HOS clock ticking-- again

With the court ruling that yesterday struck down the federal Hours of Service (HOS) rules for truck drivers having been determined on narrow legal grounds, it is difficult to determine the upshot of this latest twist in the seemingly never-ending saga that is HOS reform.

In its unanimous decision, the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit did not rule against the rules per se but rather that the Federal Motor Carrier Safety Administration (FMCSA) had not adequately justified the safety impact of the changes it made to HOS regulations in 2005 including not providing “interested parties an opportunity to comment on the methodology of the crash-risk model that the agency used to justify an increase in the maximum number of daily and weekly hours that truck drivers may drive and work.”

As pointed out today in a report by The New York Times, most damning to FMCSA was the court’s finding that the agency had in fact ignored the results of its own study that indicated there was a substantially higher risk of fatigue-related accidents in the extra hours of service allowed by the revised regulations. The court stated that FMCSA had ““failed to provide an adequate explanation for its decision to adopt the 11-hour daily driving limit.”

While trucking interests had supported the 2005 HOS revisions as providing improved safety without overly slowing freight or increasing operational costs, highway safety advocates maintained these reforms were still not sufficient to protect truck drivers and other motorists as fully as possible.

It should be noted that both Public Citizen and the Owner-Operator Independent Drivers Association (OOIDA) filed suit against FMCSA last year seeking to throw out the current rules. While the court granted Public Citizen’s motion to throw out the 11-hour drive time and 34-hour restart provisions, it did not grant OOIDA’s petition to restore the more flexible split-sleeper berth rules that existed before the 2005 revision. “FMCSA,” said the court, ”based the modification of the sleeper-berth exception not on concerns about driver health but rather on its well-supported finding that the 8-hour requirement would reduce fatigue-related accidents. For the foregoing reasons, we deny OOIDA’s petition.”

The Teamsters union, a vocal opponent of the existing rules and a plaintiff in the case, hailed the court ruling as a “victory,” a win for both truckers and motorists. "We never thought it was a good idea to allow drivers 11 hours behind the wheel of a heavy piece of machinery," said Teamsters general president Jim Hoffa. "I hope this ruling forces the Bush administration to start paying attention to highway safety." Hoffa added he was “disappointed” the court upheld the exception that lets drivers split their daily off-duty requirement into two periods as long as one period is two hours long and the other is eight hours long

FMCSA now has 45 days to petition the court for reconsideration. "We are analyzing the decision… to understand the court's findings as well as determine the agency's next steps to prevent driver fatigue, ensure safe and efficient motor carrier operations and save lives. This decision does not go into effect until September 14, unless the court orders otherwise," said FMCSA in a statement.

Whether that holds is anyone’s guess today. Anyone involved in the case can seek a stay of the court order-- which would serve to keep the current HOS in place until FMCSA or Congress takes further action.

The American Trucking Assns. (ATA), a key supporter of the existing rules, said it plans to file a motion with the court asking it to stay the effective date of its decision “while FMCSA is reconsidering the rule.” ATA stated it will provide support to FMCSA for re-adoption of the 11-hour daily drive time and 34-hour restart.

According to ATA, “the good news in the decision is that the flaws that the court found were procedural in nature and can be corrected by the agency.” Gov. Bill Graves, ATA president & CEO, stated that the “existing rules have proven to be a significant improvement over the old rules in terms of reducing driver fatigue and related incidents. Motor carrier experience and FMCSA data dramatically illustrate this. ATA plans to provide additional real-world documentation of the effectiveness of the current rules."

But no doubt consumer advocacy group Public Citizen, which was lead plaintiff on this case, and other like-minded groups will counter that FMCSA had had plenty of time to make its case before it promulgated the current rules back in 2005.