WASHINGTON — The American Trucking Association, Inc. (A.T.A.) has been joined by 15 other transportation, food, retail and manufacturing groups in a suit to challenge the Federal Motor Carrier Safety Administration’s (F.M.C.S.A.) Hours of Service (H.O.S.) Final Rules for commercial truck drivers.
At the heart of the A.T.A. suit and the joint amici curiae brief filed July 31 in the U.S. Court of Appeals for the District of Columbia Circuit by the 15 groups are provisions concerning the 34-hour restart period and the requirement to log 30-minute breaks as off duty, effectively reducing the current 14-hour driving day to 13.5 hours. The previous rule allowed truckers to work up to 82 hours in a seven-day period; the new H.O.S. final rule reduces the work week to 70 hours.
The groups that filed the joint amici curiae brief include: the American Bakers Association, the Food Marketing Institute, the National Grocers Association, the Snack Food Association, the National Chicken Council, the National Turkey Federation, the International Foodservice Distributors Association, the National Retail Federation, the National Association of Manufacturers, the Retail Industry Leaders Association, the Intermodal Association of North America, the National Private Truck Council, Owner-Operator Independent Drivers Association, the National Shippers Strategic Transportation Council and the U.S. Chamber of Commerce.
“The 2011 rule must be vacated and remanded to the F.M.C.S.A. because the changes made to the 34-hour restart provision are not backed by adequate evidence in the record,” the amici stated in summary. “The agency relied on information in the Regulatory Impact Analysis that runs counter to its analysis in earlier H.O.S. rulemakings, calling into doubt its conclusions that the rule’s benefits outweigh its costs.”
The new rule mandated that a driver rest for two overnight periods between 1:00 a.m. and 5:00 a.m. to restart the weekly on-duty period, with the F.M.C.S.A. claiming the 34-hour restart would “allow drivers to get extended rest to counter the effects of long-term fatigue.” The amici challenged that the new rule was counter to the F.M.C.S.A. 2003 rule that established a 14-hour on-duty day limit to put drivers on a 24-hour workday (which mandated drivers be off duty 10 hours, compared with 8 hours prior to 2003). The key to the 2003 rule and the overall H.O.S. plan, according to the F.M.C.S.A., was to put drivers on a regular 24-hour clock to reduce risk of fatigue from changing sleep periods.
“The rule’s impact on the supply chain cannot be overstated,” the brief said. “Shippers and receivers have developed extensive processes to handle inventory and deliveries to maximize productivity and output and to minimize costs. Groups that handle perishable items, such as grocery stores, bakeries and restaurants rely on effective supply chain management to ensure fresh products are available at the optimum time, and to ensure that excess product is not delivered that will spoil before it can be used or sold. These entities also require flexibility and rely on having products delivered at the most preferred time of day.”
The 34-hour restart provision (referred to as the two-night restriction by some) would weigh especially heavy on early morning and nighttime deliveries, the brief said.
“Grocery stores rely on deliveries early in the morning, especially for perishable goods that have a limited shelf life and must be on the shelves when stores open,” the brief stated. “With the changes to the rule, lead times for perishable goods will increase, leading wholesalers to increase inventory levels to maintain service. All of these changes would lead to increased costs throughout the supply chain.
“The average profit margin for a typical retail supermarket is less than 2%, meaning any additional transportation costs would have a significant negative effect on profitability.
“Transportation of goods in commerce is not a singular event. The stream of transportation involves a complex system involving manufacturers, shippers, carriers, wholesalers, distributors, retailers and ultimately ends with the consumer. Each link of the chain is dependent on the other, and anything that affects one link impacts the others. The reduction in driver productivity, which equates to increased transportation costs, has a profound ripple effect across many closely-intertwined industries.”
The summary went on to say the F.M.C.S.A. failed to consider substantial costs to parties integral to the supply chain other than motor carriers, the impact of restart changes on night drivers and traffic congestion, and that the changes “may be detrimental to safety.” The group said the Regulatory Impact Analysis was flawed in that it overstated the percentage of truck crashes caused by driver fatigue.
The amici contended the provision requiring drivers log a mandatory 30-minute break as time off duty rather than on duty, not driving, also was “unsupported by the record,” and that evidence had been submitted showing the break would “impose significant costs on shippers, receivers and, ultimately, consumers.”
“The 2003 rule limited on-duty time to 14 consecutive hours after a driver came on duty so that drivers could work on a 24-hour circadian clock,” the brief said. “The loss of on-duty time significantly affected carriers and shippers, in large part because many drivers must spend a substantial part of the on-duty time doing things other than driving, including loading and unloading. The loss of flexibility needed to account for unforeseen delays in transportation will affect every aspect of the supply chain.”
Each of the 15 associations had submitted comments during the rulemaking process, with many also participating in public hearings and other forms of input to the F.M.C.S.A. The groups said they supported retaining the H.O.S. rules in effect prior to the latest changes. All the groups rely heavily on trucking, and “represent the core of the American economy,” the brief said.
National Retail Federation members estimated cost increases of 3% to 20% from the rule change.
The A.T.A. and the groups supported the F.M.C.S.A.’s retention of the 11-hour daily driving limit, which it earlier proposed to reduce to 10 hours.