HOS decision could come down to 11th hour

The trucking and logistics community is hoping that the latest challenge to the truck driver hours-of-service (HOS) regulations is just a minor setback—a kind of bump in the road on the way to becoming permanent. In July, the U.S. Court of Appeals for the District of Columbia remanded the HOS rule to the Federal Motor Carrier Safety Administration (FMCSA), demanding that the agency do a better job of justifying its decision to adopt the new rule's 11-hour driving time and 34-hour restart provisions.

That marked the second time the court had tossed the hours-of-service rule back to the FMCSA, which announced in 2003 that it was revising the rule governing the number of hours drivers could operate a truck. Opponents of the new rule persuaded the court to vacate it entirely in 2004, but Congress implemented a one-year extension while the agency worked out changes demanded by the court. Last year, the FMCSA implemented the rule again with few changes from the 2003 version, prompting the latest court challenge.

In the latest decision, the court charged that the FMCSA had been "arbitrary and capricious" in failing to explain much of the methodology that led it to adopt those provisions. It ruled unanimously that the maximum driving time of 11 hours per day should be reduced to 10 hours per day, the limit under the old system. It also ruled that the current 34-hour restart at any point in a driver's seven- or eight-day cycle should be eliminated. The restart rule requires that a driver be off duty for 34 consecutive hours each week.

The good news is that the shortcomings identified by the court are procedural in nature and might easily be addressed by the FMSCA. At press time, the agency's legal team was still determining how to respond to the ruling. It has until Sept. 14 to do so; if it misses that deadline, the old rule will go back into effect.

But not everyone is convinced that it will be easy to reach a solution that will satisfy the courts and the public-safety advocacy groups that filed the lawsuit. Don Osterberg, vice president of safety and training for trucking company Schneider National, believes that there isn't much room for give and take on either side. "People have characterized this as a procedural issue, but if you look between the lines, it's certainly possible to assume that this court takes genuine exception to the 11th hour and the 34-hour restart," he says. "I believe it's more than a procedural issue." Osterberg is an advocate for public safety but disagrees with the court's decision and believes the current hours-of-service regulations are working well.

Osterberg and his colleagues at Schneider are concerned enough about the prospect of the rule's reversal that they're running simulations to capture how the change back to a 10-hour limit might affect their business. Among other things, they are looking at the possible need to retrain personnel and adjust dispatch software. "This is a monumental undertaking to implement rule changes of this magnitude," he says. "There would be a negative productivity impact."

To guard against that possibility, the American Trucking Associations (ATA) will seek a stay from the courts to keep the current HOS rule in place until the FMCSA provides the court with explanations for the driving time and restart provisions.

In a letter to Department of Transportation Secretary Mary Peters pushing for a court stay, ATA President Bill Graves warned of the consequences of overturning the regulations during peak shipping season. "If these provisions are vacated in mid-September," he wrote, "there will be disruptions in the supply chain [and] our economy will suffer."