Truckers welcome feds’ request for delaying HOS rules
John D. Schulz, Contributing Editor -- Logistics Management, 9/26/2007
WASHINGTON—It took the federal government nearly 70 years to rewrite regulations governing truck drivers’ hours-of-service (HOS). It may take the feds at least another year for their rewrite to pass legal muster.
Trucking interests are applauding the Department of Transportation’s (DOT) request for a 12-month stay from the D.C. Circuit Court of Appeals to delay implementation of its ruling that would effectively reduce the legal hours some 7 million commercial drivers could work.
“We’re opposed to anything that will upset the Just-in-Time delivery schedules that many of our customers adhere to,” UPS Freight spokesman Ira Rosenfeld said. “Looking at the impact at our own operations, if we have to move away from an 11-hour daily [driving] limit, what you’re probably going to see is more trucks on the highways. That translates into more congestion and more pollution, which nobody wants.”
After causing weeks of angst for the trucking industry, the Federal Motor Carrier Safety Administration (FMCSA) issued a long-awaited memo supporting an American Trucking Associations’ (ATA) petition asking the court to vacate the 11- and 34-hour provisions of the hours of service rule, pending reconsideration by the agency. The court has yet to rule on that petition.
“We are pleased that the agency has supported our motion and our view that the court ruled only on the procedures that FMCSA used in adoption of the hours of service regulations, and not on the regulations themselves,” said ATA President and CEO Bill Graves. “It is also important to note that the FMCSA states that ‘available data show that continuing the status quo will not diminish safety.’”
Under current rules, drivers can drive 11 hours; the court ruled on July 24 that be rolled back to 10. Additionally, the court has eliminated the 34-hour restart provision, which allows drivers to restart their week after 34 hours off time.
Elimination of these provisions is estimated to cost the trucking industry as much as 9 percent in productivity and would require the hiring to thousands more drivers to an industry already strapped for legal, qualified drivers, industry executives said. It would also affect both truckload and less-than-truckload (LTL) carriers in the way they position drivers in their networks.
“We’re really concerned about the uncertainty it creates in the marketplace,” said Randy Mullett, vice president of government relations for Con-way, the $4.7 billion trucking concern. “I’m disappointed the process is taking this long, but I’m not willing to throw that at the feet of the feds. It’s an extremely complicated issue with lots of moving parts. There’s safety, pollution, productivity, congestion, and driver availability. The feds have been trying hard to come up with the right balance, so I really can’t blame them.”
Mullett said Con-way and most truckers “much prefer” an HOS compromise that is hammered out through a thorough rulemaking rather than the government issuing an interim rule that may or may not stand. “It’s the uncertainty in the market place that really is a challenge to our planning,” he said.
Shippers worried they would also be hurt. Gail Rutkowski, director of operations for AIMS Logistics and president of NASSTRAC, said that any rapid change in HOS regulations would hurt "the economy as a whole" and be disruptive to the nation’s supply chains.
"Rejection of current hours of service rules with no stay to permit FMCSA to address the court's concerns, and no clarification of the impact on motor carriers … will create widespread uncertainty and confusion, at best," Rutkowski said in a petition to the court. She feared shippers and truckers would have differing interpretations of the law in different states without a stay.
In its request for a stay, FMCSA said a stay was needed to “prevent substantial disruption of trucking operations.” The agency said it was concerned with timing and transition costs if it were to issue an interim rule, which was a possibility. FMCSA predicted disruptions and confusion in HOS enforcement if the rules were changed again.
Annette M. Sandberg, a former FMCSA administrator from 2003 to 2005 and now a principal with TransSafe, a consulting firm, said when she worked at FMCSA there were more than 60 Congressionally-mandated regulations affecting trucking that had to be written. That volume often overwhelms FMCSA’s staff, which, like most government bureaucrats, does not have much real-world trucking experience.
“We did work to fix it,” Sandberg said. “But one of the things I realized is the people who wrote the rules never talked to the people in the field.”
Some background: Truck driver hours-of-service rules were largely unchanged from when they were first issued in 1934 until the late 1990s when FMCSA was formed within the DOT. Julie Cirillo, FMCSA’s first acting administrator, issued the first draft rewrite in 1999, a tough and cumbersome rule that was met with howls of protest within the industry. Cirillo was replaced by Joe Clapp, former chairman of Roadway Services, who helped issue a watered-down version of the rule to make it palatable to industry.
Unfortunately, the courts did not find it palatable—or legal. After challenges by Public Citizen and other safety groups, the courts on three separate occasions have found portions of the HOS rewrite to be illegal.
The last court challenge came last July when the U.S. Court of Appeals for the D.C. Circuit knocked down the new rule that contains the 11-hour and 34-hour provisions. But it hinted it would require FMCA to provide adequate notice and comment periods and a more detailed methodology to it explain its reasoning.”
Shippers, carriers and even a law enforcement group have been united in petitioning the government against issuing yet another ruling on HOS. Because any HOS change is costly, they are urging the government to issue one final HOS ruling that is workable and legal, once and for call.
In five separate filings, law enforcement, shipping and trucking interests supported ATA’s request for a stay. They included:
• Commercial Vehicle Safety Alliance (CVSA), which represents state and federal law enforcement officials, said a sudden change to the HOS rules would lead to a patchwork of state requirements that would undermine safety enforcement and not allow sufficient time to train law enforcement personnel on a new regulatory regime. “Thousands of law enforcement officers will need to be retrained, which cannot be completed quickly or easily,” CVSA said.
• National Industrial Transportation League and the Retail Industry Leaders Association joined in a filing that further described the impact on the nation’s shipping community and described the positive safety experience private shippers have had under the current HOS rules. “A sudden change will substantially interfere with the ‘Just in Time’ delivery systems adopted by numerous businesses throughout the United States,” the groups said.
• The National Small Shipments Traffic Conference (NASSTRAC) and the Health and Personal Care Logistics Conference presented shipping community concerns for the possible elimination of the challenged provisions. The groups noted that the disruption of trucking industry operations would disrupt shipper operations as well by causing “uncertainty as to schedules and transit times, concerns about lawful and permissible operations, and the inevitable delayed deliveries.” The rule changes could lead to businesses having to maintain higher inventory levels, which “is wasteful, costly, and runs counter to the main goal of modern supply chain management.”
• UPS said impact on its operations of having to shift away from an 11-hour daily limit would result in having “to place more trucks on the nation’s highways, thereby adding to traffic congestion and pollution.”
• The Specialized Carriers and Rigging Association fretted that oversize or overweight permits may no longer be valid if drivers governed by the changed rules could no longer meet the designated transportation schedule called for under the permit.
Sandberg, the former FMCSA administrator, said there is “a lack of understanding sometimes” of the industry by the government’s rule-makers. She said that was not meant to impugn government workers but it’s a reality.
The volume of pending work at FMCSA almost ensures there will be more trucking regs coming online. She said new regulations affecting rail and trucking have been ordered by Department of Homeland Security in the wake of the 9/11 Commission’s recommendations.
“We’re going to see some major impacts in the next two years on that front,” Sandberg said.
There are still between 50 and 60 regulations pending at FMCSA, she said. These include rules on HOS, electronic onboard recorders, medical regulations, crossborder trucking, safety compliance reviews and how to identify “bad apples” among the 700,000 DOT-registered interstate carriers as well as another 400,000 intrastate carriers.
“You only have to see one car-truck crash to realize that if you’re the car in that crash, you don’t fare very well,” Sandberg said. “There’s a fear factor. People don’t understand what the business is all about.”
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