Probably the biggest issue affecting the trucking industry since deregulation in 1980 is the new "hours of service" regulation the Federal Motor Carrier Safety Administration proposed recently. This proposal updates the original rules established in 1937 by the Interstate Commerce Commission. Its purpose is to improve highway safety by promoting the use of well-rested, alert and attentive drivers. A sizable percentage of truck accidents are caused by driver fatigue, and this new proposal is targeted at eliminating this problem.
Most tire dealers think this hours of service regulation is a trucking industry issue and that while it probably will make things difficult for their customers, commercial tire dealers have little to worry about as far as their operations go.
It appears this proposal, if allowed to become a standard, may affect almost every business that operates a truck with a gross vehicle weight over 10,000 lbs. This standard applies to anyone engaged in interstate commerce as well as those in intrastate commerce—that is, if your state adopts the final rules based on these proposals in order to receive federal state matching funds.
You may be thinking, "I don't engage in interstate commerce. I just pick up and deliver tires locally to fleets."
Well, odds are those fleets cross state lines to transport their freight, and since you are servicing their tires you may be classified as engaging in interstate commerce, too.
This currently is a gray area, and it's going to take a bunch of lawyers and a fistful of dollars to figure that one out. Either way, if your state is looking for federal funds, (and what state isn't?) this proposed regulation eventually will affect you if it becomes a standard.
The proposed regulation identifies five types of drivers and establishes maximum driving time and on-duty time periods for each.
Most commercial tire dealer employees who drive trucks to deliver tires probably fall under the Type 5 Driver category. This driver returns to his/her normal work location, is released from work within 12 consecutive hours after beginning work and is behind the wheel only five hours a day. The proposed work requirements for this driver are as follows:
Maximum on-duty time —13 hours in a 15-consecutive-hour period in any workday; 15 hours in any 24-hour period.
(On-duty time is any period when a driver provides physical or mental exertion for the benefit of the employer. It includes all the time when the employer requires a driver to be on the company's premises, vehicles, and equipment or at other prescribed work places, but does not include specified rest breaks in vehicles or at the office. It also includes work for another employer.)
Maximum driving time—Five hours in any workday. (A work day is any fixed period of 24 consecutive hours.)
Maximum on-duty hours in a workweek—78 hours in a work week. (A workweek is any fixed and regularly recurring period of seven consecutive workdays.)
Minimum off-duty time —Nine consecutive hours plus two additional hours each workday.
(Off-duty time is any period when a driver is relieved from duty and is free to attend to personal necessities, including sleep, meals, refreshment, rest and relaxation. Off-duty periods must be at least 30 minutes each and taken at the discretion of the driver at any location.)
Consecutive off-duty hours per workweek—32-56 hours, including at least two midnight-to-6 a.m. periods.
Time record—You, the employer, must maintain accurate time and work records and retain them for two years. They can be used to verify your compliance with the hours of work and hours of rest regulations during this two-year period.
This proposal also requires drivers to cease driving when their ability is impaired due to illness or fatigue. Employers must not retaliate, penalize, discipline, dismiss or otherwise discriminate against drivers who exercise their obligations to stop driving.
Drivers who believe they have suffered retaliation may submit complaints to any regional or area office of the Federal Occupational Safety & Health Administration. If OSHA sides with the driver, you may have to reinstate the driver, pay back pay, pay compensatory damages and the driver's costs and expenses including legal fees.
The new hours of service proposal also prohibits employers from interrupting a driver's off-duty period. An interruption is considered something that causes the driver to personally answer any type of communication device such as a phone, pager, beeper, fax machine, doorbell, global positioning system message, or notifying the driver in person about an assignment.
Requiring drivers to contact you or anyone else about the status of trips or loads etc. is also an interruption. If a driver's rest period is interrupted, you will have to "restart the clock" with respect to the driver's consecutive off-duty time.
Loading and unloading practices are also addressed in this proposal. You must agree in advance with your customers whether the driver has the responsibility for loading and unloading cargo.
If the driver is responsible, you must inform the driver of that fact. Any time waiting to load/unload will count as on-duty time and must be included in the driver's duty hours.
So how might this affect your operation? Let's say you are a full-service commercial tire dealer with a retread facility and provide 24-hour-a-day road service.
You have an employee assigned to "outside sales" and a truck. He makes calls on fleets, delivers tires and retreads and picks up casings for retreading from his fleet and truck stop accounts.
He normally starts his day at 7 a.m. and works until 5 p.m. Often times though, he ends up working to 6 p.m. due to traffic, delays in loading/unloading tires at customers' locations etc.
Because you offer 24-hour-a-day road service, it is not unusual for you to call him on a busy night and have him make a service call or run tires over to a customer's terminal to handle an "emergency situation." Several days a week he may work 12-13 hours a day.
He usually also works half a day on Saturday to run tires over to that one demanding fleet account that requires deliveries on Tuesdays, Thursdays and Saturdays to handle their workload. This driver also manages to moonlight on a second job.
In this scenario, the driver normally works 10 consecutive hours a day, but many times works 11 consecutive hours a day. He is also frequently called in to work two to four hours during the evening—making his day 12 to 15 hours long.
Fortunately for you, this driver complies with the on-duty requirement of working no more than 15 hours in any 24-hour period, never works more than 78 hours a week and gets the weekend off (32-56 consecutive hours off-duty) that the proposal calls for.
But occasionally he may not comply with the 13 hours in a 15 consecutive hour period on any workday requirement. Hopefully, he is behind the wheel of his truck for only five hours a day. (If this turns out to be more, you must meet Type 4 Driver requirements.)
However, now you have to make sure he takes break periods that last two hours total with the shortest break being 30 minutes, during which time he is incommunicado.
If he is paid by the hour, this will increase your payroll costs. This also effectively adds two hours onto his day and thus, he cannot make it to all of his accounts that require tire deliveries each day. So you will have to get another truck and driver.
Also, it puts him over the 13 hours of on-duty work in 15 consecutive hours and may even be pushing the 15 consecutive hour limit in a workday requirement. Because the driver now is required to have nine consecutive hours of off-duty, don't call him after 10 p.m. for any emergency service work anymore.
So you'd better find another emergency road service technician. And make sure he is back home by 10 p.m. too, or he won't be able to show up for work at 7 a.m.
Oh, and that second job he was holding down to make ends meet—that's down the tubes too unless he can find one that allows him to work, at most, 11 hours over the weekend. Hopefully he doesn't party too much over the weekend either, because if he's hung over or sleepy on Monday morning, he won't be able to work.
If you have other drivers in your operation that deliver tires regionally or over long distances, they have different requirements depending upon how frequently they return to your location. Their operations will definitely be affected by this proposal.
This proposal states that both drivers and employers are responsible for ensuring these requirements are followed. Repeated violations may result in an order for you to cease operations.
Compliance with this proposal is scheduled to begin within four years for those companies with fewer than 20 power units (tractors), three years for those with 20-50 power units and two years for those companies with more than 50 power units.
Keep in mind that this is a proposal. Consider the rules and how they will impact your business.
Then contact either the International Tire and Rubber Association or the Tire Association of North America and tell them how you feel about these rules so they can present your viewpoints to the government. Or attend one of the hearings scheduled around the country (See the list below).
You have to do this right away since the Department of Transportation is sticking to its self-imposed deadline of completing an update to the federal hours-of-service regulations for truck drivers by year's end. There are no plans to extend the 90-day comment period beyond the current July 31 deadline.