As part of its preparations for 2016, Congress passed the Consolidated Appropriations Act to pay for the various functions of the government in the New Year. Importantly, the $1.1 trillion spending bill has again suspended the enforcement by the FMCSA of certain 2013 hours-of-service rules.
In 2013, FMCSA required that drivers using a 34 hour restart to reset their weekly hours have two periods between 1 a.m. and 5 a.m. in their extended off-duty period and limited the use of these extended rests to once a week. These rules were greeted with controversy, cited by opponents as being unwieldy and unnecessary but held out by proponents as creating safer roads. The enforcement of these rules was suspended in 2014 as part of the appropriations act for that year and mandated the FMCSA study the issue. The FMCSA study comparing the fatigue and safety of truck drivers using two different versions of the hours-of-service restart provisions was completed in October 2015. It is currently in its data collection phase before its submission to the Department of Transportation for its review.
What is different about the suspension of the rules this year, though, is that Congress has added guidance on what the results of the study must show in order for FMCSA to implement and enforce the 2013 hours-of-service rules. The new language in Section 133 makes it clear that for FMCSA to lawfully enforce these provisions it must demonstrate “statistically significant improvement in all outcomes related to safety, operator fatigue, driver health and longevity, and work schedules, in comparison to commercial motor vehicle drivers who operated under the restart provisions” already in effect prior to the 2013 rules.
This will be a high hurdle for the agency to clear, and the language used by Congress implies the hours-of-service rules will not be put back in place any time soon. A FMCSA official noted that these suspended rules would not be enforced without first consulting with trucking “stakeholders.” It should be said, though, that the worrying part of this legislation is that it is tied to a budget bill, and this suspension is only the law for the remainder of the year. The suspension will have to be renewed by Congress at the end of the year for the suspension to stay in force through 2017. In fact, it is likely that new rules will be formulated and sent out for notice by the end of September 2016 for them to be finalized prior to a new budget bill.
What does this effectively mean for drivers and companies? Essentially, it means drivers and companies can continue to use the original 34 hour restart rule that was in place between 2003 and 2013. Drivers can still take any 34 hour period for a restart and may utilize a restart more than once per week if necessary. Employers and drivers should also be aware that all other regulations remain unaffected, and the suspension only relates to the 2013, 34 hour restart rules. Until Congress effectively prohibits FMCSA from enacting such a provision or lifts the suspension, companies will have to keep their ears to the ground on the regulations, ensure that any electronic devices used to track hours-of-service remain correctly calibrated to prevent false notices of violations, and hope Congress does the right thing and not allow FMCSA to force drivers to work less and not further strap with red tape an industry already facing driver shortages and saddled with regulations.
This article was written by Andrew Laquet associate attorney at Roberts Perryman PC. Andrew’s focuses his practice on transportation, insurance defense and complex litigation.
Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com