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From SCDigest's On-Target E-Magazine

- Aug. 5, 2013 -

Logistics News: Hours of Service Changes Here to Stay, as Court Challenge Fails

Federal Appeals Court Upholds All but One Small Provision Relative to Short Haul Drivers; Impact of New Rules Still Unclear

SCDigest Editorial Staff

The new Hours of Service rules are here to stay.

SCDigest Says:

Analyst Noel Perry of FTR Associations calculates that the impact will be significant on long haul drivers, where productivty losses could be as high as 15%

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In a decision that was not surprising to many, a federal appeals court in Washington DC upheld almost all of the new changes to the Hours of Service (HOS) rules promulgated by the Federal Motor Carrier Safety Administration (FMCSA) in 2011 and placed into affect last month.

In a lawsuit filed by the American Trucking Associations to block the new rules, the only provision in the changes thrown out by the court in its decision Friday was a minor issue relative to the requirement that even short haul drivers (less than 150 miles) had to take a 30-minute break. Every other element of the new rules was upheld.

The ATA had basically argued that the cost-benefit analyses used by the FMCSA and required by law for such new regulations was fatally flawed and poorly applied, and thus the changes based on those analyses were invalid.

But the three-judge panel said in its decision, written by judge Janice Rogers Brown, that FMCSA "did not act arbitrarily or capriciously in restricting the restart to once per 7 days.".

Brown continued: "Federal agencies can make such changes if reasonable justification is provided and this reflected a changed understanding of how the 34-hour restart is used in practice."

"ATA takes issue with the study's methodology and the conclusions the FMCSA draws from it," Brown also wrote, in regard to the FMCSA stipulating when these two breaks occur. "But we must unquestionably defer to an agency's expertise in weighing and evaluating the merits of scientific studies."

(Transportation Management Article Continued Below)

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But the opinion also added this little paragraph, which seems to take a bit of a shot at the FMCSA: "With one small exception, our decision today brings to an end much of the permanent warfare surrounding the HOS rules," Brown wrote. "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."

It does not appear that the ATA is likely to take an appeal to the Supreme Court.

"The court recognized on numerous occasions the shortcomings of the agency's deliberations, so despite upholding most of the rule, we hope this opinion will serve as a warning to FMCSA not to rely on similarly unsubstantiated rulemakings in the future," said Dave Osiecki, ATA senior vice president of policy and regulatory affairs. "One thing this rulemaking makes clear is that fatigue is a small problem when viewed through a crash causation lens. ATA hopes FMCSA will work with the trucking industry to address more pressing safety and driver behavior issues, including those than can be directly affected through proven traffic enforcement activities aimed at unsafe operating behaviors."

The new rules went into effect July 1, 18 months after they were first released in late December, 2011 after a contentious battle between truckers and the FMCSA.

Impact Still Unclear

A number of carriers have performed analyses on the impact to their operations, and results have generally found a loss of driver productivity of around 5-7% - though some have offered numbers bordering on double digits.

Analyst Noel Perry of FTR Associations calculates that the impact will be significant on long haul drivers, where productivty losses could be as high as 15%. All told, the loss in productivity will require some 60,000 new drivers come into the industry to make up for the difference, Perry said, at a time when the industry is already struggling with driver shortages. (See New HOS Rules Could Cause Driver Shortage of 60,000, Turn Some Two-Day Deliveries to Three Day.)

But former trucking industry executive Thom Williams, now a consultant and investor to the industry, thinks the impact is being overestimated, because most routes are less than 550 miles, and can still be achieved in one day.

Williams believes the loss of productivity in total will be only about 1.5%, though agrees it will be more on many long haul moves. (See New Hours of Service Rules Started Monday, What will the Impact on Productivity Really be?)

Whether it's 1.5% or 6%, the carriers will see their cost structures rise - and you can bet they will look to shippers to make up the hit to the bottom line in terms of rates.

Any reaction to the HOS decision? What now? Let us know your thoughts at the Feedback button (for email) or section (for web form) below.

Recent Feedback

The new HOS has nothing to do with safety. Someone please explain to me how, by adding more" bullets to the gun",(60,000 more trucks to the already congested highways) in conjunction with the electronic logging (which is no more than racing a machine all day and coupled with another half hour break) that this is safety.

I have no clue how people with no experience can ever know the demanding nature of this profession. All parties involved such as shippers and receivers do not have the same restrictions as the operator who is under the watchful eye of the electronic log. These establishments continue to do "business as usual" where loading and unloading is at their leisure, as, "in the way that it used to be". They have no idea what the operator is saying when he says he must go or he will not make his appointment before he is shut down (out of hours). This has caused tension in the workplace environment between dock personnel, operators and management. This also creates tension between the operators company in as much as they constantly "push" the operator to move as quickly as possible to complete his task.

The stress on the driver now is much higher in the fact that running the electronic log, the 168 hour reset law and cutting the 14 hour rule to 13.5 (the half hour mandatory break) is overwhelming. This tension and stress puts the operator in a undesirable state where good decisions and safety butt heads. Never a good outcome.

I have not even scratched the surface on how this has effected the operators pay scale either. Another added stress to the operator in providing for the family. Processes like these need to be thought out more thoroughly with a 360 degree view, not tunnel vision.

In my opinion, the HOS rule needs to be reviewed in a more wide angle view and relieve the stresses that have been placed on the operators, dock personnel, managers, and companies that are in direct line in the transportation field. I do believe that the intentions were good, but in trying to help made an already stressful environment much more volatile.

Thank you for your interest.

bruce mann
driver
FCL
Aug, 19 2013