Clock is ticking to comment on HOS

By Mark Schremmer and Jami Jones

FMCSA’s long-anticipated notice of proposed rulemaking for hours-of-service reform is here, and now is the time for truckers to let the agency know what they think.

In August, FMCSA revealed its proposal that promises to give truck drivers more flexibility with hours-of-service regulations.

The Owner-Operator Independent Drivers Association called the plan a big step forward.

“The need for changes to the hours-of-service regulations has fallen on deaf ears in Washington, D.C., for too long,” OOIDA President and CEO Todd Spencer said. “Anyone who truly understands trucking realizes the existing regulations simply don’t work. With the announcement of the proposed changes under Administrator (Ray) Martinez’s leadership, we’re hopefully going to take a big step in the right direction and give drivers more flexibility and, ultimately, improve highway safety.”

Prompted by an OOIDA petition and thousands of comments from truck drivers, the proposed reform aims to provide truckers the flexibility within the hours-of-service regulations in order to make the highways safer. Basically, the goal is to give truckers more freedom to stop when they are tired and to avoid driving in adverse weather conditions or heavy traffic.

The agency proposed five changes.

1. The limits for short-haul operations would increase from 12 to 14 hours and from 100 air miles to 150.
2. 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.
3. 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.
4. In addition to splits of 10/0 and 8/2, drivers would be allowed a split-sleeper option of 7/3.
5. Drivers would have the option of stopping the clock a minimum of 30 minutes and up to three hours consecutively once per duty period.

“We hope that by providing this type of flexibility, it will put a little bit more power into the hands of the drivers to address the realities they are facing on the road,” Martinez said.

OOIDA Executive Vice President Lewie Pugh said the proposed changes are an improvement from the existing regulations.

“I spent nearly 25 years driving truck, so I’m qualified to say that the existing hours-of-service regulations are ‘misguided,’ to put it politely,” Pugh said. “Administrator Martinez committed to working with OOIDA to address this issue, and he’s following through on it. Not only do we want to express our sincere thanks to him and his team, but we also want to thank our members for everything they’ve done to get us to this point. In this case, persistence has paid off, and we’re going to do everything we can to get these changes across the finish line.”

How we got here

Truckers have complained about the rigidity of FMCSA’s hours-of-service regulations for years, but the spotlight shined bright on the issue after the electronic logging mandate went into effect in December 2017. Many truck drivers said the current regulations are too rigid, often forcing them to drive in unsafe conditions and stop when they are wide awake and the highway conditions are optimal.

In February 2018, OOIDA submitted a petition regarding hours-of-service reform to FMCSA. The petition asked for regulations to allow drivers to take a rest break once per 14-hour duty period for three consecutive hours if the driver is off-duty. OOIDA also asked the agency to eliminate the 30-minute rest break requirement.

A few months later, FMCSA issued an advance notice of proposed rulemaking about hours of service. 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.

In 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 the Office of Management and Budget for Review. The rulemaking sat at OMB for months. It had been projected to publish in the Federal Register on June 7, and then the 90-day mark was reached on June 26. On July 31, another projected date arrived and passed.

FMCSA revealed the plan on Aug. 14, and the notice of proposed rulemaking was published Aug. 22 in the Federal Register.

The agency says each proposed change was done with the intention of providing drivers more flexibility and giving them more control to not drive in unsafe conditions.

Short haul

Current regulations for short-haul operations allow a 12-hour workday with up to 11 driving hours. Passenger-carrier drivers are allowed 10 hours of driving in a 12-hour workday.

Under this short-haul exception, drivers also must operate within a 100 air-mile radius of their work reporting location.

Other property-carrying commercial motor vehicle drivers not using the short-haul exception have a 14-hour window in which to drive up to 11 hours.

There also are current exemptions to the short-haul operation provision. The FAST Act required that FMCSA allow drivers of ready-mixed concrete delivery trucks to return to the normal work reporting location within 14 hours of coming on duty. FMCSA implemented the provision in July 2016. Since then, FMCSA has granted exemptions to Waste Management Holdings, American Concrete Pumping Association, and National Asphalt Pavement Association.

Because the data from those exemptions did not reveal an increase in crashes, FMCSA proposes to increase the maximum allowable workday for property-carrying commercial motor vehicle drivers under the short-haul exception from 12 to 14 hours and air-mile radius from 100 to 150.

The amount of driving time would not change under the proposal.

Before making the proposal a final rule, the agency wants feedback on several questions related to the short-haul change.

• How will this change impact motor carrier’s ability to enforce hours-of-service rules? What enforcement difficulties may arise from expanding both the time and distance requirements?
• Will drivers drive farther or longer in the driving window under the short-haul exception? Would this be different than these loads being hauled by drivers complying with ELD requirements?
• Will the elimination of the 30-minute break requirement for drivers who are potentially driving later in their duty period affect safety?
• What cost savings are expected from not having to comply with the ELD requirements?

Adverse driving conditions

The current hours-of-service regulations already have an “adverse driving” provision. However, the FMCSA said it is seldom used. As part of the agency’s proposal for hours-of-service reform, FMCSA is pitching some changes to the provision in order to make it more feasible for drivers to use.

Under current regulations, truck drivers can be allowed two additional hours of driving time for “adverse conditions,” which is defined as “snow, sleet, fog, other adverse weather conditions, a highway covered with snow or ice, or unusual road and traffic conditions, none of which were apparent on the basis of information known to the person dispatching the run at the time it was begun.”

