In light of increased oil and gas drilling, the Federal Motor Carrier Safety Administration ("FMCSA") has proposed revisiting hours-of-service guidance for oilfield carriers. The FMCSA has traditionally granted two HOS exceptions to oilfield haulers.
One exception grants oilfield haulers a 24-hour restart after 70 hours of work in eight days. This applies to drivers who exclusively haul oil and gas equipment, such as pipe, as well as drivers who serve field operations. The second exception provides that specially trained drivers of vehicles specific to oil wells do not have to include waiting time in their on-duty time.
The FMCSA intends to clarify these exceptions. Specifically, the 24-hour restart would apply to carriers that provide direct support to oil and gas well sites, including hauling water used in the fracking process, and hauling waste away from the site. The waiting time exception would apply only to drivers of equipment that is specially built for well service, and who have been trained in the operation of that equipment.
Drivers who haul supplies, equipment and materials such as sand and water would not be eligible for the waiting time exception, even if their trucks have been somewhat modified or if they have extra training.
The FMCSA will release the proposed guidance one June 5, 2012 in the Federal Register and comments will be due in August.
Recently, the Federal Motor Carrier Safety Administration ("FMCSA") released its 2012-2016 strategic plan, which lays out the agency's safety-focused initiatives over the next five years. The strategic plan is built around a three-pronged approach to truck and bus safety: raise the barrier to entry to the industry; enforce high safety standards; and eliminate high-risk carriers and drivers.
Among other things, the agency plans to development a smartphone application called the "SaferBus App" in order to assist consumers in selecting a particular carrier. Additionally, the FMCSA hopes to increase accessibility to its data management system. The FMCSA plans to complete rulemaking revisions to the Safety Fitness Procedures, in accordance with the CSA. Through this rulemaking FMCSA would establish safety fitness determinations based on safety data from crashes, inspections, and violation history rather than the old compliance review. The intention is to permit the FMCSA to assess the safety performance of a greater segment of the motor carrier industry with the hope of reducing large truck and bus crashes, injuries, and fatalities. The FMCSA will also work on rulemaking revisions to the Electronic On-Board Recorders for Hours of Service Drivers to require motor carriers to install and operate Electronic On-Board Recorders (EOBRs).
Further, the FMCSA will create a single comprehensive safety ranking system that covers all regulated carriers (ie, passenger, HAZMAT property, and HHG carriers, as well as shippers, including intermodal freight, brokers, drivers, and cargo tank manufacturers or repair facilities.) The Agency hopes to expand CSA and the number of carriers with SMS BASIC scores.
The FMCSA's strategic plan is available at http://www.fmcsa.dot.gov/about/what-we-do/Strategic-Plan/Strategic-Plan.aspx.
The House introduced the highway bill, which may force the Federal Motor Carrier Safety Administration ("FMCSA") to rewrite the 34-hour restart provision of the rule, which limits the restart to once a week with two sleep periods from 1 a.m. to 5 a.m.
The House bill would require the FMCSA to conduct a field study of the provision. The study would have to be completed by March 31, 2013, three months before the rule is scheduled to go into effect. If the study supports the rule, then the provision would go into effect on schedule.
The bill also includes language that would allow states to increase the truck weight limit on Interstate highways from 80,000 pounds to 97,000 pounds, provided the truck has a sixth axle.
The Department of Transportation ("DOT") would be able to establish fees for these trucks, based on the increased cost of wear and tear on the road. The fees would go into the Highway Trust Fund.
Another provision would permit states already allowing longer combination vehicles to add more routes for trucks in this category..
A third provision would allow states to issue special permits for gross vehicle weight up to 126,000 pounds on Interstate segments of 25 miles or less.
