Hours Rule Remains In Effect Pending Another Court Decision

Oliver B. Patton Washington Editor

The Federal Motor Carrier Safety Administration stuck to its guns on hours of service, saying that the current rule will remain in effect while the agency addresses issues raised in a court order striking down two key provisions.

The 11-hour limit on daily driving and the 34-hour restart provisions were to have been struck from the rule on December 27, under an order by the U.S. Court of Appeals for the D.C. Circuit. On December 11 the agency announced that it has new information justifying the provisions and will keep them in place as it works on a final version of the rule.

A week later, however, Public Citizen asked the court to vacate the agency's decision and limit driving to 10 hours a day with no 34-hour restart, pending completion of a new rulemaking. Public Citizen is the lead group in an alliance that has been fighting the agency's approach to HOS reform.

There was no action by the court as HDT went to press.

Agency administrator John Hill said he expects to complete work on the final rule next year.

The agency built its decision in part on data gathered since the rule went into effect. The data show that the percentage of fatigue-related fatal truck crashes, compared to total fatal crashes, remained essentially the same after the rule went into effect in 2005, an indication that the 11-hour and 34-hour provisions have not harmed safety, the agency said.

New data also indicate that the 11th hour of driving has not led to any increase in the number of fatigue-related fatal accidents. A survey of 50,000 trucks in 2003 showed 13 fatal crashes in the 11th hour of driving, one of which was attributed to fatigue. The following year there were 16 fatal crashes in the 11th hour and none was attributed to fatigue. In 2005, when the new hours rule was in effect, there were 13 fatals and one fatigue-related.

"I think those are very important statistics," Hill said. "They show that there has not been a degradation of safety since this rule has gone into effect."

"There have been a lot of allegations and innuendoes about what this rule would do and how unsafe it was," he said. "I think what the data shows is that has not occurred. We have data now that supports the fact that 11 hours of driving with a 10-hour rest period really does combine for a safe operating environment."

In its commentary on the Interim Final Rule the agency said it has found no evidence that carriers are using the 34-hour restart to accumulate maximum hours per week. In fact, one survey showed that eight percent of drivers take 34 hours on their restart break, while 65 percent take more than 44 hours.

Carriers are using the 34-hour restart for "operational reality," Hill said.

Another reason to keep the rules, Hill added, is to maintain consistency as the regulatory process goes forward - for the sake of enforcement and to keep the freight moving.

The agency chose this route to avoid a "strong likelihood of confusion" regarding which rules would be in effect on December 27.

It said the court's decision could be read to mean that there would be no daily driving limit, or that the 10-hour limit would be back in effect and the 34-hour restart would be eliminated. No matter how the decision is interpreted it would certainly lead to confusion about which HOS rules are in effect, the result being poor compliance by carriers and inconsistent enforcement by police, the agency said.

"The Interim Final Rule allows us to have an uninterrupted safety regime in place while we gather comments," Hill said.

The administrator also tried to give a big-picture perspective on the hours-of-service conflict by point out that fatigue is not the most significant safety issue in the industry. He said the agency has data showing that it could reduce accidents by up to 33 percent with onboard technologies such as lane departure warning and collision alert systems. "These kinds of technologies prevent fatalities and crashes much more significantly than just the seven percent related fatalities we see in fatigue crashes today."

Trucking interests responded positively.

"FMCSA has made an important contribution to highway safety by keeping in force Hours of Service rules that have led to a reduction in deaths and injuries over the last several years," said American Trucking Associations President Bill Graves in a statement.

Rick Craig, director of regulatory affairs for the Owner-Operator Independent Drivers Association, said OOIDA agrees with the decision. "We are pleased with having the uncertainty removed, but continue to have concerns about other hours-of-service related matters."

Craig was referencing OOIDA's petition to allow drivers to take their rest breaks off the 14-hour daily clock, and to change the sleeper berth provision.