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An ‘October Surprise’ – FMCSA Cancels Its Flexible Sleeper Berth Pilot Program

In American political jargon, an “October surprise” is a news event created or timed in an attempt to influence the outcome of an election. While FMCSA’s late October announcement that it canceled its “flexible sleeper berth pilot program” does not fit neatly into this politically-oriented definition, it was indeed a surprise to many who learned about it on October 28, 2018 at the American Trucking Associations (ATA) 2018 Management Conference & Exhibition. And, it may indeed have some political undertones.


Why was the Flexible Sleeper Berth Pilot Program Canceled?

During a regulatory update at the ATA conference, FMCSA’s Chief Counsel, Jim Mullen, announced the Agency’s recent decision to cancel its flexible sleeper berth pilot program—an effort that was first discussed by FMCSA in 2014 (under the Obama Administration), and formally initiated by FMCSA in a June 2017 Federal Register Notice. The pilot program was intended to “examine whether regulatory flexibility related to the sleeper berth provision could be used to improve driver rest and alertness,” and FMCSA sought to include at least 240 drivers in the study. In his short remarks in late October explaining the decision to cancel the study, Chief Counsel Mullen stated the Agency has already collected a fair amount of data and research on this topic.


What’s the significance of this surprise announcement? If we dig into the original timeline of the now-canceled flexible sleeper pilot program, and consider it in context of FMCSA’s recently initiated hours of service (HOS) rulemaking process aimed at considering additional flexibility in the rules, we might arrive at a reasonable answer to the question.


The data collection phase of the sleeper berth pilot program was scheduled for the first half of 2019.  Data analysis phase was scheduled for Summer of 2019, and a final report on the pilot program was scheduled for Fall of 2019. FMCSA’s recently initiated HOS rulemaking process–clearly a high-priority initiative for the Agency’s new leadership–is on an expedited timeline of about one year (i.e., end of 2019). And, importantly, one of the four HOS provisions FMCSA has teed up for potential change in its HOS rulemaking is the ‘split sleeper berth’ rule.


Pilot Program vs. Rulemaking Timeline

Did the pilot program timeline complicate the rulemaking timeline? Another fair question is whether FMCSA has sufficient research, data and public commentary, without pilot program data, to make a determination on the split sleeper berth rule? Or, has FMCSA decided not to propose changes to the split sleeper berth rule, and chose to save taxpayer dollars for more important research? Only time will tell…and my guess is we won’t be waiting too long to find out.

By Dave Osiecki, President of Scopelitis Transportation Consulting LLC

For everything related to the ELD mandate, visit Trimble’s ELD Resource Center for additional information. Have additional questions? If so, call or email me at or 202 728 2851. 

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