There’s a joke among researchers: “Sure, it works in practice. But does it work in theory?” OK, maybe researchers aren’t that funny, but the point is that you can overanalyze and reject what clearly seems to be a good idea. That might be what ongoing litigation is doing to the Federal Motor Carrier Safety Administration’s hours-of-service regulations.
For the second time in three years, a federal appeals court voided at least part of the hours rules. This time, the U.S. Court of Appeals for the District of Columbia threw out two key provisions – an additional hour of driving over the old rules and a 34-hour restart of weekly on-duty limits – on procedural grounds. Meanwhile, the court upheld FMCSA’s decision to limit split rest in sleeper berths, flatly disagreeing with critics who said the agency failed to demonstrate that drivers need seven to eight hours of consecutive sleep each night.
FMCSA isn’t yet saying how it will respond, but it probably will conduct still another rulemaking. The agency could simply explain once again its analysis on the 11 hours of driving and the 34-hour restart in order to fix the procedural flaws. That might buy some time for today’s regulations and persuade the court not to force motor carriers to implement costly changes in their operations.
But the critics will just be back in court, this time arguing against the rule as a matter of policy. The appeals court didn’t bother to address the merits of Public Citizen’s arguments against the 11 hours and 34-hour restart since it already had dismissed them on procedural grounds. Public Citizen will sue FMCSA again anyway unless it gets the result it wants, of course. But FMCSA will be on a stronger footing if it considers data from actual operations under the new rules.
While litigation drags on, you and your drivers live with the regulations on a daily basis. Public Citizen and FMCSA are still fighting over interpretations of crash data from 1991 through 2002. That might have been the best data available when FMCSA was crafting its rewrite more than four years ago. But that’s ancient history. Many of you now have more than three years of actual, on-the-road experience with the current hours-of-service regulations. It’s as if we are running a pilot test of the new rules with hundreds of thousands of drivers each day.
How do we assess the safety impact? The safety record at the macro level doesn’t help much. In 2003, the fatal crash rate for large trucks per 100 million vehicle miles traveled was 1.99. In 2004 and 2005, it was 2.03 – an increase, but not much of one. In 2003, there were 5,036 fatalities in truck-involved crashes. In 2004 and 2005, there were 5,235 and 5,212 fatalities, respectively. But according to just-released final numbers, 2006 fatalities dropped 4.7 percent to 4,995. Based solely on these numbers, neither side can make much of a case that the rules changes have been a huge success or an abysmal failure.
FMCSA must dig much deeper. It has lost twice regarding its hours-of-service regulations before six different judges. The latest opinion turned on procedure, but the first opinion was highly skeptical of FMCSA on several fronts. Three of those six judges also ruled against the agency regarding entry-level driver training in December 2005. The court thought so little of the rule that it didn’t even bother to void it, saying it might as well stay in place for now because “it may do some good, if it does anything at all.” Can it be that FMCSA has a credibility problem with this court?
The next rules can’t read like a reverse-engineered justification of the status quo. FMCSA needs strong and precise data on the safety implications of the 11 hours of driving and the 34-hour restart – and the economic consequences of undoing them. And you have the data FMCSA needs – right there in your computer systems.