Loaded Up and—Waitin'?

Some truckers find themselves sitting involuntarily idle due to mandatory downtime required by federal “hours of service” regulations, but the Trump administration is proposing to ease up on the rules.
By Ron Kotrba | September 27, 2019

Most people would agree that safe roads, satisfied truckdrivers and efficient commerce are desirable, but balancing these seemingly universal values on a spectrum somewhere between lawless exploitation and burdensome overregulation is not easy. The first hours of service (HOS) regulations were enforced by the U.S. federal government in 1938. HOS rules are intended to protect commercial motor vehicle drivers from fatigue, as well as the general public from the obvious dangers of a tired driver hauling 80,000 pounds at high speeds. Today, HOS regulations are implemented, enforced and overseen by the Federal Motor Carrier Safety Administration, a division of the U.S. Department of Transportation. HOS regulations cover areas such as maximum driving time in a given period, on- and off-duty requirements, duty cycles, weekly maximums, break requirements and more.

Over the years, the HOS rules have evolved as a result of a growing economy, changing driving conditions and influence from special interest lobbyists. The most recent HOS rule changes went into effect in 2012 and, for some provisions, 2013. While there are slight differences in the regulations for passenger- and property-carrying drivers, the latter includes:

• An 11-hour driving limit: Drivers may drive a maximum of 11 hours after 10 consecutive hours off duty.

• A 14-hour limit: Drivers may not drive beyond the 14th consecutive hour after coming on duty, following 10 consecutive hours off duty. Off-duty time does not extend the 14-hour period.

• Rest breaks: Drivers may drive only if eight hours or less have passed since the end of the driver’s last off-duty or sleeper berth period of at least 30 minutes. This does not apply to drivers using short-haul exceptions. Mandatory “in attendance” time may be included in the break if no other duties are performed.

• 60/70-hour limit: Drivers may not drive after 60/70 hours on duty in seven/eight consecutive days. A driver may restart a seven/eight consecutive-day period after taking 34 or more consecutive hours off duty. At the time of passage (see below), this included two periods from 1 a.m. to 5 a.m. home terminal time, and may only be used once per week, or 168 hours, measured from the beginning of the previous restart.

• Sleeper berth provision: Drivers using the sleeper berth provision must take at least eight consecutive hours in the sleeper berth, plus a separate two consecutive hours either in the sleeper berth, off duty, or any combination of the two.

In December 2014, an appropriations bill signed into law suspended enforcement of the 34-hour restart pending results of a study, which ultimately restored the rule and its enforcement. However, the requirement for two off-duty periods of 1:00 a.m. to 5:00 a.m. in section 395.3(c) of the FMCSA’s HOS rules are no longer enforced, nor is the once-per-week limit on use of the restart in 395.3(d).

“The hours-of-service regulations were put into place decades ago and have changed over the course of the past few decades in response to increased fatigue-related accidents,” Sam Loesche, a legislative representative for the International Brotherhood of Teamsters, tells Pellet Mill Magazine. The Teamsters is a labor union serving truckdrivers and many other occupations. “It’s a concrete national rule that dictates how long drivers can work each day, because fatigue is problematic—it’s the leading cause of any accident, whether it involves four-wheel cars or tractor trailers,” he says. “The federal government worked with us and others to dictate how long drivers can work each day and each week. Over a decade or two, these rules played out through courts, internal rulemaking in DOT, and through congressional action. Unfortunately, that is when we saw changes in the opposite direction of safety, when special interests tapped Congress to make changes to things like the 1 a.m. to 5 a.m. rest period. Twice a week, drivers had to sleep during the nighttime. It’s important for circadian rhythm to get back on their natural clock. Those rules were rescinded by congressional decree, and we’ve been in a standstill for the past five years with what the HOS regulations are.”

Bob DeLullo has been in the trucking business since 1990. He started DeLullo Trucking Corp. in St. Marys, Pennsylvania, as a buy-sell operation that contracts with sawmills on residuals and resells the material to various markets. In the mid-2000s, DeLullo launched Woodbed Corp., a processing yard where DeLullo and his team can grind, screen and chip wood to add value to the material the company hauls. DeLullo Trucking services the Pittsford, New York-based Biomaxx Inc. by selling the wood pellet producer feedstock and transporting pellets from the plant. DeLullo says some of the HOS regulations are impeding commerce.

