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Dear TCIA Member,
For over two years, TCIA has been actively seeking an “Hours of Service” (HOS)
exemption for our industry. TCIA’s strategy was to lend its voice to an even
larger voice by joining a coalition with the Edison Electric Institute, EEI. We
are happy to say that the strategy paid off for our members. EEI’s HOS Coalition
has succeeded in gaining inclusion of “utility service vehicles” in the HOS
exemption.
On August 10, President Bush signed into law the transportation bill (H.R. 3 -
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for
Users or 'SAFETEA-LU') containing an exemption for drivers of utility service
vehicles (USVs) from the Federal Motor Carrier Safety Administration (FMCSA) HOS
regulations.
As FMCSA gets ready to start enforcing HOS, we are happy to relate that most of
TCIA’s non-line clearance members may be eligible for some regulatory relief
through other provisions. The so-called short haul provision, the 100 air-mile
provision and the 16 hour exception are explained at the end of this Action
Alert.
During this process, some of our members have asked a very valid question: “Will
FMCSA consider our vehicles to be utility service vehicles for the purposes of
enforcement?” The answer is yes. In fact, FMCSA made that determination over a
year ago. In an excerpt from the attached memo from EEI Counsel Rick Schweitzer,
he quotes the FMCSA Hours of Service Enforcement Guidance memo (also attached)
as follows:
“One additional good point is that the FMCSA states unequivocally that
‘contractors working for a utility are operators of utility service vehicles.’”
Schweitzer goes on to say, “The FMCSA added that this definition includes
‘contractors providing services such as tree trimming when the contractor is
performing those operations in furtherance of maintaining power lines, etc.’
There has been some question of whether contractors would be included in the USV
driver definition, and this resolves the issue. Moreover, this means that the
provisions for a permanent exemption for USV drivers in the highway bill would
also cover contractors, as that legislative language also refers to the
definition in 49 CFR §395.2.”
The bill prohibits states from enacting or enforcing HOS rules against
utilities. The exemption was “effective immediately” upon signature by the
President but we want to caution line clearance contractors that the system(s)
you work on will only be clearly exempt when federal and state motor carrier
agencies act upon the exemption granted by Congress.
The HOS exemption is from regulations regarding maximum driving and on-duty
time. It includes all of 49 CFR Part 395, the part of the regulations captioned
"Hours of Service." Such an exemption squares with the "regarding maximum
driving and on-duty time" language of the legislation. Since Part 395 contains
the actual HOS requirement and also contains the logbook requirement, an
exemption from Part 395 means an exemption from both the HOS and logbook
requirements.
The logbook requirement in Part 395 is there as a method of keeping track of
HOS. As a logical matter, then, if utilities are now exempt from the HOS
requirement, there is no need to keep track of something that no longer applies.
FMCSA must now change its regulations to reflect clearly the change that
Congress has legislated. Most states must also change their regulations because
most state regulations now have an HOS provision that applies to utilities, and
the new legislation says that states also must exempt utilities from HOS
regulations.
What should a utility contractor do? Most utilities will wait until federal and
state regulators promulgate regulations before acting as if the regulators'
ideas of the exemption square with industry's understanding of the exemption.
Many states adopt federal regulations “by reference,” meaning that as soon as
the federal regulations are published, state law is changed. Other states have
other methods of adopting federal requirements. Regardless, many utilities are
now discussing the issue with their state officials. Talk to representatives of
the utility(ies) you contract with.
What will the EEI Coalition be doing? EEI and its partners are attempting to
insure that FMCSA first notifies federal and state motor carrier personnel of
the exemption (through an enforcement advisory), so that these officers do not
cite utilities or their contractors for infractions of rules that no longer
apply to them. When the enforcement advisory is released, we will send it to our
members. We will also work to insure that new federal regulations accurately
reflect a full exemption.
There are options for regulatory relief available to our non-line clearance
members as well.
