May 22, 2020

New Hours of Service Rule Will Allow Drivers More Flexibility

Holland & Knight Transportation Blog
Jameson B. Rice | Amanda Barbour
Transportation Blog

The Federal Motor Carrier Safety Administration (FMCSA) has published its long-awaited final rule on changes to hours of service requirements in a move intended to increase flexibility for truck drivers and motor carriers. The final rule is based on a proposed rulemaking that was announced August 14, 2019, as discussed in the previously published post, Expanded Driver Hours of Service a Response to ELDs, Shows that FMCSA is Listening to Industry.

The final rule has not yet been published but was announced by the FMCSA on May 14, 2020. The rule will go into effect 120 days after publication, likely taking effect around the end of September. The final rule includes four key revisions to the existing hours of service requirements:

  1. Extends the distance short-haul drivers (who are not required to keep logbooks) may drive from 100 air miles to 150 air miles, and allows short-haul drivers to be on duty for 14 hours rather than just 12
  2. The requirement to take a 30-minute break does not occur until 8 hours of driving time (rather than simply on-duty time) has elapsed; the driver may now remain on duty during the break, so long as the driver isn't driving
  3. Extends the adverse driving conditions exception by up to 2 hours
  4. Modifies the sleeper-berth exception to allow drivers to split their required 10 hours off duty into two periods, so long as one is at least 7 hours in the sleeper berth and the other is at least 2 hours (whether in or out of the sleeper berth), with neither period counting against the driver's 14-hour driving window

Notably, the rule does not include a provision that would have given drivers the option of "pausing" the on-duty hours-of-service clock once per duty period. FMCSA acting Administrator Jim Mullen (who has taken the place of Administrator Raymond Martinez since the proposed rulemaking was issued) said the provision to stop the clock was not included in the final rule based on comments received and that the new split sleeper-berth rules would create similar flexibility.

The rigidity of the hours of service requirements were exposed when the electronic logging mandate went into effect in December 2017, requiring that driver hours of service be recorded by electronic logging devices (ELDs). 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 "adjusting" the log to account for these difficulties. ELDs eliminated this slack, which highlighted these hours of service compliance difficulties.

Some have expressed concern about the final rule's potential to impact safety. In a joint statement, Rep. Nita Lowey (D-N.Y.), chair of the U.S. House Committee on Appropriations, and Rep. David Price (D-N.C.), chair of the U.S. House Transportation, Housing and Urban Development and Related Agencies subcommittee, said the final rule could jeopardize the safety of truckers and the traveling public because of the potential for greater fatigue. In addition, Advocates for Highway and Auto Safety released a statement and questioned changing the nature of the breaks drivers can take.

While there may be valid safety concerns, the FMCSA has emphasized that the final rule would not increase driving time and would continue to prevent drivers from driving for more than 8 consecutive hours without at least a 30-minute change in duty status. The FMCSA seems to have taken its safety charge seriously while weighing safety concerns against issues that drivers face.

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