New HOS Rule To Remain In Effect For Time Being
It took an act of Congress, but the new hours of service rule will remain in effect for a year, unless the Federal Motor Carrier Safety Administration issues a revised rule sooner.
The status of the rule was in question due to a lawsuit brought by a coalition of safety advocates, including Public Citizen, Citizens for Responsible and Safe Highways (CRASH), and Parents Against Tired Truckers. The coalition had asked a U.S. appeals court to throw out the new rule, and last July the court agreed to do so on the grounds that FMCSA did not consider driver health when it wrote the new rule, as is required by law.
The safety agency quickly asked the court to let it keep the new rule in place while it made changes. To go back to the old rule would diminish highway safety and create unnecessary expense and disruption, the agency told the court.
The court is still considering this question. But whatever decision it makes has been trumped by Congress, said Washington attorney Ken Siegel, who participated in the drafting of the law.
At the request of the trucking industry and the safety enforcement community, Congress passed a provision that keeps the new rule in place until Sept. 30, 2005, or until the safety agency issues a corrected rule, whichever comes first.
The provision was attached to a bill that extends the current highway program for eight months. President Bush signed the bill at the end of September (See related story).
The FMCSA rulemaking process is slow-paced and deliberate, so it is possible that the agency will need more than a year to address all of the flaws in the new rule that the court pointed out. The agency has indicated that within the next six months it aims to come up with a plan for making the fixes. In fact, the agency already has begun a fact-gathering proceeding that could lead to a requirement that some trucks install onboard recorders to track driver hours. But if the agency is not able to complete the revisions within a year, Congress may be called upon to extend the deadline.
Part of the problem is that the court challenged some of the key components of the new rule. It focused on the driver health issue, but found fault with other aspects of the rule as well. Specifically, it 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 and asked for a stay of the order to throw the rule out. Public Citizen insisted, however, that the old regime be reinstated. It told the court that the new rule is less safe than the old, because it allows one more hour of daily driving and permits more weekly driving through the 34-hour restart mechanism. It said the agency will need three to four years to fix the problems that the court found in the rule - too long for the new rule to be in place.
The safety agency had no public statement following the congressional action, but administrator Annette Sandberg circulated an internal memo noting that the intent of the law "is to avoid widespread disruption within the motor carrier industry and to enhance effective enforcement of the HOS requirements."
She noted that in addition to accelerating the onboard recorder inquiry, the agency has contracted for literature reviews on the effect of the rules on driver health. "This will provide the information necessary for revising the HOS rule."
For industry and enforcement officials who were concerned about switching back to the old rules, the congressional extension came as a great relief.
American Trucking Assns., which along with the Commercial Vehicle Safety Alliance was instrumental in getting the bill through Congress, applauded the move. "This is a common sense legislative fix to a scary scenario that could have caused great damage to the national economy," said President and CEO Bill Graves in a statement.
ATA and CVSA, which represents law enforcement in the U.S. and Canada, said that a return to the old rules would be a disaster. It would require industrywide 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, they said in pleadings to the court.
"We think that this action clears up the confusion and uncertainty that had surrounded the issue," said Todd Spencer, executive vice president of the Owner-Operator Independent Drivers Assn. He said that OOIDA members generally prefer keeping the new rule in place while changes are being made.
Spencer went on to note that owner-operators are not entirely comfortable with the agency's move toward onboard recorders. "We think it's premature to consider any such requirement," he said.
—By Oliver B. Patton, Washington Editor
Washington Report continued...