The short haul provision
With FMCSA’s so-called “short haul provision”, drivers of property-carrying CMVs
which do not require a Commercial Driver's License for operation and who operate
within a 150 air-mile radius of their normal work reporting location:
§ May drive a maximum of 11 hours after coming on duty following 10 or more
consecutive hours off duty.
§ Are not required to keep records-of-duty status (RODS).
§ May not drive after the 14th hour after coming on duty 5 days a week or after
the 16th hour after coming on duty 2 days a week.
The employer must maintain and retain accurate time records for a period of 6
months showing the time the duty period began, ended, and total hours on duty
each day in place of RODS.
Drivers who use the short-haul provision are not eligible to use the 100
Air-mile provision or the 16-hour exception.
The 100 air-mile provision
The 100 air-mile radius driver is exempt from keeping RODS if:
§ He operates within a 100 air-mile radius of the normal work reporting
location;
§ He returns to the work reporting location and is released from work within 12
consecutive hours;
§ He has at least 10 consecutive hours off duty separating each 12 hours on
duty;
§ He does not exceed 11 hours maximum driving time following 10 consecutive
hours off duty.
For six months, the employer has to maintain and retain accurate time records
showing:
§ The time the driver reports for duty each day;
§ The total number of hours the driver is on duty each day;
§ The time the driver is released from duty each day; and
§ The total time for the preceding seven days for drivers used for the first
time or intermittently.
The 16 hour exception
The driver is exempt from the new HOS requirements if:
§ He returns to his normal work reporting location and the employer releases him
from duty at that location for the previous five days the driver has worked;
§ He returns to the normal work reporting location and the employer releases the
driver from duty within 16 hours after coming on duty following 10 consecutive
hours off duty; and
§ He has not taken this exemption within the previous six consecutive days,
except when he has begun a new seven- or eight-consecutive day period with the
beginning of any off duty period of 34 or more consecutive hours.
TCIA will continue to keep you posted as additional information becomes
available.
- Peter
For over two years, TCIA has been actively seeking an “Hours of Service” (HOS)
exemption for our industry. TCIA’s strategy was to lend its voice to an even
larger voice by joining a coalition with the Edison Electric Institute, EEI. We
are happy to say that the strategy paid off for our members. EEI’s HOS Coalition
has succeeded in gaining inclusion of “utility service vehicles” in the HOS
exemption.
On August 10, President Bush signed into law the transportation bill (H.R. 3 -
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for
Users or 'SAFETEA-LU') containing an exemption for drivers of utility service
vehicles (USVs) from the Federal Motor Carrier Safety Administration (FMCSA) HOS
regulations.
As FMCSA gets ready to start enforcing HOS, we are happy to relate that most of
TCIA’s non-line clearance members may be eligible for some regulatory relief
through other provisions. The so-called short haul provision, the 100 air-mile
provision and the 16 hour exception are explained at the end of this Action
Alert.
During this process, some of our members have asked a very valid question: “Will
FMCSA consider our vehicles to be utility service vehicles for the purposes of
enforcement?” The answer is yes. In fact, FMCSA made that determination over a
year ago. In an excerpt from the attached memo from EEI Counsel Rick Schweitzer,
he quotes the FMCSA Hours of Service Enforcement Guidance memo (also attached)
as follows:
“One additional good point is that the FMCSA states unequivocally that
‘contractors working for a utility are operators of utility service vehicles.’”
Schweitzer goes on to say, “The FMCSA added that this definition includes
‘contractors providing services such as tree trimming when the contractor is
performing those operations in furtherance of maintaining power lines, etc.’
There has been some question of whether contractors would be included in the USV
driver definition, and this resolves the issue. Moreover, this means that the
provisions for a permanent exemption for USV drivers in the highway bill would
also cover contractors, as that legislative language also refers to the
definition in 49 CFR §395.2.”
