FMCSA’s Hours of Service Proposed Rule

Transportation Safety Alert

(by Boyd Stephenson and James Curry)

On August 22, 2019, the Federal Motor Carrier Safety Administration (FMCSA) published a notice of proposed rulemaking (NPRM) containing potential changes to the hours of service (HOS) regulations for all drivers operating in interstate commerce and for drivers transporting hazardous materials in intrastate commerce.  FMCSA initiated the rulemaking to update the HOS in light of compliance challenges revealed by the Agency’s 2017 electronic logging device mandate.  In the NPRM, FMCSA proposes to:

  • Expand the current “short-haul” exception to the HOS rules;
  • Expand the adverse driving exception to the HOS rules;
  • Allow any 30-minute period of non-driving time to count towards the30-minute rest break;
  • Expand access to the sleeper berth exception; and
  • Allow a single off-duty break to extend the driver’s on-duty window by the length of the break.

The proposed changes will likely provide operational flexibility to every sector of the trucking industry.  Local drivers’ on-duty windows will expand to equal the time currently allotted for long-haul drivers.  At the same time, the rules would provide more options to long-haul operators, who will be able to use on-duty time for their required break and to expand their driving window by strategically taking optional breaks at times that allow them to avoid driving in heavy traffic.  Comments are due by October 21, 2019.

Current Daily Maximum Driving Times

While FMCSA proposes several exceptions to the basic daily rules, the Agency has not proposed changes to the daily base HOS requirement for property-carrying or passenger-carrying commercial motor vehicles (CMVs).

  • A property-carrying CMV driver may drive up to 11 hours during a14-hour window beginning when the driver begins on-duty status. The driver is then prohibited from driving until a 10 consecutive hour period of off-duty time elapses.
  • A passenger-carrying CMV driver may drive up to 10 hours in a 15-hour window. The driver isthen prohibited from driving until an eightconsecutive hour period of off-duty time elapses.

Proposed Changes

ShortHaul Exception – The existing short-haul exception exempts property-carrying drivers from the requirement to maintain records of duty status (RODS or logs) and supporting documents for their logs if:

  • They report to and depart from the same location for a shift;
  • They are on duty for 12 hours or less;
  • They drive 11 hours or less;
  • They remain within a 100 air-mile (115 mile) radius of their reporting location for their entire shift;
  • They receive at least 10 consecutive hours off duty at the end of their shift; and
  • Their employers maintain records going back six months demonstrating reporting time, departuretime, reporting/departure location, and the number of hours worked are consistent with the requirements above.

Passenger-carrying drivers operate under the same requirements except they may only drive 10 hours in the 12-hour workday.  Passenger-carrying and property-carrying short-haul drivers are not exempt from the maximum driving time restrictions, they are merely exempt from logging compliance with them.

FMCSA proposes to extend the qualification period from shifts up to 12 hours to shifts up to 14 hours and the qualification radius from 100 air-miles to 150 air-miles (172.5 miles).  Maximum driving times would remain unchanged.  FMCSA adds that it is considering further altering the exception to allow CMV drivers to utilize the short-haul exception even if they do not report to and depart from same location, so long as all of the other existing requirements are followed.  The NPRM does not provide proposed regulatory language implementing this possible change.

Adverse Driving Conditions Exception – The current adverse weather HOS exception allows a driver experiencing unexpected dangerous driving conditions to extend their driving time by up to two hours or until they reach a location safe for the vehicle occupants and secure for its cargo, whichever occurs first.  Presently, the exception extends the amount of time the driver can drive, but it does not extend the 14-hour on-duty window.  FMCSA proposes to extend the exception to cover both driving time and the driving window.  This expansion applies to both cargo-transporting and passenger-carrying CMVs, allowing up to 13 hours of driving in a 15-hour window for cargo-transporting CMVs and 12 hours of driving in a 17-hour period for passenger-carrying CMVs.

30-Minute Rest Break – Presently, all property-carrying CMV drivers are required to take a 30-minute off-duty period after eight hours of driving before they can drive again.  FMCSA proposes to expand access to the rest break by allowing any 30-minute period of off-duty, sleeper berth, or on-duty not driving time to qualify for the rest break.  Passenger-carrying CMV drivers are not required to take the 30-minute rest break, so FMCSA has not proposed any changes to their operations.

FMCSA is also considering eliminating the 30-minute rest break entirely.  However, the NPRM does not include proposed regulatory language.

Sleeper Berth – Today, HOS rules allow a property-carrying CMV driver to divide the 10 hours off-duty required to reset the daily driving limits between two separate, but consecutive, periods.  Drivers must take at least eight hours in the sleeper berth and a second period, of at least two hours, of off-duty time which can be in the sleeper berth or riding in the passenger seat.  It does not matter which of these two periods occurs first.  Driving time in the periods immediately before and after each rest period must not exceed 11 hours, nor may the total driving window, minus the time spent in the sleeper berth and in sleeper berth/optional passenger seat time, exceed 14 hours.  The sleeper berth exception applies only to drivers of property-carrying.