The Federal Motor Carrier Safety Administration ("FMCSA") released a Supplemental Notice of Proposed Rulemaking in order to address concerns regarding its electronic onboard recorder ("EOBR") rule. By way of background, the initial Notice of Proposed Rulemaking ("NPRM") required frequent hours of service violators to use EOBRs starting July 2012. After making changes to the proposal in light of industry suggestions, the second proposal which proposes to expand the initial NPRM to include practically all carriers, and is intended to address concerns about the technical standards in the NPRM. However, during the revisions set forth by the FMCSA, the 7th Circuit threw out the EOBR rule, as it did not address the issue of preventing harassment through the use of EOBRs as the FMCSA was statutorily requried to do. As a result, the FMCSA went back to the drawing board and now has decided to hold public listening sessions on the harassment issue and on the technical questions before proposing a revised rule. The FMCSA will release a schedule for the listening sessions in the near future.
On December 27, 2011, the Federal Motor Carrier Safety Administration published the final rule regarding the revised hours of service ("HOS") regulations. FMCSA's new HOS final rule reduces by 12 hours the maximum number of hours a truck driver can work within a week. Under the old rule, truck drivers could work on average up to 82 hours within a seven-day period. The new HOS final rule limits a driver's work week to 70 hours.
In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window.
The final rule retains the current 11-hour daily driving limit. FMCSA will continue to conduct data analysis and research to further examine any risks associated with the 11 hours of driving time.
The rule requires truck drivers who maximize their weekly work hours to take at least two nights' rest when their 24-hour body clock demands sleep the most - from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule's "34-hour restart" provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty. The final rule allows drivers to use the restart provision only once during a seven-day period.
Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Trucking companies that allow drivers to exceed the 11-hour driving limit by 3 or more hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.
The effective date of the final rule is February 27, 2011. Commercial truck drivers and companies must comply with the HOS final rule by July 1, 2013. The rule is available on FMCSA's Web site at http://www.fmcsa.dot.gov/HOSFinalRule.
Employers waiting for the California Supreme Court to clarify California’s meal and rest break rules in the case of Brinker Restaurant Corp. v. Superior Court, No. S166350 may have to wait a little longer. The case is expected to resolve the contentious question of whether California employers must ensure that employees take thirty-minute off-duty meal breaks or just make them available to employees. Oral argument was held November 8, 2011. Under the Supreme Court’s rules, a decision was expected by mid-February, 2012, 90 days after the argument. On December 2, 2011, however, the Supreme Court agreed to accept additional briefing addressing whether a ruling on the so-called “rolling 5” issue will apply retroactively or only to future violations. As a result of this additional briefing, it is possible, although uncertain at this time, that the Supreme Court could issue a decision as late as April, 2012, 90 days following the completion of this additional briefing.
The “rolling 5” issue addresses the time meal breaks must be provided during a workday. California law generally requires that employers provide employees a 30-minute off-duty meal break whenever they work five hours or more, and another 30-minute meal break where work shifts exceed 10 hours. The “rolling 5” issue in Brinker is whether employees are entitled to one break during work shifts up to 10 hours long and a second break for shifts over 10 hours (the defendant’s position), or whether employees cannot work for more than five hours without a break (the “rolling 5” position advocated by the plaintiffs). The Brinker plaintiffs contend that an employer must schedule meal breaks near the middle of shifts to avoid work periods in excess of five hours or pay the hour premium if an employee works more than 5 hours without a break.
The Brinker plaintiffs’ position on the “rolling 5” issue would have a potentially significant impact on transportation providers operating in California. Under the “rolling 5” theory, if a driver takes a meal break early in the shift, the driver would be entitled to another one five hours later and could conceivably be entitled to three in a 12-hour shift. Incorporating these breaks into a driver’s day would be problematic and would, in our view, adversely impact the carrier’s operations and potentially conflict with the federal Hours of Service Rules and the Federal Aviation Administration Authorization Act (the “FAAAA”). Indeed, as many of the Firm’s clients know, a federal district court in California recently ruled that California’s meal and rest break rules are preempted by the FAAAA as applied to motor carriers. See http://transportationblog.scopelitis.com/blog/transportation-blog/federal-district-court-finds-faaaa-preempts-california-meal-and-rest-break-rules.
