Last March, I wrote that the outlook for hours of service (HOS) would be very confusing this fall. With kids getting ready to go back to school and Congress on their August recess, I thought I would revisit what might happen to HOS this fall. Spoiler alert: It’s complicated!
In July 2013, the Federal Motor Carrier Safety Administration (FMCSA) implemented three significant changes to the way drivers record their HOS:
- Within the mandatory 34-hour restart, FMCSA said drivers had to include two 1:00 a.m. – 5:00 a.m. time periods
- Drivers could only restart once per week
- Within the first eight hours after they started driving, they need to take a 30-minute rest break
In December 2014, Congress suspended all the changes, except for the 30 minute rest break, as part of the “CR-omnibus” deal that funded the U.S. government until September 30, 2015. Congress required FMCSA to complete a study of the cost benefit analysis of the HOS changes for the July 2013 changes and the legislation said that the suspension would be revoked only after September 30, 2015, or when FMCSA published the study, whichever date was later. There was no requirement for the conclusion or content of the study in order for the suspension to be rolled back.
There are three main moving parts that could impact how HOS ends up this fall: The release of the study, the 2016 funding (appropriations) bill for transportation, housing, and urban development (THUD), and the infrastructure/highway/transportation bill. The difference between the THUD bill and the infrastructure bill is that the THUD bill pays the costs of operating the U.S. Department of Transportation while the infrastructure bill pays the actual cost of construction and design for roads and bridges.
FMCSA has worked very hard to complete this study, but had trouble recruiting participants. While it is unlikely that the study will be completed before September 30, 2015, it should be released sometime between November 2015 and January 2016. If Congress does nothing to address HOS in the THUD appropriations bill or the infrastructure/highway bill, HOS rules will revert back immediately to the rules that were put in place in July 2013 once this study is released, regardless of the study’s findings.
THUD Appropriations Bill
The THUD appropriations bill is just one of many appropriations bills that are again a big battle in Congress this year. The House passed a THUD appropriations bill that funds the U.S. Department of Transportation on June 9, 2015, and included language that would keep the suspension in place if the HOS study did not show “statistically significant improvement in all outcomes related to safety, operator fatigue, driver health and longevity, and work schedules in comparison to commercial motor vehicle drivers who operated under restart provisions in effect June 30, 2013.” While the full Senate has not passed a similar funding bill, they did include similar language in a bill that emerged from the Senate Appropriations Committee on June 25, 2015.
However, just because this language was included in the House bill and the Senate committee bill does not mean it will be included in the bill that ultimately funds the U.S. Department of Transportation. A larger debate about defense funding, the sequestration cuts, and other government agencies may impact this appropriations bill. There is widespread speculation that Congress will try and give themselves more time by passing a short-term “clean” funding bill that goes through December 2015. This is where the debate about a government shutdown will impact what HOS rules drivers will need to follow.
Infrastructure and Highway Bill
The final puzzle piece is the highway bill that was just extended three months until October 29, 2015 (however is funded through the end of the calendar year). Congress could add similar language as was in the THUD appropriations bill to a long-term highway bill. However, there is no requirement that the issue be addressed in the highway bill.
Now that we know all the moving pieces that could impact when and if HOS rule become more certain here are some potential scenarios:
- If nothing else changes, FMCSA releases the HOS study any time after October 1, 2015, and the HOS rules revert back to the July 2013 rules. The two 1:00 a.m. – 5:00 a.m. time periods would be restored, along with the once per week requirement.
- Congress passes a THUD bill before September 30, 2015, and requires that the HOS study results support any restoration of the suspended provisions. This seems unlikely at this point in time.
- Congress passes a long-term highway bill before November 1, 2015, and provides certainty on HOS rules going forward, regardless of what the study concludes. Essentially Congress would dictate what the HOS rules would be.
- Congress passes a short-term THUD bill through December 2015 without mention of HOS. Then FMCSA releases the HOS study and HOS rules revert to June 2013 rules. Then Congress passes a full appropriations bill, including THUD, sometime in December 2015 that again suspend HOS restart provisions.
If I had to choose between these scenarios, the path with the least resistance is the release of the HOS study by FMCSA in scenario one, although scenario four may be the most likely and most confusing. The message for both shippers and carriers is that it’s very complicated and no one knows the eventual outcome or date when certainty will be provided on HOS rules.
This blog post originally ran on Transportfolio.