11th Driving Hour to Remain in HOS Rule, Graves Predicts

By Sean McNally, Senior Reporter
This story appears in the Oct. 22 print edition of Transport Topics.

WASHINGTON — The Federal Motor Carrier Safety Administration is expected to issue a revised hours-of-service rule that would keep two key provisions a federal court struck down but would address the court’s concerns over those provisions, according to Bill Graves, president of American Trucking Associations.
“It is our expectation that there will be an interim final rule that will affirm the 11th hour of driving and the 34-hour restart . . .” Graves said Oct. 12 at the Transportation Table, a regular gathering of transportation officials and reporters.
He said he believed FMCSA would issue its revision by the end of the year.
FMCSA spokeswoman Melissa Mazzella DeLaney told Transport Topics the truck safety agency “is planning to issue guidance prior to the Dec. 27 deadline, but no final decisions have been made at this time.”
In July, the U.S. Court of Appeals for the District of Columbia, in response to a challenge by advocacy group Public Citizen, struck down provisions in FMCSA’s driver-hours regulation that permit 11 hours of driving per day and allow drivers to reset their weekly hour limits by taking a 34-hour rest period (7-30, p. 1).
During an Oct. 18 hearing of the Senate Commerce, Science and Transportation Committee, Sen. Daniel Inouye (D-Hawaii), the panel’s chairman, told Transportation Secretary Mary Peters he was concerned by the court’s ruling.
“Your department has received the dubious distinction of having its truck driver hours-of-service rules struck down by the courts twice in a row,” Inouye said. “And I am deeply concerned by the department’s failure to craft a rule that will clearly increase truck safety and meet the requirements of law.”
Peters said the department was “evaluating the court’s decision and as soon as we reach a decision, I will communicate with you and with this committee immediately.”
Inouye asked if Peters thought the department could make the necessary improvements to the rule. She said she thought they could.
ATA has lobbied the court and the agency to retain those provisions, asserting that the court’s decision was based on finding FMCSA’s procedures inadequate, rather than disagreeing with the provisions themselves.
In response to a request from ATA, backed by FMCSA, the court agreed to delay implementation of the ruling for 90 days — until Dec. 27.
Graves said the stay “creates a good opportunity for that interim final rule to be issued.”
Joan Claybrook, president of Public Citizen, told The Associated Press recently that the advocacy group would sue again if FMCSA did not fully comply with the court’s order eliminating the 11th driving hour and 34-hour restart. Previously, FMCSA’s hours-of-service rule limited driving to 10 hours a day and contained no reset provision.
Graves said ATA was collecting data on the effect of the hours rule on overall safety and continued to press the agency to retain the provisions.
“We’re clearly focused on retaining the 11th hour of driving and the 34-hour restart,” Graves said.
He also said ATA was gathering data on another pro-vision in the HOS rule: FMCSA’s requirement that the 10-hour mandatory break after 14 hours of work must consist of eight hours in the truck’s sleeper berth, rather than split with a team driver into two five-hour rest periods.
“Ultimately, we want to re-move the operational uncertainty we’ve been through over the last several years,” Graves said.
Before the 2005 revision, FMCSA allowed drivers to split sleeper-berth time into two periods, with one at least two hours long.
Several state trucking groups and the Owner-Operator Independent Drivers Association unsuccessfully challenged the sleeper-berth change.
“We’ve made it very clear to anyone and everyone that we’re prepared to provide data and support the safety benefit that we have seen,” Graves said, citing record low figures for truck-involved fatalities in 2006 under the now-rejected 11-hour driving rule and 34-hour restart.
However, Graves did say members of ATA were planning for the possibility that the court ultimately would throw out those provisions.
“Most of our members have followed a two-track strategy of working to supply the data . . . [and] making their own plans to make adjustments,” Graves said.
FMCSA issued the 2005 hours rule, which was very similar to its original revision of the regulation from 2003, after the same court vacated the entire rule for failing to consider driver health.
The previous rule allowed for 11 hours of driving rather than 10 but limited the overall workday to 14 hours rather than 15 hours previously. It also increased mandatory off-duty time to 10 hours a day from eight.
Graves said while ATA hopes the agency will retain the struck provisions, there was not much more the federation could do.
“I think the industry had done about as much as the industry can do,” he said. “This decision is in the hands of [FMCSA Administrator] John Hill, perhaps Mary Peters, perhaps pay grades beyond that.”


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