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“New” U.S. HOS proposal more of the same

WASHINGTON, D.C. - The Federal Motor Carrier Safety Administration (FMCSA) reproposed its driver hours-of-service rules in January, but made few changes to the regulations a federal court overturned l...


WASHINGTON, D.C. – The Federal Motor Carrier Safety Administration (FMCSA) reproposed its driver hours-of-service rules in January, but made few changes to the regulations a federal court overturned last July.

The new proposal did, however, include several pages referring to studies that indicate the rules would enhance driver health, one of the main contentions on which the rules were successfully challenged.

Public Citizen and other interest groups argued that FMCSA had not considered driver health in its April 2003 revision of HOS regulations, which kicked in January 2004. 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.”

After the court overturned the rules, trucking industry associations north and south of the border immediately argued for a stay of execution of the ruling, arguing an overnight reversal would create havoc in the industry. Public Citizen challenged the stay.

But on Sept. 30 Congress pre-empted the appeal court’s ruling by ordering the rules not to be changed for a period of one year, to allow time for the FMCSA to respond to the court’s ruling.

As for the overturned rules, FMCSA wasn’t obliged to change them in its response.

“The decision does not compel the DOT (Department of Transportation) to re-write the rule or to change anything though I suppose they could,” said Canadian Trucking Alliance (CTA) CEO David Bradley at the time.

“What the decision told DOT is that they were inconsistent. DOT has the option of basically explaining why the rules are written as they are. We’ll have to see. Until then it’s business as usual.”

In accordance with Bradley’s prediction, the FMCSA’s recent proposal, while essentially the same, did call for comment on what changes could be made to respond to the court’s concerns.

And the FMCSA does appear to be trying to address other criticisms made by the court, including the FMCSA’s failure to address the issue of onboard recorders in the new hours of service rules.

On Sept. 1, 2004, the agency published in the Federal Register its intent to investigate the possibility of proposing a rule regarding the use of onboard recorders to enforce hours of service compliance.

(The FMCSA had already previously dropped the idea of mandating the use of onboard recorders in 2000, when the industry objected to the devices because they violated driver privacy and weren’t yet technologically viable.)

The strongest objections to onboard recorders appear to be coming from U.S. carriers and owner/operators, among them OOIDA, the Owner Operator Independent Drivers Association.

OOIDA filed more than 40 pages of comments against the devices, claiming they violate the Fourth Amendment, which protects against illegal searches and seizures, and that they will be no more effective than paper logs.

The American Trucking Associations (ATA) and other U.S. trucking groups have also objected, saying the government lacks enough evidence to prove onboard recorders would improve compliance and safety.

Cost was also a factor raised by opponents, especially for LTL and smaller local fleets.

The National Truck Council estimated installation of the recorders would cost US$1,000 to US$3,000 per truck.

Still there were some who were more accepting of the technology, both in the U.S. and Canada.

South of the border, larger carriers who tentatively supported the boxes included ABF, Yellow and Roadway.

As for Canadian carriers, many of them are already resigned.

“The black box is inevitable,” said Bradley, who believes onboard recorders would “level the playing field,” by forcing all carriers to comply with HOS.

Be that as it may, the devices were not included in the FMSCA’s January proposal.

The FMSCA has also announced its intention to bring in another set of HOS rules by September 2005.

Industry insiders, meanwhile, remain skeptical as to whether the FMCSA will actually be able to come up with a new rule by then.

“It’s going to be at least another 10 years before a new rule is brought in,” said one high-ranking industry official.

In the meantime, Canadian carriers, who as a group spent millions of dollars on training and equipment to comply with the new rules, are hopeful the rules won’t be changed anytime soon.


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