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HOS rule could wind up in Congress' lap, FMCSA administrator says

NEWPORT, Ark. — The Hours of Service rulemaking process could easily wind up in Congress, the head of the Federal Motor Carrier Safety Administration says.

Administrator John Hill made the comment during a wide-ranging interview with The Trucker recently following the announcement of a grant to the Arkansas State University Driver Training School here.

Issuance of a final rule on HOS is on Hill’s agenda before his term ends next January.

He said he’d had a briefing on the progress of writing the final rule, which is scheduled to be presented to Secretary of Transportation Mary E. Peters no later than Aug. 1 and scheduled for public release no later than Dec. 12.

“I know how many comments there have been. I know whether they are substantive or anecdotal comments; I can tell you we got a lot of information that we’ve seen before, but we’re going to be looking at everything that’s said and be very thorough on our analysis and make sure we carefully examine every comment that’s made to the docket,” he said.

The new HOS rule, when published, will be the third version since 2003.

In response to a lawsuit, the first version was struck down by a federal appeals court in 2004 and a new rule published in 2005.

More litigation ensued, and the same court overturned the 2005 rule in mid 2007.

Late last year, FMCSA issued a Final Interim Rule, which was virtually identical to the 2005 rule.

One of the regulations in the 2005 and Interim Final Rule that has brought about the most comment in print and in chat rooms has been the sleeper berth provision that requires a driver to be in the sleeper eight consecutive hours, plus two consecutive hours either in the sleeper berth, off-duty or a combination of the two.

That also marked the only major change between the 2005 and 2003 rule, which said that drivers using a sleeper berth must take 10 hours off-duty, but could split sleeper-berth time into two periods provided neither was less than two hours.

But Hill was not ready to say the sleeper berth provision is the most hotly-debated part of the current rule. “There are a lot of people who think the 11 hours are controversial and there are people who say the 34-hour restart is controversial, so I think this rule is going to be litigated regardless of how it comes out,” he said.

And what might happen then, other than more court action?

“I think that it’s possible that people will become so weary of the uncertainty that there could be a push for Congressional action,” he said. “This is a big industry. It affects a lot of peoples’ lives. There is constriction in the marketplace right now. There is a shortage of drivers. If we see our economy start picking up again next year — and I think we will — we’re going to have a constraint on drivers [and] transportation costs are going to go through the roof.”

Hill said critics will point to the rule as being too liberal and doesn’t provide enough time for rest while some industry people think the rule has cut out anywhere between 5 percent and 12 percent of former driving time because of the increased time off for rest.

“My point is [that] someone is going to be arguing, regardless of how this rule comes out; they are going to be unhappy,” he said, “and I’m confident that there will be a lawsuit filed, regardless of who gets what they want out of this rule or perceive they get what they want out of this rule.”

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