"So, round and around and around we go,
Where the world's headed, nobody knows
Oh, Great Googamooga,
Can't you hear me talking to you,
Just a ball of confusion,
That's what the world is today, hey."
-The Temptations

Background

In 1995, Congress directed the Department of Transportation to establish new Hours of Service rules which had been in place unchanged since 1939. Since that time, confusion and uncertainty has been the status quo. In 2004, the DOT published new rules which were promptly subject to a legal challenge. After a reversal by the D.C. Circuit Court of Appeals, in August 2005, the DOT issued new rules limiting a driver's flexibility in use for the sleeper berth. Again in 2007, the rule was reversed by the courts on procedural grounds. In December, 2007 the DOT issued the rule addressing the procedural issues, which became final in November 2008. In March 2009, litigation again ensued and in October 2009, officials newly appointed by the Obama administration entered into a settlement agreement wherein the DOT agreed to reconsider and reissue the rules. As a result, in late 2010 the DOT issued a new proposed rule to be adopted, and no doubt followed by more litigation, in 2011.

The Players

The legal antagonists have been the Teamsters, and safety advocate groups backed strongly by Plaintiff's attorneys, Public Citizen, Advocates for Highway and Auto Safety, and the Truck Safety Coalition, which includes Citizens for Reliable and Safe Highways (CRASH) and Parents Against Tired Truckers (PATT). They advocate a maximum of 40 hours driving per week, 8 hours per day. In other words, every driver would look like a regular route, LTL, Teamster.

On the other side players include the American Trucking Association and the Truckload Carriers Association. They advocate the status quo. They argue that the proof is in the pudding since traffic fatalities have dropped sharply since current rules were put into place.

Highlights of the Latest Proposal

The latest proposal suggests changes and adds complexity to the hours of service rules. It will upset all the players and lead to yet more litigation.

The FMCSA states that it prefers to reduce the maximum daily drive time from the current 11 hours to 10, but seeks comments. FMCSA also proposes to take one hour from the total 14 on duty time by requiring at least one hour of rest breaks during the day which can be divided into two 30 minute rest breaks. The proposal requires a driver to take at least one 30 minute break after 7 hours of continuous driving. This change is proposed in response to concerns by drivers who feel that to maximize their available hours they have to "keep the left door shut". Drivers would be limited to 13 hours of "on-duty time" within a 14 hour "window." Local drivers would be allowed to extend this window to 16 hours, twice per week.

Limits are also proposed on "34 Hour Restarts". Currently, a driver may take a 34 hour restart at any time to get a fresh book of hours on his/her maximum of 60 "on duty" hours in 7 days, or 70 "on duty" hours in 8 days. FMCSA proposes to limit the use of the restart to once per week and the restart must include 2 nights from midnight to 6 am. Thus, for the first time, the government is not only interested in restricting how many hours a driver is on and off, but when that driver must be off. In effect, drivers used to working at night and sleeping during the day will not be able to restart in 34 hours.

The FMCSA proposes to allow drivers to record time spent in a parked Commercial Motor Vehicle as off-duty time. Team drivers would be allowed to spend up to 2 hours in the passenger seat of a CMW in operation, as "off duty" time, if taken just prior to the 8 hours off duty. Lastly, increased fines for companies and drivers are proposed for egregious violations (3 hours or more): $11,000 per violation for the company and $2,700 per violation for the driver.

The rule is now open for public comments for 60 days from December 23rd and the final rule is expected to be published by July 26, 2011.

If you liked the last recession, you're going to love the one this will cause.

The big utilization killer is the effective elimination of the 34 restart rule. According the FMCSA, "Safety advocacy groups have opposed the restart because "it allows a driver who is driving and working to the limits to be on duty up to 84 hours in 7 days and 98 hours in 8 days", a substantial increase over the 60-/70- hour limits of the pre-2003 rule." Bowing to pressure from President Obama's political constituencies, the FMCSA proposes to eviscerate the 34 restart rule by limiting its use to once in 7 days. It reasons: "The 168-hour provision would have the effect of limiting drivers' weekly hours to an average of 70 in 7 days. This represents a substantial reduction from the current limits, but still allows drivers on the road to take restarts that are shorter than required under the pre-2003 rule. Most restarts for day-time drivers would range from 34 hours to 48 hours. Drivers on a regular night schedule would need about 58 hours to obtain 2 nights of sleep and stay on schedule."

The effect of this proposal is that a driver can only be on duty 60 hours in 7 days or 70 in 8 days… period. This represents in excess of a 29% reduction in the flexibility a driver has to deal with delays on the road. If the delays on the road are not eliminated, then this will also represent a 29% decrease in miles and utilization.

If you talk to drivers, the problem is not that they drive excessive hours; the problem is that they are delayed excessively and therefore need the flexibility of the additional hours to get enough driving in to deliver their loads. A few years back, the FMCSA took away a driver's daily flexibility to extend his work day by splitting "off duty" time. Now, they propose to take away the driver's flexibility to extend their week.

Possible Ramifications

1. The rule is more complex, making it harder to both comply with and enforce.
2. In all likelihood, driving time per day will be reduced by one hour and restarts, in reality, will take longer than 34 hours.
3. The number of miles constituting a one day run will be reduced by at least 50 miles.
4. A driver will have 29% fewer "on duty" hours per week and utilization will take a correspondingly big hit.
5. The reduction in hours and forcing of drivers into more daytime driving will dramatically increase congestion on the nation's highways and require many more trucks to haul the same level of freight.
6. In order to deal with rigid and difficult restart rules, drivers will need to get home every weekend.
7. Rates charged to shippers will increase rapidly in order to pay for the lost utilization and the increase in driver pay that will be needed to compensate them for their lost mileage.
8. Power detention will have to be charged to at sufficiently punitive level as to eliminate it.
9. All parties will end up back in the courts and the industry will remain in confusion for even more years.

As we slowly exit the current recession, one marked by a 25% decrease in volume followed by a 10% reduction in rates, one can't help but wonder if the Federal government has given any thought as to what this will do to the economy. Following their logic, we would even be safer if no one in the industry worked any hours at all. But then freight would not move either.