Back to the ol' drawing board

"You're acting like a child" is a phrase that's usually meant to be insulting, but sometimes kids come up with concepts so brilliant in their simplicity that it's amazing we don't cling to them into adulthood. Consider, for instance, the pure genius behind the idea of a do over. Whenever competitors aren't sure about the outcome of a play — did the ball land inside the line or outside it? — they agree to just run the play again, as if the first play didn't happen. Brilliant.

In a sense, that's the scenario that's underway now with the truck driver Hours of Service (HOS) regulations. The Federal Motor Carrier Safety Administration (FMCSA) was created by statute in 1999 in part to reconsider the original HOS document, which dated back to the FDR administration. The FMCSA solicited input from the industry on how to create a better document, and reportedly received more than 53,000 comments. Those comments were used to formulate the final rule that was released in April 2003.

You'd think 53,000 would have been a sufficiently big enough number of comments that even a government agency could cover all of its bases, but as it turned out, the FMCSA should've paid more attention to political advocacy group Public Citizen, which petitioned the U.S. Court of Appeals to toss the 2003 revision out on the grounds that the news rules increased the amount of time drivers could drive without explaining how this could possibly make the highways safer.

The Court agreed that the 2003 rules didn't do the job the FMCSA was assigned to do, and after gaining a reprieve from Congress, the agency now has until September 30, 2005, to produce an acceptable set of HOS regulations.

As part of the FMCSA's do over, the agency has issued a notice of proposed rulemaking (NPRM), available on its website (www.fmcsa.dot.gov), which seeks input from shippers, motor carriers, law enforcement officials, safety advocates and just about anybody else with an opinion on HOS. The catch is, the comment period for the NPRM only runs until March 10, which will give the FMCSA a very short window in which to review and analyze all the comments, and then to act upon the appropriate suggestions.

Curiously, the FMCSA still seems to be somewhat in a state of denial about the forcefulness with which the Court struck down the 2003 rules. Consider this curious wording: "This NPRM seeks public comment on what changes, if any, should be made to the April 2003 final rule to address the concerns raised by the [Court]" (emphasis mine).

I asked Dave Longo, spokesman for the FMCSA, if it's possible that the agency will conclude that no changes need to be made at all. "It's way too premature to presuppose what the outcome could be," he says. "We want to let the process take its course, get all the public comment that we can, and see if there's anything that we missed."

According to Longo, the 2003 rules were vacated largely because the Court interpreted the FMCSA's role differently than the agency did. "One of the primary rulings of the Court was that the FMCSA did not address driver health in its formulation of the rule," he notes. "We did address driver health in the 2003 rule within the context of vehicle safety, a point which supported the entire rulemaking process. However, the Court interpreted our statutory mandate more broadly, concluding that highway safety and the physical condition of drivers are substantially different."

As a result, the NPRM seeks specific answers to a whole volume's worth of questions on driver health, looking at things like back problems, noise pollution, prolonged exposure to exhaust gases, increased susceptibility to various forms of cancer, sleep loss and deprivation, and even lifestyle choices.

The FMCSA has done a good job asking the right questions in its NPRM, but the biggest question of all remains unanswered: Whose comments will the agency give the most serious consideration to? If, for instance, the FMCSA bends too far toward satisfying the objections of groups like Public Citizen, it's highly likely that advocates for the motor carriers will raise a big enough stink that the new rules get a collective thumbs-down from the logistics industry (you may recall that the FMCSA's first attempt at HOS was a resounding flop, and that the 2003 rules were in fact themselves a compromise attempting to appease many factions and interests).

So here's your chance (again) to influence the FMCSA as it (again) attempts to create a satisfactory HOS document. You can file your comments in all the usual ways — mail, fax, web or even by hand if you're in the Washington, D.C., area. And let's hope this will be the last of the HOS do overs.

Dave Blanchard, editor-in-chief, [email protected]

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