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HOS rule reset despite 9 to 1 public opposition to changes

FMCSA was able to categorize 8,629 submissions of the comments into either generally agree or disagree with the proposed rule. Of that number, 8,028 — or 93 percent — disagreed with the proposed rule.

By Lyndon Finney
The Trucker Staff

12/27/2011

WASHINGTON — The trucking industry almost uniformly opposed the proposed changes to the Hours of Service rule, the Federal Motor Carrier Safety Administration said in releasing the new final rule Dec. 22.

Of the those that could be categorized, 8,028 comments that disagreed with the proposed rule versus 601 that generally agreed.

Based on data released by the FMCSA when the final rule was announced, the industry gained a concession on the number of driving hours, but lost on the 34-hour restart.

The industry had opposed changes in either portion of the rule.

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The restart provision and driving time drew the largest number of the total of 21,106 unique submissions on the proposed rule — including 4,776 on the restart provision and 4,633 on the driving time.

While the new rule continues to allow 11 hours of daily driving time — the FMCSA said in the proposed rule that it preferred to limit daily driving hours to 10, but was open to 11 hours — it restricts use of the 34-hour restart to once every 168-hour period and requires that the restart include two consecutive 1 a.m.-5 a.m. periods, a slight change from the proposed rulemaking that required two consecutive 12 midnight to 6 a.m. periods.

All told, the FMCSA was able to categorize 8,629 submissions of the comments into either generally agree or disagree with the proposed rule.

Of that number, 8,028 — or 93 percent — disagreed with the proposed rule.

The industry commenters made two overarching arguments in opposing the provisions, the FMCSA said in announcing the final rule.

“First, they argued that the industry has never been safer, as indicated by the declines in crashes and crash rates and, therefore, that the 2003 rule has at least not made the industry less safe,” the final rule document said. “Second, they stated that the rule changes would impose substantial costs on the industry, make night deliveries difficult, increase congestion, and lower driver incomes.

“The industry also took the position that the 11th hour of driving time is used far less than FMCSA assumed in its economic analysis, that most drivers use the 34-hour restart provision to make recordkeeping easier and for flexibility, not to work the

maximum number of hours, and that drivers already take breaks (the final rule requires at least a 30-minute break no less than eight hours after a driver goes on duty). The industry stated that the data do not support the claim that the 11th hour of driving represents a higher risk than the 10th.”

The FMCSA acknowledged the decline in crashes and crash rates in the NPRM, but stated then and reiterated in the final rule that the decline in crashes and crash rates for both trucks and cars started in the late 1970s and has continued for both types of vehicles.

“The declines tend to be sharper during periods of economic recession, but other factors, such as improved vehicle and road design, are generally considered to have contributed to reductions,” the final rule read. “Furthermore, the significant decrease in truck crashes may not necessarily translate into significant decreases in fatigue-related crashes. FMCSA believes that the 2003 rule, which limited the duty period and lengthened the off-duty period, has certainly not diminished safety, but the recent declines in crashes cannot be specifically attributed to that rule.”

More importantly, the agency said, despite the improvement, 3,380 people were killed in truck crashes in 2009 (including 503 CMV drivers) and 74,000 were injured.

Based on preliminary reports from the National Highway Traffic Safety Administration (NHTSA), the number of fatalities for truck-related crashes in 2010 rose by 8.7 percent to 3,675.

“Although historically low, the numbers are still far too high,” the final rule read.

Trucks Involved in Fatal Accidents (TIFA) data show that from 2004 when the 11-hour rule was initiated through 2009, the latest year for which complete data is available, 75 people have died in fatal accidents involving large trucks during the 11th hour of driving. An additional 103 have died in accidents beyond the 11th hour.

Those 178 fatalities account for about one-sixth of one percent of the total truck-related fatalities 2004-2009.

As for the 34-hour restart, the FMCSA cited an ATA study that concluded drivers were using the restart not to maximize hours, but rather to take extended off-duty periods.

In one sample, the FMCSA reported that ATA looked at records for three months for over 118,000 drivers, mostly from the truckload sector and that the data indicated that drivers were averaging 43.6 hours on duty in seven days. In a smaller data set (149 drivers and records for one month), ATA reported that the drivers averaged 57.5 hours on duty in eight days, which the FMCSA said was the equivalent to 50.3 hours in seven days.

“If drivers are working as little as the ATA data and other comments indicate, the changes to the restart provision will have little impact because the provision only affects drivers who are working longer hours week after week,” the final rule reads. “The restart does not simplify bookkeeping. Unless a driver knows that he is working less than 60 hours a week (e.g., a regular 10-hour day, five days a week), he must keep a running seven- or eight-day total of on-duty hours to be sure he is within the limits regardless of the restart provision or the changes this rule makes to it. If a driver takes 34 hours or more off, he simply has a new point from which to keep the total, but he still needs to keep track of his total hours if he could be pressing the limits. Many drivers do these calculations in their heads without needing to write them down. FMCSA believes that this provision will not result in a paperwork burden increase. If drivers are not using the restart to gain hours of work, their productivity will not be affected by (the final) rule. No one needs the restart to take the ‘extended off-duty period’ cited by ATA; the restart is only useful for drivers who are trying to minimize their off-duty time. Even those drivers will not have their work seriously curtailed in a single week. Under the final rule, a driver will still be able to work up to 81 hours in a single week and will be able to average 70 hours of work a week over time.”

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

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