WASHINGTON, D.C. – More than a year after a U.S. court vacated the new hours of service rules proposed by the Federal Motor Carrier Safety Association, industry insiders could be looking forward to yet another court battle.

That’s because, with the new rules due out Sept. 30, there has been no move on the part of Congress to adopt them as law, the only way to prevent them from being challenged yet again in court.

That leaves the FMCSA hoping another challenge won’t happen, and gambling that the new rules (largely unchanged when they were published for comment earlier this year) will address enough of the concerns raised by the lawsuit to make further challenges unsuccessful.

It’s a big gamble.

Dave Ocieki of the American Trucking Associations said he’d be surprised if the FMCSA issues another rulemaking exactly like the one that was challenged.

“I’d be surprised if the FMCSA simply tried to better justify the new rule — it’s likely they’ll make a change or two, but nobody really knows at this point,” he said.

“As far as placating the group that challenged the rules go, they’ve said in public forums that they want a 12 hour day with no more than 10 hours of driving in it and they want the split sleeper berth to go away. And they want the 34-hour restart to go away too, in favour of a straight weekly cap on hours. And they also want EOBRs (electronic onboard recorders).”

It will be up to FMCSA to strike a balance between what these opposition groups want and the industry’s best interest, said Ocieki.

“I think what concerns the FMCSA is the potential instability if they have to go back to court. They, as well as we (ATA) would rather have seen the issue dealt with by Congress.”

But the likelihood of that happening is now slim, Ocieki admitted, so the FMCSA will be left trying to address the concerns raised by the court when the new rule was originally vacated.

During the court hearing that led to the overturning of the rules last July, 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.

It was on July 16, 2004 that 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.”

The panel also pointed to the rule’s failure to deal with the issue of mandatory electronic onboard recorders.

The new rules, proposed earlier this year, include several pages referring to studies that indicate the rules would enhance driver health.

And 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 agency also called for comment from industry.

Needless to say, the response of industry since then has been less than enthusiastic, although slightly warmer than in 2000, when FMCSA dropped the idea of mandating the use of onboard recorders altogether because of industry objections. (Industry opposed the devices because they violated driver privacy and weren’t yet technologically viable.)

The strongest objections to the onboard recorders this time around appear to be coming from U.S. carriers and owner/operators.

The Owner Operator Independent Drivers Association has 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 – although the ATA has proposed the FMCSA conduct a pilot project largely in response to a request by software manufacturer Xora Inc. to make an an exemption to design requirements for an automated onboard recording device.

Xora, based in Mountain View, Calif., filed an application June 8 for an exemption from FMCSA’s requirement that EOBRs be synchronized with truck engines. Its technology uses a Nextel Communications cell phone equipped with a global positioning system to monitor drivers’ hours of service.

In a written comment to FMCSA, ATA safety and compliance director Dave Potts suggested that a pilot program would better determine whether the agency’s rule on automated onboard recorders needs to be changed.

“(That would) help to ensure that a performance standard specifying what is an AOBR is consistently applied, that the proposed concepts are adequately examined, and ultimately allow for…adoption of the practices by industry parties.”

FMCSA subsequently agreed to accept comments on this particular aspect of EOBRS through July 8.

But consistency of technology was just one of many concerns raised by industry.

Cost has also been 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 are some who are showing acceptance of the technology, both in the U.S. and Canada.

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

And north of the border, EOBRS are practically being treated as a done deal.

Indeed, many Canadian carriers have already resigned themselves to the idea, particularly in light of recent lobbying, by the Ontario Trucking Association, to bring in mandatory speed limiters on trucks.

Dan Einwechter, president of Challenger Motor Freight, is among those who used to oppose EOBRs.

“I, like many of my Canadian and American counterparts, was continually opposed to EOBRs,” he said. “But after having observed what has happened since deregulation has occurred, and after having recently travelled with OTA on a study mission to Europe, where EOBRs and speed limiters are common, I believe that it’s not a matter of if but when they happen. If that is the case I’d rather we play a role in shaping and crafting what our future should look like, and not have some goody two shoes bureaucrat ram something down our throats.”

Einwechter said he understands the concerns of industry, and of drivers in particular.

“But with an informed dialogue, hashing out the pros and cons and playing an active role in crafting I think we can have something good.”

Einwechter said EOBRs will cut down on paperwork for carriers in the long run, especially if speed limiters are brought in.

“One of the associations we met with there had to read one million tachographs a year – it was one of the services it provided for members. Now, thanks to EOBRs, they don’t have to do that anymore.”

And times have changed since 2000, said Einwechter, pointing out many carriers already have EOBRs.

Bison president Don Streuber also supports their use.

“Bison is more concerned about how the new rules will be enforced and monitored than we are about what the new rules will be,” he said.

“Unless the manner in which fleet performance is monitored and enforced changes, it doesn’t matter what the rules are going to be. Government has been completely ineffective in regards to enforcing the existing regulations and keeping a level playing field. There are many disreputable carriers in our midst who still turn a blind eye to HOS, and the only way to get that to change is by changing the mechanisms in place to track performance and report on compliance…we strongly support EOBRs for those very reasons.”

The views of Einwechter and Streuber are shared by the majority of Canadian Trucking Alliance members, according to CTA CEO David Bradley.

“There is a school of thought which suggests that in order to maintain the existing rules, the
industry will likely have to accept EOBRs in some fashion or another,” he said. “Whether this turns out to be so remains to be seen. However, there are two issues to be considered with regard to EOBRs (1) They are likely inevitable. As the world goes wireless, it seems inconceivable that paper logs will continue to be the preferred way to monitor hours of service compliance; and (2) there is a growing feeling among my carriers that better enforcement and deterrents are needed to ensure that carriers are competing on service and a price which includes the costs of compliance and not on who can bend or break the rules. As a result, at its annual meeting in April 2005, CTA took the position that it should proactively pursue the mandatory implementation of EOBRs with conditions that will respect concerns over privacy, flexibility, cost and effectiveness.”

Be that as it may, the devices were not included in the FMCSA’s January proposal, and even the Canadians most in the know here have little to no idea what the rules introduced at month’s end contain.

“The U.S. regulatory system is even less transparent than the Canadian system, so I will not even attempt to speculate on what the new U.S. rules will look like,” said Bradley. “Clearly, the wish of most Canadian carriers would be that the existing rules be retained as much as possible, as opposed to further restriction.”

What carriers fear is that changes to the rules and/or the confusion that will ensue if and when they face another court challenge, could force even more drivers and O/Os out of business.

“The new HOS standards run the risk of pushing even more drivers out of the industry at an expedited rate, but the fact is the rules are the rules and we will have no choice but to comply, just as we do right now,” said Bison’s Streuber.

“We run a very successful and safe operation under today’s rules and regulations and that will not change. The consumer needs to be equally concerned about the HOS changes, as ultimately it is the general public who will bear the costs of these changes…Industry has already made the statement that HOS will not come at the driver’s expense, so the costs of lost utilization, more stringent reporting or whatever the ultimate changes reflect will most certainly be passed on.”