WASHINGTON, (Jan. 25, 2005) — The Federal Motor Carrier Safety Administration has published the same hours of service rules vacated by a federal court in July. Instead of revising the rules, the agency is asking the public to provide comment to generate further scientific and anecdotal information that can be used meet the court’s concerns.

In its notice of proposed rulemaking published in the Federal Register yesterday, the FMCSA makes it clear that the proposal does not suggest changing the actual hours drivers will be allowed to work.

“FMCSA is not considering changes to the hours of service regulations applicable to drivers and operators of passenger-carrying commercial motor vehicles,” the agency states in the summary of the rulemaking announcement. “This NPRM asks the public to comment on what changes
to that rule, if any, are necessary to respond to the concerns raised by the court, and to provide data or studies that would support changes to, or continued use of, the 2003 rule.”

The NPRM does acknowledge several issues the U.S. Court of Appeals brought up when, in a suit brought led by Public Citizen, it threw out the existing HOS rules — including the court’s main point that the agency failed to comply with a statute requiring the agency to consider the impact of the rule on “the physical condition of the operators.”

Congress subsequently provided that the 2003 regulations will remain in effect until the effective date of a new final rule addressing the issues raised by the court or September 30, 2005, whichever occurs first.

FMCSA is hoping new information provides the agency with the support it needs to satisfy the court.

“Since publication of the 2003 final rule, the literature and studies on driver safety and health have expanded and evolved,” the FMCSA stated. “FMCSA requests comments on the relationships between driver health and safety generally, but also between the net effect of the changes produced by the 2003 hours-of-service rule and health and safety.”

The announcement addresses the electronic on-board recording devices only briefly. FMCSA is still evaluating a mandate and asks for continued comment.

“FMCSA is attempting to evaluate the suitability of EOBRs to demonstrate compliance with the enforcement of the hours-of-service regulations, which in turn will have major implications for the welfare of drivers and the safe operation of commercial motor vehicles.”

While it did not rule specifically on EOBRs, the court did chide the agency for not considering them in the 2003 rule, and implied it would like to see the FMCSA adopt the requirement. “(We) cannot fathom why the agency has not even taken the seemingly obvious step of testing existing EOBRs on the road, or why the agency has not attempted to estimate their benefits on imperfect empirical assumptions,” the court said at the time.

The FMCSA responded by issuing an advance notice of proposed rulemaking EOBRs in Sept. 2004. The purpose was to ensure any future mandate concerning EOBRs would be appropriate as well as reflect state-of-the-art communication and information management.