United States: Expanded Driver Hours Of Service A Response To ELDs, Shows That FMCSA Is Listening To Industry

Jameson Rice is an Associate in our Tampa office.

The Federal Motor Carrier Safety Administration (FMCSA) has announced a notice of proposed rulemaking, which if made final would allow drivers a bit more flexibility in complying with hours of service requirements. This proposed rulemaking is the direct result of the impact of electronic logging devices (ELD), and demonstrates that the agency has been listening to the industry.

When the Trump Administration took control of the FMCSA, the Obama-era rule requiring that driver hours of service be recorded by ELD had not yet gone into effect. Federal regulation limits the number of hours drivers can work, how long they can drive, and requires rest breaks, and long-haul drivers must account for their time using logbooks. Paper logbooks are subject to inaccurate hours of service reporting because entries are left to the discretion of the driver. ELDs, however, record driving time automatically. The Owner-Operator Independent Driver Association (OOIDA) and many truck drivers – a group that substantially overlaps with President Trump's support base -- had fought vigorously against the ELD rule. OOIDA had even successfully challenged a previous iteration of the rule in court. Despite years of effort to implement the ELD rule, it was uncertain if the FMCSA would postpone, chip away at, or even reverse course on ELDs.

But the agency held firm. Very few exemptions were granted, and the rule went into effect at the end of 2017, with drivers being placed out of service for violations four months later.

Ray Martinez was confirmed as FMCSA Administrator in February 2018, and in one of his first public appearances he lead a "listening session" at the Mid-America Trucking Show, during which he received an ear full from truck drivers that were angry about the ELD rule that had just gone into effect. Boldly, Martinez told the drivers that their anger was misplaced, that their real complaint was not with ELDs but with the hours of service rules.

Drivers face many challenges in navigating hours of service restrictions, much if which is out of their control. The challenges include wait time while cargo is being loaded or unloaded from a truck, inclement weather, traffic, and lack of parking in rest stops and other locations. While drivers have never been permitted to be untruthful in their record keeping, paper logbooks did not physically prevent drivers from fudging the log to account for these difficulties. ELDs eliminated this slack, which highlighted these hours of service compliance difficulties.

In that same listening session at the Mid-America Trucking Show, Martinez indicated that there may be some room for regulatory changes, not to eliminate the ELD requirement, but to make changes to the hours of service rules. In prepared remarks, he stated: "I may be able to make changes to regulations, if they're outdated, if they don't make sense. The only way we do that is by listening and learning."

That appears to be exactly what Administrator Martinez and his administration has done. The rule that the FMCSA has proposed, which is set to be published in the Federal Register on August 20, would make changes to the following five areas. It would:

  1. Extend the distance short-haul drivers (who are not required to keep logbooks) may drive from 100 air miles to 150 air miles and allow short-haul drivers to be on duty for 14 hours rather than just 12;
  2. Extend the adverse driving conditions exception by up to two hours;
  3. Change the mandatory 30-minute break so that it simply requires the driver not to drive, even if still on duty, rather than a mandatory off-duty period;
  4. Allow one off-duty break, lasting between 30 minutes and three hours, that would allow the driver to pause the clock on the driver's 14-hour window in which to drive from the time the driver comes on duty; and
  5. Modify the sleeper-berth requirements to allow drivers to take their required 10 hours off duty in two periods, so long as one is at least seven hours in the sleeper berth, and the other is at least two hours (whether in or out of the sleeper berth).

There will be 45 days to comment on the proposed rule one it's published.

The FMCSA had previously issued an advance notice of proposed rulemaking, in response to petitioners who sought to eliminate the rest break altogether, among other changes. The majority of the more than 5,000 comments to that advanced notice also wanted the rest break requirement to be eliminated. Despite this push to eliminate the rest break requirement, the FMCSA has not propose to eliminate it, but rather to add more flexibility.

That is not to say that the proposed rule changes would not raise safety concerns. In the advance notice of proposed rulemaking, the American Academy of Sleep Medicine commented that the science shows that driver's perception of tiredness is not a reliable predictor of performance capability and impairment. The American College of Chest Physicians noted that splitting rest time may compromise treatment for obstructive sleep apnea. The American Alliance for Healthy Sleep opposes a policy that would prevent drivers from getting at least seven continuous hours of sleep, and thus opposes split sleeper berth breaks (although the notice of proposed rulemaking seems to have accommodated this issue by requiring at least seven hours in a sleeper berth).

While there may be valid safety reasons to make changes to the proposed rule, the agency seems to have taken its safety charge seriously, while weighing safety concerns against issues that drivers face.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions