but legally rested
A Unfortunately, FMCSA issued a memorandum of enforcement policy on Nov. 25 that concluded:
“Therefore, if a driver has only used one sleeper berth period, it may not be combined with the 10 or more consecutive hour off-duty period, and the sleeper berth time would count toward calculation of the 14-hour rule.”
The ruling, a small piece of a memo that addressed several lingering issues, was hardly a surprise. It mirrors an interpretation the agency had already given on its website (www.fmcsa.dot.gov). And the Nov. 25 document acknowledged a petition filed in November by the American Trucking Associations seeking precisely the flexibility you mentioned as necessary for drivers to preserve productivity and maximize opportunities for rest. Let’s hope that the agency upon reflection on ATA’s petition changes its mind. In fact, the best-case scenario would have this issue resolved by the time you read this.
Under the interpretation in place as of this writing, however, FMCSA apparently believes that it’s a good idea to force a driver who has started out taking one sleeper berth period to spend the balance of his 10 hours rest in a second sleeper berth shift — even if he is able to log off duty at the end of his work day for 10 consecutive hours and rest in a motel or even his own bed. The result is ridiculous. Under FMCSA’s interpretation, a driver who arrives home after one sleeper berth period technically must sleep in his truck and log sleeper berth time to be legal.
FMCSA’s thinking, according to its website, is that allowing drivers to stop the clock on their 14-hour limits with a single sleeper berth period will encourage them to falsely log non-driving time as sleeper berth time. That’s an understandable concern, but the unintended consequences outweigh those concerns. Lost in this analysis is any agency appreciation for fatigue, driver flexibility or road congestion.
First, if fatigue is the issue as the agency claims, this position has no rationale. The driver who can get home or rest in a motel for 10 consecutive hours before he is “legally fatigued” should not be required to take a second sleeper berth time in lieu of 10 consecutive hours off duty. If one looks back 24 hours to measure the time available for restorative sleep, mandating a second sleeper berth time rather than allowing 10 consecutive hours off duty serves no purpose. In fact, it provides a major disincentive for a driver to take a single two-hour nap if needed in the sleeper because he will either lose driving time that day or be committed to a second eight-hour sleeper berth shift.
Second, FMCSA’s restrictive interpretation regarding sleeper berth usage makes hash out of what little flexibility the industry thought the new rules permitted. No driver with a 500-mile round-trip run and more than three hours of waiting time can “get miles and get home” under this interpretation. A driver with a sleeper unit loses any flexibility to plan his schedule, avoid congestion and get home for the weekend without committing to two sleeper berth periods totaling 10 hours, even if he is going home. A driver who does not want to fight rush hour congestion or who feels sleepy is discouraged from taking a couple of hours rest in the sleeper berth because he won’t be able to drive home and take normal rest.
Under FMCSA’s interpretation, a long-haul driver could return home after two or more sleeper berth shifts and take 10 consecutive hours off without sleeping in his truck. But the short-haul driver who took a single sleeper berth split would be denied the same privilege. Why penalize the short-haul driver? The same “opportunity for restorative sleep” applies to both. This interpretation deprives short-haul operators of the flexibility gained by sleeper berth time while wrecking productivity.
If you care about driver welfare and retention as well as productivity, you probably will try to arrange a driver’s schedule to obtain quality rest as often as possible within the constraints of your freight demand. But unless FMCSA changes its mind, your well intentioned attempts to maximize driver rest may result in a violation of the very regulation that supposedly is designed to reduce fatigue.