Although the current rule allows truckers to increase their driving time from 11 to 13 hours, it does not provide a corresponding extension of the 14-hour driving window. During the advance notice of proposed rulemaking on hours of service, FMCSA said many drivers commented that they have never used the adverse driving conditions exception.

FMCSA’s proposed change to the adverse driving provision would allow a trucker up to a 16-hour window within which to complete 13 hours of driving.

“FMCSA expects the proposed increase to duty time during adverse driving conditions to incentivize drivers facing these conditions to either travel at a reduced speed due to road conditions, which is likely to minimize the risk of crashes, or to suspend commercial motor vehicle operations in order to wait for the adverse conditions to abate,” the agency wrote in its notice of proposed rulemaking.

The agency also emphasizes that the change would not increase the amount of driving time that is already allowed under the provision. FMCSA said it doesn’t expect the change to lead to an increase in vehicle miles traveled. Rather, it would just change the time in which those miles are driven.

Increasing the hours-of-service window during adverse conditions is not uncommon in other segments of the U.S. Department of Transportation. The Federal Aviation Administration allows a two-hour flight duty period extension for unforeseen operational conditions, and the Federal Railroad Administration allows a four-hour duty period extension for emergencies or work related to emergencies.

In addition, the agency requests public comment about potential modifications to the definition of “adverse driving conditions.” FMCSA said many of the comments it received in the advance notice of proposed rulemaking suggested that the current definition is “confusing.”

“Specifically, the agency requests input on the suggestion that knowledge of the existence of adverse conditions should rest with the driver rather than the dispatcher,” the notice stated. “Alternatively, should the requirement for lack of advance knowledge at the time of dispatch be eliminated? Should the current definition of ‘adverse driving conditions’ be modified to address other circumstances?”

Rest breaks

Drivers for years have said they want to be able to take rest breaks when they want to. Finally, there is some traction at the agency level to make that happen.

When FMCSA released its notice of proposed rulemaking, many zeroed in on the two provisions regarding rest breaks. In short, the notice proposed two changes specific to rest breaks:

• Tying the 30-minute rest break requirement to eight hours of driving time and allowing the break to be satisfied by a driver using on-duty-but-not-driving status.
• Allowing drivers the option of taking a three-consecutive-hour break once per duty period.

Currently, drivers are required to take a 30-minute rest break every day they are on duty for more than eight hours. It has to be logged off duty or in the sleeper berth, and it does not stop the 14-hour on-duty clock – unless you’re running under an exemption.

The proposal is to change the requirement of a 30-minute rest break from before eight hours of on-duty time have transpired to if more than eight hours of consecutive driving time have passed.

The trick now is that it’s not a hard-and-fast everyday requirement. It’s only a requirement if you actually drive eight hours nonstop. The language in the proposal even states that, “if required,” drivers can take it on duty but not driving, off duty, or in the sleeper berth.

The language does not specifically state that if a driver takes the 30-minute rest break off duty if it will stop the 14-hour on-duty clock. It can in some cases, however, depending on if a driver uses the second break option proposed.

In the current regulations, once the duty period starts, it runs for 14 consecutive hours. After that, a driver may not drive a commercial motor vehicle again until after 10 or more consecutive hours off duty. Nothing stops the running of the

14-hour clock except a minimum eight-hour period in a sleeper berth.

What the agency is proposing is to add an option for one off-duty period of not less than 30 minutes but no more than three hours that would stop the ticking 14-hour clock for the duration of the rest period. Remember, this is not a requirement and is optional.

The language could be a bit confusing. The proposal is not restricting drivers to only one off-duty break per day. In reality, drivers can take as many as they want but only one can pause the 14-hour clock.

So if a driver has driven eight consecutive hours and takes the required 30-minute rest break as off duty and takes no other breaks throughout the day, that mandatory rest break could be used to pause the on-duty clock. It doesn’t have to, but it can be annotated and used that way.

Consider another scenario. A driver takes a required 30-minute rest break and logs it as off duty and then takes a second longer off-duty break during the day. Before the end of the 14-hour duty shift, the driver has the option to choose one of the two off-duty to pause the on-duty shift.

The only way a mandatory 30-minute rest break cannot be used to pause the 14-hour on-duty shift is if it is logged on duty but not driving.

Sleeper berth

Among the changes proposed to the hours-of-service regulations is to return to being allowed to split sleeper berth time.

Currently, and in the proposal, drivers are required to take 10 hours of off-duty time. Right now, that time can be taken in one 10-hour stretch or split. Drivers are only allowed to split sleeper berth time into one eight-hour period and a second two-hour period. The eight must be taken in the sleeper, but the two can be taken off duty, and for team drivers that off-duty time can be in the jump seat.

As proposed, FMCSA is seeking comments on the ability to split the sleeper berth time with some more flexibility. Instead of a rigid 8/2 split, FMCSA is proposing to let drivers split one period between seven and eight hours. The second period must then be between two and three hours. For ease, the agency is basically proposing to add a 7/3 split.

Feedback encouraged

Comments can be made at the Regulations.gov website by using docket number FMCSA-2018-0248 until Oct. 21.

OOIDA encourages truckers to submit comments.

“The agency needs to justify the changes that they make, and we are especially pleased that they are reaching out to the real experts – the people who face these situations every day,” Spencer said. “Your feedback is instrumental … What would work best and why? You guys are the trucking experts. Show that you are in your comments to the agency.” LL