SPECIAL REPORT: HOS regs limit restart provision; mandate breaks

By Jami Jones, senior editor | 12/22/2011

Thursday, Dec. 22, 2011 – The new hours-of-service regulations unveiled by the Federal Motor Carrier Safety Administration fall short on the flexibility needed for drivers to accommodate the loading and unloading schedules and challenges presented by shippers and receivers.

On the upside, the new hours-of-service regulations keep the 11 hours of driving time and the 14-hour on-duty time. Team drivers will also be allowed to count time in the jump seat as off duty as long as it’s the two hours before or immediately after an eight-hour stint in the sleeper.

However, after June 30, 2013, rest breaks will be mandated for drivers during the workday if the driver has been on duty for eight consecutive hours. The regulation also mandates that the 34-hour restart provision must include two overnight periods of 1 a.m. to 5 a.m. in the restart. The restart is also restricted in the new regulations to only once per seven days.

“Collectively, these changes will have a dramatic effect on the lives and livelihoods of small-business truckers, changes that are unwelcome and unnecessary,” said Todd Spencer, executive vice president of the Owner-Operator Independent Drivers Association.

Mandatory breaks
The new regulations have added a mandatory “break” during the 14-hour workday, which requires at least a 30-minute break after eight hours of on-duty time. Drivers may drive only if less than eight hours has passed since the end of the driver’s last off-duty period of at least 30 minutes. Simply put, if you’ve been on duty for eight hours, you’ll need to take a 30-minute break before you can drive. However, the break does not stop the 14-hour duty clock.

“There is a tremendous variation in individual needs in the industry,” Spencer said.

He pointed to heavy-haul operations that are allowed only to operate during daylight hours.

“Here we are on one of the shortest days of the year with not even eight and a half hours of daylight time,” Spencer said. “These operations are now going to sacrifice 30 minutes of that available workday and then take upwards of 15 hours off duty. Now that just doesn’t make a lot of sense.”

Spencer said that in other operations, this level of specificity could prevent drivers from taking a needed break, because they were mandated into taking a 30-minute break before it was actually needed,” Spencer said.

The agency did take into consideration the duties of drivers under a load that requires constant monitoring – another situation OOIDA highlighted in its comments on the proposed regs.

Those drivers may take the break while in attendance of the load. They will be required to record the break as “on-duty” time and note that the time was spent complying with the mandatory break provision.

34-hour restart
The two overnight provisions and the limitation of using the 34-hour restart provision once every seven days are going to hamper efficiencies and rest cycles of drivers.

“It is counterintuitive to limit the restart provision to once per seven days,” Spencer said. “Since a 10-hour break is sufficient for restorative rest, how is taking 34 hours off more than once in a seven day period going to put tired truckers on the road.”

OOIDA is also critical of the limitation of use and the two overnight periods.

“The agency attempted to validate these overnight restrictions with an invalid sampling. It shows a clear lack of understanding about the varied operations in the trucking industry and the sleeping schedules and needs of individual drivers.”

What’s missing
Meaningful changes start with accountability, something that OOIDA contends is lacking.

OOIDA has long held that to meaningfully improve highway safety, proposed changes would need to include all aspects of a truckers’ workday that affect the ability to drive safely. This includes loading and unloading times, split sleeper berth for team operations, and the ability to interrupt the 14-hour day for needed rest periods.

“Compliance with any regulation is already a challenge because everyone else in the supply chain, other than the driver, is free to waste the driver’s time loading or unloading with no accountability,” Spencer said.

“The hours-of-service regulations should instead be more flexible to allow drivers sleep when tired and to work when rested and not penalize them for doing so.”

OOIDA’s position that shippers and receivers play a critical role in HOS compliance. While FMCSA has acknowledged a desire to gain authority over shippers and receivers, that hasn’t happened yet. The agency pointed to that lack of authority as the reason that shippers and receivers were not regulated in this hours of service version.

Next steps
The final regulation made public by the agency today is a direct result of a lawsuit filed in March 2009 by four groups who sought to have the current version of the regulation thrown out. Filing suit were the International Brotherhood of Teamsters, Public Citizen, Advocates for Highway and Auto Safety, and the Truck Safety Coalition.

After a fair amount of legal wrangling, the Federal Motor Carrier Safety Administration and the four groups struck a deal in October 2009 that allowed FMCSA to craft new HOS regs.

On Dec. 23, 2010, the agency unveiled the proposed changes. That seemed to be enough to satisfy the group of plaintiffs for the time being. The case has been held in abeyance – which means the case is essentially “on hold” waiting for the final regulation.

Now that the regulation has been released, and presumably will publish sometime next week in the Federal Register making it official, the next round of legal filings is due Jan. 23, 2012.

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