ATA and FMCSA remain at odds over pending changes to HOS regulations

In January, American Trucking Associations (ATA) President and CEO Bill Graves penned a letter to the Federal Motor Carrier Safety Administration (FMCSA) to request driver Hours-of-Service (HOS) rules take effect at a later date than the current one of July 1, 2013.

Graves explained in the January letter that the ATA was requesting that FMCSA delay the compliance effective date for those (rules) provisions until three months after the D.C. Circuit issues its decision in this case, which is expected to happen in March.

He said that the requested delay will avoid potentially duplicative and unnecessary training, prevent confusion if the Court’s decision alters in any manner the final rule, and, given the anticipated short length of the delay, will have no measurable impact on highway safety.

The ATA’s top executive added that in its final rule FMCSA recognized that “industry and law enforcement may need extra time to train personnel and to adjust schedules and automated systems,” with some industry stakeholders noting software development, programming, and testing taking up to 18 months.

Graves explained that a delay of enforcement until three months after the court issues its decision will avoid the significant potential waste of moving forward while that uncertainty persists. And he concluded the letter by explaining that it is not the ATA’s intent to forestall the effective compliance date any longer than necessary to meet the needs of the enforcement community and the industry.

Last Friday, February 22, the FMCSA returned the favor to the ATA with a letter of its own.

In the letter, FMCSA Chief Counsel T.F. Scott Darling III explained that the ATA’s request to delay the compliance date of the rule “is really a request for a stay pending the decision of the court, plus an additional three months of non-compliance,” adding that FMCSA has evaluated the issues raised in ATA’s January letter and determined that the compliance date of the rule is not warranted and has denied ATA’s request.

“[Y]our letter fails to discuss any party’s likelihood of success on the merits, a key requirement for obtaining a stay,” wrote Darling. “Moreover, you admit there is genuine uncertainty as to the outcome of the pending litigation. Therefore, we will not address the merits of the arguments before the court here. Further, you argue that a compliance date will have ‘no measureable impact on safety.’ Given that the final rule is intended to improve public safety, however, a bare assertion to the contrary fails to satisfy the public interest prong of the analysis.”

In December 2010, the FMCSA rolled out its proposed HOS rules changes, which subsequently received decidedly mixed reviews in terms of their potential impact, in terms of its potential for an increase in the cost of doing business, as well as questions from trucking industry stakeholders as to whether or not these rules need to be changed from their current version, which have been in effect since 2004.

The final HOS rule is comprised of the following, according to FMCSA:
-the maximum number of hours a truck driver can work within a week has been reduced by 12 hours from 82 to 70;
-truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes, and drivers can take the 30-minute break whenever they need rest during the eight-hour window;
-the final rule retains the current 11-hour daily driving limit (the FMCSA was considering lowering it to 10 hours) and will continue to conduct data analysis and research to further examine any risks associated with the 11 hours of driving time;
-truckers who maximize their weekly work hours to take at least two nights’ rest when their 24-hour body clock demands sleep the most—from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule’s “34-hour restart” provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty. The final rule allows drivers to use the restart provision only once during a seven-day period; and
-carriers that allow drivers to exceed the 11-hour driving limit by 3 or more hours could be fined $11,000 per offense, and drivers could face civil penalties of up to $2,750 for each offense.

FMCSA officials said that commercial truck drivers and companies must comply with the HOS final rule by July 1, 2013.

ATA Senior Vice President of Policy and Regulatory Affairs Dave Osiecki said that the ATA is disappointed that FMCSA refused to delay enforcement of its upcoming HOS rule changes until after the D.C. Circuit has ruled on ATA’s (and other groups’) pending challenges to the rule. 

“FMCSA’s response means that carriers, shippers, and FMCSA-funded State enforcement agencies will have to spend time and money on training and adapting systems to a rule whose final form will not be certain until the court issues its decision,” he said. “That’s why not only ATA, but also CVSA, the National Industrial Transportation League, and the National Association of Manufacturers all asked the FMCSA to provide three months after the court’s decision before enforcing the rule changes.”

FMCSA’s denial acknowledged that the relevant question should be whether there is “good cause” for delay, said Osiecki, adding that FMCSA didn’t address whether avoiding confusion and waste of carrier, shipper, and Federal and State enforcement (taxpayer) dollars amounted to “good cause.”

With oral arguments in the rule challenges scheduled for March 15, 2013, ATA’s request (and CVSA’s among others) would likely have meant only a brief delay in the current July 1, 2013 effective date, he said.  

“Especially in the current economic climate, carriers and shippers can ill afford to squander resources on a moving target like this,” explained Osiecki. “We’re disappointed that FMCSA is willing to risk squandering public training and enforcement funds this way.”

The ATA has repeatedly stated that the current HOS rules, which have been in place since 2004, have allowed the trucking industry to move more than 70 percent of U.S. goods while achieving record low levels of crashes and fatalities.

And the ATA has previously said that the truck-involved fatality rate has dropped by 36 percent since 2004, which is nearly double the overall fatality rate U.S. highways. And they cited United States Department of Transportation (DOT) data.

Industry experts have told LM that if there is a significant decline in truck productivity as a result of new HOS rules, it will be difficult for other modes to make up the difference in lost production, should trucking output decrease by ten percent or somewhere in that general range.

“If you run the numbers, there will very likely be a significant loss of productivity should the ruling go through,” said a trucking executive, whom declined to be identified.