By Cindy Skrzycki
Tuesday, May 10, 2005

There is no middle of the road on the issue of how many hours truckers should be behind the wheel. Highway safety groups want a federal rule that mandates less driving and more rest; the trucking industry wants more driving -- and more rest -- just as the latest rule allows.

So when the Transportation Department's Federal Motor Carrier Safety Administration issued a new rule in April 2003 lengthening the amount of time truckers could be on the road, highway safety groups and those representing victims of truck-related accidents challenged it in court. And they won. Or so they thought.

The U.S. Court of Appeals for the District of Columbia last July ordered the department to try again because it hadn't considered the effect of the changes in hours on the health of truck drivers.

The rule increased daily driving time to 11 hours from 10. Rest time was increased to 10 hours from eight, and the rule allowed split sleeping shifts in truck berths, as well as work periods that could stretch over more than 80 hours. The rule also shortened the daily shift from 15 hours to 14 hours -- 11 hours of driving and then other kinds of work.

"The FMCSA points to nothing in the agency's extensive deliberations establishing that it considered the statutorily mandated factor of drivers' health in the slightest," the D.C. Circuit opinion said. The court criticized the agency for failing to make electronic onboard recorders mandatory, for allowing truckers to split their sleep time in sleeping berths, and for a "restart" scheduling provision that left drivers on the road for longer periods than the old rule.

The Bush administration got permission from Congress to keep the old rule in effect until this Sept. 30, while it worked on a new rule, as ordered by the court. The FMCSA released a proposal in January. And in an unusual move, the Bush administration also is attempting to insert language in the pending highway bills that would have the effect of negating the court decision and codifying the 2003 rule. One amendment the administration offered suggests adding language stating that the April 2003 rule "is adopted and confirmed as fully legalized" as it was originally issued.

"This would be their insurance policy, their immunization against not having to issue a rule," said Jacqueline Gillan , vice president of Advocates for Highway and Auto Safety . "This would be their get-out-of-jail card."

The administration also wants Congress to pass separate legislation that would remove FMCSA' s current obligation to consider the health effects of any of its rules on drivers.

An administration official, who would speak only with a promise of anonymity, said, "What we hear from industry and rank-and-file drivers is they like [the 2003 rule] and it seems to be working."

Rep. James L. Oberstar (D-Minn.), chief minority member of the House Transportation and Infrastructure Committee, said the administration is "shirking its responsibility in not heeding the court's order. They have a responsibility to reconsider the rule. Get with it."

For the trucking industry, codifying the rule would be welcome certainty.

"The industry is operating as safe or a little more safely under this [2003] rule. The drivers are getting more rest and companies are getting the work done," said David Osiecki , the American Trucking Associations' vice president for safety policy and operations. He said invalidating the 2003 rule would be costly in terms of training and operating schedules.

The National Highway Traffic Safety Administration projects that when its compilation of 2004 highway fatalities is complete, there will be 5,169 truck-related deaths, a 3.7 percent increase from the 4,986 reported in 2003.

Osiecki said those numbers have to be considered in the context of the number of miles traveled from year to year. ATA reports from member companies show a slight decline in the number of truck accidents from 2003 to 2004, despite an increase in the number of miles traveled by more trucks. "From our data collection, things are not getting any worse, but a little better in terms of truck safety," Osiecki said.

Ronald Uriah , vice president of safety at Pitt Ohio Express in Pittsburgh, said the 2003 rule has worked for his company and its 1,400 drivers. "The new rule is fine. It's working better than expected," Uriah said. "Our accident frequency and driver quality of life have improved."

Uriah said no rule can mandate that a driver rest, adding that from his experience the most fatigue among drivers is on Monday morning after a weekend off. But he said a company can create a culture where safety is a priority.

Some drivers take a different view. Roger Johnson , who works for Con-Way Southern Express , complained in comments he filed on the 2003 rule that he is working longer hours since the rule went into effect.

Johnson said in an interview that he used to make his 500-mile-a-day run and go home after about 12 hours. Now, he said, he is expected to complete his 14-hour shift on the dock or anywhere the company has work for him. "It's more abuse of drivers than there has ever been," he said. "Most of us are spent when we get off our runs."

Phil Vance , who has been driving a truck for 12 years, has begun a petition drive against the rule and says he has more than 1,000 signatures. "This rule has nothing to do with safety. It's economics," Vance said. "This many drivers can't be wrong."

In testimony last month before the Senate Commerce, Science and Transportation surface transportation subcommittee, FMCSA administrator Annette M. Sandberg said the agency will meet the Sept. 30 deadline to issue a new rule. But she warned that the new version, like the old one, will not please everyone. "I am concerned that the revised rule will open the agency and the department to the same kinds of legal challenges we have experienced already," she said, asking the committee to make the 2003 rule permanent.