Legislation looks to overturn HOS 34-hour restart provision

Bipartisan legislation introduced by a trio of Congressmen—Reps. Richard Hanna (D-NY), Tom Rice (R-SC) and Michael Michaud (D-Maine) aims to halt the 34-hour restart provision on the Federal Motor Carrier Safety Administration’s motor carrier hours-of-service (HOS) rules that took effect in July.

The legislation—entitled H.R.3413, the TRUE Safety Act—calls for:
- truckers to abide by the 34-hour restart rules that were in place before July 1, 2013;
- the Government Accountability Office (GAO) to conduct an independent assessment of the methodology FMCSA used to come up with the new 34-hour restart rule; and
- the new 34-hour restart rule could not be re-implemented until six months after GAO submits its assessment to Congress

As per the FMCSA, the new restart policy aimed to change provisions in the 34-hour restart, which allowed drivers to “reset” their workweek after 34 consecutive hours off duty. Under new rules, drivers are now able to reset their workweek only once every seven days—and the rest period includes two spans from 1 a.m. to 5 a.m.

As previously reported in LM, various industry groups, including the American Trucking Associations and the National Retail Federation, among others, have repeatedly blasted the 34-hour restart.

In August 2012, the ATA said in a brief filed in late July 2012 in the U.S. Court of Appeals for the D.C. Circuit said that the FMCSA’s latest attempt to rein in drivers’ hours of service (HOS) was based on a “sham” analysis.

Carriers and shippers have said that this provision serves as a threat to reduce total drive time will impact industry operations.

U.S. Xpress Enterprises Executive Vice President, Sales and Marketing John White told LM in a previous interview that “the real challenge is the restart is 34 hours and could be as much as 49 or 50 hours, depending on when a driver finishes his day and if freight is available. Another issue is if the driver has worked his seven days and now cannot start his 34-hour restart until 1 a.m.

What’s more, prior to the rollout of the new HOS rules in July, a provision in the current federal transportation bill, MAP-21, called for an HOS field study to expand on an FMCSA report on driver fatigue and maximum driving time requirements focusing on the 34-hour restart rule. But that study has yet to be completed, despite the rules having already gone into effect. 

This field study, which directed FMCSA to expand on an FMCSA report on driver fatigue and maximum driving time requirements focusing on the 34-hour restart rule, was supposed to be conducted by March 31, 2013. But 51 House members said in a letter to Department of Transportation Secretary Anthony Foxx even though the field study was not completed, the FMCSA went ahead and finalized and enacted the “untested” new HOS regulations.

ATA President and CEO Bill Graves applauded the TRUE Safety Act.

“When the Federal Motor Carrier Safety Administration went ahead with its changes to the restart rule, it did so without waiting for essential research to be completed,” Graves said in a statement. “This bill would simply do what should have been done in the first place: delay implementation until we really know the true operational impacts, costs and safety benefits.”

In the short time that the new HOS rules have been in effect, industry stakeholders estimate that the new rules have shaved off 2-to-3 percent of available over-the-road capacity.

Truckload, logistics and intermodal provider Schneider National recently said that since July 1
it has seen a 3.1 percent drop in productivity on solo shipments and a 4.3 percent decline on team shipments, which are in line with its forecasted 3–4 percent decline, which the company said was based on predictive modeling and presented as testimony to the Federal Motor Carrier Safety Administration in February 2011.

And the ATA cited research by the American Transportation Research Institute which found that the 34-hour restart changes will ultimately have a net annual cost of up to $376 million as opposed to the $133 million net benefit cited by the FMCSA prior to the rules taking effect.

Despite the initial and subsequent opposition to the new HOS rules, there is sentiment that things as they stand in regards to HOS are unlikely to change. 

James Burnley, a partner at Washington, D.C.-based law firm Venable LLP and former Secretary of Transportation under the late President Ronald Reagan, said at last week’s Council of Supply Chain Management’s Annual Conference that it is too soon in terms of its overall impact and how it could exacerbate the driver shortage as well, while noting that despite its opposition of the rules from many industry groups, it is apparent the new regulations will stick.

Mike Regan, chief relationship development of TranzAct Technologies, and chairman of NASSTRAC’s (National Shippers Strategic Council) advocacy committee, said it is unlikely this bill will make it through the Senate, due to some members having strong ties to the freight railroad industry, and that it is highly improbable any changes will be made to the HOS rules.

“There is also a perception that the [34-hour restart] is a safety issue,” explained Regan. “Freight doesn’t vote, and because freight doesn’t vote there is a perception they can shoot down freight issues with no consequences.”