Denied. Again. For the umpteenth time in recent years, the Federal Motor Carrier Safety Administration (FMCSA) has bobbed and weaved to avoid doing what Congress told it to do in 1995, which was to "reduce fatigue-related incidents" involving large trucks.
This agency's latest action—swift denial of petitions to reconsider the federal rule on work hours for drivers of large trucks — tops a tall stack of actions since 2000 that run counter to FMCSA's statutory purpose of improving large truck safety. This agency has rejected petitions from the Institute, Public Citizen, and others to reconsider its rule setting truckers' work hours. It has complied with the letter, at best, but not the intent of a federal appeals court that told it, not once but twice, to go back and rethink the work rule. These bobs and weaves come on top of FMCSA's refusal to follow the 1995 congressional directive.
"The agency's purpose isn't to improve the profitability or the efficiency of the trucking industry. The mission is supposed to be truck safety, but you wouldn't know it from what has been going on in recent years," says Anne McCartt, the Institute's senior vice president for research.
About 9 years ago, FMCSA proposed to reduce fatigue-related truck crashes by giving drivers more time off and mandating recorders in truck rigs to monitor driving hours (see "Truck safety in the balance as hours of service are considered," Oct. 21, 2000). This wasn't a perfect proposal, from a safety standpoint, because it would have increased allowable truck driving hours from 10 to 12 per day. The idea was to offset the increase by mandating the other 12 hours per day off-duty and then using the recorders to enforce the rules. Previously, truckers only had to take 8 hours off before going back on the road.
At the time, the Institute called the proposal a "reasonable compromise" because it held the promise of improving truck safety without undermining the business interests of motor carriers. The carriers had been pressuring FMCSA to relax work-hour rules and reject electronic recorders to monitor driving time.
What the Institute and others didn't know in 2000 was that the proposal to change truckers' work hours and require recorders would mark the zenith of FMCSA's safety efforts for years to come. The agency's work-hour proposal never made it into the federal rulebook, and every action since 2000 has turned FMCSA's safety mission on its ear. Six actions stand out.
- In April 2003, a work-hour rule was unveiled that allows truck drivers to stay on the road for 28 percent longer per week than previously had been allowed (see "New work-hour rules for truckers won't improve safety," June 16, 2003). At the same time, FMCSA dropped the recorder mandate.
- In July 2004, the U.S. Court of Appeals for the District of Columbia rejected the 2003 work rule, telling FMCSA that it "does not even acknowledge, much less justify," its action to increase the maximum permissible hours drivers may work. The agency didn't respond by substantially changing the work rule, though (see "Try again on rules on truck driving hours, appeals court tells FMSCA," Aug. 1, 2004). It didn't reduce driving hours or require electronic recorders. Instead, Congress intervened to keep the controversial 2003 rule on the books for the time being.
- In August 2005, FMCSA came up with a new rule that still didn't reduce truck driving hours or require recorders. The same U.S. Court of Appeals rejected this rule, just like the previous one. In issuing the rebuke, the court said the agency "failed to provide an explanation for critical elements" of the methodology it relied on to justify the rule. The court explicitly refused to "supply a reasoned basis for the agency's actions that the agency itself has not given" (see "For the 2nd time, federal court tells FMCSA it failed," Oct. 13, 2007).
- In December 2007, an interim work-hour rule left intact the major provisions of the rules FMCSA issued in 2003 and 2005.
- In November 2008, FMCSA finalized the interim rule from the year before, saying the provisions offer "operational flexibility" and don't "decrease safety." Thus, the agency explicitly ignored the direction of Congress to improve safety.
- In January 2009, FMCSA turned down an Institute petition to reconsider the work-hour rule. In support of this petition, the Institute submitted point-by-point rebuttals of FMCSA's rationale of the rule and questioned the agency's basic premise that driving 11 consecutive hours poses no more risk than driving 10.
"Of course it poses more risk," McCartt says. "It's obvious that you're not going to reduce crashes caused by truck driver fatigue by letting truckers spend more time on the road. Yet this is what the rule does. It allows truckers to drive 25 percent more each year than was allowed under the rule that was on the books until 2003."
In rejecting the Institute's petition, FMCSA said it had "found no data to suggest that crashes and, more specifically, fatigue-related crashes have increased significantly." The agency conceded it "does not claim there is no increase in risk" associated with its work-hour rule, compared with the old rule, but said the risk "is moderate in light of the benefits of allowing" truckers to work longer hours.
Truck driving rules, final and proposed
||before 2003 work rule
||2003 work rule
|daily driving limit
|daily work limit
|monitoring and enforcement
McCartt rejoins that "accepting a moderate increase in risk isn't the same as decreasing the risk, which is what Congress told the agency to do back in 1995."
Throughout these back-and-forth attempts to get FMCSA to honor the 1995 congressional directive, the Institute and others have catalogued the safety consequences of the agency's actions. Of particular interest are Institute surveys of truck drivers conducted since 2003, before the controversial work-hour rule took effect in January 2004.
Nearly 1 of every 5 truckers surveyed in 2005 reported driving more per day than before 2004. The proportion who reported falling asleep at the wheel at least once in the past month increased from about 13 percent in 2003 to 21 percent in 2005.
The Institute told the U.S. Court of Appeals for the District of Columbia in 2006 that FMCSA's "indifference to reports of drivers actually dozing while at the wheel speaks for itself" — and it still does.
This agency needs a push
The mindset of U.S. truck safety regulators "isn't to reduce crashes involving truck driver fatigue. That much, if nothing else, is clear from FMCSA's last 8 or 9 years of bobbing and weaving to avoid addressing this problem," says Institute president Adrian Lund. "The only way we're going to see anything different is if someone higher up than this agency's staff decides it's time to change course and reduce crashes involving fatigue."
Ten years ago, a proposal surfaced to move the Federal Motor Carrier Safety Administration's predecessor agency, the Office of Motor Carrier Safety, from the purview of the Federal Highway Administration to the National Highway Traffic Safety Administration. That idea didn't fly, but the effort did result in establishment of an independent agency within the U.S. Department of Transportation to oversee truck safety.
"It doesn't matter where in the department this function is situated," Lund says. "What matters is whether regulators want to serve safety by reducing truck crashes or whether they want to keep on considering about 5,000 deaths a year in truck crashes a reasonable toll to accommodate the economic interests of the trucking industry. There's no evidence the agency will fulfill its safety mission on its own."