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6/28/2013
Hours-of-service changes go into effect July 1
By Jami Jones, Land Line managing editor

In spite of requests to delay implementation of the final two provisions of the regulations by industry stakeholders, the new hours-of-service regulations will go into full effect on Monday, July 1.

While the ultimate fate of the regulatory changes hangs in the balance with the Court of Appeals for the D.C. Circuit, the agency has opted to go full systems ahead and implement the regulation on its original compliance date of July 1.

The changes
Starting July 1, 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 to operate only 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 is 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 regulation will go into full effect on July 1, with the changes outlined above.

Oral arguments were heard on the pending litigation in the U.S. Court of Appeals on March 15. As of press time the court had not issued an opinion on the case. The court issues its opinions on Tuesdays and Thursdays.

A couple of scenarios are in play pending the outcome of the court’s ruling if history proves anything.

If the court rules that the regulation fell short in some respect, the court can rule to vacate the entire regulation or just certain provisions. FMCSA would then be forced to take steps to rescind the regulation. How long the agency would be given to comply with the court’s ruling is unclear as it’s been handled differently since the first big ruling in 2004.

In July 2004 when the court ruled against the April 2003 attempt at changing the hours-of-service regulations, the court gave the agency 45 days to rescind the regulations, allowing the industry to continue operating under them for the time being.

Eventually in 2004, Congress stepped in and gave the agency a year to formulate new regulations to comply with the court’s ruling. That also kept the April 2003 implemented regs in place to reduce confusion in the industry.

When an attempt at revising the regulations was published in August 2005, lawsuits ensued once again.

Those regs went into effect in October 2005 despite the pending litigation. Those are the regulations, that barring a few minor changes, the industry operates under until July 1.

The court ruled against the agency on procedural, not safety, grounds. The court also gave the agency until the end of 2007 to come up with another attempt at altering the hours-of-service regs. The agency opted for the industry to continue running under the then-current regulations during that process.

When the new regulations were again attempted by FMCSA in December 2007, the agency retained the 2005 incarnation of the regulations while it considered the court’s ruling and came up with a regulation to satisfy it.

In November 2008, another “new” final HOS regulation was published, which made no changes to the 2005 regs. As expected, lawsuits were filed.

The third chapter in the HOS saga kicked off when four groups filed a lawsuit asking that the current version of the regulation be tossed. Filing suit were the International Brotherhood of Teamsters, Public Citizen, Advocates for Highway and Auto Safety, and the Truck Safety Coalition.

In October 2009 FMCSA and Public Citizen were granted a joint motion by the court to delay legal action to allow FMCSA to craft new HOS regs.

That delay remained in place and the agency rolled out the new regs in December 2011. That’s when the agency published the regulations that are set to go into effect July 1.

The first lawsuit on the fourth attempt at retooling the hours of service in a decade’s time was filed in February of 2012. That’s the case on which the court’s ruling is pending.

The handling of hours of service has bounced around quite a bit.

Should the regulation in whole or in part be vacated, the agency will find a way to keep the mandatory breaks and alteration to the 34-hour restart option in place. If history proves anything, FMCSA prefers to maintain the status quo of the then-current regulations while it finds a way to try and address yet another court ruling against the agency. In this case, the status quo will be the regs that go into effect July 1.

Copyright © OOIDA

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