shipping stuff around the world?
    Mr. LONG. It will make a cost on the products.
    Mr. RICE. It makes them less competitive, does it not?
    Mr. LONG. Absolutely.
    Mr. RICE. So their stuff costs more around the world. They 
may be laying people off. You might have to hire another team 
after all. That is what I want to get rid of. The whole thing 
is American competitiveness.
    Mr. LONG. We want to be efficient and productive, and we 
want our people to be compensated well.
    Mr. RICE. I agree.
    Mr. LONG. And safe.
    Mr. RICE. Mr. Jovanis, you work on statistics, right, sir?
    Mr. JOVANIS. Yes, sir.
    Mr. RICE. Yes, sir.
    The administrator this morning said that this could save as 
many as 19 lives a year, right? That is what she said.
    Mr. JOVANIS. Yes, she did.
    Mr. RICE. Okay. How many people are being killed on the 
road every year by trucks? Or in trucking accidents?
    Mr. JOVANIS. In trucking accidents, on the order of 4,000 
fatalities or a little more.
    Mr. RICE. So if we are talking about 19, we are talking 
about less than half a percent. If we put this rule in effect, 
are we going to know that it has had any effect at all? Is 
there any way to statistically establish whether this rule is 
going to have any effect at all?
    Mr. JOVANIS. I would say there is and you need to be able 
to fund the research study that uses crash data and determines 
that the effect of the restart policy in particular either has 
an effect one way or the other. I am not real enthusiastic 
about using the nationwide statistics on fatalities in truck 
involvement only because there are so many other factors 
involved that you can never really tell on a national scale 
whether your particular action is really having the result that 
you are observing in fatalities. So certainly, you would 
believe that the downturn in the economy since 2006 has had a 
big impact on reducing travel, and so fatalities and crashes 
are down all over the country in all travel modes.
    Mr. RICE. They were going down before that.
    Mr. JOVANIS. A bit. But we were pretty much stuck on about 
40,000, and we took a big nose dive when the economy went down. 
So there is a study being proposed by the Transportation 
Research Board to answer just this question of why is it that 
we had such a big decline? Can we identify the actions that we 
took to contribute to that? Because right now a lot of people 
are claiming credit but I would say we really do not know.
    Mr. RICE. That graphs that I have seen showed truck 
injuries and deaths dramatically dropping beginning around 
2000.
    Mr. JOVANIS. I would have to look at the numbers again to 
be sure.
    Mr. RICE. And then they come back up in the last two or 
three years, but they are still down 30 percent.
    Mr. JOVANIS. But----
    Mr. RICE. My point is statistically, I do not know how in 
the world you are ever going to know whether these things--if 
we are talking about 19, maybe possibly 19 based on an 
uncompleted study of 27 graduate students, how in the world are 
you going to know that costing these people this productivity 
and affecting American competitiveness the way that the 
trucking industry certainly does, how are we going to know that 
that is offset by lives saved with such a small potential 
reward? I mean, certainly every life is vital and important and 
precious, but I do not know that we are ever going to know that 
we saved one life.
    Mr. JOVANIS. Well, all I can tell you is on the crash side, 
in one of the reports that is in my testimony, we are able to 
do a very limited study of the restart provision, and that is 
because we had only a limited amount of two-week data in our 
study. And in that study we showed that drivers had got past 
the first day of the restart pretty well but it was in the 
second day of the restart that they had an increase in crash 
risk. Now, we have not really publicized that widely because we 
had a very small number of drivers that actually experienced 
the restart and allowed us to do that comparison, but if we 
could do it with the data that we had back in 2010, certainly 
people can do that again and try to quantify that particular 
effect. So the best answer I can give you is research can help 
give you the answer on the increase in the probability of a 
crash or the number of crashes and then somebody has to hand 
that over to the economists and the regulators and say, well, 
how does that get balanced against any kind of productivity 
losses or gains.
    Mr. RICE. Well, if I am bouncing between the economists and 
regulators and the truckers, I am going to take the truckers 
every time.
    Mr. JOVANIS. I like them, too.
    Mr. RICE. Do you think it is going to make any difference? 
And I heard an ``I do not know'' from you and three nos from 
these guys. I will take that.
    Thank you very much. Thank you all for coming today. Thank 
you for putting up with us.
    Chairman HANNA. Just one last question. Maybe two.
    Some drivers say the new rules actually result in them 
taking breaks when they are alert and forcing them into a 
situation that they are more tired. Maybe is that true, Mr. 
Long, Mr. Curl, Mr. Evans?
    Mr. LONG. Yes, I am hearing stories like that. One of the 
effects of this has been also where trucks are having a 
difficulty finding parking spaces in truck stops. The truck 
stops are overloaded at times, and that presents a lot of 
stress trying to get in and park and fuel and so forth. So yes, 
I am hearing some of those stories like you just described.
    Chairman HANNA. Mr. Curl?
    Mr. CURL. As for me, it has made quite a difference because 
a lot of my stuff is planned out to make certain--I have to get 
in my 11 hours of driving each day to be able to arrive on the 
proper date for me to deliver and reload. So on some days, when 
I have 30-minute required breaks, sometimes rather than driving 
three to four hours and taking a quarter hour break, driving 
three to four hours, taking a quarter hour break, and each time 
I take a break I take care of my personal needs, but I also 
walk around, inspect my truck, and look at my load. And now 
because of this stipulation, it is going to move me further and 
further into the end of my day, into the period that Mr. 
Jovanis referred to earlier as being more dangerous. And that 
time period is added on to the following day, so I start the 
following day a little bit later because of that. And so even 
if the 30-minute breaks could be cumulative, that would be 
helpful.
    Chairman HANNA. Thank you.
    Mr. Evans?
    Mr. EVANS. Yes, sir. I think there are too many 
inconsistent circumstances with each driver, with each type of 
load, with each origin, with each destination, and to put a 
regulation that says that a driver has to take a 30-minute 
break at a certain period of time, at a certain period of day 
really puts a whole kink in the supply chain. And it is not 
going to make him a more safer driver by any means.
    Chairman HANNA. Go ahead, Doctor.
    Mr. JOVANIS. Well, I am sure that there are some people 
somewhere who do not want to stop after eight hours and take a 
mandatory break, but when you are dealing with large numbers of 
drivers as we have, the first five hours or so of driving has a 
relatively constant risk of a crash. After that, the increase 
of a crash with driving time goes up nonlinearly. So you are 
looking at 20 percent, 30 percent, 40 percent, 50 percent the 
farther you go into you drive. So if you are into the eighth 
hour, you are into an elevated crash risk.
    Now, Mr. Curl's suggestion about cumulative off-duty time, 
if you take a 15-minute break, drive for a while, take another 
15-minute break, I think if you look at the literature on this, 
that half an hour that you experienced is almost the same as a 
half an hour single break in terms of its benefit, and the 
benefit is unmistakable in terms of reducing the risk of a 
crash. So I am surprised that the regulations do not allow 
that, exactly what you said, because if you look in the 
literature at how you should undertake tasks like driving a 
truck, exactly what Mr. Curl said is exactly how you should 
from a performance maintenance point of view. You know, you 
take a periodic break, you take care of whatever you have to do 
physically, you inspect the truck, you get back in.
    Chairman HANNA. So once again the government is overly 
prescriptive. And telling drivers something they already know 
that they want to live, live safely, and live to drive another 
day, and yet here we are telling them that they have to follow 
our rules rather than their own needs and experience.
    I want to thank you all for being here today. You provided 
important insights in how decisions are made in Washington, and 
how they affect small business. I also want to say that there 
is no one here that I have heard that does not find that the 
2003 rule provided benefits and the studies show that. The 
question here today is does the additional rule provide any 
benefit? In fact, does it provide a disbenefit? And you have 
been helpful in that direction.
    I ask unanimous consent that members in the public have 
five legislative days to include supporting material into the 
hearing record. Hearing no objection, this is now adjourned. 
And again, thank you very much.
    [Whereupon, at 12:00 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X


        STATEMENT OF THE HONORABLE ANNE S. FERRO, ADMINISTRATOR


              FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION


                   U.S. DEPARTMENT OF TRANSPORTATION


                               BEFORE THE


                      COMMITTEE ON SMALL BUSINESS


               SUBCOMMITTEE ON CONTRACTING AND WORKFORCE


                     U.S. HOUSE OF REPRESENTATIVES


    THE IMPACT OF THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION'S


            HOURS OF SERVICE REGULATIONS ON SMALL BUSINESSES


                           NOVEMBER 21, 2013


    Mr. Chairman, Ranking Member Meng, and Members of the 
Subcommittee, thank you for inviting me to testify today on the 
impact of the Federal Motor Carrier Safety Administration's 
(FMCSA) December 27, 2011, hours of service (HOS) final rule on 
small businesses.

    Safety is FMCSA's number one priority. Our employees and 
State partners are committed to preventing crashes and saving 
lives. Since FMCSA's inception in 2000, we have witnessed a 
drop in the fatality rate from 0.205 fatalities in large truck 
and bus crashes per 100 million vehicle miles traveled by all 
motor vehicles to 0.136 in 2011, the most recent calendar year 
for which we have the final highway travel data. We have also 
seen a 26 percent decrease in the number of lives lost in large 
truck- and bus-related crashes, from 5,620 in 2000 to 4,183 in 
2012.

    While the numbers represent significant progress, it is 
clear that much more must be done. Every life is precious and 
every FMCSA employee and each of our State partners are 
committed to doing everything we can to save as many lives as 
possible. The December 2011 HOS final rule made reasonable and 
common sense changes to the HOS rules while helping to realize 
important safety benefits for the American public. We estimate 
the new requirements will prevent 1,400 crashes, 560 injuries, 
and save 19 lives each year.

    Changes to the HOS Rules Will Improve Safety

    Fatigue is a leading factor in large truck crashes. Under 
the previous HOS rules that were in effect until July 1, 2013, 
drivers operating large trucks could have faced demanding 
driving schedules that may have included workweeks up to 
approximately 82 hours. These extreme schedules, week after 
week, increase both the risk of fatigue-related crashes and 
long-term health problems for drivers. While the new rule 
issued on December 27, 2011, still allows for a demanding 
driving schedule, it reduces a driver's average maximum 
allowable hours of work per week from 82 to 70 hours, ensuring 
that drivers have more time off to obtain adequate rest on a 
daily and weekly basis.

    The final rule is the product of years of fatigue research, 
safety studies, and analysis of public comments. FMCSA sought 
input from a wide range of stakeholders, including trucking 
companies, drivers, law enforcement, unions and safety 
advocates, and held numerous public listening sessions 
throughout the rulemaking process for the final rule. This 
unprecedented public engagement contributed to a balanced final 
rule that provides a net gain in public safety and driver 
health.

    In general, the changes in the 2011 final rule that took 
effect on July 1, 2013, particularly the changes to the 34-hour 
restart provision, are designed to help those drivers working 
the most intense schedules. The changes have the biggest impact 
on approximately 15 percent of the drivers subject to the HOS 
requirements. These drivers used to average more than 70 hours 
of work per week. By contrast, drivers who averaged less than 
70 hours per week were not significantly affected by the 
changes to the rule, including the new restart provision. They 
are not likely to approach the daily driving time limit, the 
daily on-duty limit after which driving is prohibited, or 
weekly on-duty limits after which driving is prohibited.

    Our research shows that 85 percent of the truck driver 
workforce (1.36 million drivers) has an average weekly work 
time of 60 hours or less and, thus, does not need to use the 
voluntary 34-hour restart. Of the remaining 15 percent (240,000 
drivers), 160,000 work an average of 70 hours per week and 
approximately 80,000 drivers worked an average of 80 hours per 
week prior to July 1, 2013. While the Agency recognizes that 
the reduction in maximum weekly on-duty hours to 70 hours and 
34-hour restart constraint impacts some drivers and companies, 
the trade-off is improved safety for everyone. This rule is 
expected to prevent 1,400 crashes and 560 injuries, and save 19 
lives each year.

    Overview of Changes to HOS Rules

    The changes made in the 2011 final rule keep in place many 
of the regulatory provisions implemented in the 2003 rule. For 
example, it maintains the 11 hour driving/14 hour daily work 
allowance and the long-standing weekly maximum working limits 
of 60 hours in 7 days and 70 hours in 8 days. Additionally, it 
maintains the option for a driver to use a ``restart'' if that 
driver wishes to drive more than the weekly maximum hours.

    For those drivers wanting to exceed the maximum weekly 
working limits, the 2011 HOS rule limits the use of the ``34-
hour restart'' to once a week (168 hours). This change limits a 
driver's work week to 70 hours on average, compared to the 
previous rule, which allowed up to approximately 82 hours when 
the restart was used more than once in a seven-day period. The 
Agency took this action because working long daily and weekly 
hours on a continuing basis is associated with chronic fatigue, 
a high risk of crashes, and a number of serious chronic health 
conditions for drivers. The new restart provision does not 
affect drivers average 60 hours or less per week of work time. 
For drivers working an average of 70 hours per week, the new 
restart is estimated to result in a loss of half an hour per 
week due to the requirement that two nighttime period between 
1:00 and 5:00 am be included within the restart. It is 
important to note that the Agency's research as well as 
information provided by industry representatives documented 
that a vast majority of drivers of large trucks will rarely, if 
ever, need to use a ``restart.''

    Under the previous rules, alternating 14 hours on-duty and 
10 hours off-duty, a driver would reach 70 hours in less than 
five full days. After a 34-hour break, the driver could then 
begin this same cycle again, totaling 70 hours on-duty every 6 
calendar days, for an average of almost 82 hours per calendar 
week. Limiting restarts to once every 168 hours--measured from 
the beginning of the previous restart--prevents this excessive 
buildup of on-duty hours, while still allowing a driver to use 
the restart provision to his/her advantage and avoiding the 
safety risks associated with more frequent restarts.

    Another key element of the 2011 final rule is the 
requirement that the 34-hour restart must include at least 2 
periods between 1:00 a.m. and 5:00 a.m. We did not opt for two 
periods between midnight and 6:00 a.m. as proposed in 2010. 
Only nighttime drivers who work m ore than 60 hours in seven 
consecutive days, or 70 hours in eight consecutive days will be 
impacted by this change. Generally, the drivers most likely to 
be impacted by this provision work grueling and irregular 
schedules that include some nighttime driving. By contrast, 
nighttime operations of the major less-than-truckload (LTL) 
carriers should be impacted minimally, as their drivers 
generally receive 2 days off-duty a week.

