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HOS exemptions: When exempt doesn’t mean exempt from the rules

Changes taking place Sept. 29 provide more flexibility but also increase likelihood of violations for those who don’t understand when the rules apply

Hours-of-service changes taking effect on Sept. 29, 2020, will provide a bit more flexibility for drivers, including the ability to use the adverse driving condition provision to allow for additional drive time when needed. Other changes include adjustments to the sleeper berth and 30-minute break provisions. (Photo: Jim Allen/FreightWaves)

One constant in trucking is that hours-of-service (HOS) regulations that govern drive time and work hours for commercial truck drivers are constantly in flux. If it feels as if there are always questions surrounding HOS, it’s because there are.

Each time the Federal Motor Carrier Safety Administration (FMCSA) has issued new HOS rules or updated guidance, it feels as if the rules are challenged in court, leaving a permanent cloud hanging over compliance. That is true with the latest update to the rules, set to go into effect on Sept. 29. This time, though, the court challenge from safety groups and the Teamsters will not impact implementation of the rule changes.

The changes taking effect include increasing flexibility for taking the 30-minute break from driving; modifying the sleeper-berth exception; modifying the adverse driving conditions exception; and changing the short-haul exception for certain drivers.

These changes extend the number of possible exempt HOS operational conditions truck drivers can take advantage of but, like current exemptions, failing to understand the specific use cases for these exemptions may invalidate the exemption and lead to HOS violations.

“Whenever a driver uses an exception, they really need to document the use of that exception and why it applies. Otherwise, they risk being cited for a violation when their log is audited because the auditor may have no idea that an exception was used,” said Daren Hansen, senior transportation safety editor with compliance specialists J. J. Keller & Associates.

To ensure compliance, Hansen advises carriers and drivers to always review and follow the terms of any exception used. Carriers should ensure drivers, dispatchers and supervisors are fully trained on what exemptions are available and also how to properly apply them.

Electronic logging devices (ELDs) that offer multiple rule sets to apply various exceptions properly are the ideal compliance partner, but drivers should be trained on how to add an annotation to the ELD that explains use of the exception. Failing to properly document, even in cases when the exception is properly applied, can lead to a violation.

Most HOS exceptions are found in 49 CFR §395.1. There is an increasing possibility of violations if the driver has not been properly trained on the changes.

“A lot of drivers and companies are looking at the new hours-of-service rules as a real opportunity to begin using exceptions that they’ve shied away from in the past. That’s smart, but they also need to be aware of the risks,” said Hansen.

Short-haul exceptions (§395.1(e))

The short-haul exception is not new, but FMCSA has now clarified the use of this exception, which includes 100- and 150-air-mile exceptions. Short-haul drivers are exempt from the following requirements:

1.   Normal grid logs, whether that be paper or ELDs.

2.   30-minute breaks from driving.

3.   Supporting documents under §395.11.

Additionally, short-haul, noncommercial drivers’ license operations as defined in 395.1(e)(2) are exempt from the 14-hour daily work limit no more than twice per week.

Many drivers are confused how the short-haul exception works, explained Hansen. For example, some drivers may believe that using the exception exempts them from all Department of Transportation rules. This is not true. Other regulations, such as driver qualification files, HOS limits, medical cards and more still apply. Drivers also can’t exceed the 12- or 14-hour workday limits and remain exempt. A simple assessment created by J. J. Keller helps fleets determine if, and which, exemption they can use.

Hansen said that ELDs, even for short-haul drivers, can be a valuable tool, especially since a driver that must use a log more than eight times in a 30-day period is required to use an ELD.

“ELDs can still be an important safety and risk-management tool, even for drivers using a short-haul exception. In case of a DOT audit or litigation, it’s wise to have documented proof of driver and carrier compliance with HOS exceptions,” he said.

ELDs can be used for International Fuel Tax Agreement and HOS record-keeping purposes (which short-haul drivers are not exempt from) as well, allowing drivers to easily convert their time records to standard logs as necessary.

