If upcoming changes to hours-of-service (HOS) regulations provide the benefits the Federal Motor Carrier Safety Administration (FMCSA) anticipates, carriers may have more productive drivers earning more money and compiling fewer HOS violations.
It’s too soon to tell how the adjustments, which will go into effect on Sept. 29, 2020, will actually play out, but estimates can give an indication of what fleets and drivers can expect, and it could be significant.
The final rule makes the following changes to existing HOS rules:
- Expands the short-haul exception to 150 air-miles and allows a 14-hour work shift.
- Expands the driving window during adverse driving conditions by up to an additional 2 hours.
- Requires a 30-minute break after eight hours of driving time (instead of on-duty time) and allows an on-duty/not driving period to qualify as the required break.
- 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 can count against the 14-hour driving window.
FMCSA estimates the increased driver flexibility afforded drivers will generate $274 million in cost savings for the U.S. economy. J. J. Keller & Associates, Inc. has published a whitepaper on these proposed HOS changes that can be downloaded here: https://www.jjkeller.com/infoform_10151_-1_10551_61213.
30-minute break flexibility
FreightWaves contacted several carriers, but all are still evaluating how the changes will impact their operations and declined to detail those internal discussions at this point. But, when the rule was first introduced in August 2019, Tim Wiseman, managing partner at the law firm Scopelitis, told FreightWaves he thought the changes could lead to a driver productivity increase of between 5% and 6%.
FreightWaves SONAR data tracking daily driving utilization (SONAR: HOS11.USA), shows that as of June 21, the average driver spent just 6.44 hours per shift driving. Dean Croke, principal analyst for DAT iQ, told FreightWaves drivers should see an increase in driving time from the change, which could lead to more pay.
Croke said the change, particularly to the 30-minute break requirement, is substantial. “Provided the driver is within the 14-hour clock, then the new 30-minute break rule would allow them to use more of the 14-hour clock with more drive time,” he said.
Tom Bray, Transport Industry Consultant for J. J. Keller & Associates, Inc., echoed those thoughts.
“Not counting dock time and waiting time toward the eight hours will allow these drivers to use more of their 14-hour window for driving by eliminating the need for the 30-minute break,” Bray said.
FMCSA anticipates carriers will see a 10-year cost savings of $2.8 billion due to the 30-minute break change. This change should also reduce HOS violations by allowing drivers to rest when they are fatigued. Carriers, though, need to ensure drivers taking this break are doing so in line with labor contracts, driver agreements, fatigue avoidance criteria or other legal reasons, safety and compliance consultants, J. J. Keller, explained.
Additional driver training may be necessary to verify drivers understand how to properly use this new break rule.
Split sleeper berth
The second big change is the split sleeper berth exception. Technically not new, the change now allows a 7/3 split in addition to the current 8/2 split. Many drivers don’t utilize the current 8/2 split due to its complexity, but the addition of a 7/3 option may make it more worthwhile.
Drivers using the split would be able to take “their required 10 hours off-duty in two periods, provided one off-duty period (whether in or out of the sleeper berth) is at least two hours long and the other involves at least seven consecutive hours spent in the sleeper berth,” FMCSA said.
Neither period can count against the 14-hour driving window per rule § 395.3(a)(2), the agency added.
Due to its complexity and opportunity for HOS violations, drivers utilizing this exception need to be properly trained by their fleets or safety consultants, J. J. Keller said. In addition to properly understanding the rule, drivers have likely had little experience logging the periods and will need training on how to do so correctly to avoid log violations.
Bray noted that elogs can be a critical tool to help drivers properly log the split-sleeper provision and remain in compliance with all hours-of-service regulations as they will automatically calculate time periods, if properly equipped.
“If the driver is properly trained on the split-break exception and is using an ELD that has split logging built into its ruleset, the odds of the driver making an error and receiving a citation are fairly low,” Bray said. “Another way to put it is that using an ELD with the split logging exception can prevent violations if a carrier allows its drivers to take advantage of the flexibility split logging provides.”
Carriers able to use the new short-haul exemption could potentially switch their drivers from electronic logging devices (ELDs) and back to time records, if they qualify, although this opens up other potential compliance concerns.
The short-haul exemption, when enacted, will allow drivers a 14-hour workday instead of the current 12-hour day, and extends the distance eligible for the exemption from 100 air miles to 150 air miles. Within this area, an ELD is not required. The air mile calculation is critical as an air mile is 6,076 feet, according to FMCSA. A 150-air mile radius is actually 172.6 miles.
To use the short-haul exemption, carriers need to make a number of determinations, including whether the driver will have to log more than eight days in a 30-day period. If they do, the driver might be on an ELD for much of that time period and maintaining two separate record systems could create excess work and confusion, and potential violations as a result.
Also, if some drivers in a fleet require ELDs and others don’t, fleets could experience less flexibility when choosing equipment or drivers for tasks, J. J. Keller said.
There is also a productivity question to answer. Croke said he would expect utilization levels to increase for short-haul operators, especially those in the drayage space.
“According to Bureau of Transportation Statistics data, the increase in the radius brings in another 11% of freight tons and 16% of freight value into the ELD short-haul exemption area,” he said.
For fleets ditching an ELD, there could be corresponding cost increases if vehicle/driver visibility, available driving hours, vehicle inspection tracking and accountability, hard braking and other driver events, and even International Registration Plan/International Fuel Tax Agreement payments are currently recorded through the ELD.
Also, time records require verification to ensure compliance and added staff may be necessary to accomplish this for non-ELD drivers.
Adverse driving conditions
Perhaps the most minor of HOS changes is the adverse driving conditions compliance. The rule doesn’t change when the exemption can be taken, but it does allow the extension of the driving window by two additional hours. While not significant, the flexibility it affords allows drivers to make safety-conscious decisions during inclement weather or other adverse conditions.
Overall safety impact
Truckload Carriers Association President John Lyboldt applauded FMCSA for “listening to the industry” when it announced the HOS changes. FMCSA, for its part, focused as much on the safety aspect as it did on productivity in the final rule.
“The flexibilities in this final rule are intended to allow drivers to shift their drive and work time to mitigate the impacts of certain variables (e.g., weather, traffic, detention times, etc.) and to take breaks without penalty when they need rest,” FMCSA said.
Bray said carriers need to ensure their drivers remain compliant, especially in cases where drivers may push limits because a break is not mandated until after eight hours.
“One potential safety impact is a driver becoming fatigued while having hours available under the new rules,” Bray said. “This concern will be especially applicable when drivers are trying to adjust to the changes. To counterbalance this possible impact, drivers will need to be reminded that they have the ability to stop and take a break, even if they have hours available.”
Croke, who has extensively studied the effects of drowsy driving on drivers, said the flexibility in the rules offers a lot of things for drivers to like.
“From a safety perspective there is a lot of upside – more miles for more pay; less wait time and less time sitting around for a 30-minute break when you don’t need one,” he said. “It all leads to a happy, healthy and less stressed driver.”
FMCSA has listened and acted accordingly, which is what the industry has been clamoring for. Now, it’s up to the industry to uphold its end of the bargain, and that means ensuring compliance and safety within the framework of the new regulations. Implemented correctly, the changes could provide boosts to driver and vehicle productivity, and safety, making this is a winning rule for everyone.