FMCSA Will Not Change Sleeper Rule
The Federal Motor Carrier Safety Administration rejected pleas to return to the old sleeper berth hours of service rule. The agency will, however, consider amending the rule so a team driver may log part of his rest period as off-duty, rather than on-duty not driving.
The agency denied requests from the Owner-Operator Independent Drivers Association and the Teamsters union to reinstate the old sleeper berth provision. OOIDA responded with notice that it intends to challenge the decision in court.
Under the new provision, drivers who use sleeper berths may split their mandatory 10-hour break by taking eight hours in the berth and two hours either in or out of the berth. This is a significant change from the previous rule, which said only that neither period of the split break could be less than two hours.
OOIDA, the Teamsters and a host of individual drivers have complained that the new provision takes away much-needed flexibility. The old provision let drivers choose from a broad range of schedules. The general industry practice was to work five hours and rest five hours. Drivers say the new provision forces them to drive longer, and that it is difficult, if not impossible, to sleep for seven to eight hours in the berth of a moving truck.
But the agency told OOIDA that it needs to eliminate the "fragmented" rest periods set up by the old provision. "The final rule ensures that drivers can obtain seven to eight hours of uninterrupted sleep during one sleeper-berth period," the agency said. "The scientific studies relied upon by (FMCSA) ... do not support driver claims that shorter, but more frequent, periods of rest are just as good at preventing fatigue as a single extended sleep period."
Unless a driver gets seven to eight hours of sleep at a time, he will begin to accumulate fatigue, the agency said.
In its response to the Teamster petition, the agency said, "We understand the business reasons for keeping team-driven (trucks) on the road as much as possible, and we recognize that the 2005 sleeper-berth rule makes those operations more complex, but safety is a higher priority for the agency than the flexibility of sleeper-berth teams."
The agency did consent to a request by the American Trucking Associations to consider changing the definition of "on-duty time."
Dave Osiecki, vice president of safety, security and operations at ATA, explained that under the current rule, when a driver sits in the passenger seat during his mandatory 10-hour rest break, he must log that time as on-duty not driving. A driver is not required to spend all 10 of his rest hours in the berth – he can spend up to two hours out of it – but in order to log that time as off-duty, he must be out of the truck.
ATA asked for a change in the definition of on-duty so a driver may log that rest time in the passenger seat as off-duty. The agency said it will propose the change as an amendment to the rule. It did not say when it will issue the proposal.
OOIDA, meanwhile, announced that it is going to challenge the agency in court. The association had petitioned the agency to keep the old sleeper rule, and to let drivers take the two-hour portion of the break off the 14-hour clock. When the agency rejected both requests, the association said it would ask the court to overturn the team driver provision of the rule.
At the same time, OOIDA said it plans to defend the new rule to the extent that it does not contain a requirement for electronic onboard recorders to track driver hours.
FMCSA is working on a recorder proposal that it intends to make public this year. The agency may call for recorders, but so far it has not said what it will do.
Still pending is the agency's response to a petition by various safety groups to reconsider portions of the new rule. Advocates for Highway and Auto Safety, Citizens for Reliable and Safe Highways, the Teamsters union, Parents Against Tired Truckers, Public Citizen and the Trauma Foundation claimed that the agency failed to justify key provisions of the 2003 rule, as well as parts of the recent revisions.
Depending on the agency's response, Public Citizen may also take the issue to court, the group's president, Joan Claybrook, has said.
— Oliver B. Patton, Washington Editor
