Well, it was nice while it lasted — at least this time, the Federal Motor Carrier Safety Administration (www.fmcsa.dot.gov) managed to get a new version of the decades-old Hours of Service (HOS) regulations enacted and in play for more than six months. The last time the agency tried, back in 2000, it didn't even get that far. In fact, this political hot potato has been tossed around for decades since somebody always finds something in its many proposed iterations to object to.
It did look, though, for one brief moment, like the logistics industry had found a workable compromise that, while far from perfect, would allow shippers, carriers and truck drivers to concentrate on moving goods rather than poring through court decisions. Nope.
A few weeks prior to the U.S. Court of Appeals' slamdunk rebuke of the FMCSA's rule making process, I moderated a panel on Hours of Service at the Logistics and Supply Chain Forum, featuring prominent executives from both shippers and carriers. We addressed the main reasons for the new rules — better driving conditions, better sleep patterns for truck drivers, and a reduction in accidents and fatalities. We all spoke of the tradeoff the industry was learning to live with — a projected 12-19% loss of productivity and significantly higher rates, balanced against a reduction in driver fatigue and safer highways.
None of us on the panel, nor any of the attendees in the auditorium, even raised the possibility that our panel discussion was destined to be, as the Bard once said, “full of sound and fury, signifying nothing.” Within weeks, the fledgling HOS rules were shot down with ominous vigor by the Court.
The inescapable conclusion, now that the smoke is beginning to clear, is that the logistics industry never really gave much consideration to the possibility that the HOS would be vacated. We just didn't see it coming, even though the groups petitioning the repeal of the new HOS were hardly unknown quantities. Quite the contrary — they were on the record more than a year ago as vehemently opposed to the rules on the grounds that they did not actually shorten a truck driver's time behind the wheel; in fact, the new rules gave them an extra hour of drive time.
Or maybe we assumed that the Court would recognize the political bent of Public Citizen (www.citizen.org), the lead petitioner, as a left-of-center advocacy group founded by Ralph Nader and governed by two of the most liberal members of Congress in recent memory — former Senator Howard Metzenbaum (D-Ohio) and former Congressman David Bonior (D-Mich.). Maybe we figured the Court would listen politely to Public Citizen's arguments and then ultimately dismiss the case quietly. Nope.
Sometimes I wonder if we'll ever see a set of Hours of Service (HOS) regulations that everybody in the industry can accept as a compromise. Created in 1999 for the express purpose of revising the original HOS, the FMCSA has yet to come up with rules that will appease every political faction and interest group — and who knows if such a thing is even possible these days?
While the FMCSA mulls its options, the new HOS remain in effect, and with appeals and extensions we could see that status quo last at least through the peak shipping season. Frankly, I don't see any doomsday scenarios playing out. We lived with the old HOS for more than 60 years, so if we end up reverting to them for a period of time, we know how to cope.
The Court of Appeals made it quite clear that the FMCSA has its work cut out overhauling its latest HOS, and unless the Supreme Court does the extraordinary — overruling the Court of Appeals and letting the current rules stand — we're likely looking at another year or two before we see a freshly revised HOS. And if John Kerry defeats George W. Bush for the U.S. Presidency this fall, the whole political climate will no doubt change yet again.
My youngest daughter is seven right now; my hope is that by the time she's old enough to vote, we might have finally come up with Hours of Service regulations that everyone can learn to live with.
If nothing else, the timing of the Court's decision gave us an opportunity to demonstrate the effectiveness of the daily news feature on our website. The news broke on a Friday afternoon, about the time most publications had already shut down for the day. We were able to get the news posted to our website within hours of the Court's decision, and then issued a special edition of our News & Views electronic newsletter alerting subscribers that their world was about to get turned upside down.
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