Could the COVID hours waiver be flexibility advocates' chance to further disentangle HOS rigidity?

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Updated Sep 25, 2021

Trucker Nation Director of Communications Andrea Marks is our guest for today's edition of Overdrive Radio. Marks is no stranger to the regulatory process – or the ins and outs of running a small trucking business. She has livestock haulers in her family’s small fleet.

She's sharing here what she sees as a golden opportunity for hours of service flexibility advocates lying in plain view, in the form of the COVID-19 emergency declaration, waiving regs for emergency relief haulers of particular commodities since the beginning of the pandemic in March of 2020. 

There’s not just opportunity therein, though, but danger, given the September 1 changes to the emergency waiver seem to her to be designed to discourage use of the exemption and give regulators a way to control the narrative around its use. She wonders whether they anticipate a serious challenge to the efficacy of the hours of service rule itself. 

Any serious challenge might depend on how many carriers are running under the exemption, and how often – a question we’ve been asking at Overdrive this week, with a relative few respondents as of the morning of Friday, September 16. 

[Related: COVID HOS waiver not necessarily valid 'just because you're hauling food']

The following was updated September 24, 2021, to reflect FMCSA's answers to questions posed:

Following our talk with Marks, we put the following questions directly to FMCSA – answers were promised at by end of day Friday the 16th by the agency – early next week at the latest. The answers came late in the day on the 23rd, following spokesperson Duane DeBruyne having been out of the office the prior week. Here's an update with those questions, and DeBruyne's answers: 

1: What is the reasoning behind shifting the COVID-19 emergency declaration and its waiver to exempting only the drive-time limits of the hours of service, and not the other regulations previously exempted? 

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DeBruyne: Under longstanding “legacy” practice, the Agency believed it was compelled to exempt motor carriers providing emergency relief from all sections of 49 CFR parts 390-399, including driver medical qualification, vehicle repair and maintenance requirements, and rules on safe operation.

Starting with the COVID declaration and going forward, FMCSA intends to issue emergency exemption declarations that are only as broad as necessary to address the actual transportation need, which  generally means declarations limited just to relief from the hours-of-service rules.

As FMCSA Acting Administrator Meera Joshi suggested in her testimony in the Senate on Wednesday, September 22, too, trucking may see emergency declarations and regulatory relief in future that are, as Debruyne noted, more generally narrow,. When it comes to increasing the speed with which relief freight might be delivered, generally it's the hours regs that stand to have an effect. 

2. With regard to the reporting requirement or ask of carriers – is it really a requirement or merely a voluntary ask? What information exactly is being asked of carriers to report?

DeBruyne: It is very narrow in scope.  At the end of September, it will be submissible through the FMCSA Portal. [After logging in, go to the Available FMCSA Systems section; there will be a link titled “Emergency Declaration Reporting (No. 2020-002).”Carriers that utilize the COVID Declaration No. 2020-002 exemption will be asked to submit the following: USDOT number; the number of trips made by commercial vehicles under the COVID Declaration; the type of goods transported; and for multiple goods transported, an indication of which commodity was transported the most.

The data request is minimally burdensome on motor carriers.

4: Has the agency considered examining crash rates of carriers who’ve used the declarations to date extensively versus other carriers who haven’t? 

DeBruyne: Presently, it is not possible to determine how often emergency exemptions are used, which is the reason for the data collection. The Agency will use this data to better understand how many carriers use the exemptions, how often, and for what purposes.

In the September 17  podcast, Andrea Marks had some answers, and plenty strong opinions, too. Ultimately, she believed that the COVID exemption could be hours flexibility advocates’ best chance to demonstrate the safety effectiveness of more permissive drive-time regulations, if only that data can be mustered apart from FMCSA's collection efforts. Take a listen: 


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