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Truckers accusing FMCSA of “sham” analysis in latest HOS tweak

Trucking interests are back in court challenging the government’s latest attempt to reduce the hours a truck driver can legally work—and they are getting some help from some of the largest shippers in the nation.
By John D. Schulz, Contributing Editor
August 15, 2012

As many as 15 industry groups, including such heavyweights as the U.S. Chamber of Commerce and the National Retail Federation (NRF), have joined trucking interests in the cause of retaining the current hours of service rules—basically 70 hours of driving in an eight-hour week, with a maximum 11 hours of driving per day.

The American Trucking Associations (ATA), in a brief filed in late July in the U.S. Court of Appeals for the D.C. Circuit, said the Federal Motor Carrier Safety Administration’s (FMCSA) latest attempt to rein in drivers’ hours of service (HOS) was based on a “sham” analysis.

FMCSA wants to change provisions in the 34-hour restart, which allows drivers to “reset” their workweek after 34 consecutive hours off duty. Under the proposed changes, drivers would be able to reset their workweek only once every seven days—and the rest period would have to include two spans from 1 a.m. to 5 a.m.

The government also wants to impose two mandatory 15-minute rest breaks. These provisions, trucking interests say, are arbitrary, capricious and not based on sound science.

The cost-benefit analysis used in the rule, the ATA said in its brief, is based on a “sham” analysis because of faulty assumptions in the government’s study. “FMCSA stacked the deck in favor of its preferred outcome by basing its cost-benefit calculations on a host of transparently unjustifiable assumptions,” ATA said in its court brief. The ATA also is challenging the government’s claim that that 13 percent of truck crashes are caused by fatigue.

Truckers are getting some big league help in their case. The NRF and its National Council of Chain Restaurants division joined a coalition of manufacturers, shippers, and transportation providers and filed an amicus brief opposing the new HOS provisions. They said the proposed regulations were arbitrary and capricious.

“The retail industry is at the crossroads of the supply chain, interconnecting manufacturers and suppliers with vendors and customers,” said NRF President and CEO Matthew Shay. “It is the retail industry’s responsibility to get products to market and into consumers’ hands in a safe and timely manner. It is a responsibility that we hold dear. Any new regulation that impedes that ability increases our transportation costs, increases consumer prices, and jeopardizes the fragile economic recovery.”

The Obama administration failed to take into account the “serious economic ramifications faced by the broader supply chain community” when drafting these rules” Shay added.

He said that his group believes that the new requirements will not only drive up costs, make trucking less safe, and increase congestion, but will ultimately hurt job growth and the economy.  “Any change in supply chain policy should be based solely on science and fact,” Shay said.

The joint brief also supports another FMCSA decision that preserved the 14-hour driving window and 11-hour on-time driving requirement—this aspect of the regulation is being challenged in court by Public Citizen.

The proposed rule would keep the 11-hour driving day, but would reduce the driver’s overall on-duty workweek to 70 hours within a seven-day period. In addition, drivers would not be able to work eight hours without taking a mandatory 30-minute break, which could be broken up into two 15-minute breaks.

Another sticking point for truckers is that the provision that would require those working a full week to take at least two rest periods between 1 a.m. and 5 p.m. during the 34-hour “restart” period. Under that provision, drivers can “reset” their workweek by taking 34 consecutive hours off duty. The new rule would allow drivers to use that restart provision only once during any seven-day period.

If upheld by the court, the new regs are scheduled to go into effect next July.

About the Author

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John D. Schulz
Contributing Editor

John D. Schulz has been a transportation journalist for more than 20 years, specializing in the trucking industry. He is known to own the fattest Rolodex in the business, and is on a first-name basis with scores of top-level trucking executives who are able to give shippers their latest insights on the industry on a regular basis. This wise Washington owl has performed and produced at some of the highest levels of journalism in his 40-year career, mostly as a Washington newsman.


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