Split-sleeper provision (§395.1(g))

The split-sleeper provision received a bulk of the attention in the rule changes. The new 7/3 split option gives drivers additional flexibility to pause their 14-hour clock. The change modifies the sleeper berth exception to allow a driver to meet the 10-hour minimum off-duty requirement by spending at least seven hours of that period in the berth and a minimum off-duty period of at least two hours spent inside or outside of the berth. The two periods must total at least 10 hours and neither qualifying period will count against the 14-hour driving window.

Hansen said that drivers need to remember they are not exempt from the part of the rule requiring at least 10 total hours of rest. Using the 7/3 split also does not allow drivers to regain a complete 11- and 14-hour allowance after completing the two breaks. This approach also requires math as drivers splitting their rest must calculate the time before and after each break and subtract that from the 11-hour and 14-hour totals to determine compliance.

The previous HOS rules had an 8/2 split provision, but many drivers did not take advantage because of the complexity in understanding the requirements. The 7/3 split does not eliminate this, which is why Hansen suggests drivers and carriers interested in benefiting from the new option utilize an ELD that offers split-sleeper auditing capabilities.

30-minute break (§395.3(a)(3)(ii))

The biggest change in the rule is the additional flexibility allowed when utilizing the 30-minute break from driving. FMCSA will now allow drivers to take this time as an on-duty, not-driving status. For drivers that spend time waiting at loading docks, for instance, this could be a time-saver, eliminating the need to stop for a break later on. Also, yard moves and personal conveyance are allowed (though not advised) during the mandatory break period.

It comes with potential pitfalls though. For drivers who don’t typically drive more than eight hours in a day, on the days they do, they may forget to take the mandated break. ELDs can assist here by signaling a required break is needed. Also, because drivers can work through the break period, there is potential for fatigue to set in.

“Drivers need to remember that they’re not exempt from the prohibition on driving while fatigued, which may become more of a factor with drivers who don’t actually rest during their mandatory breaks, since breaks can be spent on duty instead of off duty,” said Hansen.

To counter this, companies may want to consider whether mandating breaks be taken as off-duty time makes sense, Hansen added.

Adverse conditions (§395.1(b))

Already on the books, the adverse-driving-condition exception allows drivers to exceed legal drive time in situations when it becomes dangerous or impossible to drive, such as during snowstorms or other severe weather. Many drivers, though, don’t take advantage of this exception, which can only be used when unanticipated or unforeseeable conditions occur.

The adverse driving exception allows drivers to extend their drive time up to two additional hours on top of the 11-hour and 14-hour daily limits and only to replace time that is lost. Hansen noted that a 15-minute delay due to icy roads does not automatically trigger two additional hours of drive time. The exception can’t be used to extend the 60/70-hour weekly limits. They remain in effect at all times, and it doesn’t apply to a driver who becomes fatigued. Under current rules, a fatigued driver must stop driving.

FMCSA attempted to provide more flexibility within the HOS rules with these new changes. But, as with the HOS rules in general, failure to understand requirements is not an excuse to get out of a violation. Because of this, carriers must ensure drivers understand what the rules allow and do not allow and how to take advantage of the new exceptions while remaining compliant with all operating regulations. Third-party compliance specialists can ease some of this burden with targeted training and educational programs and, in some cases, driver monitoring and auditing services that keep carriers and their drivers in FMCSA’s good graces.

Brian Straight

Brian Straight leads FreightWaves' Modern Shipper brand as Managing Editor. A journalism graduate of the University of Rhode Island, he has covered everything from a presidential election, to professional sports and Little League baseball, and for more than 10 years has covered trucking and logistics. Before joining FreightWaves, he was previously responsible for the editorial quality and production of Fleet Owner magazine and Brian lives in Connecticut with his wife and two kids and spends his time coaching his son’s baseball team, golfing with his daughter, and pursuing his never-ending quest to become a professional bowler. You can reach him at [email protected]