United States: Is A Recent FMCSA Hours Of Service Exemption A Sign Of Things To Come?

Eric Lee is a Partner in Holland & Knight's Washington D.C. office

Jameson B Rice is an Associate in Holland & Knight's Tampa office

Daniel L Burkard is an Associate in Holland & Knight's Washington D.C. office

The Federal Motor Carrier Safety Administration (FMCSA) granted tank truck drivers an exemption from the 30-minute break requirement in the hours of service regulations, which became effective April 9, 2018. 83 FR 15221 (Apr. 1, 2018). The rest break regulation requires interstate commercial truck drivers (other than those who qualify for a short-haul exception) to take at least a 30-minute rest break within the first 8 hours of going on duty in order to continue driving that day. 49 C.F.R § 395.3(a)(3). The regulation was enacted in 2011 by the Obama-era FMCSA. 76 FR 81134 (Dec. 27, 2011). It was modified to add the short-haul exemption in 2013 following a challenge to the United States Court of Appeals for the D.C. Circuit brought by the American Trucking Associations (ATA), among others. 78 FR 64179 (Oct. 28, 2013).

The National Tank Truck Carriers (NTTC) requested an exemption from the rest break requirement for drivers operating fuel tankers. The NTTC argued that the rest requirement was unnecessary because fuel tank truckers take several breaks from driving each day while unloading fuel at service stations, albeit less than 30 minutes each. It argued further that these rest breaks rendered the mandatory 30-minute rest requirement unnecessary.

While there is no regulatory requirement for these drivers to stay with their tank trucks during their stops (unlike for certain other hazardous materials), tank carriers often require their drivers to do so for security purposes. This prevents such stops from counting toward a rest break, since a driver must be relieved of all work responsibilities in order for the time to qualify as a rest break.

On Sept. 26, 2017, the FMCSA began considering NTTC's request and accepted public comment on the possible exemption. Comments in favor of the exemption, including the ATA, echoed NTTC's concern that the 30-minute rest break unnecessarily interrupted delivery of hazardous materials and created timing problems for fuel tankers. The Transportation Trades Department (AFL-CIO) opposed the NTTC application. AFL-CIO argued that allowing drivers to operate fuel tankers without a rest break would impose unnecessary risks upon the motoring public. AFL-CIO opined that the safety risks posed to the public outweigh the difficulties inherent in tank truck drivers going off duty for 30 consecutive minutes.

The FMCSA determined that under the current regulations, fuel tanker drivers would be able to adopt "more efficient operational practices" while maintaining a level of safety equal to, if not greater than, the level achieved under the current regulatory scheme, which is the threshold for granting an exemption. See 49 U.S.C. § 31315.

While the FMCSA gave little in the way of support for their rest-break exemption decision, the agency did state that "[t]hese drivers receive several short "breaks" each day when they unload product at service stations."  83 FR 15221 (Apr. 9, 2018). There are many drivers that receive "breaks" from driving. When considered along with other recent comments from FMCSA Administrator Ray Martinez, the exemption might indicate the FMCSA's willingness to grant hours of service exemptions.

For example, at a listening session at the Mid-America Trucking Show in March, several truck drivers opposed the newly enacted electronic logging device rule, which requires that hours of service be recorded automatically via a device that synchronizes with the vehicle engine, rather than using self-reported paper logbooks. Paper logbooks are significantly more prone to inaccurate reporting in order to feign performance with the hours of service rules. Martinez told the drivers that their opposition to the electronic logging devices was misplaced, that their real gripe was with the hours of service rules, which limit driving time, on-duty time and require rest breaks.

Martinez stated at the trucking show: "I may be able to make changes to regulations, if they're outdated, if they don't make sense. . . ." This recent tank truck rest-break exemption appears to be an example of Administrator Martinez's willingness to collaborate with stakeholders, and may be part of a larger de-regulatory trend at the FMCSA.

The exemption for fuel tank carriers from the 30-minute rest break requirement will be in effect for 5 years, ending on April 10, 2023, unless renewed pursuant to 49 C.F.R. § 381.000(b). Fuel tank drivers are still subject to the other hours of service rules.  The following fuel products fall within the scope of the exemption:

  • U.N. 1170 – ethanol
  • U.N. 1202 – diesel fuel
  • U.N. 1203 – gasoline
  • U.N. 1863 – fuel, aviation, turbine engine
  • U.N. 1993 – flammable liquids, n.o.s. (gasoline)
  • U.N. 3475 – ethanol and gasoline mixture, ethanol and motor spirit mixture, or ethanol and petrol mixture
  • N.A. 1993 – diesel fuel or fuel oil

While the FMCSA noted that the exemption will maintain an equivalent level of safety to the existing rule, the agency is only allowing motor carriers with "satisfactory" or "unrated" ratings to use the exemption. Carriers with a "conditional" rating may not use the exemption, and carriers with an "unsatisfactory" rating are generally not able to operate at all. Drivers must present the Federal Register exemption to law enforcement officials upon request.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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