Federal Update
Swell of opposition rising against revised HOS

By Jami Jones
senior editor

In spite of petitions for reconsideration, the revised hours of service went into effect Oct. 1. With that implementation, truckers now have to navigate changes to the sleeper-berth provision to meet the 10-hour off-duty requirement.

  Federal Motor Carrier Safety Administrator Annette Sandberg announced the revised hours-of-service regulations Aug. 19. In the revised rules, off-duty time may be split four different ways:

  • 10 consecutive hours of sleeper-berth time;
  • 10 consecutive hours of off-duty time;
  • A combination of 10 consecutive hours of sleeper-berth and off-duty time; or
  • 10 hours of off-duty time by combining two separate periods of sleeper-berth or off-duty time that total at least 10 hours.

As of Oct. 1, if truckers choose the fourth option, one period must be at least eight consecutive hours in the sleeper berth. This means that the revised rule eliminated a trucker's ability to break the sleeper-berth time into shorter periods - say five in and five out.

Many contend that mandating a full eight hours in the sleeper will actually increase fatigue and complicate many cargo-sensitive freight operations.

For example, teams hauling munitions will face challenges for simple tasks such as stopping to go to the restroom. A driver may not be able to stop and go inside a truck stop or rest area simply because the other driver is confined to the sleeper for a full eight hours and cannot fulfill the mandate of watching the load from the jump seat.

Also, in the revised rule now in effect, the second period must be at least two hours, but less than 10, in the sleeper berth, off-duty time or both. The second period may be taken either in or out of the sleeper berth.

The trick here is the two-hour portion of the split does not stop the 14-hour on-duty clock.

These changes to the hours-of-service regulations have generated petitions from several major organizations asking that the regs be reconsidered and further revised.

And, the American Trucking Association was scrambling at the last minute, asking Congress for a delay in the implementation of the rules, but as of press time that hadn't happened.

The opposition
OOIDA filed the first petition for reconsideration Aug. 29, asking the government to reconsider the recently revised HOS regulations.

"We're filing for two common sense changes to the revised hours-of-service proposal," OOIDA President and CEO Jim Johnston said at the time of the filing.

The revised rules are set up in a way that if a trucker chooses to split up the required 10 hours of off-duty time, one of the two periods must be at least eight hours. The eight-hour rest off-duty period stops the 14-hour clock. The other two hours of off-duty time can be taken at another time, either in the sleeper or out, to fulfill the 10-hour off-duty requirement, but does not stop the 14-hour clock.

FMCSA officials have stressed the importance of the two-hour portion of the split sleeper-berth provision in its rulemaking.

"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 or her working time," Johnston said. "We think its 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 clock.

"We think it's practical and makes plain common sense to do it that way," Johnston said.

The other change OOIDA is seeking involves split sleeper-berth provisions for team drivers.

Under the revised 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 the DOT 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 rules, 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 states. "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."

OOIDA's petition was followed up by a petition filed by several groups, which included Public Citizen. That petition blasts FMCSA and the revised rules all together.

That petition, filed Sept. 23, calls into question the seven and eight-day workweeks, continuing to allow 11 hours of driving time each day, and the 34-hour restart, among a few other objections.

The groups have several arguments as to why the rules should be reconsidered. Among those arguments are:

  • That FMCSA chose economic benefits over driver health in determining the rule;
  • That FMCSA's approach to its evaluation of the relevant data and research amounts to a misuse of the scientific evidence in the administrative record;
  • It is evident that the only studies the agency finds to be accurate and credible are those that reinforce the agency's previous and pre-existing view; and
  • That FMCSA "cherry-picked" the relevant research in order to find support for its rule.

The Teamsters, who cosigned the petition by Public Citizen, submitted its own second petition. The Teamsters' petition echoes the sentiment of OOIDA's petition. The Teamsters do not like the eight-and-two requirement on the split sleeper-berth provision at all.

The Teamsters' petition cites studies of team-driver habits under the current rule and uses strong language to state that FMCSA is essentially forcing teams to drive longer, possibly more fatigued shifts.

And on the coattails of challenges by OOIDA, Teamsters and others, the ATA asked Congress for a delay, according to a press release issued late Sept. 29.

  OOIDA's Johnston speculated that, "they finally heard from their members."

He also pointed out that immediately after Sandberg announced the revisions, ATA thought the revised rule was "the greatest thing since sliced bread."

Bill Graves, president of ATA, was widely quoted praising the revisions. In fact, as OOIDA and others expressed displeasure within days of the announcement, Graves praised the new rule, saying it "confirms ATA's research that the current hours-of-service regulations have been measurably effective in improving safety on our nation's highways, providing for the health of truck drivers and assuring the efficient transport of our nation's goods."

Johnston found Graves' support of the revised HOS so disturbing that he wrote a letter to a thousand carriers across the country about the issue. As far as Johnston's concerned, "we're all in this together."