FMCSA Asks Court to Preserve New Hours Rules While It Makes Revisions
Going back to the old rules would be a disaster, according to FMCSA, the trucking industry and the enforcement and shipping communities.
Oliver B.Patton
Washington Editor
The Federal Motor Carrier Safety Administration wants to change the new hours of service rules, rather than challenge a court's finding that the rules do not measure up to legal standards.
The agency asked the court to keep the new rule in effect while it figures out how to make the fixes - a significant issue since there is the possibility that the old rules would go back into effect unless the court decrees otherwise.
Going back to the old rules would be a disaster, according to the safety agency, the trucking industry and the enforcement and shipping communities. They said it would require industry-wide retraining of drivers, police and other personnel, would cost hundreds of millions of dollars and would reinstall a regime in which drivers get less rest.
But the group that sued the agency in the first place still wants the new rule thrown out. The safety advocacy group Public Citizen intends to oppose the agency's plea for a stay, said attorney Bonnie Robin-Vergeer. She declined to discuss the issues set forth by the agency and its supporters.
This situation arose last summer when the U.S. Court of Appeals for the District of Columbia agreed with a coalition of safety advocates that the agency did not consider driver health when it wrote the new rule, as is required by law. The coalition included Public Citizen, Citizens for Responsible and Safe Highways (CRASH), and Parents Against Tired Truckers.
The court issued a scathing rejection of FMCSA's thinking and rulemaking processes. A three-judge panel bounced the rule on the driver health issue, but found fault with other aspects of the rule as well. Specifically, the panel said the agency did not justify its decision to increase driving time from 10 to 11 hours. Neither did it justify the use of split-time in sleeper berths, the 34-hour restart or its decision to postpone electronic onboard recorders to track driver hours.
In response, the agency told the court it needs at least six months to figure out how long it will take to resolve the problem.
Even as it was asking the court for more time, the agency launched an effort to address the onboard recorder issue. It is soliciting comments on the use of recorders to track driver hours, as a preliminary to possibly writing a rule requiring the recorders (See related story). The agency also has hired contractors to study the impact of the new rule on driver health.
The immediate concern for trucking and safety enforcement interests is that the court not require the agency to go back to the old rule.
If it goes into effect, the court's rejection of the rule would force the agency to set the rule aside. This would produce "a potentially uncertain and problematic patchwork of enforcement obligations, resulting in significant confusion and substantially hamper enforcement of the hours of service standards," the agency said in its Aug. 30 pleading.
American Trucking Assns., filing in support of the agency, put it more bluntly: "The instantaneous revival of the former HOS rules would cause chaos and would diminish highway safety."
A slow transition to the old rules would not be much better, ATA said. It would impose hundreds of millions of dollars in costs on the industry, shippers and the states - and these costs would be incurred again when the revision of the new rules comes out.
"Moreover, the resurrection of the former HOS rules would install a regulatory regime that is demonstrably less safe than the current HOS regulations," the association added.
ATA said it has data indicating that the new rule may be more effective than the old. A survey of 118 ATA members found that the rate of DOT-recordable accidents was 4.2% lower in the first six months of 2004 under the new rule, compared to the first six months of 2003 under the old rule. Likewise, the driver out-of-service rate fell 4.9%.
Six months' experience is not enough to prove that the new rules are working, but these statistics indicate that safety is not deteriorating and may be improving, said Dave Osiecki, vice president of safety, security and operations for ATA, in an affidavit to the court.
The Commercial Vehicle Safety Alliance, which represents state police and other regulatory officials, filed a motion supporting the agency's plea for a stay. The alliance pointed out that going back to the old rules would require new training and enforcement schemes - a difficult and expensive process.
If the old rules are brought back into place, "substantial disruption in the enforcement of hours of service regulations would occur and compromise highway safety," the alliance said.
Shippers also are concerned. The National Industry Transportation League told the court that the new rules have led to major changes in the carrier-shipper relationship. Under the new rules, a driver's breaks cannot be used to extend his on-duty period, which means that the driver's time is more valuable than it used to be.
Carriers have revised their rates, charging more if a driver is kept waiting at the dock, and shippers have responded - at considerable cost - by adjusting their operations to minimize idle time, the association said.
"If motor carriers are forced to comply with the old HOS rules immediately, shippers, who spent many months adjusting their operations for the revised HOS rules, will be faced with high costs due to inefficient operations while they reverse-transition those operations to better match the old HOS regulatory regime."
The situation was still in flux as HDT went to press. Public Citizen went on record opposing a stay in mid-September, and the FMCSA had a week to answer. The court's decision could come any time after that response is submitted.
Washington Report continued...
