USDOT Issues Final Rule on Hours Of Service Requirements

On May 14, 2020, the Federal Motor Carrier Safety Administration (FMCSA), one of the operating agencies within the United States Department of Transportation, issued revised hours of service (HOS) regulations that are intended to provide greater flexibility for drivers subject to those rules without changing the maximum allowable driving time or adversely affecting safety.[1] 

WHY IT MATTERS:

Motor carriers and transportation attorneys should pay particular attention to this final rule, as it will create four primary revisions to existing regulations under 49 C.F.R. Part 395 that may significantly affect operations within the industry. In addition to the increased flexibility, the FMCSA also believes that the final rule will result in a quantified reduction in costs for motor carriers. The change to the 30-minute break requirement alone is expected to result in a cost savings of $2.8143 billion over a ten-year period. 

PRIMARY REVISIONS TO EXISTING REGULATIONS:

The first revision contemplated by the final rule is aimed at the “short-haul exception” applicable to certain drivers, in two different distance and time respects. First, it will extend the maximum radius in which the short-haul exception applies from 100 to 150 air-miles. Second, as part of the short-haul exception, the final rule also will extend the maximum duty period allowed in 49 CFR 395.1(e)(1) from 12 hours to 14 hours. While the revision allows a 14-hour work shift to take place, motor carriers and drivers should note that nothing in that revision permits driving after the 14th hour from the beginning of the workday.

The second major revision included in the final rule would expand by up to two additional hours beyond the maximum allowable hours of driving time or duty time otherwise permitted for a driver who encounters adverse driving conditions to complete that run or to reach a place offering safety for the occupants of the commercial motor vehicle and security for the commercial motor vehicle and its cargo. The final rule will also expand FMCSA’s definition of “adverse driving conditions” within § 395.2 to include “snow, ice, sleet, fog, or other adverse weather conditions or unusual road or traffic conditions that were not known, or could not reasonably be known, to a driver immediately prior to beginning the duty day or immediately before beginning driving after a qualifying rest break or sleeper berth period, or to a motor carrier immediately prior to dispatching the driver.” This expands the scope of the exemption to apply to the driver’s knowledge of the conditions that are unknown, or could not reasonably be known, immediately before beginning driving after a qualifying rest break or sleeper berth period, as well as to a motor carrier or its dispatcher’s knowledge immediately prior to dispatching the driver.

A third revision arising out of the final rule affects what satisfies the requirement of a 30-minute break after eight consecutive hours since the last off-duty period of at least thirty minutes. The amendment by the final rule would allow any 30 minutes of non-driving time to qualify as a break, i.e., on-duty (not driving) time, off-duty time, or sleeper berth time.

Under the current rules, a “break” is one that (1) is required to be off-duty time during which no work, including paperwork, may be performed, and (2) is triggered after 8 hours on-duty time, regardless of the time spent driving.

Finally, under the final rule, the FMCSA modifies the sleeper berth requirements to allow drivers to take their required 10 hours off-duty in two periods, provided one off-duty period (whether in or out of the sleeper berth) is at least 2 hours long and the other involves at least 7 consecutive hours spent in the sleeper berth. Neither period counts against the maximum 14-hour driving window in § 395.3(a)(2).

Notably, the FMCSA did not include in the final rule a proposal to allow a single off-duty period of up to 3 hours to be excluded from the 14-hour driving window. That provision had been included in the proposed final rule that was published in the Federal Register on August 22, 2019.[2] 

The final rule will become effective 120 days after its date of upcoming publication in the Federal Register.

THE BOTTOM LINE:

As explained in the final rule, the FMCSA believes that the upcoming changes will allow drivers to shift their drive and work time to mitigate the impacts of certain variables (e.g., weather, traffic, detention times, etc.) and to take breaks without penalty when they need rest. The FMCSA does not believe that these changes will negatively impact drivers’ health or create increased safety risks, but rather will allow drivers greater flexibility to take needed breaks from driving tasks and to obtain recuperative sleep.

The FMCA also anticipates that motor carriers will benefit from certain non-quantified cost savings, including: “increased flexibility resulting from the extension of the duty day and the air-mile radius for those operating under the short-haul exception; the increased options for drivers to respond to adverse driving conditions during the course of their duty period; reduced need to apply for exceptions from the 30-minute break requirement and for special eligibility for the short-haul exception; and increased flexibility afforded to drivers, such as increased options with regard to on-duty and off-duty time resulting from changes to the 30-minute break requirement and the sleeper berth provisions.”[3] 

?Furthermore, the FMCSA believes that, while work hours (driving and non-driving) or vehicle miles traveled (VMT) may change for individual drivers, the final rule will not result in an increase in freight movement or aggregate VMT across the nation’s roadways.

1 FMCSA-2018-0248, Final Rule, available at: https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020- 05/HOS%20Master%20050120%20clean.pdf.

2 84 FR 44190, available at https://www.federalregister.gov/documents/2019/08/22/2019-17810/hours-of-service-of-drivers.

3 FMCSA-2018-0248, Final Rule, supra.

Lorance Thompson’s Transportation Go Team assists clients in navigating the multitude of laws and regulations affecting the transportation and logistics industries. 

For assistance in addressing these issues or in evaluating how the new final rule could affect your business or organization, please contact Lorance Thompson attorney Adam J. Russ and he will engage the appropriate members of the response team. 

This article is meant for educational purposes only, and is not to be taken as professional legal advice.