FMCSA proposes to add flexibility to this time by lowering the minimum sleeper berth time from eight to seven hours consecutive hours while retaining the requirement that 10 total hours of sleeper berth plus sleeper berth/optional passenger seat time elapses.  FMCSA notes that it is also considering adjusting this split to six hours in the sleeper berth and four hours that could be taken in the sleeper berth or in the passenger seat.  However, the NPRM does not provide proposed regulatory text for this option.

Drivers could not utilize the sleeper berth exception, in its present form or with FMCSA’s proposed changes, and the proposed break to extend the driving window (below) during the same driving period.

Break to Extend Driving Window – FMCSA proposes a new provision that would allow a driver to take a single break of between 30 minutes and three hours and to extend the 14-hour driving window by the length of the break.  Drivers could not utilize the break to extend the driving window and the sleeper berth exception during the same driving period.

FMCSA asks for input about the possibility of dividing the break to extend the driving window into multiple breaks of at least 30 minutes that could total up to three hours, but the Agency does not propose regulatory text.

Compliance Dates – Because drivers are now required to demonstrate compliance with the HOS via electronic logs, FMCSA has requested electronic logging device manufacturers to weigh in and explain how much time would be necessary to reprogram their devices to conform to a new set of rules.  FMCSA has requested comment on six-month and one-year implementation periods.

Rulemaking Petitions – FMCSA also responded to four rulemaking petitions in the NPRM, from the Owner-Operator Independent Driver Association (OOIDA), TruckerNation, the United Drivers Association (UDA), and the U.S. Transportation Alliance (USTA).  OOIDA’s petition requested that breaks could be used to extend the driving window, and FMCSA included that concept in the NPRM.  TruckerNation requested that FMCSA alter the 14-hour driving window to begin after the driver begins driving, rather than coming on duty, and to pool off-duty periods of three hours or longer to meet the 10 hour off-duty requirement to open a new 14-hour driving window.  FMCSA denied TruckerNation’s petition.  The USTA petition proposed allowing pooling of more than two off-duty sleeper berth periods, which could be as short as two hours, while the UDA proposed splitting the sleeper berth required periods into five sleeper berth hours and five optional hours.  Both the USTA and the UDA also proposed reducing the minimum off-duty time to restart a driver’s weekly maximum on-duty time from 34 hours to 24 hours.  FMCSA rejected both petitions, but noted that it would consider them as comments on relevant parts of the NPRM.

Observations & Questions

  • The NPRM would forbid drivers from using a split-sleeper berth period and a break extending the14-hour driving window in the same driving period. But, FMCSA also explicitly states a driver need not declare whether they are taking the first half of a sleeper berth break or one extending the 14-hour window until choosing to take the second half of the sleeper break.  While this language is consistent with the NPRM’s proposed language, FMCSA is also considering allowing multiple breaks to extend the 14-hour window.  If FMCSA allows multiple breaks to extend the 14-hour window
    and doesn’t force drivers to choose whether they are extending their driving window or using sleeper berth break, how can enforcement agencies differentiate between the two until the driver begins the second period of the sleeper berth exception?  If FMCSA allows for shorter breaks to extend the driving window, could FMCSA allow drivers to combine them with split-sleeper time and still ensure a safety level at least equivalent to that under current regulations?
  • FMCSA asks 39 specific questions in the NPRM. Combined with the Agency’s multiple proposals in areas like altering or eliminating the 30-minute rest break and minimum sleeper berth time, it is possible that FMCSA may need to issue a supplemental NPRM in the future to clarify itsproposal before promulgating a final rule.
  • Several commenters submitted sleep science studies that they assert are contrary to FMCSA’s position that its proposed HOS changes will not increase driver fatigue. Similarly, the Insurance Institute for Highway Safety submitted data it claims demonstrates the safety risks of continuing a short-haul exception to the HOS at all are greater than previously understood.  FMCSA will need to grapple with these comments as it moves toward a final
  • Carriers that transport hazardous materials that require a Pipeline and Hazardous Materials Safety Administration security plan most often satisfy their en route security requirement by directing their drivers to exercise constant attendance over their cargo. Drivers exercising constant attendance cannot log off-duty status, though FMCSA has granted an exemption from the 30-minute rest break requirement for these drivers.  Under the exemption, drivers exercising constant attendance over their cargo during their mandatory 30-minute break may log the time as on-duty not driving, but mayperform no other work and must keep a written copy of the exemption in the vehicle.  FMCSA’s,proposed changes to the 30-minute rest break mean that drivers exercising constant attendanceduring their rest break will now be compliant, even without the exemption.

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