Hours of Service 2005: The adventure continues

Sept. 16, 2005
Shippers and carriers collectively heaved a huge sigh of relief when the Federal Motor Carrier Safety Administration ( FMCSA) unveiled its 2005 revision

Shippers and carriers collectively heaved a huge sigh of relief when the Federal Motor Carrier Safety Administration ( FMCSA) unveiled its 2005 revision of the Hours of Service (HOS) regulations for truck drivers. The much dreaded complete overhaul of the HOS rules never materialized, and while over-the-road carriers took a modest hit on the former sleeper berth provision, short-haul carriers picked up an unexpected gift to the tune of up to four extra hours per week.

The downside to the early Christmas gift from the FMCSA is that the HOS rules almost certainly will be challenged again in court, and it's currently unclear whether the FMCSA adequately addressed the areas that got the 2003 rules tossed out in the first place.

The new rule takes effect on October 1, 2005, with a three-month phasingin period.

The only change from the 2003 rules that will immediately affect shippers is the elimination of the sleeper berth split. Where previously drivers using a sleeper berth could divide their sleep time into two periods of at least two hours' duration, the 2005 rules require at least eight consecutive hours in the berth.

The sleeper berth change probably won't have any impact at all for less-thantruckload (LTL) drivers, but could somewhat reduce truckload driver productivity, according to analysts Chad Bruso and James Valentine of Morgan Stanley (www.morganstanley.com). All told, though, the two analysts "do not believe the new regulations will materially impact the profitability of most truckers."

The only other major revision to the HOS rules is that short-haul drivers operating within a 150-mile radius who do not require a Commercial Driver's License (CDL) will be able to extend their hours from 14 hours to 16 hours for two days out of every seven.

Predictably, Public Citizen (www.publiccitizen.org), the political action group that successfully challenged the 2003 rules in court and got them thrown out by the U.S. Court of Appeals, was far from pleased with the 2005 revision. Characterizing the new rules as "a disappointment," Joan Claybrook, president of the organization, has asked the FMCSA to redraft the rule to better address the issues of driver fatigue and safety.

Jim Hoffa, president of the International-Brotherhood of Teamsters (www.teamster.org), was much more acerbic in his comments. "This proposed rule is yet another outrageous power grab by ruthless companies," he says. "Some greedy employers are trying to squeeze drivers to enrich their bottom line at the expense of public safety on America's highways."

One of the "greedy employers" Hoffa singles out is retail giant Wal-Mart Stores Inc., which operates the secondbiggest private fleet in the U.S. (after food distributor Sysco Corp.). Implied in his statement is his belief that the FMCSA "did Wal-Mart's bidding" by preserving most of the 2003 HOS rules.

Ironically, though Wal-Mart is notoriously anti-union, Hoffa's claims are likely to fall on deaf ears among Wal-Mart's drivers. According to Jim O'Neal, second vice chairman of the Truckload Carriers Association, "Wal-Mart enjoys a 4% annual rate of driver turnover," a remarkably low rate. The reason for that, O'Neal says, is simple: Wal-Mart pays its drivers an average of $72,000 per year.

The FMCSA has a "take it or leave it" attitude in its 2005 revision which is likely to raise some eyebrows at the Court of Appeals. Consider the issue of electronic on-board recorders ( EOBRs). In its decision to reject the 2003 rules, the Court explicitly chides the FMCSA for writing an "arbitrary and capricious" document. The Court wrote: "The agency [FMCSA] concedes that it 'did not test the (very few) EOBRs currently available.' The agency offers no excuse for not doing so, and we can think of none that would suffice to fulfill the agency's duty to 'deal with' the issue of EOBRs."

Nevertheless, the FMCSA deferred any decision on the devices until next year. Characterizing the cost issues, rule development and technical specifications for EOBRs as "a highly complex endeavor," the FMCSA plans instead to issue a separate rule-making on the devices in early 2006, notes Annette Sandberg, administrator of the FMCSA.

Rather than directly addressing deficiencies of the 2003 rules regarding driver health — the reason the Court tossed out the rules — the FMCSA opted to emphasize how thoroughly it consulted relevant research ("more than 1,000 health-related research articles and dozens of fatigue-related studies," Sandberg says). Whether that argument is enough to sustain these new rules from further court challenges remains to be seen — don't bet against them ending up in court at some future date.

For a history of the Hours of Service rules, go to www.logisticstoday.com/regulation.

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