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U.S. Hours of Service (HOS) Follow-Up

The January 23, 2008 court order means we can all focus on the issues before
FMCSA without the disruption of interim changes in the HOS rules.

By John Cutler and Mike Regan

THE NASSTRAC CORNER article appearing in the last issue of LQ included critical statements about the U.S. Federal Motor Carrier Safety Administration’s (FMCSA) delays in addressing the implications of the appellate court decision striking down FMCSA’s 2005 Hours of Service (HOS) rules. In retrospect, the agency’s deliberate approach to assessing its next steps to this long-running issue paid off, and carriers and shippers appear to have dodged a bullet.

Before discussing the latest news, we’ll note some key prior events (reflecting our policy perspectives):

  • 2000:FMCSA proposes terrible HOS rules, which safety advocates like.
  • 2003: FMCSA adopts decent HOS rules, which safety advocates challenge in court.
  • 2004: Court vacates 2003 rules, finding FMCSA’s discussion of driver health inadequate.
  • 2005: FMCSA adopts essentially the same HOS rules it adopted in 2003, supported by additional evidence and analysis addressing court concerns. Safety advocates file new court challenge.
  • 2007: In July, the court again rejects rules, vacating the provision allowing 11th hour of driving time and the provision allowing duty clocks to restart after 34 consecutive hours off duty.

After the court’s July 2007 decision, it was obvious that the FMCSA would have to conduct further proceedings. However, what rules would apply while those proceedings were going on?

As discussed in the November NASSTRAC Corner, the FMCSA, the trucking industry and shipper groups sought and obtained (over the safety advocates’ objections) a stay of the 2007 court decision keeping the 11 and 34 hour rules for now, but the stay was set to expire on December 27, 2007, setting up the possibility of reduced hours of service on December 28. To head this off, FMCSA issued an Interim Final Rule in midDecember, under which the current HOS rules will continue in effect until the agency completes the next phase of its rulemaking proceeding, which it has pledged to do by the end of 2008.

A court challenge was issued by Public Citizen and other groups including the Teamsters Union, but the FMCSA, ATA and a group of shipper intervenors led by NASSTRAC urged the appellate court to deny the safety advocates’ motion. Fortunately, the court did deny the motion in an order issued January 23, 2008. The FMCSA deserves credit for this win as a result of the agency’s thorough and careful explanation for its Interim Rule.

In a nutshell, FMCSA explained that inaction was not an option, because all prior HOS rules had been rescinded. Therefore, absent an interim rule there would be no federal HOS rules, an outcome even safety advocates would presumably oppose. In addition, highway safety has improved while the current rules have been in effect.

FMCSA also explained that evidence favors the current rules, and that implementing changes involves extensive revisions to existing practices by state governments (possibly requiring state legislative action), law enforcement personnel, trucking companies and drivers, among others. Shipper logistics and supply chain procedures would also require modification to account for shorter drivers’ hours. Implementing all of these changes would be likely to take at least as long as the next phase of the FMCSA rulemaking.

The safety advocates did not help their cause when they said they wanted FMCSA to adopt a maximum driving time of 10 hours per duty shift and a longer restart (possibly 60 or 70 hours). Public Citizen and its allies could still seek legislation modifying the current HOS rules, and at least one powerful senator may be sympathetic. Senator Frank Lautenberg (D-NJ), Chairman of the Surface Transportation Subcommittee of the Senate Commerce Committee, has already held a hearing at which he criticized FMCSA’s interim HOS rules. However, Congress has many other priorities and 2008 is an election year, reducing the likelihood of action on HOS issues.

The January 23, 2008 court order means we can all focus on the issues before FMCSA without the disruption of interim changes in the HOS rules. Comments are due February 15, 2008 and NASSTRAC will be filing comments supporting continued application of the current HOS rules, which should remain in effect for at least two years, and possibly longer.

Safety advocates may also continue to push for reduced driver hours of service through legislation, if Democrats increase their Congressional majority in this year’s elections, and through administrative action, if the next President is a Democrat who appoints a new head of FMCSA with a different position on these issues. Of course, Hours of Service rules are only one of many components of the current legal and regulatory landscape for transportation, logistics and supply chain management that could change dramatically depending on the outcome of this year’s U.S. elections. We will keep you posted in future columns and please contact us with any questions.