We are following the Brinker case closely and will keep you apprised of developments. In the meantime, while a ruling in Brinker could be delayed by this additional briefing, employers operating in California should not wait to adopt written policies advising employees of their meal and rest break rights under California law. Employers should also post a copy of the applicable California Industrial Welfare Commission Wage Order (for transportation providers, IWC Wage Order No. 9) in the same place they post other standard employment notices. Copies of Wage Order No. 9 and other wage orders can be obtained from the Firm. Questions regarding Brinker or California’s meal and rest break rules in general should be directed to Jim Hanson.
A joint motion filed on 11/28/2011 in the U.S. Court of Appeals for the District of Columbia stated that a new Hours of Service (“HOS”) rule will likely be issued before the end of the year. The promulgation of the final rule has been delayed for over two years. The rule will amend the limits on the amount of time commercial vehicle drivers can spend behind the wheel. The existing HOS rules issued by the FMSCA were originally adopted in 2005 and have been the subject of multiple lawsuits. Currently, the rule for property-carrying Commercial Motor Vehicle drivers (under 49 CFR Part 395) places a 11 hour day driving limit and a 60/70 hour driving limit over a period of 7/8 consecutive days. Drivers may restart the 7/8 day consecutive period after taking 34 or more hours off duty. The final rule is likely to substantially change these requirements.
On October 19, 2011, the U.S. District Court for the Southern District of California issued an order granting Penske Logistics, LLC (“Penske”) summary judgment on claims that Penske had violated California’s meal and rest break laws, which mandate that employers provide a 30-minute meal period to employees for every 5 hours worked and a 10-minute rest period for every 4 hours worked. Plaintiffs, former Penske drivers and installers, brought a class action against Penske seeking, among other relief, to recover wages for missed meal and rest breaks they claim Penske prevented them from taking.
Jim Hanson of the firm argued on behalf of Penske that the Federal Aviation Administration Authorization Act preempted the application of California’s meal and rest break laws to Penske’s operations. When Congress enacted the FAAA Act in 1994, Congress found that State regulation of intrastate trucking imposes an unreasonable burden on interstate commerce and thus prohibited the States from enacting or enforcing laws “related to a price, route or service of” any property-carrying motor carriers. Penske demonstrated that complying with the strictures of California’s meal and rest break rules would have impermissibly forced its drivers to “take shorter or fewer routes” in order to ensure that the drivers had “adequate locations” to stop and take the mandated breaks. Penske also demonstrated that the impact of ensuring that every employee took the proscribed breaks at the time required by the statutes, “would require one or two less deliveries per day per driver.”
The Court agreed with Penske’s analysis and found that the FAAA Act preempted California’s meal and rest break laws. Specifically, the Court found that the “length and timing of meal and rest breaks . . . directly and significantly relate[] to . . . the frequency and scheduling of transportation” and that complying with California’s laws would limit the number of deliveries Penske drivers could make and the routes they could take to make those deliveries.
The Court rejected Plaintiffs’ argument that, because they were only seeking wages as a result of missed breaks, the meal and rest break laws were tantamount to wage laws that should not be preempted. In doing so, the Court noted that it is not the impact of the monetary award on Penske’s operations that preempts the statutes, but “[r]ather, the impact is derived from the imposition of substantive restrictions upon the breaks taken by [Penske’s] drivers and drivers’ helpers, which binds [Penske] to a set of routes, services, schedules, origins, and destinations that it would otherwise not be bound to.” This, the Court found, was the “kind of interference Congress sought to avoid with the preemption clause that specifically prohibits state regulation related to prices, routes, and service.”
Penske’s victory, which is the first of its kind declaring the California meal and rest break rules preempted as applied to motor carriers, should afford truckers operating in California critically important relief. While this unprecedented decision will almost certainly be appealed, we expect the Penske decision to be cited in courts throughout California as persuasive authority in support of the trucking industry’s position on this important issue. The case is Dilts, et al. v. Penske Logistics, LLC, et al., Case No. 08-CV-318 JLS.