“The government is getting in the way of the free market,” DeLullo says. “By all means, we adhere to the regulations and promote safety, and we understand the role insurance plays. And if your biological clock tells you you’re tired, then get off the road. But for government to tell you to take a break, it’s absurd. It gets in the way of what we’re trying to do. I respect the law and law enforcement officers, but I can’t understand how we got in the situation where, all of a sudden, the cops, with their badges and guns, are looking for guys with lunch buckets trying to earn an honest living.”

In December 2017, FMCSA began requiring truckdrivers to log their hours of service in electronic logging devices (ELDs) instead of paper logbooks. ELDs greatly reduce human error and the opportunity for drivers to “fudge the numbers” on their records-of-duty service (RODS) logs. An ELD synchronizes with a vehicle’s engine to automatically record a driver’s off-duty and on-duty times, and securely transfers HOS data to safety officials. While ELDs were required as of December 2017, those who have been using automatic onboard recording devices (AOBRDs)—essentially earlier models of ELDs that display less information—have until Dec. 16, 2019, to move their systems over to ELDs.

Loesche says ELDs help bring the trucking industry into the 21st Century.  “ELDs are more secure, impossible to cheat on, and help transform the industry to be much more law-abiding and above the fold,” he says. DeLullo, however, sees this differently. “It gives them an avenue for a ‘gotcha’-type method,” he says. “It’s just another avenue to pinch you. It involves a fine, but most importantly what it involves is the company’s CSA score.” CSA stands for compliance, safety and accountability. CSA scores are the primary means by which the FMCSA identifies high-risk motor carriers and are compiled using data gathered from roadside inspections, crash reports, investigation results and registration details. “We work hard to have a perfect score,” DeLullo says, adding that if state troopers plug into the ELD and find violations—no matter how minor—this could jeopardize the driver’s career, the company’s reputation and more. “The next thing you know, you can find yourself in court at a jury trial where they throw these things at us,” DeLullo says. “To the layman juror who knows nothing about trucking, we’re dead in the water over incidental [nonsense]. This all can certainly work against you as a trucking company and a driver. By the way, I’m not against ELDs for over-the-road (OTR) truckdrivers. I am, however, against the idea of putting them in trucks delivering bread across town.”

As with most regulations, there are exceptions to the ELD and HOS rules. The ELD rule applies to those who are required to keep RODS under the HOS regulations. Drivers who use the time card exception and don’t keep paper RODs are not required to use ELDs. Drivers that keep RODS no more than eight days during any 30-day period; “driveaway-towaway” drivers, or those transporting a vehicle for sale, lease or repair, provided the vehicle driven is part of the shipment or the vehicle being transported is a motorhome or recreational vehicle trailer; and drivers of vehicles made before 2000 may keep paper RODS.

HOS exemptions include haulers of agricultural commodities during planting and harvesting times “as determined by the state” within a 150 air-mile radius from the source of the commodities. The exception also applies to transporting farm supplies for agricultural purposes. Once a driver goes beyond the 150 air-mile radius, however, the HOS regulations apply and, thus, an ELD must be used—unless they are exempt from the ELD rule. Time spent within the 150 air-mile radius does not count toward daily and weekly limits though. If ag haulers do not operate outside of the 150 air-mile radius for more than eight days during any 30-day period, then they are not required to use ELDs either, provided they prepare paper logs on those days when they are not exempt from the HOS rules.

Proposed HOS Changes
In mid-August, the FMCSA published a notice of proposed rulemaking to modify the HOS rules, part of the Trump administration’s quest to relax regulations across the board. Transportation Secretary Elaine Chao said the proposal gives commercial drivers “more flexibility while maintaining the safety limits on driving time.” In 2018, FMCSA sought public input on portions of the HOS rules “to alleviate unnecessary burdens placed on drivers while maintaining safety on our nation’s highways and roads.” Based on more than 5,200 comments received, the FMCSA has proposed five key revisions to the HOS rules.

