SPECIAL REPORT: HOS heads back to the drawing board

| 10/27/2009

Tuesday, Oct. 27, 2009 – “HOS will never be settled in our lifetime.”

Those were the parting words of Annette Sandberg as she turned over the reins of the Federal Motor Carrier Safety Administration in 2006. And it seems, at least for now, she’s right.

The hours-of-service regulations governing truck drivers have been entangled in the rulemaking and legal process since 2003. The latest round of hours-of-service regulations was published as a Final Rule in late 2008 and went into effect Jan. 19.

That marked yet another attempt by the agency to put the HOS debate to bed. The embattled regulation has been contested in court numerous times where it was tossed out entirely in 2004 and had two key provisions eliminated in 2007 because of procedural problems.

The latest final rule submitted reflected FMCSA’s attempt to rectify the procedural issues it encountered when it added the 11th hour of driving and the optional 34-hour restart provision.

No sooner had the current regulations been unveiled and put into effect than yet another legal challenge was filed by Public Citizen.

Late in the day on Monday, Oct. 26, Public Citizen and the Federal Motor Carrier Safety Administration reached an agreement that would end the legal challenge and send the hours-of-service regulations back through the regulatory process – way back through the process.

On the evening of Oct. 26, the government and Public Citizen filed a joint motion with the U.S. Court of Appeals in Washington, DC, asking the court to effectively stop the legal action in order to allow the government to conduct a new hours-of-service rulemaking.

FMCSA has promised to prepare a new notice of proposed rulemaking in nine months, and reach a final rule in 21 months. The current rule will stay in place during that process.

The legal team for the Owner-Operator Independent Drivers Association, who were intervenors in the recent court action, was told that FMCSA officials have not promised to propose a specific rule or to conduct a rulemaking on just the 11 hours of driving and 34-hour restart provisions.

OOIDA believes that putting hours-of-service regulations up for a new rulemaking may mean opportunities for improvement, as long as changes are meaningful and include all aspects of driving that affect safety.

“There are things that could be improved upon the current hours-of-service regulations that we’d like changed, but opening up the issue completely also runs the risk of seeing revisions made that have no effect on safety even though they are more restrictive,” said Jim Johnston, OOIDA president and CEO.

FMCSA declining to promise a specific rulemaking focused on the 11th hour of driving and the 34-hour restart may very well be the opening truckers want to highlight other problems with the current regs.

“This means an opportunity to bring up other hours-of-service issues that have an effect on safety,” Johnston said.

“To meaningfully improve highway safety, proposed changes would need to include all aspects of a trucker’s work day that affect the ability to drive safely. This includes loading and unloading times, split sleeper berth for team operations, and the ability to interrupt the 14-hour day for needed rest periods. Truckers need the flexibility to get rest when needed rather than more restrictive rules.”

– By Jami Jones, senior editor