Editorial: Fixing the HOS Situation

This Editorial appears in the Oct. 8 print edition of Transport Topics. Click here to subscribe today.

The Federal Motor Carrier Safety Administration has been given until Dec. 27 to cure the defects a federal appeals court found in its latest driver hours-of-service regulations. We all need to hope that FMCSA officials are successful in that effort.

We applaud the judges of the U.S. Court of Appeals for the D.C. Circuit for granting the stay, although we would have preferred the eight-month delay that we asked for in our court filing or the 12-month delay FMCSA requested.

The court in July struck down the 11 hours of driving time contained in the HOS rule and the provision allowing drivers to restart their workweek after a 34-hour rest period, saying FMCSA had failed to give enough time for notice and comment on the changes.

In its recent filing supporting the request for a stay that American Trucking Associations filed, FMCSA said it needed a year to conduct a full-scale rulemaking to comply with the court’s findings.

Failing to receive that delay, the agency said, it could issue “an interim final rule to avoid substantial disruption to trucking operations and hours-of-service enforcement.” It now appears that FMCSA may have to do just that.

The court’s stay appears to reinforce our feeling that the HOS ruling was about procedural failings by FMCSA rather than the court saying it felt the substance of the two provisions was unacceptable.

“For them to grant a stay, pending what the agency does, is saying … [that the two provisions] aren’t unsafe,” said Robert Digges, ATA’s deputy general counsel. “We’re not foreclosed from retaining the provisions. … This is an endorsement by the court that their decision was procedural.”

We continue to support the HOS rule as created by FMCSA, including the 11 hours of driving time and the 34-hour restart provision.

Since the rule first went into effect in 2005, highway safety has improved, and fleets have worked hard to figure out how to operate efficiently, even with the one-hour cut in the allowable work day contained in the rule.

The ball is again in FMCSA’s court. We’re confident that FMCSA will respond appropriately to the court’s mandate and propose a solution that the court will endorse.