A coalition of 15 trade organizations representing manufacturing, agricultural, retail, and transportation interests, jointly filed a friend of the court brief
supporting the American Trucking Associations' challenge to the hours of service (HOS) rules handed down last year by the Federal Motor Carrier Safety Administration.
“For industries and carriers charged with delivering fresh food, keeping assembly lines running and making deliveries, this rule is concerning and will hurt the economy,” said Rick Schweitzer, an attorney for the coalition. “With the lack of evidence that it will improve safety, moving forward with this rule will only create more uncertainties in an already cumbersome regulatory environment.”
The industry groups support the view that the specific rest periods of the “34-hour restart” provision and the exclusion of all on-duty non-driving work during the break should be held unlawful on the grounds that the changes are arbitrary and capricious.
The Hours of Service of Drivers Final Rule was published in the Federal Register
on Dec. 27, 2011. The effective date of the final rule was Feb. 27, but the compliance date of selected provisions is July 1, 2013.
FMCSA's new HOS final rule reduces by 12 hours the maximum number of hours a truck driver can work within a week. Under the old rule, truck drivers could work on average up to 82 hours within a seven-day period. The new HOS final rule limits a driver's work week to 70 hours.
In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window.
The final rule retains the current 11-hour daily driving limit. FMCSA said at the time it announced the new rule that it would “continue to conduct data analysis and research to further examine any risks associated with the 11 hours of driving time. “
The rule requires truck drivers who maximize their weekly work hours to take at least two nights' rest which is when the FMCSA says their 24-hour body clock demands sleep the most - from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule's 34-hour restart provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty. The final rule allows drivers to use the restart provision only once during a seven-day period.
“Shippers and transportation providers find the 34-hour restart change particularly burdensome,” Schweitzer noted. “It will increase wait times for drivers to return to work and it creates a rigid rest structure, without scientific basis that it will place more trucks on the road during peak driving hours.”
The brief argues the FMCSA failed to consider any costs on shippers, receivers or transportation intermediaries when evaluating changes to the rule. The coalition also opposed a challenge lodged by Public Citizen and defended the FMCSA’s decision to maintain the 14-hour driving window and the 11-hour daily driving provision.
The brief, filed in the U.S. Court of Appeals for the District of Columbia, said “many manufacturers and other shippers have designed their delivery systems to reach a large portion of their customers in a single day’s truck travel. A common industry target is reaching 75% of customers in a single day… Large interstate operators build manufacturing and distribution facilities in locations to meet that goal. All of these systems are affected by even small changes to the HOS rules.”
For example, the brief said a member of the National Grocers Association estimated the proposed rule would require new equipment, personnel and maintenance that would cost it hundreds of thousands of dollars.
“The average profit margin for the typical retail supermarket is less than 2 percent - meaning any additional transportation costs would have a significant effect on operations,” the brief said.
It cites comments from a member of the National Retail Federation which estimated the proposed rule would increase its costs from 3 percent to 20 percent, and one large manufacturer estimated the proposed rule would cost it an additional $80 to $90 million per year.
(The brief noted these estimates were based on the proposed rule, which included a proposal, ultimately not adopted, to reduce daily driving time by one hour per day, but said the comments are still relevant in light of the challenge to the 11-hour driving limit by the group Public Citzen. It said reducing driving time from 11 hours a day to 10 would reduce their members’ ability to meet the goal of reaching 75 percent of their customers in a day to about 60 percent, citing comments from National Private Truck Council.)
“The retail industry is at the crossroads of the supply chain, interconnecting manufacturers and suppliers with vendors and customers,” said Matthew Shay, president and chief executive officer of the National Retail Federation.
“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,” he said.
The Intermodal Association of North America said “the previous hours of service rules served the public well and created a regulatory framework that improved safety over the past decade”
It said required rest periods with the 34-hour restart provision could adversely impact the efficiency of intermodal motor carriers that provide rail and port terminal drayage services, since many intermodal facilities are open 24 hours a day, seven days a week.
The brief also argues that FMCSA failed to consider the additional costs to carriers, shippers, receivers, and transportation intermediaries when evaluating changes to the rule.
“Because intermodal stakeholders are dependent on each other, a negative impact that affects one will likely have a ripple effect across the entire supply chain,” said Joni Casey, IANA's president and CEO. “The 34-hour restart change is particularly problematic as it will reduce a driver’s present work week and impede the scheduling flexibility necessary to service the hundreds of rail and port facilities in the U.S.”
Groups participating in the filing include the American Bakers Association, Food Marketing Institute, IANA, International Food Distributors Association, NASSTRAC, National Association of Manufacturers, National Chicken Council, National Grocers Association, National Private Truck Council, National Retail Federation, National Turkey Federation, Retail Industry Leaders Association, Snack Food Association, U.S. Chamber of Commerce, and U.S. Poultry & Egg Association. - Chris Dupin