After Hours

After Hours

Shippers and carriers hoping for resolution of the dispute over trucking's hours-of-service regulations probably should pull up a chair - this will be a long wait.

Whatever the merits of the transportation industry's much-anticipated work rule, the regulation that the Federal Motor Carrier Safety Administration issued Aug. 19 is all but certain to end up back in court, keeping open a door of uncertainty for shippers and truckers.

The FMCSA seems to acknowledge as much in the rule itself, which at times has the character of a legal brief aimed at judicial reviewers more than a regulatory description of work rules for the industry.

"The rule adopted today balances considerations of driver and public safety, driver health, and costs and benefits to the motor carrier industry - all factors the agency is required to take into account," the agency writes in the executive summary. "The provisions are described separately in the preamble, but they constitute an interconnected whole and cannot be adequately understood in isolation."

It doesn't exactly say "Get that, Joan Claybrook?" but we get the idea.

While much of the transport industry was wondering whether the FMCSA would respond to the U.S. Court of Appeals panel, which last year threw out the 2003 hours-of-service regulation, by taking back that extra 11th driving hour, the agency took an unexpected turn. FMCSA not only retained the increase from 10 hours to 11 hours that was in the 2003 rule, it added duty time for short-haul drivers.

The new version of the rule allows 16-hour work windows with 11 hours of driving and two hours off twice a week for drivers who operate within 150 miles of their work base.

We doubt that Public Citizen and other groups expected FMCSA to add duty time to a rule under fire.

But what FMCSA has done here is respond to the court and HOS critics in a canny manner, focusing precisely and even narrowly on the very specific criticisms of last year's scathing court ruling. The court said the agency didn't back up its rule with analysis of driver health so the FMCSA has provided 367 pages that include lengthy discourse on epidemiology, sleep deprivation and the bottom line result that drivers are averaging 6.28 hours of sleep a night.

Shippers will sleep better with HOS put to rest, at least for now. If anything, rules regarding required use of sleeper berths for long hauls may improve delivery cycles for those supply chains, although trucking companies may be pressed to find drivers willing to abide by the guidelines.

But the critics who took the 2003 to court last time will likely be up late at night going over the new edition, comparing it to the court ruling, and looking for areas to challenge.

One transport regulation veteran believes resolution may take years, with critics and the courts set to challenge the very detailed specifics in the 367-page rule, sentence by sentence.

And that is how the challenges, and resolutions, may come: hour by hour and line by line.