HOURS OF SERVICE: Federal Changes to Short Haul Exemption – Not So Fast

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California “intrastate” operators won’t be able to take advantage of changes

Many in the trucking industry have been anticipating the long-awaited changes in hours-of-service rules to take advantage of flexibility options. However, the wait may take a little longer – it’s now up to the federal courts.

On Sept. 16th the coalition including the International Brotherhood of Teamsters, Parents Against Tired Truckers, Advocates for Highway and Auto Safety, and Citizens for Reliable and Safe Highways filed a last minute petition with the U.S. Court of Appeals for the District of Columbia Circuit to block the scheduled Sept. 29th implementation date.

Basically, the petitioners oppose all aspects of the newly revised HOS rules. Those changes include the following four provisions:

  • Short-haul Exception: Expands the short-haul exception to 150 air-miles and allows a 14-hour work shift to take place as part of the exception.
  • Adverse Driving Conditions Exception: Expands the driving window during adverse driving conditions by up to an additional 2 hours.
  • 30-Minute Break Requirement: Requires a 30-minute break after 8 hours of driving time (instead of on-duty time) and allows an on-duty/not driving period to qualify as the required break. NOTE: The 30-minute break requirement does not apply to those using the short-haul exception.
  • Sleeper Berth Provision: Modifies the sleeper berth exception to allow a driver to meet the 10-hour minimum off-duty requirement by spending at least 7, rather than at least 8 hours of that period in the berth and a minimum off-duty period of at least 2 hours spent inside or outside the berth, provided the two periods total at least 10 hours, and that neither qualify period counts against the 14-hour driving window.

The coalition did file individual comments during the rulemaking process opposing all the proposed changes to federal HOS rules. It is unknown at this time if their 11th hour filing to block the changes will result in an emergency stay.

California “Intrastate” Motor Carriers: Can’t Use New HOS Rules

If you operate only in California, under California’s unique HOS regulations, you will not be able to utilize any of the flexibility options. While California must allow drivers, whose HOS is governed by the federal government – not state, to log their hours according to the federal rules, that isn’t true for purely in-state trucking fleets.

While many states adopt federal rules into state law automatically by “reference,” California is a state that does not. All changes to HOS rules must go through a regulatory process initiated by the California Highway Patrol.

As of this writing, the association has been told by CHP there is no immediate plan to modify California’s short-haul HOS exception to match the federal exception, so California’s allowable short-haul will remain at 100 air miles/12 hours.

The association will continue to work with CHP to encourage a rulemaking that aligns/harmonizes the state’s allowable short-haul exception to match the federal but similar to California still not having an electronic logging device (ELD) mandate, this process is expected to take quite a while.

The bottom line is if your HOS are governed by California regulation, you cannot use any of the announced changes in HOS regulations approved at the federal level. There will be no enforcement leeway by CHP if caught violation. You risk being cited or even potentially placed out-of-service until coming into compliance with California regulation.

Overview of Difference Between Federal and California HOS Rules

FEDERAL HOS BASICS (49 CFR § 395)

 

(1)          11 hours driving

(2)          14 hours total duty window

(3)          10 hours off-duty mandatory

(4)          70-hour maximum workweek (8 days)

(5)          34-hour restart provision – general trucking

(6)          24-hour restart provision – construction trucking

(7)          Short-haul exemption – 150 air miles, 14-hour day (effective 9/28/20)

 

CALIFORNIA HOS BASICS (CCR Title 13, Division 2, Chapter 6.5, Article 3, Section 1212)

 

(1)          12 hours driving

(2)          16 hours total duty window

(3)          10 hours off-duty mandatory

(4)          80-hour maximum workweek (8 days)

(5)          34-hour restart provision – general trucking

(6)          24-hour restart provision – construction trucking

(7)          Short-haul exemption – 100 air miles, 12-hour day

 

Switching Between State and Federal HOS rules

 

When you make an out-of-state trip, or even if you haul a load from any port or rail yard, or a load that originated out-of-state that you will be delivering “last mile,” even where the pick-up and  final destination is solely in California, you must log federal HOS.

