New Hours of Service Rules Proposed. The Federal Motor Carrier Safety Administration has slated publication of its notice of proposed rulemaking on changes to the Hours of Service rule for June 7. FMCSA also advised that it plans to then take comments on the Notice of Proposed Rule Making (NPRM) until July 26. Those dates come from the latest “Significant Rulemaking Report” which is posted monthly by the Department of Transportation and are not legally binding. Posting a publication date officially indicates that the advance notice of proposed rulemaking (aka a “pre-rule”) on HOS reform that FMCSA issued back on August 23 is slated to become a notice of proposed rulemaking.
“FMCSA’s proposed changes to the hours-of-service rules are currently being reviewed by the Office of Management and Budget,” an agency spokesperson said. “The timeline included in the Department’s April regulatory update reflects FMCSA’s goal to move quickly during this rulemaking process and the Agency is hopeful that goal will be achieved.” When it put out the pre-rule, FMCSA said it was doing so in response to “widespread congressional, industry and citizen concerns, and seeks feedback from the public to determine if HOS revisions may alleviate unnecessary burdens placed on drivers while maintaining safety on our nation’s highways and roads.”
The Advance Notice of Proposed Rule Making (ANPRM) sought to ask questions and take comments on four areas of the HOS rule under consideration for revision by the agency: 1) Expanding the current 100 air-mile “short-haul” exemption from 12 hours on-duty to 14 hours on-duty, to be consistent with the rules for long-haul truck drivers; 2) Extending the current 14-hour on-duty limitation by up to 2 hours when a truck driver encounters adverse driving conditions; 3) Revising the current mandatory 30-minute break for truck drivers after 8 hours of continuous driving; and 4) Reinstating the option for splitting up the required 10-hour off -duty rest break for drivers operating trucks that are equipped with a sleeper berth.
In addition, the pre-rule sought public comment and relevant data on two recently submitted petitions requesting regulatory relief pertaining to the 14-hour on-duty limitation and regarding the 10-hour off -duty requirement. The ANPRM’s comment period, which was extended, ultimately closed last October 10 (2018) after garnering over 5,200 comments. As is typical in the rulemaking process, no one at the agency has indicated what changes may be made to the rule ahead of the NPRM’s release – only what is being considered for revision.
As for a clue, consider that in a recent speech, FMCSA Chief Ray Martinez advised that data gleaned from truck operators who are fully compliant with the electronic logging device mandate is informing the agency’s eff ort to propose HOS changes. “A benefit of the ELD (mandate) is the opportunity to review hours of service,” Administrator Martinez said in Las Vegas on March 12, 2019. Noting that preliminary ELD data shows reductions in HOS violations, which suggests less fatigued and safer drivers, he said those positive results have “put a spotlight on something that really has not been looked at in 15 years,” highlighting where changes to the rule may be warranted. The point being, he said, that as that time has passed, “Commerce has changed, technology has changed, and your business has changed.”
As for those 5,200 comments on the pre-rule, Martinez said, “We put it out there to get unvarnished comments, and boy did we… getting over 5,000 comments is significant, including the quality of thought and thoroughness that were expressed.” He said the comments focused heavily on known pain points with HOS, including the 30-minute rest break and sleeper-berth provisions of the rule. Stay tuned!
TWIC Card Problems. Congress is demanding a full review of the Transportation Worker Identification Credentials (TWIC) card program. Lawmakers say that, even though we are now 17 years into the post 9/11 program, Homeland Security still hasn’t set rules and standards for reading the biometric cards that allow truckers to drive through our nation’s ports without an escort. Federal inspectors say the cards are also easily forged, and according to public records, they have even been issued to illegal immigrants. In addition to these security lapses, there are also complaints that the actual TWIC cards themselves are too fragile and can break when exposed to sunlight or kept in a pocket or wallet. The cost of the troubled program is expected to top $3 billion.
NYC Close to Banning Marijuana Testing. Employers in New York City will not be allowed to demand job applicants take a drug test that shows marijuana use. The City Council voted 40 to 4 to stop the practice even though, at this point, only medical marijuana use is legal there. The ban, if signed by Mayor Bill de Blasio, will apply to both public and private employers and would go into effect one year after it’s signed into law. There are exemptions for safety-sensitive positions, and the bill will not apply to reasonable suspicion testing. In the meantime, city leaders are also working to expunge all misdemeanor marijuana convictions, while the state pushes for full legalization of the drug in this year’s legislative session. I’ll keep you posted on this one, too.
Court Dismisses California Meal and Rest Breaks. Last but not least, on Friday May 3, 2019, the Central District of California entered an order dismissing the meal and rest break claims on a December 28, 2018 decision from the FMCSA preempting the California meal and rest break rules as they apply to interstate drivers. Despite challenges to the FMCSA’s decision, the district court reasoned that it lacked authority to make any determination regarding the merits of the case. This is important because it sets a precedent for all transportation companies and motor carriers facing meal and rest break claims in California. However, it is still important to maintain California compliant meal and rest break policies for drivers working in California until the appeal is concluded.
