February 15, 2012: The United States Department of Transportation ("Department") has issued an Hours-of-Service ("HOS") Final Rule, that is meant to reduce the excessively long work hours of Commercial Motor Vehicle ("CMV") drivers. The Department wants to ensure drivers have enough time to obtain adequate rest on a daily and weekly basis, because excessive driving hours increase the risk of fatigue-related crashes and long-term health problems for drivers.

The objective of the final rule is to reduce the acute and chronic fatigue of drivers. The effective date of the final rule is February 27, 2012, and the compliance date of selected provisions is July 1, 2013.

The Federal Motor Carrier Safety Administration ("FMCSA") made several changes to the HOS rule. The three primary changes include:

• Restarts are now limited to one per week;

• restarts must include 2-night periods between 1:00-5:00 a.m.; and

• drivers must take a 30-or-more minute break after 8 consecutive hours of driving.

The "34-hour restart" rule limits the number of restarts a driver is permitted to take in a one-week time period or every 7 days (168 hours). This new limitation prevents the excessive buildup of on-duty hours, and will reduce a driver's maximum allowable hours of work per week from 82 hours to 70 hours, a 15% reduction.

In the past, a driver was able to use a restart every 5 or 6 days, and he/she could average 80 or more driving hours a week. The Department found these drivers to be chronically fatigued, and the 34-hour restart period was found to only mitigate, not eliminate the sleep debt built up during the work week.

The second change found in the rule requires a driver rest at least two periods between 1:00-5:00 a.m.. This rule mainly affects drivers who work more than 70 hours a week on a continuing basis. For example, a driver who has reached the 70-hour maximum may begin a restart period on Friday evening at 7:00 p.m.. That driver would not complete the restart period until Sunday morning at 5:00 a.m.. The restart period was adjusted to provide the driver with 2 consecutive nights of rest. To avoid confusion regarding when the 1:00 a.m. time-period begins, the drivers' log times are to be based on the time zone of their home terminal, rather than "local time."

The final rule change requires that if more than 8 consecutive hours on duty have passed since the last off-duty period of at least half an hour, a driver must take a break of at least 30 minutes before driving.

According to FMCSA, recent research has shown that any break from driving reduces risk in the hour following the break, but off-duty breaks produced the largest reduction in risk. Meal breaks, time spent in the sleep berth, or any other off-duty time of at least 30 minutes qualifies as a break; however, drivers are not allowed to count time spent waiting to be loaded or unloaded as break time, unless the driver has been released from all responsibility for the truck.

Drivers who are carrying certain explosives are required to attend to their vehicle at all times. The FMCSA created an exception for these CMV drivers carrying explosives by allowing them to count on-duty time spent attending the CMV, but doing no other on-duty work, toward the break.

FMCSA also created an exception for team drivers, so that they are able to "keep the truck moving." Each driver is permitted a 10-hour break, which requires a minimum of 8 hours in the sleeper berth and allows a maximum of 2 hours in the passenger seat. Team drivers are permitted to continue this pattern until one driver reaches the maximum driving limit.

The FMCSA also revised the oilfield operations rule to more specifically address how records should be maintained.

The penalties for drivers who do not comply with the final rule has been updated. Any driver or company that allows a driver to drive 3 or more hours beyond the driving time limit may be considered an egregious violator and subject to the maximum civil penalties.

The FMCSA chose 3 hours because under adverse driving conditions drivers are allowed up to 2 extra hours of driving. The FMCSA found driving 3 hours beyond the normal driving limits would severely test a driver's stamina and substantially increase the risk of a fatigue-caused crash.

The FMCSA projects the rule will also produce an annual benefit of approximately $160 million a year. The Agency estimates that the benefits of the rule, reduction in crashes and improved driver health, will outweigh the cost of enforcement.

By February 27, 2012, all drivers must begin complying with the on-duty time requirements and the oilfield exemption. In addition, the updated penalties will be applied to all driving (or allowing a driver to drive) 3 or more hours beyond the driving-time limit; however, the Department will not enforce the minimum 34-hour restarts and the rest breaks until July 1, 2013.

Companies should update their company policies and consider holding mandatory training sessions so that drivers will understand these rule changes. Failure to ensure compliance with these HOS rule changes could expose drivers and companies to civil penalties and require drivers be taken off the roads.

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