Hours of Service Regulations

Originally published here.

There is no denying the relationship between commercial motor vehicle operators who work long daily and weekly hours and chronic fatigue, a high risk of crashes and serious, chronic driver-health problems. In order to address the deleterious effect of fatigued driving on the health, safety and welfare of commercial motor vehicle operators and the general public alike, the Federal Motor Carrier Safety Administration (FMCSA) began revising and updating its hours-of-services rules approximately 14 years ago.

Generally speaking, the hours-of-service rules govern the number of hours that a commercial motor vehicle operator can drive and work in a given day and week. Recently, the FMCSA's new hours-of-service rules took effect, and the United States Court of Appeals for the District of Columbia issued an important ruling concerning challenges to the new rules. This article offers practitioners an overview of the evolution of the hours-of-service rules, legal challenges thereto and an explanation of the most recent regulations.

In 1999, Congress passed the Motor Carrier Safety Improvement Act, which created the FMCSA. The newly created agency was tasked with making the nation's roads safer and empowered to promulgate rules that would advance this goal. At the time that the FMCSA was created, the existing regulations governing trucking operations had been in effect since 1962 and were woefully outdated. The FMCSA's first rulemaking initiative proposed significant revisions to the antiquated regulations, including the hours-of-service rules.

In 2003, the FMCSA promulgated a final rule that substantially modified the hours-of-service regulations in a number of ways. First, the final rule increased the number of hours that a "property-carrying commercial motor vehicle operator," i.e, a truck driver, could drive in a day from 10 hours to 11 hours. Second, the final rule decreased the number of hours that a truck driver could be on-duty in a day from 15 hours to 14 hours. Third, the final rule increased the number of hours that a truck driver must be off-duty from eight hours to 10 hours. Finally, the 2003 rule created a new exception to a truck driver's weekly hour limit that was referred to as the "34-hour restart." In essence, the 34-hour restart allowed drivers to reset their 70-hour weekly limit to 0 by taking 34 consecutive hours off-duty.

Trucking industry associations as well as safety-oriented public interest groups opposed the 2003 final rule, albeit for much different reasons. One such safety group, Public Citizen, filed a legal challenge to the 2003 final rule and argued that it was arbitrary and capricious because the FMCSA failed to comply with its statutory requirement to ensure that the operation of a commercial motor vehicle does not have a detrimental effect on the physical condition of such drivers. In Public Citizen v. FMCSA, 374 F.3d 1209 (D.C. Cir. 2004), the United States Court of Appeals for the District of Columbia agreed with Public Citizen's argument and vacated the final rule in its entirety. In response to the court's ruling, Congress enacted the 2003 final rule as law until the FMCSA could formulate a new rule.

The FMCSA promulgated a new final rule in 2005 that was almost identical to the successfully challenged 2003 final rule. Again, trucking industry associations and safety-oriented public interest groups challenged the final rule and argued that it was arbitrary and capricious. In Owner-Operator Indep. Drivers Ass'n v. FMCSA, 494 F.3d 188 (D.C. Cir. 2007), the D.C. Circuit found two technical shortcomings in the rule and vacated it on those narrow grounds.

The FMCSA went back to the drawing board following the court's ruling, in 2008. Instead of creating an entirely new rule, the agency reissued the 2005 final rule with supplemental explanations and analysis that were designed to address the court's criticisms of the 2005 rule. Once again, trucking industry associations and safety-oriented public interest groups were dissatisfied with the 2008 final rule and sought judicial intervention.

Following the 2008 final rule challenge, the FMCSA promulgated a new final rule in 2011. The 2011 final rule was substantially similar to the agency's prior final rules. However, the most recent version also included several new safety provisions: 1) the 30-minute off-duty break; 2) the once-per-week provision; and 3) the two-night requirement.

Concerning the first new provision, the 2011 final rule prohibits property-carrying commercial motor vehicle operators from driving more than eight hours unless they have had an off-duty break of at least 30 minutes. The second new provision, the once-per-week restriction, was created to prevent drivers from abusing the 34-hour restart. Under the once-per-week restriction, drivers are able to invoke the 34-hour restart only once every 168 hours or 7 days. Finally, the two-night requirement was designed to ensure that drivers get two nights of rest when they use the 34-hour restart.?? In furtherance of this objective, the 2011 final rule mandates that the restart include two blocks of time from 1:00 a.m. to 5:00 a.m. The trucking industry and safety groups went back to court to challenge the 2011 final rule.

Despite the court challenge, the FMCSA's 2011 final rule took full effect on July 1. The highlights of the new hours-of-service final rule are as follows:

A 70-hour maximum average work week for truck drivers, which is a decrease from the previous maximum of 82 hours;

Truck drivers who reach the maximum 70 hours of driving within a week are permitted to resume driving after resting for 34 consecutive hours, as long as the 34-hour rest period includes two 1:00 a.m. to 5:00 a.m. periods; and

Truck drivers are required to take a 30-minute break during their first 8 hours of a shift.

The new final rule did not change the 11-hour daily driving limit or the 14-hour work day. Based upon scientific research, the FMCSA estimates that the new hours-of-service rules will save 19 lives annually. In addition, the agency estimates that the new rules will prevent approximately 1,400 crashes and 560 injuries each year. The FMSCA also believes that the new rules will have a positive economic impact on the trucking industry. The FMSCA estimates that the industry will save $280 million from fewer truck crashes and $470 million from improved driver health.

Companies and drivers that violate the new rules will be faced with penalties. Trucking companies and passenger carriers that allow drivers to exceed the new rules by more than three hours face fines up to $11,000 per offense. In addition, drivers themselves face civil penalties up to $2,750 per offense. These financial penalties pale in comparison to the extreme hazard that fatigued commercial motor vehicle operators pose to the health, safety and welfare of the general public and themselves.

On the heels of the FMCSA's announcement that the 2011 final rule went into full effect on July 1, 2013, the United States Court of Appeals for the District of Columbia issued a decision on the legal challenges to the rule.  At issue in the case were the 34-hour restart, once-per-week restriction, two-night requirement, 11-hour driving allowance and 30-minute break. This time, the court sided with the FMCSA and upheld the hours-of-services rules, with one minor exception. Specifically, the court ruled in favor of the trucking industry and vacated the 30-minute break rule as it applies to short-haul drivers who operate within a 100 air-mile radius or drivers who operate property-carrying vehicles that do not require a commercial driver's license within a 150 air-mile radius.

Most commentators agree that the court's most recent ruling will put an end to the 10-year legal battle over the hours-of-service rules. Nevertheless, the controversy over these rules will live on, as the profit-driven trucking industry will continue to argue that the rules go too far, and safety-oriented groups will continue to argue that the rules do not go far enough. One hopes that the new rules will serve their purpose to protect the health, safety and welfare of truck drivers and the general public, to reduce truck accident injuries and innocent lives will be saved.