The bill prohibits states from enacting or enforcing HOS rules against
utilities. The exemption was “effective immediately” upon signature by the
President but we want to caution line clearance contractors that the system(s)
you work on will only be clearly exempt when federal and state motor carrier
agencies act upon the exemption granted by Congress.
The HOS exemption is from regulations regarding maximum driving and on-duty
time. It includes all of 49 CFR Part 395, the part of the regulations captioned
"Hours of Service." Such an exemption squares with the "regarding maximum
driving and on-duty time" language of the legislation. Since Part 395 contains
the actual HOS requirement and also contains the logbook requirement, an
exemption from Part 395 means an exemption from both the HOS and logbook
requirements.
The logbook requirement in Part 395 is there as a method of keeping track of
HOS. As a logical matter, then, if utilities are now exempt from the HOS
requirement, there is no need to keep track of something that no longer applies.
FMCSA must now change its regulations to reflect clearly the change that
Congress has legislated. Most states must also change their regulations because
most state regulations now have an HOS provision that applies to utilities, and
the new legislation says that states also must exempt utilities from HOS
regulations.
What should a utility contractor do? Most utilities will wait until federal and
state regulators promulgate regulations before acting as if the regulators'
ideas of the exemption square with industry's understanding of the exemption.
Many states adopt federal regulations “by reference,” meaning that as soon as
the federal regulations are published, state law is changed. Other states have
other methods of adopting federal requirements. Regardless, many utilities are
now discussing the issue with their state officials. Talk to representatives of
the utility(ies) you contract with.
What will the EEI Coalition be doing? EEI and its partners are attempting to
insure that FMCSA first notifies federal and state motor carrier personnel of
the exemption (through an enforcement advisory), so that these officers do not
cite utilities or their contractors for infractions of rules that no longer
apply to them. When the enforcement advisory is released, we will send it to our
members. We will also work to insure that new federal regulations accurately
reflect a full exemption.
There are options for regulatory relief available to our non-line clearance
members as well.
The short haul provision
With FMCSA’s so-called “short haul provision”, drivers of property-carrying CMVs
which do not require a Commercial Driver's License for operation and who operate
within a 150 air-mile radius of their normal work reporting location:
§ May drive a maximum of 11 hours after coming on duty following 10 or more
consecutive hours off duty.
§ Are not required to keep records-of-duty status (RODS).
§ May not drive after the 14th hour after coming on duty 5 days a week or after
the 16th hour after coming on duty 2 days a week.
The employer must maintain and retain accurate time records for a period of 6
months showing the time the duty period began, ended, and total hours on duty
each day in place of RODS.
Drivers who use the short-haul provision are not eligible to use the 100
Air-mile provision or the 16-hour exception.
The 100 air-mile provision
The 100 air-mile radius driver is exempt from keeping RODS if:
§ He operates within a 100 air-mile radius of the normal work reporting
location;
§ He returns to the work reporting location and is released from work within 12
consecutive hours;
§ He has at least 10 consecutive hours off duty separating each 12 hours on
duty;
§ He does not exceed 11 hours maximum driving time following 10 consecutive
hours off duty.
For six months, the employer has to maintain and retain accurate time records
showing:
§ The time the driver reports for duty each day;
§ The total number of hours the driver is on duty each day;
§ The time the driver is released from duty each day; and
§ The total time for the preceding seven days for drivers used for the first
time or intermittently.
The 16 hour exception
The driver is exempt from the new HOS requirements if:
§ He returns to his normal work reporting location and the employer releases him
from duty at that location for the previous five days the driver has worked;
§ He returns to the normal work reporting location and the employer releases the
driver from duty within 16 hours after coming on duty following 10 consecutive
hours off duty; and
§ He has not taken this exemption within the previous six consecutive days,
except when he has begun a new seven- or eight-consecutive day period with the
beginning of any off duty period of 34 or more consecutive hours.
TCIA will continue to keep you posted as additional information becomes
available.
- Peter
