Final rule for hours of service sent to OMB for review

Hours-of-service reform took another step closer to reality.

The Federal Motor Carrier Safety Administration sent a final rule regarding hours of service on Monday, March 2, to the Office of Management and Budget for review. The action comes less than five months after the public comment period ended on the agency’s notice of proposed rulemaking that aimed to provide more flexibility within the hours-of-service regulations.

“After carefully reviewing these comments, I am pleased to announce today that FMCSA is moving forward with a final rule on hours of service and that the agency has sent a final rule to the Office of Management and Budget for review,” FMCSA acting Administrator Jim Mullen announced at the Truckload Carriers Association Conference on Tuesday, March 3, in Orlando, Fla. “While I can’t go into the specifics of this final rule, please know that the goal of this process from the beginning has been to improve safety for all motorists and to increase flexibility for commercial drivers.”

Still, the public is months away from seeing the final plan. OMB lists the final rule as “pending review,” and a 90-day review period would take until June 1. However, those who have been following the process toward hours-of-service reform should know that 90 days is not a firm deadline. After FMCSA’s notice of proposed rulemaking was sent to OMB for review on March 28, the agency’s proposal wasn’t published in the Federal Register until Aug. 22.

FMCSA’s notice of proposed rulemaking included five major changes to the hours of service.

• The limits for short-haul operations would increase from 12 to 14 hours and from 100 air miles to 150.
• The adverse driving provision would allow a driver up to a 16-hour window within which to complete up to 13 hours of driving if the driver encounters adverse conditions.
• The 30-minute break requirement would be modified, prohibiting driving for more than eight consecutive hours without at least one 30-minute change in duty status. This would allow 30 minutes of on-duty, not driving time; off-duty time; or sleeper-berth time to qualify as a break.”
• In addition to splits of 10/0 and 8/2, drivers would be allowed a split-sleeper option of 7/3.
  Drivers would have the option of stopping the clock a minimum of 30 minutes and up to three hours consecutively once per duty period.

OOIDA has supported the push toward hours-of-service reform and is hopeful the final plan will be beneficial to truck drivers.

“We applaud the agency for submitting the final rule to OMB so quickly,” OOIDA President and CEO Todd Spencer said. “As FMCSA continues to move forward with hours-of-service reform, we are optimistic the final product will create meaningful reform that provides drivers with more flexibility and control over their schedules. Any final rulemaking must give drivers the choice on if and when to use the proposed provisions, should entirely eliminate the required 30-minute break and expand the split sleeper-berth options beyond just 7/3. If FMCSA gets it right, we’re confident most drivers will be happy with the changes.”

Background

The delivery of a final rule to OMB is the latest step in a more than two-year push toward hours-of-service reform.

It all started in February 2018 when OOIDA submitted a petition to FMCSA, saying that the “flawed” ELD mandate highlighted the rigidity of the hours-of-service rules.

By placing strict regulations on when truckers can’t drive, the rules put pressure on truck drivers who are mostly paid by the mile to drive during the window that the hours of service allow regardless of traffic, weather, or fatigue.

OOIDA asked the agency to reform the hours of service, which included requests to eliminate the 30-minute rest break requirement and to allow drivers to take a rest break once per 14-hour duty period for three consecutive hours if the driver is off duty.

FMCSA responded in August 2018 by issuing an advance notice of proposed rulemaking that planned to consider changes to hours-of-service regulations involving the short-haul exemption, adverse driving conditions, the 30-minute break requirement, and sleeper-berth options. The agency hosted five public listening sessions on the topic and received more than 5,200 comments. Truckers echoed OOIDA’s sentiment from the petition, saying the current regulations lack the flexibility drivers need to maintain safety.

This past March, U.S. Department of Transportation Secretary Elaine Chao told a room full of truck drivers at the Mid-America Trucking Show in Louisville, Ky., that the agency had listened and change was coming. The notice of proposed rulemaking was sent on March 28 to OMB.

FMCSA revealed the plan on Aug. 14, and the notice of proposed rulemaking was published Aug. 22 in the Federal Register. The public comment period ended Oct. 21, and the agency received a total of more than 8,100 comments regarding hours of service.

OOIDA’s comments

While recommending a few tweaks, OOIDA said in its comments on the notice of proposed rulemaking that FMCSA’s plan represents “a welcomed shift toward developing regulations that better reflect the realities of trucking and improve safety for all highway users.”

The Association said a key to the success of the hours-of-service proposal will be for the agency to help prevent drivers from being coerced by shippers and receivers or motor carriers.

“The provisions included in the notice of proposed rulemaking will provide much needed flexibility and do not increase the maximum allowable driving time,” OOIDA wrote. “However, in order for these changes to have the most safety benefits, drivers should have sole discretion about how and when to use these provisions. Drivers have the best understanding of when they should take a break, when road conditions are too dangerous, and when they should rest.”

OOIDA also asked for the agency to eliminate the 30-minute break requirement and to add sleeper-berth options of 6/4 and 5/5. The Association supported changes to the split-duty period and short-haul limits. OOIDA also supports the proposal regarding the adverse driving provision but would like to see the definition expanded.

“OOIDA recommends that the definition be modified to include other circumstances, like unusual traffic congestion, accidents, construction, detours or road closures. We also believe an updated definition could help clarify some of the current confusion between drivers and law enforcement personnel about which situations are appropriate for utilizing the provision.”

The Association has also urged FMCSA to move swiftly in its efforts to provide drivers more flexibility.

“OOIDA strongly supports the agency’s approach, which will provide drivers more opportunities to rest when they are tired, to stay off the road during adverse driving conditions, and to maintain greater control over their own schedules,” the Association wrote.