HAI reports that a Final Rule governing the amount of time (“hours of service”) a driver may operate a commercial motor vehicle was published today, November 19, in the Federal Register. It keeps in place two controversial provisions and is expected to be immediately challenged in court, and may be the subject of intervention by the 111th Congress.

The issue of driver hours of service is highly contentious, and how it is resolved will have a significant cost and productivity impact on operators of commercial truck fleets. Safety advocacy groups and unions have supported greater limitations on driving time, while industry has generally supported more liberal standards.

Two primary issues in contention have been the question of how much time a driver may operate a vehicle during a daily “tour of duty”, and whether, and to what extent, a driver may “restart the clock” for purposes of calculating permissible driving time over the course of several days.
 
In 2003 the rules were revised to permit 11 hours of driving time within a 14-hour period from the time a driver begins work, after the driver has been off-duty for a period of at least 10 consecutive hours. Prior to the change, drivers could in effect “extend” their workday by taking breaks during the day. Under the 2003 rules (which were re-issued in a 2005 rulemaking), a driver may not drive after the 14th hour from clocking in, until he or she has had at least 10 consecutive hours off-duty. It does not matter how long the driver has actually operated the vehicle or how much off-duty time may have been taken during the course of the 14-hour period.

Another change in the 2003/2005 rules was to permit a driver to “restart” the weekly “clock” at any time after he or she has obtained at least 34 hours of consecutive off-duty time. The “weekly clock” requirement limits a driver’s on-duty time to 60 hours in any seven consecutive days, or, if the fleet operates seven days a week, 70 hours in any eight consecutive days. An effect of the 34-hour restart provision is to permit an extra 14-hour shift every 7 days. It also permits a “short week’ to be “restarted”. For example, a driver could work two consecutive days of 14-hour shifts, and be off the following day. When off-duty for at least 34 consecutive hours, the “weekly” 7 or 8-day period may be “restarted.”
 
Since 2003, the 11-hour driving rule and the 34-hour restart provision have been the subject of litigation brought by safety advocacy groups and the Teamsters who claim these provisions undermine safety. In July 2007 the U.S. Circuit Court of Appeals remanded the rule to the Federal Motor Carrier Safety Administration (FMCSA) to remedy procedural deficiencies.

In December 2007 FMCSA issued an Interim Final Rule retaining the 11-hour driving rule and the 34-hour restart. The Final Rule published in today’s Federal Register also retains these provisions.

However, House Speaker Nancy Pelosi has identified the Final Rule as one of eleven “ghoulish midnight regulations” planned by the out-going Bush Administration, suggesting there may be a congressional effort to delay or modify. Safety advocacy groups and the Teamsters have indicated they will again challenge the rules in court.

This is an issue that affects helicopter companies operating fuel support trucks in the course of wildland firefighting. HAI will continue to monitor this issue and provide updates to industry as developments occur.