Ferro Defends Restart Change, Vows to Pursue 10-Hour Limit

This story appears in the Jan. 23 print edition of Transport Topics.

The federal government’s chief truck overseer defended her agency’s controversial changes to the 34-hour restart provisions of the hours-of-service rule and vowed to continue efforts to cut the hours drivers may be behind the wheel.

Anne Ferro, head of the Federal Motor Carrier Safety Administration, said that the changes to the restart provision would reduce chronic fatigue, and the agency will continue to seek a way to eventually cut allowable daily driving hours to 10, from the current 11.

“The rule follows through on the commitment that I’ve made over and over again — which is putting safety as our highest priority,” Ferro said in a Jan. 12 interview with Transport Topics.

“The rule is geared toward reducing the effects of cumulative fatigue on the driver task and ensuring that the drivers who push the limits — those who drive beyond 70 hours a week — would no longer be able to do that, and on average would have proper rest breaks and overnight rest,” she added.

The latest hours rule follows eight years of legal wrangling that began when FMCSA raised allowable drive time to 11 hours from 10, while trimming an hour off the total workday, prompting labor and some interest groups to file a lawsuit in an effort to overturn the rule.

Prior to the agency’s announcement of the new final rule last month, the lawsuit against FMCSA had been on hold under a 2009 settlement calling for federal regulators to implement a new hours rule.

The new proposal reduces total driver hours to 70 from 82 per week, but retains 11 hours a day as the limit. The rule, which is scheduled to go into effect in July 2013, also requires a 34-hour rest period before drivers can start a new workweek, with the proviso that the rest period must include two 1 a.m. to 5 a.m. stretches of rest.

Prior to the new rule, drivers had been permitted to use the 34-hour restart with no requirement for two overnight rest periods.

Ferro estimated that reducing weekly hours would affect only about 15% of the industry’s drivers.

Although the agency had favored reducing daily driving hours to 10, Ferro said FMCSA did not have enough available science, data and research to put the new limit into the final rule.

“We stated a clear preference for 10 hours, based on analysis and research we had in our hands at the time,” Ferro said. “Working through the process and reaching the final product of a final rule, we again derived a rule — that based on available science, on available data and on available research — with that driving purpose of advancing safety outcomes.”

However, she indicated that the agency is not giving up on conducting more research to justify cutting daily driving hours.

For example, Ferro said, the agency plans to collect and examine data from driver logs on an hour-by-hour basis to measure their relationship to crash information. FMCSA also will examine crash risk after restarts, she said.

The new rule “will make the highways safer for the folks operating and operating around trucks,” Ferro said, adding, “Frankly, the expectations of this rule are that folks can start working on it today.”

“It’s everybody’s personal responsibility to ensure that they’re operating fully rested, fully alert, with full focus on the road and hands on the wheel,” Ferro said. “Employers know that and have an obligation to ensure that their drivers have every opportunity to operate in that manner.”

But the jury is still out on whether truckers will end up back in federal court battling the agency and a group of safety advocates, who could resume an existing lawsuit that has been on hold since 2009.

David Osiecki, senior vice president of policy and regulatory affairs for American Trucking Associations, said that ATA has yet to decide whether it will take the issue to court. That decision could come as soon as February, when ATA’s executive committee meets in Arlington, Va.

During a telephone conference call on Jan. 13, members of ATA’s hours-of-service subcommittee expressed concerns about the rule’s restart provision, Osiecki said.

“The concern seems to center around dedicated operations within truckload fleets,” he said. “Normally, those are pretty tightly engineered runs and routes. Based on the current engineering of those routes, when you overlay this new rule, we’re hearing, for example, anywhere from a 1% negative productivity impact to upwards of 10% to 12%.”

The interest groups that have successfully challenged the rule in federal court have indicated disappointment with FMCSA’s not reducing daily driving limits to 10 hours but have yet to reveal if they will take additional actions in court.

On Jan. 23, lawyers for both sides are to file progress reports on the settlement agreement in the U.S. Court of Appeals for the District of Columbia Circuit.

Osiecki said ATA members also had concerns about the rule’s new requirement that a driver go no longer than eight hours without a 30-minute rest break.

“There was a bit of a concern that we’re hearing about the length of the break,” Osiecki said. “There’s a wish that it be more flexible”

The potential effect the 34-hour restart could have on operational efficiency also tops the list of concerns for tank truck operators, said John Conley, president of the National Tank Truck Carriers.

“Our longhaul fleets in food and chemical service are concerned about parking availability for drivers who need to put in the two 1 a.m. to 5 a.m. periods while on the road,” Conley wrote in a Jan. 17 newsletter to NTTC members. “There is already a shortage of safe and secure parking places, and this requirement is likely to increase the challenge of drivers finding parking during those high-demand time periods.”

Henry Jasny, co-counsel for plaintiffs Public Citizen and Advocates for Highway and Auto Safety, said his clients have yet to decide whether they will pursue further legal action.