Monday, July 11, 2005

Hours of Service

As a truck driver, I have a vested interest in the Hours of Service Rules put out by the Federal Motor Carrier Safety Administration. These rules govern how many hours drivers can work in a day and over a 7 and an 8 day period (60 and 70 hours respectively).

That is why I am concerned about September 30, 2005.

On January 4, 2004 new Hours of Service rules were put into place by the FMCSA. These rules cut the number of hours a driver could work in a Workday from 15 hours to 14 consecutive hours (so now breaks count toward your clock for the day and the clock is a little shorter), increased the break between Workdays from 8 to 10 hours , and increased the number of hours you can drive in a workday from 10 to 11. The seven and eight days rules nominally remained the same, except that 34 consecutive hours off you could restart 60/70 hour limit. This was the most significant change to the Hours of Service rules since they were created in 1935 (they were significantly modified once in 1962).

The new rules were drafted in response to a mandate from Congress to draft rules that enhanced safety, allowed for productive operations, and cared for the health of Truck Drivers.

In July 2004 the D.C. Circuit Court struck down the new rules because they did not account for driver health as required by Congress. The Plaintiffs in the case (Public Citizen and the International Brotherhood of Teamsters, among others) wanted an immediate return to the old rules followed by a new rulemaking process. The Industry, the FMCSA, and the State Agencies tasked with enforcing Truck Safety Laws all asked the court to keep the current rule while a new rule was drafted. Before a decision was made Congress intervened and codified the new rules until September 30, 2005 or until a new(er) rule could be drafted that took the court ruling into account.

The January 4,2004 rule change was the culmination of a long series of false starts, going back to at least 1978. So, to expect a rule to be created in a year is a bit of a long shot. But, the FMCSA thinks they have done it.

Having failed to get Congress to codify the new rules permanently or to remove the driver health provisions from the mandate, the FMCSA plans to announce its changes (if any) to the Hours of Service rules by "Early Summer 2005" and to be ready to go September 30. Indeed the Agency administrator is on record that the decisions were all made by the end of April and are currently on hold for approval by the OMB and Transportation Secretary Norman Mineta.

Some points:

The Commercial Vehicle Safety Alliance noted the 2004 rules were announced in April 2003 and time was very tight getting enforcement personnel up to speed before the rules took effect. One would assume they will be quite unenthusiastic about a much smaller window to get ready for the new new rule.

The FMCSA by all appearances seems to think the court ruling was for a "failure to use footnotes" (to steal a catchy description of Pelagianism) . However the court seemed to find more than just a failure to explain why the new rules were better for driver health, rather they seemed (to my untrained eye) to have found defects in the rules themselves.

The Plaintiffs from the previous legal action clearly are gearing up for another lawsuit. Most of their Comments on the FMCSA's new new rule are attacks on the agency.

So then, I see a very nasty scene unfolding. The FMCSA posts new rules later this summer (We're already below 90 days to September 30). Drivers and enforcement personnel scramble to learn and apply the new rules in the middle of the busy season for van freight. Meanwhile fresh lawsuits roll forward. The Rule is once again set aside in short order. The industry is threatened with Chaos again.

Is the FMCSA hoping Congress will legislate the whole mess away next time or do they intend to fight this up to the newly reformulated Supreme Court?

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