FMCSA Stands by Hours of Service Rule
Driver health issues are addressed in detail in the revised rule.
Oliver B.Patton
Washington Editor
The Federal Motor Carrier Safety Administration posted a revised hours of service rule that preserves the core requirements of the current rule, with adjustments to the sleeper berth and short-haul provisions.
The revised rule takes effect Oct. 1. To help the transition, the agency will go easy on enforcement through the end of the year.
The agency produced this new rule in response to a court finding that the current rule is illegal because it fails to account for driver health. But the basic message from the agency is this: We stand by the current rule.
The agency addresses driver health in detail in the revised rule, referencing research it conducted on a broad range of scientific evidence.
"FMCSA has concluded that the operation of (commercial motor vehicles) under this rule does not have a deleterious effect on the physical condition of drivers," the agency says.
Response from the safety advocates who challenged the current rule on grounds of driver health was immediate and direct: "We're very unhappy," said Gerald Donaldson, senior research director for Advocates for Highway and Auto Safety. The agency "is simply defying the court."
As the industry adjusts to the new sleeper berth and short-haul provisions, it also will have to take into account the possibility of another legal challenge to the rule. While Joan Claybrook, the president of Public Citizen – the lead advocacy group in the suit – has not said what she intends to do, she issued a statement saying the new rule is a "disappointment."
Also still in play is the possibility of congressional action to change the law regarding hours of service.
The current law says that FMCSA must ensure that driving a truck does not "have a deleterious effect on the physical condition" of the driver – in other words that it does not harm his health. This was the provision cited by the court when it threw out the current rule. Earlier this year the agency asked Congress for a broader interpretation that would in effect codify the current rule. Congress declined to do so.
But the agency has not closed the door on this effort. FMCSA Administrator Annette Sandberg said that the aim of the codification attempt was to end litigation, and that she is "still evaluating" that tactic.
The New Rule
The agency decided to stick with the fundamental requirements of its current rule. The minimum off-duty period remains 10 hours, and the 14-hour maximum still stands for on-duty time. The 11-hour limit on driving remains, as do the weekly limits of 60 hours in seven days and 70 hours in eight days. Also untouched is the 34-hour restart provision.
The first change is in the sleeper berth provision. Under the current rule, team and solo drivers may split their 10-hour break into two periods, neither of which may be less than two hours. The new rule allows a split, but requires that one of the periods be at least eight hours in the berth. The second period of at least two hours may be taken in or out of the berth.
Explaining the change, the agency indicated that the current rule is not in the best interests of driver health. "There is a growing body of research demonstrating that sleep periods of four hours, or less, can result in a number of adverse physiologic medical symptoms or conditions," the agency wrote. "Drivers need one period of sleep that is between seven to eight consecutive hours daily in order to maintain a healthy lifestyle."
The second change affects short-haul drivers who operate within 150 air miles of their starting point and who drive trucks that do not require them to have a commercial driver's license. These drivers now have an exemption from the 14-hour daily on-duty limit: one day a week they may drive after the 14th hour but not after the 16th hour. Under the new rule, that exemption is extended to two days a week. The 11-hour daily driving limit and the weekly on-duty limits still apply.
These drivers do not have to keep logbooks, but their employers must maintain accurate time records and save them for six months.
The agency said it made this change because short-haul trucks of this type have far fewer accidents than long-haul trucks. "On a per-mile basis, long-haul trucks are almost 20 times more likely to be involved in a fatigue-related crash," the agency said.
Sandberg explained that one reason for the short-haul change was to help the agency focus its resources by recognizing the safety differences between long-haul and short-haul operations.
Some observers had expected that the agency would also make changes to the 34-hour restart provision. The court had criticized this provision because it hypothetically allows a driver to increase his on-duty and driving time well past the limits of 60 hours in seven days or 70 hours in eight days. The agency considered eliminating the provision, or limiting it, but in the end decided to keep it as it stands.
In its research, it found that most drivers are taking longer recovery periods than the 34-hour minimum. "FMCSA believes the average driver is not, and cannot realistically, drive and work the longer weekly hours, on a regular basis, as described by some of the commenters," the agency said.
Aside from the two changes, the agency addressed the court's concern about driver health by soliciting information from the industry and other commenters, and reviewing scientific studies. The 387-page rule analyzes this material and concludes that the core features of the rule do in fact protect driver health, particularly compared to the earlier rule.
"FMCSA has concluded that the operation of CMVs under this rule does not have a deleterious effect on the physical condition of drivers. We believe our conclusions accurately reflect a preponderance of the scientific data."
The evidence shows, the agency said, that under the new rule drivers are getting at least an additional hour more sleep per day than they got under the old rule. "There is no indication that drivers are averaging more hours of work, as opponents of the 2003 rule had feared."
Sandberg provided a new reading of the key hours of service statistic. In its first whack at rewriting the rule in 2000, the agency concluded that 15% of all fatal and injury truck crashes can be related to driver fatigue. Introducing the new rule, Sandberg said that just 5.5% of all truck crashes are fatigue related.
According to the agency's economic impact analysis, the new rule will produce an overall net gain for the industry of $270 million a year. A $10 million loss to long-haul carriers due to the new sleeper berth provision is offset by a $280 million gain to short-haul carriers, she said.
Early response from the industry was accepting, with concern about the sleeper berth provision.
"Today's action by (FMCSA) confirms our research that the current hours of service rules have been measurably effective in improving safety," said American Trucking Assns. President Bill Graves in a statement. He added, however, that the association needs to "closely examine" the sleeper berth provision.
Washington Report continued...
