Owner-ops, groups: COVID hours waiver should open door for more HOS flexibility

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Updated Oct 7, 2022

A short time after the Federal Motor Carrier Safety Administration most recently extended its COVID-related hours of service waiver for truck drivers hauling certain commodities, the agency opened a brief comment period asking the industry about how much the waiver is being used and any impact it has had on safety.

The waiver has been in effect since March 13, 2020, in some form, and modified and extended multiple times since, with the latest extension set to last through Oct. 15. It currently exempts covered drivers from the maximum-drive-time limits in the hours of service (49 Code of Federal Regulations 395.3). The waiver has narrowed over the last two-and-a-half-plus years and now covers the following commodities:

  • Livestock and livestock feed
  • Medical supplies and equipment related to the testing, diagnosis, and treatment of COVID-19
  • Vaccines, constituent products, and medical supplies and equipment including ancillary supplies/kits for the administration of vaccines, related to the prevention of COVID-19
  • Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap, and disinfectants
  • Food, paper products, and other groceries for emergency restocking of distribution centers or stores
  • Gasoline, diesel, diesel exhaust fluid (DEF), jet fuel, ethyl alcohol, and heating fuel including propane, natural gas, and heating oil

In the brief comment period -- which was open Sept. 6 through Sept. 21 -- pertaining to carriers’ continued use of the waiver, a number of trucking organizations and individual commenters weighed in -- both in favor of and against extending the declaration beyond Oct. 15.

The Owner-Operator Independent Drivers Association said that while it understands FMCSA will thoroughly review all of the data collected on carrier safety since the beginning of the pandemic, “the preliminary information certainly shows that professional drivers are capable of operating safely with additional HOS flexibility.” OOIDA cited FMCSA’s own report from August that only two commercial motor vehicles had been involved in crashes while operating under the waiver and that no injuries or damages occurred.

“This shows that drivers are generally not going to abuse additional HOS flexibility at the risk of highway safety,” OOIDA added. “An experienced driver will know when they need to rest or take a break, and this data shows that more practical HOS rules allow drivers to use their time more efficiently without endangering other highway users.”

Individual commenting owner-operators tended to agree, even taking things further in some instances. 

Owner-operator Selton Shakes Jr. said in his comments that drivers’ safety records using the waiver speaks for itself. “The statistics with the exempt drivers have proven them to be safe,” he said. “Why should this not be applied to all or those with a certain amount of experience or a safety record? I know this would improve my ability to safely get loads to delivery in a timely manner.”

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Pete Gonzales, who said he’s been an owner-operator for 45 years, said the COVID exemption “has given the driver the choice to drive when he feels rested, and to stop and rest when he is tired.

“I, for one, have been driving been hauling medical equipment throughout the pandemic, and I feel that this is one of the smartest [things] the federal government has done to help the driver and this country,."

Owner-operator and retired California Highway Patrol officer Joel Merrill said in his experience, the hours of service make drivers more unsafe because they tend to push harder to beat the clock. “I’m all for having a 10-hour off period, but the 14 hours should be utilized as deemed by the driver,” he said.

OOIDA further encouraged FMCSA to take action to add HOS flexibility, “starting with expanded split-sleeper options or letting drivers pause their 14-hour clock up to 3 hours if necessary.”

The American Trucking Associations, on the other hand, said that while it appreciated the waiver early on in the pandemic, “most ATA members no longer feel continued relief is necessary.” ATA said its members have voiced concerns that continued regulatory relief could be used “to circumvent the hours-of-service regulations or foster abuse of the regulations.

“As the nation moves toward the end of the public health emergency, most of our membership believe the extension of the emergency declaration relief should be allowed to expire,” ATA added.

One group benefiting from the waiver extensively throughout the pandemic is that made up of livestock haulers, and the National Cattlemen’s Beef Association in its comments urged FMCSA to extend the waiver beyond the current Oct. 15 expiration date. “Livestock haulers continue to utilize this emergency declaration while maintaining the highest level of safety on the road,” NCBA said.

The group noted that livestock haulers make up less than 1% of trucks on the road, and that they “have continued to not only use this exemption when fully loaded with cattle but have also logged this information into the FMCSA portal as requested.”

NCBA also added that the current hours of service rules in general “do not adequately accommodate this subset of the industry. A complete HOS exemption for livestock haulers would be beneficial to the livestock hauling industry and to the American public, who wants to see plenty of beef in grocery store meat cases.” The group further noted that livestock haulers “have proven during this pandemic and the ensuing emergency declaration period that they can be exempted from HOS when loaded and still maintain the highest level of safety to the motoring public, themselves and the livestock in their care.”

Crash-victims advocacy group the Truck Safety Coalition asked FMCSA to consider the “deplorable state of roadway safety when considering continued regulatory relief, specifically the unabated rise in truck crash fatalities,” adding that, “any potential regulatory relief from HOS carries with it a tremendous risk to truck drivers and other roadway users.”

TSC also asked FMCSA to consider the latest CDC guidance in considering the public health justification for any potential continued regulatory relief. The group noted the decrease in waiver requests for essential medical supplies as an indicator that continued relief may not be necessary.

“FMCSA is encouraged to carefully consider the risk to roadway safety that accompanies regulatory relief from HOS against the continued need for the urgent need for delivery of life-saving medical supplies and commodities to save lives at risk due to COVID-19,” TSC concluded.

[Related: Canada ends border vaccine mandate, OOIDA calls on Biden to follow suit]

Owner-operator Merrill disagreed with the TSC's assessment on rising crash rates, noting he felt the COVID waiver had not contributed to an uptick in collisions, “which should also show this is not a safety issue,” he said. He's run “under an agricultural exemption and a FEMA exemption and was able to pick my stop times accordingly, which I felt was a better fit to how I operate.”

Merrill added that he is “all for maintaining a log book and having a 14/10 work day.”

[Related: FMCSA official re-emphasizes exploratory nature of pre-2000 ELD exemption attention]

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