In typical bureaucratic fashion the Federal Motor Carrier Safety Administration never met a problem it couldn't solve with additional regulations. Once they've determined what the solution is it's published as a Notice of Proposed Rulemaking. Then the trucking industry responds, mostly with reasons why all or part of the proposal is flawed. Finally, after FMCSA has digested all of the comments and formulated a response, the Final Rule is published. On a certain date it becomes effective and that is the end. Several years ago this would have been the last sentence of this article. But times have changed.

This time honored system was changed dramatically when Public Citizen and others challenged the hours of service. When they were rebuffed by FMCSA they sought the help of the court system, and they prevailed. Thus began the multi-year revolving door challenge that finally resulted in a negotiated settlement. Hopefully within the next month FMCSA will unveil the "new" hours of service proposal.

Last month a Federal Appeals Court overturned the Electronic On Board Recorder regulation mandating recorders for carriers with Hours of Service violation problems. This was due to take effect in June, 2012.
The plaintiffs were the Owner Operator Independent Drivers Association and three drivers. They felt that EOBR's would allow a carrier to force a driver to work or drive up to the maximum even if he/she felt fatigued and wanted to rest.

According to the court: "The Agency (FMCSA) needs to consider what types of harassment already exist, how frequently and to what extent harassment happens, and how an electronic device capable of contemporaneous transmission of information to a motor carrier will guard against (or fail to guard against) harassment."

It's interesting that a device designed to monitor adherence to the hours of service could be construed as being a negative. But that's exactly the argument that was presented in court and the court agreed.

This decision was no small matter. It may take several years to formulate a new regulation that meets the court's expectations. There will be a corresponding delay for the next EOBR regulation mandating installation in all trucks.

So, how are federal safety regulations formulated?

At this point it's out with the old model and enter the new standard: regulation by court order.

Don't forget that ATA has stated that it may challenge the new Hours of Service regulation if the number of driving hours is decreased. Their argument in court will be that safety statistics and scientific studies don't conclude that retaining the 11th hour of driving decreases safety.

Admittedly these are high stakes regulations which go right to the heart of safe operation. Other regulations may not draw so much attention. But you never know. All it takes is one person who wants to press their safety agenda and a sympathetic court. Enter the age of regulation by court order.