FMCSA Explains Policy On Controversial Issues
In an attempt to clarify how it will enforce some of the murkier provisions of the hours of service rule, the Federal Motor Carrier Safety Administration sent a memo to its field staff. The memo, posted in late November, focuses on the sleeper berth, 34-hour restart and out-of-service policies.
In the long run, the sleeper berth policy may change, the agency indicated. It said that American Trucking Assns. has raised issues that the agency will address at a later date (See related story). Meanwhile, though, these are the policies that are in effect.
1. Calculating the 14-hour rule following two qualifying sleeper berth periods totaling 10 hours.
Questions have arisen over whether the rule permits a full restart of the 14-hour on-duty period following two qualifying sleeper berth periods. Although that is a possible reading, it conflicts with the traditional interpretation of the current 15-hour rule and is likely to cause confusion. The 14-hour period will be calculated by counting the time from the end of the prior qualifying sleeper berth period to the beginning of a subsequent qualifying sleeper berth period. This is how the new 11-hour rule is calculated, and is similar to the manner in which the agency has always treated the calculation of the 10- and 15-hour rules.
2. Combining sleeper berth and off-duty time.
The current rule states that two qualifying sleeper berth periods will extend the 14-hour period. Questions have arisen as to how to treat a situation in which a driver, or a member of a driving team, appropriately accumulates the 10 hours off-duty using sleeper berth in over-the-road trips, and then goes off-duty for 10 or more consecutive hours.
The agency believes if sleeper berths are being used appropriately, drivers should not have to spend time in the sleeper berth upon going off-duty for 10 or more consecutive hours in order to remain in compliance. Therefore, the agency will allow the last sleeper berth period to be combined with the off-duty period; however, it is important to prevent drivers who do not regularly use sleeper berths from extending their day by taking a single sleeper berth period. Therefore, if a driver has only used one sleeper berth period, it may not be combined with the 10 or more consecutive hour off-duty period, and the sleeper berth time would count toward calculation of the 14-hour rule.
3. Use of the 34-hour restart provision.
The agency's policy is that a driver may restart the 60/70-hour period by taking 34 or more consecutive hours off-duty provided at the beginning of the 34-hour period, the driver has not accumulated more than 60 or 70 on-duty hours in the prior 6 or 7 days.
This provision was designed to give carriers and drivers operational flexibility while still providing the driver opportunity for adequate rest. There is no discussion in the regulatory history of the HOS rule indicating a driver may exceed the 60/70-hour rule and then use a 34-hour restart to begin a new 60/70-hour period without regard to the number of on-duty hours in the prior 6 or 7 days. If a driver has exceeded the 60/70-hour rule, he may not utilize the 34-hour restart and must continue to operate under the maximum driving time provision (section 395.3(b)).
4. Length of out-of-service time required when a driver has violated the 11- or 14-hour rules in a sleeper berth operation.
The agency's policy is that sleeper berth drivers who have violated the 11- or 14-hour rules must be placed out-of-service for the minimum amount of time necessary to bring the driver into compliance. This period will be determined using the number of hours in the driver's prior qualifying sleeper berth period.
The length of an OOS period required to bring a driver back into compliance is currently determined by taking the driver's prior qualifying sleeper berth period into consideration. The agency did not intend to change this practice under the new HOS rule, and the agency does not read the new rule as invalidating a prior sleeper berth period. Furthermore, the time the driver has spent in the prior qualifying sleeper berth is not counted toward determining whether or not the driver is in violation of the 14-hour rule. In this case, a qualifying sleeper berth period is a sleeper berth period of at least 2 hours that when combined with an additional sleeper berth period will result in the driver having legal hours to drive.
5. Length of OOS time required when a driver has exceeded 60/70 hours in 7/8 days.
Questions have arisen concerning the appropriate amount of time a driver must be placed OOS for exceeding 60/70 hours in 7/8 days prior to driving again. The length of an OOS period required to bring a driver back into compliance is currently determined based on the number of hours the driver is in excess of the rule. The agency did not intend to change this practice under the new HOS regulations. The driver should be placed OOS for the minimum amount of time necessary to bring the driver into compliance. If a driver has exceeded the 60/70-hour rule, the driver may not utilize the 34-hour restart and must continue to operate under the maximum driving time provision (section 395.3(b)).
Hours of Service continued...
