In what the Federal Motor Carrier Safety Administration chief called a “common-sense approach,” the agency has proposed five key revisions to truck driver hours-of-service rules. The changes were made in a process that started with trucking industry concerns about a lack of flexibility in the rules.
“Drivers face congestion, parking issues, unexpected adverse conditions – and they need some flexibility,” FMCSA Administrator Ray Martinez said in a conference call with reporters. “It may have been felt they were racing the clock, especially those on AOBRDs and ELDs [electronic logs to monitor their hours of service]. And that was not the intent of the implementation of [mandatory] ELDs. It’s not supposed to encourage driving in situations where you are already fatigued to race the clock. We hope that by providing flexibility, it puts a little more power back in the hands of drivers and carriers to make smart decisions regarding safety and the reality of what they’re facing on the roadways.”
The agency emphasized that the proposed changes would not increase allowable driving time.
1. The 30-minute break
The proposal would change the 30-minute break requirement to require a break after eight hours of uninterrupted driving time, not on-duty time, and allowing the break to be satisfied by a driver using on-duty/not driving status, rather than off-duty. So if a driver has to take a break to fuel up, grab a cup of coffee, use the restroom, etc., that can count as the required break.
“Many drivers told us they felt it was a waste of time,” Martinez told reporters in a conference call. “They were taking a 30-minute break when they stopped at a rest stop, getting a cup of coffee, fueling up, but they weren’t getting credit for that, even though they were breaking from the driving task.”
This change in fact may eliminate the need for a rest break at all in some cases, such as less-than-truckload or private carrier operations where they may work 12 hours a day but only have seven hours of driving time.
2. Split sleeper berth
FMCSA proposed allowing drivers to split their required 10 hours off-duty into two periods: one period of at least seven consecutive hours in the sleeper berth and the other period of not less than two consecutive hours, either off-duty or in the sleeper berth. This would allow a 7/3 split in addition to the 8/2 and 9/1 splits currently allowed. Neither period would count against the driver’s 14‑hour driving window.
Many in the industry had wanted to be able to split their sleeper-berth time into more even periods. Martinez noted that the agency has spent the better part of this past year engaging with the industry through both formal and informal measures to gather input into this proposal. “It’s a very diverse industry; there are a lot of different opinions out there, and we received over 5,000 comments, many of them directed toward the sleeper berth issue,” Martinez told reporters in a conference call. “We believe this is rooted in the best data we have available at this time.”
Joe DeLorenzo, director of the FMCSA Office of Enforcement, pointed out that “this is everybody’s opportunity to comment. When you look at the [rulemaking] document, there are a series of questions where we ask about other scenarios and the possibility of more data being available” to support such a move.
3. Pausing the on-duty clock
The proposal would allow one off-duty break of at least 30 minutes, but not more than three hours, that would pause a truck driver’s 14-hour on-duty window, provided the driver takes 10 consecutive hours off-duty at the end of the work shift. This would allow, for instance, drivers to take up to a three-hour break to wait out rush hour, without it affecting their maximum on-duty time.
Under current rules, once a driver starts his work day, the clock runs for a maximum of 14 hours of work time. “The current 14-hour clock means [if I’m a driver], I need to make the most out of my time during those 14 hours,” DeLorenzo said. “So I’ll drive through rush hour traffic. Where the [proposed] provision as described will allow that driver to take three hours off to let rush hour traffic clear, and be more productive and have gotten some rest during that period of time.”
“I wasn’t expecting the allowance to extend the 14-hour workday by up to three hours for off-duty periods,” Tim Wiseman, a partner with transportation legal and consulting firm Scopelitis, Garvin, Light, Hanson & Feary, told HDT in an interview. “This helps the less-than-truckload and long-haul carriers where the trucker gets slowed down at a shipper or delivery location.”
4. Adverse driving conditions
The proposal would modify the adverse driving conditions exception, adding two hours to the maximum window during which driving is permitted.
The current rule allows for an extra two hours of driving time, but it still must be within the maximum 14-hour workday. The proposal would allow that workday to be extended to as much as 16 hours in the case of adverse conditions such as extreme weather or congestion. The definition of "adverse driving" would not change.
5. Short-haul exemption
Change the short-haul exception available to certain commercial drivers by lengthening the drivers’ maximum on‑duty period from 12 to 14 hours and extending the distance limit within which the driver may operate from 100 air miles to 150 air miles.
Wiseman noted that by expanding the short haul exemption, because these operations are exempt from the 30-minute rest break, that also is a beneficial development for those who find the current rest-break rules onerous.
While many of the changes were not unexpected, given the questions put forth in the Advanced Notice of Proposed Rulemaking, “I think I was pleasantly surprised from an industry standpoint,” Wiseman said. “I think they went further than anyone forecasted or thought they would on a couple of these rules.” He said “there’s something for everyone” in the different segments of the trucking industry, such as long-haul, less-than-truckload, short-haul and port trucking.
The American Trucking Associations and the Owner-Operator Independent Drivers Association, which are often on opposite sides of many issues, both praised the proposal.
“Secretary Chao and Administrator Martinez are to be commended for their commitment to an open and data-driven process to update the hours-of-service rules,” said ATA President and CEO Chris Spear in a statement. “We look forward to studying and understanding how these proposed changes will impact our industry so we can provide relevant data and information to strengthen and support a good final rule that bolsters safety and provides drivers needed flexibility.
