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FMCSA REVISES GUIDANCE ON HOS RULE’S 30-MINUTE BREAK LANGUAGE

From the National Ready Mixed Concrete Association Government Affairs staff… Following the U.S. Court of Appeals for the District of Columbia Circuit’s ruling vacating the Hours of Service (HOS) 30-minute break for short-haulers, the Federal Motor Carrier Safety Administration (FMCSA) issued guidance on exactly to whom the 30-minute break rule did not apply.

It states that commercial vehicle drivers who are able to take advantage of the 100 air-mile logging exemption do not need to take the 30-minute break, and applies to concrete mixer drivers, provided they a) meet the exemption criteria, which in part, include not driving beyond 100 air-miles from the plant where they start and finish each day; and, b) are released from duty 12 hours or less from the time they come on duty.

Although positive for ready mixed producers, the guidance inadvertently created a compliance gray area, specifically: A very real and common scenario includes a driver who starts the work day intending on utilizing the 100 air-mile logging exemption, but due to unforeseen and uncontrollable issues, has to work beyond that 12- hour threshold. This immediately puts that driver out of compliance with both the 30-minute break and the entire 100 air-mile logging exemption. While there is guidance on how to rectify this issue to be compliant outside of the 100 air-mile logging exemption, there is not any guidance on the 30-minute break compliance.

NRMCA staff met with FMCSA officials in August and November 2013 to highlight the inconsistency. In response, the agency advises: “In such situations, the driver should not be considered to be in violation of the break rule. The driver should annotate the RODS [Record of Duty Status] to indicate why the required rest break was not taken earlier, and should take the break at the earliest safe opportunity. Ideally, this would be prior to preparing the RODS or immediately following the preparation of the RODS. Under FMCSA’s existing HOS requirements and guidance, drivers would begin preparing the RODS as soon as they determine they are no longer eligible for the RODS exemption.”

While NRMCA had suggested alternative guidance better suited to short-haul operations, staff is encouraged by FMCSA’s acknowledgement of the issue and the necessity for issuing guidance. Agency guidelines now let producers decide when it is “safe” for mixer drivers to take a 30-minute break when working more than 12 hours. In some cases it will probably be pretty easy for a driver to retroactively log and then find some time during the day when he or she took a 30-minute break while other drivers can finish delivering loads, return to the plant and still be in compliance.

Despite the overall success on pushing back the required 30-minute break for short-haulers, NRMCA’s HOS work is not finished, as staff agreed to submit to FMCSA more information on the industry and details of how safety will not be compromised under the new guidance. Following the submittal of this information, FMCSA scheduled an internal meeting to discuss the industry exemption request and indicated it would make a decision in early 2014. Additional information on the guidance can be obtained from NRMCA’s Gary Mullings, gmullings@nrmca.org, or Kevin Walgenbach, kwalgenbach@nrmca.org.