Federal Motor Carrier Safety Administration Re-Adopts Controversial HOS Rule

By HunterMaclean Attorneys

Published in Business Report and Journal

Special to the Savannah Business Report

In a move that could cause further controversy and ignite more litigation, the Federal Motor Carrier Safety Administration (FMCSA) recently decided to re-adopt as an interim rule a controversial transportation rule which legally allows truckers to drive for 11 hours within a 14-hour on-duty period, followed by an off-duty period of at least 10 hours. The re-adoption of this rule came as a result of a court order requiring the FMCSA to reconsider the impact the rule has on driver safety.

The rule is opposed by a number of groups including the International Brotherhood of Teamsters, Citizens for Reliable and Safe Highways, Parents Against Tired Truck Drivers, Advocates for Highway and Auto Safety and Public Citizen. The interim rule takes effect on December 27, after which the FMCSA will take public comments for 60 days.

The current rule has been in effect — although disputed in the courts — since 2003. Prior to 2003, the FMCSA limited commercial haulers to driving for 10 hours a day after an eight-hour resting period for no more than 60 hours in a seven-day week or 70 hours in an eight-day week. The FMCSA added an eleventh hour of drive time and a 10-hour resting period in 2003. At the same time, the FMCSA also added a highly controversial 34-hour restart, which means that a trucker may “reset” his work week by remaining off-duty for 34 consecutive hours.

The U.S. District Court of Appeals for the District of Columbia Circuit asked the FMCSA twice to review its ruling and provide sufficient data that an eleventh hour would not harm the health of drivers. To support its latest interim rule, the FMCSA stated that, in 2006, the fatality rate per 100 million vehicle miles traveled was 1.94 — the lowest rate ever recorded. Also, since 2003, the percentage of large trucks involved in fatigue-related fatal crashes in the 11th hour of driving has remained below the average of the years 1991-2002. In 2005, the agency noted, there was only one large truck involved in a fatigue-related fatal crash in the 11th hour of driving while in 2004 there were none.

In addition, between 2003, when the 11-hour driving limit and the 34-hour restart were adopted, and 2006, the percent of fatigue-related large truck crashes relative to all fatal large truck crashes has remained consistent. And the agency’s estimates show that only seven percent of large truck crashes are fatigue related. “The data makes clear that these rules continue to protect drivers, make our roads safer and keep our economy moving,” said FMCSA administrator John H. Hill.

HunterMaclean attorney Dennis Keene, a partner who leads the firm’s transportation team, said he wasn’t surprised that the FMCSA kept its current rule on an interim basis. “I don’t think that there’s a right or a wrong answer,” Keene said. “But someone had to make the decision that there’s sufficient evidence to support the ruling.”