WASHINGTON, D.C. - So what's the difference between the new hours-of-service rule introduced by Federal Motor Carrier Safety Administration (FMCSA) administrator Annette Sandberg in August and the old...
WASHINGTON, D.C. – So what’s the difference between the new hours-of-service rule introduced by Federal Motor Carrier Safety Administration (FMCSA) administrator Annette Sandberg in August and the old one, implemented last year and thrown out in a U.S. Court of Appeal ruling last summer?
Not much, but just enough, hope FMCSA officials, to avoid having the rule overturned in court yet again.
In brief, the new regulations include two revisions – a result of the new rulemaking started in January of this year, in response to issues concerning the present rules raised by the U.S. Court of Appeals for the D.C. Circuit last July. (The FMCSA was given until Sept. 30 of this year to address these concerns, which included the court’s opinion that driver health and safety were not adequately addressed and that the mandatory requirement for electronic on-board recorders were absent from the proposed regulation.)
The FMCSA’s newly proposed rule did not alter the 34-hour restart (recovery) period or the 11-hour driving limit in any way. Nor did it include a call for mandatory electronic on-board recorders, expected by many industry insiders as one of the concessions the FMCSA would make to HOS opponents.
But the agency did change the sleeper berth exception as it applies to both sleeper team drivers and solo drivers.
The new sleeper berth rule continues to allow drivers to split their 10 hours of off-duty time, but requires a minimum of eight hours in the sleeper berth, coupled with a two hour break either in or out of the sleeper berth. The agency also added a short haul exemption for non-CDL drivers operating within a 150 air mile radius. This new exemption allows drivers to have two 16-hour workdays each week, and exempts these drivers from completing logbooks.
A concise chart published by the ATA shows in more detail what elements of the rules were retained and what was changed. (FMCSA has placed the new rule and a number of helpful documents on the agency’s Web site as well. These can be downloaded at www.fmcsa.dot.gov/rules-regulations/topics/hos/HOS-2005.htm )
Changes also include the addition of a second short haul driver exemption that would allow local drivers who are not required to have a CDL, and who are operating within a 150 air mile radius of their starting point, to drive after the 14th hour, but not after the 16th hour, two days per week. The 11-hour driving limit, and the 60 in seven or 70 in eight weekly limit, would still apply to these drivers.
The new rule was slated to become effective Oct. 1, although a transitional period was provided for in the rule, allowing carriers to re-program their systems, train drivers, etc, through Dec. 31 of this year. Soft enforcement would likely be the case for the Oct. 1 through Dec. 31 transitional period, stated officials. In presenting the new rules, FMCSA administrator Sandberg stated that safety is the administration’s top priority.
“Safety is the Bush Administration’s number-one transportation priority. We have a very aggressive goal at the Department of Transportation to reduce fatalities on our nation’s highways, so safety is the top issue in our rulemaking process.
“We developed the new hours-of-service rule with the priority in mind of reducing fatigue-related truck crashes, most notably in the long-haul sector where truck driver fatigue is eighteen times greater than that of the short haul sector.”
Sandberg noted that the research supporting the new rule estimates that only 5.5 per cent of all large truck crashes are fatigue-related.
“We at FMCSA will continue to look at the science and the data to reduce fatalities in not only this 5.5 per cent of truck crashes which are fatigue-related but in the other 94.5 per cent of large truck crashes as well,” she said.
During the rulemaking process, the FMCSA consulted with driver health and fatigue experts and academic research institutions, to identify and analyze relevant research, continued Sandberg. The process included reviewing more than 1,000 health-related research articles and dozens of fatigue-related studies.
“We also considered nearly 1,800 public comments received in response to the 2005 Hours-of-Service Notice of Proposed Rulemaking, which referenced an additional 200 studies,” she added.
“This rule includes requirements for drive time behind the wheel, on-duty time, off-duty time, a fatigue recovery period, and sleeper-berth use. It also provides new provisions for short-haul drivers.
“More importantly we considered the effect of the hours-of-service rule on the physical condition of drivers. Based on the available research and other data and information, the agency concluded that the rule will NOT adversely affect the physical condition of drivers.”
