You have to give the Federal Motor Carrier Safety Administration credit — they're good at defying expectations. The courts overturned their 2003 hours-of-service rules on the grounds that FMCSA hadn't sufficiently considered the impact on the health of drivers. Driver health was one on the items Congress required FMSCA to study when it ordered the agency to revise the 60-year-old work rules. Groups opposed to the 2003 HOS rulemaking convinced the courts that the agency had failed to meet that requirement.
When Congress refused to bail out FMCSA by adopting the 2003 rules as law, thereby sidestepping the courts, everyone expected the agency to bite the bullet and propose new HOS rules with some significant changes, specifically shorter allowable daily driving limits and a longer “reset” period before drivers could restart counting a week's work hours.
So what did FMCSA do? As we were going to press with this issue, they proposed new rules that actually increased allowable hours for some short-haul drivers and offered a minor change to the so-called split sleeper berth exemption to continuous off-duty periods.
The new short-haul rules, which only apply to non-CDL drivers who operate within a 150-mi. radius, allow those drivers to extend workdays from 14-hours to 16-hours twice in a five-day workweek. It also exempts them from log keeping requirements.
The sleeper-berth changes now require rest time be split into one consecutive 8-hour block and one 2-hour period to satisfy the daily 10-hour off-duty requirement. The eight hours are to be spent in the bunk, and the other two can be used for other personal off-duty activities such as eating. Previously drivers using the sleeper exemption were free to divide their 10 off-duty hours into two periods as they saw fit.
All the other rules remain the same as those vacated by the courts. Instead of changing them, the agency attached some 400-pages of research it says back its claims that the rules will have no adverse impact on driver health.
That may be a valid point, but the groups that objected to the 2003 rules are sure to cry foul, especially since there was no reduction in the 11-hour daily driving limit or extension of the weekly 34-hour reset provision. And that means the whole HOS issue is quite likely to end up back in the courts.
In announcing the “new” new regulation, FMCSA Administrator Annette Sandberg said she “hopes it ends the uncertainty over hours-of-service.” That's a worthy hope, but realistically HOS reform is probably just as far from a being settled issue as it was when the courts invalidated the original 2003 rules.
My guess is that by the time you read this, HOS will again be an issue for the courts. HOS is certainly a complex issue, and FMCSA deserves credit for its 2003 plan since it seemed to have struck a good balance between safety and productivity. But the agency's subsequent responses to the court challenge and ruling have been far less praiseworthy. Instead of settling the issue, they have once again delivered more uncertainty over the basic work rules of the industry.