HOS Rule Keeps 11th Hour

Federal regulators retained the 11-hour driving limit for truck drivers, reversing their stated preference for 10 hours and rejecting arguments from labor and safety advocates that a change would reduce crash risk.

Editor’s note: Click here to view TT’s Special Report on the new hours-of-service rule, released the day the rule came out, Dec. 22. Click here for links to the HOS rule in the Dec. 27 Federal Register.

That decision, one part of the Federal Motor Carrier Safety Administration’s new hours-of-service rule, was welcome news to trucking. However, industry leaders took issue with a new restart provision included in the Dec. 22 rule.

Beginning in July 2013, the existing 34-hour rest required before drivers start a new workweek must include two 1 a.m. to 5 a.m. stretches of rest. Other new restart provisions in effect limit drivers to 70 hours of work in seven days, down from the current 82.

Bill Graves, president of American Trucking Associations, said the rule means that, for the first time, FMCSA has chosen “to eschew a stream of positive safety data and cave in to a vocal anti-truck minority and issue a rule that will have no positive impact on safety.”

Related story: Safety officials see many enforcement issues under new rule.

Mandating two overnight rest periods means that as U.S. workers commute to work, thousands of truckers also will hit the road, “creating additional and unnecessary congestion and putting motorists and those professional drivers at greater risk,” Graves said.

ATA Chairman Dan England, who also is chairman of C.R. England Inc., said, “By forcing through these changes, FMCSA has created a situation that will ultimately please no one, with the likely exception of organized labor.”

“They’ve really made a nightmare out of that restart,” said David McCorkle, whose reefer fleet, McCorkle Truck Line, is headquartered in Oklahoma City.

“They’ve cut the productivity of the driver and the truck, and it cuts the pay for the driver for no reason,” said McCorkle, a former ATA chairman.

Defending its decision to keep the 11 hours but change the restart rules, FMCSA said it relied on available data concerning fatigue and crash risk.

Research “generally shows that crash risk increases” with longer daily and weekly work hours, FMCSA said. But the available data are not “sufficiently robust” to show a “significant distinction” between the risk associated with any two adjacent hours of driving, whether nine, 10 or 11 hours, the agency said.

The restart changes are meant “to limit work to no more than 70 hours a week, on average,” FMCSA said, because working long hours on a continuing basis is associated with chronic fatigue, a high risk of crashes and serious chronic health problems.

The new rule does not explicitly limit drivers to 70 hours a week, compared with the average existing 82-hour maximum workweek, but FMCSA said its new rule limiting restart use to once every 168 hours will result in average 70-hour workweeks.

The latest HOS rule follows eight years of legal wrangling that began in 2003, when FMCSA raised allowable drive time to 11 hours from 10, prompting labor and safety advocates to file suit in an effort to overturn the rule.

Judging from the reaction to the latest rule, the court battle could continue.

Graves said the 2013 effective date for the new restart provisions gives ATA “time to consider legal options.”

James Hoffa, president of the Teamsters union, said his group would review the rule and then “determine our next course of action.”

Gregory Beck, a lawyer representing the safety advocates in the lawsuit against FMCSA, said renewed legal action is possible.

“We’re certainly disappointed about the agency’s decision to go with 11 hours of driving time,” Beck said. “That’s a big issue for us, that we think the safety data points strongly against [11 hours],” he said.

The next legal skirmish could occur later this month, when Beck and FMCSA lawyers are scheduled to meet in the U.S. Court of Appeals for the District of Columbia on the HOS case pending there.

The new 11-hour rule grew out of an agreement in that case between FMCSA and Beck’s clients.

In addition to restart changes, an additional rest break also will be required, as of July 2013. Drivers will not be allowed to drive more than eight hours at a time before taking a 30-minute break.

Other new provisions take effect Feb. 27, including one that says time spent in the cab of a parked or moving truck, though the driver is not behind the wheel, is no longer on-duty time.

Currently, time in the truck, except in the sleeper-berth, is part of a driver’s 14 overall on-duty hours.

Chris Burruss, president of the Truckload Carriers Association, said the group opposes the new rule.

“It is disappointing that the one change that could have been made to improve the previous rule was completely ignored: greater sleeper flexibility,” Burruss said.

Another provision that takes effect in February is fines for “egregious” hours-of-service violations, those involving three or more hours of illegal driving time. Fleets could be fined $11,000, and drivers up to $2,750, for each offense.

Carriers said restart changes will cut into trucking’s productivity and force fleets to add trucks and drivers to compensate for trucks idled by overnight rest periods.

“Somebody is going to have to pay for the loss of the efficiency of that vehicle,” said James Burg, president of James Burg Trucking Co. in Warren, Mich., a flatbed fleet that hauls steel for the automotive industry.

Some of his drivers work shifts that end at 2 a.m. Saturday and then restart on Sunday, Burg said, but under the new restart, they will not be able to work again until 5 a.m. Monday.

Consumers “should be in an uproar” about the added freight costs because they raise the cost of goods without increasing safety, Burg said.

Stifel, Nicolaus & Co., a regional brokerage and investment banking and consulting firm, quoted studies saying the new hours rule will have a 3% negative effect on trucking. The rule, the consultants said, confirms their view that government “will continue to play a major role in constraining transportation capacity” but that the regulation “will end up playing into the hands of well-managed carriers.”

Staff Reporter Timothy Cama contributed to this report.