BNA Daily Labor Report: DOT Issues Final Rule on Hours

November 19, 2008: The Department of Transportation's Federal Motor Carrier Safety Administration has adopted as final a December 2007 interim final rule on driver hours, scheduled for publication in the Nov. 19 Federal Register, despite complaints from some advocacy groups that the rule compromises transportation safety.

The final rule will take effect Jan. 19, 2009, 60 days after publication in the Federal Register. The final rule allows commercial motor vehicle drivers to continue to drive up to 11 hours within a single workday and to restart calculations of their weekly on-duty limits after the driver has been off duty for at least 34 consecutive hours.

In announcing adoption of the final rule, FMCSA said comment and research on the possible effects of the rule were divided, and “FMCSA has therefore used its analytical capacity, expertise, knowledge of the industry, and best judgment to create a rule that enhances motor carrier safety while minimizing costs, consistent with its primary safety mission.”

The Federal Motor Carrier Safety Administration said it was using its “best judgment to create a rule that enhances motor carrier safety while minimizing costs.”

Adoption of Rules Marked by Controversy.

Publication of the final rule follows criticism and court challenges to the DOT agency's hours-of service rules.

In Public Citizen v. FMCSA, 374 F.3d 1209 (D.C. Cir. 2004), the U.S. Court of Appeals for the District of Columbia Circuit overturned FMCSA's effort to change the rules governing the hours of work and rest periods for commercial truckers, saying the agency's action was arbitrary and capricious because it failed to consider the effect of the rules on drivers' health.

In July 2007, in Owner-Operator Independent Drivers Ass'n v. FMCSA, 494 F.3d 188, 12 WH Cases 2d 1284 (D.C. Cir. 2007), the D.C. Circuit found that a portion of a 2005 rule issued by FMCSA that increased the daily driving limit from 10 to 11 hours and allowed drivers to restart the “clocks” limiting their weekly on-duty time whenever they took 34 consecutive hours off duty, was invalid because the agency failed to allow comment on a methodology used to justify the change and failed to explain critical parts of the methodology.

Interim Final Rule Issued in December 2007.

On Dec. 11, 2007, FMCSA Administrator John Hill announced that the agency was reissuing an interim final rule that addressed the “procedural flaws” cited by the appeals court in OOIDA. The interim rule discussed the methodology used by the agency in determining that a change to an 11-hour driving day had not resulted in any “upward trend in the number of fatal crashes as a whole or fatigue-related crashes in particular”.

In a hearing before the Senate Commerce Committee's Surface Transportation and Merchant Marine Infrastructure, Safety and Security Committee, Public Citizen President Joan Claybrook criticized FMCSA's approval of an 11-hour driving limit, contending that there were no data to support the agency's rule, which she claimed was inconsistent with the 2007 OOIDA decision.

On the other hand, Hill told the subcommittee that rule was an appropriate balance of highway safety and operational flexibility that “serves to stabilize workers' hours and establish certainty for enforcement personnel.

FMCSA said in adopting the interim final rule in December 2007, the agency provided a 60-day period for public comment. The agency received 913 comments, a majority of which came from individuals, but 122 motor carriers, eight trucking associations, 17 industry trade associations, one state agency, and six safety advocacy groups also responded, FMCSA said.

FMCSA Says Comment Split, Rejects Criticism.

Comment on the 11-hour driving limit was divided, according to the agency, with 67 comments favoring the limit and 53 contending that 11 hours was an excessive driving day.

FMCSA said 164 commenters favored the 34-hour restart provision in the interim final rule, while only 30 comments supported changing the provision.

More than 90 motor carriers and carrier associations indicated in comments that they had seen no adverse safety impacts from the FMCSA regulations, the agency said, adding that “in fact most of them reported reductions in crashes and injuries.”

The agency acknowledged that several groups were critical of FMCSA and the interim rule, including the Insurance Institute for Highway Safety, Public Citizen, and, in a joint filing, Advocates for Highway and Auto Safety, Public Citizen, the International Brotherhood of Teamsters, and the Truck Safety Coalition.

The joint filing argued that FMCSA had relegated its safety mission to simply balancing economic costs to industry “without regard to its basic mission—to prevent deaths, injuries, and adverse health impacts of much longer driving and working hours.”

FMCSA responded that the final rule is, in fact, “an excellent example of the paramount value FMCSA places on safety.” The agency said it is required by law to consider not only safety but also cost factors. Stating that “[t]here is no case law on point, and the legislative history is silent,” FMCSA said it “therefore used its analytical capacity, expertise, knowledge of the industry, and best judgment to create a rule that enhances motor carrier safety while minimizing costs, consistent with its primary safety mission.”

Agency Defends Research, Findings.

In the notice, the agency acknowledged that Advocates for Highway and Auto Safety and other groups disputed FMCSA's contention that motor carrier safety has improved since changes in the regulations made in 2003 and contended that national crash data are not consistent with the agency's claim.

Stating that it has “consistently been cautious about inferring causal relationships between the HOS requirements and trends in overall motor carrier safety,” the agency said it continues to believe that “the data show no decline in highway safety since the implementation of the 2003 rule and its re-adoption in the 2005 rule and the 2007 IFR.”

FMCSA said Advocates for Highway and Auto Safety and the groups that joined in its comment on the interim rule argued that the agency had disregarded research on how long work hours impacted the health of drivers, but the agency said it “has considered driver health at length.”

The agency acknowledged that reports by the National Research Council's Transportation Research Board Panels of Experts indicate that “there are some links between driving and various health conditions,” but it said that there were no studies published since 2005 that the agency had not already considered.

“Driver health research simply is not mature enough to allow the conclusion that a number of extra hours of work would result in increased driver health problems,” FMCSA said, noting that several motor carriers and associations contended that the interim rule gave drivers a greater opportunity to get rest when they needed it. The agency acknowledged that it was “unable to quantify the positive impacts” on driver health, but said drivers now are sleeping with “more circadian regularity … within normal ranges that are consistent with a healthy lifestyle.”

FMCSA said some commenters argued that the agency's research on hours of service was flawed, and that the agency should have been guided by a panel of experts commissioned by the Federal Highway Administration. The agency responded that the panel's role was only to provide guidance, while “it is exclusively the Agency's responsibility to make decisions with regard to rulemaking.”

Criticism that FMCSA selectively quoted from research was unfounded, the agency said. Stating that the agency had worked on the hours of service rule for more than a decade, FMCSA defended the specifics of studies it had cited and said its reliance on survey and test data was fair and appropriate.

“In consideration of the foregoing,” FMCSA said, it is adopting as final the interim final rule on hours of service that was published in the Federal Register on Dec. 17, 2007.

By Lawrence E. Dube

Click here to read the text of the final ruling.

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