New FMCSA Final Rule Amends HOS Regulations for Certain Commercial Motor Vehicle Drivers Effective October 1, 2005

Vacated 2003 HOS Final Rule Will Remain in Effect Until New Rule Takes Effect

In April 2003, the FMCSA had issued an HOS final rule that motor carriers and drivers were required to follow beginning January 4, 2004. However, in July 2004, these regulations were vacated by the Court of Appeals for the District of Columbia Circuit (Court), which ruled that the 2003 final rule was arbitrary and capricious because the FMCSA failed to consider the impact of the final rule on the health of drivers.

Despite the Court's ruling, the Surface Transportation Extension Act of 2004 subsequently provided that the 2003 regulations would remain in place until the effective date of a new final rule addressing the issues raised by the Court, or September 30, 2005, whichever came first. According to FMCSA, this newly issued final rule meets this requirement.

As a result, FMCSA states that carriers and drivers will not be allowed to operate under the new HOS final rule prior to the October 1, 2005 effective date.

Highlights of New HOS Final Rule That are Unchanged from 2003 Final Rule

The following are highlights of the FMCSA's newly issued 2005 final rule (information is also taken from its associated press release and set of Frequently Asked Questions) that are unchanged from the 2003 final rule:

Maximum driving time for property-carrying vehicles. Subject to a number of exemptions and/or exceptions, no motor carrier shall permit or require any driver used by it to drive a property-carrying CMV, nor shall any such driver drive a property-carrying CMV:

more than 11 cumulative hours following 10 consecutive hours off duty, or

for any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty, except when a property-carrying driver complies with certain exceptions and/or exemption provisions.

(These exceptions and/or exemptions include those for adverse driving conditions, CMVs with sleeper berths, short-haul drivers, drivers in Alaska, etc.)

Drivers must be off-duty for at least 10 hours between shifts. Like the 2003 final rule, the 2005 final rule provides that all drivers of property-carrying CMVs in interstate commerce must take at least 10 consecutive hours off duty before driving, with certain alternatives to these 10 consecutive hours when a sleeper berth is used. (See below or changes regarding sleeper berths.)

Drivers must have 34 consecutive hours off-duty before restarting the "clock" for a 60/70 hour - 7/8 day on-duty period. According to FMCSA, both the 2003 final rule and the 2005 final rule prohibit driving, regardless of the number of motor carriers using the driver's services, after a driver has been on duty 60 hours in any period of 7 consecutive days (if the employing CMV carrier does not operate CMVs every day of the week) or 70 hours in any period of 8 consecutive days (if the employing CMV carrier operates CMVs every day of the week). FMCSA states that drivers may restart the 60/70-hour "clock" by taking 34 consecutive hours off duty. (See below for change of policy regarding restarting this "clock.")

Passenger-carrying and intrastate commerce not subject to these provisions. The 2003 final rule and the 2005 final rule do not change any HOS requirements for motor carriers operating passenger-carrying vehicles and their drivers. Passenger-carrying commerce is still covered by the HOS rules in effect prior to 2003.

In addition, the FMCSA states that these HOS regulations do not apply to intrastate commerce as intrastate commercial motor vehicle regulations are under the jurisdiction of each State. The HOS regulations apply directly only to interstate commerce. (FMCSA explains however, that most states have adopted intrastate regulations which are identical or very similar to Federal HOS regulations.)

Highlights of New HOS Final Rule That are Changed from 2003 Final Rule

The FMCSA states that in the 2005 final rule, important changes were made in three areas (as compared to the 2003 final rule), as follows:

Use of sleeper berths. The 2005 final rule states that drivers who operate property-carrying CMVs equipped with sleeper berths (as defined herein), must now, before driving, accumulate either:

1. At least 10 consecutive hours off duty;

2. At least 10 consecutive hours of sleeper-berth time;

3. A combination of consecutive sleeper-berth and off-duty time amounting to at least 10 hours; or

4. The "equivalent of at least 10 consecutive hours off duty" (i.e., at least 8 hours but less than 10 consecutive hours in a sleeper berth and a separate period of at least 2 hours but less than 10 consecutive hours either in the sleeper berth or off duty, or any combination of both) if the driver does not comply with 1. - 3. above.

