THIS ARTICLE outlines interim enforcement policies for certain sections of the new hours-of-service (HOS) regulations taking effect Jan 4, 2004. The American Trucking Associations (ATA) has petitioned the Federal Motor Carrier Safety Administration for rulemaking to amend the sleeper berth portion of the rules. Until FMCSA has the opportunity to address remaining ambiguities in the regulations, the policies outlined below will remain in effect:
Issue 1: Calculating the 14-hour rule following two qualifying sleeper berth periods totaling 10 hours.
Agency policy: The 14-hour rule is calculated by counting the time from the end of the prior qualifying sleeper berth period to the beginning of a subsequent qualifying sleeper berth period.
Discussion: Questions have arisen over whether the new rule and accompanying technical amendment permit a full restart of the 14-hour on-duty period after two qualifying sleeper berth periods. Though that is a possible reading of the new rule, it conflicts with the traditional interpretation of the current 15-hour rule and is likely to cause confusion among motor carriers and the enforcement community.
Issue 2: Combining sleeper berth & off-duty time.
Agency policy: If a driver, or a member of a driving team, has at least two qualifying sleeper berth periods totaling at least 10 hours immediately before taking 10 or more consecutive hours off-duty, the driver may combine the last sleeper berth period with the 10 consecutive hour off-duty period.
Discussion: The current rule states that two qualifying sleeper berth periods will extend the 14-hour period. Questions have arisen as to how to treat a situation in which a driver, or a member of a driving team, appropriately accumulates the 10 hours off-duty using sleeper berth in over-the-road trips, and then goes off-duty for 10 or more consecutive hours. The agency believes if sleeper berths are being used appropriately, drivers should not have to spend time in the sleeper berth upon going off-duty for 10 or more consecutive hours in order to remain in compliance. Therefore the agency will allow the last sleeper berth period to be combined with the off-duty period; however, it is important to prevent drivers who do not regularly use sleeper berths from extending their day by taking a single sleeper berth period. Therefore, if a driver has only used one sleeper berth period, it may not be combined with the 10 or more consecutive hours off-duty period, and the sleeper berth time would count toward calculation of the 14-hour rule.
Issue 3: Use of the 34-hour restart provision.
Agency policy: A driver may restart the 60/70-hour period by taking 34 or more consecutive hours off-duty provided at the beginning of the 34-hour period, the driver has not accumulated more than 60 or 70 on-duty hours in the prior six or seven days.
Discussion: The 34-hour restart provision was designed to give carriers and drivers operational flexibility while providing the driver opportunity for adequate rest. There is no discussion in the regulatory history of the HOS rule indicating a driver may exceed the 60/70-hour rule and then use a 34-hour restart to begin a new 60/70-hour period without regard to the number of on-duty hours in the prior six or seven days. If a driver has exceeded the 60/70-hour rule, the driver may not use the 34-hour restart and must continue to operate under the provisions of section 395.3(b) to calculate hours available under the 60/70-hour rule.
Issue 4: Length of out-of-service (OOS) time required when a driver has violated the 11- or 14-hour rules in a sleeper berth operation.
Agency policy: In order to regain compliance with Part 395, sleeper berth drivers who have violated the 11- or 14-hour rules must be placed OOS for the minimum amount of time needed for the driver to comply with section 395.3. This OOS period will be determined using the number of hours in the driver's prior qualifying sleeper berth period.
Discussion: Questions have arisen concerning whether a sleeper berth driver who has violated the 11- or 14-hour rule must be placed OOS for a period of 10 consecutive hours or only the minimum amount of time necessary to achieve 10 hours off-duty in combination with the prior qualifying sleeper berth period. The length of an OOS period required to bring a driver back into compliance is currently determined by taking the driver's prior qualifying sleeper berth period into consideration. The agency did not intend to change this practice under the new HOS rule, and the agency does not read 395.1(g)(1)(ii) and (iii) as invalidating a prior sleeper berth period.
Issue 5: Length of OOS time required when a driver has exceeded 60/70 hours in seven to eight days.
Agency policy: In order to regain compliance with Part 395, a driver who has exceeded 60/70 hours in seven to eight days must be placed OOS for the minimum amount of time necessary to bring the driver into compliance.
Discussion: Questions have arisen concerning the appropriate amount of time a driver must be placed OOS for exceeding 60/70 hours in seven to eight days before driving again. The length of an OOS period required to bring a driver back into compliance is currently determined based on the number of hours the driver is in excess of the rule. FMCSA did not intend to change this practice under the new regulations. The driver should be placed OOS for the minimum amount of time necessary to bring the driver into compliance. If a driver has exceeded the 60/70-hour rule, the driver may not use the 34-hour restart and must continue to operate under provisions of section 395.3(b) to calculate hours available under the 60/70-hour rule.