HOS rulemaking underway

HOS rulemaking underway

FMCSA rethinks hours of service HOS rule

The Federal Motor Carrier Safety Administration (FMCSA) will publish a notice of proposed rulemaking (NPRM) in the January 24th Federal Register to address changing hours-of-service (HOS) regulations for drivers of commercial vehicles that do not transport passengers.

The NPRM came in response to a July 2004 decision by the U.S. Court of Appeals for the District of Columbia Circuit that vacated the HOS rules for truckers, issued in 2003, which currently remain in effect.

“This NPRM asks the public to comment on what changes to that rule, if any, are necessary to respond to the concerns raised by the court, and to provide data or studies that would support changes to, or continued use of, the 2003 rule,” stated the agency.

FMCSA said it is “reconsidering the 2003 regulations to determine what changes may be necessary to be consistent with the holdings and dicta [judge’s comments] of the Public Citizen [Public Citizen et all v. FMCSA, 374 F.3d 120] decision.”

Specifically, the NPRM addresses what the Court ruled as the agency’s failure to consider the impact the revised HOS rules on the health of drivers, as required under its statute. The agency is requesting comments on the relationships between driver health and safety. Additionally, FMCSA is seeking data that analyzes the health and safety effects that could result from the revised rule.

According to Dave Osiecki, vp of safety for the American Trucking Assns. (ATA), the anecdotal evidence among carriers, as well as the promising initial 2004 truck fatality data may strengthen the agency’s position that the rules have not been detrimental to safety, as claimed by Public Citizen. However, with the current rules in effect for just over a year, there is not enough data to make a case that the revised HOS resulted in safety improvements.

“It’s extremely difficult to near-impossible to draw a conclusion between the naturally-improving safety trends the industry is moving toward and the regulations,” Osiecki told Fleet Owner. “There are too may variables, but I think you can conclude that the rules haven’t made anything worse.”

FMCSA is also requesting comments to address three other concerns noted by the Court: increasing driving time from 10 to 11 hours, allowing drivers to split their 10-hour off-duty period, and the agency’s failure to evaluate the costs and benefits of requiring electronic on-board recording devices (EOBRs).

The agency said it is considering changes to the sleeper-berth provisions, including the following:

  • “not permitting any split sleeper berth use to count toward the minimum 10 hours off duty”
  • “allowing one continuous sleeper berth period of less than 10 hours…to substitute for the otherwise minimum 10 hours”
  • “eliminating split sleeper berth periods or establishing a minimum time for one of the two “splits””
  • “revising the manner in which sleeper berth periods affect the calculation of the 14-consecutive hour period”
  • “restricting variations on permissible sleeper berth use to team drivers only”

    In looking at the 34-hour restart provision, FMCSA is trying to determine whether 34 hours is an appropriate length of time for a restart; it should be eliminated altogether; or it should be implemented differently.

    In terms of electronic on-board recorders, the agency referred to the advance notice for proposed rulemaking it published in the Federal Register on Sept. 1, 2004, requesting information on EOBRs.

    According to FMCSA, it issued the notice “concurrently with its ongoing research and analysis of the issues raised by the court.” FMCSA goes on to say it is “putting forward the 2003 rule as the ‘proposal’ on which public comments are sought.”

    FMCSA noted that the current HOS rules may remain in effect no later than Sept. 30, 2005 under the terms of the Surface Transportation Act of 2004.

    The response period for the NPRM is relatively short, with all comments due by Mar. 10. Comments, which should be identified by “DOT DMS Docket Number FMCSA-2004-19608,” may be submitted by any of the following methods but FMCSA prefers the web site be used:

  • Web site: http://dms.dot.gov
  • Fax: 1-202-493-2251
  • Mail: Docket Management Facility; U.S. DOT, 400 Seventh St. SW, Nassif Bldg., Rm PL-401, Washington DC 20590-0001
  • Hand Delivery: Rm PL-401 on plaza level of Nassif Bldg, between 9 am and 5 pm Mon.-Fri.
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