FMCSA Asks For Information To Fix Hours Of Service Rule
Oliver B. Patton
Washington Editor
The new chapter in the saga of hours of service rules for truck drivers begins with an obvious question: How do the rules affect driver health?
The Federal Motor Carrier Safety Administration is not yet proposing any changes in the rule. Instead, it is asking for information on the central question raised by the court order that threw out the rule last July. The U.S. Court of Appeals for the District of Columbia, in response to a petition from Public Citizen and other safety groups, found that the agency did not consider driver health when it wrote the rule.
Right now the rule is in legal limbo: It remains in effect under an act of Congress. The agency has until October to come up with a rule that will satisfy the court.
In its latest move, a Notice of Proposed Rulemaking posted in late January, the agency sets the stage for possible changes in the rule.
This rulemaking is the third element in a three-pronged strategy to deal with the court's decision. In a separate rulemaking, the agency is dealing with the issue of electronic onboard recorders (See related story). It also has hired the Transportation Research Board to review all of the research and literature concerning the health implications of the rules. That report is due early this year.
What the agency does in this rulemaking is "propose" the existing rule and ask for comments with respect to driver health. For example: Do the central provisions of 10 hours off duty, 11 hours of driving and a 14-hour work day ensure safety and minimize sleep deprivation and fatigue, and thus reduce the risk of fatigue-related accidents?
The agency is looking for data from the field: "How much sleep do drivers operating under the new regulations average on a daily basis, and how has this average changed as a result of the new rule?"
In presenting its questions, the agency implicitly tries to make the case that the rule does take driver health into consideration. It says, for example, that the premise of moving toward a 24-hour work-rest cycle that gives drivers time for at least eight hours sleep per day and carriers flexibility for scheduling will improve safety and driver health. And it points out that provisions such as increasing time for rest from eight to 10 hours, and limiting the work day with the 14-hour rule "enhanced safety and health."
While the notice does not propose any changes in the rule, it does signal areas where changes are likely.
Portions of the sleeper berth provision need to be addressed, the agency said. Right now the provision allows sleeper drivers to accumulate their mandatory 10 hours off-duty time in a variety of ways. The variations can become quite complex, creating problems for drivers and enforcement personnel alike, the agency said.
For example, a driver can be out of compliance until he has completed his second session in the berth - a situation in which a roadside inspector must rely on the driver's assurance that he will indeed take the required break down the road.
The agency wants reactions to these possible changes in the provision:
• Not permit any split sleeper-berth use to count toward 10-hour off-duty minimum.
• Allow one continuous sleeper period of less than 10 hours (maybe eight hours) to substitute for the 10 hours.
• Eliminate sleeper berth periods, or set a higher minimum - perhaps five hours, or eight hours - for one of the splits.
• Change the way the sleeper berth period affects the calculation of the 14-hour limit.
• Restrict variations on sleeper use to team drivers only. This echoes what the agency proposed in its original hours proposal in 2000: Only team drivers may use sleeper berths to split their 10-hour off-duty time, and only in periods of at least five hours each.
Another particular concern is the 34-hour restart provision. The court criticized the agency for one aspect of this provision: Hypothetically, a driver can boost his weekly on-duty and driving time well past the limits of 60 hours in seven days, or 70 hours in eight days.
In response, the agency said it is looking for more information on the effects of the 34-hour restart provision, but also is considering eliminating the provision or implementing it differently. One alternative might be to limit its use within a given period to prevent a driver from accumulating an excessive amount of on-duty time before driving.
The proposal is posted at http://dms.dot.gov. The docket number is 19608. Comments will be due by the middle of March.
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