Expect The Worst: More Changes To HOS Rules
Oliver B.Patton
Washington Editor
The prudent thing to do is expect changes in the hours of service rules come September.
HDT went to press, that Congress would include in its highway bill an amendment codifying the hours of service rules as they now stand. There remains an outside chance that the provision will pass, but if it does not, the Federal Motor Carrier Safety Administration will publish a revised rule before the end of September.
The codification option has been one part of a three-pronged strategy by the safety agency to deal with a court declaration that the rules must be changed.
The current law says that agency regulations must ensure that driving a truck does not "have a deleterious effect on the physical condition" of the driver - in other words, that it doesn't harm his health. This is the provision that the U.S. Court of Appeals cited last July when it decided that the hours rule is illegal.
The court agreed with the safety advocacy group Public Citizen that the rule should be thrown out because the agency did not consider this factor when it wrote the rule. The court order was subsequently trumped by Congress, which gave the agency until the end of this coming September to fix the rule.
In its congressional gambit, the agency asked lawmakers to replace the phrase, "deleterious effect," with language that says it only has to consider significant threats to driver safety when it writes rules, which would in effect overturn the court's finding that the rule is illegal.
But this provision did not make it into the House version of the highway bill, and so far it has not shown up in the Senate's version. There remains a possibility that it could be added during conference negotiations, but Hill observers agree that this is not likely.
FMCSA Administrator Annette Sandberg has acknowledged that the odds are against the measure.
"People think I'm running my head into a brick wall but I will continue to do it," she said in remarks to the National Industrial Transportation League in April.
Meanwhile, in the second part of its strategy, the agency is proceeding with its rewrite of the rule. Sandberg told the shipper group that although her staff has completed its work, she cannot discuss the particulars of the revised rule. It must be cleared by Transportation Secretary Norman Mineta and the White House Office of Management and Budget before it can be made public.
She noted that while the industry's experience over the past year does indicate safety improvements, there is not yet enough information to prove that the rule works as intended.
The agency has until the end of September to post its revised rule. What happens then is anyone's guess. More legal action is possible, depending on how various interests react to any changes the agency may have made.
Details are not available but based on what the agency indicated when it launched this rulemaking it is possible that there will be changes in the sleeper berth provision. 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 later in the day.
The agency sought comments on a variety of possible solutions, such as: not permitting any split sleeper-berth use to count toward 10-hour off-duty minimum; restrict variations on sleeper use to team drivers only; or set a higher minimum for one of the minimum break periods - five hours instead of the current two, for example.
In comments on these ideas, truckload carriers argued for preserving the current rule. Werner Enterprises, for example, said scheduling would be easier to manage if the sleeper break was not split, but it is more important to give the driver the additional sleep options in the split arrangement. Werner did ask the agency to consider changing the rule to allow drivers to match a split break in the berth with an off-duty period outside of the berth.
Another possible change might be in the area of 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 asked for more information on the effects of the provision. It also indicated it would consider eliminating the provision or implementing it differently, perhaps by limiting its use within a given period to prevent a driver from accumulating an excessive amount of on-duty time before driving.
Again, truckload carriers argued in support of the provision. Schneider National told the agency that the provision is widely used by its drivers because it gives them enough time for two sleep periods. All of the drivers in a Schneider survey commented that the 34-hour restart works well with the 10-hour break to prevent cumulative fatigue, the company reported.
When the agency published the current rule it gave the industry months of notice and followed with an extended period of "soft" enforcement while drivers got used to the new procedures. Observers speculate that the phase-in period for this rule might be shorter but there also would be a period of "soft" enforcement.
The third part of the agency's strategy has been to open a rulemaking on the question of electronic onboard recorders. It is now studying comments, with no date certain on when it will act.
News continued...
