FMCSA opens comment period on hazmat driver HOS exemption request

May 4, 2015

The American Trucking Associations Inc (ATA) has applied for an exemption from the federal hours-of-service (HOS) regulations that prohibit commercial motor vehicle drivers from driving a CMV if more than eight consecutive hours have passed since the driver's last off-duty or sleeper-berth period of 30 minutes or more. This is the mandatory 30-minute break required under the Federal Motor Carrier Safety Administration rules.

ATA is requesting the exemption on behalf of all motor carriers that transport hazardous materials (HM) shipments requiring security plans under regulations of the Pipeline and Hazardous Materials Safety Administration (PHMSA). These plans normally require a driver to “attend” such cargo while the CMV is stopped, which would be an on-duty activity. This forces drivers to choose between FMCSA's off-duty rest break requirement and compliance with PHMSA's security plans, many of which include an on-duty “attendance” requirement.

ATA proposes that drivers transporting HM for motor carriers required to file security plans be allowed to count their on-duty “attendance” time for any HM cargo toward the required 30-minute rest break requirement, provided the drivers perform no other on-duty activity. The exemption would thus resemble Section 397.7, which requires drivers transporting certain explosives constantly to “attend” their load, while Section 395.1(q) allows them to count “attendance” time toward their rest break.

National Tank Truck Carriers worked with ATA in developing the request for exemption. “The NTTC is pleased to finally see some progress from FMCSA regarding the obvious regulatory conflict between two agencies within the same Department of Transportation,” says Daniel R Furth, NTTC president. “However, the current pace of progress is simply not fast enough because our drivers are forced to make an unnecessary compliance choice each day. I encourage FMCSA to move faster towards a reasonable approach that allows our professional drivers to attend their tractor trailers while they rest, ensuring the level of safety and security required by the Pipeline and Hazardous Materials Administration.”

It should be noted that a carrier or driver would have no reason to claim to be operating under this exemption unless it was necessary to do so to avoid a regulatory conflict, according to ATA. While under the exemption, if granted, the driver's rest-break time would be on-duty and count against the 60- or 70-hour on-duty limit. A rest break taken without using this exemption would be off-duty and not be included in the 60/70-hour limit.

ATA also contends that allowing these drivers to count up to 30 minutes of their attendance time toward a required rest break, provided they perform no other on-duty activities during the break, would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation because the attendance duty would be unlikely to contribute to driver fatigue. ATA further contends that allowing these drivers to count up to 30 minutes of their attendance time toward a required rest break would provide security benefits superior to the current practices.

FMCSA is requesting public comments on the request for exemption. The deadline for comments is June 1.

Comments should be identified by Federal Docket Management System Number FMCSA-2015-0012 and can be submitted through the Federal eRulemaking Portal: Follow the online instructions for submitting comments.