The first proposal is to “increase safety and flexibility for the 30-minute break rule by tying the break requirement to eight hours of driving time without an interruption for at least 30 minutes and allowing the break to be satisfied by a driver using on duty, not driving status, rather than off duty.” DeLullo and his 24-year-old son Sam, who is head of sales and general manager of DeLullo Trucking, are in favor of this proposal, saying it puts them back into the position before the Obama administration “threw the 30-minute break” requirement at them. “In our line of work, we have 20 trucks—18 day-cabs and two bunk trunks,” Sam tells Pellet Mill Magazine. “We’re grouped with OTR guys. We don’t run with them. We run five to 10 trips a day, in and out all day long. Between six and eight hours, they want you to park. You’ve got to stop and do nothing. Now, if you sit while being unloaded, you can’t count that as the half-hour break.” In a press release issued by the Teamsters, Jim Hoffa, president of the union, said, “The Teamsters are … concerned about language changing the 30-minute rest break.”

The second proposal would “modify the sleeper-berth exception to allow drivers to split their required 10 hours off duty into two periods: One period of at least seven consecutive hours in the sleeper berth and the other period of not less than two consecutive hours, either off duty or in the sleeper berth. Neither period would count against the driver’s 14-hour driving window.” DeLullo says this is a good change. “It’s going back to the old way—same as the change to the 30-minute break,” he says. “They need to reverse some of these rules and get back to the old way. It’s a biological thing for the driver. If you’re running Florida to Texas, it doesn’t bind you to sit in the truck for 10 hours. If you have to sit for 10 hours, let these guys split their time, take a break then get going. They can figure this out all by themselves. Some don’t need 10 hours off.”

FMCSA’s third proposal would “allow one off-duty break of at least 30 minutes, but not more than three hours, that would pause a truckdriver’s 14-hour driving window, provided the driver takes 10 consecutive hours off-duty at the end of the work shift.” What this has done since ELDs went into effect and “since the federal government has been overregulating us,” DeLullo says, “is it has made this a ‘shotgun start.’ The clock goes off at 6 a.m., and with the current laws, whether you encounter bad roads, accidents or fog, the clock doesn’t stop. To make all this work, speed limits have increased to compensate. It’s truly life in the fast lane. You can’t stop to take a break—the clock keeps running. And it’s sped all traffic up. In my mind, not only is that unsafe, but you’re burning more fuel doing it.

I’ll never understand what their thinking is. Our trucks stop at 70 miles per hour (mph). We understand what all this means, so as a company we used to pay by the trip or mile, but because of that, we now pay everyone by the hour and our safety culture has improved tremendously around here. We understand the cost of an accident—that’s the last thing we want is a fatality, lawsuit, or having one of our quarter-million-dollar trucks banged up. It gets expensive. This proposal will allow us to stop the clock, slow down, take a break and catch our breath—it’s very important we get this and lose the mentality of the shotgun start. Now, our guys just gotta keep rolling.” The Teamsters Union, however, is concerned about the ability of drivers to “press the pause button” on their hours of service clock, according to Hoffa.

DeLullo mentions speed limits and how, across the U.S., they have been ratcheted up over the past 10 years in order to allow truckers the ability to complete their jobs amidst all of the additional regulations. Interestingly, in June, U.S. Sens. Johnny Isakson, R-Georgia, and Chris Coons, D-Delaware, introduced legislation to codify a pending “speed limiter” rule that has been tied up in red tape for 10 years. The “Cullum Owings Large Truck Safe Operating Speed Act of 2019” (S.2033) would require all new commercial trucks with a gross weight of 26,001 pounds or more to be equipped with speed-limiting devices, which must be set to a maximum speed of 65 mph and be used at all times while in operation. The maximum speed requirement would also be extended to existing trucks that already have the technology installed. Trucks without speed limiters will not be forced to retroactively install the technology.

“I’d hate to think that the regulations mean drivers have to go faster to get their jobs done,” says Darren Winchester, plant manager for Indeck Ladysmith, a 90,000-ton pellet mill in Wisconsin. “Slow and steady wins the race. There’s merit to having a maximum speed of 65 mph, but if they’re also trying to fight a window of time because of the regulations and reduced speed limits on top of it, these are just some of the things to consider when weighing such proposals.” Safety goes both ways, however, so if a truck is hauling 80,000 pounds and going too fast, this might be an issue, but if traffic is moving fast and vehicles come upon a truck moving too slowly, “this can create its own problems,” Winchester says. “Neither is really a good scenario.”

