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New US Hours of Service Regulations are Mostly Upheld by Federal Appeals Court

On August 2 the D.C. Circuit Court of Appeals upheld most, but not all, of the new Hours of Service Regulations put into place July 1, 2013.

The court upheld the 34 hour restart provision and the 30 minute rest break mandate. The court vacated the 30 minute rest break for local drivers as defined under 49 CFR 395.1(e). Short haul drivers under this provision operate within a 100 mile radius of their normal work reporting location – 150 miles for non-CDL drivers. This change will become official once the FMCSA publishes the exemption in the Federal Register.

The court agreed with one of the American Trucking Association’s arguments that short haul drivers should not be compelled to comply with the 30 minute break provision – and the court vacated only that portion of the new regulation. The court denied all other arguments by the ATA.

The court also denied Public Citizen’s argument to reduce allowable driving time. The court found no merit in Public Citizen’s request to eliminate the 34 hour restart provision and reduce allowed driving time from 11 hours to 10 hours. The court rejected all of Public Citizen’s claims.

The court identified several flaws in the FMCSA’s justification for the new regulations. However, it refused to “second guess” the Agency’s interpretation of available evidence. It took a “highly deferential” approach to the Agency’s expertise. This means that the court assumed the Agency’s decision is presumed valid and rational. It presumes that highly technical points are best left to the Agency. The court indicated that the Agency implemented unwise policy decisions, but did not find that the Agency acted illegally or irrationally. Government lawyers argued to the court that the trucking industry’s objections to HOS rule changes were nothing more than “simple scientific disputes” and that the court should defer to the government’s judgment in solving such disputes.

The court was clearly fatigued by continual legal challenges to the Hours of Service regulation since 1999, something that Judge Janice Rogers Brown called “protracted rulemaking”.

Judge Brown stated “With one small exception, our decision today brings to an end much of the permanent warfare surrounding the HOS rules. FMCSA won the day not on the strengths of its rulemaking prowess, but through an artless war of attrition, the controversies of this round are ended.”

“While we are disappointed the Court chose to give unlimited deference to the Federal Motor Carrier Safety Administration’s agenda-driving rulemaking, the striking down of the short-haul break provision is an important victory. The court recognized on numerous occasions the shortcomings of the agency’s deliberations, so despite upholding most of the rule, we hope this opinion will serve as a warning to FMCSA not to rely on similarly unsubstantiated rulemakings in the future” said Dave Osiecki, ATA Senior Vice President.

What do you do now? Some of us have worked hard to analyze financial and safety data, creating positions, interviewing drivers, and drafting arguments. We are clearly disappointed, but we learned during this process. We know capacity will shrink, shipping schedules will become less flexible, and driver’s ability to earn will diminish.

Fleet operators are looking at rates, costs, and making adjustments to rates and operations. Now that we know we have an Hours of Service regulation we must live with – it might be a good time to reconsider all of your rates, terms, and conditions. We drafted a formal response in the Federal Register that includes a financial analysis. If you’d like a copy of this document, contact us.

Do You Really Need to Log That Time?

When do truck and bus drivers need to log their time?  In the US, drivers who are required to hold a CDL to operate a vehicle are required to log their time as described in Title 49 of the Code of Federal Regulations, part 395.  If a CDL is required to operate a vehicle, you are required to log your time.  There are several exceptions to this broad rule, which we will examine.

If the truck is not a Commercial Motor Vehicle (CMV), drivers need not log their time. Typically, trucks that are 10,000 lbs. GVW or under do not require a driver to hold a Commercial Drivers License (CDL).  If the driver does not hold a CDL – that driver does not need to log their time.  There are instances where a light duty vehicle driver is required to log his or her time, depending on the use of that vehicle.

Do you haul hazardous materials?  If you have a “required quantity” of any hazardous material, you must placard that vehicle.  A placarded vehicle by definition is a CMV. Therefore, any time spent operating a placarded CMV must be logged – regardless of its size or weight.

Do you transport passengers?  If you transport more than 15 passengers (not for compensation) or more than 8 passengers (for compensation), that vehicle is a CMV – and the operation of that vehicle must be logged.

What about CDL drivers who are performing duties other than driving a CMV – including operating small vehicles?  Any compensated work for anyone must be logged as “On Duty” by a commercial driver.  Any work for a motor carrier, compensated or not, must be logged as “On Duty” by the driver.

What about local drivers?  The federal rules state that a driver who operates within a 100 air mile radius of their domicile is a “short haul” driver.  However, an examination of 395.1 shows that the driver is exempted only from 395.8 – filling out a log book.  Short haul drivers are not exempted from the Hours of Service.

Many of our clients make local pickup and deliveries, and some of these operations fit the federal definition of a “short haul driver”.  However, these short haul drivers must meet more stringent requirements if they choose to use that Short Haul exemption – and not fill out a log book.

Why is there a Short Haul exemption?  It relieves the driver of making many log book entries within a short amount of time.  This is a big burden for the driver, and the 15 minute increments of a paper log make this virtually impossible.  With electronic logs, local driving is no more difficult to log than any other type of driving.  Therefore most carriers who use electronic logs do NOT use the “Short Haul” exemption.

However, every shortcut comes with a price.  Short Haul drivers must work no more than 12 hour shifts – 10 hour shifts for bus drivers.  The carrier must keep accurate and detailed time records for each driver who is using this Short Haul Exemption proving that drivers are not working more than 12 hours in a shift, and have 8 hours off between shifts.

If you use electronic logs, invoking the Short Haul exemption only creates more paperwork and reduces your drivers productivity.  We recommend that you let the computer do the work – and let drivers create their electronic logs.

If you are still on paper logs and choose to use the Short Haul exemption, be certain that you meet all the requirements of 395.1(e).

Some states have Hours of Service requirements that are different from Federal requirements.  These may only be used if you are operating solely intrastate, and none of the freight carried by the truck has crossed a state line.  For example, mail haulers and rail car unloading operations both deal with product that may have originated out of state.  Both must meet Federal Hours of Service regulations.