    In an effort to address acute fatigue during the workday, 
the final rule requires drivers to take a 30-minute break, if 
more than 8 consecutive hours on-duty have passed since the 
last off-duty (or sleeper-berth) period of at least 30 minutes, 
before continuing to drive. The driver can take this break at a 
time and place of his or her choosing, and may include meals, 
rest stops, and other rest periods. It is important to note 
that most drivers were already taking multiple short breaks 
during the work day. And the rule does not require that drivers 
take an additional break. The rule only requires that at least 
one of those breaks consist of at least 30 consecutive minutes 
off duty.

    The Agency acknowledges the concerns about the impact of 
the 30-minute break requirement on small businesses and took 
appropriate action on July 12, 2013, to align its long-standing 
regulatory guidance concerning off-duty time with the 30-minute 
rest break provision of the 2011 final rule. We determined that 
the guidance, which was originally issued in 1997, could have 
the unintended consequences of making it difficult for drivers 
and carriers, including many small businesses, to determine 
whether certain routine breaks during the workday may fulfill 
the 30-minute rest break.

    A Net Gain for the U.S. Economy

    The estimated annual cost of the 2011 final rule is 50 
percent less ($530 million less) than FMCSA's preliminary 
estimates discussed in the 2010 notice of proposed rulemaking. 
The new HOS rule will result in many public safety benefits, as 
well as benefits to the industry, through reduced health care 
costs associated withy crash injuries and overall improved 
driver health. The rule will provide an estimated $280 million 
in savings from fewer crashes and $470 million in savings from 
improved driver health.

    The economic benefits of the rule extend to small 
businesses through every crash that is avoided. Small trucking 
companies are the least likely in the industry to withstand the 
financial impact associated with a fatigue-related crash. The 
loss of revenues associated with the disabled commercial 
vehicle and the resulting litigation and settlements for a 
fatigue-related crash could easily wipe out a small trucking 
company. Safety is first and foremost about saving lives but it 
is also good business for the industry.

    U.S. Court of Appeals Decision

    On August 2, 2013, the DC Circuit Court of Appeals issued 
its opinion on petitions for review of the 2011 HOS rule filed 
by the American Trucking Associations, Public Citizen, and 
others [American Trucking Associations, Inc., v. Federal Motor 
Carrier Safety Administration, No. 12-1092 (D.C. Cir. Aug. 2, 
2013)]. The Court upheld the 2011 HOS regulations in all 
respects except for the 30-minute break provision as it applies 
to short-haul drivers.

    As a result of the Court decision, the following drivers 
are no longer subject to the 30-minute break requirement:

           All drivers (whether they hold a commercial 
        driver's license (CDL) or not) that operate within 100 
        air-miles of their normal work reporting location and 
        satisfy the time limitations and recordkeeping 
        requirements of 49 CFR Sec. 395.1(e)(1).

           All non-CDL drivers that operate within a 
        150 air-mile radius of the location where the driver 
        reports for duty and satisfy the time limitations and 
        recordkeeping requirements of 49 CFR Sec. 395.1(e)(2).

    While the Court's mandate was not scheduled to take effect 
until 52 days after entry of judgment, the Agency ceased 
enforcement of the 30-minute rest break provision against 
short-haul operations effective August 5, 2013, three days 
after the ruling. The Agency also requested that its State 
enforcement partners cease enforcement of the State versions of 
this provision beginning August 5, 2013, with the understanding 
that they would not be found in violation of the Motor Carrier 
Safety Assistance Program (MCSAP) regulations (49 CFR Part 350) 
for doing so. And, on October 28, FMCSA formally amended the 
2011 final rule to provide an exception from the 30-minute rest 
break requirement for the short-haul drivers who are not 
required to prepare records of duty status (RODS), consistent 
with the Court's decision.

    Through our quick action following the Court's decision, we 
worked to ensure that the small businesses affected by the 
decision were provided with immediate relief from the 30-minute 
rest break requirement.

    Applying the HOS Requirements to a Complex and Diverse 
Trucking Industry

    Over almost 2 decades of HOS controversy, a common concern 
has been leveled by the trucking industry over what is often 
referred to as a ``one size fits all'' HOS rule. The Agency has 
crafted a rule that provides as much flexibility as possible. 
Our past experience from the May 2000 HOS notice of proposed 
rulemaking proves that efforts to put into regulations multiple 
options for such a complex and diverse industry are more likely 
to result in a rule that neither the industry nor the 
enforcement community can understand and apply consistently. 
With this in mind, FMCSA has maintained an open-door policy 
with the industry and demonstrated a willingness to have face-
to-face meetings with various segments of the trucking industry 
to explore the feasibility of limited 2-year exemptions, as 
authorized by Congress in the Transportation Equity Act for the 
21st Century (TEA-21).

    Exemption Requests to the 30-Minute Off-Duty Break Rule

    Our efforts to provide flexibility through the exemption 
process have enabled the Agency to address in a transparent 
manner the most pressing concerns of the trucking industry. The 
transparency involves a Federal Register notice-and-comment 
process through which all interested parties, including 
enforcement agencies, safety advocacy groups and other members 
of the trucking industry, have the opportunity to see all 
applications for exemptions from the HOS requirements and to 
submit comments to the Agency for consideration.

    To date, the major concern expressed by several segments of 
the industry has been the 30-minute break requirement. 
Specifically, certain industries have identified operational 
challenges with the locations at which the break would be taken 
and whether certain limitations on drivers' ability to leave 
the vehicle would prevent them from using their rest breaks to 
satisfy the new rule.

    The Agency included the 30-minute break provision in the 
final rule to address acute fatigue during the workday, 
requiring drivers to take a 30-minute off duty break, if more 
than 8 consecutive hours on-duty have passed since the last 
off-duty (or sleeper berth) period of at least 30 minutes, 
before continuing to drive. The driver can take this break at a 
time and place of his or her choosing, and the break may 
include meals, rest stops, and other rest periods.

    Several organizations, including two Federal departments, 
have applied for exemptions to the 30-minute rest break 
provisions. The Agency has worked quickly to seek public 
comment on each of these applications and to address industry 
concerns to the extent that the exemption would achieve a level 
of safety equal to or greater than the 2011 final rule would 
provide.

           U.S. Department of Energy (DOE) and the U.S. 
        Department of Defense (DOD), Military Surface 
        Deployment and Distribution Command (SDDC). FMCSA 
        granted exemptions to the 30-minute rest break 
        provision to the DOE and DOD's SDDC to enable their 
        contract driver-employees transporting security-
        sensitive materials to be treated the same as drivers 
        transporting explosives, allowing these drivers to use 
        30 minutes or more of ``attendance time'' to meet the 
        rest break requirement, provided they are performing no 
        other work-related activity during this time.

           National Pork Producers Council (NPPC). 
        FMCSA received an application from the NPPC on behalf 
        of its members and other agricultural organizations for 
        a complete exemption from the 30-minute rest break 
        requirements for commercial motor vehicle (CMV) drivers 
        transporting livestock. The request is based on 
        assertions of risk to livestock being transported 
        during hot and cold weather if the transporting vehicle 
        remains stationary for an extended period of time. The 
        Agency solicited and received public comments and is 
        reviewing the request. Prior to this exemption request, 
        the NPPC requested and was granted a 90-day waiver from 
        the rest break provision from July 11-October 9 to 
        protect the livestock from extreme summer heat that 
        could have proved dangerous to the animals' health.

           National Ready Mixed Concrete Association 
        (NRMCA). FMCSA received an application from the NRMCA 
        for an exemption from the 30-minute rest break 
        provision. The exemption would apply industry-wide to 
        all motor carriers and CMV drivers operating ready-
        mixed concrete trucks. Although transportation of many 
        ready-mixed concrete loads takes place within the 
        parameters of the Agency's ``short haul'' provisions 
        and is not subject to the rest break requirement, the 
        NRMCA requested the exemption for those instances when 
        the short-haul requirements cannot be met. The Agency 
        has solicited and received public comments and its 
        reviewing this request.

           National Armored Car Association (NACA). 
        FMCSA received an application from the NACA for an 
        exemption to the 30-minute rest break provision. The 
        exemption would have applied industry-wide to all 
        armored vehicle carriers and drivers and would have 
        enabled drivers engaged in the transportation of 
        currency, coins, precious metals, and other valuables 
        to use any period of 30 minutes or more of ``attendance 
        time'' to meet the rest break requirements. NACA 
        submitted its application prior to the August 2 D.C. 
        Circuit Court decision that vacated the 30-minute rest 
        break provisions as it applies to short haul drivers. 
        As the requirement would, therefore, no longer apply to 
        most short-haul transportation by armored cars, NACA 
        withdrew its application for an exemption.

           Oregon Trucking Association (OTA). FMCSA 
        received an application for an exemption from the OTA 
        for a limited exemption from the 30-minute rest-break 
        requirement on behalf of motor carriers and their 
        drivers who transport timber from Oregon forestlands 
        during periods in which fire safety restrictions limit 
        their hours of operation. FMCSA will soon publish a 
        Federal Register notice requesting public comment on 
        the OTA's October 2013 application.

    In addition, FMCSA's consideration of the various 
applications for exemptions, the Agency has fulfilled its 
commitment to continue to gather additional information and 
data concerning the HOS requirements. We made a commitment in 
the preamble of our December 2011 final rule to conduct a 
comprehensive analysis of the relative crash risk by driving 
hour and the impacts of the final rule. We look forward to 
continuing to review new information as it becomes available.

    Field Study on the 34-Hour Restart

    The Moving Ahead for Progress in the 21st Century Act (MAP-
21, Pub. L. 112-141), enacted on July 6, 2012, mandated that 
FMCSA conduct a field study on the efficacy of the restart 
rule. I am pleased to report to you that FMCSA has completed 
the work mandated by Congress and we are currently in the 
process of preparing the final rule report.

    Researchers worked with three motor carriers to conduct a 
naturalistic field study with drivers who used the restart 
provisions. The study ran from January-July 2013 and included 
106 CMV drivers aged 24-69 with commercial driving experience 
ranging from less than one year to more than 39 years. The 
drivers represented diverse types of trucking operations, 
including 44 local drivers, 26 regional drivers, and 36 over-
the-road drivers. Participating drivers provided a total of 
1,260 days of data and drove a total of 414,937 miles during 
the study.

    Using the drivers' official duty logs to identify the 
periods when they were on duty and when they were driving and 
to define their duty cycles and restart breaks, the drivers 
wore wrist activity monitors to monitor their sleep/wake 
patterns. A Psychomotor Vigilance Test (PVT) measured driver 
fatigue levels 3 times a day, and drivers also self-reported 
their own sleepiness. Additionally, a truck-mounted lane 
tracking system measured lane departures.

    Comparisons were made among all these factors preceded by a 
restart break containing only one nighttime period versus duty 
cycles preceded by a restart break containing two or more 
nighttime periods. FMCSA will transmit these findings to 
Congress by spring 2014.

    Assessing the Feasibility of a Split Sleeper Berth Pilot 
Program

    From January 2010 to May 2011, the Agency conducted an in-
residence laboratory study that examined three sleep 
conditions: consolidated nighttime sleep; split sleep; and 
consolidated daytime sleep. The study found that daytime 
consolidated sleep resulted in less total sleep time, increased 
sleepiness, and an increase in blood glucose and testosterone 
at the end of the workweek. However, the study found that 
performance was not significantly affected by the period during 
the day when a driver had the opportunity for sleep. Results of 
this study suggest that when consolidated nighttime sleep is 
not possible, split sleep is preferable to consolidated daytime 
sleep.

    At this time, FMCSA is developing a pilot study to 
demonstrate how split sleep in conjunction with the Fatigue 
Management Program (FMP) and the use of Electronic Logging 
Devices (or ELDs) could be used to improve driver rest and 
alertness. The Agency requests the participation of motor 
carriers that would benefit from flexibility with regard to the 
sleeper berth provision, with appropriate constraints on the 
use of split sleep, and would be willing to measure driver 
alertness and changes in health metrics. The Agency plans to 
work with the National Association of Small Trucking Companies, 
the American Trucking Associations, and the Owner-Operator 
Independent Drivers Association to recruit drivers and motor 
carriers for this study.

    Opportunities and Challenges to Implementing the New HOS 
Rules

    Throughout the public engagement process we used in 
developing the new HOS requirements, the Agency heard about the 
need for flexibility in the HOS rules from the trucking 
industry. We included two changes to help the industry and 
drivers with options for recording certain rest breaks as off-
duty time. These changes went into effect on February 27, 2012.

    Off-Duty in a Parked CMV

    Prior to February 2012, the definition of ``on-duty time'' 
included all time that the driver spends in the CMV, with the 
exception being the time the driver spends in the sleeper 
berth. The 2011 final rule changed the definition to provide 
drivers with greater flexibility. As a result, the time a 
driver spends resting in a parked CMV may be considered ``off-
duty time'' provided the driver is relieved of all duties and 
responsibilities for performing work, including paperwork.

    Off-Duty in Passenger Seat for Team Drivers

    The final rule also allows truck drivers in team-driver 
operations to include up to 2 hours in the passenger seat 
immediately before or after 8 consecutive hours in the sleeper 
berth as off-duty time. This means the driver may log up to 2 
hours in the passenger seat as off-duty time and combine it 
with the 8 consecutive hours in the sleeper berth to accumulate 
10 consecutive hours off duty. As an alternative, the driver 
may use 1 hour in the passenger seat before the 8-hour sleeper 
berth period and 1 hour in the passenger seat after the sleeper 
berth period to accumulate 10 consecutive hours. Truck drivers 
were allowed to begin using this new, more flexible regulatory 
provision on February 27, 2012.

    Compliance Assistance Materials for the Industry

    Knowing the impact the rule has on small businesses, the 
Agency continues to provide comprehensive compliance assistance 
information at its website (http://www.fmcsa.dot.gov/HOS) to 
assist trucking companies that are still training their drivers 
and dispatchers on the changes to the 34-hour restart and the 
new 30-minute rest-break requirement.

    Prior to the July 1 compliance date, the Agency posted 
``Hours of Service Logbook Examples'' at its website--this 
publication provides detailed illustrations of how the new 
rules would apply in many common scenarios that truck drivers 
face in filling out their logbooks. The examples cover the 
changes to the on-duty definition and how the time would be 
recorded in the logbooks and the changes to the 34-hour 
restart. The examples have been updated to cover the Court-
imposed changes to the 30-minute break requirement.

