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Released: December 4, 2008
FMCSA Reissues Hours of Service Rule
The Federal Motor Carrier Safety Administration published in late November its latest version of changes to the 60-year-old regulation governing commercial driver work rules. The agency chose to leave the hours-of-service rules unchanged from previous versions, despite two previous court setbacks and the threat of new litigation. “After FMCSA conducted additional analysis and carefully reviewed hundreds of comments, the agency found no justification to change the rules,” FMCSA Administrator John Hill said.
The agency, in a rule published Nov. 19, said it would maintain controversial provisions allowing truckers to drive 11 hours per day and to reset their weekly allotment of driving hours by taking 34 straight hours off-duty.
”As expected, FMCSA has once again approved the current Hours of Service rules, so truck drivers will continue to be allowed to drive 11 hours in a duty shift, even if most of them rarely do so,” says John Cutler, NASSTRAC Legal Counsel. “In my judgment, FMCSA did a good job of responding to the concerns that led the court of appeals to send the case back to the agency for further proceedings. As a procedural matter, there was timely disclosure of evidence supporting the current rule, permitting all interested parties to have their say on that evidence. As a substantive matter, the evidence appears sound.”
NASSTRAC is not overly concerned about short-term threats by safety advocates to go back to court, although NASSTRAC would likely support FMCSA if there were another court challenge. However, there is more of a concern about an effort by safety advocates to overturn this decision next year in the new, more-Democratic Congress. NASSTRAC would likely continue to oppose such efforts on Capitol Hill.
> View NASSTRAC filings.
Customs Publishes 10+2 Rule
Customs and Border Protection recently published its much-anticipated Importer Security Filing rule. The interim rule, known as 10+2, will take effect Jan. 25, 2009, with enforcement to begin one year later. The interim rule includes an additional public comment period for certain data elements and economic effects of the rule.
“On the whole, the 10+2 rules are essentially as proposed, but Customs and Border Protection did adopt a few modifications to address the concerns of importers, carriers, forwarders, and customs brokers,” says John Cutler, NASSTRAC’s General Counsel. “CBP will phase in enforcement of the new requirements, and is soliciting further comments by June 1, 2009 on certain aspects of the rule. While the rule takes effect January 26, 2009, CBP says it will ‘show restraint’ in enforcing the rule for one year, until January 25, 2010, so long as importers act in good faith and make progress towards compliance.”
In addition, says Cutler, there will be flexibility as to timing with respect to two importer data elements: the Container Stuffing location and the Consolidator (or stuffer). This information can be submitted as late as 24 hours before arrival at a U.S. port (as opposed to 24 hours prior to lading).
Four more importer data elements will be interpreted in a more flexible way: Manufacturer, Ship To Party, Country of Origin, and HTSUS number. These elements must be filed in the Importer Security Filing (“ISF”) 24 hours prior to lading, but the importer may file several responses based on available information, so long as updates are filed as soon as possible thereafter, and no later than 24 hours before arrival in port. CBP provided the following examples:
- The ISF Importer could identify the manufacturer as being one of three typically used manufacturers, with more precision to be provided in subsequent ISF updates.
- The ISF Importer could submit the identity of the importer, consignee, or the facility where the goods will be unladen in the event that the ship to party is unavailable (e.g., “to order” shipments).
- If the ISF Importer is, in good faith, unable to determine whether the country where the final stage of production of an article took place is the country of origin, the ISF Importer may provide the country where the final stage of production of the article took place in lieu of the country of origin, and update the ISF submission as soon as more accurate data are available.
Additional information, including FAQs, can be found on the CBP website.
Truck Tonnage Drops in October After 11 Consecutive Increases
October truck tonnage sank to its lowest level since 2003, dipping 1.8% from a year earlier and ending a streak of 11 consecutive monthly increases over 2007 levels, according to American Trucking Associations. The seasonally adjusted index fell to 108.9, a 3% decline from September, ATA said. The fourth consecutive month-over-month decline signaled that an already wobbly U.S. economy was taking a turn for the worse, ATA Chief Economist Bob Costello recently told Transport Topics. “October should be the busiest month of the year, but instead, this October was a fizzle,” Costello said. “The cumulative drop in truck tonnage over the last four months suggests that the economy is likely to contract substantially in the fourth quarter, at least 3 percent.”
That level of decline — on top of the 0.5% dip in gross domestic product for the third quarter — would mean two consecutive quarters of contraction, which is most economists’ technical definition of a recession. The GDP drop the Commerce Department announced last week was the worst economic performance since the 2001 recession and was fueled by a dramatic fall in consumer spending.
“The latest truck tonnage drop suggests that retailers are very pessimistic for the holiday sales season,” Costello added, noting that October has traditionally been when holiday goods are pumped through supply chains. Since 2005, however, the peak shipping season has been flattening. The decline accelerated this year, as evidenced by a 6.4% decline in Asian imports handled last month at the ports of Los Angeles and Long Beach, Calif. |
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