DOT claims Congress deleted HOS restart provision

Feb. 17, 2016

A Department of Transportation announcement that Congress eliminated the hours-of-service restart provision in the highway bill passed last year has created confusion among tank truck carriers and the rest of the trucking industry. Work is underway to fix the problem.

National Tank Truck Carriers officials provided an update on the situation. The problem emerged when DOT announced it has interpreted that the restart clause in the FAST Act appropriation package “contains no language to direct our industry on a restart provision, then there is no restart provision to abide by.”

As background, in the FY 2015 federal Appropriations bill, the American Trucking Associations was successful in getting language that required the Federal Motor Carrier Safety Administration to suspend the two 1-5 am periods and 168-hour restart restrictions on use of the 34-hour restart until FMCSA completed a study on the impacts of the restrictions. However, the language did not specifically stipulate that the findings must show that the restrictions are actually beneficial in order to restore them.

In the FY 2016 federal Appropriations bill, ATA and members of Congress sought new language stating that FMCSA could only resume the restart restrictions (two 1-5 am periods and 168 hour limit) if its study showed that they were beneficial in all categories studied (safety, operator fatigue, driver health and longevity, and work schedules). This is a high bar that no one expects the study to be able to achieve.

The restart-specific language in the 2016 appropriations act was intended to continue the stay of enforcement on two provisions pertaining to the 34-hour restart: The requirement that it include two 1 am to 5 am periods and that its use be limited to once per week. (ATA has been working to eliminate these requirements the industry believes made the restart rules less safe and far less flexible than they need to be.)

Neither of those rules has been enforced since December 2014, and lawmakers only meant to preserve the suspension of those rules pending the results of a major DOT study. However, during the legislative drafting process, language was inadvertently left out of the law that now has the potential to put the 34-hour restart rule at risk. The 2016 language lacks the sentence from the 2015 bill clarifying that the prior restart provision (simple restart, lacking restrictions) should continue to remain in place if the study doesn't meet the above requirements.

The 2016 bill says no funds shall be used to "implement, administer, or enforce sections 395.3(c) and 395.3(d) of title 49, Code of Federal Regulations, and such section shall have no force or effect on submission of the final report issued by the Secretary..." That effectively removes the restart provision from the books upon delivery of the study findings to Congress.

In a memo to ATA members issued February 19, ATA President & CEO Bill Graves said: "ATA is obviously very disappointed and troubled by this development and is working with key Members of Congress to find a solution to the problem. Simply going back in to the law and adding the missing sentence does not appear to be a viable option at this point."

Graves went on to state: "The important point for you to know is that the flawed language, that is currently the law, requires the Secretary of Transportation to "turn back the clock" and enforce an Hours of Service rule that completely repeals the restart provisions (and only the restart provisions) the industry has benefited from since 2004. In other words, absent some successful resolution, your drivers will be required to return to performing the old 'rolling recap' each day."

NTTC is closely monitoring this situation in conjunction with ATA and will update as developments occur, according to Dan Furth, NTTC president. Moreover, association officials are hopeful that a satisfactory conclusion will be reached.