    In addition to our publications, FMCSA participates on a 
monthly basis on two separate satellite radio programs geared 
towards the trucking community (i.e., the Dave Nemo Show and 
the Mark Willis Show--the successor to the Evan Lockridge 
Report), during which senior Agency officials provide updates 
on the Agency's major safety initiatives and answer questions 
from drivers and carriers. Most of the broadcasters over the 
past year have included extensive discussions about the HOS 
requirements. We provided numerous clarifications of the new 
rule and frequent reminders of the July 1, 2013, compliance 
date for the changes to the 34-hour restart and the new 30-
minute break requirement.

    Through the development of compliance assistance materials 
and participation in satellite radio broadcasts, the Agency 
provided carriers and drivers a means of learning about the new 
HOS requirements at minimal cost.

    To supplement the HOS regulations, FMCSA partnered with 
Transport Canada and a consortium of government, motor carriers 
and researchers to develop the North American Fatigue 
Management Program (NAFMP). This free online website provides 
extensive training and educational resources for truck and bus 
drivers. Based on years of research on fatigue, a series of 10 
instructional modules inform drivers, their families, and 
carrier safety officials on effective ways to prevent driver 
fatigue. The NAFMP can be found at www.nafmp.org.

    Conclusion

    Since Congress directed the Department of Transportation to 
undertake an HOS rulemaking in ICC Termination Act of 1995, the 
Department has focused on implementing a new rule that will 
help reduce the number of fatigue-related fatal crashes 
involving large trucks. FMCSA remains committed to working with 
its safety partners and stakeholders to provide an HOS 
regulatory approach that raises the safety bar for the industry 
and saves lives on our roadways. Additionally, we remain 
committed to ensuring that this regulation, like all our 
regulations, takes into account the specific needs of small 
businesses, which represent so much of the industry we 
regulate.

    Thank you for the opportunity to discuss FMCSA's 
implementation of the 2011 HOS final rule and its impact on 
small businesses. I am glad to answer your questions.
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    Good morning Chairman Hanna, Ranking Member Meng, and 
distinguished members of the Subcommittee. Thank you for 
inviting me to testify on matters of importance to our nation's 
truck drivers and the tens of thousands of small business 
trucking professionals who are members of the Owner-Operator 
Independent Drivers Association (OOIDA).

    My name is Tilden Curl. I am a small business trucker from 
Olympia, Washington. I have more than 20 years of trucking 
experience and have been an OOIDA member since 2001. I 
currently operate a step-deck trailer through seven western 
states, often hauling specialized freight. I am proud to be 
here today testifying on behalf of OOIDA and my fellow 
professional drivers.

    As you are likely aware, OOIDA is the national trade 
association representing the interests of independent owner-
operators and professional drives on all issues that affect 
small business truckers. The more than 150,000 members of OOIDA 
are small business men and women in all 50 states and every 
Congressional district who collectively own and operate more 
than 200,000 individual heavy-duty trucks.

    The majority of the trucking industry in our country is 
made up of small businesses, as more than 93 percent of all 
motor carriers have less than 20 trucks in their fleet and 78 
percent of carriers have fleets of just five or fewer trucks. 
In fact, one-truck motor carriers represent nearly half of the 
total number of trucking companies operating in the United 
States. It is estimated that OOIDA members and their small 
business trucking peers collectively haul around 40 percent of 
the freight moved by truck nationally each year.

    Before discussing the hours-of-service (HOS) regulations, I 
would like to personally thank Administrator Ferro for recently 
joining an OOIDA Board Member during a two-day, thousand-mile 
``ride-along'' from the Washington, DC area to St. Louis. She 
is the first Federal Motor Carrier Safety Administration 
(FMCSA) Administrator to join a trucker out on the road over a 
multiple day period, and OOIDA appreciates her willingness to 
experience some of the challenges truckers face on a daily 
basis.

    I also want to highlight OOIDA's commitment to highway 
safety and discuss a very memorable day in my life as an 
example of the focus our nation's professional truckers place 
on safety.

    Just after noon on October 27, 2010, I was driving 
southbound on Highway 99 near Tulare, California in the San 
Joaquin Valley. A vehicle lost control and crossed traffic, 
finally coming to rest with its front wheels stuck over the 
railroad tracks that parallel the highway. After stopping my 
truck to provide assistance, I saw a train coming up the 
tracks.

    An elderly woman exited the passenger side of the car, and 
I yelled for her to get clear of the tracks. I then noticed 
that the driver was unresponsive and trapped inside. At first, 
the door was locked and could not be opened, but I was able to 
squeeze my arm through the slightly lowered driver's window and 
unlock it. Working quickly, I was able to unfasten the man's 
seatbelt and drag him out of the car and away from the area 
just seconds before the train collided with the stranded 
vehicle.

    I was honored as the 28th annual Goodyear Highway Hero for 
my action that day, but I feel that what I did was what most 
professional truckers would do if presented with the same 
situation--intervening to save the life of another motorist on 
the highway.

    Safety is something that truckers must focus on every 
single day, and as small business owners, OOIDA members have a 
unique perspective. The vast majority of OOIDA's members own 
their own truck, so if we are involved in an accident, no 
matter who is at fault, our businesses and our family incomes 
are directly impacted. Indeed, many small truckers have had to 
declare bankruptcy due to the impacts from an accident that was 
the fault of another motorist.

    Safety and economics are inherently linked, and that is 
reflected in the safety record of OOIDA members out on the 
road. With a quarter century of truck driving experience, the 
average OOIDA member has safely driven around two million miles 
over the course of their career in trucking without a 
reportable accident.\1\ To put that in perspective, the average 
passenger car driver would need to drive for at least 150 years 
to reach that level of experience out on the highway.\2\ 
Indeed, Administrator Ferro recently honored several dozen 
OOIDA Safe Driving Award recipients, with many members having 
30 to 40 years of accident-free driving, and one award 
recognizing an OOIDA Board Member with 62 years of safe 
driving.
---------------------------------------------------------------------------
    \1\ OOIDA Foundation, ``Owner-Operator Independent Drivers Profile 
2012,'' AVAILABLE: http://www.ooida.com/OOIDA%20Foundation/
RecentResearch/OOIDP.asp.
    \2\ Based on the ``Average Annual Miles Per Driver'' of 13,476 
miles driven per year as calculated by the Federal Highway 
Administration, see http://www.fhwa.dot.gov/ohim/onh00/bar8.htm.

    Coming from this viewpoint, OOIDA strongly feels that the 
key to highway safety above any regulation or technology is 
ensuring there is a safe, well-trained, and knowledgeable 
driver behind the wheel of every tractor-trailer on the 
highway. To see why this is so important, one only has to 
review safety data from recent years which showed a 
considerable drop in truck-involved facility accidents during 
2008 and 2009 when the economy faced significant challenges. 
This time period saw a significant reduction in the number of 
new truckers out on the road, while experienced drivers stuck 
through the rough patch. The result was a drop in accident 
rates during that period.\3\ With the improvement in the 
economy, we have seen an increase in both entry-level drivers 
on the road and in truck-involved fatality accidents.
---------------------------------------------------------------------------
    \3\ Federal Motor Carrier Safety Administration--Analysis Division, 
``Large Truck and Bus Crash Facts 2011,'' Trends Table 1. Large Truck 
and Bus Fatal Crash Statistics, 1975-2011, page 4, AVAILABLE: http://
www.fmcsa.dot.gov/facts-research/LTBCF2011/
LargeTruckandBusCrashFacts2011.aspx.

    Further, OOIDA's examination of FMCSA-published accident 
data has shown that the technologies that many vendors, major 
motor carriers, and government agencies are advancing as 
highway safety solutions miss the mark by a wide margin, 
especially when compared to safe and experienced truckers. 
OOIDA's research arm, the OOIDA Foundation, has compared crash 
data for major carriers who utilize ``safety technology'' such 
as electronic on-board recorders, speed limiters, and stability 
control systems in trucks owned by the carriers and driven by 
company drivers to crash data for major carriers that utilize 
owner-operators who own their own trucks that generally do not 
have this technology. The experienced drivers for large owner-
operator carriers drive an average of 1.72 million miles, while 
technology-focused carriers on average drive 500,000 fewer 
miles between accidents. Indeed, several of these carriers had 
half as many miles between accidents as the owner-operators. 
These statistics, which reflect real on-the-road safety 
performance, certainly point to a reality where safety 
technology replacing safe, knowledgeable, and experienced 
---------------------------------------------------------------------------
drivers is wishful thinking.

    OOIDA's top safety priority is ensuring that long-overdue 
entry-level driver training requirements are addressed in short 
order. Earlier this year, OOIDA issued a comprehensive entry-
level driver training proposal as part of its ``Truckers for 
Safety'' highway safety agenda. You can find more about this 
proposal online at http://www.truckersforsafety.com. In the 
view of OOIDA and the professional truckers we are proud to 
have as members, ensuring that new drivers are well trained 
will lead to improvements on a long-list of issues facing the 
industry, including those beyond safety matters.

    We appreciate Administrator Ferro's public commitment to 
move forward on entry-level driver training requirements. OOIDA 
is hopeful that FMCSA will soon be taking steps toward 
development these long overdue rules. Instead of focusing on 
more restrictive regulations and costly technology mandates, 
the priority should be on the lower cost and more effective 
approach of ensuring that new long-haul tractor-trailer drivers 
get the safety skills they need at the beginning of their 
trucking careers. The most important and most impactful piece 
of safety equipment on a truck is a properly trained and 
knowledgeable driver, and actions to make that happen should be 
supported by the entire industry.

    WHY FLEXIBILITY IN HOS RULES IS IMPORTANT FOR PROFESSIONAL 
TRUCK DRIVERS

    From the perspective of many truckers, increasingly 
restrictive HOS rules combine with industry pressures to put us 
in a constant Catch-22 situation as we work to operate safely 
and efficiently.

    Trucking is a very diverse industry, with many different 
types of operations and countless demands. A significant part 
of our work as professional drivers is balancing all of these 
demands while ensuring that we operate our vehicle as safely 
and efficiently as possible. Over time, changes to HOS 
regulations have reduced the flexibility we depend upon to 
maintain that balance, putting professional truckers in a 
situation where they are at risk of being penalized by either 
enforcement officials or by the economic realities of the 
industry for stopping to rest, avoiding traffic or another 
hazard, or being delayed at a shipper or receiver.

    Truckers are normally paid by how many miles the drive, 
hence the saying ``if the wheels aren't turning, you aren't 
earning.'' While there is certainly an incentive to drive as 
many miles as possible during the day, there are also other 
factors that pressure drivers. Some examples include potential 
fines from customers for missing a delivery window and constant 
contact from your carrier's dispatcher insisting you drive just 
a little further, even if you are fatigued or too tired to 
safely accommodate a customer's demands. Indeed, most of the 
challenges within this industry find their root cause in 
requirements and demands from shippers and receivers who are 
not subject to the same regulatory restrictions and economic 
consequences as truckers.

    Under current rules, a driver is allowed to drive a maximum 
of 11 hours while operating within a 14-hour-on-duty window. 
The driver is then required to be off-duty for 10 consecutive 
hours, of which 8 hours are to be used as sleeper berth time. 
The combination of the 14-hour on-duty period and the required 
10-hour break period constitutes a 24-hour cycle. The only 
exception to this is that after 8 hours of sleeper time, a 
driver may proceed to a location where driver services can be 
obtained and be off-duty not driving for the remaining 2 hours. 
This allowance still does not allow the driver to exceed the 11 
hours of driving in a 24-hour period without a total of 10 
hours off duty.

    Because of the industry's pay-by-mile system, the vast 
majority of truckers are not compensated for any of the time 
spent not driving or for any non-driving activities. This is 
the case even if that time is spent doing what the HOS 
regulations consider ``on-duty'' because the trucker is working 
or is required to be ready to work. Activities that fall under 
the definition of ``on-duty/not-driving'' include completing 
paperwork, fueling, performing pre- or post-trip inspections, 
undergoing random safety inspections, and general maintenance. 
Loading and unloading the truck and waiting in the truck for 
the loading dock at the shipper or receiver to open up are also 
``on-duty/not-driving.'' Hence the pressure to maximize time 
driving.

    Further, while some of these activities are predictable, 
being detained by a shipper for multiple hours is not, and even 
less predictable are challenges like being stuck in traffic due 
to an accident, congestion, inclement weather, or having to 
pull into a truck stop for a tire replacement or an engine 
repair. Predictable or not, these ``on-duty/not-driving'' 
activities cut into the trucker's 14-hour day, impacting their 
ability to spend time driving and earning compensation.

    Without flexibility, a few hours of unanticipated delay can 
have a significant impact on a trucker's schedule across many 
days. Flexibility does not mean, and I cannot emphasize this 
enough, that truckers should be given a green light to drive 
when they are tired or without sufficient rest. Instead, 
flexibility means giving the professional truck driver the 
ability to better manage their daily and weekly schedule. To 
operate safety and efficiently, we need the ability to take 
rest when we are best able to get the rest we need, to drive 
when we determine that we are in the best position to do so, 
and to manage our schedule appropriately.

    One of the key reasons why flexibility is important is that 
we will spend many hours during our week waiting at a shipper 
or receiver for the opportunity to load or unload. Shippers and 
receivers, including many Fortune 100 and 500 companies that 
tout how efficiently their businesses operate and how much 
attention they pay to ensuring they are ``good places to 
work,'' have little concern for making more efficient use of 
the truck driver's time.

    Not only is this detention time generally uncompensated, 
but also this time spent waiting is considered work under HOS 
rules; as such, it cuts into our available on-duty time. This 
directly reduces the amount of time we are able to be 
productive, even though much of this time is often taken in the 
sleeper berth in preparation for the upcoming on-duty period. 
The issue of detention time is not endemic to the U.S. trucking 
industry, as Australia has recently passed legislation 
recognizing that the entire logistic chain is responsible for 
the safe and efficient movement of freight and passengers. They 
have initiated a ``chain of responsibility'' where all parts of 
the supply chain are held accountable for safety and security 
on the roadways.

    Flexibility in HOS rules is a key factor in ensuring that 
professional drivers are able to make other safety-focused 
decisions. While sitting through congestion, accidents, and 
construction naturally impact driving time, the majority of 
experienced truckers understand the benefits of avoiding these 
situations altogether. Most of us will plan our trips through 
major cities to avoid rush hour traffic, not only because it 
improves our timing, but also because it significantly reduces 
our risk of being involved in an accident because there will be 
fewer passenger cars on the road. Scheduling flexibility is 
necessary for this to happen.

