Many Questions Remain About New Hours Rule
Oliver B.Patton
Washington Editor
The new hours of service rule was barely four days old before the first petition to change it was filed. Most carriers and industry groups were still focused on understanding all the implications of the rule, and how to adjust to it, when the Owner-Operator Independent Drivers Association asked for two substantive revisions.
It could be a harbinger of things to come. Even if the rule is not challenged in court, there are many questions about its provisions that the agency will have to explain. Meanwhile, the trucking and enforcement communities must train their personnel in the new rule – not as big a challenge as training for the former rule, but a significant effort nonetheless. And talk persists of a possible attempt to have Congress "codify" the rule as a way of preserving it from legal challenges.
It all adds up to continued uncertainty for the industry, at least in the near term.
The core hours of service requirements remain the same as they were before Oct. 1, when the new rule was scheduled to go into effect. The minimum off-duty period remains 10 hours, and the 14-hour maximum still stands for on-duty time. The 11-hour limit on driving remains, as do the weekly limits of 60 hours in seven days and 70 hours in eight days (See chart on page 16).
The changes come in the sleeper berth provision, in short-haul operations and in the 34-hour restart provision.
Under the old rule, team and solo drivers could split their 10-hour break into two periods, neither of which could be less than two hours. The new rule allows a split, but requires that one of the periods be at least eight hours in the berth. The second period of at least two hours may be taken in or out of the berth. The intent, the agency said, is to give drivers seven to eight hours of continuous rest "to maintain a healthy lifestyle."
The second change affects short-haul drivers who operate within 150 air miles of their starting point and who drive trucks that do not require them to have a commercial driver's license. Under the previous rule, these drivers had an exemption from the 14-hour rule: They could drive after the 14th hour of work, but not longer than the 16th hour, one day a week. Under the new rule, that exemption is extended to two days a week. The 11-hour daily driving limit and the weekly on-duty limits still apply.
These drivers do not have to keep logbooks, but their employers must maintain accurate time records and save them for six months.
Under the old 34-hour restart provision, a driver had to be in compliance with the weekly limits (60 hours in seven days and 70 hours in eight days) before he could start counting a 34-hour restart period. In other words, the 34-hour restart was a privilege that was lost if a driver violated the weekly limits. Now the 34-hour restart may be triggered by "the start of any consecutive 34-hour off-duty period."
At first glance these changes appear to be straightforward, but enforcement and carrier officials are concerned about some of the subtleties.
For example, the new exemption for short-haul drivers creates complexity for police, said Steve Keppler, director of policy and programs at the Commercial Vehicle Safety Alliance, which represents the state law enforcement community.
"It presents challenges to our people at the roadside in terms of questioning the driver, who may not understand the rule – whether they can or cannot take advantage of the exemptions," he said. "They have to question the driver a little bit more to find out what type of driver they are."
Keppler said that approximately 10,000 enforcement personnel must be trained in the new rule, a task that would not be accomplished by the time the rule goes into effect.
FMCSA recognizes that problem, and in order to ease the transition will go easy on enforcement through the end of the year. It will focus on "egregious violations"– those that show a clear disregard for safety – and has urged the states to follow suit. CVSA members – the state police – plan to document out-of-service incidents but will follow the safety agency's guidance regarding enforcement, Keppler said.
Keppler also is worried about the new sleeper berth provision. He thinks it might create a temptation for drivers to claim the eight hours in the berth even though they might take fewer hours.
"We are concerned about the falsification issue," he said. "That's been an historical problem with hours of service. We don't see these new rules doing much to help on that problem. You're going to see a lot of eight-hour sleeper berths in log books because it's allowing drivers to extend the work day."
Spokesmen for carrier interests have a different concern about the sleeper berth provision: They say it cuts into operational flexibility.
Chris Burruss, president of the Truckload Carriers Association, said that most carriers probably have been splitting berth time into two five-hour segments, or six hours and four hours. The eight-hour requirement will force substantial changes in scheduling.
Todd Spencer, executive vice president of the Owner Operator Independent Drivers Association, was blunt: "The sleeper berth provision really screws things up for team drivers," he said. "The flexibility that existed previously for drivers was exactly what's needed – it provided service options, and the opportunity for rest."
The changes OOIDA petitioned for concern the sleeper berth provision. The association wants drivers to be able to take the two-hour portion of the break off the 14-hour clock. It also said that the eight-hour period is not practical for most team operations, and asked that team drivers be allowed to work under the old rule.
The OOIDA and TCA message was echoed in comments to the agency by a veteran husband-and-wife driving team, Everett and Sharon Ruckman.
The Ruckmans said they have been driving together for nearly 38 years. "We have always done it five on-five off, with an hour off in between. It has worked well."
When the 2003 rule went into effect, the Ruckmans adjusted to a minor change of off duty time, they said.
"These new (rules) will devastate not only our individual sleep patterns, but will cut our pay even more with the already lower income because of the price of fuel," they said. "There is no way I or my wife can spend eight to 10 hours . . . after all these years of five and five. Please leave the team rules as they were before at split sleeper birth with one period no less than two hours."
The Ruckmans' message hints at another concern cited by Burruss: that drivers will not like the change and will turn away from a business that already has difficulty attracting enough drivers.
"You just keep adding more and more to the driving community and there's a fear that cumulatively it's going to have an impact on somebody's decision to either remain in the industry or to even get into the industry," he said.
Meanwhile, Burruss said, carriers are trying to digest the change and figure out how they are going to make their operations work. And the safety agency is going to have to explain how it will interpret certain situations – such as if a driver's eight hours of sleep is interrupted early when a team driver has to pull over for a break. "There are many variables that have to be addressed before we can figure out what we're going to do."
"But trucking is adaptive," he said. "We will function in whatever environment that we have to. If ultimately we are left with this rule, I think it's going to change some of the landscape and how freight is carried and delivered."
As the industry adjusts to the new rule, it also must take into account the possibility of another legal challenge to the rule. Joan Claybrook, president of Public Citizen, the lead advocacy group in the suit against the former rule, has not said what she intends to do. In a statement, she said the new rule is a "disappointment."
Also still in play is the possibility of congressional action to change the law regarding hours of service.
The current law says that FMCSA must ensure that driving a truck does not "have a deleterious effect on the physical condition" of the driver – in other words that it does not harm his health. This was the provision cited by the court when it threw out the current rule. Earlier this year the agency asked Congress for a broader interpretation that would in effect codify the current rule. Congress declined to do so.
But the agency has not closed the door on this effort. FMCSA Administrator Annette Sandberg said that the aim of the codification attempt was to end litigation, and that she is "still evaluating" that tactic.
The new rule also contains a provision that says the old hours of service rule – the one in place for decades before the most recent rule went into effect – will be rescinded when this rule takes effect. The most recent rule is automatically replaced by the new rule. These procedures are straightforward if the rule is not challenged in court, but they could become significant if the rule is challenged and overturned.
Meanwhile, the agency is continuing its examination of a possible requirement for electronic onboard recorders in trucks. It plans to publish a proposal next year.
New Rules Continued...
