DOT to Rewrite HOS Rule After Groups Suspend Suit

This story appears in the Nov. 2 print edition of Transport Topics.

The Department of Transportation last week said it will withdraw its controversial driver hours-of-service rule and write new regulations as part of a deal in which a coalition of advocacy groups agreed to suspend its federal lawsuit challenging the rule.

Public Citizen and the Teamsters union have challenged the HOS rule, initially proposed by the Bush administration in 2003 as the first major revision of 60-year-old regulations, because they said it increases driver fatigue. The groups twice have won federal court decisions that sent the rule back to DOT and a third challenge was pending.

The HOS rule raised allowable driving hours to 11 from 10 during an overall workday, which it shortened by an hour to 14 hours. The rule also allowed drivers to “reset” their workweek by taking a 34-hour break. This rule will remain in effect during the DOT review.

In an Oct. 26 statement, Transportation Secretary Ray LaHood said, “Safety is our highest priority . . .  so we believe that starting over and developing a rule that can help save lives is the smart thing to do.”

DOT said its Federal Motor Carrier Safety Administration would send a new proposed rule to the White House in nine months and publish a new final rule within 21 months.

Anne Ferro — whose presidential nomination to be FMCSA administrator the Senate Commerce Committee approved last week (see story, p. 3) — probably will oversee the writing of the new rule.

In 2004 and in 2007, federal appeals courts struck down all or parts of the rule, but FMCSA’s revisions didn’t make substantive changes to the regulations, retaining the 11th hour of driving and the 34-hour restart.

In 2004, a federal appeals court rejected the rule, saying FMCSA failed to consider the effect on driver health. In 2007, the court again sent the rule back to the agency because the court said it did not provide adequate time for public comment.

The move to re-examine the rule could change those provisions, officials on both sides said.

“We definitely hope and expect that that would happen,” said Greg Beck, a lawyer for Public Citizen. “There can be no promises as to how the rulemaking process is going to come out, but I think that this signals, in light of the two court decisions that have struck down the rule before, that the government is willing to take a fresh look at the rule and come to conclusions based on a fair reading of the evidence.”

American Trucking Associations “absolutely . . . will participate in the rulemaking process and will vigorously defend the safe rule that we currently operate under,” General Counsel Richard Holcomb told Transport Topics.

ATA President Bill Graves said, “Safety in the trucking industry has greatly improved while operating under the current hours-of-service rules. Over the past five years, we’ve seen a strong decline in truck-involved crashes on our nation’s highways.”

“We’ll be able to submit a wealth of data that shows how safe the rule is, and at the end of the day, we’ll just have to review what comes out of FMCSA,” Holcomb said.

In a statement, ATA said that the number of truck-involved fatalities has fallen 19% since the first contested rule took effect in 2004.

“There are things that could be improved upon in 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 do not affect safety, even though they are more restrictive,” said James Johnston, president of the Owner-Operator Independent Drivers Association.

Johnston said a new rule was “an opportunity to bring up other hours-of-service issues that affect safety . . . [and that] include 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.”

“If it’s an honest rulemaking with an honest assessment of the experience of the motor carrier industry, then it’s not likely that the rule will change,” said one official who asked not to be identified.

“There’s one side of me that says maybe the rule will change, but there’s another side of me that says, ‘On what basis would the rule change?’ It can’t be politics,” the official said. “What new data and information is there on which to base a rule change? That’s an obvious and very important question.”

Stephen Keppler, interim ex-ecutive director for the Commercial Vehicle Safety Alliance, said it could be tough for the agency to make major changes to the rule, given the time constraints of the agreement.

“I think it is a pretty aggressive time schedule, based upon historical precedent,” he said.

Advocacy groups said they intended to press FMCSA to make the new regulation more restrictive.

Joan Claybrook, chairwoman of Citizens for Reliable and Safe Highways, said, “It is time for the DOT to issue a rule that advances safety interests and not the economic interests of the industry.”

Jackie Gillan, vice president of Advocates for Highway and Auto Safety, said that the agency “needs to reform the hours-of-service rule for truck drivers because longer operating and working hours have serious health and safety consequences for workers and the public.”