    Most importantly, experienced truckers are able to follow 
their own bodies when it comes to ensuring they are alert and 
refreshed while driving. HOS regulations should ensure that 
drivers are not penalized if they take a break whenever or for 
whatever length of time they need during their driving day to 
get needed rest. One driver may need several breaks of varying 
lengths distributed throughout the driving window, another may 
need multiple breaks later in the driving window, and yet 
another may need only one daily break for a meal or rest during 
this time. The much-studied circadian rhythms vary widely from 
person to person, making it difficult for a one-size-fits-all 
approach.

    Certain types of trucking will present unique challenges 
for the trucker as they work to navigate between regulatory 
restrictions and shipper demands while driving safely and 
efficiently. Specialized over-dimensional and over-weight loads 
are an example. The movement of these loads is not only 
governed by hours-of-service rules and other federal 
regulations, but also by state and local restrictions. In many 
instances, big and heavy loads are restricted to daylight-only 
operations only on certain highways. There are safety reasons 
behind these restrictions, but a misalignment between the 
permit restrictions and federal HOS rules can make scheduling 
extremely difficult. Further, the new 30-minute break 
requirement has added new difficulties, as drivers for 
permitted loads face challenges locating safe parking and the 
break cuts into the time they are able to drive before the 
permit's curfew.

    Truckers must also deal with customer schedules that do not 
reflect HOS restrictions. Many shippers demand ``just-in-time'' 
deliveries and require that deliveries or pick-ups be made at a 
certain time of day. Truckers must operate accordingly to meet 
the demands of these shippers. An example of this in my current 
operations is one customer only receives between six in the 
morning and noon. Another usually only has product ready to 
ship after three in the afternoon.

    It's my responsibility to get there on time, and running 
out of hours is not a valid reason for being late, and we can 
only plan for what we can control.

    One major area of concern for OOIDA, especially when 
considering the role of HOS rules and highway safety, is the 
pressure that the continuous on-duty clock places on truckers. 
The non-stoppable nature of the 14-hour clock, which has been 
in place since 2005, demands that we constantly push ahead to 
ensure we maximize our driving time for the day. This 
discourages drivers from taking short rest breaks throughout 
their day, with clear safety impacts. Another change from 2005, 
the elimination of the ability for truckers to split their time 
in the sleeper berth, adds additional pressure on truckers to 
push through and drive, even when they may want or need rest 
because they cannot afford to trade on-duty time for rest.

    SUMMARY OF 2011'S CHANGES TO THE HOS REGULATIONS & RECENT 
ACTIONS

    On July 1st of this year, changes to the hours-of-service 
regulations finalized by FMCSA in 2011 went into effect. It is 
important to note that these changes were the result of a court 
settlement between the agency and a number of advocacy groups 
who sought further restrictions on the HOS regulations. While 
FMCSA did not initiate these changes, OOIDA feels that they do 
not advance the goal of improving highway safety, and as you 
will see, are likely to have a negative impact on safety while 
focusing on micro-managing a driver's time.

    The main provisions of these changes were to place 
restrictions on the use of the ``34-hour restart'' and a 
requirement that drivers take a minimum rest break during their 
driving period. While many groups argued for a reduction in the 
11-hour total driving time period, FMCSA thankfully rejected 
this proposal.

    The restart is a minimum 34-hour off-duty period that 
allows a trucker to restart their 70-hour ``on-duty'' cycle. 
Prior to the most recent change, truckers were able to reset 
their duty clock more than once a week by taking any 
consecutive 34-hour period off. Under the current rule, that 
restart is limited to once per seven day/168 hour period. The 
34 hours of off-duty time must include two consecutive periods 
from 1 AM to 5 AM based on the trucker's ``home terminal'' time 
zone and not the time zone where the trucker is currently 
operating.

    The new regulations also require a mandatory break of at 
least a 30-minute period after eight hours of elapsed on-duty 
time. Drivers may drive only if less than eight hours has 
passed since the end of the driver's last off-duty period of at 
least 30 minutes. However, the break does not pause the 14-hour 
on-duty clock.

    On August 2nd, the U.S. Court of Appeals for the District 
of Columbia issued a decision in response to a pair of 
challenges brought against the new regulations. The first 
challenge was filed by the American Trucking Associations 
(OOIDA was an intervener on this suit) and the second was filed 
by the Advocates for Highway and Auto Safety, Public Citizen, 
and the Truck Safety Coalition. The decision vacated the rule's 
application of the mandatory 30-minute break to short-haul 
drivers while not making other changes.

    On October 31, Representatives Hanna, Rice, and Michaud 
introduced H.R. 3403, the True Understanding of the Economy and 
Safety Act. This legislation, which OOIDA supports, calls for a 
comprehensive review by the Government Accountability Office of 
the new restart provision, including a review of a still 
forthcoming naturalistic driving study of the restart required 
by Congress in the most recent highway bill. Until that review 
is completed, H.R. 3404 mandates that the industry resume 
operating with the previous version of the restart provision 
that does not include two overnight 1 AM to 5 AM periods and 
restricts its use to once every seven days.

    OOIDA'S ``NEW HOS REGULATIONS SURVEY''

    In light of these recent changes and the continuing 
discussion regarding the regulations, OOIDA reached out to its 
membership in October, four months after the changes went into 
effect, to gain an understanding of how they were impacting 
truckers, their operations, and their safety behind the wheel.

    The OOIDA Foundation received over four thousand responses 
to the e-mailed survey request and found, in short, that the 
``rule changes have had a dramatic effect on the lives and 
livelihoods of small business truckers and professional 
drivers.'' \4\ A copy of the survey results has been provided 
to the Committee, and I will highlight some of the findings 
below.
---------------------------------------------------------------------------
    \4\ OOIDA Foundation, ``OOIDA New HOS Regulations Survey,'' 
November 2013.

    The FMCSA announced the purpose of the rule changes was to 
reduce the possibility of truck driver fatigue; however, 
feedback from professional truckers shows differently. While 53 
percent of the respondents said the new regulations did not 
decrease nor increase their fatigue, 46 percent stated they 
---------------------------------------------------------------------------
actually felt more fatigued following the changes.

    Comments from truckers explained how this is the case: 
``There will be more driver fatigue because of this rule, not 
less, because drivers will try to maximize as many miles and 
hours of driving as possible; because of the new rules, they 
can only get a reset once in a seven day period.'' Members 
stated that the new rules caused ``more fatigue, less home 
time, less flexibility, and less money.'' Another member said, 
``The new 30-minute rule has had no positive effect on reducing 
my fatigue.''

    In addition, the new 34-hour restart provision has impacted 
the ability of OOIDA members to best schedule their loads and 
time home with their families. 79 percent of the respondents 
claimed that the limitation of one restart per week has 
affected their use of the 34-hour restart to best schedule 
their time on the road and at home, with 31 percent stating 
they have been significantly impacted:

           ``The restrictive nature of only using the 
        reset once every 168 hours not only has decreased the 
        number of hours and miles I can drive, but [also] when 
        I'd normally be off weekends. Now if I experience a 
        delay in getting home my reset keeps getting pushed 
        back further and throwing off my schedule.''

           ``I used the 34 hr restart every weekend and 
        it gave me more time to work thru the week, which 
        increased my productivity and gave me more home time. 
        [Now] I sometimes have to take the time off away from 
        home...This has effectively taken Family Time away.''

    Further, this change has caused 65 percent of respondents 
to lose income, with more than half of all respondents 
reporting lost mileage and a reduced number of loads hauled per 
week. On several occasions, members had long wait periods 
between loads but were unable to utilize the restart either 
because the 34 hours did not cover two periods between 1 AM and 
5 AM, or because 168 hours had not elapsed since their previous 
restart. In general, this forced members to lose time at home, 
which caused them to take on shorter hauls and reduced their 
income.

           ``Where before I could rest due to shipper/
        receiver delays, weather, or whatever, now its run, 
        run, run till 7 days have passed then get a rest or 
        slow down till hours catch up.''

           ``Since shippers and receivers control my 
        hours of service, my time is no longer as flexible, I 
        must enter larger cities/more traffic areas in the 
        morning & evening rush hour times instead of regulating 
        my own time and working around traffic.

    The mandatory break has impacted 86 percent of the 
respondents, and over 60 percent stated that their operations 
were either moderately or significantly affected by the 
regulation. Frequently, members stated they felt more fatigued 
because of the mandatory break, and instead of taking a nap, 
truckers are simply sitting in their truck, waiting for their 
break to end.

    Perhaps one of the biggest concerns was taking the time to 
find parking just in order to take the 30-minute break: ``Most 
of the time my 30 minutes turns into 60 minutes or more by the 
time you find parking and get back on the road.'' One member 
stated the ``half hour break has increased stress, cut down 
time to drive, cut down on the ability to find a parking spot, 
and extended my day, increasing fatigue.''

    The final question proposed, ``If you could change one 
hours-of-service regulation, what and how would you change 
it.'' The two largest responses were changing the 34-hour 
regulations back to the previous structure (46%) and 
eliminating the 14-hour running clock provision (30%) and 
allowing truckers to stop that clock through a rest break or 
some other off-duty activity.

    These opinions are the views of the actual truckers that 
have to operate under the dual pressures of regulatory 
constraints and pressures from shippers, carriers, and others 
in the industry. The comments from truckers responding to the 
survey focused significantly on the impact these changes are 
having on their ability to get the rest they need. They also 
focused on the pressure that has resulted from limiting the 
flexibility they as truckers have under the regulations. 
Importantly, they also addressed the impact that the 
regulations have had on their ability to earn a living. 
Ensuring that truckers are able to earn a good living has 
unavoidable ties to highway safety, and these impacts should be 
considered as part of any regulatory review.

    IMPACT OF THE NEW RULES ON MY OPERATIONS

    The impacts of these new rules on my operations closely 
tracks the results of the survey OOIDA conducted of our 
membership. I have experienced an impact with all of the 
aforementioned issues. I have less home time, more pressure, 
and increased fatigue. These rules remove the flexibility that 
is so badly needed to operate safely and efficiently.

    The 30-minute beak rule. - Before this rule was enacted, I 
would take a break every 2\1/2\ to 4 hours. I would stop and 
attend to my personal needs and walk around my truck to 
visually inspect my load and equipment, taking about 15 minutes 
each time. An example of my day would be driving for four 
hours, a 15-minute break, four more hours of driving, another 
15-minute break, and then three hours of driving until I went 
off-duty. Now, because I no longer have control over my break 
times and duration, I frequently drive 5-6 hours, take my 30-
minute break, and drive the remaining time available under the 
11-hour driving window straight through. Instead of having my 
driving day split out into smaller periods with short breaks in 
between, my driving day is split into two longer periods with 
only one break.

    Two 1 AM-5 AM periods. - This provision has caused me to 
delay my start time on many occasions, which often puts me in 
the middle of Seattle rush-hour traffic or other heavy traffic 
along my route. When 34 hours without time stipulations was the 
rule, I could take my 34 hours off and leave early enough to 
avoid traffic during rush hour in the morning in Seattle and 
Portland, OR in the afternoon. My inability to avoid traffic 
now costs me as much as 2 hours of travel time in one day while 
opening me up to significantly greater risk of accidents due to 
the larger number of vehicles on the road. This has a domino 
effect across my trip, as the following day I am forced to 
drive through Sacramento's rush hour. The third day is my 
delivery day, and I am now making these deliveries 3 to 6 hours 
later than they were under the prior regulations.

    While I do not generally drive coast-to-coast, if I did, I 
would feel the impact of another aspect of the rule change. The 
1 AM to 5 AM period is based upon the time at the trucker's 
home terminal and not in the area they are currently operating. 
Calling the West Coast home, this means that were I to work on 
the East Coast, my restart periods would need to include two 
consecutive periods between 4 AM and 8 AM, and a driver based 
on the East Coast would need to include two periods between 10 
PM and 2 AM when they are on the West Coast.

    Limiting restarts to once every seven days. - The new 
provision requiring 168 hours or seven days to have passed 
before I can take a 34-hour restart has not made me any safer 
or less fatigued. It has, however, had a dramatic effect on my 
productivity and has forced me to stay on the road more and 
away from home. After I have had 70 hours of total on-duty time 
within a eight day period. the change in the regulations 
requires me to sit away from home until the 168 hours has 
accumulated plus an additional 34 or more hours to get in the 
required two 1 AM to 5 AM periods. This artificial limitation 
on my use of the restart has caused me to take my 34-hour 
restart--time that I am supposed to be getting rest--three 
hours from being at my home several times over the past 4 
months. I think common sense will tell you a driver can get 
much better rest at home than at a noisy truck stop.

    Lost revenue. - The impact of these rules effects each 
trucking operation differently. In my business, I have 
experienced more pressure to keep moving to maintain revenue. 
It is easy to lose as much as one day a week of driving due to 
scheduling conflicts between HOS requirements and demands from 
shippers and receivers. This equates to $4,000 to $5,000 per 
month. The only way to avoid this loss is to forget about going 
home and maximize hours on the road.

    STEPS TO ADDRESS HOS INFLEXIBILITY AND TO IMPROVE HIGHWAY 
SAFETY

    Throughout the Department's HOS rulemaking process, OOIDA 
has held that to meaningfully improve highway safety, any 
changes to the rules would need to include all aspects of a 
truckers' workday that affect their ability to drive safety. 
This includes loading and unloading times, split sleeper berth 
capabilities, and the ability to interrupt the 14-hour on-duty 
period for needed rest periods.

    Unfortunately, the new rule misses clear opportunities to 
provide needed flexibility for truckers to address these 
challenges; instead, it goes in the opposite direction and adds 
additional restrictions that makes it more difficult for 
truckers to balance out the dynamic demands of their work day 
while operating safety and efficiently.

    The Department of Transportation can take important steps 
to improve the HOS rules to help truckers meet those goals of a 
safe and efficient operation. In addition to returning to the 
prior rule regarding use of the 34-hour restart, the Department 
could make the following improvements: 1) allow truckers break 
up their 14-hour on-duty window with short breaks on their 
terms that do not count against the driver's available duty 
time; 2) provide the opportunity to extend the driving window 
beyond 14 hours while still ensuring the driver obtains 
sufficient rest; and 3) return to the pre-2005 split sleeper 
berth rule.

