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FMCSA can't justify reducing daily driving hours; limit remains 11 in new final rule

FMCSA Administrator Anne Ferro said the new final rule is the culmination of the most extensive and transparent public outreach effort in the agency’s history. (Associated Press)

By LYNDON
The Trucker Staff

12/22/2011

WASHINGTON — In what has to be a surprise to most trucking industry stakeholders, the Federal Motor Carrier Safety Administration Thursday has retained the 11-hour daily driving limit in the new final rule on Hours of Service issued Thursday, but has imposed new restrictions on the 34-hour restart provision and failed to respond to truckers' request for flexibility in the sleeper berth provision. 

The agency said it could not justify lowering the number of daily driving hours from 11 hours to the preferred 10 hour it suggested in when it issued the Notice of Proposed Rulemaking on Dec. 23, 2010.

The FMCSA said it kept the 11-hour limit after examining many studies on the relationship between work hours and health and safety, both in trucking and other industries; reviewing the comments and information submitted to the docket, mostly in opposition to a 10-hour driving limit and completing elaborate analyses in accordance with Presidential Executive Order 13563 of the costs and benefits to health and safety of 9-, 10-, and 11-hour driving limits.

In the absence of compelling scientific evidence demonstrating the safety benefits of a 10-hour driving limit, as opposed to an 11-hour limit, and confronted with strong evidence that an 11-hour limit could well provide higher net benefits, the agency said it concluded that adequate and reasonable grounds under the Administrative Procedure Act for adopting a new regulation on this issue do not exist and that the current driving limit should therefore be allowed to stand for now.

“This final rule is the culmination of the most extensive and transparent public outreach effort in our agency’s history,” said FMCSA Administrator Anne S. Ferro.  “With robust input from all areas of the trucking community, coupled with the latest scientific research, we carefully crafted a rule acknowledging that when truckers are rested, alert and focused on safety, it makes our roadways safer.”

The new rule does reduce by 12 hours the maximum number of hours a truck driver can work within a week. Under the old rule, truck drivers could work on average up to 82 hours within a seven-day period. The new HOS final rule limits a driver’s work week to 70 hours, which appears to penalize long-haul drivers, many of whom work six or seven days a week.

The agency did retain the portion of the proposed rulemaking that restricts the use of the 34-hour restart provision to one time a week. But it adjusted the parameters from the proposed rulemaking somewhat. The proposed rulemaking required truckers to include two consecutive 12 midnight to 6 a.m. rest periods. The final rule narrows the rest window by two hours, requiring the two nights include 1 a.m. to 5 a.m. periods.

FMCSA’s new HOS final rule reduces by 12 hours the maximum number of hours a truck driver can work within a week. Under the old rule, truck drivers could work on average up to 82 hours within a seven-day period. The new HOS final rule limits a driver’s work week to 70 hours.  

In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window. The proposed rulemaking said drivers could not drive after seven hours.

Reaction to the new rule from trucking industry officials and drivers came swiftly.

American Trucking Associations President Bill Graves said the 34-hour restart would put more truck traffic onto the roadways during the morning rush hour, frustrate other motorists and increase the risk of crashes (see story on Page xx.”)

“By mandating drivers include two periods between 1 a.m. and 5 a.m. as part of a 'restart' period,

FMCSA is assuring that every day as America is commuting to work, thousands of truck drivers will be joining them, creating additional and unnecessary congestion and putting motorists and those professional drivers at greater risk. The largest percentage of truck-involved crashes occurs between 6 a.m. and noon, so this change not only effectively destroys the provision of the current rule most cited by professional drivers as beneficial, but it will put more trucks on the road during the statistically riskiest time of the day.”

“We were happy to see the 11 hours retained but disappointed we didn’t see any movement on granting flexibility of the sleeper berth rule,” Chris Burruss, president of the Truckload Carriers Association told The Trucker. “Our members were hoping for that flexibility.”

The chairman of TCA, Gary Salisbury, president and CEO of Fikes Truck Line, concurred.

“It appears that a 30-minute break after eight hours of driving is really all that changed,” he said. “From what I see, we can work with it. I would like to see a change in the split sleeper; maybe now we can get that on the table. Until then, we will not be as safe as we could be.”

The ability to extend the on-duty period was written into the 2003 rule, which first adopted the 11-hour driving limit, but was withdrawn when the rule was rewritten in 2005 after safety advocates filed suit, claiming the FMCSA did not take into consideration the health of drivers when it wrote the rule.

Burruss said he was uncertain how the 34-hour restart provision would impact truckload carriers and would be talking to members for feedback.

A top executive at the Owner-Operator Independent Drivers Association (OOIDA) also criticized the lack of flexibility in the sleeper berth provision (see story on Page xx.)

“The Hours of Service regulations should instead be more flexible to allow drivers to sleep when tired and to work when rested and not penalize them for doing so,” Todd Spencer, OOIDA executive vice president, said. “It’s the only way to reach significant gains in highway safety and reduce non-compliance.”

Lane Kidd, president of the Arkansas Trucking Association, said the rule looked workable but called into question how it would impact truckers who drive at night.

“Our nation’s freight moves 24 hours a day and hundreds of thousands of truck drivers must deliver the products for retailers and manufacturers alike at night,” he said. “Requiring truck drivers who always work at night to take at least two nights’ rest each week may actually disrupt their routine more than help them. But the overriding problem with this latest rule or any rule is that nobody in the federal government or the trucking industry really knows how many hours a truck driver should work and we will never know until Congress requires electronic onboard recorders (EOBRs) in all trucks. Only then will everyone have undisputed data to know how many hours are too many for truck drivers to work.”

Commercial truck drivers and companies must comply with portions of the rule by Feb. 27, 2012 and by July 1, 2013, for the 34-hour restart change and the rest break rule.

The Trucker staff can be reached to comment on this article at editor@thetrucker.com.

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