FMCSA Denies HOS Appeal

By Sean McNally, Senior Reporter

This story appears in the Jan. 26 print edition of Transport Topics.

In its final hours, the Bush administration emphatically denied a request to overturn its controversial driver hours-of-service rule, leaving the twice-rejected measure in place, at least for now.

John Hill, outgoing head of the Federal Motor Carrier Safety Administration, turned down an appeal by a coalition of groups as one of his last actions before leaving office. In a Jan. 16 letter, Hill stated that in the five years since the new rule went into effect, “the significant increase in truck crashes and fatalities that one would have anticipated, based on petitioners’ criticisms, has simply failed to occur.”

A representative of the opposition coalition told Transport Topics that the groups were considering options, which include lobbying of the incoming Obama administration and more legal action. Federal courts have twice sent the rule back to FMCSA after agreeing with the coalition’s lawsuits challenging the agency’s changes to the 60-year-old hours-of-service rule.

The coalition opposed the rule’s daily one-hour driving-time extension and the provision allowing drivers to reset their weekly driving limit after a 34-hour rest. The coalition includes Public Citizen, the Teamsters union, Advocates for Highway and Auto Safety, the Insurance Institute for Highway Safety and the Truck Safety Coalition, a partnership of Parents Against Tired Truckers and Citizens for Reliable and Safe Highways.

The revised rule increased the daily driving limit to 11 hours from 10, cut drivers’ total working time to 14 hours a day from 15, and allowed drivers to reset their weekly hours allotment by being off-duty 34 consecutive hours.

Opponents have argued in the past that the agency had not supported its changes with adequate research, but Hill said FMCSA research “fully supported” the new rule.

“FMCSA has found no data to suggest that crashes, and more specifically, fatigue-related crashes, have increased significantly since the rule was enacted in 2003,” Hill stated. “The evidence available indicates that drivers value the 34-hour restart because it gives them more, not less, rest and time-off duty, including more time at home than the pre-2003 [rule], exactly the opposite of the effect [the coalition] claim[s].”

The rule’s opponents “fail to recognize any societal benefit whatsoever to the increased flexibility afforded drivers and motor carriers under the final rule. Indeed, petitioners barely acknowledge the agency’s duty to consider economic benefits,” Hill said.

“At some point, cost and safety must be balanced,” Hill explained. “Theoretically, had Congress authorized the agency to regulate as petitioners apparently wish, FMCSA could have adopted even ‘safer’ HOS rules, for example six-hour daily driving limits, 30-hour weekly on-duty limits, without regard for economic cost.”

Defending the agency’s decisions on the 11th hour and the 34-hour restart, Hill said that the regulations have “significantly increased operational flexibility, to the betterment of drivers’ lifestyles and with significant savings to motor carriers, shippers and U.S. consumers.”

Jacqueline Gillan, vice president of Advocates for Highway and Auto Safety, told TT that the group was “disappointed,” but expected the new administration might reconsider the regulation.

“Clearly we hope, because of the bipartisan support we’ve had on a whole range of truck-safety issues, that this is an opportunity for the new administration to look at this issue,” Gillan said Jan. 21. “We think the rule is so flawed in so many ways that we really are looking forward to the Obama administration looking at it and giving it a brand new look.”

If the new leaders at FMCSA do not revise the rule, Gillan said renewed legal action “certainly [is] one of the options that we’re looking at.” The new administration has yet to name an FMCSA director.

Trucking industry officials said they were not surprised FMCSA rejected Public Citizen’s petition.

“We’re pleased and not at all surprised. In its most recent publication, FMCSA did a good job of balancing the rule’s costs and benefits and did a good job in justifying its decisions,” said Dave Osiecki, vice president of safety, security and operations for American Trucking Associations. “More importantly, we know from safety data collected over the last four years that the trucking industry is performing more safely while operating under these rules.”

Rod Nofziger, director of government affairs for the Owner-Operator Independent Drivers Association, said FMCSA’s decision “comes as no surprise,” given that the agency has “been through more than one confrontation in the court room” defending its regulation.

“I think they’ve stood pretty firm in their support of the rule and feel they’ve done a good job defending the work they’ve done,” said Steve Keppler, director of policy and programs for the Commercial Vehicle Safety Alliance.