HOS in jeopardy

When a U.S Court of Appeals on July 16 threw out the hours-of-service rules, many in the industry were justifiably annoyed and dismayed. After years of regulatory wrangling, it appeared that the HOS rules had been finally settled for better or worse and carriers were learning to live with it. They trained and retrained drivers and talked to shippers about waiting time; everyone, it seemed, was ready

When a U.S Court of Appeals on July 16 threw out the hours-of-service rules, many in the industry were justifiably annoyed and dismayed. After years of regulatory wrangling, it appeared that the HOS rules had been finally settled — for better or worse — and carriers were learning to live with it. They trained and retrained drivers and talked to shippers about waiting time; everyone, it seemed, was ready for a new way of doing business.

As it turns out, business has been pretty good. Although many carriers had forecast that the new rules would cut into productivity, some predicting losses up to 19%, this did not occur. In fact, most carriers had terrific first and second quarters. While an improving economy and tight capacity have contributed to higher profits, so have the HOS rules, which carriers skillfully added to their bag of tricks to persuade shippers to cut waiting times. The loading dock is more efficient than it has been in decades and everyone benefits. “It [the new rules] has been enormously positive,” says Tom Nightingale, a spokesperson for Schneider National. “We have seen a 39% decrease in waiting time.”

Few, it appears, want to return to the old rules. He and others note that tens of thousands of drivers have been trained under the new rules. In fact, some have never driven under the old rules, and retraining them would be a financial burden to fleets and a psychological drain on drivers.

“A surprising number of our members are pleased by the new rules,” says Todd Spencer, exec. vp of the Owner-Operator Independent Drivers Assn. “They like the 34-hour restart provision.” He adds that drivers' biggest gripe has always been waiting time, and the new rules, in addition to tight capacity, have helped the situation.

At issue is the court's opinion that FMCSA did not take into account drivers' health when writing the new HOS regulation. The court stated: “We hold that the final rule is arbitrary and capricious because the agency neglected to consider a statutorily mandated factor — the impact of the rule on the health of drivers.”

Although FMCSA will not comment, most likely they believe that by changing driving and sleeping times it was indeed addressing driver health issues in a larger sense. The court disagreed, saying that FMCSA did not show how increasing maximum driving time from 10 to 11 hours or offering a sleeper berth exception would impact driver health.

While most stakeholders are focused on the issue of driver health, the court's reexamination of the ruling could have wider implications. The 1995 law that required the Federal Highway Administration (whose authority was transferred to FMCSA in 1999) to revise the HOS regulations ordered the agency to address other issues as well. For example, the law mandates that FHWA address rules about “loading and unloading” operations and automated and tamper-proof recording devices.”

The court's latest ruling does not mention the issue of “unloading and unloading,” but it doesn't have to do so. The issue of driver health overshadows everything else and was reason enough to vacate the order. “[FMCSA's] failure to [discuss the driver health issues], standing alone, requires us to vacate the entire rule… the agency's failure to consider this factor… permeated the entire rulemaking process.”

However, the court did address the onboard recorder issue. It said that FMCSA's excuse for not including electronic onboard recorders (EOBRs) in the final rule, i.e., that the costs and benefits are not adequately known, is “probably flawed” because, at the very least, FMCSA did not even collect and analyze data on the costs and benefits. “…this statutory provision does not require the agency to promulgate a rule that requires the use of EOBRs, but it does require the agency to evaluate seriously whether EOBRs should be required.”

For now, the current HOS rules remain in effect until driver health issues are resolved to the court's satisfaction. When that will happen is also up in the air. At presstime, industry experts were expecting FMCSA to seek additional time to respond to the court's charge. What may be equally important, however, is how the court and FMCSA decide to handle the controversial matter of EOBRs.

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