SPECIAL REPORT: FMCSA asks to leave current HOS in effect while agency corrects courts’ concerns

| 8/30/2004

The Federal Motor Carrier Safety Administration has asked the D.C. Circuit Court of Appeals to leave the current hours-of-service rule in effect until the agency can correct the court's concerns regarding the regulations, Annette M. Sandberg, administrator of the FMCSA, said in a release Monday, Aug. 30.

The agency announced it would request that the court stay further action late in the day Monday. While it is awaiting a ruling on that request, the agency is already moving to correct the court's concerns.

Sandberg said in the release that on Sept. 1, the FMCSA would publish an Advance Notice of Proposed Rulemaking in which it would request information about the costs and benefits of electronic on-board recorders, also called EOBRs or black boxes. Some federal officials and several groups involved in the suit that overturned the HOS rules have long expressed a desire to see the devices required in trucks.

In addition, the agency said it had contracted with several entities for information about how the hours of service have affected on driver health.

"The whole subject of EOBRs raises constitutional issues and privacy issues," said Todd Spencer, executive vice president of the Owner-Operator Independent Drivers Association.

"But what seems the obvious flaw in relying on EOBRs as a tool for compliance with hours of service is that those devices can't measure what is oftentimes the largest single block of time that drivers spend, and that's the time spent loading and unloading," Spencer said.

Sandberg said the FMCSA thinks a stay by the court is needed to avoid HOS enforcement problems.

"After consultations with federal and state officials, the agency believes a stay is necessary to avoid substantial disruption in the enforcement of HOS requirements, as it remains unclear as to what safety regime would emerge," she said.

Jim Johnston, president of OOIDA, said the organization supports the FMCSA's request.

"We believe that an abrupt return to the 'old' HOS rules would create confusion, uncertainty, and frustration among truck drivers and the enforcement community," Johnston wrote in a letter to Sandberg. "As a result, compliance and enforcement of the HOS rule will be more difficult and safety would be compromised.

"The new rules should be left in place to preserve continuity in compliance and enforcement until they can be revised in accordance with the court's opinion."

And while the FMCSA is concentrating its efforts on two areas identified by the court, Johnston wrote that he hoped the agency would use the time to address several of the issues that the organization says contribute to compliance problems, "such as the impact of loading and unloading operations on driver fatigue, the control that other parties have on drivers' schedules, and the need to bring such parties into the enforcement scheme."

The U.S. Court of Appeals for the District of Columbia Circuit threw out the FMCSA's new hours-of-service rules July 16, mostly because the HOS changes did not consider how the rules would affect drivers' health.

The court allowed the current rules to stay in effect for 45 days while the FMCSA decided whether to appeal the decision. During that time, rumors flew at several points that the old rules would be back reinstated - but the rumors were untrue.

The ruling was the result of a suit by groups including Joan Claybrook's Public Citizen watchdog group, Parents Against Tired Truckers and Citizens for Reliable and Safe Highways - also known as PATT and CRASH - who challenged the Bush administration's hours-of-service rule, which went into effect this year.

- by Mark H. Reddig, associate editor