    Further, all of us within the trucking industry, within 
FMCSA, and most importantly within the community of shippers 
and receivers, need to take steps to address the detention 
issue. Truckers are professionals, and their time and their 
labor should be treated with value by their employers and their 
customers, because the current situation is having dramatic and 
negative safety and economic impacts for the men and women who 
drive our nation's trucks and their families.

    Speaking of those men and women, we need to develop and 
enact long-overdue entry-level driver training requirements. 
Meeting this goal, which is the keystone of OOIDA's Truckers 
for Safety agenda, would have countless benefits, from 
improving highway safety to addressing industry challenges, 
including trucking's consistently high turnover rate.

    More broadly, OOIDA urges Congress and the Department to 
shift the focus of regulatory and enforcement activities back 
to the core causes of accidents. All too often, we have seen 
regulations move based on suppositions from studies of limited 
basis or arguments made by technology vendors or others within 
the industry. One clear example of this is the on-going effort 
to mandate speed limiters on heavy-duty trucks. This effort, 
which was made at the urging of several mega motor carriers, is 
continuing despite the fact that the Department does not have 
real-world data showing that speed limiters would make a 
difference in highway safety.\5\
---------------------------------------------------------------------------
    \5\ Tanner, David, ``Feds pursuing speed limiters for heavy trucks 
lack real-world,'' Land Line, November 1, 2013.

    The current approach has resulted in costly regulations 
that simply continue to put added pressure on truckers with 
little true safety benefit. Focusing on true accident causes 
and steps that can be taken to reduce accidents would go a long 
way towards improving highway safety in a way that values the 
---------------------------------------------------------------------------
commitment of professional truckers to safe roads.

    CONCLUSION

    While the HOS rules are intended to make our highways safer 
and more productive, the results of continued micro-management 
of drivers' time has shown a very different outcome. Almost 
half of OOIDA members responding to our recent survey feel more 
fatigued following the changes, nearly 80 percent have seen 
impacts to their ability to schedule loads and home time, and 
nearly two thirds of respondents have lost income, with more 
than half driving fewer miles and fewer loads.

    We at OOIDA support safety first by requiring properly 
trained truckers as the foundation of all safety programs. Once 
properly trained, make sure that the trucker has the tools 
needed to carry out this very unique task as safely and 
efficiently as possible, including reasonable flexibility under 
the HOS regulations. Rest is something a well-trained driver 
understands and knows his own personal needs better than any 
one size fits all rule ever could.

    It goes without saying that OOIDA supports the mission of 
removing bad actors and ending unsafe practices--our members 
are on the road and exposed to the risk that comes with that 
environment every single day. However, placing more and more of 
the responsibility and the punishment on the driver, while not 
holding accountable the motor carriers and customers who make 
demands irrespective of regulations and safety, is not the way 
to move forward.

    Addressing the inflexibility of the HOS regulations, 
including the new limits on the 34-hour restart as well as 
enabling truckers to pause their on-duty clock, would be a 
positive step forward, but regulations are only one set of 
challenges that truckers must navigate as they work to operate 
safety and efficiently. Demands from customers, keeping drivers 
waiting countless hours at the dock, the challenge of driver 
pay, and the pressure from motor carriers to keep operating are 
elements of the industry that all have negative impacts on 
truckers and safety. While the Department and Congress are not 
the best sources for solutions in all of these areas, they 
certainly deserve attention from all who are concerned about 
highway safety and the success of small business truckers.

    Thank you for the opportunity to testify. I look forward to 
answering any questions.
[GRAPHIC] [TIFF OMITTED] 85596.025

    Chairman Hanna, Ranking Member Meng, and members of the 
House Small Business Committee, thank you for the opportunity 
to speak with you today regarding concerns affecting small 
businesses arising from the FMCSA's Hours-of-Service Rules.

    My name is Brian Evans; I am the owner of a small business 
transportation brokerage. I serve as the President, and CEO for 
L&L Freight Services located in Cabot, Arkansas, and I am a 20-
year veteran of the transportation, freight brokerage, and 
supply chain management sectors. I come from a family owned, 
blue collar, small business and prior to working in the 
brokerage industry; I drove over-the-road almost 1,000,000 
accident free miles.

    Additionally, I serve on the Board of Directors for the 
Transportation Intermediaries Association (TIA). TIA represents 
more than 1,400 member companies; of which 70 percent of these 
companies are small family owned businesses.

    TIA is the professional organization of the $162 billion 
third-party logistics industry. TIA is the only organization 
exclusively representing transportation intermediaries of all 
disciplines doing business in domestic and international 
commerce.

    Like the FMCSA, one of our primary missions is promoting 
safe practices. As an organization, TIA has sought to work with 
FMCSA to make the Hours-of-Service regulations the best 
possible tool for the Agency to improve safety for the motoring 
public by reducing truck driver fatigue.

    Freight brokers, interchangeably referred to as 
``transportation intermediaries,'' third party logistics 
companies (``3PLs''), and non-asset based logistics companies, 
are professional businesses that act similarly to ``travel 
agents'' for freight. Freight brokers serve tens of thousands 
of US businesses and manufacturers (shippers) and motor 
carriers (carriers), bringing together the shippers' need to 
move cargo, with the corresponding capacity and equipment 
offered by rail and motor carriers, or, depending on a 
company's authorities, air and ocean carriers as well.

    We are an incredibly ``green'' industry, and have 
contributed to U.S. economic growth in innumerable ways. 
Freight broker businesses are generally growth businesses, 
finding new ways to serve our manufacturing and distributing 
customers every year. By matching capacity with available 
shipments, we dramatically reduce the empty miles trucks drive 
between shipments, saving fuel and adding money to the bottom 
lines of carriers and shippers. Our industry has helped lower 
logistics costs as a percent of GDP by several percentage 
points since deregulation.

    Transportation intermediaries are primarily, non-asset 
based companies whose expertise is providing mode and carrier 
neutral transportation arrangements for shippers with the 
underlying asset owning and operating carriers. They get to 
know the details of a shipper's business, then tailor a package 
of transportation services, sometimes by various modes of 
transportation, to meet those needs. Transportation 
intermediaries bring a targets expertise to meet the shipper's 
transportation needs.

    Many shippers in recent years have streamlined their 
acquisition and distribution operations. They have reduced 
their in-house transportation departments, and have chosen to 
deal with only a few ``core carriers'' directly. Increasingly, 
they have contracted out the function of arranging 
transportation to intermediaries or third party logistics 
experts. Every Fortune 100 Company now has at least one third 
party logistics company (3PL) as one of its core carriers. 
Since the intermediary or 3PL, in turn, may have relationships 
with dozens, or even thousands, of underlying carriers, the 
shipper has many service options available to it from a single 
source by employing an intermediary.

    Shippers count on transportation intermediaries to arrange 
and report on the smooth and uninterrupted flow of goods from 
origin to destination. Most carriers rely upon brokers to 
operate as supplements to their sales force, and in some cases, 
their entire sales force. Whatever the case, brokers keep 
carriers' equipment filled and moving. There are more than 
15,000 licensed freight brokers in operation, and they range 
from small, family owned businesses to multi-billion dollar, 
publicly traded corporations.

    Unfortunately, the new HOS regulations were a solution in 
search of a problem. No one wants unsafe trucks or drivers on 
the road. There is no one with a greater interest of the 
security of a driver than his or her employer. To that end, TIA 
has a standing committee that has published and regularly 
updates, a carrier selection framework. TIA recommends that 
every broker and shipper have in place a written carrier 
selection policy for hiring carriers. Safety improvements by 
the industry under the previous hours-of-service rules, reduced 
accidents, allowed the market to become more efficient, and 
allowed American business to be more competitive.

    The new rules are overly complicated, will reduce 
productivity, and have no effect on reducing accidents beyond 
the previous level. In the 24th annual State of Logistics 
report authored by Rosalyn Wilson, she estimates a loss of 
productivity between 2% and 10% for the transportation 
industry. This significant amount of loss of productivity could 
lead companies to expand their near shoring ventures into 
neighboring countries; thus relocating valued American 
transportation jobs to foreign nations.

    I have spoken with many of my carrier customers who are 
experiencing a major loss of productivity due to the new 
restart provision. This rule is resulting in around five fewer 
loads per week or a reduction of 3% in capacity for their 
fleets. The cost of this loss of efficiency is felt by the 
business and ultimately passed on to the consumer.

    We are not suggesting that increased safety be traded for 
increased efficiency. We are stating that safety improvement 
was achieved under the old rules, and the new rules will not 
result in dramatically increased carrier safety. According to a 
report disseminated by the U.S. Department of Transportation in 
March of 2013 \1\, police reported commercial motor vehicle 
traffic crashes actually decreased 3% between the years 2009 
and 2011.
---------------------------------------------------------------------------
    \1\ U.S. Department of Transportation. Federal Motor Carrier Safety 
Administration. Commercial Motor Vehicle Facts - March 2013.

    As you know, there is a pressing shortage of drivers. The 
new HOS rule will have a twofold effect. It will chase out 
qualified drivers and deter future motor carriers from entering 
the industry, because the rules limit the number of loads a 
carrier can handle. The rule will likely also require drivers 
to operate during peak hours of operations, thereby increasing 
---------------------------------------------------------------------------
congestion and reducing safety.

    The American Transportation Research Institute (ATRI) 
recently released their 2013 edition of the ``Critical Issues 
in the Trucking Industry.'' The report places the new HOS 
regulations as this year's top concern for the trucking 
industry. It further examines the 34-hour restart provision and 
states, ``Many in the industry believe that these new HOS rules 
will have a negative impact of productivity. Additionally, 
there are concerns that the safety benefits that FMCSA expects 
these changes to generate will not materialize.'' \2\ ATRI 
estimates that the changes to the restart provision alone would 
cost the industry $189 million dollars, as opposed to the $133 
million benefit projected by the FMCSA.\3\
---------------------------------------------------------------------------
    \2\ American Transportation Research Institute. Critical Issues in 
the Trucking Industry - 2013. October 2013.
    \3\ American Transportation Research Institute. Assessing the 
Impacts of the 34-Hour Restart Provisions. June 2013.

    The FMCSA's concerns about driver health and safety are to 
be applauded. The new HOS rules, however, fail to demonstrate 
that further restrictions will lead to any measurable decrease 
in crashes or injuries beyond that already being achieved with 
the previous measures. TIA supports the passage of H.R. 3413, 
the ``TRUE Safety Act.'' TIA urges the Agency to examine the 
negative effects of the 34-hour restart provision and consider 
amending the rule to give transportation the flexibility they 
---------------------------------------------------------------------------
need to ensure safety.

    I appreciate the opportunity to testify before the 
subcommittee today on the concerns of the new HOS rules and its 
effects on small business owners whether a third-party 
logistics provider, motor carriers, or the entire supply chain. 
I would be happy to answer any questions.
                   Testimony of Paul P. Jovanis Ph.D.


             Professor, Civil and Environmental Engineering


              Director, Transportation Operations Program


                          The Larson Institute


                         College of Engineering


                     Pennsylvania State University


                                   On


       The Effect of Truck Driver Hours of Service on Crash Risk


                                 Before


                 The House Committee on Small Business


                 Contracting and Workforce Subcommittee


                           November 21, 2013

         The relationship of crashes to driver hours of service


                   Submitted by Paul P. Jovanis Ph.D.


             Professor, Civil and Environmental Engineering


              Director, Transportation Operations Program


                    Larson Transportation Institute


                     Pennsylvania State University


    Summary

    Understanding the relationship between truck driver hours 
of service and crashes is a complex and challenging task. 
Researchers working in this area come from backgrounds as 
diverse as human factors, psychology, medicine and road safety. 
Some of the research in this field has been described by the 
term ``fatigue'', even though questions have been raised in the 
literature about the definition of the term fatigue itself 
(Haworth, et al., 1988). Others (e.g. Jovanis et al., 2012) 
have focused on studying the association of crashes to the 
duration of driving, use of rest breaks, schedule of driving 
over several days and time of day. All approaches contribute in 
different ways to our accumulation of knowledge about hours of 
service and crashes. This testimony is not an exhaustive review 
of this literature as there would likely be hundreds of 
citations. Rather this is an attempt to summarize the most 
recent work in the field, with a few additional references to 
well-cited research.

    Concerning the effect of hours of service on crashes, I 
offer the following summary:

    Hours of continuous driving - Using data supplied by 
carriers over a period of more than 20 years, there are a 
number of studies that support the basic principle that the 
longer one drives the greater the odds of a crash (e.g. Jovanis 
and Chang, 1989; Jovanis et al., 1991; Kaneko and Jovanis, 
1992; Lin, et al., 1993; Lin at al., 1994; Jovanis et al., 
2011; Jovanis, et al., 2012). These eight studies estimated the 
effect of driving time, when controlling for other factors such 
as experience, off duty time, driving pattern over multiple 
days and, in one case, time of day directly. These studies are 
among the few that control for multiple factors while seeking 
to estimate the effect of driving time. A study using fatal 
truck-involved crashes from 1980-2002 (Campbell and Hwang, 
2005) also indicated an increase in crash risk with hours 
driven.

    Using trucks instrumented with cameras and other vehicle-
based sensors a series of studies have sought to connect risky 
driving maneuvers to hours of service. Using these measures, 
one study (Hanowski, et al., 2008) found little connection 
between the observed events and hours of service. A second 
study with more extensive data (Blanco, et al., 2011) did find 
an association of driving time with the occurrence of safety 
critical events (including a few crashes). This second study, 
like the first, also showed a close correlation with time on 
duty. Other studies using instrumented vehicles, physiological 
or other tests of fatigue for a limited number of drivers 
during regular work conditions have found little association of 
these metrics with hours driving (e.g. Wylie, et al., 1996).

    In summary, based on a series of studies using carrier-
supplied data and one with fatal truck crashes measured over 20 
years, I believe there is evidence that crash risk increases as 
driving time increases.

    Hours off duty - the increase is required off-duty time was 
implemented in 2003. Crash-based research using data from the 
1980's (Lin et al., 1993) indicates that drivers with more than 
9 hours off duty have a lower crash risk when returning to work 
than drivers with 8-9 hours off-duty. This is a case where the 
change in regulations (increasing off-duty time from 8 to 10 
hours) is consistent with the research.

