U.S. Court of Appeals upholds nearly all of new HOS regulations
August 02, 2013 - LM Editorial
Trucking stakeholders holding out hope for the recently enacted motor carrier Hours-of-Service (HOS) regulations to be overturned had their hopes dashed—mostly—in a ruling handed down today by the U.S. Court of Appeals for the D.C. Circuit.
The new HOS rules, which took effect on July 1, are comprised of the following:
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.
All of these regulations remain intact, save for the court’s decision to strike down a provision requiring short-haul drivers to take a 30-minute off-duty break.
“While we are disappointed the Court chose to give unlimited deference to the Federal Motor Carrier Safety Administration’s agenda-driving rulemaking, the striking down of the short-haul break provision is an important victory,” said Dave Osiecki, ATA senior vice president of policy and regulatory affairs, in a statement.
Since the revised HOS regulations were initially issued by the FMSCA in December 2010, various industry organizations, including the ATA, Advocates for Highway and Auto Safety, Public Citizen, the Truck Safety Coalition, have maintained in lawsuits that the final HOS rule still fails to make needed improvements to protect the public from tired truckers and should be subjected to judicial review.
The ATA said that the Court found no merit in the challenge these groups presented that “have fought to make a working regulation more restrictive, explaining it “would have been unreasonable and unfounded on the record” to reduce the driving day from 11 hours to 10 hours.
“It is often said the third time’s a charm,” wrote Judge Janice Rogers Brown in her decision. “That may well be true in this case, the third of its kind to be considered by the Circuit. With one small exception, our decision today brings to an end much of the permanent warfare surrounding the HOS rules. Though FMCSA won the day not on the strengths of its rulemaking prowess, but through an artless war of attrition, the controversies of this round are ended.”
Since the HOS rules took effect one month ago, many shippers say that it is too early to tell exactly what type of impact the rules will have on industry productivity.
Industry experts have suggested HOS regulations will lead to tighter capacity and higher rates, especially on the truckload side, in the second half of this year and beyond, with productivity possibly seeing low-to-mid single digit increases.
A retail shipper whom declined to be identified recently explained to LM that things are going as well as can be expected, given the short period the rules have been in effect.
“A few weeks in now, things are going well so far,” the shipper said. “This communication around what was coming was pretty well documented from an industry standpoint. We were able to effectively plan for the impact with both our Dedicated and Non-Dedicated carriers to ensure risk mitigation. We used feedback from our carrier partners on current operations to adjust pickup and delivery times where necessary so that the transition would be seamless to our operation.”
But the real test, relative to market capacity impact, explained, the shipper, will be in any economic uptick later this year. That’s where the shipper said he is expecting to see the over-the-road market do some “interesting things” with capacity tightening and having a potential pricing volatility swing for unprepared shippers, with increased seasonal volume.
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