FMCSA submits 8,000 comments in HOS lawsuit

The Federal Motor Carrier Safety Administration submitted the more than 8,000 comments it received during the rulemaking process as part of its defense to a lawsuit challenging the agency’s changes to the hours-of-service regulations.

The comments, many of which were from truck drivers requesting more flexibility in the regulations, were submitted on Nov. 9 to the U.S. Court of Appeals for the District of Columbia Circuit.

In September, the International Brotherhood of Teamsters and a coalition of safety groups filed a lawsuit against FMCSA. The lawsuit will look at whether the agency had the authority to issue the final rule and whether or not the regulation is “arbitrary, capricious or otherwise contrary to law.”

FMCSA’s final rule on hours of service, which aimed to provide drivers more flexibility, took effect on Sept. 29. The Teamsters, Advocates for Highway and Auto Safety, Citizens for Reliable and Safe Highways, and Parents Against Tired Truckers have called the changes “flawed” and filed a petition for reconsideration in June. After those petitions were denied, the groups filed a petition for review in the D.C. Circuit on Sept. 16.

“Under the guise of increased flexibility, the changes will further exacerbate the already well-known threat of fatigue among commercial motor vehicle drivers by significantly weakening current hours-of-service rules,” the groups said in a news release.

The agency’s final hours of service rule includes four major changes.

• The on-duty limits for short-haul operations will increase from 12 to 14 hours and from 100 air-miles to 150.
• The adverse driving provision will extend the driving window two hours if the driver encounters adverse driving conditions. In the final rule, the definition of “adverse driving” was modified so that the exception may be applied based on the driver’s (in addition to the dispatcher’s) knowledge of the conditions after being dispatched.
• In addition to splits of 10/0 and 8/2, drivers will be allowed a split-sleeper option of 7/3. Also, the qualifying period doesn’t count against the 14-hour window.
• The 30-minute break provision will be modified to require the break after eight hours of driving time (instead of on-duty time) and allows an on-duty/not driving period to qualify as the required break.

FMCSA’s move toward the rule changes lasted more than two years. The agency issued an advance notice of proposed rulemaking in August 2018. FMCSA conducted several listening sessions and received more than 8,000 comments from the public before releasing the final rule.

Many of the comments stressed that the previous hours-of-service regulations combined with the electronic logging mandate created a “beat the clock” mentality that decreased safety.

“Thank you for this opportunity to have a voice concerning HOS regulations,” wrote Daniel Byler. “What we need as drivers and fleet owners is simply more flexibility.”

“Electronic logging actually makes driving more dangerous to both drivers and other vehicles on the road,” Michael Kemley wrote. “Once a clock is started, then the driver has no other option.”

OOIDA to serve as intervenor

The Owner-Operator Independent Drivers Association has been supportive of the rule changes, saying that the modifications will provide truckers more opportunities to rest when they are tired and improve highway safety overall.

On Oct. 16, OOIDA filed a motion for leave to intervene in support of FMCSA. That motion was approved by the court on Nov. 10.

“The hours-of-service rules directly impact OOIDA’s members,” the Association wrote in the motion. “It governs the management of their businesses, controls their working conditions and affects their daily lives. The changes to the hours-of-service rules … have significantly and positively impacted the interests of OOIDA’s members.

“OOIDA’s intervention in support of (the hours-of-service final rule) will address the legal and factual questions raised by petitioners.” LL