    Time of day - the effects of time of day are particularly 
difficult to identify because trucks share the road with other 
traffic, which has marked peaks in urban areas during the 
morning and evening rush. In a study using crash data (Lin, et 
al., 1993), with a baseline of 10am to noon, crash risks were 
elevated in the early morning (4am to 6am) through to 10am; and 
then again elevated from 4 to 10pm. Another study (Campbell and 
Hwang, 2005) found an increase in the odds of a crash from 11pm 
through 6am. Using fatigue tests and instrumented vehicle data 
(Wylie, et al., 1996), others found strong association of 
declines in performance and fatigue tests linked to time of 
day. Fatigue (self rated) increased more during night than day 
shifts in a study in Australia (Williamson et al., 2004). Time 
of day is associated with crash risk; the question is how to 
address this in regulations.

    Rest breaks - Breaks are included in the hours of service 
rules for the European Union, which require 45 minutes for each 
4.5 hours of driving (Wikipedia, 20013). In 2013, the new US 
rule requires a 30-minute rest break after 8 hours driving. 
Lack of mandatory inclusion in the policy allowed researchers 
(Jovanis et al., 2012) to compare drivers with break and those 
without. The presence of two breaks reduced crash odds by 30% 
in a 2012 study (Jovanis, et al., 2011). The benefits of rest 
breaks seem overwhelming.

    Cumulative driving over several days - the introduction of 
the 34-hour restart in 2003 has triggered a series of studies 
of the effect of cumulative driving both with and without a 
restart.

    Two laboratory studies have been recently completed that 
focused on the 34-hour restart. In the first study (Van Dongen 
and Belenky, 2010) subjects were split into two groups: one 
group worked a daytime schedule for 5 days, was off duty for 34 
hours, then worked 5 more days for 14 hours per day. The second 
group had a similar schedule except the participants worked at 
night for 5 days, had a 34-hour day-oriented break and then 
another 5 days of night work. The principal finding is that the 
day-oriented work group showed no decline in performance, while 
those with the night work showed a decline when they returned 
to work after the 34-hour ``restart''. These studies were 
enhanced in a follow-up experiment in which participants were 
subjected to night work periods separated by a 58-hour 
``restart'' aimed to emulate the effect of an additional day 
required from the 34-hour regulation. In this case drivers were 
compared against each other before the restart compared to 
after. This longer restart resulted in no performance 
degradation after return from the 58-hour off-duty period.

    This concludes my oral testimony; I'll be happy to answer 
any questions you may have.
    Brief summary of older research:

    Federal hours of service were largely unchanged from the 
1940's until 2003. Since then, there have been a series of 
changes to those regulations including those implemented this 
year. Federally sponsored research underlying changes in the 
regulations were conducted in the U.S. in the early 1970's 
(Harris and Mackie, 1972; Mackie and Miller, 1978) and during a 
major field study conducted i the 1990's, the Driver Fatigue 
and Alertness Study, (Wylie, et al., 1996). At the same time, 
there was research underway outside of federal funding (Jovanis 
and Chang, 1989, Chang and Jovanis, 1990; Jovanis, et al., 
1991; Kaneko and Jovanis, 1992; Lin et al., 1993, and 1994) 
seeking to associate crash occurrence with driving hours use 
carrier-supplied data.

    Detailed Comments on recent studies:

    Recent crash-based analyses:

    A study was recently completed using crash data from 
carriers during 2004-05 and 2010 (Jovanis et al., 2011). The 
study team used a methodology similar to one used in many 
previous papers (e.g. Kaneko and Jovanis, 1992), which compared 
crashes and non-crashes using a method called case-control 
analysis. Over 500 crashes and 1000 non-crashes were used in 
the study; all crashes were sufficiently severe to be 
reportable to FMCSA through state safety organizations (i.e. a 
person was killed or required medical attention or a vehicle 
had to be towed from the scene). Factors included in the 
modeling included driving time along with multiday driving 
(derived from driving schedules over a seven day period) to 
estimate crash risk. Central to the modeling is the notion of 
survival: a driver who has a crash in the 5th hour, for 
example, survives, that is successfully completed the first 4. 
The statistical modeling used by the team represents this 
survival process. Findings in the report and a recent paper 
based on the research (Jovanis et al., 2012) include an 
increase in crash risk after the 5th hour of driving and an 
increased risk when returning to work after extended (34 hours 
or more) off duty. This was not a test of the restart policy, 
but a test of crash risk immediately after return to work after 
extended time off. The risk was higher for drivers returning to 
a night shift compared to a day shift. Because the study was 
conducted before the currently required rest breaks the 
research was able to identify a reduction associated with short 
driving breaks from driving (typically 15 to 60 minutes) 
reduced crash risk by 20-50% depending on the number of breaks 
and type of operation.

    A limitation of the study was that there were only 66 
observations of the 1564 total (4%) that remained in the 11th 
hour. As a result of this data loss, the estimate of crash risk 
in the 11th hour is quite large. It is interesting to note how 
relatively few trucks in the study drove into the 11th hour. 
Considering non-crash data alone, 50 of 1022 (4.9%) of trucks 
utilized the 11th hour. Further, data were limited to most 
cases to 7 days prior to a crash, restricting the ability to 
assess the effect of the 34-hour restart.

    Recent naturalistic driving analyses:

    In the naturalistic method, a set of participants are 
observed while driving ``naturally''; in this case during the 
conduct of their jobs. In addition to any crashes observed, 
near misses and crash-relevant conflicts (events where evasive 
maneuvers are needed to avoid a crash) are tracked to assess 
driving performance. The vehicles are instrumented with 
cameras, GPS and other sensors to measure vehicle motion. A 
recent study (Hanowski, et al., 2008) used naturalistic driving 
methods to measure truck critical event occurrence during 
vehicle movement. Naturalistic driving means the vehicle is 
instrumented with a set of cameras, radar, accelerometers, 
gyroscopes and GPS (among others), to watch and record how 
people drive. The critical events observed included crashes, 
near crashes (when extreme braking or driver reaction avoided a 
collision) and crash-relevant conflicts (where an avoidance 
maneuver resulted in no collision). In this study, 710 of 819 
events observed were crash-relevant conflicts so these events 
dominated all analyses. Recording of events began when vehicle 
motion started (speed greater than zero).

    This study found little association of event risk and 
driving time, particularly between the 10th and 11th hour; 
rather a stronger association was found with hours worked. A 
follow-on study using a larger data set and more quantitative 
statistical methods (Blanco et al., 2011) found associations 
with driving time and hours worked. This second study also 
found positive safety aspects to rest breaks.

    One potential difficulty of this use of naturalistic 
studies is that events occurring in the first hour may be 
occurring in the terminal or marshaling areas. This is not 
necessarily equivalent to occurring on the road and may effect 
the assessment of driving time effects. The analyses largely 
assessed one factor at a time; there was no combined assessment 
of driving time, cumulative driving and rest breaks as in the 
crash analyses. Further, the process represented by the models 
is different. When a crash occurs, the truck driver does not 
typically continue to drive. With the naturalistic approach, 
drivers involved in near crashes and crash-relevant conflicts 
continue to operate. It is not known if the occurrence of one 
of these non-crash events influences subsequent driver 
behavior, and thus subsequent risks associated with driving 
time and hours worked.

    Lastly, there is a concern about the implied equivalence of 
crashes and the non-crash events. Research has shown (Wu and 
Jovanis, 2012; Wu and Jovanis 2013 a, b) that the definition of 
near crashes and crash-relevant conflicts depends details of 
the search algorithm used to identify the events. Depending on 
the method used, some non-crash events may differ from the 
crash events they are being compared to. This is a potential 
source of error in the hours of service data used in the 
naturalistic studies.

    Laboratory studies of the 34-hour restart:

    The summary of findings concerning the 34-hour restart 
referenced two recently conducted studies at Washington State 
University (Van Dongen and Belenky, 2010; Van Dongen et al., 
2010). In addition to the description of findings provided on 
Page 4 of this testimony, there are a few additional issues in 
need of discussion. One could raise a question about 
establishing a policy based primarily on laboratory studies of 
39 individuals. However, the studies appear to have been 
carefully conducted and would, in my view pass scientific 
scrutiny. The positive results with the 58-hour recovery period 
lead to wonder if another off-duty period between 34 and 58 
would be successful. Further, it would be interesting to test 
longer work and duty periods with more extended use of the 
restart, both to increase the sample size of participants and 
to see better understand the changes in performance that 
result.

    Concluding remarks:

    I hope the testimony provided additional understanding of 
this complex topic. I place greater weight on use of crashes as 
a performance measure for assessing hours of service effects, 
primarily because I have worked with these data for over 25 
years. In addition, the engineering profession has focused on 
the use of crashes and their outcomes (fatalities, injuries and 
property damage) to assess safety; this applies in research 
(e.g. Hauer, undated) and in education programs (NCHRP 667, 
2010). In my view other techniques offer important insights, 
but crash-based studies should be given priority consideration.
    References

    Blanco, M., R. J. Hanowski, R. L. Olson, J. F. Morgan, S. 
A. Soccolich, S.C. Wu, F. Guo, (2011), The Impact of Driving, 
Non-Driving Work, and Rest Breaks on Driving Performance in 
Commercial Motor Vehicle Operations, FMCSA-RRR-11-017, 102 p.

    Campbell, K., and Hwang, H.L. (2005). Estimates of the 
Prevalence and Risk of Fatigue in Fatal Accidents Involving 
Medium and Heavy Trucks from the 1991-2001 TIFA Files, Center 
for Transportation Analysis, Oak Ridge national Laboratory, Oak 
Ridge, Tennessee, 14 pages

    Chang H.L. and P.P. Jovanis. (1990) ``Formulating Accident 
Occurrence as a Survival Process,'' Accident Analysis and 
Prevention, Vol. 22, No. 5, pp. 407-419.

    ec.europa.eu/transport/modes/road/
social--provisions/driving--time/; web 
access on November 16, 2013

    Hanowski, R. J., R. L. Olson, J. Bocanegra, and J. S. 
Hickman, ``Analysis of Risk as a Function of Driving-Hour: 
Assessment of Driving-Hours 1 Through 11, FMCSA RRR-08-002, 
January 2008, 80p.

    Harris, W., and Mackie, R.R. (1972) A study of the 
relationship among fatigue, hours of service, and safety of 
operations of truck and bus drivers, Final Report, BMCS RD 71-
2, Washington: U.S. Department of Transportation, Federal 
Highway Administration, Bureau of Motor Carrier Safety.

    Hauer, E., Two harmful myths and a thesis, presented at 
Traffic Safety Summit, October 4-7, Kananaskis, Alberta, Canada 
(no year provided).

    Haworth, N. L., Triggs, T. J. and Grey, E. M. (1988). 
Driver fatigue: Concepts, measurement and accident 
countermeasures. Canberra: Federal Office of Road Safety.

    Jovanis, P.P., Aguero, K.F. Wu, and V. Shankar, 
``Naturalistic Driving Event Data Analysis: Omitted Variable 
Bias and Multilevel Modeling Approaches'', Transportation 
Research Record: Journal of the Transportation Research Board 
2236, p. 49-57, 2011.

    Jovanis, P.P. and H.L. Chang. (1989) ``Disaggregate Model 
of Highway Accident Occurrence Using Survival Theory,'' 
Accident Analysis and Prevention, Vol. 21, No. 5, pp. 445-458.

    Jovanis, P.P., Kaneko, T., and Lin, T. (1991) Exploratory 
Analysis of Motor Carrier Accident Risk and Daily Driving 
Pattern, Transportation Research Record 1322, Transportation 
Research Board, Washington, D.C., pp. 34-43.

    Jovanis, P.P., K.F. Wu, C. Chen, Effects of Hours of 
Service and Driving Patterns on Motor Carrier Crashes, 
Transportation Research Board, Journal of the Transportation 
Research Board, No. 2231, p 119-127, 2012 (awarded best paper 
of the year by the TRB Truck and Bus Safety Committee, 2012).

    Jovanis, P. P.; K.F. Wu; and Chen Chen, Hours of Service 
and Driver Fatigue: Driver Characteristics Research, FMCSA-RRR-
11-018, Washington, D.C., 88p.

    Kaneko, T., and Jovanis, P.P. (1992) Multiday Driving 
Patterns and Motor Carrier Accident Risk: A Disaggregate 
Analysis, Accident Analysis and Prevention, Vol. 24, No. 5, pp. 
437-456.

    Lin, T.D., Jovanis, P.P., and Yang, C.Z. (1993). Modeling 
the Effect of Driver Service Hours on Motor Carrier Accident 
Risk Using Time Dependent Logistic Regression, Transportation 
Research Record 1407, Transportation Research Board, 
Washington, D.C., pp. 1-10

    Lin, T.D., P.P. Jovanis, and C.Z. Yang, (1994). Time of Day 
Models of Motor Carrier Accident Risk, Transportation Research 
Record 1467, Transportation Research Board, Washington, D.C., 
pp. 1-8.

    Mackie, R.R., and Miller, J.C. (1978) Effects of hours of 
service regularity of schedules, and cargo loading on truck and 
bus driver fatigue. DOT Report HS-5-01142, Washington, D.C.: 
National Highway Traffice Safety Administration, (NTIS PB 
290957).

    NCHRP 667 (2010), Model curriculum for Highway safety core 
competencies, Transportation Research Board, 12 p.

    Park, S-W, Mukherjee, A., Gross, F., and Jovanis, P.P. 
(2005) ``Safety Implications of Multi-day Driving Schedules for 
Truck Drivers: Comparison of Field Experiments and Crash Data 
Analysis'', Journal of the Transportation Research Board, No. 
1922, pp. 167-174.

    Shankar, V., P.P. Jovanis, J. Aguero and F. Gross, 
``Analysis of Naturalistic Driving Data: A Prospective View on 
Methodological Paradigms'', Journal of the Transportation 
Research Board, No. 2061, November 2008, P1-8.

    Van Dongen, H. P.A., and G. Belenky, (2010) Investigations 
into Motor carrier Practices to achieve optimal commercial 
Motor Vehicle Driver Performance: Phase I, FMCSA-RRR-10-005, 
Sleep Performance and Research Center, Washington State 
University, 78p.

    Van Dongen, H. P.A., M. Jackson and G. Belenky, (2010), 
Duration of Restart Period Needed to Recycle with Optimal 
Performance: Phase II, FMCSA-MC-RRR-10-062, Federal motor 
carrier Safety Administration, 59p.

    Wikipedia search: en.wikipedia.org/wiki/
Hours--of--service; November 17, 2013.

    Williamson, A., Friswell, R., and Feyer, A.M., (2004), 
Fatigue and Performance in Heavy Truck Drivers Working Day 
Shift, Night Shift or Rotating Shifts, National Transportation 
Commission, 113 p.

