Stuck on hold

When the new Hours of Service (HOS) regulations went into place in January of this year, there was much hand-wringing about what changes the logistics industry and shippers would have to put in place to accommodate the new rules. By mid-summer, though, it became apparent that the capacity constraints brought on by too few trucks to meet the demands of a recovering economy, as well as higher fuel and insurance costs, were a much more pressing concern to shippers than the new HOS rules. After a few months, everything seemed to have settled in.

That all changed, of course, when the U.S. Court of Appeals decided that the author of the new rules — the Federal Motor Carriers Safety Administration (FMCSA) — had done an inadequate job of addressing driver fatigue in its new rules and threw the whole set of regulations out... sort of. The new rules, the court decided, would stay in place for at least 45 days, pending the FMCSA's decision whether to appeal the ruling or not.

On that 45th day, the FMCSA finally responded to the Court, when it filed a motion requesting a stay of at least six months that would leave the current HOS rules in play, and provide sufficient time to address and correct the Court's concerns about the rules. The Court had determined that the FMCSA's justification for raising driving time from 10 hours per day to 11 was "arbitrary and capricious" since the new rules were supposed to relieve driver fatigue, not exacerbate it.

"After consultations with Federal and State officials, the FMCSA believes a stay is necessary to avoid substantial disruption in the enforcement of HOS requirements, as it remains unclear as to what safety regime would emerge," says Annette Sandberg, administrator of the FMCSA. "Changing rules would produce a potentially uncertain and problematic patchwork of enforcement obligations, thereby causing significant confusion and substantially hampered enforcement." Perhaps as an expression of good faith, the FMCSA also launched the first phase of a information-gathering process aimed at identifying the costs and benefits of electronic on-board recorders. The Court had questioned why the FMCSA had not already done so when it struck down the new rules.

Public Citizen, the politically motivated safety advocacy group, didn't like the prospects of an indefinite stay so it reacted by filing a brief with the Court asking that the stay be denied. For Public Citizen, along with other groups such as Parents Against Tired Truckers and Citizens for Reliable and Safe Highways (CRASH), the fewer hours truck drivers are on the road, the better.

These groups believe granting a six-month stay would only put the public — or at least, the public that has to share roads with truck drivers — at risk. Public Citizen has also hinted that the FMCSA is trying to stall for time so it can more effectively appeal the Court's original decision.

In the most recent development, the FMCSA countered that the Court never actually said the new rules were much worse than the old rules — the objection was simply due to the FMCSA's failure to adequately consider driver health in the new rules. Considering the vehemence with which the Court struck down the new rules just a few months ago, that strategy probably won't win the FMCSA any new friends on the Court of Appeals.

In any event, we're now in limbo since the Court is under no deadline to rule on the case.

Speaking to a group of seasoned logistics professionals recently, I asked the audience point-blank if any of them understood where we stood now with the Hours of Service situation; nobody raised their hand. "That makes me feel better," I told them, "because I don't understand it either."

So far, in the short term, the FMCSA's strategy of delay seems to be working in favor of the shippers, who have plenty of other logistics challenges to deal with at the moment.

Looking long term, though, since the Court has already outright rejected the new rules once, there's no reason to think it won't do so again and order everybody back to the old rules. As we suggested here earlier, it's entirely possible the Court may just wait till after the elections — and better still, after peak shipping season — before it makes its decision.

Make no mistake, the new rules are doomed, and the FMCSA will have to factor in the Public Citizen element when it prepares its revision. Whether the Court allows the current set of rules to stand during the revision process or whether we backstep to the old rules, inevitably we'll get to break in yet another set of rules at some point in the not-too-distant future. So don't get too comfortable.

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