Clock ticking on hours-of-service ruling

Transportation officials face deadline for reviewing 2008 rule

Federal Motor Carrier Safety Administration officials have sped up efforts to draft a new rulemaking to meet a court-imposed deadline to reconsider and revise the agency’s 2008 final rule on hours of service for commercial motor vehicle drivers.

On Oct. 26, FMCSA entered into a settlement agreement with the Advocates for Highway and Auto Safety, the consumer advocacy group Public Citizen, the Truck Safety Coalition, and the International Brotherhood of Teamsters. According to the settlement agreement, submitted to the U.S. Court of Appeals for the District of Columbia Circuit, the agency must submit a draft of a notice of proposed rulemaking in July to the Office of Management and Budget and publish a final rule in summer 2011.

The 2008 final rule, with provisions established in 2004 and issued by the Bush administration, will remain in effect during the rulemaking proceedings. The rule allows commercial motor vehicle drivers to drive up to 11 hours (increased from 10) within a 14-hour, non-extendable window from the start of the workday following at least 10 consecutive hours off-duty. It also allows CMV drivers to restart calculations of their weekly on-duty limits after the driver has had at least 34 consecutive hours off-duty.

FMCSA said the goal was to prevent driver fatigue by ensuring truck drivers had more opportunity for sleep and that the typical work schedule would be more approximate to the 24-hour circadian rhythm.

FMCSA officials have said the 2004 HOS ruling allowed driving only within a fixed 14-hour window after coming on-duty, while off-duty time did not stop the clock. They also insisted research showed the combination of 10 hours off-duty and a 14-hour driving window greatly increased the number of drivers who would maintain a schedule closer to a 24-hour schedule.

Advocates for Highway and Auto Safety, Public Citizen, the Truck Safety Coalition, and the International Brotherhood of Teamsters say the rule “dramatically expanded driving and working hours” by allowing truck drivers to drive up to 11 consecutive hours instead of 10 each shift, and by cutting the off-duty rest and recovery time at the end of the week from a full weekend of 50 or more hours to as little as 34 hours.

A daunting task

FMCSA quickly scheduled meetings this past fall to begin the revision process. Its 15-member Motor Carrier Safety Advisory Committee held its first series of public meetings in December 2009 to formally accept the task of coming up with recommendations for FMCSA; it also hosted four “listening sessions” in January.

Former FMCSA Administrator John H. Hill told Safety+Health that if FMCSA – now under the leadership of Anne S. Ferro – decides to revise the HOS ruling, it faces a daunting task because the agency will have to consider a significant amount of data, research and comments. In addition, FMCSA will experience pressure from the trucking industry and special interest groups who feel very strongly about HOS.

When asked what makes this rulemaking review different from past years, Hill said, “What’s different is there’s a very strong labor voice in this administration and in Congress right now. Labor has not liked this rule from the beginning. [Ferro is] going to be under a lot of pressure to carefully evaluate that. The thing that she’s going to have to keep in mind is to keep her safety lenses on and not [focus on] labor management issues. This is really about a safety rule. People see it differently or both ways.”

According to comments sent to FMCSA, the provision regarding 34 hours of off-duty rest has been the most controversial element of the 2004 rule. Public Citizen and the other organizations alleged in March 2009 that FMCSA based its HOS ruling on studies and data that do not prove a link between reduced fatalities and any HOS regimen. In 2004 and 2007, the U.S. Court of Appeals for the District of Columbia Circuit vacated the rule on the grounds that the government did not adequately consider the effects of longer hours on traffic safety and driver health.

Supporters of the HOS ruling, such as the Arlington, VA-based American Trucking Associations, point to Department of Transportation statistics showing that although the number of registered large trucks operating on highways increased and the number of miles driven by large trucks increased by more than 2 billion since 2004, the number of truck-involved fatalities has decreased by 19 percent since the new HOS rule took effect. Injuries also have decreased by 13 percent since 2004.

Jim Johnson, president of the Owner-Operator Independent Drivers Association in Grain Valley, MO, said putting the HOS regulation up for review may mean opportunities for improvement. “But opening up the issue completely also runs the risk of seeing revisions made that do not affect safety even though they are more restrictive,” Johnson said, adding that meaningful changes should include all aspects of driving that affect safety.

Hill, who now is president of The Hill Group Inc., a Greenwood, IN-based consulting group that specializes in transportation issues with a focus in highway safety, said the current rule has not degraded safety over the past three years. He said he is shocked people are pushing for a rule change and tying up resources that could go to other initiatives to improve highway safety, such as a final rule for electronic onboard recorders and rulemaking for the Comprehensive Safety Analysis 2010 initiative.

FMCSA has pushed back dates for issuing final rules on other safety initiatives. Publication of a final rule on EOBRs for HOS compliance, initially expected to be published in January, at press time was expected to be published in February. A final rule on commercial driver’s license testing and commercial learner’s permit standards was pushed to May from February.