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FMCSA final HOS rule dumps split sleeper

Posted: August 1, 2014

WASHINGTON, — Over a year after a U.S. court ordered a rewrite of hours-of-service rules, transport officials have unveiled the new regime, which includes a major revision to the controversial sleeper-berth provision.

The change — which now requires drivers to take eight consecutive hours off as part of their 10-hour, off-duty time — has not received much applause from carriers. “We are not in favour of this outcome. Not at all,” says Gord Loney, safety and compliance manager for Shadow Lines, a 200-truck fleet in Langley B.C. “We were expecting better.”

In response to the US Court of Appeals’ demand last summer that the new regulation must consider “the physical health of the operators,” the Federal Motor Carrier Safety Administration kept the nucleus of the rule intact. The 2003 regulation prohibited truckers from driving more than 11 hours in a row, work longer than 14 hours in a shift, and driving more than 60 hours in seven days, or 70 hours in eight days. In addition, the rule required truckers to rest for at least ten hours between shifts and provides a 34-hour period to recover from cumulative fatigue.

However, the FMCSA also included a provision that allowed solo or team drivers to obtain the necessary 10 off-duty hours by splitting their sleeper berth in two periods of their own choosing, as long as one was a minimum of two hours long.

That is no longer the case under the new rule published today, which requires truckers who use sleeper-berths to rest for eight hours in a row, and take another two consecutive hours off-duty before resetting their daily driving schedule. The additional two hours may be taken in or out of the sleeper berth.

“Today’s rule addresses the concerns of driver fatigue by requiring consecutive 8-hour sleeper berth periods. This allows drivers to obtain one primary period of sleep and have a second two-hour, off-duty or sleeper berth period to use at their discretion for breaks, naps, and other personal matters,” said FMCSA Administrator Annette Sandberg today.

“The longer off-duty allows drivers opportunities for more regular schedules, and increases potential for quality sleep,” she continued. “Studies on fatigue indicate the amount of quality sleep a person receives has a strong influence on alertness.”

According to Sandberg, the 2003 rules have already increased a driver’s daily sleep average by more than an hour. She says that only 5.5 percent of truck-related crashes in the US are a result of fatigue.

This newest HOS regulation will go into effect October 1, 2005. There will be a transition period until Dec. 31, 2005. That time will be used to educate and retrain drivers, carriers, and enforcement personnel.

It became clear during the comment period offered by FMCSA earlier this year, that drivers generally liked the 2004 rules — with one exception. Many drivers reported the 14-hr window limited opportunities for breaks. Rest time came at the expense of running time within the window.

This revision allows drivers up to two hours of rest time within the 14-hour working day, effectively extending the workday to 16 hours.

Ironically, Canada — which specifically included the split sleeper provision in its HOS proposal to dovetail with the 2003 US rule — will once again be on its own on this front. Canada’s final rule, which is due at the end of September, will likely not change in response to today’s announcement in the US.

“I have no information at this point that things will change in Canada,” says Graham Cooper, senior vice-president of the Canadian Trucking Alliance. He said that he hopes this country will retain the split provision, adding that Transport Canada has deemed it “scientifically defensible.”

“I don’t see a need to change the Canadian proposal based on what happened today,” he said. “As long as the rules are compatible, they don’t have to be identical. Our guys are already used to slightly stricter rules in the U.S.”

Cooper echoed the concerns expressed by many carriers contacted by TodaysTrucking.com this afternoon. “There’s no question this is going to be tough (on carriers),” he said. “Clearly in terms of productivity, this may be a difficult pill to swallow for certain carriers.”

The change will likely not have much impact to coast-to-coast long-haul operations, says Paul Easson of Berwick, N.S.-based Easson Transport, but short to medium-haul truckers will definitely see delivery times increase. “I think the U.S. made the wrong decision,” he told TodaysTrucking.com. “There’s a lot of drivers that are safely doing a move that’s greater than one driver cycle by using the split sleeper berth and now they won’t be able to do that anymore.”

Shadow Lines’ Loney says Canadian cross-border carriers now have enough to adapt to without having to worry if Canada jumps back on the American sleeper bandwagon. “I would just have to hope Transport Canada sees the light and acts independently of the U.S. for a change.”

While carriers feel the new rule is too radical a change, some groups that generally oppose truckers are insisting the new rule doesn’t go far enough. “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. Nor does this proposal help drivers get on a 24-hour circadian schedule,” the anti-truck lobby group CRASH said in a statement. “We sincerely hope that in the coming weeks the agency will reconsider this issue and redraft the rule.”

That view is contrary to the scientific data cited by Sandberg. In addition, the new rule does in fact put drivers who work to their limits on a strict 24-hour circadian schedule: 14 hours on/10 off.

Sandberg acknowledged that this may not even be the final word on hours-of-service rules in the U.S. The new rule may yet again be challenged in court by advocacy groups — or perhaps even by disgruntled carriers.

“This entire rule since 2003 has been characterized by legal action,” says Cooper. “It remains to be seen whether anybody will start legal action at this point.”

Meanwhile, FMCSA chose not to incorporate electronic on-board recorders — AKA ‘black boxes’ — into the new rule.

When the Appeals Court threw out the 2003 rules based on “drivers’ health,” it also commented on what it believed were problematic aspects with the new rules — including the fact the FMCSA failed to consider EOBRs.

Late last year FMCSA addressed the court’s concerns on this matter in an advance notice of proposed rulemaking. “While EOBRs are not included in this rulemaking we’re continuing to review comments,” Sandberg said today. “The importance of EOBR issues warrants a specific and separate rulemaking that we are now developing. We anticipate a published notice of proposed rulemaking in early 2006.”

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