In a letter yesterday, Department of Transportation ("DOT") Secretary Ray LaHood defended the work of the Federal Motor Carrier Safety Administration in drafting the revised Hours of Service regulation and urged senators, particularly Sen. Kelly Ayotte, to not amend the revised rule. Ayotte's amendment would cut off funds to enforce or implement the new rule.
He told Ayotte that the amendment would prevent the agency from applying comprehensive and up-to-date data and analysis to the issue of driver fatigue and hours of service. Additionally, he said that the new rule might grant some sectors of the trucking industry new operational flexibility, but did not explain what he meant by that.
On Sunday, the amendment was in line to be considered as part of the 2012 transportation appropriations bill. As of that night the Senate had not yet taken it up and it was not clear when, or even if, it would be taken up. There are numerous amendments awaiting action, and this one is likely to face opposition from safety groups that are committed to changing the hours of service rule.
The rule is scheduled to be published Oct. 28, but it appears unlikely that the agency will meet that deadline. With just seven days to go, it still must be vetted by the White House Office of Management and Budget ("OMB"). As Sunday night, it still had not been sent over to OMB from the DOT.
The Senate is considering truck safety legislation that would buttress a number of regulatory reforms under way at the Department of Transportation, such as an electronic onboard recorder ("EOBR") mandate and mandatory 65-mph speed limiters, and give the agency more authority in a number of areas.
The draft safety title of pending legislation to reauthorize the federal highway program lays out a broad agenda for the Federal Motor Carrier Safety Administration ("FMCSA"). Many of the dozens of provisions already are in development, but the draft does give the agency additional authority in a number of areas.
It would strengthen FMCSA's ability to revoke the registration of a carrier, forwarder or broker that has reincarnated itself under a different identity after having been sanctioned for safety violations. Carriers and managers found to have repeatedly avoid compliance requirements also would be subject to sanctions.
It would toughen barriers to entry by requiring potential carriers to submit a comprehensive safety management plan and pass a written exam covering safety regulations. And it would require the agency to conduct a safety review of a new entrant within a year of registration.
The draft also calls for a study of how detention time affects hours of service violations and driver fatigue. The study would be conducted by the Motor Carrier Safety Advisory Committee, the enforcement community and labor and safety advocacy groups to which the agency turns for feedback and ideas on industry issues., a panel of officials from the industry.
The US Court of Appeals for the Seventh Circuit tossed out the Federal Motor Carrier Safety Administration’s (“FMCSA”) electronic onboard recorder (“EOBR”) rule because it does not do enough to prevent the harassment of drivers or provide details on how it will prevent such harassment by motor carriers using the devices. Following challenges by industry groups, the rule was vacated and sent back to the FMCSA for further analysis and review.
This proposed EOBR rule is scheduled to take effect in June 2012 and will only apply to repeat Hours of Service rules violators – requiring them to install EOBRs. A broader EOBR rule covering virtually all carriers is coming, but still several years away.
Update to Feb. 16th post:
On May 6th, the Federal Motor Carrier Safety Administration ("FMCSA") reopened the Hours Of Service (“HOS”) comment period, which previously closed on March 4, 2011. While it did not say how long this new comment period would stay open, the FMCSA did say that this action was meant to allow for the review of four newly presented fatigue studies. It looks like industry groups, including the American Trucking Association, are skeptical about these new studies – viewing them as likely an 11th hour ploy generated by the FMCSA to prop up the proposed changes.
Two bills winding their way through the Oregon Legislature cover trucking issues that address emissions rules and indemnification.
The House voted 48-11 to advance an amended bill to the Senate that addresses emissions reduction. Intended to crack down on unnecessary idling of trucks, the bill would prohibit commercial vehicles from idling for more than five minutes each hour on property open to the public.