    Wylie, D.D., Shultz, T., Miller, J.C., Mitler, M.M., and 
Mackie, R.R. (1996) Commercial Motor Vehicle Driver fatigue and 
Alertness Study: Technical Summary, Publication FHWA-MC-97-001. 
FHWA, U.S. Department of Transportation

    Wu, K.F., P. Jovanis, (2013), Screening Naturalistic 
Driving Study Data, in press, Journal of Transportation 
Research Board

    Wu, K.F., and P.P. Jovanis, (2013), Defining and Screening 
Crashes and Crash-Surrogate Events Using Naturalistic Driving 
Data, Accident Analysis and Prevention, Volume 61, Pages 10-22

    Wu, K.F., and P.P. Jovanis, (2012), Crashes and Crash-
Surrogate Events: Exploratory modeling with naturalistic 
driving study data, Accident Analysis and Prevention, Vol. 45 p 
507-516.
[GRAPHIC] [TIFF OMITTED] 85596.026

       Statement of the Associated General Contractors of America


                                   to


      House Small Business Contracting and Workforce Subcommittee


                                   on


  Impact of the Federal Motor Carrier Safety Administration's (FMCSA)


 Hours of Service Regulation on Construction Industry Small Businesses


    The Associated General Contractors of America (AGC) is the 
leading association in the construction industry representing 
more than 26,000 firms in 94 chapters throughout the United 
States. Among the association's members are approximately 6,000 
of the nation's leading general contractors, more than 9300 
specialty contractors, and more than 10,000 material suppliers 
and service providers to the construction industry. These firms 
are engaged in the construction of highways, bridges, tunnels, 
airports, transit, railroad, ports, buildings, factories, 
warehouses, shopping centers, water treatment plants and other 
public and privately owned facilities. AGC members perform 
construction contracts in all 50 states and own and operate 
fleets of commercial motor vehicles to carry out these 
construction contracts. AGC members are therefore directly 
impacted by the Federal Motor Carrier Safety Administration's 
(FMCSA) Hours of Service regulations and indirectly by how 
these rules impact their suppliers.

    In 1995, Congress recognized that the FMCSA's hours-of-
service regulations were too restrictive on several industries, 
including the construction industry. In the National Highway 
System Designation Act of 1995 (section 345), Congress modified 
the regulations for construction industry drivers transporting 
construction materials and equipment to and from an active 
construction site within a 50-air-mile radius of the driver's 
normal work reporting location. These drivers are allowed to 
restart the on-duty clock after an off-duty period of 24 or 
more consecutive hours. Congress also directed the Secretary of 
Transportation to ensure that granting the construction 
industry exemption would be in the public interest and would 
not have a significant adverse impact on the safety of 
commercial motor vehicles. If at any time the Secretary 
determined that this was not the case, the Secretary could 
``prevent the exemption from going into effect, modify the 
exemption, or revoke the exemption.'' Now, nearly eighteen 
years after the rules' implementation, FMCSA has found no 
adverse impact from this exemption.

    Congress created the exemption from the construction 
industry in recognition of the unique circumstances faced by 
the industry's drivers. These unique circumstances include: 
seasonal limits on when work can be done, materials that must 
be put in place within tight time limits or be lost forever, 
drivers spending much of their time not actually driving but 
waiting in lines to pick-up or deliver materials, and drivers 
being under constant supervision as they return continuously to 
the job site or the source of the materials. Construction 
industry drivers generally drive only in good weather 
conditions. No studies by FMCSA or others have concluded that 
there is a safety deficiency specific to construction workers 
driving under these rules.

    Because these factors have not changed, FMCSA's July 1, 
2013 revisions to the HOS regulations maintain the clock reset 
provision for construction drivers.

    While AGC applauds FMCSA's decision to maintain this 
exemption in the new HOS regulations, this exemption needs to 
be updated to address current construction industry realities 
by expanding its coverage. Most of the material that is being 
transported for inclusion in construction projects are natural 
resources such as sand, aggregates, gravel, cement, lime, etc. 
These products are extracted from the earth and therefore are 
available only in their natural settings. As sources of these 
resources are depleted, new sources must be located and these 
tend to be in more remote locations and further away from the 
site of the actual construction. Because locations are further 
away from where much of the construction is being done drivers 
must cover greater distances. Therefore, AGC recommends that 
the distance covered be expanded to a radius of 100 miles.

    While FMCSA's July 1 revised HOS regulations did not change 
the construction exemption, the rules establish a new 
impediment that negatively impacts the construction industry by 
requiring that drivers take a 30-minute break during an 8 hour 
on duty time period. While a federal appeals court directed 
FMCSA to exempt short haul drivers from this requirement, this 
unfortunately did not resolve the issue for the construction 
industry. Construction driving often requires short haul 
drivers to work shifts that may extend beyond 12 hours of on 
duty service. Even though short haul, these drivers are still 
required to take the 30 minute break in order to legitimately 
fulfill their 12 hour shift. A 12 hour shift is often necessary 
because drivers delivering perishable construction materials, 
especially concrete and asphalt, will not know in advance how 
long it will take to complete a delivery. Every day in 
construction is different and not always predictable. 
Construction contractors must have the flexibility to deliver 
concrete, asphalt and other materials when they are needed at 
the project. Deliveries are not always on a regular schedule 
and delays can cause the material to be compromised. Therefore 
it is difficult for drivers to schedule this 30 minute break in 
a timely fashion that allows for delivery of the perishable 
material on time and also allows the needed flexibility. Delays 
in the delivery process can potentially cost a contractor 
thousands of dollars to repair or replace out of spec concrete 
or asphalt. Delays in material delivery can also impact the 
completion of projects such as road improvements which can have 
negative effects on both the contractor and motorists. While on 
duty for a 12 hour shift these drivers nevertheless spend much 
of their time waiting in line to pick up or deliver material 
and not driving. Unfortunately this down time does not count 
towards the 30 minute break requirements. AGC urges Congress to 
direct FMCSA expand the construction industry exclusion to 
eliminate the 30 minute rest period requirement for these 
drivers.

    Another reality of highway and bridge construction is that 
much of this activity involves rebuilding, expanding and in 
other ways improving existing transportation infrastructure. 
This requires that much of the work be performed under traffic, 
and in many cases heavy traffic. So as to not impact traffic 
flow, and to protect the safety of construction workers and 
motorists, significant amounts of road construction is required 
to be performed at night. FMCSA's new HOS requirements that 
drivers, including construction drivers that operate outside 
the 50 air-mile-radius, can only restart the weekly on-duty 
clock following a 34-hour off duty period that includes at 
least two periods between 1:00 a.m. and 5:00 a.m. will have 
significant cost impacts on construction contractors and the 
public agencies for whom they work. It will also significantly 
impact the wages drivers are able to earn while their companies 
are working overnight on major infrastructure projects because 
it will limit the hours they are allowed to work. These time 
restrictions are a real problem for contractors working night 
shifts in compliance with contract requirements.

    AGC supports H.R. 3413, the ``True Understanding of the 
Economy and Safety Act'' or the ``TRUE Safety Act'', sponsored 
by Representatives Richard Hanna (R-NY), Michael Michaud (D-
ME), and Tom Rice (R-SC). The bill defers implementation of the 
new restart provisions in the new truck driver hours of service 
regulations that became effective July 1, 2013, pending 
completion of Government Accountability Office (GAO) reviews 
of: (1) the analysis used by the FMCSA to justify the new rules 
and, (2) the MAP-21 required restart field study. AGC urges 
that Congress quickly approve this legislation.

    Thank you for consideration of this statement.
    [GRAPHIC] [TIFF OMITTED] 85596.027
    
    Chairman Hanna and Representative Meng, thank you for 
convening this important hearing today. The federal hours of 
service rule is important to the safety of the nation's 
roadways, and constitutes an equally important area of 
compliance for commercial motor vehicle operators in the 
transportation construction industry. The American Road & 
Transportation Builders Association (ARTBA) appreciates this 
opportunity to present our views on this issue.

    The more than 5,000 members of ARTBA represent the 
consensus voice of the U.S. transportation construction 
industry at the federal level. ARTBA's membership includes 
public agencies and private firms and organizations that own, 
plan, design, supply and construct transportation projects 
throughout the country. Many of these are small and/or family-
owned businesses. About two-thirds of ARTBA members are 
transportation construction companies of varying size and areas 
of expertise. These include prime contractors, sub-contractors 
and suppliers. Overall, our industry generates nearly $354 
billion annually in U.S. economic activity and sustains the 
equivalent of 3.5 million American jobs. ARTBA's membership 
structure also includes nearly three dozen affiliated chapters.

    ARTBA contractor-members who operate in interstate commerce 
must comply with the hours of service rule for commercial motor 
vehicle operators (49 CFR Parts 385, 386, 390, and 395). 
Moreover, many states automatically incorporate the federal 
hours of service into the state's controlling law for 
intrastate commercial motor vehicle operators.

    Above all else, these contractors are committed to safety--
for the traveling public and their own employees. They also 
seek to build transportation improvement projects with the 
maximum degree of efficiency, innovation and value to the 
public.

    The purpose of the hours of service rule--as administered 
by the Federal Motor Carrier Safety Administration (FMCSA)--
appears clear. Agency publications note that the main reason 
for the regulations is to ``keep fatigued drivers off the 
public roadways.'' The rule limits when, and for how long, 
operators may drive commercial motor vehicles. The limits 
include length of drive time and length of on-duty time (even 
though the driver may be behind the wheel for a small portion 
of that time), as well as mandated off-duty or rest time. 
Various other provisions of the rule require drivers to keep 
log books reflecting these time records.

    Throughout various FMCSA comment periods (starting in about 
2000) addressing the hours of service rule, ARTBA has argued 
the revised rule should not apply to drivers in the 
transportation construction industry. In implementing the 
latest revisions to the rule, FMCSA has not--to our knowledge--
seriously contemplated a comprehensive exemption for this 
industry's short-haul drivers. As we have expressed over the 
years in comments submitted to FMCSA and to the U.S. Department 
of Transportation, ARTBA believes the rationale for this 
exemption is strong and worthy of the agency's consideration. 
It would relate to two major federal transportation policy 
goals: increasing efficiency in the construction of 
transportation improvement projects, and preserving the safety 
of all involved.

    Transportation construction industry drivers are not long-
haul operators who consistently spend many consecutive hours on 
the road in a given day. In most cases, they are making drives 
of less than 50 miles in radius, whether from their normal 
reporting location or materials plant to the construction job 
site. Many of our drivers spend substantial amounts of time off 
the road during the work day, loading and unloading materials 
or equipment. Others may be responsible for positioning a piece 
of mobile equipment at the beginning of the work day, but may 
not be back behind the wheel until day's end, so that their 
daily drive time is actually minimal. Those who transport 
construction materials may spend substantial time in a queue to 
pick up or drop off those products. However, in the 
indiscriminate eyes of the hours of service rule, these 
examples of non-driving activities are still considered ``on-
duty time'' and can end up prohibiting industry employees from 
carrying out their driving duties past 14 hours on a lengthy 
work day.

    Generally, transportation construction industry commercial 
drivers do not operate in a manner that leads to concerns over 
fatigue that is the focus of the hours of service rule. 
Further, we are unaware of any conclusive data to demonstrate 
that driver fatigue and ancillary health issues are a 
significant problem in our industry.

    Moreover, transportation project owners, the driving public 
and commercial shippers are expecting more timeliness and 
efficiency in the construction of transportation improvement 
projects, as well as less disruption to traffic. Transportation 
construction firms will often work very long hours to complete 
these projects expeditiously, especially in regions of the 
country where seasonal weather is a factor. In other 
industries, a 14-hour window of on-duty time may seem more than 
adequate. However, as described above, in the transportation 
construction industry it can often limit the efficient 
deployment of professionals and resources on the construction 
job site, without a demonstrable increase in safety.

    Ultimately, this is an example of two areas of federal 
policy--hours of service as administered by FMCSA and 
accelerated transportation project delivery as promoted by 
other agencies at USDOT--that are simply in direct conflict. In 
recent years, the transportation construction industry and many 
public-sector transportation agencies have been eager partners 
in utilizing accelerated construction techniques to increase 
efficiency, maximize the safety of motorists and workers, and 
minimize the inconvenience to the traveling public. This often 
involves total closure of a bridge or stretch of highway so the 
contractor can undertake an intense effort to replace or 
renovate it within a very short time frame--sometimes over a 
single weekend. In recent years, we have seen numerous safe, 
swift, ingenious and high-profile examples of these techniques, 
acclaimed by public agencies, elected officials, the media and 
the general public alike. Similarly, natural or man-made 
disasters may require contractors to be extremely resourceful 
within even more challenging time frames, to repair or replace 
critical infrastructure assets that have been damaged.

    FHWA has used its Every Day Counts program to promote these 
types of activities. A prominent example was the Massachusetts 
Department of Transportation's ``Fast 14'' effort during the 
summer of 2011, through which contractors replaced fourteen 
bridges in just ten (10) weekends. The public and media 
reaction to this innovative effort was extremely positive.

    The industry is proud to be at the cutting edge of these 
emerging techniques. The intensity of the work schedule for 
these contractors, whether leading up to or during the weekends 
in question, cannot be overstated--nor can the industry's 
satisfaction in these accomplishments. However, in these 
circumstances, the hours of service rule continues to make the 
job more difficult by limiting the availability of certain key 
personnel (none of whom are long-haul truck drivers) to 
discharge job duties relating to commercial motor vehicles. The 
rule may also disrupt the timely delivery of materials to the 
construction site. For these reasons, the rule may increase the 
project's cost (in terms of additional personnel required) 
without accompanying safety benefits for all concerned.

    The revised hours of service rule includes a restart 
provision for drivers requiring two consecutive nights off duty 
from 1:00 am to 5:00 am following a work week. The new rule 
also limits this restart of the clock that tracks a driver's 
duty time to only once in a given seven-day period. In 
justifying this requirement, FMCSA cites research regarding 
fatigue, night-time sleep patterns and long-haul drivers. 
Again, however, the relevancy to short-haul transportation 
construction industry drivers is questionable. While short-haul 
construction-related drivers can utilize a 24-hour restart 
under certain conditions, this new mandate will still affect 
many drivers servicing transportation improvement projects. 
Importantly, much of this work is done at night, so this new 
provision has the potential to disrupt the efficiency of those 
construction operations and materials deliveries.

