Split Duty Period
In August 2019, FMCSA proposed changes to five separate provisions in the current HOS rules. The FMCSA had telegraphed four out of the five proposals. However, the fifth proposed change – the “split duty period,” (the ability of a driver to pause the 14-hour driving window with one off-duty break of between 30 minutes and three hours) – was not well telegraphed, and surprised many in the industry.
An observation about this proposed “split duty period” is the number of questions FMCSA posed to the industry about it. The Agency included 12 initial questions on it, in a clear effort to gather more information and data from the industry. FMCSA then went further by asking six additional questions about whether it should consider allowing “multiple pauses” to be divided and total up to three hours. For the four other proposed change, FMCSA included far fewer questions – short-haul, four questions; 30-minute rest break, five questions; split sleeper berth, five questions; and adverse driving conditions, three questions.
We cannot predict the outcome on any of its proposed changed, but it seems clear FMCSA has less information and data on the “split duty period” and this suggests it might be less committed to making this change. Perhaps, as we theorized in our July 2019 “Why the Delay with the Proposed Hours of Service (HOS) Changes?” piece, that’s why it took so long for FMCSA’s proposed rule to be reviewed by OMB.
Short-Haul Driver Exception
FMCSA’s proposed changes to the 100 air-mile, short-haul driver exception (i.e., extending the time to 14 hours and the radius to 150 air-miles) would exempt more carriers and drivers from the use of an ELD. When FMCSA finalized its ELD rule in 2015, it found that 650,000 short-haul drivers would not be subject to ELDs due to their use of the 100 air-mile radius short-haul exception. In its August 2019 proposal, FMCSA did not communicate the number of additional drivers who would be ELD exempt under an expanded 14 hour-150 air-mile short-haul exception. Does FMCSA have data to quantify it? It seems likely since the Agency did not include a question in its proposal asking carriers how many more of their drivers would be ELD exempt under the proposed short-haul expansion. Perhaps the agency chose not to disclose it. If so, why?