HOS Cliffhanger: U.S. Congress Extends Rules

by Ingrid Phaneuf

WASHINGTON, D.C. – The trucking industry, both north and south of the border, breathed a sigh of relief upon learning U.S. Congress voted Sept. 30 to extend the current HOS rules for a period of one year.

The hours of service rules, which were implemented Jan. 4 of this year, were vacated July 16 by a federal court, after they were challenged by a lobby group calling itself Public Citizen. On July 16, the three judge panel of the U.S. Court of Appeals for the D.C. Circuit vacated the rule “in its entirety” stating that the government “neglected to consider a statutorily mandated factor of the impact of the rule on the health of drivers.”

Other considerations were cited, yet alleged failure of the new HOS rules to address driver health issues appeared to be foremost among the court’s reasons for vacating them.

Fearful an immediate reversal of the rules would create havoc, industry groups, including the Federal Motor Carrier Safety Administration (FMCSA), the American Trucking Associations (ATA) and even the Canadian Trucking Alliance (CTA), immediately applied to the court for a stay of execution of the ruling. Public Citizen also challenged the stay.

But U.S. Congress’ Sept. 30 bill pre empted the court’s ruling on the stay, stating the new hours of service rules implemented in January will remain in effect until the FMCSA develops a new set of regulations governing hours of service, or Sept. 30, 2005, whichever comes first.

The decision came as a welcome surprise to insiders, in the U.S and Canada.

All agreed with the FMCSA that the immediate reversion to the industry’s former rules would have dire consequences for an industry that has already spent millions of dollars in equipment and hours retraining drivers and owner/operators to comply with the new rules.

“We would prefer staying with the new rules (existing I guess we should call them) as opposed to going back to the old rules,” said CTA CEO David Bradley.

“There has been far too much bloodletting to go back to the old rules.”

Thanks to the congressional decision, the FMCSA now has a year to not only prove it has done its homework with regards to addressing driver health issues, but also to address other criticisms made by the court. These criticisms included the FMCSA’s failure to address the issue of on board recorders in the new hours of service rules.

The FMCSA wasted no time responding to the court’s comments.

In a Sept. 1 Federal Register notice, the agency published its intent to investigate the possibility of proposing a rule regarding the use of on-board recorders to enforce hours of service compliance.

The move came as a surprise to some industry insiders, who didn’t understand what on-board recorders for compliance purposes had to do with the court’s main criticism of the rules failure to address driver health issues.

In fact, the FMCSA had already dropped the idea of mandating the use of on-board recorders in 2000, when the industry objected to the devices because they violated driver privacy and weren’t yet technologically viable. But times have changed, assert other industry insiders, to whom the FMCSA’s move came as no surprise.

“The FMCSA’s proposal does address an issue that was raised by the court,” said Rick Schweitzer, general counsel and government affairs specialist for the National Private Truck Council. Schweitzer said there has long been substantial pressure on the FMCSA to mandate the use of on-board recorders to replace written logbooks. As far back as 1990, the National Transportation Safety Board recommended the agency require “automatic/tamper-proof on-board recording devices.”

And in 1995 several insurance and highway safety advocacy groups petitioned the agency to require on-board recorders in commercial motor vehicles.

Not least of these has been Public Citizen, the group that took FMCSA to court over the new hours of service rules.

“It (the FMCSA’s proposal) does address an issue raised by the court,” agreed Brian Orrbine, head of the Motor Carrier Group’s Road Safety and Motor Vehicle Regulation Directorate for Transport Canada.

“It does require a careful reading of the court’s ruling, but the fact is, the court did raise four other issues in its critique of the rules. The main criticism did concern the agency’s failure to adequately explain how the rules addressed driver health issues, but the court also commented that the agency should seriously evaluate whether on-board recorders are required.”

Bradley wasn’t surprised by the FMCSA’s proposal either.

“With regard to the EOBRs (electronic on board recorders) I am not at all surprised. We have been of the view that the mandatory use of EOBRs is inevitable. DOT has to come back with something I guess if they want to keep the existing rules intact.”

So is the FMCSA just confident of its ability to rewrite the rules so the court will believe it has taken drivers’ health and safety issues into account?

Or is the agency trying to buy some time by placating the group (Public Citizen) that has been such a thorn in its side?

Industry insiders are loath to speculate, at least on the record. But many are willing to comment anonymously.

Some speculate that the FMCSA does in fact have substantial research to back up its claim to have adequately considered driver health and is just trying to address one of the lesser issues while lawyers fashion a better defense. Others think the FMCSA is just trying to engage in some good old-fashioned horse trading with Public Citizen.

Still others think that’s unlikely – and that Public Citizen itself is surprised the courts found fault with driver health considerations, but happy to have at least temporarily obstructed the long-term adoption of the new rules.

As to why the court focused its criticism on the FMCSA’s failure to consider driver health, speculation is also rife.

“I think the court’s ruling indicated the FMCSA failed to adequately explain how they considered driver health when making the new rules,” said Orrbine.

“Ask 20 different lawyers and you’ll get 20 different answers,” was Schweitzer’s wry reply.

For the time being the industry is just happy the new hours of service rules won’t revert back to the old ones overnight. As for whether any changes down south will affect Canada’s upcoming hours of service changes, Orrbine is skeptical.

“We’re keeping an eye on what’s going on down in the States. But it’s unlikely that it will have an influence on what we’re doing. Our drivers are quite used to dealing with changing over to different hours of service rules when they cross the border.”

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