Endless Hours?

Another trip to court could end regulatory saga – or not

Here’s the story so far. In 1995, Congress directed the Federal Highway Administration to rewrite the rules governing drivers’ hours of service, which had been in place for about 60 years. FHWA took some comments, but not much happened for several years.

In 2000, the newly established Federal Motor Carrier Safety Administration finally proposed new rules, which most in the trucking industry viewed as onerous, confusing and unenforceable. So the industry quickly persuaded Congress to block them temporarily.

In 2003, the Bush administration’s FMCSA issued a final rule that was far more to the industry’s liking. It basically required more rest each day and a defined duration for the work day, and offset lost productivity by allowing slightly more driving time during a shift and the option for drivers to restart cumulative weekly hours following an extended rest break. Safety critics cried foul and went to court.

In July 2004 – about six months after the new rules kicked in – the U.S. Court of Appeals for the District of Columbia set the regs aside. Judges had lots of concerns, but officially the lone basis for striking down the rules was FMCSA’s failure to consider their impact on driver health as Congress originally dictated in 1995. Given the potential disruption in having to switch back to the old rules temporarily, Congress kept the new rules in place and gave FMCSA about a year to reconsider them. During this time, FMCSA even floated the idea of having Congress write the current rules into statutory law, but the effort failed.

FMCSA’s 2005 rule made one major change: It sharply limited the ability of drivers to use sleeper berths to split rest. The agency reasoned that the real issue in driver health was adequacy of rest regardless of total hours worked. Based on available research, it declared that drivers should have the opportunity for seven or eight hours of consecutive sleep each night. In a related action, FMCSA launched a rulemaking to consider electronic onboard recorders.

In keeping with most good compromises, nobody seemed truly satisfied with the 2005 rule. Safety critics, including Public Citizen and the Teamsters, went back to court over driving hours and the restart in particular. In July 2007, the appeals court once again invalidated the regulations, saying that FMCSA changed its methodology without giving the public an opportunity to comment. The court didn’t judge the merits of the safety critics’ complaint.

After still more procedural wrangling, FMCSA reissued its latest hours rule in November – just in time to protect it from a mechanism that would have made it relatively easy for the incoming Obama administration to reverse it. The agency sealed the deal on Jan. 16 when it rejected a petition for reconsideration, setting up a 60-day window for a legal challenge.

So by the middle of next month, safety critics almost certainly will be back in court for the third time. But the dynamics are decidedly different now. For the past eight years, the trucking industry could take some comfort in the notion that the agency tasked with writing the rules was sensitive and receptive to the needs of the business community. And for most of that time, Congress was the same. So even if the courts kept sending the rules back, the trucking industry had reason to hope for a desirable outcome.

The tables are turned. Neither the executive nor the legislative branch is especially friendly, especially if the Teamsters remain strongly opposed to the hours rules. It’s more important now that the appeals court accept the current rules as it is doubtful that new ones would be more favorable. The U.S. Supreme Court remains as the court of final appeal, but that’s a dubious solution.

If the appeals court does strike down the rules, a political compromise might produce the best outcome. Take the current rules, add mandatory recorders and you just might have a workable solution.