Industry Fears HOS Losses When New Rule Is Issued

This story appears in the Oct. 25 print edition of Transport Topics.

PHOENIX — Trucking officials said they are preparing for what they believe will be a loss of productivity and flexibility when the Federal Motor Carrier Safety Administration issues the revised hours-of-service rule.

“We’re not all that optimistic that this proposal will be something that we will like. We think it could shrink drive time, and we think it will perhaps have other unproductive changes,” Dave Osiecki, senior vice president for policy and regulatory affairs with American Trucking Associations, said here during the group’s 2010 Management Conference & Exhibition.

FMCSA Administrator Anne Ferro, speaking here, said only that the agency was “on schedule” to deliver the new rule later this month, and she was “looking forward to a very robust discussion beginning in early November.”

The rule currently is being reviewed by the White House Office of Management and Budget.

ATA Chairman Barbara Windsor, president of Hahn Transportation Inc., said she expects the industry to lose the current restart clause, which allows drivers to reset their weekly clocks following a 34-hour break.

“I think [the time required before a restart] is going to be extended and we’re going to lose an hour of driving,” she said. “For [Hahn Transportation], as a regional carrier, the 34-hour restart has been wonderful because our guys can come home and have a five [days] on, two [days] off schedule and have a regular life.”

“We think we know what it is going to be, and it bothers the hell out of me,” said Charles “Shorty” Whittington, president of Grammer Industries and the outgoing chairman of ATA’s executive committee.

Whittington predicted the restart clause would be extended to between 44 and 48 hours. In addition, he thinks there will be a mandatory rest break included, but it is not clear yet whether that would count as on-duty or off-duty time.

James Burg, president of James Burg Trucking Co., said that an improving economy is making these potentially disruptive HOS changes easier to handle.

“It could have been devastating a year ago in the economic environment, but it seems like we have the capacity on our side,” Burg said. “While it is going to be difficult, if we have any new restrictions, it is going to be much more manageable.”

Still, ATA Chief Counsel Robert Digges did not rule out a legal challenge after the rule is released.

“I think we will be in a very good position [to litigate] if there are draconian changes made to the hours-of-service rules,” he said during the meeting, because it will be “very hard” for FMCSA to justify the changes in light of trucking’s improving safety record.

He added that courts are “often a little suspicious” when an agency that had been defending a regulation reverses course.

Last October, FMCSA dropped its defense of the HOS rule and said it would review it as part of a court settlement with a number of advocacy and labor groups. That settlement called for the agency to issue a final rule this October.

FMCSA has also been ordered to issue a rule specifying what paperwork fleets must retain in order to verify their driver logs, one the agency has said will include a renewed, and probably expanded, electronic onboard recorder requirement.

Ferro said such a proposal will be sent to the White House soon, and, “OMB will get that back to us by the end of the year.”

Windsor said she has been “quite surprised about how many [ATA] members have already switched over to electronic logging.”

Her own company will be making the switch during the next six months because, she said, “It is such a better way of doing business.”

Windsor also suggested that if enough carriers voluntarily adopt EOBRs, that could help strengthen trucking’s case in any HOS legal challenges.