FMCSA’s final hours

The cavalry did not arrive to save the day for the Federal Motor Carrier Safety Administration and the trucking industry. When Congress enacted the highway bill late last month without writing the current hours-of-service regulations into law, Public Citizen and its allies won another key battle in the ongoing struggle. Barring any surprises, FMCSA will be required by Sept. 30 to issue revised hours rules as mandated by the U.S. Court of Appeals for the District of Columbia.

There still are some last-gasp tactics that could save the current rules. The House and Senate already have passed their versions of the Department of Transportation appropriations bill, but codification of the hours rules theoretically could still show up in conference; that strategy didn’t work for the highway bill, however. Or FMCSA could stall by asking Congress for more time to rewrite rules that took eight years to write in the first place.

Or the agency could reissue the exact same rules but with better justification in response to the appeals court’s specific criticisms as well as data from the trucking industry on how the current rules are working. Technically, the court firmly declared only one fatal flaw – a failure to consider driver health. But based on the tone of Judge David Sentelle’s July 2004 opinion, FMCSA surely faces a drubbing from the appeals court if it returns without changing a thing. A testy court might even order specific changes that would not be to FMCSA’s liking.

The most promising strategy is measured compromise. FMCSA could make enough changes in the current rules – without wrecking the productivity of the trucking industry – that the appeals court would accept it. Based on the appeals court’s criticisms, the changes would need to come in one or more of four areas: the increase in maximum driving time, the 34-hour restart of cumulative hours, the sleeper-berth exception to consecutive rest and electronic onboard recorders. Changes in any of these areas will hurt the industry’s overall productivity, but they won’t affect carriers equally.

Based on FMCSA’s notice of proposed rulemaking, the agency may consider changes in the sleeper-berth exception, which allows drivers to split rest as an alternative to the requirement for 10 hours consecutive off duty. The agency cited a range of options, including dropping the sleeper-berth exception altogether, allowing it only for team drivers or allowing eight consecutive hours in a sleeper berth to satisfy the mandatory rest requirement. FMCSA previously has said drivers should have the opportunity for eight hours of uninterrupted sleep each night. With split rest, that’s only possible if one of the sleeper-berth periods is at least eight hours long.

Changing the sleeper-berth provisions could help FMCSA defend the remainder of its rules in court. It would reinforce the philosophy that FMCSA and the trucking industry espouse: that the hours-of-service regulations should focus on the amount and quality of rest, not the number of hours worked. Limiting or ending use of sleeper berths to split rest also would make the hours rules easier to enforce – another major principle FMCSA avows for the regulations.

Or FMCSA could change nothing in the hours-of-service rules and simply mandate electronic onboard recorders. That fits a separate but legitimate regulatory philosophy: that the problem isn’t with the regulation but with adherence to it. Under this compromise, the trucking industry would get acceptable regulations while safety watchdogs would get strict compliance.

Nothing FMCSA does will be desirable for everyone, but the agency can deliver a rule that most carriers can stomach if its rules focus on rest, compliance or both.