Will Congress or the DOT enact stricter safety regulations for drivers of commercial motor vehicles?
The recent accident on the New Jersey Turnpike that severely injured actor and comedian Tracy Morgan has focused attention – again - on issues of safety in the operations of commercial motor vehicles. The driver in the accident which injured Morgan, killed comedian James McNair, and injured several others purportedly had not slept in 24 hours. There are a number of regulations in place to help reduce driver fatigue which, in the aftermath of this accident, we expect federal regulators and Members of Congress to review in order to determine if they are working. Federal Hours of Services regulations establish daily and weekly limits on how much time can be spent behind the wheel. To combat fatigued driving, drivers of property-carrying commercial motor vehicles (which was the type of vehicle involved in the Turnpike crash) face limits both on how much time they can spending behind the wheel both on a daily basis as well as cumulatively, during a 7 or 8 day period:
I. Only 14 consecutive hours on duty with no more than 11 of those hours spent behind the wheel. Once a driver begins a duty period, the clock starts ticking as to how much of that time on duty can also be spent behind the wheel of a property-carrying commercial motor vehicle. The driver can only spend 11 hours of any 14 hour period behind the wheel, with a half hour break after 8 hours. Once 14 consecutive hours on duty passes, the driver may not get behind the wheel, even if it is for the first time. The driver can only start a new 14 hour shift after at least 10 consecutive hours off duty. 49 CFR § 395.3(a).
II. Cumulative limits of 60 or 70 hours, depending on how frequently you drive. In addition to the daily limits, federal regulations also limit the total hours drivers of property-carrying commercial motor vehicles may drive over the course of any 7 or 8 day period. While described as limits based on a “set” work week, the FMCSA intends them instead to be based on a flexible period, i.e. the cumulative time spent on duty over the past 7 or 8 days, in order to better account for drivers who may not work on a daily basis.
- Those who are “on duty” - either behind the vehicle or performing other activities - but not every day of the week , cannot drive a commercial vehicle after working 60 hours over 7 consecutive days.
- Those who are on duty on a daily basis cannot drive a commercial vehicle after working 70 hours over 8 consecutive days. 49 CFR § 395.3(b).
III. 34 hour restart. Once a driver reaches the cumulative limits described above, he or she must then spend time off duty for at least 34 consecutive hours before returning behind the wheel. This must include 2 nights of rest (1 a.m. to 5 a.m.)and is known as the “34 hour restart”. 49 CFR § 395.3(c)(1-2).
The 34 hour restart effectively ends a trucker’s workweek, requiring them to get a break that could be as long as 48 hours, when factoring in 2 nights or rest. The two night rest requirement was added into the House of Services Regulations by the Federal Motor Carrier Safety Administration (“FMCSA”) in 2013.
So how could someone spend more than 24 hours behind the wheel? As noted, the driver in the in the Turnpike crash is alleged to have spent more than 24 hours behind the wheel, which would be in violation of federal Hours of Service Regulations. . To determine if this is true, we expect attention to focus on the logs kept by the trucker, which are still in paper form. One answer may lie in the fact that truckers are still required to keep a log of their records by paper. The FMCSA has proposed requiring electronic log books for truckers in a Supplemental Notice of Public Rulemaking, a so-called “black box” for truckers, with a comment period expected to end at the end of this month. Senator Charles Schumer (D-NY) has noted that the rule may not be made final until the beginning of 2017 and has urged the FMCSA to expedite the rulemaking process. Also during the prior rulemaking, the FMCSA had considered – but rejected – lowering the daily driving limit from 11 hours to 10, noting the lack of evidence favor of this. This proposal may come back, especially after the full details of the crash are known. Also in the mix is a proposal by Senator Susan Collins (R-ME) to limit the 34 hour restart by suspending the two nights rest and allow more than one restart in a 7 day period. The amendment was included in Senate version of the Fiscal Year 2015 Transportation, Housing and Urban Development Appropriations bill (S. 2438) by a vote of 21-9 on June 10, 2014.
The Turnpike incident will trigger more debate and possibly provoke a strong response by federal regulators and Congress.