You're probably aware by now that FMCSA's new hours-of-service rules were thrown out by the District of Columbia (DC) Circuit of the U.S. District Court of Appeals on July 16.
The court case stemmed from a lawsuit filed against FMCSA by Public Citizen and other safety advocate groups, including Parents Against Tired Truckers, Citizens for Responsible and Safe Highways, and Advocates for Highway and Auto Safety.
The rules were developed in response to a 1995 Congressional mandate ordering FMCSA's predecessor agency to initiate an hours-of-service rewrite that took into consideration safety issues such as maximum allowable driving hours, rest and recovery cycles, and the use of tamperproof onboard recording devices. The agency was required to support their policy choices with research.
Although the Court based its decision solely on the fact that FMCSA had neglected to assess the impact of the new rules on driver health, a careful reading of the decision makes it clear that this was not the only issue the Court found troubling. Following is a summary of the Court's response to the issues contained in the original lawsuit.
Driver health. FMCSA did not directly evaluate how the rules would impact driver health. Instead, it created rules based on the premise that overworked drivers are less likely to drive safely, thus causing more crashes.
Increase in driver hours. FMCSA used circular logic to explain why it ignored the exponential degradation of driver alertness in the 10th and 11th driving hours.
Split-sleeper berth exemption. While research cited by FMCSA actually favored the elimination of this exemption, the agency retained it in the rule rewrite.
Onboard recorders. FMCSA decided not to recommend the use of onboard recording devices, citing difficulties in conducting a cost-benefit analysis.
34-hour restart. The Court pointed out that this results in a dramatic increase in weekly work hours for drivers who maximize this provision
The Court vacated the rule on the first point alone. In addition, it indicated that several of the petitioners' other objections also raised concerns about the agency's decision-making process. That spells trouble for those who hope that the new rules will remain intact.
The public advocacy groups realize they have achieved a tremendous victory and will no doubt re-challenge any hours-of-service rulemaking that falls short of addressing the five illogical FMCSA policy choices.
We must also keep their ultimate goals in mind. Comments filed by these groups during the rulemaking process make it clear that their ideal set of rules would include the following:
- 12-hours on/12-hours-off duty cycle;
- Maximum 10 hours driving per duty shift;
- Mandatory onboard recording devices;
- Elimination of the split-sleeper berth exemption;
- Overhaul of driver pay methods.
With that in mind, we should face the possibility of a dramatic rewrite of the new rules. It's also likely that the Court will require FMCSA to move quickly.
We should prepare for the inevitable. For starters, inform your clients to set the stage for rate increases. Then, determine how your load network might be impacted by a reduction in driving hours, longer off-duty times and onboard recording devices.
Isn't this the perfect time for us to take the lead in suggesting policies that improve fatigue management? Why not agree to fewer driving hours, black boxes, and rules that favor driver health?
This kind of approach could help solve many longstanding industry problems. And the decrease in crashes and driver fatigue likely to result could lead to a stronger bottom line and an improved public image.
Jim York is the manager of Zurich Service Corp.'s Risk Engineering Transportation Team, based in Schaumburg, IL.