Legal Lane: Hours of Service Proposed Rule
March 1, 2011
Here we go again. The Federal Motor Carriers Safety Administration (FMCSA) published their new Hours of Service of Drivers; Proposed Rule which affects 49 CFR Parts 385, 386, 390, et al. in the December 29, 2010 Federal Register. This is the first step in administrative law on making new regulations for the trucking industry.
Of course not everyone is happy with the new proposed rule and both sides have promised they will take this new rule to court to change the things they do not like. Before we all get excited about this proposed rule, you should be aware that the proposed rule must be published, it has been on 12/29/2010, and offered to the public for comment on the rule and how it will affect the public, the driver, the carrier and the shipper.
If you want to review the proposed rule, you can go to:
As the Federal Register states; “FMCSA encourages you to participate in this rulemaking by submitting comments, data, and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you provide. A. Submitting Comments: If you submit a comment, please include the docket number for this rulemaking (FMCSA–2004–19608), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission. However, see the Privacy Act section below regarding availability of this information to the public.
To submit your comment online, go to http://www.regulations.gov and click on the ‘‘submit a comment’’ box, which will then become highlighted in blue. In the ‘‘Document Type’’ drop down menu, select ‘‘Proposed Rules,’’ insert ‘‘FMCSA–2004–19608’’ in the ‘‘Keyword’’ box, and click ‘‘Search.’’ When the new screen appears, click on ‘‘Submit a Comment’’ in the ‘‘Actions’’ column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1⁄2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. FMCSA will consider all comments and material received during the comment period and may change this proposed rule based on your comments.”
Now that we know how to offer our comments, let’s look and see what all the fuss is about;
1) DRIVING TIME: FMCSA prefers the 10-hour driving time rule, but is willing to consider an 11-hour driving time rule. You, your carrier and your trucking associations are asked to comment with their data or studies to show FMCSA the difference in risk, if any, between a 10- and an 11-hour driving limit per day.
2) BREAKS FOR DRIVERS: The existing rule allows a driver to drive for up to 11 consecutive hours, this may or may not include any break for the driver. FMCSA believes that working continuously without a break is neither safe nor healthy. Research indicates that breaks during work can counteract fatigue and reduce the risk of crashes. Under the proposed rule, drivers would be able to work and drive for up to 7 hours without a required break. Upon reaching the 7th hour since coming on duty, the driver would need to take a break of at least a half hour before resuming driving. The driver could remain on duty without a break after the 7th hour, but could not drive again without taking a break. A driver who took a half hour break at 6.5 or 7 hours after coming on duty would generally not need a second break. But a driver who took a half-hour break 4 hours after coming on duty would need a second break no later than 11.5 hours after coming on duty to drive after that time.
3) DUTY TIME/DRIVING WINDOW: FMCSA proposes to set a 14- consecutive-hour driving window during which a driver may be on-duty for 13 hours. At the end of the driving window, the driver would have to go off duty. This approach effectively reduces the maximum allowable work hours during a duty period by 1 hour from the existing rule and gives drivers an opportunity to take up to an hour off duty during the working day.
4) Restart and Weekly Limits: FMCSA is proposing two limits to the 34-hour restart. First, any 34-hour or longer period used as a restart would have to include two periods between midnight and 6 a.m. (2 nights of sleep). Second, drivers would be allowed to take only one restart a week; that is, they would be able to begin a restart only 168 hours after the beginning of the previous restart. For example, if a driver ends a workweek at Friday at 6 p.m. and begins the restart, the restart could end no earlier than Sunday at 6 a.m. The next restart could not begin earlier than the following Friday at 6 p.m. If the driver ran out of weekly hours at noon on that second Friday, for example, he or she could not count the off-duty hours between noon and 6 p.m. toward the 34 hours.
5) SLEEPER BERTH: FMCSA is not proposing to change the sleeper berth exception, but the other changes to the rule would have an impact on sleeper berth users. The shorter off-duty or sleeper berth period would be included in the calculation of the driving window, as it is now. Because the driving window (14 hours) would be longer than allowed duty time (13 hours), use of the shorter period would not always reduce available duty time. On days when the driver is using the 16-hour extended window, the shorter period would not reduce duty time unless the period is more than 3 hours or unless the driver takes more than an hour of other breaks during the driving window. On days when the driver is using the 14-hour driving window, use of the sleeper exception would reduce the available duty hours by at least 1 hour.
6) ON-DUTY DEFINITION: In 2005, American Trucking Association petitioned FMCSA to change the definition of ‘‘on duty time’’ to allow team drivers to log as off duty up to 2 hours spent in the passenger seat. FMCSA agrees with ATA’s recommendation and is proposing to revise the definition of ‘‘on duty’’ to allow a team driver to log as off duty up to 2 hours spent in the passenger seat either immediately before or after the 8-hour period in the sleeper berth. In addition, FMCSA is proposing to exclude from the definition of ‘‘on duty,’’ time spent resting in or on a parked CMV.
Of course FMCSA is making penalties more stringent under the new rule and is asking for input as to when the new rule should go into effect. This proposed rule will affect your job, your career, your life and your money. So the question becomes, “Will you take the time to let FMCSA know what you, your carrier and your trucking associations think, believe and can prove?” to protect your job, your career, your life and your money?
Jim C. Klepper is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation’s commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Jim is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Jim, a former prosecutor, is also a registered pharmacist, with considerable experience in alcohol and drug related cases. He is a lawyer that has focused on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking and life over-the-road and has his Commercial Drivers License.
800-333-DRIVE (3748) or www.interstatetrucker.com and www.driverslegalplan.com