    For this reason, ARTBA applauds Chairman Hanna and his 
bipartisan co-sponsors for recently introducing the True 
Understanding of the Economy and Safety (``TRUE Safety'') Act 
(H.R. 3413), which would defer further implementation of the 
new restart mandate until the completion and review of related 
research.

    In looking at the hours of service rule as it currently 
stands, ARTBA is also concerned about the ability of smaller 
construction firms to participate in transportation 
construction projects. We know this committee has an acute 
interest in identifying overreaching regulations and their 
effect on small firms. If the hours of service rule limits 
deployment of industry drivers at certain times, then the 
effect on smaller construction companies and subcontractors is 
even more pronounced because they do not necessarily have the 
resources or personnel to absorb these disruptions. It is 
unfortunate, then, that conflicting federal policies may limit 
the ability of small businesses to play a needed role in 
accelerated and innovative transportation construction 
activities.

    Given all of these reasons, ARTBA reiterates its desire for 
a full exemption relating to the drive-time and on-duty limits 
for transportation construction industry drivers. Any standard 
tailored for the transportation construction industry should be 
based on clear facts that establish the degree to which--if at 
all--fatigue for these drivers is a factor that could lead to 
an increase in deaths and injuries on the nation's roadways.

    It should be noted that many other classes of industries 
are exempt from the general rule, or enjoy certain exceptions. 
As one example of which we are always reminded in mid-summer, 
FMCSA exempts members of the American Pyrotechnics Association 
from the rule so they can transport explosives for Fourth of 
July fireworks shows. One would think that, as a national 
public policy goal, the improved efficiency in the delivery of 
transportation improvement projects would rank at least as high 
as the successful staging of holiday fireworks displays.

    Other partial or full exemptions apply to:

           Agricultural drivers during planting or 
        harvesting season

           Vehicles operated by the federal, state or 
        local government

           Drivers for movie and television productions

           Oilfield operations drivers (through which 
        waiting time at a natural gas or oil well site does not 
        count as on-duty time)

           Drivers transporting propane heating fuel 
        during the winter

           Railroad signal employees

           Retail store deliveries

           Utility service vehicles

    A transportation construction industry exemption could be 
fashioned in a similar manner to those affecting other specific 
industries, as described. Moreover, the existing rule includes 
a 24-hour restart provision (as opposed to 34 hours under the 
general rule) for commercial motor vehicle drivers of 
construction materials and equipment. So the rule already 
contemplates a unique place for our industry and it would be 
possible to carefully craft a wider, viable exemption in a 
similar vein. Such an exemption could address drive time and 
on-duty limits for the unique aspects of our sector while 
preserving safety. Like the rule for oilfield operations, 
transportation construction supplier drivers waiting in a 
``queue'' should not be considered on duty, nor should the time 
for workers who drive a commercial vehicle or construction 
equipment only incidentally to their main duties on a 
construction project.

    ARTBA and its members continue to be concerned about the 
wholesale application of the hours of service rule to the 
transportation construction industry. Contractors make every 
effort to comply, but often to the detriment of efficiency in 
the project's time and cost. Treating short-haul transportation 
construction industry drivers the same as long-haul commercial 
truckers defies common sense. Correcting this misapplication of 
federal requirements is the type of regulatory reform that all 
sides claim to support. ARTBA stands ready to work with 
Congress, FMCSA and other transportation agencies in this 
important effort.

    Thank you for this opportunity to offer the views of 
ARTBA's members and the transportation construction industry.
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[GRAPHIC] [TIFF OMITTED] 85596.029

[GRAPHIC] [TIFF OMITTED] 85596.030

[GRAPHIC] [TIFF OMITTED] 85596.031

    November 20, 2013

    The Honorable Richard Hanna, Chairman
    The Honorable Grace Meng, Ranking Member
    Committee on Small Business, Subcommittee on
    Contracting and Workforce
    United States House of Representatives
    Washington, DC 20515

    Dear Chairman Hanna and Ranking Member Meng:

    As family members who have lost loved ones in preventable 
crashes involving truck driver fatigue and as representatives 
of organizations working for twenty years to improve truck 
safety we are writing to provide the following information 
regarding the safety issues related to the Committee on Small 
Business, Subcommittee on Contracting and Workforce's hearing, 
WRONG WAY: The Impact of FMCSA's Hours of Service Regulation on 
Small Business. We respectfully ask that this letter be 
submitted to the hearing record since our request to testify on 
this important safety issue was denied.

    Our organizations have a long history of involvement and a 
detailed understanding of the troubled hours of service (HOS) 
regulation adopted by the U.S. Department of Transportation 
(DOT). This letter is intended to provide the Subcommittee with 
factual information regarding the controversial 34-hour restart 
provision, and the amendments to the restart that were adopted 
by U.S. DOT in the 2011 HOS final rule. Despite assertions that 
the current HOS rule is not working well or is inefficient, the 
HOS rule changes adopted in 2011 were calculated to reduce 
truck driver fatigue, which remains a serious safety problem 
for truck drivers as well as the motoring public on our 
highways. In part due to the adoption of the restart in 2004, 
allowing an insufficient 34 hours of rest between weekly 
driving tours of as long as 80 or more hours, studies have 
found that a substantial percentage of truck drivers admit to 
high levels of fatigued driving and actually falling asleep 
behind the wheel.

    Just last week the U.S. DOT released 2012 fatality figures 
showing an increase in deaths and injuries last year. For the 
third consecutive year, truck crash fatalities increased, 
representing a 16 percent increase in crash deaths since 2009, 
and including a 9 percent increase in fatalities to large truck 
occupants compared to 2011. Truck driving remains one of the 
most dangerous occupations in the United States today and 
fatigue is a major safety problem. Reliable estimates indicate 
that fatigue is a factor in at least 13 percent and as many as 
31 percent of large truck crashes.\1\ The excessively long 
driving and working hours allowed have led many to refer to 
truck driving as ``sweatshops on wheels.'' The restart 
provision adopted by the FMCSA is a modest but important 
improvement. Efforts to repeal this provision will only 
contribute to truck driver fatigue and crashes that result in 
needless deaths and injuries.

    Background

    Driver fatigue has been a major safety concern under the 
HOS rules since they were first adopted in 1937. Even though 
that rule limited drivers to just 10 consecutive hours of 
driving without a rest break, and did not permit a ``reset'' or 
``restart'' during the week, driver fatigue and driving while 
tired were recognized as serious safety problems that led to 
countless fatal and injury crashes. The 1995 National Truck and 
Bus Safety Summit, sponsored by the U.S. DOT, convened experts 
and stakeholders to discuss all aspects of truck operations and 
safety issues. The participants, including truck drivers, 
representatives of motor carriers, researchers, members of the 
safety community, victims and survivors of truck crashes and 
government officials, concluded that driver fatigue was the 
number one safety problem in the trucking industry. That same 
year, Congress enacted section 408 of the Interstate Commerce 
Commission Termination Act (ICCTA) which required DOT to deal 
with fatigue-related issues and adopt necessary 
``countermeasures for reducing fatigue-related incidents and 
increasing driver alertness[].'' \2\

    Despite the congressional directive to reduce fatigue and 
improve driver alertness, in 2003 the Federal Motor Carrier 
Safety Administration (FMCSA), the U.S. DOT modal 
administration with jurisdiction over HOS regulation, adopted a 
final rule that increased the maximum limit on consecutive 
driving from 10 to 11 hours and, for the first time, instituted 
the experimental 34-hour restart that effectively reduces the 
end-of-week rest and recovery period for drivers who use up 
their weekly driving hours before the end of the week. Both of 
these changes to the original rule exacerbate driver fatigue, 
but the 34-hour restart adds to weekly cumulative fatigue, or 
sleep debt, that drivers suffer from when driving on short 
sleep from shift-to-shift and from week-to-week.

    The danger posed by the 34-hour restart is that it 
undermines what was previously a hard number weekly driving cap 
of 60-hours for drivers on a 7-day schedule, or 70 hours for 
drivers on an 8-day schedule. Instead, the restart permits 
drivers to reset their accumulated weekly driving hours to zero 
and start a ``new'' driving week, at any point during the work 
week they choose, after taking only 34 hours off-duty. This 
permits drivers who use the restart provision to cram an extra 
17 hours of driving into a 7-day schedule, actually operating 
their trucks for up to a total of 77 hours in seven calendar 
days instead of the stated limit of 60 hours. Drivers operating 
on an 8-day schedule can drive an extra 18 hours in 8 days for 
a total of up to 88 driving hours instead of the legal limit of 
70-hours. While short 34-hour restart permits drivers to drive 
these extremely long tours of duty and to work over 80 hours 
per week, the short restart limits a driver to just 24 
additional hours off-duty in which the driver is expected to 
get enough rest to overcome built-up cumulative fatigue. These 
hours of working and driving, week after week, month after 
month, are dangerous and deadly compared to the typical 40 hour 
work-week of the average American.

    As a result, the 34-hour restart is often used to truncate 
the extended off-duty time that long-haul drivers need to 
recover from their weekly work cycle. The repeated use of the 
restart permits truckers to drive and work excessive hours and 
to get insufficient time off duty to compensate for the build-
up of cumulative driver fatigue. Instead of having a full 
weekend of 48 to 72 hours off-duty for rest and recovery, as 
was required under the previous HOS rule,\3\ the 34-hour 
restart permits drivers to trade rest time for extra driving 
hours in order to accommodate freight scheduling at the cost of 
driver health and safety. Fewer hours of rest and more hours of 
driving and work dramatically increase truck driver crash risk 
exposure.

    In a 2004 decision, the U.S. Court of Appeals for the 
District of Columbia Circuit rules against the agency because 
it found that the 2003 HOS final rule contradicted both the 
scientific evidence and research regarding fatigue, and the 
agency's own findings of fact, and because the agency neglected 
to analyze the effect of the rule on driver health.\4\ The 
Court ruled that, by ignoring the mandatory issue of driver 
health, the HOS final rule violated federal law and had to be 
vacated. The Court went on to state that there were serious 
problems with the agency's rationale for failing to address the 
inherent problem of cumulative fatigue in allowing drivers to 
take as few as 34 hours off-duty to rest between weekly driving 
tours of duty. The Court stated that ``the agency's failure to 
address [the increase in the number of weekly driving hours] . 
. . makes this aspect of the rule's rationality questionable.'' 
\5\

    After the 2003 HOS rule was adopted, larger numbers of 
truck drivers admitted to driving while tired and to falling 
asleep at the wheel. Nearly 48 percent of drivers admitted that 
they had fallen asleep while driving in the previous year. 
About 45 percent of the drivers said they sometimes or often 
had trouble staying awake while driving and about 13 percent 
reported that they often or sometimes fell asleep while 
driving. Nearly two-thirds of drivers, 65 percent, reported 
that they often or sometimes felt drowsy while driving. A third 
of the drivers reported that they became fatigued on a half or 
more of their trips.\6\

    2011 Amendments to Improve Safety of the Restart

    In the 2011 HOS final rule, FMCSA partially addressed 
safety concerns with the restart provision in two ways. First, 
it limits use of the restart to once every 168 hours (one 
calendar week). Thus, the rule limits the number of consecutive 
weeks with extensive weekly driving hours but only for those 
drivers operating on a 7-day work schedule. These drivers, if 
they are pushing the schedule by continually alternating 11 
hour driving shifts with 10-hour off-duty periods, are 
constrained from taking the short, minimum 34-hour restart two 
weeks in a row. This means that if a driver drives and works as 
many as 70 or up to 80 hours in one week, the driver will be 
required to take more than the minimum 34 hours off duty in the 
following week.

    This requirement ensures that drivers operating at or above 
the legal limits of the HOS, and who have highly fatiguing 
schedules, will be required to take an extended period off-duty 
at the end of every other week. While not optimal from a safety 
standpoint, at least it ensures that drivers operating on a 7-
day schedule who suffer from cumulative fatigue will get an 
extended off-duty period once every two weeks. While this is 
not sufficiently safe, which is why our organizations have 
criticized the restart provision, at least the 168-hour limit 
of the use of the restart keeps drivers from continually using 
the short 34-hour restart every week, week-in and week-out.

    The FMCSA acknowledged the need to curtail excessive 
driving and work hours in stating that ``[t]he purpose of the 
[168-hour provision] is to limit work to no more than 70 hours 
a week on average. Working long daily and weekly hours on a 
continuing basis is associated with chronic fatigue, a high 
risk of crashes, and a number of serious chronic health 
conditions in drivers.'' \7\

    These findings of fact were based on the agency's review of 
the applicable scientific research and available studies.

    Second, the 2011 final rule improves safety by requiring 
that the restart rest period include two night-time rest 
periods between 1 a.m. and 5 a.m. This ensures that drivers 
will be able to take two periods of off duty time in which to 
obtain sleep under optimal conditions (at night and in sync 
with the natural human circadian rhythm). In 2000, the FMCSA 
HOS notice of proposed rulemaking cited the scientific basis 
for requiring drivers to have two nights off-duty:

          ...the research indicates that to negate the effect 
        of accumulated weeklong sleep deprivation and restore 
        alertness to the human body it is necessary to have at 
        least two consecutive nights off-duty that include the 
        periods from midnight to 6:00 a.m. For long-haul CMV 
        drivers, this ``weekend'' (i.e., a period to permit 
        recovery from cumulative fatigue, not necessarily 
        falling on a Saturday and Sunday) should be up to 56 
        hours long, but could be reduced to 32 hours as long as 
        that period included two nights covering two periods 
        from midnight to 6:00 a.m. The research suggests that 
        drivers may need even more nights off duty if they have 
        a severe sleep deficit.\8\

    In proposing this limitation on the HOS rule in 2010, the 
FMCSA cited work by Washington State University which 
identified the fact that the 34-hour restart was effective for 
daytime workers who obtained two nights of sleep but not for 
night workers who received only one night of sleep. The agency 
also cited other works which found that daytime sleep is less 
restorative than nighttime sleep and that time spent sleeping 
during the day is less restful than sleep taken at night even 
when the same amount of time is available for sleep.\9\ The 
research supporting these findings is based on human biology 
and the need for nocturnal rest. Working drivers long hours and 
with little and insufficient rest is unsafe and deleterious to 
the health and medical well-being of truck drivers.

    These two changes to the HOS restart requirements provide 
added safety benefits for the traveling public because they 
will reduce acute and cumulative driver fatigue and will 
therefore result in fewer truck crashes, including fatal and 
injury crashes.

    Sincerely,

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    [GRAPHIC] [TIFF OMITTED] 85596.033
    
                                 
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