August 19, 2019

Expanded Driver Hours of Service a Response to ELDs, Shows that FMCSA is Listening to Industry

Holland & Knight Transportation Blog
Jameson B. Rice

The Federal Motor Carrier Safety Administration (FMCSA) has announced a notice of proposed rulemaking, which if made final would allow drivers a bit more flexibility in complying with hours of service requirements. This proposed rulemaking is the direct result of the impact of electronic logging devices (ELD), and demonstrates that the agency has been listening to the industry.

When the Trump Administration took control of the FMCSA, the Obama-era rule requiring that driver hours of service be recorded by ELD had not yet gone into effect. Federal regulation limits the number of hours drivers can work, how long they can drive, and requires rest breaks, and long-haul drivers must account for their time using logbooks. Paper logbooks are subject to inaccurate hours of service reporting because entries are left to the discretion of the driver. ELDs, however, record driving time automatically. The Owner-Operator Independent Driver Association (OOIDA) and many truck drivers – a group that substantially overlaps with President Trump’s support base -- had fought vigorously against the ELD rule. OOIDA had even successfully challenged a previous iteration of the rule in court. Despite years of effort to implement the ELD rule, it was uncertain if the FMCSA would postpone, chip away at, or even reverse course on ELDs. 

But the agency held firm. Very few exemptions were granted, and the rule went into effect at the end of 2017, with drivers being placed out of service for violations four months later.

Ray Martinez was confirmed as FMCSA Administrator in February 2018, and in one of his first public appearances he lead a "listening session" at the Mid-America Trucking Show, during which he received an ear-ful from truck drivers that were angry about the ELD rule that had just gone into effect. Boldly, Martinez told the drivers that their anger was misplaced, that their real complaint was not with ELDs but with the hours of service rules. 

Drivers face many challenges in navigating hours of service restrictions, much of which is out of their control. The challenges include wait time while cargo is being loaded or unloaded from a truck, inclement weather, traffic, and lack of parking in rest stops and other locations. While drivers have never been permitted to be untruthful in their record keeping, paper logbooks did not physically prevent drivers from fudging the log to account for these difficulties. ELDs eliminated this slack, which highlighted these hours of service compliance difficulties. 

In that same listening session at the Mid-America Trucking Show, Martinez indicated that there may be some room for regulatory changes, not to eliminate the ELD requirement, but to make changes to the hours of service rules. In prepared remarks, he stated: "I may be able to make changes to regulations, if they’re outdated, if they don’t make sense. The only way we do that is by listening and learning."  

That appears to be exactly what Administrator Martinez and his administration has done. The rule that the FMCSA has proposed, which is set to be published in the Federal Register on August 20, would make changes to the following five areas. It would:

  1. Extend the distance short-haul drivers (who are not required to keep logbooks) may drive from 100 air miles to 150 air miles and allow short-haul drivers to be on duty for 14 hours rather than just 12;  
  2. Extend the adverse driving conditions exception by up to two hours;
  3. Change the mandatory 30-minute break so that it simply requires the driver not to drive, even if still on duty, rather than a mandatory off-duty period;
  4. Allow one off-duty break, lasting between 30 minutes and three hours, that would allow the driver to pause the clock on the driver’s 14-hour window in which to drive from the time the driver comes on duty; and
  5. Modify the sleeper-berth requirements to allow drivers to take their required 10 hours off duty in two periods, so long as one is at least seven hours in the sleeper berth, and the other is at least two hours (whether in or out of the sleeper berth).

There will be 45 days to comment on the proposed rule one it's published. 

The FMCSA had previously issued an advance notice of proposed rulemaking, in response to petitioners who sought to eliminate the rest break altogether, among other changes. The majority of the more than 5,000 comments to that advanced notice also wanted the rest break requirement to be eliminated. Despite this push to eliminate the rest break requirement, the FMCSA has not proposed to eliminate it, but rather to add more flexibility.

That is not to say that the proposed rule changes would not raise safety concerns. In the advance notice of proposed rulemaking, the American Academy of Sleep Medicine commented that the science shows that driver’s perception of tiredness is not a reliable predictor of performance capability and impairment. The American College of Chest Physicians noted that splitting rest time may compromise treatment for obstructive sleep apnea. The American Alliance for Healthy Sleep opposes a policy that would prevent drivers from getting at least seven continuous hours of sleep, and thus opposes split sleeper berth breaks (although the notice of proposed rulemaking seems to have accommodated this issue by requiring at least seven hours in a sleeper berth).   

While there may be valid safety reasons to make changes to the proposed rule, the agency seems to have taken its safety charge seriously, while weighing safety concerns against issues that drivers face.

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