The fourth proposal by FMCSA to relax the HOS regulations seeks “to modify the adverse driving conditions exception by extending by two hours the maximum window during which driving is permitted.” Sam recalls a bad accident on I-80 this summer that backed up traffic for miles, which left trucks sitting on the side of the road for hours. “Say you came up on the accident at seven hours and you sat in traffic for an hour,” he says. “You’re ELD starts flashing red so you have to pull off the side of the road, shut the truck down and can’t move, otherwise the ELD will hold that violation for seven days for any local officer to plug into and see.”

Winchester says Indeck Ladysmith averaged 16 trucks a day coming into the plant January through August, just to deliver raw materials. “We’ve had trucks that roll in here on occasion, and they can’t go anywhere because they’re out of hours,” he tells Pellet Mill Magazine. “Sometimes they park and can’t move their truck, even when they’re right in the way.”

The fifth proposed modification to HOS regulations is perhaps the most contentious for the Teamsters, but one of the most prized by DeLullo and Sam. The agency proposes a “change to the short-haul exception available to certain commercial drivers by lengthening the drivers’ maximum on-duty period from 12 to 14 hours and extending the distance limit within which the driver may operate from 100 air-miles to 150 air-miles.”

“In an effort to increase so-called ‘flexibility’ for trucking companies, the FMCSA is abandoning safety and allowing drivers to push themselves to the limit even further,” Hoffa said in the Teamsters’ August press release. “Changes for short-haul truckers, for example, would extend their days from 12 to 14 hours on the job. That means a longer and more exhausting workday for tens of thousands of American workers.”  Loesche says the short-haul exemptions, especially for drivers in such industries as waste hauling and package delivery, mean they don’t have to keep electronic logs nor be provided 30-minute rests. “Now, in addition to those, the new proposal seeks to extend their workday from 12 to 14 hours,” he says. “All that does is tack two more hours onto a driver that is already fatigued.

Short-haul driving is incredibly demanding. They are in and out of the truck all day long, using hand carts, jacks, moving pallets. We are more open to other changes, such as the adverse weather and split sleeper berth provisions, but we remain strongly opposed to extending short-haul operators’ days from 12 to 14 hours.” 

DeLullo asks, “Why is a so-called short-haul driver allowed to run 12 hours now, and OTR drivers are allowed to run 14 hours? Who’s more apt to get tired? Someone driving nine hours steady or someone who’s in and out of the truck? Who’s more likely to fall asleep on the job? They need to bring both to 14 hours.” He adds that boosting the air-miles from 100 to 150 for short-haul drivers must also be implemented. “I think it should be even higher,” he says. Sam adds this will allow his drivers to haul more loads per day in a 14-hour period.

Beyond HOS and ELD regulations, there is a spiderweb of additional federal and state regulations to which truckers must adhere. In California, for instance, there are major issues playing out revolving around misclassification and state vs. federal laws.

In late December, FMCSA announced that carriers are not required to comply with California’s meal and rest break requirements, which require employers to provide meal breaks every five hours and 10-minute rest breaks for every four hours worked. According to FMCSA, federal HOS requirements trump California’s more stringent regulations.

There has also been a “monster” problem in California, as Loesche describes it, with employers misclassifying owner-operators as independent contractors when they should be considered company employees. “The state of California has taken incredible, proactive steps to address one of the biggest diseases plaguing our industry, which is drivers who are actual employees but are being misclassified as contractors to save the employer a few bucks to the detriment of the drivers,” Loesche says. “They’re being treated as second-class workers and there’s been an uprising to say they are no longer willing to take this. What California is doing to prevent this situation moving forward is terrific for drivers.”

Trucking is already one of the nation’s most dangerous jobs, according to Hoffa. “We shouldn’t be sacrificing the health and safety of drivers just to pad the profits of their big business bosses,” he said. Winchester says he understands safety is the reason these rules are there to begin with. “They don’t want people getting hurt, it’s no different in our plant,” he says. “But it’s tough to control certain elements with policy and regulations. The shoe doesn’t always fit all that well in every scenario. Anything that can be done to improve the safety of our drivers and folks on the road is in all our best interests. But there comes a point when you have to ask, are they really making it safer or just more economically challenging? If it just jacks prices up, then it hurts folks like us. Freight rates are already so crazy, it makes business more difficult.”
 
Author: Ron Kotrba
Senior Editor, Pellet Mill Magazine
218-745-8347
rkotrba@bbiinternational.com