Trucking’s equivalent of the flux capacitor that allows travel back in time could be called the Collins Amendment since it will allow drivers to use the older restart provision instead of the unpopular provision in-place since July 1, 2013.
Inserted into a “must pass” federal appropriations bill designed to fund government until September 30, 2015, the bill denied FMCSA the money to enforce the current 34-hour restart provision and specifically ordered the reinstatement of the 34-hour restart provision as it existed prior to July 1, 2013.
Effective immediately (on December 16th) all drivers can begin logging a restart without having to include two overnight periods between 1 a.m. and 5 a.m. or being limited to one restart every 168 hours. The language in the bill states, “None of the funds appropriated or otherwise made available by this Act or any other Act shall be used to enforce sections 395.3(c) and 395.3(d)… and such sections shall have no force or effect from the date of enactment of this Act,” which means when the President signed the bill.
FMCSA is required to publish a Notice in the Federal Register and on its website announcing that the newer restart provision is no longer enforceable or in effect. An advanced copy of the Federal Register notice can be found by following this link.
What Happens Next Year When the Appropriations Bill Expires?
The appropriations bill language requires that FMCSA perform another study comparing drivers using both restart provisions (who wants to volunteer?). Enforcement of the current restart provision in-place since July 1, 2013, is suspended “until the later of September 30, 2015, or upon submission of the final report issued by the Secretary under this section. The restart provisions in effect on June 30, 2013, shall be in effect during this period.”
While congress oftentimes sets timelines for rulemakings or studies to be concluded, agencies are often unable to meet those expectations and it would be surprising if FMCSA were able to complete a study of this detail over the next nine months. Until the study is completed and goes through a significant vetting process which includes oversight by the Office of the Inspector General (OIG), the language within the appropriations bill suspending the current rule will leave the older restart provision in effect.
Commercial Motor Vehicle (CMV) Driver Restart Study
Congress got pretty specific in telling FMCSA they will conduct a “naturalistic study” of the operational, safety, health and fatigue impacts of the restart provision utilizing two “statistically relevant” control groups. Naturalistic study means – real world, not in a laboratory setting. One control grouping will operate under the older restart provision; the other will be required to operate under the newer provision.
Making sure the study is “statistically relevant” has already caused FMCSA heartburn. Congress in MAP-21 required the agency to perform a comparative study of drivers using the two differing restart provisions and FMCSA was widely panned for announcing results from that study based on using data collected from just 106 drivers. The conclusion was supportive of FMCSA’s contention that two consecutive overnight periods “mitigates fatigue as measured both objectively and subjectively.” Statistical relevancy of a study is always the arena where chicanery can take place and ultimately the OIG is supposed to act as the impartial arbiter in making certain this study is accurately conducted.
Enforcement
The Commercial Vehicle Safety Alliance (CVSA) will inform their members to withhold enforcement so you really shouldn’t be too concerned about being wrongly cited by most state commercial motor vehicle enforcement officers. However, since FMCSA has encouraged local law enforcement agencies to jump on the “truck enforcement” bandwagon and many obliged, I do believe drivers could experience problems at that level with officers unknowingly enforcing the wrong rule.
One of the unintended consequences of passage of this bill is that state and local law enforcement officials don’t actually enforce federal law/regulations – they can’t. When D.C. makes changes to federal law/regulation, states must adopt that change into state statute for it to be enforceable. Some states do this by reference; others must go through the legislative process to make the change. Undoubtedly, there are states where the requirements to take two overnights off-duty and limit restart use to once in seven days will still be on the books until spring.
It’s never a good idea to get in an argument with an officer at roadside, but carrying a copy of either the Federal Register Notice and/or the notice published on FMCSA website may be useful in defusing a possible ticket and/or being unnecessarily placed out-of-service.
If you’d like to read the actual language in the appropriations bill, follow this link and go to page 1443.
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