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Status Report, Vol. 39, No. 7 | August 1, 2004 Subscribe

Try again on rules on truck driving hours, appeals court tells FMSCA

Last January truck drivers began working under new rules governing their driving time. The Federal Motor Carrier Safety Administration (FMCSA) issued the rules after repeated requests over many years, including several by the Institute, to shorten truckers' driving time and require computers in trucks to monitor hours behind the wheel.

The long-delayed rules accomplish neither. They extend driving hours. And after initially proposing to require onboard computers to track the hours, FMCSA backed off and failed to include this in the final standard.

Now FMCSA will have to try again. The U.S. Court of Appeals for the District of Columbia has ruled unanimously that the work-hour standard is "arbitrary and capricious because the agency failed to consider the impact of the rules on the health of drivers." The court noted that FMCSA "does not even acknowledge, much less justify, that the rule ... dramatically increases the maximum permissible hours drivers may work each week."

The ruling responds to a lawsuit filed by Public Citizen that challenged the work rules. The Institute supported the challenge in a brief filed with the court last December.

"Now maybe FMCSA will go back and get it right," says Institute chief operating officer Adrian Lund. "This time the agency needs to remember that the 'S' in FMCSA stands for 'safety.' Then maybe the agency will do what's best for the health of trucker drivers and the safety of everybody on the road instead of looking first to serve the economic interests of the motor carriers."

Protracted rulemaking history

Rules on truck drivers' hours hadn't been substantially changed for more than 40 years when Congress directed truck regulators in 1995 to address "a variety of fatigue-related issues." It wasn't until 2000 that FMCSA responded with proposals for new work-hour rules. Then a three-year delay ensued before the agency issued the final standard, the one now rejected by the court.

The Institute supported several major aspects of the rules FMCSA initially proposed, particularly the plans to extend drivers' rest periods and to require electronic recorders to monitor driving hours (see "Truck safety in the balance as hours of service are considered," Oct. 21, 2000). The Institute didn't support a proposed increase in maximum allowable driving time but said the other proposals could yield a net safety improvement despite allowing longer stretches behind the wheel.

Then FMCSA issued the final rule, which wasn't at all like the proposal (see "New work-hour rules for truckers won't improve safety," June 16, 2003).

"We were surprised by the final rule, to say the least," Lund recalls. "It sure looked like FMCSA caved in to industry lobbying. The agency abandoned virtually all of the proposed provisions that would have enhanced safety and didn't provide any reasons based on science for making this turnaround."

The court said the agency failed to establish a "rational connection between the facts found and the choices made" during the rulemaking process. This disconnect is what led the court to tell FMCSA to go back and try again to justify its actions.

Ruling cites regulatory shortcomings

While stopping short of directing the agency to change specific aspects of the work-hour rules, the court did point to several FMCSA policies that raise what the court termed "troubling concerns." For example, the court said FMCSA "cited absolutely no studies in support of its notion" that changing the total allowable work hours would "compensate for the conceded and documented ill effects from the increase" in daily driving time. The now-vacated rule allows truckers to go an extra hour behind the wheel at a stretch, which FMCSA said was justified by requiring a longer rest period between stretches.

The court criticized the agency's attempted justification for backing off from its proposal to require onboard recorders. FMCSA's attempt reflects "questionable rationality," the court said, adding that it "cannot fathom ... why the agency has not even taken the seemingly obvious step of testing existing [recorders] on the road" to see if they should be required in all truck rigs.

Issue new rules based on science

Lund says "the gap between what FMCSA proposed to require and what it ended up requiring doesn't make sense. The agency gave up on provisions that would have enhanced safety but that weren't acceptable to the trucking industry. Now that FMCSA will have to try again, it's imperative to stick to science-based requirements that improve truck safety instead of degrading it."

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