New Hours of Service Rule Continues to Spark Controversy Within Transportation Industry

By HunterMaclean Attorneys

Published in Business in Savannah

On December 27, 2011, the U.S Department of Transportation Federal Motor Carrier Safety Administration (FMCSA) published its new Hours-of-Service (HOS) rule intended to increase truck driver rest time and improve safety on highways. Whereas most of the provisions in the new rule take effect July 1, 2013, some went into effect this past February.

The new HOS rule has been the source of much controversy between industry veterans, safety advocates and regulators. Both sides of the debate feel that provisions in the rule are not supported by sufficient data and that FMCSA’s latest rule is not any closer to setting higher standards. Historically, one or more interest groups file lawsuits to challenge changes to the HOS rule and this new rule is no exception. In fact, several public safety advocate groups, truck drivers and even the American Trucking Association filed separate lawsuit in the United States District Court for the District of Columbia challenging the efficacy of the new rule.

Despite heated contentions concerning the rule’s validity, the FMCSA strongly believes that stressful conditions have been the source of increased fatigue-related traffic accidents and fatalities within the industry and have ultimately led to the revised HOS rule now in effect. FMCSA’s new HOS rule reduces the maximum number of hours a truck driver can work within a week from 82 hours to 70 hours. In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break at their discretion.

The rule requires truck drivers who maximize their weekly work hours to take at least two nights rest when their 24-hour body clock demands sleep the most, from 1 a.m. to 5 a.m. This rest requirement is part of the rule’s “34-hour restart” provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty. Drivers can only use the restart provision once during a seven-day period. Formerly, the restart provision could be used multiple times per week.

However, FMCSA chose to retain the current 11-hour daily driving limit, a point that has left certain public safety advocates frustrated that a proposed 10-hour daily driving limit wasn’t adopted.

As part of the HOS rulemaking process, FMCSA held six public listening sessions across the country and encouraged safety advocates, drivers, truck company owners, law enforcement and the public to share their input on HOS requirements. The listening sessions were webcast live on the FMCSA website, allowing a broad cross-section of individuals to participate in the development of this safety-critical rule. According to FMCSA, the final HOS rule is the culmination of the most extensive and transparent public outreach effort in FMCSA history.

Enforcement of the HOS rule is generally handled by the DOT officers in each state. Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Trucking companies that allow drivers to exceed the 11-hour driving limit by three or more hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.

In addition, if a driver is found in violation of the HOS rule, he or she can be forced to stop driving for a period of time, which may negatively affect the motor carrier’s safety rating.

While safety advocates continue to push for harder limits to motor carrier safety standards, the trucking industry argues that the requirement of two overnight rest periods in the 34 hour “rest and restart” period is potentially more dangerous for our nation’s roadways. They contend that the two overnight rest periods from 1 a.m. to 5 a.m. will force millions more trucks on the road during daylight hours when traffic is at its highest. Additional congestion on the roadways during daylight hours places all motorists at greater risk of an accident. The FMCSA contends that this is not the case as the 70 hour per week rule mostly impacts a subset of long-haul truckload drivers which, according to the FMCSA, is a small percentage of drivers.

Fatigue-related accident statistics vary depending on the sources, but FMCSA is continuing to research risks and listen to comments associated with the current 11-hour daily driving limit. Despite this mandate, requests to change the new HOS rule continue to be a source of contention within the industry and will surely be an ongoing debate, and, once again, it will take the courts to sort out the rule’s validity.