Hours rules: Split rest strictly limited

Federal Motor Carrier Safety Administration is asking for input on how it can leverage technologies such as wireless communications, sensors and onboard diagnostics to improve commercial vehicle and driver safety inspections. Comments are due Oct. 17. For information, visit this site and search Docket No. 22097.

Diesel prices ended August at a record $2.59 a gallon retail nationwide, according to the Energy Information Administration. Earlier in the month, diesel prices experienced their largest one-week gain since EIA began tracking them in 1994. For the week ended Aug. 15, the national average price surged 16 cents to $2.567. The next highest one-week increase occurred in February 2003 when the price jumped 12 cents to $1.662.

Freight Transportation Services Index for May was 113.1, an increase of 0.5 percent from April’s 112.6, according to the Bureau of Transportation Statistics. The May 2005 level was the index’s third consecutive monthly increase and was 2.4 percent higher than the May level of 110.5. The base year for the index is 2000.

For the second consecutive month, the American Trucking Associations’ advanced seasonally adjusted for-hire Truck Tonnage Index decreased. The index contracted 0.6 percent in July from June to 114.3. The index is up 0.5 percent over July 2004, however. The index dropped 0.2 percent in June from May. For 2005 to date, the index is up 2.4 percent over the same 2004 period.

SCS Transportation named David Gorman president and CEO of its Delanco, N.J.-based Jevic Transportation, replacing Paul Karvois, who has left the company. Gorman joined Jevic in 1992 and most recently was senior vice president of operations.

National Automobile Transporters Association has become Automobile Carriers Conference of the American Trucking Associations. Current NATA President Robert Farrell will serve as executive director of the new conference, which will continue to operate out of ATA’s headquarters in Alexandria, Va.

After a federal appeals court ordered a new look at the hours-of-service regulations, the Federal Motor Carrier Safety Administration issued new regulations last month that make just three changes to the regulations currently in place.

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Effective Oct. 1, drivers – both solo and team – will not be able to split their mandatory 10 hours off-duty time unless they spend at least eight consecutive hours in the sleeper berth and take another two consecutive hours or more of off-duty time during the work day. And that two-hour break, which doesn’t have to be in the sleeper, does not stop the clock on a driver’s 14-hour “window” for driving.

Another major change was to carve out additional flexibility for short-haul operations that use equipment not requiring a commercial driver’s license. The original short-haul exception, which allows a 16-hour day once a week for certain operations conducted within a radius of 100 air miles of the reporting location, remains in place. The new rules include an additional short-haul exception that provide for a second 16-hour work day each week for drivers who:

· Work within a radius of 150 air miles of their reporting location;
· Return to their reporting location each day; and
· Operate equipment not requiring a CDL. Generally speaking, that means equipment rated at less than 26,001 pounds. The major exception is placarded hazardous materials loads, which require CDLs.

In addition to a second 16-hour day each week, these drivers do not have to keep logbooks. Payroll time sheets may be used instead, although they are subject to the same document retention requirements as logbooks.

The third change, which is relatively minor, allows a driver to use the 34-hour restart of their 60-/70-cumulative-hour periods even if he already has exceeded those limits. The current regulations require drivers exceeding cumulative-hour limits before using a restart to remain off duty until the end of that 7-/8-day period.

Except for those three changes, the new regulations maintain the key elements of the rules that were adopted in April 2003 and took effect in January 2004:
· No more than 11 hours of driving before mandatory rest;
· No driving after 14 hours have elapsed from the beginning of the work day;
· At least 10 consecutive hours off duty, except for the limited sleeper exception;
· No driving after 60 hours on duty in a seven-day period or 70 hours on duty in an eight-day period;
· A restart of those cumulative limits following 34 consecutive hours off duty;
· Exemption for passenger-carrying motor carriers, which remain subject to the rules in place before Jan. 4, 2004.

Although the rules take effect Oct. 1, FMCSA has established a transitional period for compliance and enforcement through Dec. 31. The transition will give carriers and state law enforcement agencies time to modify their educational materials and train personnel on the changes. FMCSA is encouraging states to use the transitional period for education of drivers, but the agency says it will monitor carriers for egregious violations of the new hours-of-service rules – those that show a clear disregard for safety by the carrier or driver – and pursue enforcement action when necessary.

Electronic onboard recorders – another issue raised by the appeals court – were not addressed in the final hours-of-service rules, but Sandberg announced that FMCSA would issue a notice of proposed rulemaking on the issue early next year.

