HOS guidance, second waiver on mandated breaks issued by FMCSA

By Jami Jones, Land Line managing editor | 7/12/2013

Less than two weeks into the new hours-of-service regulations, another waiver to the regs has been issued and FMCSA has issued new guidance on how to handle the rules.

The second exemption to the mandated 30-minute rest break was doled out by the Federal Motor Carrier Safety Administration on Thursday, July 11.

The exemption is in response to unique needs in hauling livestock and the predicted high temperatures during the summer months. The exemption from the 30-minute break expires on Oct. 9.

Many livestock operations prohibit trucks from stopping when loaded. Airflow through the trailers helps mitigate the effects of high temperatures on animals such as pigs and cattle. Stopping for 30 minutes for the mandated rest break could place undue stress on the animals.

The exemption applies to agricultural haulers of livestock as defined by the agency in the waiver with satisfactory rating or that are “unrated” by the agency because they have not been through a compliance review. Motor carriers operating under the exemption will also be subject to additional accident reporting requirements.

FMCSA reviewed the petition from the National Pork Producers Council, submitted on behalf of 13 different organizations, and granted “a limited waiver, based on the terms and conditions imposed, would achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.”

This is the second such waiver to the mandated 30-minute rest break, claiming no perceived negative effects on safety.

The first was issued on May 31.

The first exemption responded to a request from the Energy Department. The exemption relieves truckers hauling security-sensitive radioactive materials for the Department of Energy from complying with the upcoming 30-minute rest break provision.

The exemption for the radioactive loads is in line with the exemption given to truckers who haul explosives.

The exemption is valid from July 1 to June 30, 2015.

“While we certainly agree with the position taken by the agency, at the same time we find it really, really interesting – maybe even mind-blowing,” OOIDA Executive Vice President Todd Spencer said.

“The agency has now indicated it will give approval to professional drivers who obviously have the common sense, professionalism needed for them to do their job and to act on that common sense, intuition when needed provided they have previously contacted the agency to ask for, and been granted, temporary permission.”

Spencer said the exemptions point to the flawed approach toward regulating trucking FMCSA takes.

“I’m not sure if I can think of a better example for something that cries out for a top-down overhaul of the approach,” Spencer said.

“The whole micromanagement of hours-of-service regulations that seems to have blanketed trucking is ridiculous. Given the agency’s approach to the men and women who drive these vehicles, every single one of them should have FMCSA on speed dial and call the agency for guidance on exactly what they should be doing in every situation they encounter every single day.”

Clearing things up
As with any change to the hours of service, confusion tends to follow. The agency retooled some guidance regarding off-duty time because of the mandated 30-minute breaks.

The guidance addresses the question of when can a driver record meal and other routine stops made during the work shift as off-duty time.

FMCSA’s answer is that the driver must be relieved of all duty and responsibility for the care and custody of the load and during the stop the driver must “be at liberty” to pursue activities of his/her own choosing.

“The revised guidance also emphasizes that periods of time during which the driver is free to stop working, and engage in activities of his/her choosing, may be recorded as off-duty time, irrespective of whether the driver has the means or opportunity to leave a particular facility or location,” the Federal Register notice announcing the guidance stated.

“This is another step by the agency acknowledging that most drivers have the common sense to know what is best for them during these rest periods,” Spencer said.

Waiting on the courts
Starting July 1, rest breaks were mandated for drivers during the workday if the driver has been on duty for eight consecutive hours. The regulation also mandates that the 34-hour restart provision must include two overnight periods of 1 a.m. to 5 a.m. in the restart. The restart is also restricted in the new regulations to only once per seven days.

Oral arguments on a legal challenge of the regs filed in February 2012 were heard on the pending litigation in the U.S. Court of Appeals on March 15. As of press time the court had not issued an opinion on the case. The court issues its opinions on Tuesdays and Thursdays. No opinion has been issued as of July 11.

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