WASHINGTON - The Federal Motor Carrier Safety Administration is weighing its options in the wake of a stunning appeals court decision that trashed the new hours-of-service rules for truckers.
The United States Court of Appeals for the District of Columbia issued an order last month vacating the rules the FMCSA put into place just eight months ago.
While the court said the rules were arbitrary and capricious and should be revised, the decision is not immediately effective. The rules will remain in effect until the FMCSA chooses what legal or administrative route it intends to pursue.
The agency has a number of options, including seeking a rehearing from the appeals court that handed down the ruling, appealing to the U.S. Supreme Court, and requesting a stay from the Supreme Court as part of an appeal.
If any of the legal maneuvers fail, the FMCSA must start a new rulemaking process. It has 45 days to respond to the court ruling.
Or, the agency could simply decide not to appeal the decision and initiate a new hours-of-service rulemaking.
The $64 question, however, is what rules will be in effect during the time needed to complete a new rulemaking - the old or the new? The consensus among regulatory attorneys appears to be that the old rules would prevail.
That possibility has state regulators, enforcement agencies and the trucking industry in an uproar. The Commercial Vehicle Safety Alliance, which is composed of organizations that enforce the rules, has announced it may petition the court to keep the new rules in effect during the redrafting process.
And, the American Trucking Associations said it would encourage the FMCSA to seek a stay to minimize the confusion, as well as adverse safety consequences, that would result from putting the old HOS rules back in place for some interim period.
In its decision, the appeals court said it was vacating the rules because the FMCSA failed to consider the effect of the rules on drivers' health.
The new rules increased the number of hours a trucker can drive in a single workday to 11 from 10, and cut the total workday, including time spent on work-related but non-driving activities, to 14 hours from 15. The mandatory rest period was increased from 8 to 10 hours.
Since the rules went into effect in January, DOT has adopted a "soft enforcement" approach to compliance, as drivers grappled with increased parking problems and driving pressures associated with the new time constraints.
While the turmoil over the court decision does not directly impact the motorcoach industry, it does create uncertainty about the future of hours-of-service rules for all commercial vehicle drivers, and that is not good.
When the FMCSA announced in April 2003 its overhauled hours-of-service rules, it decided for the first time to establish separate rules for bus and truck drivers. The rules for bus drivers were left unchanged, while those for truckers were revamped.
When the FMCSA made the announcement, it was considered a major victory for the over-the-road bus industry. It was seen as an acknowledgement by regulators that there were fundamental differences between hauling people and trucking potatoes.
Two factors would seem to suggest the motorcoach industry might avoid being dragged into the maelstrom over revising the hours' rules. First, it would be difficult for the FMCSA to reverse the position it took in April 2003, vis-a-vis the over-the-road bus industry when it announced the changes for truckers.
Second, the lawsuit that led to last month's decision did not take issue with the FMCSA decision to exclude the coach industry from the revised rules for truckers.
On the other hand, one of the key concerns expressed by the court in its ruling was that the FMCSA ignored research indicating driver performance degrades dramatically in the 10th and 11th hours of driving. The court said the agency did not submit any studies indicating that the decrease in total work time for truckers affected that drop in performance.
The current hours-of-service rules for bus drivers allow them to drive 10 consecutive hours, a length of time that worries the court.
The decision to overturn the rules was based on the court's view that FMCSA had not fulfilled a 1935 statutory mandate to consider "the impact of the rule on the health of drivers." The court said 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 on the agency to affirmatively address those issues and explain its conclusions.
Some analysts say the agency's failure to expressly consider driver health consequences is more of a technicality than a significant flaw in the rules. These observers hope the agency will be able to show that the fatigue-reducing measures in the new rules will also have a beneficial effect on driver health.
There was speculation the decision by the U.S. court could delay the announcement of new hours-of-service rules in Canada. The Ottawa government has been working for months to overhaul Canada's commercial vehicle hours-of-service rules and an announcement was expected this month.