FMCSA Faces Significant Hurdles In HOS Fight
Critical issues are increased driving time, use of split time in sleeper berths, the 34-hour restart and the decision to not require onboard recorders to track driver hours.
Oliver B. Patton
Washington Editor
The Federal Motor Carrier Safety Administration is going to have to answer some tough questions in its response to an appeals court's rejection of the hours of service rules.
In July the U.S. Court of Appeals for the District of Columbia said the rule failed to meet legal standards because the agency did not mention driver health in its justification. That was just the immediate reason for the rejection, however. The three-judge panel also said that several other aspects of the rule are potential grounds for dismissal: the increase in driving time from 10 to 11 hours, the use of split-time in sleeper berths, the 34-hour restart and the decision to not require electronic onboard recorders to track driver hours.
The suit was brought by a coalition of safety advocates, including Citizens for Responsible and Safe Highways (CRASH), Public Citizen and Parents Against Tired Truckers.
As HDT went to press the agency was still working out its response - and holding its cards close. It has until early this month to come back with a plan. Its options include asking the court for a rehearing and offer justification for the choices it made, appealing the decision to the Supreme Court, or reopen the rulemaking and address the issues raised by the court.
Resolution will not come quickly, which leaves the trucking industry worried about what happens as the process goes forward. There is concern that, because the court rejected the rule, the agency may have to put the old rule back into effect while it works on the solution.
Trucking interests find this a worrisome proposition. "During the process of addressing the defect in the rule, we believe it most appropriate to have current rules in place," said David Osiecki, vice president of safety and operations for American Trucking Assns.
For one thing, the new rule is safer than the old, Osiecki said. For another, thousands of new drivers have joined the workforce since the first of the year, when the new rule took effect. They have no experience with the old rule and would have to be trained - not an advantage to overall safety. Switching back to the old rule also would complicate compliance and enforcement, he said. And, fleets that have purchased and installed hours of service software for the new rule would incur considerable unnecessary expense.
The safety agency's only comment has been a statement from Administrator Annette Sandberg, saying that the new rules remain in effect while the agency considers its options.
The appeals court's rejection was based on a provision of the law that authorizes the Department of Transportation to regulate truck safety. The safety advocates argued - and the court agreed - that FMCSA ignored a provision of that law that says DOT rules must ensure that driving a truck "does not have a deleterious effect on the physical condition of the operators."
FMCSA's response to that contention was that consideration of driver health "permeated the entire rulemaking process." But the author of the court's decision, Judge David B. Sentelle, said this misses the point. The law requires the agency to consider the rule's impact on the driver, not just the impact of driver health on safety, he wrote.
It remains to be seen whether FMCSA can argue this point away in either a rehearing or in an appeal to the Supreme Court. The issue of driver health is just one of four requirements in the law. The other three require the rules to ensure that trucks are maintained, equipped, loaded and operated safely; that the responsibilities imposed on drivers do not impair their ability to drive safely; and that the physical condition of drivers enables them to drive safely. A separate statute altogether - the Motor Carrier Safety Assistance Act of 1999 - states that the highest priority of the agency is safety, without reference to driver health.
Even if it can navigate these legal waters, the agency still must address the other issues raised by the court.
Sentelle said the agency did not justify the increase from 10 hours of driving in the old rule to 11 hours in the new. He gave short shrift to the agency's argument that the increase is justified by the decrease in daily tour-of-duty hours from 15 to 14 hours, and the increase in off-duty time from 8 to 10 hours.
"We have our doubts about whether these two justifications are legally sufficient," he wrote. The agency cited studies that show driver performance degrading after the 8th hour on duty, but cited nothing to support the idea that the decrease in daily tour of duty hours will compensate for these ill effects, he wrote.
Sentelle also challenged the agency's use of its cost-benefit analysis to defend the 11-hour driving rule. "The exponential increase in crash risk that comes with driving greater numbers of hours, presumably caused by time-on-task effects, raises eyebrows about the agency's increase of daily driving time. Yet the agency excluded time-on-task effects from the cost-benefit analysis."
The judges also were perturbed by the agency's justification for keeping the sleeper berth exemption, which permits drivers to split their rest periods.
Sentelle said the safety advocates argued "persuasively" that the exemption is "not rational" in view of the central premise of the rule that drivers need an opportunity for eight hours of uninterrupted sleep each day.
The agency defended the exemption by saying that "use of sleeper berths in long-haul operations is firmly entrenched in the practice, culture and equipment of the trucking industry." To eliminate the exemption "would require more documented evidence of a safety problem than the agency now has."
Sentelle responded: "This is another nonsequitur. Eliminating the sleeper-berth exemption would not prevent drivers from using sleeper berths. It would only prevent them from splitting their rest in them."
"We have grave doubts," Sentelle continued, "about whether the agency's explanation for retaining the sleeper-berth exception would survive arbitrary-and-capricious review."
The 34-hour restart provision, which allows drivers to restart their weekly cycle after taking at least 34 consecutive hours off, is likewise troubling, Sentelle said.
The agency's explanation - that the break provides time for restorative rest and helps maintain a regular schedule - is sound as far as it goes, Sentelle said.
But "it does not even acknowledge, much less justify, that the rule . . . dramatically increases the maximum permissible hours drivers may work each week." The agency's failure to address the issue makes the rationality of this aspect of the rule questionable, Sentelle said.
Also of questionable rationality is the agency's justification for not requiring onboard recorders, he said.
"It is ... facially plausible that (onboard recorders) will have substantial safety benefits, and it was incumbent on the agency at least to attempt to analyze those benefits. We cannot fathom, therefore, why the agency has not even taken the seemingly obvious step of testing existing EOBRs on the road, or why the agency has not attempted to estimate their benefits on imperfect empirical assumptions."
Altogether, these issues add up to heavy burden for the agency. It will have to deal with them in one way or another - either by changing the rule or by providing explanations from the record that will satisfy this court or, perhaps, the Supreme Court.
Washington Report continued...
