The current hours-of-service (HOS) mess reminds me of pulling a loose thread on a sweater. The problem began when frustration over the slow pace of regulatory change led the trucking industry to ask Congress for some help. Once the regulatory process was opened to legislative intervention, we started pulling on that thread. And with the best of intentions, everyone has lined up to give it just one more yank hoping to fix things, but inevitably we're ending up with a pile of useless yarn.
It started because FMCSA was taking a long time to come up with revisions to HOS regulations. With prompting by various trucking industry groups, Congress weighed in by passing legislation setting a deadline for HOS reform. While they were at it, they added some directives for that reform, among them that any new regulations consider the effects on driver health.
In January 2004, those mandated reforms went into effect with few problems, and it seemed like the legislative move had done no harm. But this summer, Public Citizen contested the new rules in a federal appeals court and won. The grounds? The reformed HOS rules failed to meet the legislative requirement that FMCSA consider the impact on drivers' health.
Ordered by the court to rework the rules according to the legislative mandate, FMCSA needed time to do that, and so it turned to Congress again. The result was legislation that kept the court-rejected rules in place until Sept. 30, 2005.
The agency restarted its formal regulatory process this past January by publishing a formal notice of proposed rulemaking in the Federal Register. The proposed rules are identical to the original HOS reform that took effect in 2004, the only difference being that FMCSA has now asked for public comments on what changes might be required to address the court's concerns.
Simply put, we had Congress force regulatory action with legislation, the courts overturn that action based on the legislation, and the court ruling delayed by more legislation.
So how do we fix the situation? Apparently by more Congressional intervention. Last month, a proposed amendment to the federal highway spending bill began circulating on Capitol Hill. The proposal would make the original HOS reforms law, thus sidestepping the court-ordered redo.
I guess that seems like a quick fix to the immediate problem, but I think history shows it's a shortsighted one. Once Congress is involved in what should be a process of public rulemaking, it opens the door to elected politicians attempting to add or remove anything from these rules.
One Congressman has already introduced a separate bill that would allow drivers to break consecutive on-duty periods by going off-duty for up to two hours. That actually sounds logical, but what's to say that Public Citizen or some other group won't get a member of Congress to introduce a bill that prohibits drivers from working at night — or anything else they think is appropriate?
Inviting Congress to meddle so directly in the creation of regulations is a mistake. It's directly responsible for the current mess, and further intervention is just going to lead to more problems in the long run.
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