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  • Adele L. Abrams, Esq., CMSP

FMCSA Hours of Service Rule Changes Take Effect

On June 1, 2020, the Federal Motor Carrier Safety Administration (FMCSA) published a final rule modifying the “Hours of Service” (HOS) regulations applicable to commercial motor vehicle drivers (CMV or CDL drivers). The rule becomes effective on September 29, 2020, and relaxes certain requirements. Until the effective date, the older and stricter rules must be followed. FMCSA, part of the US Department of Transportation, has published the rule and some guidance on its website: https://www.fmcsa.dot.gov/regulations/hours-of-service. Specific guidance can be obtained via email at hoursofservice@dot.gov.


There are four key changes made to existing rules, designed to give commercial drivers greater flexibility while maintaining safety standards on the road. DOT estimates that the revisions will provide nearly $274 million in annualized cost savings to the U.S. economy. The final rule was developed via notice-and-comment rulemaking and so is binding on the regulated community, unlike agency guidance (which can be modified or withdrawn at any time). The rulemaking was controversial, and the agency received nearly 8,000 comments from the public during the promulgation period. The HOS regulations being modified are codified at 49 CFR Part 395, which prescribes driving limits for commercial drivers.


The four areas affected by the HOS final rule, explained in detail below, are:

· Short-Haul Exception

· Adverse Driving Conditions Exception

· 30-Minute Break Requirements, and

· Sleeper Berth Provision.


Short-Haul Exception: The FMCSA short-haul exception previously had a maximum allowable workday of 12 hours. That has been expanded to 14 hours. The distance that the short-haul driver may operate has been extended from a 100-mile (air-mile) radius to a 150-air-mile radius. An “air mile” is internationally defined as a “nautical mile” – equivalent to 6,076 feet.


When operating under the short-haul exception, drivers who are released within their 14-hour duty period (and who drive no more than 11 driving hours within that period) are now permitted to keep a time record instead of recording time in a graph grid or using an Electronic Logging Device (ELD). If this time record alternative is used, the record must include the total time for the preceding 7 days, and these records must be maintained for 6 months.


Once a driver no longer meets the short-haul exception (e.g., they drive too far or work too many hours), then the driver must use a regular log or ELD for that day (49 CFR 395.8). If the driver must complete a log but falls outside the exception for 8 or fewer days within the previous 30 days, he/she can use a paper log with a graph grid. If the driver exceeds the hours for more than 8 days within the previous 30 days, then a ELD must be used to record time for that day.


In addition, to meet this exception, the shift must start and end in the same location, and the driver must have at least 8 hours off if they are transporting passengers, or 10 hours off if they are a property carrier, between duty periods. The record must include the start and end times for the day, and the total hours on-duty on the record. Those provisions are unchanged from the original standard 49 CFR 395.1(e). In addition, the new HOS rule did not change the non-CDL short-haul exception in this section.


Adverse Driving Conditions Exception: The adverse driving conditions exception extends the duty-day by two hours when adverse driving conditions are encountered; this is in addition to the extra two hours of driving time already allowed. The adverse driving conditions two-hour extension will apply to both property-carrying (11 hour driving limit and 14-hour driving window) and passenger-carrying (10 hour driving limit and 15-hour on-duty limit) motor carriers. Under the old rule, the maximum driving limits had been 11 hours for property carriers and 10 hours for passenger carriers. So the bottom line is that, under the final rule, when using this exception, drivers can driver up to 13 hours within a 16-hour driving window (property) or can drive 12 hours within a 17-hour on-duty period (passenger).

The final rule also redefined what constitutes “adverse driving conditions.” The new test covers 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: (1) a driver immediately prior to beginning the duty day or immediately before beginning driving after a qualifying rest break or sleeper berth period, or (2) a motor carrier immediately prior to dispatching the driver. The old test required that none of the conditions could have been apparent on the basis of information known to the dispatcher at the time the run started.

FMCSA stresses in guidance that the exception cannot be used to cover delays caused by detention time, breakdowns or enforcement inspections, nor does it apply to loading/unloading activities. For road construction-related delays, the adverse conditions exception only applies where the driver could not have known of the construction delays before they started driving.


30-Minute Break Requirement: The 30-minute break requirement can be satisfied now by an on-duty non-driving break (in addition to an off-duty break). The requirement for property-carrying drivers is applicable in situations where a driver has driven for a period of 8 ours without at least a 30-minute interruption. In the past, a driver had to satisfy the 30-minute break by spending time off-duty or in a sleeper berth. Under the revised regulation, the 30-minute break includes time either off-duty, in the sleeper berth, or on-duty but not driving. The 30-minute break must be consecutive but can include a combination of these three options. Short, non-consecutive periods cannot be combined to reach the 30 minutes of non-driving time, however.


Sleeper Berth Provision: This provision allows commercial drivers to split their 10-hour off-duty period in different ways. Options now include splits such as 7/3, 8/2, 7.5./2.5 hours – provided that 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. The periods must total 10 hours, and when used together, neither time period counts against the maximum 14-hour driving window. The order of the qualifying breaks does not matter, so the 2 hour break can occur before or after the 7+ hour period in the sleeper berth.

Previously, only the 8 hours in-berth counted toward the exclusion from the 14-hour driving window, but the other hours were included. The new rule allows the pairings outlined above, but FMCSA notes that an 8-hour sleeper berth period by itself can no longer be excluded from the 14-hour driving window. In addition, it is important to note that the final rule does not change sleeper berth provisions that are unique to drivers of CMVs transporting passengers (49 CFR 395.1(g)(3)).


Finally, FMCSA notes that the minimum requirements in its previous Electronic Logging Device final rule did not require ELDs to identify hours of service violations, but some ELD providers added on this feature. If an ELD is not updated to reflect the new HOS rules, the ELD may inaccurately identify hours of service violations. Motor carriers should contact their ELD provider with any questions about their displays.


For more information on workplace or transportation safety issues, contact Adele Abrams at safetylawyer@gmail.com.

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