Now what?

Now what?

The new Hours of Service regulations that went into effect on January 4, 2004 — after several contentious years of debate — were struck down by the U.S. Court of Appeals (District of Columbia Circuit) on July 16. The Court sent the case back to the Federal Motor Carrier Safety Administration (FMCSA) (www.fmcsa.dot.gov) for review.

analysis

The FMCSA can petition for a rehearing within 45 days, and in the meantime the new HOS remain in effect.

Although Annette Sandberg, administrator of the FMCSA, was quick to reassure the industry that for now everything remains unchanged, the status quo won't last long. The agency needs to quickly decide what course it intends to take — whether to appeal to the Court of Appeals, appeal to the U.S. Supreme Court, or even forego the appeals process entirely (see sidebar below, “What happens next?”). Given that the Court of Appeals found the new rules to be “arbitrary and capricious,” it appears unlikely that the new HOS could be reinstated in their entirety even should the FMCSA win on appeal.

In striking down the HOS rules, the Court of Appeals agreed with the petitions by three non-profit safety advocacy groups — Public Citizen, Parents Against Tired Truckers (PATT) and Citizens for Reliable And Safe Highways (CRASH) — that the rules did not adequately address truck driver fatigue. The decision is somewhat ironic given that the FMCSA's first HOS proposal in 2000 was criticized by shippers and carriers as going too far in addressing safety over other industry concerns.

According to Bonnie Robin-Vergeer, the lawyer who represented the three safety advocacy groups, “The new rules that went into effect and were struck down are terrible from a truck safety standpoint. They significantly increase the amount of hours the drivers could drive — both consecutively and weekly — and there are no countervailing benefits to offset the significant increased risk for driving those longer hours.”

The new rules raised driving time from 10 hours to 11 hours, while reducing on-duty hours in a day from 15 total hours (not counting off-duty breaks) to 14 consecutive hours (including breaks).

“There's no limit now on the number of hours a driver can be on duty in a row,” Robin-Vergeer points out. “The driver can be on duty for 24 hours in a row — he can't drive once he passes the 14-hour point, but drivers spend a lot of time waiting at docks during loading and unloading, and while that's not driving time it can significantly lengthen the day for the truck driver. So that driver who may not be allowed to drive after 14 hours might still be working an 18-hour day and be exhausted. And if drivers are not well rested, then not only are the drivers at risk but everyone who shares the road with the drivers is at risk as well.”

The FMCSA was created by statute in 1999 to address precisely issues of driver fatigue and highway safety, and therein lies the problem — the Court of Appeals agreed with the three petitioning safety groups that the agency failed to “consider the impact of the rule on ‘the physical condition of the operators,' not simply the impact of driver health on commercial motor vehicle safety.”

In point of fact, the FMCSA has considered thousands of opinions over the past five years. Its first try at revising the long-standing HOS was widely seen as a disaster by the logistics industry, leading to so many objections that the FMCSA ultimately decided to go back to the drawing board. The new HOS rules, which were passed in April 2003 and went into effect at the beginning of this year, were generally considered a workable compromise — acknowledging the economic realities of shippers and carriers while creating a safer working environment for the drivers.

The Court of Appeals, however, did not agree with the compromise nature of the new HOS, agreeing with the petitioners that letting the drivers spend an extra hour a day on the road, without explaining adequately how more time behind the wheel could possibly lessen driver fatigue, is a bad idea.

Although the FMCSA commissioned a 248-page “regulatory impact analysis” on the impact of the HOS and cited numerous studies as justification for its new rules, the Court of Appeals basically rejected the entire premise of the FMCSA's research. “The agency cited absolutely no studies in support of its notion that the decrease in daily driving-eligible tour of duty from 15 to 14 hours will compensate for [the] conceded and documented ill effects from the increase,” the Court found. The Court also questioned the FMCSA's reasoning for a sleeper-berth exception, a 34-hour restart and not requiring the adoption of electronic onboard recorders.

So what does it all mean for the logistics industry? Unfortunately, it's probably too soon to say. According to James Valentine, an analyst with equity research firm Morgan Stanley (www.morganstanley.com), “It is our understanding that trucking companies will continue to operate under the recently implemented HOS rules until the issue reaches a final decision pending more appeals (which could take months if not years).”

NASSTRAC (www.nasstrac.org), a trade association for shippers, issued the statement, “If there is a remand to FMCSA for further proceedings, NASSTRAC will continue to oppose excessively restrictive regulations on driver working hours that do more harm than good.” The organization points out that throughout the period when the new HOS rules were being considered, “The trucking industry's safety record was good, and getting better.”

The National Industrial Transportation League (www.nitl.org), a trade association for shippers and carriers, is currently reviewing the decision and awaiting the outcome, notes John Ficker, president and CEO of NITL. “The carriers have spent a lot of time and money altering technology — such as dispatching systems and the systems that control the operations of the trucking lines — to adapt to the new rules. And now all of a sudden if they're changed, there's going to be a scramble beyond belief.” The bottom line, according to Ficker, is everybody will have to “stay tuned.” LT

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August, 2004

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Hours of Service rules struck down by Court of AppealsHours of Service rules struck down by Court of Appeals

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