But it isn’t at all clear what FMCSA will propose on recorders. For example, the agency could just update the standards for voluntary automatic onboard recorders that were adopted in 1988, when state-of-the-art technologies bore little resemblance to those in use today. Or FMCSA could adopt incentives – such as more flexible rules, for example – for motor carriers to adopt recorders voluntarily. But mandatory recorders remain a possibility.

Losing sleep over sleepers?
The most costly change for the trucking industry, according to FMCSA’s analysis, is the new restrictions on split rest. Under the rules currently in place, any two sleeper berth periods of at least two hours stopped the 14-hour clock if they totaled at least 10 hours.

Under the new rules, time spent in a sleeper berth doesn’t stop the clock unless it is at least eight consecutive hours in duration and is accompanied by a break of at least two hours during the work day. That break can be berth time, off-duty time or both, but it must be an unbroken period. And although the break is required to validate the eight hours in the berth, it doesn’t stop the 14-hour clock.

The American Trucking Associations welcomed the new rules in general but is concerned over how the sleeper berth provision will be applied. “FMCSA’s decision to keep most of the rules intact confirmed the industry’s research that the current hours rules have been effective in improving highway safety, providing for drivers’ health and ensuring efficient transport of goods,” said ATA President Bill Graves. “However, we need to closely examine the impact of the new ‘sleeper berth’ rule on trucking companies and their drivers, particularly team drivers that are so critical to our just-in-time economy.”

FMCSA estimates the cost to the long-haul segment of the industry due to the sleeper berth provisions at $30 million a year, not counting $20 million in purported public benefits. David Osiecki, ATA’s vice president for safety, security and operations, believes the true cost will far exceed FMCSA’s estimate. “In my opinion, if we start collecting the data when the rule takes effect, it will be a lot more than $30 million,” Osiecki said in comments at the GATS Fleet Forum in Dallas. He believes that some very large carriers might see millions of dollars in added costs by themselves. ATA had anticipated some major restrictions on sleeper berth usage, but the group had hoped that FMCSA would exempt team operations from those changes.

The owner-operator community is concerned about the sleeper berth changes as well. In what appears to be the first petition for reconsideration filed on the new rules, the Owner-Operator Independent Drivers Association on Aug. 29 asked FMCSA to reverse certain changes to the sleeper berth rules.

First, OOIDA is asking the agency to allow the two-hour break to stop the clock on the 14-hour day. Second, the group is asking that team operations be allowed to split rest as they can today – in increments of at least two hours. The requirement for eight consecutive hours off in the sleeper berth is impractical for most team operations, says OOIDA President Jim Johnston.

Relief for many operations
Considering just the sleeper berth changes, the new hours-of-service regulations would fail a cost-benefit analysis because the costs to the long-haul segment of the trucking industry exceed the benefits by $10 million. But the regulations as a whole net out at $270 million, FMCSA says, due to the flexibility granted short-haul operations that use equipment not requiring CDLs. In addition to the increased productivity from a second 16-hour shift each week, drivers that qualify for the exception don’t have to maintain logs.

In announcing the rules, FMCSA Administrator Annette Sandberg said that a loosening of the restrictions were justified because of the large cost of compliance and because those operators proved not to be a problem. Although short-haul drivers operating smaller equipment represented about half of all commercial truck registrations, they are involved in only 10 percent of truck crashes and only 7 percent of fatal truck crashes, she said.

Litigation likely
FMCSA has satisfied the demands of the appeals court to reissue the regulations, so litigation could, in theory, be over. Few expect that to be the case, however.

Public Citizen, the lead group challenging the hours-of-service regulations in court, called the new rule “disappointing” and “virtually unchanged” from the rule set aside by the appeals court. The group was particularly critical of the decision to keep the increased driving time and the 34-hour restart, which allows for more on-duty time in a week.

“While we support the portion of the rule that no longer allows drivers to split the time they spend in sleeper berths, the overall increased driving and working time is not supported by the vast body of scientific literature that exists about fatigue and driver safety,” Public Citizen President Joan Claybrook said. “Nor does this proposal help drivers get on a 24-hour circadian schedule. We sincerely hope that in the coming weeks the agency will reconsider this issue and redraft the rule.”

Claybrook’s statement essentially confirms that Public Citizen will file a petition for reconsideration of the new rules, which would be the first step toward an eventual challenge in the U.S. Court of Appeals for the District of Columbia.

For a copy of the final rules, interpretations and other information from FMCSA, visit this site. For copies of studies and comments regarding the hours-of-service regulations, visit this site and search Docket 19608.

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