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New Hours Rule Likely Headed Back to Court

By Oliver B. Patton, Washington Editor

There’s a good chance the Federal Motor Carrier Safety Administration’s new hours of service rule is going back to court.

Just hours after the new rule was released, Advocates for Highway and Auto Safety indicated that it may resume its challenge of the 11-hour limit on driving.

Noting that the U.S. Court of Appeals in Washington, D.C., has twice rejected the 11-hour provision, Advocates said yesterday in a statement that it is “confident that the court will reach the same result when this new rule comes before it for judgment.”

Advocates vice president and general counsel Henry Jasny added that while the group still is considering its next move, “Unless there’s something we haven’t seen, our expectation is that we will be back in court.”

American Trucking Associations doesn’t like the rule either, although for different reasons.
ATA President and CEO Bill Graves said that the new, more restrictive 34-hour restart provision will force more trucks onto highways during congested morning traffic.

“Over the next few days, ATA will be discussing the restart changes with its membership and will make a decision on whether to pursue legal action in the near future,” said Dave Osiecki, senior vice president of policy and regulatory affairs.

The only positive ATA sees in the rule is the agency’s decision to push the effective date out 18 months, to July 1, 2013, Graves said.

Although the rule preserves the 11-hour limit on driving time, rather than cutting back to 10 hours, in general the changes can be described as a tightening of the current rule.

The new rule

Here’s a rundown on the major provisions, with the agency’s rationale.

* The agency said there is no “compelling scientific evidence” that a 10-hour driving limit produces enough safety benefits to outweigh the strong evidence that an 11-hour limit may have higher net benefits.

“The research literature on fatigue in the motor carrier industry generally shows that crash risk increases with work hours, both daily and weekly,” the agency said in its analysis. “The available data, however, are not sufficiently robust to yield a statistically significant distinction between the crash risk associated with any two adjacent hours of work.”

The agency added that it plans to do a comprehensive analysis of crash risk by driving hour, and is open to reconsidering the provision.

* The new rule tightens the 34-hour restart provision by limiting its use to one time a week and requiring at least two periods of rest between 1 a.m. and 5 a.m.

The agency said the once-a-week restriction allows drivers to work long hours (81 hours) in one week but requires them to compensate with extra time off the following week.

“The purpose of the rule change is to limit work to no more than 70 hours a week on average,” the agency said. “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.”

The two successive rest periods between 1 a.m. and 5 a.m. are a slight easing of the agency’s initial proposal, which was to require rest between midnight and 6 a.m. The idea, the agency said, is to target the period of circadian lows but give drivers a little more flexibility in when they start and end their rest periods.

* The new rule says that if it has been more than eight hours since a driver took an off-duty or sleeper berth half-hour break, he must take a half-hour break before resuming driving.

“Research with drivers and in other industrial sectors indicates that the risk of accidents falls substantially after a break, with off-duty breaks providing the greatest reduction in risk,” the agency said.

* The 14-hour driving window remains the same. The agency had proposed limiting on-duty time to 13 hours within the 14-hour window, but decided not to go that route because it was too complex.

Now, with the half-hour break requirement, drivers will be able to work 13.5 hours in the 14-hour period if they are driving after the eighth hour on duty.

* The agency decided not to adopt its proposal to extend a driver’s daily shift to 16 hours twice a week.

The idea was to accommodate for circumstances such as loading and unloading, and allowing drivers to count some time spent parked in their trucks toward off-duty hours. But the agency said research shows that driving in the 16th hour after coming on duty is much riskier than driving in the early hours of a duty day.

* As proposed, the new rule changes the definition of on-duty time. Now it’s defined as any time in the truck, except the sleeper berth. Under the new rule it will not include any time spent resting in a parked truck, or up to two hours in the passenger seat of a moving truck immediately before or after eight hours in a sleeper berth.

This provision goes into effect quicker than the 2013 deadline. It will be effective in about two months.

* Also as proposed, the oilfield operations exemption will be revised. Under the new rule, “waiting time” for certain drivers at oilfields must be logged as off-duty and identified by a note in the “remarks” section or in a separate line.

This provision also is effective in about two months.

* The agency is going ahead with a new definition of an “egregious” hours of service violation: driving or allowing a driver to drive three or more hours beyond the limit. These violations may be subject to the maximum civil penalty.

Why the change

The agency challenged assertions by the trucking industry and shippers that improvements in safety indicate there is no need to change the current rule.

“FMCSA believes that the 2003 (current) rule, which limited the duty period and lengthened the off-duty period, has certainly not diminished safety,” the agency said.

“But the recent declines in crashes cannot be specifically attributed to that rule. More importantly, despite the improvement, 3,380 people were killed in truck crashes in 2009 and 74,000 were injured. Although historically low, the numbers are still far too high.”

The agency puts the overall cost of the rule at about $470 million a year, and its benefits at about $630 million.

There is a copy of the rule, and a QA on the details, on the FMCSA website.

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