Hours rules finalized – again

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Federal Motor Carrier Safety Administration last month sent to the White House for review a final rule regarding use of electronic onboard recorders for monitoring drivers’ compliance with hours-of-service regulations. Details will not be known until FMCSA publishes the rule. In January 2007, FMCSA proposed to require EOBRs on all trucks operated by carriers that had demonstrated a history of serious noncompliance with the hours-of-service rules.

FMCSA invited proposals for the dissemination of commercial drivers’ safety performance data to motor carriers for use in hiring. As ordered by Congress in 2005, the program would help motor carriers assess individual drivers’ crash and serious safety violation inspection history. The data would be released to a carrier only with the driver-applicant’s consent.

I-35W bridge in Minneapolis probably collapsed on Aug. 1, 2007, due to inadequate load capacity of the gusset plates resulting from design error by engineering firm Sverdrup & Parcel and Associates, the National Transportation Safety Board announced last month. Contributing to the design error was failure of the firm’s quality control procedures to ensure the appropriate main truss gusset plate calculations.

Freight Transportation Services Index fell 2.5 percent in September from its August level, declining for the second consecutive month, the U.S. Department of Transportation’s Bureau of Transportation Statistics reported. The index has dropped 4.3 percent in the past two months, dropping to a level equal to the four-year low set in September 2007.

Americans drove almost 11 billion fewer miles in September than in the same month last year for the 11th straight drop, the Department of Transportation reported. For the fiscal year ended in September, revenues for the Highway Trust Fund declined by $3 billion.

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. On Nov. 19, the Federal Motor Carrier Safety Administration published in the Federal Register 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 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 Jan. 19. Coincidentally or not – but probably not – that is one day before President-elect Barack Obama takes office.

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.

A third challenge to the hours-of-service rules is virtually certain unless the Obama administration changes them. 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.

“The Obama administration and the next Congress should add the hours-of-service rule to its list of wrong-headed Bush administration policies that should be rescinded,” Public Citizen President Joan Claybrook said in response to the latest rule. “The courts, the truckers’ unions and consumer and safety advocates have pushed for a sensible rule to no avail.”

For more information – including the final rule, supporting documents and comments – go to www.regulations.govand search FMCSA-2004-19608.