FMCSA reissues hours of service regulations

Essentially demanding an industry critique of its hours of service regulations that became effective in January 2004 and that were thrown out by an appeals court ruling in June 2004, the Federal Motor Carrier Safety Administration issued the rules again in a notice of proposed rulemaking dated January 24, 2005. The agency has given interested parties until March 10, 2005, to provide comments for or against the proposed rule and has asked for detailed evidence to support those comments.

FMCSA notes that motor carriers are operating under the hours of service rules imposed in January 2004, but that those rules extend, by congressional directive, only until new rules are implemented or until September 30, 2005, whichever date comes first.

In urging its members to provide comments on the proposed rule, at least one industry group, the Truckload Carriers Association, noted that the proposed rules contain no changes from the hours of service rules imposed in 2004. Other groups have said that they think sufficient evidence is available for FMCSA to satisfy the mandate of last year's court order.

FMCSA says that the fundamental purpose of hours of service regulations is to ensure that driving requirements along with other parts of the truck driver job do not impair an individual's ability to operate a vehicle safely. It asks for public comments to determine if the rules currently in effect achieve that goal.

In demanding that the current rules be rewritten, the DC appeals court held that the hours of service regulations are “arbitrary and capricious,” because FMCSA did not consider the impact of the rules on driver health. In response, the agency says that its rules presume that driver safety and health will be improved by establishing a 24-hour work cycle and by providing drivers with sufficient off-duty time to obtain eight hours of sleep while allowing carriers the flexibility to meet schedules proposed by their customers.

In its notice, FMCSA requests studies on the effects of the hours of service regulations on driver health, safety, and industry economics. The agency wants to know if the regulations provide drivers with adequate time for rest, relaxation, and attendance to personal matters and family activities. The notice admits that truck drivers spend significant time waiting to load and unload and suggests that waiting time can impact driving schedules and skew sleep cycles. It cites studies on the effects of sleep deprivation on health, but says the implications are ambiguous for the purposes of hours of service regulations. However, FMCSA requests comments comparing effects on sleep cycles under the current rules to driver sleep under the rules replaced in 2004. In particular, the agency asks for data on the effects of naps and short rest periods and asks how long naps should be.

FMCSA says that drivers are exposed to diesel exhaust, noise, and whole body vibration. Noting that the effects of these factors are largely unknown, the agency asks for information on the impact of exhaust, noise, and vibration. The notice places considerable emphasis on driver fatigue, while saying that regulations can prohibit [commercial] driving during off-duty time, but cannot prevent drivers from engaging in personal activity rather than sleeping.

The proposal quotes the court ruling invalidating the current rules, saying that FMCSA lacked evidence to support adding one hour to the permissible driving day. When the original hours of service regulations were published in 1937, the rule allowed nine hours of driving. The agency says that organized labor objected to that rule and that driving time was reduced to eight hours. The 2004 rules were an attempt to put drivers on a 24-hour schedule and to provide enough off-duty time for eight hours of sleep, FMCSA says. The agency asks for data on the length of a typical workday under the old rules compared to the current rules.

In justifying the 34-hour restart at the end of any seven or eight days of driving, the new proposal says that studies have shown that drivers need at least two full sleep periods to recover full alertness. The agency says that 24 hours plus an additional 10 hours is the minimum required to achieve adequate sleep. The proposal asks for information on the effects of the 34-hour restart on driver rest and wants to know how many drivers are using the restart option.

The agency says it is willing to consider options governing use of the sleeper berth for driver rest ranging from not counting sleeper time as off-duty, to requiring one continuous sleeper break or allowing two sleeper periods to count as a single break, or limiting sleeper rest to apply to driving teams only. FMCSA also asks if time in a sleeper actually results in adequate sleep. It also wants to known how much time and money are saved by using a sleeper instead of commuting to some other place to rest such as a hotel or home.

In preparing for a new Regulatory Impact Analysis that must accompany any final regulation, the agency asks what changes shippers and carriers have made as a result of the 14-hour driving rule and what those changes have cost. It also asks how much has been spent on training personnel to comply with the current rule.

The entire notice of proposed rulemaking can be found in the Federal Register, Volume 70, Number 14, Monday, January 24, 2005, pages 3339 to 3354.

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