Examples of circumstances that would warrant additional idling are to operate defrosting, heating or air conditioners – or installing equipment necessary to comply with manufacturers’ operating requirements, specifications and warranties, or with federal, state or local safety regulations.
An exception would also be made for air conditioning or heating during a rest or sleep period when the outside temperature is below 50 degrees or above 75 degrees.
The exception would not apply if the truck is equipped with an auxiliary power unit or other idle-reduction technology. It would also be unacceptable to park near a grade school and idle, regardless of temperature.
Another exception to the five-minute rule would be made for idling up to 30 minutes while a truck is waiting to load or unload, as well as actually loading or unloading.
Removed from the bill was a provision to require Oregon’s Environmental Quality Commission to adopt rules and establish requirements that trucks weighing in excess of 26,000 pounds that pull box-type trailers must take steps to reduce greenhouse gas emissions.
Separate rules would have been put in place for local-haul trucks and trailers. The affected haulers are classified as operating within 100 miles of home base. Day-cab trucks would have been required to only use tires with low rolling resistance.
The bill – HB2081 – is awaiting consideration in the Senate Business, Transportation and Economic Development Committee.
Another bill on the move would make unenforceable any motor carrier contracts that provide for shippers to be indemnified for losses caused by their own negligence.
Affected contracts would be defined as any written agreement for the transportation of property for compensation or hire, entry on property to load, unload or transport property, or any service incidental to such activity, including the packing or storage of property.
The Federal Motor Carrier Safety Administration proposed its plan for a three-year pilot program in which Mexican and U.S. carriers can provides long-distance services between each country.
The pilot sets up a vetting and enforcement program to ensure the safety of Mexican trucks, with the goal of evaluating their safety performance, based on inspections at the roadside, ports of entry and weigh stations, and on traffic enforcement. Hazardous materials and passenger carriers will not be included in the program.
The program is the result of an agreement between President Obama and President Calderón of Mexico to resolve the long-standing dispute over cross-border trucking. FMCSA will publish the details of the program in the Federal Register on Thursday and will take comments for 30 days.
Once the program is in place, Mexico will suspend the tariffs it levied when the Congress killed the earlier version of the pilot. In 2009 Mexico imposed import tariffs on about 89 U.S. agricultural and industrial products, and in 2010 it revised and expanded the list to 99 products.
In general, the program will set up a three-stage process for Mexican carriers that wish to participate. FMCSA said it does not know how many Mexican carriers will join. The last program attracted 775 applications, but only 29 of those carriers completed the paperwork and were vetted.
The Process
The process will start with the Mexican carrier filling out a 28-page application covering details of its operations, including affiliations, insurance, safety program and compliance with U.S. laws.
The application will be followed by a pre-authorization safety audit, in which FMCSA reviews the carrier's safety management system and inspects the specific trucks that will cross the border.
The safety management system would have to include such elements as a drug and alcohol testing program and a way to verify hours of service, insurance and driver qualifications, among numerous other requirements. Trucks that pass the inspection will get a CVSA decal.
If the carrier passes the audit, it would receive provisional operating authority and could commence cross-border operations. Provisional authority will last for 18 months. After that period, if the carrier has no pending enforcement or safety improvement actions and has cleared a compliance review, it is eligible for permanent authority in the pilot program.
Mexican carriers that have permanent authority in the pilot program would be eligible to convert that to standard permanent authority after the three-year pilot program is done.
For the first three months of the provisional authority stage, Mexican trucks and drivers will be inspected each time they enter the U.S. That period will be extended if the carrier does not get at least three inspections.
After three months and clearing the audit, the carrier will get the same inspection rate as the rest of the trucks now engaged in cross-border, commercial zone trucking. To be eligible for this status, the carrier must have an out-of-service rate at or below the U.S. average and its Safety Management System scores must be below the FMCSA threshold.
