EYE ON TRUCKING: We’re left to wonder: what will be the fate of Hours of Service No. 3

What type of rules will truckers have to follow after FMCSA responds to court decision with new rulemaking?

By Lyndon Finney
The Trucker Staff

8/10/2007

‘Super Shredders of Washington, how may I help you?’

‘Please send the largest shredder you have to 1200 New Jersey Avenue Southeast.’

‘And who is calling please?’

‘The U.S. Department of Transportation. When you arrive, just ask for the offices of the Federal Motor Carrier Safety Administration.’

‘And what, may we ask, will we be shredding?’

‘The latest version of the Hours of Service regulations.’

‘Oh, and please leave your card. Our agency might need you again in a few months.’

So, here we go again.

Sometime in the next few months, the trucking industry will receive the third version of the HOS rules in just over four years, and it’s our guess, the new version, just like the first two, will wind up in court.

Enough, already!

When is the merry-go-round going to stop?

Is it going to take a total unraveling of the trucking industry because drivers leave by the droves as a result of the uncertainty of how many hours they’ll be able to drive next year, and the next and the next, because the rules keep changing?

We liked what Chris Burruss, the highly-respected president of the Truckload Carriers Association, said to us the other day.

It’s the continued uncertainty brought about by the most recent ruling that is troubling him, his organization’s membership and the trucking industry as a whole.

As it was with the lawsuit filed against the 2003 rule, the lawsuit that resulted after FMCSA announced its 2005 rule had to do mostly with the 11-hour driving limit and the 34-hour restart rule, both of which the United States Court of Appeals for the District of Columbia vacated in its ruling last week.

And in reality, both rules were vacated on procedural issues.

Several groups were able to get the court to vacate the first HOS rule because the court said FMCSA failed to consider the impact of the health of drivers when writing the rule, which extended the driving limit to 11 hours and instituted the 34-hour restart.

In rewriting the 2003 rule, FMCSA changed only one thing. It kept the 11-hour driving limit and the 34-hour restart rule among other things, but the 2005 rule required one eight-hour consecutive hour rest period in the sleeper berth plus two consecutive hours either in the sleeper berth, off-duty, or any combination of the two. Previously, those 10 hours of rest could be split in any format as long as one was at least two consecutive hours.

In overturning the 11-hour driving limit and 34-hour restart rule, the court took FMCSA to task for failing to provide an opportunity for comment on the methodology the agency used to in developing its operator fatigue model.

“We have no difficulty in concluding that the agency’s failure to disclose the methodology of the operator-fatigue model in time for comment was prejudicial,” the court wrote in its opinion.

One of factors that we in the media probably have not reported well was FMCSA’s economic impact study of 11 hours driving time versus 10.

In considering what it would do to rewrite the 2003 rule, the agency came up with four options. The first option was to continue the 2003 rule as it was written. The second option, which was the one ultimately chosen, was compared with two other options, both of which cut driving time to 10 hours and eliminated the use of the split sleeper berth periods. One of the 10-hour options expanded the restart break to 58 hours, the second expanded the restart to 44 hours.

The agency concluded that even the option ultimately chosen required additional total incremental costs of $34 million and an additional 600 drivers. The 10-hour option with the 58-hour restart would result in $2.1 billion additional costs and 107,000 more drivers and the other option $1.39 billion in incremental costs and 69,000 drivers.

What about safety, you say?

The court also chided FMCSA for the methodology it used to determine the fatigue factor in fatal truck accidents in hour 11, saying that the use of a cubic curve actually showed the risk of a fatigue-related fatal accident in hour 11 less than it actually is.

We don’t know what the outcome will be, but we hope FMCSA simply does its due diligence by using procedures that will stand a court test and keeps the HOS rule as it currently is written with perhaps some adjustment in the sleeper berth exception where its obvious from what we hear in the trucking community that “one size doesn’t fit all.”

We’re all left to wonder: what will be the fate of HOS III. 8