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April 15, 2013

Legal challenge leaves trucking regs, cos. in limbo

HOS rule changes

Continuous driving: Limits a long-haul truck driver to eight hours of continuous driving before being required to take a 30-minute break. Driving is also limited to 11 hours total following 10 consecutive hours off duty.

Maximum hours per week: It reduces by 12 hours the maximum number of hours a truck driver can drive during a work week — from 82 to 70.

Rest requirements: It requires truck drivers who maximize their weekly work hours to take at least two nights' rest from 1 a.m. to 5 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. Drivers are allowed to use the restart provision only once during a seven-day period.

Definition refinements: It clarifies how a driver can count hours in the sleeper berth, as well as being off duty, in computing overall hours of service.

Legal challenges over federal regulations governing hours-of-service for long-haul truck drivers have put Maine trucking companies in a bind: Do they wait for a favorable court ruling on their national trade group's challenge of those rules before the July 1 compliance date? Or do they take on training and implementation costs that could be negated if the regulations are overturned?

At issue are rules the Federal Motor Carrier Safety Administration says are intended to reduce the risk of fatigue-related crashes and long-term health problems for drivers. The American Trucking Associations, a national trade association representing 2,000 member companies, says those assertions are not supported by science; it contends the existing rules have a proven record of reducing the number of large-truck crashes and should be left alone. A coalition of advocacy groups that includes Public Citizen, on the other hand, says the new regulations don't go far enough in making sure fatigued truck drivers involved in interstate commerce are kept off the highways.

For the trucking industry, the stakes are high: Based on the FMCSA's estimate of the time necessary to train drivers on the new rule, along with software reprogramming and related transition costs, the ATA pegs the cost of implementation at $320 million before the July 1 deadline. The FMCSA says public safety is of far greater value, estimating that truck driver fatigue is the cause of 13% of large-truck crashes nationwide.

The impact in Maine is hard to pinpoint, since many trucking companies engage in short-haul work that allows truckers to complete their work each day and have weekends off — thereby avoiding the new requirements. The federal government estimates training, reprogramming and other transition costs related to its hours-of-service rule will cost $200 for each long-haul driver.

It also estimates an additional annual cost of $270 per driver from lost productivity due to fewer hours of driving time.

"We believe the safety benefits provided by the rule are paramount," says Duane DeBruyne, spokesman for the federal agency created in 2000 to reduce crashes, injuries and fatalities involving large trucks and buses. Lowering the number of crashes due to driver fatigue and improving truckers' health is projected to carry a net benefit of almost $300 million annually.

DeBruyne says the change, enacted last year, will be enforced starting July 1. Penalties imposed on drivers or carriers can range from $1,000 to $11,000 per violation, depending on severity.

The ATA says the federal government should hold off until its lawsuit challenging the new rules has been decided.

"We have asked FMCSA to delay the hours-of-service rules," says Richard Pianka, ATA's vice president and deputy chief counsel, explaining that the trade association's February 2012 legal challenge wasn't heard by a three-judge panel of the U.S. Court of Appeals for the District of Columbia until March 15. "It's going to cost more than $300 million to train drivers and several million more for the enforcement community to get ready for the July 1 compliance date. We thought it makes sense to delay implementation of the [hours of service] rule changes until three months after the court issues its decision."

FMCSA denied that request, he says, and since there's no deadline for when the appellate court must rule, long-haul truckers and companies will soon be spending money gearing up for changes that could be negated if the court throws out the new rules.

Pianka says the basis of the ATA's objections is the federal government's "arbitrary and capricious" cost-benefit analysis for changing rules governing rest breaks and the 34-hour restart provision (see "HOS rules changes," above). He says the federal agency's assertion that 13% of large truck crashes are due to driver fatigue created an artificially high cost benefit for those and other changes in the rule.

"That number is far too high," he says, noting that it derives from a study of crashes before 2003, when FMCSA implemented hours-of-service rules that dramatically decreased the number of truck crashes.

The ATA takes the position that under the 2003 rules, which were modified in 2005, only about 2% of large-truck crashes are caused by truck driver fatigue. When a fatigue-caused crash rate consistent with post-2003 studies is substituted for FMCSA's higher estimate, Pianka says, the final hours-of-service rule "is a net loss without any offsetting benefits."

Irksome stipulation

Pianka says of particular concern is the stipulation that limits the 34-hour restart period to two consecutive nights between 1 a.m. and 5 a.m., instead of allowing for a flexible time-frame as the previous rule did. He says the federal government understates the economic impact of that change, which represents a significant additional loss of productivity and will affect many retailers — notably food suppliers — who rely on night-time driving or early-morning delivery times.

Tim Doyle, vice president of the Maine Motor Transport Association, whose 1,200 member companies employ more than 30,000, says since many Maine trucking companies are short-haul carriers, their drivers won't be affected as much by the new requirements as long-haul carriers and drivers. Even so, he agrees with Pianka that the 34-hour restart provisions will be particularly troublesome and could increase delivery times and shipping costs for goods hauled over long distances.

"We certainly stand with the ATA on this issue," he says. "We're hoping it will be resolved soon."

"There's a lot of uncertainty to whether this thing is going to go through or not," says Sheldon Cote, safety director of Pottle's Transportation Inc., a Bangor long-haul carrier whose fleet of 130 tractor-trailers carry goods primarily east of the Mississippi. "Nobody is making a move right now. We know the potential is there, but we're not operating under those new rules just yet."

But Cote says that will change soon, even if the appellate court has not yet ruled on the ATA's challenge of the new HOS rules.

"Starting in mid-May, we'll be getting geared up to implement the rules, so that on July 1 our drivers will be familiar with them and following them before the compliance date," he says. "It's going to affect us somewhat, but not as much as the companies that have truckers rolling three to four weeks at a time."

Retailer concerns

"I'm hoping the whole [HOS rule] gets shot down," says John Katzianer, safety manager for Bisson Transportation Inc., a trucking company based in Brunswick whose services include truckload freight hauling in 37 states, freight brokerage and yard management. "When the wheels are not turning, the truckers are not being paid and nobody is making money."

Katzianer says the new HOS rules will "cost our company several thousand dollars in new software." His greater concern, though, is the impact they will have on scheduling and delivery times for freight being transported over long distances.

Shippers and receivers, he says, have embraced just-in-time delivery and lean manufacturing practices to reduce their inventory costs. Trucking companies have created finely tuned distribution systems to meet those needs and deliver goods as quickly and efficiently as possible. For long-haul shippers, he says, the 34-hour restart rule will wreak havoc with the route planning and scheduling.

Several food, retailer and manufacturing trade associations have added their voices to the ATA's lawsuit — among them The Food Marketing Institute, The International Foodservice Distributors Association and the National Association of Manufacturers. In a July 2012 brief supporting ATA's legal challenge, the groups assert that FMCSA's cost-benefit analysis ignores the economic burden the rules will have on industries that rely extensively on trucking.

"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 trade groups state. "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."

Sen. Susan Collins, R-Maine, the ranking member of the Senate Appropriations Subcommittee on Transportation, Housing and Urban Development, has entered the fray by joining a bipartisan group of lawmakers in a letter to Transportation Secretary Ray LaHood asking him to delay implementing the HOS rules.

"Delaying the July 1 effective date is the most responsible course of action to take, given the uncertainty of where the court will come down," Collins and the other lawmakers wrote in their letter.

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