“Truckers have families and want to get home safely just like everyone else. They are the most knowledgeable, highway safety advocates and the agency’s proposal, overall, recognizes that fact,” said Todd Spencer, president of OOIDA.
The association pointed out that truckers are expected to comply with a litany of regulations while meeting the needs of shippers and receivers that are often oblivious to those rules, making drivers wait hours to be loaded or unloaded.
“There may not be a one-size fits all solution, but the proposed changes are a positive start, since truckers don’t have any control over their schedules or traffic conditions,” Spencer said. “For too long and too often, they find themselves in unsafe circumstances because of current, overly restrictive rules that decrease highway safety.”
However, Teamsters General President Jim Hoffa said in a statement that while the union is still evaluating the full proposal, it has “serious concerns.”
“In an effort to increase so-called ‘flexibility’ for trucking companies, the FMCSA is abandoning safety and allowing drivers to push themselves to the limit even further,” Hoffa said. “Changes for short-haul truckers, for example, would extend their days from 12 to 14 hours on the job. That means a longer and more exhausting workday for tens of thousands of American workers. The Teamsters are also concerned about language changing the 30-minute rest break and the ability of drivers to press the pause button on their hours-of service-clock.
“Trucking is already one of the nation’s most dangerous jobs. We shouldn’t be sacrificing the health and safety of drivers just to pad the profits of their big-business bosses.”
The Truck Safety Coalition, in a statement on its website, said it will submit comments in opposition to the proposed changes, as it did on the Advanced Notice of Proposed Rulemaking.
“Claiming that these changes ‘provide greater flexibility for drivers subject to the HOS rules without adversely affect safety’ is a departure from reality as well as the agency’s main mission: improving truck safety,” the coalition wrote. “Instead of moving forward on these rollbacks, the agency must produce compelling data to demonstrate that these changes will not lead to more health problems for truck drivers, more coercion of truck drivers and more crashes involving trucks drivers operating while fatigued.”
The Truck Safety Coalition’s original comments on the “pre-rule,” which it likely will reiterate in its comments on the new proposal, included:
• Short haul exemption expansion: “Making this exemption from ELDs more attainable may invite the worst actors to exploit it at the expense of truck drivers being adequately compensated and, more importantly, at the expense of public safety. Aside from reducing paperwork costs and minimizing the ability to cheat on hours, the ELD mandate has also helped expose the true extent of unpaid detention time faced by both long haul and short haul truck drivers.”
- The 30-minute break was mandated as part of the 2011 HOS rule, the coalition said, and was heavily backed up by science. “One FMCSA study found that crash risk increases significantly with driving time for at least the 7th through the 11th consecutive hours of driving.”
- The proposed change to the adverse driving condition rules would “lengthen total work time from 14 hours to 16 hours. Considering there is research that indicates that injury risks go up after eight hours on task, with a 30% increase on a 12-hour task, how can the agency justify extending a work day to double that amount to 16 hours in even worse conditions?”
- Split sleeper berth: “By allowing a truck driver to split his time into divisions of three and seven hours, four and six hours, or two five-hour periods, the agency would essentially ignore all of the research that shows at least eight hours is required to attain restorative rest. To make matters worse, this proposed change would be exacerbated by the fact the research shows sleep in a sleeper berth provides less restorative rest than sleeping in a bed.”
Wiseman said he wouldn’t be surprised if the proposal is faced with a legal challenge. “The last two major hours-of-service reforms were tied up in court from various lawsuits, and I think we’ll probably see the same here.”
He thinks the FMCSA is probably anticipating that as well, and spent much of the some 130-page-long proposal justifying the changes with case studies and research illustrating the impact on highway safety.
“I haven’t read it all yet, but it looks like they’re done their homework, and hopefully that won’t be a basis for a court to throw out the rulemaking.”
When asked about potential challenges from safety groups, Martinez told reporters, “The name of our agency is the Federal Motor Carrier SAFETY Administration, and all decisions we make are made through the lens of safety. We believe these are reasonable, common-sense changes that allow some flexibility for the drivers to make good judgment decisions, to properly plan for their travel, and we are hopeful that across the board, not just drivers, carriers, and safety directors, but all stakeholders, will take a look at these proposals in their totality. We’re hoping for broad support across the board.”
Make your voice heard
Martinez repeatedly emphasized in a conference call with reporters that this is just a proposal and subject to change before a final rule is published.
“We want to hear from the American people,” he said.
When asked by HDT for any kind of estimate on when proposed changes might go into effect, Martinez said he couldn’t make any predictions, but the agency wants to proceed to a final rulemaking expeditiously.
“That is a commitment we made, that I made last year, that this was going to be on a fast track – which doesn’t mean we are cutting any corners. It means we are working hard and have worked hard to get it to this point.”
Calling the proposed rulemaking “a critical turning point,” Martinez said, “It doesn’t mean we’re going to slow down at all. We hope people will jump on the comment period and submit comments as quickly as possible so we can begin the evaluation process and move with all due speed to get to final rules as quickly as possible – again with safety as the priority all along the way.”
Wiseman also noted that even if litigation doesn’t tie up the rule, the proposal also includes a question asking ELD vendors for their input on how long it would take to update their software to include the new rules. “So even if it were to become final say in January 2020, there probably will be a six- to 12 month period where it’s not effective yet to allow the ELD vendors to make the modifications to the electronic logging devices.”
The public comment period will be open for 45 days. The Federal Register Notice, including how to submit comments, is available here: https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/regulations/hours-service/474821/nprmfile08-08-2019-131534.pdf.