Hours of Service Developments
A U.S. court decision earlier this year found fault with the procedures the Federal Motor Carrier Safety Administration followed to adopt new rules — rather than the rules themselves. Today, shippers and carriers are uncertain about how the FMCSA will rule at the end of this year, and should prepare themselves for new legislation.
By John Cutler and Mike Regan
FOR MORE THAN SEVEN YEARS now,
the U.S. Federal Motor Carrier Safety
Administration (FMCSA) has been trying
to come up with hours of service (HOS)
rules for truck drivers that balance the
need for highway safety and the need for
truck transportation services adequate
to meet the United States’ needs. In 2000,
FMCSA proposed rules that pleased safety
advocates but generated overwhelming
opposition from drivers, carriers and
their shipper supporters, including the
National Shippers Strategic Transportation
Council (NASSTRAC).
In 2003 and 2005,FMCSA issued rules that were generally well received by drivers, carriers and shippers (though carriers seek more flexible sleeper berth rules). Unfortunately, both sets of rules were successfully attacked in court by safety advocates even though, as the American Trucking Associations (ATA) point out, safety has improved under these rules. Crash and fatality rates for truckers have fallen even as more freight has been moved.
For four years now, drivers have been allowed to drive 11 hours per 14 hour duty shift, and the duty clock for drivers may be restarted after they have been off duty for 34 consecutive hours. However, a court decision earlier this year found fault with the procedures FMCSA followed in adopting these rules and therefore struck down these two aspects of the rules.
NASSTRAC joined ATA in supporting these rules — and has supported maintaining the status quo while FMCSA addresses the court’s concerns. When ATA asked the court to stay its decision while FMCSA goes back to the drawing board, NASSTRAC promptly filed in support. When ATA asked FMCSA to institute a new rulemaking proceeding on an expedited basis, NASSTRAC wrote to FMCSA to support quick action.
Too often, courts and even regulatory agencies fail to recognize that decisions adversely impacting carrier operations also adversely impact shipper supply chains. This is particularly true in today’s environment of lean inventories made possible by just-in-time logistics. After considering the arguments for a stay (and the opposition of the safety advocates), the court agreed to stay its decision until December 27, 2007.
If FMCSA had acted promptly to initiate a new, expedited proceeding to respond to the court’s concerns, about which extensive evidence and arguments have already been submitted and analyzed, we could have been well on the way to rules that carriers and shippers can live with. FMCSA might even have been able to finish work on its new rules by December 28, 2008, or soon enough thereafter to be able to preserve the status quo briefly until the new rules’ effective date.
However, no new proceeding has been initiated, and it has been reported that FMCSA will not announce until late November what it will do about the eleventh hour of driving time and the 34 hour restart provisions in its HOS rules once the court stay ends. The longer FMCSA waits to act, the more likely it becomes that there will be some disruption in operations of both shippers and carriers.
FMCSA deserves credit for adopting reasonable HOS rules that improve safety while also satisfying the requirement that rules produce benefits commensurate with their costs. NASSTRAC hopes FMCSA stays the course despite two adverse court decisions that primarily address procedural concerns rather than safety concerns. If the 11th hour of driving time and the 34 hour restart are reasonable and safe (and we believe they are), they should continue to be in force while procedural defects are remedied through further notice and comment rulemaking.
As long as these issues remain undecided, carriers and shippers will need to monitor FMCSA’s announcements about its HOS rules between now and the end of the year and may want to consider contingency plans in the event that FMCSA temporarily caps driving time at 10 hours per 14 hour duty shift or orders more than 34 hours off duty before clocks can be restarted. Shorter driving hours could mean delay and disruption in supply chains, resulting in the need for additional safety stock.
Unfortunately, it is not clear what will happen on December 28. Stay tuned, and we will do our best to keep you updated so you can ensure uninterrupted supply chain operations.