Analysts Expect HOS Lawsuits; 11th Hour, Restart Fuel Conflict

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At least some trucking industry analysts said they expect the latest version of the hours-of-service rule to land back in federal court because the rule seems to satisfy no one.

“I think the industry’s going to challenge it, and I think there’s a good chance that the public interest groups are going to challenge it,” said Michael Livermore, executive director of the Institute for Policy Integrity in the New York University School of Law.

The Federal Motor Carrier Safety Administration issued its latest version of the rule on Dec. 22 as part of the ongoing battle to revise the primary regulation covering truck drivers’ working hours.

The proposal retains the 11-hour driving maximum in the current rule under which the industry has been operating since 2004, but FMCSA changed the 34-hour restart provision, which effectively cuts the maximum workweek for drivers to 70 hours from the current 82 hours.

“People interested in the worker-protection side were displeased that the 11-hour shift wasn’t reduced back to 10 hours,” Livermore said. “Folks on the industry side basically don’t like the rest of the rule.”

Most of trucking’s criticism of the latest proposal has focused on the restart provisions. The change is scheduled to take effect in July 2013.

David Osiecki, senior vice president of policy and regulatory affairs for American Trucking Associations, said ATA has not yet decided whether to file suit over what it argues are unnecessary changes to the rest and restart times that cut into the industry’s productivity.

“We’re really going to be driven by the members on whether they want us to take the next step litigation-wise, or whether they want to live with what’s in this rule,” Osiecki said.

Livermore’s group filed a “friend of the court” brief on behalf of the plaintiffs in the legal battle begun in 2003 by the Teamsters union and other interest groups against FMCSA after the agency raised allowable drive time to 11 hours from 10, where it had stood since 1939.

“Somebody will sue, but I think this settlement is so mild that it likely will stand,” said Noel Perry, a consultant with FTR Associates in Nashville, Ind.

“The only guys who will fundamentally be affected are those people working 84 hours a week, which isn’t the big guys; it’s the small guys,” Perry said.

FMCSA issued the new rule as part of an agreement it made in 2009 in an effort to end the court battle over hours of service.

On Jan. 23, lawyers for both sides are to file progress reports on that agreement in the U.S. Court of Appeals for the District of Columbia Circuit.

Gregory Beck, attorney for Public Citizen, one of the groups suing FMCSA over the current rule, said his side could continue with its current lawsuit or file a new action.

“We’re unhappy with the ruling and inclined to proceed with a case against the agency,” he said.

Peter Gatti, executive vice president of the National Industrial Transportation League, said he rejects the suggestion by some analysts that the new rule “has shifted from being a trucker problem to a shipper problem.”

“In some instances, we’re going to see cost passthroughs, without question, but maybe not for all [shippers],” Gatti said.

Shippers are a diverse group, he said, and the various segments have not had time to assess how the new rule will affect them.

The new rule could have been worse, in that it could have cut an hour of driving time, Gatti and others said.

FMCSA said in December 2010 that it favored a 10-hour maximum driving day. The trucking industry has said a 10-hour rule would cut deeply into productivity.

Carriers said they are still trying to calculate what effects the new rest and restart provisions will have on their operations.

“We are still doing an analysis of the potential effects on our various operations,” said Gary Frantz, director of corporate communication for Con-way Inc., Ann Arbor, Mich.

David James, senior vice president of operations for Groendyke Transport Inc., an Enid, Okla., tanker carrier, said the new rest and restart rules will “adversely” affect the fleet. Until more analysis, he said, he will not know if the rules will “impact us tremendously or have a minimal impact.”

Chris Burruss, president of the Truckload Carriers Association, said his group may consider legal action after it sorts out the implications of the new rule.

“We’re the longhaul guys. . . . We’re more impacted by hours of service than, say, the LTL or . . . local pickup-and-delivery guys,” Burruss said.

The rest and restart rules “tend to be certainly more dramatic for our members, and these changes in operations cost money,” he said.

“We don’t believe these changes are going to improve driver health and wellness or . . . improve safety,” Burruss said, adding that his members believe the restart requirements will put more trucks on the road during peak traffic hours.

Staff Reporters Timothy Cama and Eric Miller contributed to this story.