By Adam R. YoungA. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: The Federal Motor Carrier Safety Administration (FMCSA), an agency of the Department of Transportation (DOT), today published a notice of proposed rulemaking (NPRM) (FMCSA–2022–0028), that would maintain non-emergency hours of service requirements during labor strikes and other economic emergencies.

FMCSA regulations have strict Hours of Service limitations, generally restricting property-carrying DOT drivers to 11 hours of driving and 14 hours of “on-duty” time.  Further, drivers may not drive after 60/70 hours on duty in 7/8 consecutive days.  The current regulations provide an exception for declared “emergencies,” where employers can allow DOT drivers to work for longer periods.  For example, a declared emergency would allow DOT drivers to rush supplies to hurricane relief efforts.  The FMCSA has proposed a new rule to limit the definition of “emergency.”  The new rule would clarify that “emergency regulatory relief under § 390.23 generally does not apply to economic conditions that are caused by market forces, including shortages of raw materials or supplies, labor strikes, driver shortages, inflation, or fluctuations in freight shipment or brokerage rates, unless such conditions or events cause an immediate threat to human life and result in a declaration of an emergency.”  NPRM at 75207.  This language would exclude emergencies driven by economic needs, and limits available exception to only declared emergencies that threaten lives.

So, the FMCSA seeks to limit employers’ and truckers’ ability to move additional freight and drive additional hours during economic emergencies.  The FMCSA ostensibly is looking to improve road safety by limiting the number of fatigued drivers on the road.  But in the current environment of supply chain issues and driver shortages, the FMCSA’s new rule could lead to additional economic logjams and higher prices for consumers.  Importantly, for the traditional labor interests which may have motivated the new rule, the limited definition of “emergency” appears to give labor unions more power to pressure employers with strikes by shutting down vital shipping lifelines.  Disallowing longer hours of service would require additional truckers on the road, which would likely increase driver wages.

Comments submitted on the proposal must be received on or before February 6, 2023, and interested stakeholders should consider making their voices heard.  Our workplace safety group’s Transportation practice routinely assists employers who employ DOT drivers with hours-of-service, fatigue, and other FMCSA compliance issues.

For more information on this or any related topics, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Group.