FMCSA Seeks Stay of HOS Court Order; Tougher Rules Likely
by Earl B. Eisenhart, Government Relations Services
On Aug. 30, the Federal Motor Carrier Safety Administration (FMCSA) filed a motion to stay the recent order of the U.S. Court of Appeals for the District of Columbia, vacating the new driver hours-of-service (HOS) rules. FMCSA said a stay of the order for at least six months would “allow the agency time to address and to correct the concerns of the court about the new hours-of-service rule.”
The agency also said the stay was necessary “to avoid substantial disruption in the enforcement of HOS requirements.”
At the same time, FMCSA moved to address one of the concerns articulated in the court’s decision: the use of electronic on-board recording devices. FMCSA Administrator Annette Sandburg announced that an Advance Notice of Proposed Rulemaking on requiring these devices would be published in the Sept. 1 Federal Register.
If the court grants the agency’s request for a stay, the newest set of rules, which were published in April 2003 and became enforceable in January of 2004, will remain in effect for the time being. However, it is unclear whether the court will grant the stay, and if so, for how long.
It is also unclear how long it might take the agency to complete a new rule given the research, notice and comment procedures, cost benefit analyses, and other hurdles. However long it takes, there is little question that a new rule will be significantly more burdensome than either the current or old HOS rules.
This is because the court’s decision vacating the rule was focused on driver health. The implication is that the agency now will have to construct a rule that clearly benefits the health of drivers and substantiate it with research data. That almost certainly will lead to a rule that allows fewer hours on the job than does the current rule, which permits a 14-hour daily tour of duty. Moreover, the court cited several specific aspects of the rule that it said were suspect, including the increase in maximum driving time from 10 to 11 hours, the split-time sleeper berth exception, the decision not to require electronic on-board recording devices, and the adoption of a 34-hour “restart” for weekly on-duty limits. The court said that FMCSA’s data does not substantiate the claim that these provisions will reduce driver fatigue or protect driver health. For example, the agency has no data to show that the decrease in maximum work time in any way would offset the adverse effects of the increased maximum driving time.
Where does all this take us? Most likely to a new rule from FMCSA that is far more prescriptive and far more burdensome than the one that became enforceable in January. It may be more similar to the initial, much-maligned proposal that emerged in 2000. An educated guess is that the new proposal would permit fewer than 14 hours for a daily tour of duty, 10 hours or less maximum driving time, more than 10 hours minimum off-duty time, and elimination or modification of the 34-hour restart provision. A resurfacing of the much-despised “mandatory weekend” and limitations on nighttime-driving proposals are also a possibility. As noted above, the required use of electronic on-board recording devices, initially rejected by the agency, also will be back on the table.
Companies that employ commercial drivers once again will need to engage in the policy debate over hours of service. The field of play is likely to go beyond FMCSA to include Congress and the White House, just as it did on the last go-around.
For additional information concerning this and other transportation issues, contact Earl Eisenhart at (202) 898-1050 or eeisenhart@ grservices. com. Government Relations Services (GRS) is an independent lobbying and consulting firm specializing in transportation, security, and logistics policies.