July 19, 2004 -- The American Trucking Associations has weighed in regarding the overturning of the new HOS rules. The ATA is emphasizing that the Court's decision is not immediately effective. Under the court's rules, FMCSA has 45 days to seek a rehearing and until that time period runs (possibly extended to 52 days or until the court's official opinion ["mandate"] is issued), the decision does not take effect. FMCSA officials have confirmed that point and announced that they will continue enforcing the new HOS rules during that time frame. In addition, under the court's rules, FMCSA may seek a greater delay in the effective date of the decision (for 90 days or more) by asking the court to issue a stay of its decision.”
The ATA will encourage FMCSA to seek such a stay to minimize the confusion (and adverse safety consequences) that would result from putting the old HOS rules back in place for some interim period.
In a prepared statement, the ATA wrote: “The D.C. Circuit's decision to vacate was based upon the court's view that FMCSA had not fulfilled a statutory mandate to consider "the impact of the rule on the health of drivers." The court explained FMCSA may conclude that the new rules do not cause driver health problems or that any such problems are outweighed by other factors (cost issues, etc.) but that it was incumbent upon the agency to affirmatively address those issues and explain its conclusions.
“The agency's failure to expressly consider driver health consequences seems more of a technicality than a significant flaw in the rules. It is hoped the agency will be able to readily show that the fatigue-reducing measures in the new rules will also have a beneficial effect on driver health.
“The court also expressed ‘concerns’ with other aspects of the new HOS rules but specifically refused to enter a ‘final decision’ as to the validity of those provisions. Instead, the court outlined the concerns it had with each provision, explaining specifically its problem with FMCSA's reasoning, justification or scientific support for various elements of the new rules.
“The court raised these types of concerns with respect to the increase of driving time from 10 to 11 hours, retention of the sleeper-berth exception to uninterrupted rest periods; the failure to mandate electronic on-board recorders and the 34-hour restart provision. The court's discussion of its concerns and how those concerns could be alleviated by the agency should provide FMCSA a roadmap for developing better justifications for the choices it made.
“A number of possible procedural alternatives are open to the FMCSA for correcting the deficiencies outlined by the court. ATA will encourage the agency to attempt to keep the new HOS rules in place beyond the initial 45 to 52 day period while it is reconsidering the HOS rules and the rationale for changes it made in the new rules.
“ATA believes that switching back and forth between the old and new rules would be confusing to the point of adversely affecting highway safety. ATA will keep the industry informed about future developments regarding FMCSA's handling of this matter. In the meantime, a hearing before a subcommittee of the House Transportation and Infrastructure Committee regarding how the new HOS rules are impacting highway safety that was scheduled for July 20 has been postponed indefinitely.
“ATA stands ready to support FMCSA in the path it chooses and continues to strongly believe that the new rules, by reducing driver fatigue, have a very positive effect on driver health.” www.truckline.com