If instituted, the pilot program would run for three years from the first grant of provisional authority, unless FMCSA gathers enough data to make a decision about the program before that time. The agency said it could stop the program earlier if continuation is not consistent with the pilot's goals.
FMCSA will publish on its website and in the Federal Register comprehensive data on the Mexican carriers in the program, including their names, their audit performance, the trucks that have been cleared, the results of roadside inspections and the number of trips. The agency will track each carrier's data to gauge compliance.
The U.S. and Mexican departments of transportation will establish a monitoring group to supervise the administration of the program. In addition, FMCSA is establishing its own advisory committee, a subcommittee of the Motor Carrier Safety Advisory Committee, for suggestions. And the agency will make annual reports to Congress.
Two senators have restarted last year's effort to pass a bill that would mandate electronic onboard recorders ("EOBR") on most trucks.
Sens. Mark Pryor, D-Ark., and Lamar Alexander, R-Tenn., reintroduced the Commercial Driver Compliance Improvement Act, a bill that expired before consideration at the end of the congressional session.
The bill would give the Department of Transportation 18 months to come up with a final rule and an additional 18 months to put it into effect.
If it passes, the legislation would create a third track for the ongoing effort to establish EOBRs as an industry standard.
The first track is a Federal Motor Carrier Safety Administration rule that goes into effect June 1, 2012. It says that carriers that violate hours of service rules 10 percent of the time, based on single compliance review, must use electronic onboard recorders to track driver hours. This will affect about 5,700 interstate carriers.
The second track is an FMCSA proposal issued in January that would expand the 2012 rule to cover all of the approximately 500,000 carriers now required to maintain driver logs. It will not apply to short-haul interstate carriers that use timecards to document hours of service.
The most EOBR proposal also covers requirements for documentation to prove compliance with the hours of service rule, along with requiring carriers to monitor driver compliance. FMCSA will be accepting comments on this proposal until May 23. The Pryor-Alexander legislation targets the same group of carriers as those targeted in second tract.
According to FMCSA Administrator Anne Ferro, Mexican trucks will temporarily be equipped with electronic recorders. Ferro states that this is the only way the FMCSA can ensure that the trucks are monitored.
Ferro, who spoke to trucking executives gathered during the annual meeting of the Truckload Carriers Association, acknowledged that the subject has been a flashpoint among carriers who do not support the idea of the U.S. spending taxpayer money on equipment for Mexican trucks.
She explained that under the North American Free Trade Agreement ("NAFTA"), the U.S. cannot require Mexican carriers to do anything that U.S. carriers are not required to do, but the agency still must provide a way to monitor those carriers for compliance with both the hours of service rules and the cabotage rules that restrict freight hauling between points in the U.S.
That program cost about $250,000 and the budget for the EOBR program is between $500,000 and $700,000, she said.
FMCSA's decision to install the electronic monitors is in light of the agreement to reopen the border to long-distance trucking is key to getting Mexico withdraw the more than $1 billion in tariffs it has levied on U.S. producers in retaliation for shutting down the prior program.
Ferro said the agency will publish its proposal for the border opening in a matter of weeks. At that point the public will have a chance to comment, before the deal is made final.
Border Program Concept
The concept for the border opening envisions a reciprocal, phased-in program, in which Mexico initially will reduces its tariffs by half. The rest of the tariffs would be suspended when the first Mexican carrier is granted operating authority.
The concept contains three elements: pre-operations vetting, monitoring of operations and communications to the public and Congress. Neither hazmat carriers nor buses would be permitted.
Pre-operations vetting would include an application process in which the number of participants in the first phase of the program would be limited to ensure oversight, subject to agreement with Mexico.
Included in the vetting would be are a pre-authority safety audit in which the agency would review the Mexican carrier's safety management program and the records of drivers who would be crossing the border, including their Mexican federal and state records. The drivers would be tested for English proficiency and knowledge of U.S. traffic laws. Mexican carriers' safety performance in Mexico would be reviewed, and the audit would include inspections of the trucks for U.S. safety and emissions compliance.
