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2/9/2005
SPECIAL REPORT: Moves being made to keep current HOS rules

FMCSA suggests an amendment to keep rules in place

As the clock ticks down on the current HOS extension offered up by Congress last year, the Federal Motor Carrier Safety Administration has launched an attempt to make the current rules permanent.

FMCSA Director Annette Sandberg shared an amendment at a mid-February ATA gathering that the agency has sent up to Capitol Hill in hopes a lawmaker will pick up her cause. Laws prohibit federal agencies from introducing legislation or lobbying members of Congress.

The suggested amendment would be part of the legislation to reauthorize the federal highway spending program (known as SAFETEA) that is expected to be introduced any day. FMCSA's suggested amendment to SAFETEA, if introduced and passed, would adopt and confirm the current HOS as "fully legalized."

A federal appeals court tossed the current HOS in July 2004. The court ruled that the regulations did not properly consider drivers' health. In its decision, announced July 16, 2004, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit called the HOS rules "arbitrary and capricious."

The April 2003 HOS rules were left in effect but not indefinitely - leaving FMCSA with a compressed schedule to address the court's concerns.

But FMCSA contends in an analysis of its suggested amendment that the Agency considered drivers' health with the introduction and adoption of the current HOS.

"Although the Public Citizen decision faulted FMCSA's handling of certain Administrative Procedure Act requirements - especially its failure to discuss driver health . it did not address the reduced fatigue and improved safety FMCSA claimed for the new rule," FMCSA explained in an analysis accompanying the suggested amendment.

Its analysis contends that FMCSA did address drivers' health and that the current HOS regs have a positive impact on drivers' health.

"Definitive statistics on accidents and fatalities are not yet available, but the industry has already concluded that the rule is responsible - directly and indirectly - for producing more rest for drivers, better use of driver time, more efficient handling of freight by shippers and receivers and increased productivity for motor carriers," FMCSA staffers wrote in the analysis.

But that doesn't mean too much at this point.

In order for FMCSA's suggested amendment to even make it into the process, a lawmaker will have to introduce the amendment. That might happen at the committee level or it could even happen in the full House or Senate.

Then it will have to withstand the scrutiny of debate. It could be met with opposition from the lawmakers. Some lawmakers may be aligned with Public Citizen and address the safety concerns again. Some lawmakers may flat refuse to entertain the amendment because it is a regulatory matter - not a legislative issue.

If the suggested amendment never sees the light of day, or fails, FMCSA officials will be right back where they are today - seeking a way to meet the court's directive through the rulemaking and comment processes.

This suggested amendment has no bearing on the current comment period about the hours-of-service regulations and their impact on drivers' health. The comment period remains open until March 10 regardless of the status of the suggested amendment.

HOW-TO GUIDE: Want to comment about HOS?

- By Jami Jones
jami_jones@landlinemag.com

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