Monday, December 31, 2007

Hours of Service still in limbo

Today's Trucking: Court action filed against interim HOS rule

A little recap, after a 15 year process the rules that restrict the number of hours a truck driver may work in a week were significantly revised for the first time in 2003. The original rule had been written in 1937, then slightly altered in 1962. Congress had mandated that the rules be changed, had given a list of factors that the Agency should consider (the rule-making process outlasted the ICC and the FHWA and eventually became the purview of the FMCSA), but did not say exactly what the rules should be.

Under the old and the new rules drivers were restricted to working 60 hours in a 7 day period, or 70 hours in an 8 day period.
However under the new rules if you take 34 consecutive hours off your hours are "reset" and you have a fresh 60/70 to work.

Also the rules restricted the number of hours you could drive in a "day" (after 1962 the rules were no longer tied to a 24 hour day). Under the old rules you could drive for no more than 10 hours before you took an 8 hour break. You can work and drive up to 16 hours before you have to take an 8 hour break, so your "day" could be anywhere from 18 to 26 hours long. Also you could "split break" and take your sleep break in installments, extending your day. Under the new rules once you start working you have 14 hours from the start of your day until you can drive no more. Also you are allowed 11 hours of driving time in a day.

Basically it's typical sausage making. There are plusses and minuses for safety and for the carriers. The upside from a safety perspective is there is a limit on the number of hours in a day you can go before you have to get off the road and there are 2 more hours of break every night. The downside is that you can drive one more hour a day and you can, in theory work more hours in a week (theoretically you can work 88 hours in an 8 day period with the 34 hour reset). From a productivity perspective the upside is you can possibly get more miles in a day with the extra driving hour. The downside is that any time that you are sitting counts against your 14 hour clock. So if it takes 6 hours to get the truck loaded at a grocery warehouse you only have 8 hours available to drive (and that assumes no other stops or breaks). Keeping the truck moving becomes very important to maximizing revenue. Routes were rearranged, extra trucks and drivers were acquired, and everyone adapted to the new rule.

So this rule goes into effect. Several groups sue, arguing that the rule does not consider the health of the driver, one of the factors Congress had insisted be taken into account. Eventually the rule is thrown out by the courts in July 2004. The FMCSA argues that they cannot rewrite the rules in the 90 days alloted by the courts, So Congress writes a provision into a transportation bill that freezes the rules for a year allowing the agency time to redo the rules. So in 2005, the agency publishes the revised new rule, which is pretty much the same as the 2003 rule (light trucks were given an even more lenient rule and the last vestiges of "split breaking" were eliminated). They are sued again. The rule is thrown out again in 2007. They petition for a stay allowing them time to redo the rule. They get a stay (only 90 days instead of the requested year) and produce another "new" rule, which is in every way the same as the old one (only with more text justifying the rationale followed). So now they have been sued again.

You would think at some point the agency would catch on that the courts do not approve of what they are trying to do. Also, one could make the point if Congress had just written a new rule in legislation they could have gotten exactly what they wanted and we wouldn't be tied up in court. Another issue is that Congress has been steadily exempting various industries in response to lobbying. For instance, propane delivery drivers are exempt from the rules (which is kinda odd given the hazardous nature of the load). Right now we have the worst of both worlds. Congress can dodge responsibility for the rules (and loudly complain that the agency isn't doing what they want without ever specifying what exactly they want) and industries are still getting preferential treatment by lobbying.

I think that the best hope for a good rule before 2010 or so would be via legislation. The Agency has gone nowhere fast over the past 4 years and doesn't seem to have any intent other than running out the clock. Of course given the election I suspect there will not be a lot of energy left to deal with this issue. So I suppose we will wait and eventually we will have a permanent rule. Hopefully we won't be waiting another 20 years.

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