The "operations" component of the Border Program Concept provides for inspections - including inspections every time a truck crosses the border, for a period of time to be negotiated - and reviews to follow up on the initial screening review. A Mexican carrier would need to clear a Compliance Review and earn a Satisfactory Safety Rating in order to get full operating authority. Also, the FMCSA could conduct compliance reviews of Mexican drug and alcohol testing facilities.
The Federal Motor Carrier Safety Administration ("FMCSA") published a notice advising it will extend the HOS comment period to March 4 from February 28. The additional time is to allow for review of addition documentation recently submitted to the public document by the Agency.
FMCSA placed three additional documents in the public docket concerning hours of service ("HOS") for commercial motor vehicle drivers. This notice calls attention to the three supplemental documents that FMCSA has placed as electronic files in the docket:
~ FMCSA-2004-19608-6147 - Response to January 28, 2011, Request from American Trucking Associations, Inc. for Further Information on the Cumulative Fatigue Function Used in Docket Item Number FMCSA-2004-19608-4116 Titled "2010-2011 Hours of Service Rule Regulatory Impact Analysis for the Proposed Hours of Service (HOS) of Drivers Rule, December 20, 2010"
~ FMCSA-2004-19608-6147.1 - An Excel Spreadsheet presenting the information requested by ATA: coefficient estimates, an explanation of the coefficient names, and the formulas for the cumulative fatigue function used in Chapter 4 of the Regulatory Evaluation for the HOS NPRM, and displayed graphically in Exhibit 4-14 of that document.
~ FMCSA-2004-19608-6147.2 - An Excel Spreadsheet containing a column of data using the formula in the HOS Regulatory Evaluation to link the hours
worked in the previous week to fatigue the following week.
The Federal Motor Carrier Safety Administration (“FMCSA”) is proposing a new rule on the use of electronic onboard recorders (“EOBRs”). This new proposal will significantly expand upon the current rule set to take effect on June 4, 2012, which will require all carriers that violate hours of service rules 10 percent of the time to use EOBRs to track driver hours. The proposed rule would expand the EOBR mandate to all drivers who are currently required to complete paper logs, and would take effect three years after the FMCSA issues a final order. The proposed rule would also mandate carriers to implement driver hours of service oversight programs to ensure compliance, and would modify the current supporting documents requirement.
The FMCSA will enforce the current rule taking effect on June 4, 2012 from that date until the compliance date of the new rule. Motor carriers are being encouraged to submit comments to the proposed rule on or before April 1, 2011.
The FMCSA today issued a notice of proposed rulemaking regarding revisions to its hours of service regulations ("HOS") for drivers of commercial motor vehicles. Transportation Secretary LaHood noted that concern over commercial vehicle safety necessitates changes to HOS to ensure that "drivers are rested, alert and focused on safety while on the job."
The proposal, available
here, maintains the current 34-hour "restart" but requires the restart to include two consecutive off-duty periods from midnight to 6 a.m. The proposal also limits a driver's ability to use the restart to once in a seven-day period. Finally, the proposal requires drivers to complete all driving within a 14-hour workday, with all on-duty activities being completed in 13 hours to allow for a one hour break. Civil penalties for violating the proposed rule include (1) up to $2,750 per offense to drivers, and (2) up to $11,000 per offense to motor carriers permitting drivers to violate the rule.
The FMCSA seeks comment on whether drivers should be limited to 10 or 11 hours of daily driving time.
The proposed rule will be published in the Federal Register on December 29, 2010 with a 60-day notice period thereafter.
While speaking at a forum on driver health in Baltimore yesterday, Anne Ferro, Administrator of the Federal Motor Carrier Safety Administration, stated that the proposed revisions to the hours of service rule by the White House Office of Management and Budget should be completed by November 26, 2010. The public will have an opportunity to comment once the proposal is published before it becomes final. Per a court order, the rule is to be completed by next July.
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