Spring 2021

Hours of Service Regulations: They’re on the Move Again

The Federal Motor Carrier Safety Administration (“FMCSA”) has issued new rules intending to give drivers more flexibility with hours of service in their workdays while also improving safety for all motorists. According to a recent analysis from the American Transportation Research Institute, these new regulations will allow drivers to take “strategic periods of rest.” Four major changes to the Hours of Service (“HOS”) regulations went into effect on September 29, 2020:

  1. The short-haul exception is expanded to 150 air-miles and allows a 14-hour work shift to take place as part of the exception.
  2. The driving window during adverse driving conditions is expanded by up to an additional two hours.
  3. Drivers are required to take a break of at least 30 consecutive minutes after eight cumulative hours of driving time (instead of on-duty time). This new rule allows an on-duty/not-driving period to qualify as the required break.
  4. The sleeper berth exception is modified to allow a driver to meet the 10-hour minimum off-duty requirement by spending at least seven hours of that period in the sleeper berth combined with a minimum off-duty period of at least two hours spent inside or outside the berth, provided the two periods total at least 10 hours (the former rule required drivers to divide a 10-hour off-duty period in a sleeper berth into eight hours of rest and two hours of non-driving time). When used together as specified, neither qualifying period counts against the 14-hour driving window.

The FMCSA published an Advanced Notice of Proposed Rulemaking in April 2019 and hosted five listening sessions nationwide. Between written public responses and statements gathered at the listening sessions, the FMCSA received more than 8,000 comments regarding the proposed HOS revisions. One overriding theme throughout the comments was a request that drivers be given more control over how they use their time.

One provision included in the August 2019 proposal that was not included in the final rule was a provision that would have paused a driver’s 14-hour driving window and allowed one off-duty break of at least 30 minutes but no more than three hours. The overall industry feedback was that the sleeper berth revision provided adequate flexibility, although most commenters suggested a 5-5 or 6-4 split rather than the final 7-3 split. Many drivers expressed that they thought a 30-minute break was too long, while others did not mind a required break but did not want to be told when to take the break, so allowing an on-duty, not driving period was supported by most drivers.

The FMCSA has added an “Educational Tool for Hours of Service” (“ETHOS”) to its website that allows drivers to create a sample record of duty log to make sure that they comply with the new regulations (ETHOS does not cover the 60/70 hour regulation). The FMCSA states that ETHOS is solely meant for educational purposes and that the data is not being recorded so that drivers can clear up any confusion arising from the new HOS changes without worrying about the sample logs being used for any other purpose.