 

However, when you complete that federally regulated trip it is important to remember, you remain under the authority of US DOT for the remainder of your 60/70-hour period (i.e. 7-8-day schedule).

 

This means if you revert to local operations utilizing the short-haul exception to HOS rules, you are using the federal short-haul exception which does allow the increased flexibility (albeit a shorter workweek, 70 hours max versus 80).

 

We’d caution however that you include an explanation letter in the vehicle being operated because oftentimes a driver will not correctly define which HOS rules they are operating under and if they miscommunicate with roadside law enforcement they will likely be cited.

 

For a complete explanation of switching between state and federal HOS you can either go online to FMCSA, Section § 390.3: General applicability, Interpretations, Question 24. The pertinent information is towards the end of the explanation under the header “National Policy.” https://www.fmcsa.dot.gov/regulations/title49/part/390

 

If you have the management edition of the FMCSR’s (we supply this to all our members), open the book to Part 390 and go to DOT Interpretations for § 390.3, Question 24.

 

We anticipate the lack of conformity between state and federal short-haul exception rules is going to create confusion on everyone’s part. If you have any questions, please contact WSTA’s Director of Governmental Affairs, Joe Rajkovacz at (909) 982-9898.

DOT-FMCSA Preemployment Testing Changed from 30 to 90-days for Drivers Laid-off, Furloughed or Not Working for More than 30-days but Can Prove They Participated in a Drug Testing Program Prior to the Period

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Effective June 5, 2020, and ends September 30, 2020

On June 5, FMCSA released a “Grant of Waiver”, saying, “As employers begin to recall drivers who were furloughed, laid off, or otherwise not working for the company for more than 30 days, the cost and logistical barriers of testing a large influx of drivers in a short timeframe are significant, at a time when the commercial trucking and motorcoach industry is facing unprecedented economic challenges. This problem is further compounded by the reduced availability of controlled substances testing resources due to continued facility closures or other testing impediments caused by the COVID-19 public health emergency.”

FMCSA also noted that, “This waiver would extend, from 30 days to 90 days, the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would allow employers to forego pre-employment testing for drivers who have participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 90 days of hire or rehire. Allowing employers to forego pre-employment testing for drivers who were in a testing program within the previous 90 days will provide relief from the administrative burdens and costs associated with administering tests and allow them to return drivers to the workforce in a more efficient manner, thus promoting job creation and economic growth.”

The FMCSA’s waiver also clarified that, “It is important to note that this waiver does not alter any of the remaining controlled substances and alcohol use and testing requirements for a driver performing safety-sensitive functions, and that motor carrier employers subject to the waiver have access, in real time, to driver-specific drug and alcohol violation information through the Drug and Alcohol Clearinghouse (Clearinghouse).”

According to WSTA legal counsel, “The waiver appears to apply to both re-hires and new hires, provided they were in a program within the past 90 days.” Also, “The waiver clarifies that it “would extend, from 30 days to 90 days, the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would allow employers to forego pre-employment testing for drivers who have participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 90 days of hire or rehire.” See 49 CFR 382.301(b) and (c).

This is a reasonable regulatory response to the pandemic and the subsequent return to work process the nation and its transportation companies and their employee drivers are presently experiencing. We suggest that for all employee drivers subject to the waiver, that the company add this document with the rehire dates on or after June 5, and insert it into the employee files noting that the preemployment drug test was waived.

For more details, visit the FMCSA web page https://www.fmcsa.dot.gov/emergency/three-month-waiver-response-economic-consequences-covid-19-public-health-emergency

To review the entire waiver click here:
https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-06/Waiver%20-%20Preemployment%20testing%20-%20FINAL%20-%20June%205.pdf

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