The rules governing truck drivers’ hours of service apparently won’t change — at least not until the next round of inevitable litigation or any reconsideration initiated by the Obama administration. The Federal Motor Carrier Safety Administration will publish in the Federal Register on Wednesday, Nov. 19, a final rule adopting the provisions of its Dec. 17, 2007, interim final rule on the hours rules. The agency issued the December 2007 IFR to hold current regulations in place pending a reconsideration ordered by the U.S. Court of Appeals for the District of Columbia Circuit.
Under the final rule, commercial motor vehicle (CMV) drivers may continue to drive up to 11 hours within a 14-hour nonextendable window from the start of the workday, following at least 10 consecutive hours off duty. And motor carriers and drivers may continue to restart calculations of the weekly on-duty limits after the driver has at least 34 consecutive hours off duty. The 11-hour and 34-hour rules were at the heart of Public Citizen’s second challenge to the hours rules.
The final regulation is set to take effect in 60 days, or Jan. 19, 2009. Coincidentally or not — but probably not — that is one day before President-elect Barack Obama takes office.
In a related development, FMCSA also is publishing in the Nov. 19 Federal Register a notice of policy change regarding use of motor carriers’ advanced technology for compliance purposes. FMCSA had issued a memorandum in 1997 limiting use of such technology in compliance reviews and enforcement on the grounds that the government didn’t want to stifle technologies that were just emerging. “This policy afforded the industry the opportunity to fully integrate the technology in its operations and overall safety management system,” FMCSA says in the notice to be published on Wednesday.
But now advanced technology has become widely accepted and an integral component of the industry’s logistics and operations management systems, FMCSA says. Since the policy has achieved its purpose, FMCSA says it now is rescinding it. The decision to reverse the policy may accomplish much of what the agency intended in proposing electronic onboard recorders.
FMCSA’s final rule on hours-of-service regulations discusses again much of the data the agency has relied on in the past, as well as additional information submitted in response to the IFR.
“This rulemaking rests on a wide-ranging body of data and comprehensive analyses, and complies with all congressional mandates,” FMCSA says in the preamble to the final hours rules. “By adopting HOS regulations that include increased daily off-duty time, a shorter driving window, a longer period of uninterrupted rest for sleeper-berth drivers, and sufficient time for two full sleep periods before restarting the 60- or 70-hour clock, the rule ensures CMVs are ‘operated safely’ and drivers’ responsibilities ‘do not impair their ability to operate the vehicles safely,’ as required by 49 U.S.C. 31136(a)(1)-(2), respectively.” FMCSA added that data on fatigue-related highway fatalities published since 2003 show nominal annual fluctuations, “but nothing of the rising trend implied by some criticism of the IFR and related earlier rules. In fact, the overall large truck fatality rate is at its lowest level ever.”
FMCSA estimates the total annual cost of eliminating both the 11th hour of driving and the 34-hour restart at more than $2.4 billion, while the projected annual safety benefits of doing so are about $214 million.
“This rule was designed to continue the downward trend in truck fatalities and maintain motor carrier operational efficiencies,” said FMCSA Administrator John Hill in a statement on Nov. 18. “Our science is meticulous and our analysis exhaustive so that we can deliver definitive results: more alert and efficient drivers, safer roads, and even fewer fatalities.” Hill added that the rules “are crafted to match what we know about drivers’ circadian rhythms and the real world work environment truckers face every day.”
A third challenge to the hours-of-service rules is virtually certain. The appeals court noted in its July 2007 opinion that it was vacating the rules strictly on the procedural grounds raised by Public Citizen and its allies. With those flaws presumably fixed, Public Citizen likely now will challenge the 11th hour of driving and the 34-hour restart on their merits.