(The 2003 final rule had allowed drivers to accumulate the equivalent of 10 consecutive hours of off-duty time by taking two periods of rest in the sleeper berth, provided four conditions for these rest periods were met. However, the Court found that splitting off-duty time in a sleeper berth into periods of less than 10 hours was probably arbitrary and capricious.)

Policy regarding 34-hour restart period. As explained in greater detail above, both final rules prohibit driving after a driver has been on duty 60 hours in 7 consecutive days or 70 hours in 8 consecutive days and the 60- or 70-hour "clock" must be restarted by taking 34 consecutive hours off duty.

However, FMCSA sources state that the 2003 final rule was interpreted to require drivers to be in compliance with the 60/70 on-duty hours in 7/8 days limitation before the driver could start counting a 34-hour restart period.

The FMCSA now states that it has decided that if a driver has exceeded the 60/70 rule, the driver could be subject to certain penalties, but the driver does not have to come into compliance with the rule before utilizing the 34-hour recover period. According to FMCSA, the 34-hour restart period may begin at the start of any consecutive 34-hour off-duty period.

Operators of certain CMVs not requiring a commercial driver's license. The 2005 final rule creates the following new regulatory regime for drivers of CMVs that do not require a CDL, provided they operate within a 150 air-mile radius of their normal work-reporting location and return to their normal work reporting location at the end of their duty tour:

The 11 hours driving, minimum 10 hours off-duty, 14 consecutive hour duty period, 60/70 hours in 7/8 days, 34-hour restart all apply;

On any 2 days of every 7 consecutive days, the driver may extend the 14-hour duty period to 16 hours (although the 11-hour driving limitation may not be exceeded);

There is no requirement that the driver be released from duty at the end of 14- or 16-hour duty periods. The driver may continue to perform non-driving duties, which would be counted against the 60/70 hour weekly limitation;

Time records may be used in lieu of records of duty status (RODS).

(According to FMCSA, the applicability of this new provision depends on the type of vehicle being driven, not whether the operator possesses a CDL. In addition, drivers meeting this new non-CDL 150 air-mile radius provision are not eligible for the existing 100 air-mile radius provision, nor are they eligible for the current 16-hour exception.)

Canadian and Mexican Drivers Operating in U.S. are Subject to HOS Regulations

The FMCSA states that Canadian and Mexican drivers operating in the U.S. must comply with its HOS regulations. Although compliance with the HOS regulations is checked by looking backward in time, and activity occurring outside the U.S. may be taken into account, State and Federal officials may only impose penalties for violations that occurred in this country. (For example, upon entering the country, Canadian and Mexican drivers must show a current RODS for the previous 7 consecutive days.)

While U.S. Federal, State, and local governments are provided a general exemption from the HOS regulations, the FMCSA notes that Canadian and Mexican military and other government employees are not exempt from the HOS regulations.

(See ITT's Online Archives or 05/06/03 news, 03050620, for BP summary of the 2003 final rule. See ITT's Online Archives or 07/20/04 news, 04072005, for BP summary of the Court's ruling vacating the 2003 final rule. See ITT's Online Archives or 01/28/05 news, 05012825, for BP summary of the FMCSA's proposed rule seeking comments for the 2005 final rule.)

FMCSA Contact - Tom Yager (202) 366-4009

FMCSA Final Rule (D/N FMCSA-2004-19608; formerly FMCSA-1997-2350, FR Pub 08/25/05) available at http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/05-16498.pdf

FMCSA Press Release (FMCSA 04-05, dated 08/19/05) available at http://www.fmcsa.dot.gov/about/news/news-releases/2005/081905.htm

FMCSA FAQ (dated 08/19/05) available at http://www.fmcsa.dot.gov/rules-regulations/truck/driver/hos/hos-faqs.asp