Sleeper Berth Provision

Drivers using a sleeper berth must take at least 8 hours in the sleeper berth, and may split the sleeper-berth time into two periods provided neither is less than 2 hours.

Source: Smith, 2011

1.

Purpose of Paper. The purpose of this paper was to use the three-value system comprised of law, morality, and social responsibility in the application of different ethical principles in the analysis of the response by Swift Transportation and Werner Enterprise to the new hours of service rule due to take effect on July 1, 2013.

2.

Value Analysis of Law, Ethics, and Social Responsibility. Compliance with manmade laws is frequently confounded and complicated by individual interpretations and applications of natural laws. In those cases where the conflict is sufficiently pronounced, the respective legal, ethical and social responsibilities of organizations must respond in some fashion in order to resolve the conflict. This resolution, though, can be constrained by the relative importance that each of these three values has for the organization, its leadership team and its employees and these issues are discussed further below.

B.

Legal Section

1.

Introduction. Although the new rules have met with stiff resistance from some quarters and legal challenges are expected in the future (Patton, 2012), the new Hours of Service of Drivers Final Rule was published in the Federal Register on December 27, 2011 and is now the law of the land for commercial motor vehicle operators in the United States. Trucking companies and their operators that ignore or otherwise allow driver fatigue to contribute to accident rates are liable for civil and criminal penalties in the U.S. (Belz, Robinson & Casali, 2004). For instance, according to the law firm Morgan & Morgan (2012), "Because truck driver fatigue can increase the trucker's risk of being involved in a crash, federal regulations have been established to restrict the amount of time a truck driver can be on the road. A trucker who chooses to disregard these regulations and their duty to drive responsibly may be considered negligent if a truck accident occurs" (Truck drivers and fatigue, 2012, para. 2).

2.

Statement of the Relevant Legal Principles and Rules of Law. The overarching legal principle and rule of law in the application of the new Hours of Service of Rule is contained in the Commerce Clause which provides the U.S. Congress with the fundamental right and responsibility to ensure the unrestricted interstate flow of goods and services (Redish, 1995). According to Black's Law Dictionary (1991), the Commerce Clause consists of those "provisions of U.S. Constitution (Article I, Section 8, clause 3) which give Congress exclusive powers over interstate commerce" (p. 269). The provisions of the Commerce Clause extend to the interstate operation of commercial motor vehicles (Redish, 1995). The federal agency tasked with administered interstate commercial motor vehicle commerce is the U.S. Department of Transportation (DOT). According to the DOT's Web site, the department is responsible for the oversight of "federal highway, air, railroad, and maritime and other transportation administration functions" (About DOT, 2012, para. 2).

3.

Application of Law to Topic and Legal Analysis. The legality of the new rules has been challenged at the federal appellate level. In response to the new rules, Patton (2012) reports that the American Trucking Association (ATA) has filed a lawsuit in the U.S. Circuit Court of Appeals for the District of Columbia in an attempt to have the Federal Motor Carrier Safety Administration rule set aside as being "arbitrary and capricious" (para. 2). The challenges to the new rules are based on several issues, with the most salient for the purposes of an ethical analysis including the following:

1. The assumptions and analytical methods used by the FMCSA to formulate the new rules were flawed from the outset. According to Patton, "The law is clear about what steps FMCSA must undertake to change the rules and we cannot allow this rulemaking, which was fueled by changed assumptions and analyses that do not meet the required legal standards, to remain unchallenged" (2012, para. 3).

2. The potential beneficial outcomes of the new regulations were overstated. Here, an ATA representative cautioned that, "ATA said the agency overstated the safety benefits of the new rule, and that the costs outweigh the claimed benefits. We need this issue...

3).
3. The new rules will probably be changed again, causing unnecessary expense and confusion. In this regard, Patton reports that, "A highway bill in the House of Representatives contains a provision that would require FMCSA to study and possibly rewrite the 34-hour restart provision of the rule, which limits the restart to once a week with two sleep periods from 1 a.m. To 5 a.m. Whether or not the bill will pass in its present form is anyone's guess, however" (para. 4).

It also remains uncertain whether the Teamsters and truck safety consumer advocacy organizations will challenge the new rules, but all signs indicate that the likelihood of such future lawsuits is high (Patton, 2012). According to Patton:

Truck safety advocacy groups and the Teamsters union have yet to say if they will renew their own legal action against the new rule, although they have indicated strongly that they will. It was their suit against the rule that pushed the Department of Transportation to do the rewrite that came out last December. They agreed to suspend their suit while the agency reviewed the rule, but reserved the right to renew their suit if the rewrite was not satisfactory to them (2012, para. 4).

Although the revisions contained in the new rules are intended to further promote public safety through regulatory means by restricting the overall number of hours worked by commercial motor vehicle operators, it remains controversial whether the expected overall benefits will be worth the adverse impact that these initiatives will have on interstate commerce. In this regard, Patton advises:

The key issue for them is the 11-hour daily driving limit, which the new rule preserves. The agency said that while it will continue to study a cutback in the 11-hour limit to 10 hours, at this point there is no 'compelling scientific evidence' that the 10-hour limit produces enough safety benefits to outweigh the higher net benefits of the 11-hour limit. (2012, para. 4)

Finally, other organizations have indicated they are concerned about the extra hour of work allowed under the revised rules despite the lack of "compelling scientific evidence," suggesting that the adverse effects are apparent and intuitive. In this regard, Patton adds that, "Advocates for Highway and Auto Safety has indicated that it may resume its challenge of the 11-hour limit. Last December when the rule came out, the group said it is confident that since the appeals court has twice rejected the 11-hour provision it will do so again. Henry Jasny, the group's vice president and general counsel, said that barring the unexpected the group probably will renew its suit" (2012, para. 3).

4.

Legal Conclusion. Taken together, the foregoing indicate that unless and until these advocacy groups and union organizations step up and aggressively pursue legal challenges to the new rules, they will take effect as planned in 2013. Whether these changes are ethical or not, though, is discussed further below.

C.

Ethics Section

1.

Utilitarian Ethical Analysis. The key issue for utilitarian ethical theorists is the degree of happiness that a given act produces. In this regard, Ashmore and Staff (1994) report that, "Utilitarian ethical theory is the theory that states that one ought always to act in such a way that the happiness of all concerned is maximized" (p. 165). From this perspective, any proposed change in the operating rules for commercial motor vehicle operators would relate to its ultimate effect on the environment in which it was made; in the case of multinational operators, this would then extend to the global level since it requires that everyone' interests be taken into account. For instance, Ashmore and Staff add that, "Utilitarian ethical theory assesses the moral character of an intended action, in light of the intended action's projected consequences on all who are likely to be affected by the intended action" (p. 165). This means that if the proposed changes represent a threat to the public safety in the United States but help corporations close the competitive advantage gap with foreign operators, the tradeoff might be justifiable from a strictly pragmatic perspective, but would demand a thoughtful analysis concerning how these effects would also impact the corporation's ability to recruit and retain qualified commercial motor vehicle operators who are willing to abide by their rules. Indeed, Ashmore and Staff emphasize that, "It is improper to claim that ethical decision making in business settings is totally subjective" (1994, p. 165). Therefore, making an ethical decision using a utilitarian ethical approach requires taking into account the following two major classes…