As for the new rule’s impact on trucking and related industries, Sandberg had this to say:
“We are aware that our regulations have a major impact on the national economy through industry operations. We developed this rule on the basis of safety first and foremost, but we try to never lose sight of the operational realities of our complex national transportation system.
“This hours-of-service rule provides an increased opportunity for drivers to obtain necessary rest and restorative sleep, while also recognizing life’s realities by providing the flexibility to move products and operate safely. And we know that these rules are important not only to the ‘trucking industry,’ but to all industries that use trucks as critical components of their business operations. “
As for its potential impact on the Canadian trucking industry, Graham Cooper, senior vice president of the Canadian Trucking Alliance was concerned the new rule could face another court challenge.
“It would certainly be disastrous if the new rule was completely thrown out and everyone had to go back to the old one,” he said, noting the cost to carriers of adjusting to even the smallest changes in hours of service rules is considerable.
“Even with these relatively minor changes, carriers will have to spend money and time adjusting their systems and retraining personnel,” he said, pointing in particular to time-sensitive operations such as just-in-time.
“Three months to adjust isn’t a long time.”
Cooper said CTA members have also expressed some concern over how the new sleeper berth exception will affect team drivers on long hauls.
“Their concern is that, for teams, if one partner doesn’t sleep the whole eight hours that they spend in the bunk, they may not get enough sleep to continue to drive for the next eight hours that their partner is sleeping,” said Cooper.
Concerns about the new sleeper berth exception are shared by owner/operators, at least according to a recent petition filed by the Owner-Operator Independent Drivers Association (OOIDA) based south of the border. The group filed a petition Aug. 29 identifying specific changes to the sleeper berth rule that will have a significant impact on truckers and their operations.
“We are filing for two common sense changes to the new hours-of-service rule,” said OOIDA president and CEO Jim Johnston.
One of the changes OOIDA has petitioned for involves split-sleeper berth provisions for team drivers. Under the new HOS regulations, team drivers would each have to take a minimum of eight consecutive hours off in the sleeper berth.
“That’s impractical for most team operations,” Johnston said. “We’re asking in our petition that FMCSA retain the current sleeper-berth exemption, which allows the drivers to take sleeper berth time in whatever increments they want as long as no period is less than two hours.”
OOIDA contends that FMCSA’s abandonment of the sleeper-berth exemptions, at least as far as team drivers go, was based in part on the assumption that a schedule, such as the one where the driver goes on duty for five hours and then off duty for five hours, only gives a driver a five-
hour window of opportunity to obtain rest.
“This is simply not the case with team drivers,” OOIDA’s petition stated. “Often the period of a driver’s rest is a combination of the length of the other (team) driver’s driving period plus that other driver’s breaks to take care of business.”
And the OOIDA said the fact that the two-hour break which remains after the mandatory eight-hour sleeper berth break does not stop the 14-hour clock is a disincentive for truckers to utilize the break.
“We’re simply asking that those two hours would also stop the clock, that the driver could take those off-duty and not count against his working time,” Johnston said. “We think it’s common sense because it’s consistent with the 10-hour off-duty requirement.”
Johnston pointed out that allowing truckers to take a two-hour midday break to tend to personal affairs – eating, showering, etc. is totally consistent with the rest of the regulation and should not count against the 14-hour on-duty clock.
“We think it’s practical and makes plain common sense to do it that way,” Johnston said.
Meanwhile, the issue of mandatory EOBRS is still on the agenda, as evidenced by Sandberg’s comments in presenting the new HOS rule.
“While we are not including EOBRs in this rulemaking, we did announce an Advance Notice of Proposed Rulemaking last year,” said Sandberg.
“We have reviewed comments received in the public docket – from drivers, trucking and industry associations, and safety advocacy groups – and we continue to collect and analyze data on the costs and benefits of electronic on-board recorders.
“Beyond cost issues, developing rules and technical specifications for these devices is a highly complex endeavor.
The importance and complexity of electronic on-board recorder issues warrant a separate rulemaking, which we are now developing.”
Sandberg said the agency plans to publish a Notice of Proposed Rulemaking for EOBRS early next year.