Docket Clerk
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RE:     Proposed Amendments to Hours of Service of Drivers Regulations (49 CFR Part 395); Docket No. FMCSA 97-2350

Dear Sir or Madam:

This statement is filed by the Food Marketing Institute (FMI) in response to the Federal Motor Carrier Safety Administration’s (FMCSA’s) request for comments on proposed revisions to the hours of service (HOS) rules, published in the Federal Register on May 2, 2000. 65 Fed. Reg. 25540 (May 2, 2000). FMI’s member companies, our nation’s food retailers and wholesalers, strongly oppose the proposed revisions and urge that they be withdrawn.

FMI is a nonprofit association conducting programs in research, education, industry relations and public affairs on behalf of its 1,500 members — food retailers and wholesalers in the United States and around the world. FMI’s domestic member companies operate approximately 21,000 retail food stores with a combined annual sales volume of $300 billion, which represents three-quarters of all grocery store sales in the United States. FMI’s retail membership is composed of large multi-store chains, small regional firms and independent supermarkets.

Just about every item on the shelves of our nation’s supermarkets and grocery stores was delivered to the store by truck. Individual FMI members operate some of the largest truck fleets in the country. These trucks – each emblazoned with a member company’s name – travel through the communities they serve on a daily basis. Collectively, the food distribution industry is among the largest users and operators of trucks. Therefore, FMI and its members are vitally concerned about the safety and productivity of trucking operations. Our members are proud of their record when it comes to training and promoting safety standards for their drivers and vehicles.

As a result of their substantial experience in the trucking industry, food retailers and wholesalers fully understand that fatigue plays a role in highway safety and we commend FMCSA for its efforts to develop a better understanding of that role. Although the proposed modifications to the HOS rules are well-intended, they will not promote increased safety in any meaningful way in our industry. In fact, we believe that the changes FMCSA has proposed may have a negative impact on safety, as well as the environment and, ultimately, on the cost of food offered to consumers at retail stores.

Specifically, if finalized as proposed, the regulations will force food retailers and wholesalers to place more trucks on the road at peak driving periods, which will increase traffic congestion for commercial and non-commercial drivers alike. Moreover, in light of the well-publicized shortage of truck drivers, the additional trucks necessitated by the rule will likely be driven by inexperienced drivers. Increasing the number of trucks on the road will also increase fuel use and impact air quality. Additional costs for trucks, drivers, and fuel to distribute food to retail stores will ultimately impact consumer prices for food. Finally, the limited hours during which drivers may operate trucks will have a significant impact on the freshness of product that reaches consumers. To satisfy consumer expectations, the food distribution system currently operates on a 24-hour-per-day, 365-day-per year schedule that does not stop at night or on weekends. The limited hours proposed by the FMCSA will diminish the food distribution industry’s current level of efficiency to the ultimate detriment of our nation’s consumers.

Our specific concerns with the proposal are discussed more fully below.

Types of Operations. FMCSA’s proposed regulations implicitly acknowledge that there are many different kinds of trucking operations. For example, long-haul operations that require drivers to be on the road for days at a time clearly raise different issues than regularly scheduled operations that begin and end at the same location on a daily basis. In recognition of the different types of operations, FMCSA has attempted to classify all commercial drivers into one of five types, each with its own set of different, complex requirements and work limitations. Proposed 49 CFR § 394.121. For each classification, FMCSA has proposed separate minimum off-duty requirements, maximum daily and weekly on-duty and driving allowances, and different record-keeping requirements. 49 CFR § 394.167; see proposed § 394.141; §§ 394.147 – 394.165; §§ 394.201, et seq.

The agency’s attempt to categorize all commercial drivers into different types has resulted in a highly impractical and complicated maze of requirements that will lead to tremendous confusion among management and drivers in our industry. While many drivers in the food distribution industry may be classified as “Type 4” drivers, most companies will have drivers of each type, and it is entirely possible that individual drivers could be categorized in any or even all of the other driver types.   

Indeed, many drivers could easily fall into several different driver types within the same workweek, or even within the same day. In fact, one FMI member company estimated that it would be possible for a single driver to fall into as many as three classifications within the same week. We believe that this would, in fact, not be uncommon in our industry. For example, on Monday morning, a driver at a suburban distribution center may be scheduled to deliver product to retail stores at a relatively short distance, and then return to the distribution center where the driver would be released from work (Type 4). However, on Wednesday she may be on a split schedule, working in the morning and then returning to work later in the day to make additional deliveries to other stores (Type 3). On Thursday, the same driver could be scheduled to pick up product from a more remote location, requiring an overnight stay (Type 2). This is just one hypothetical example of how the proposed driver types are exceedingly complicated and do not work for our industry. The proposed rule tells operators to make a “good faith” effort to classify drivers properly, but this provides little comfort to companies at a loss as to how to comply.


Mandatory “weekend” and nights off. Proposed section 394.161 requires motor carrier employers to provide every driver with an off-duty period of between 32 and 56 hours each week. The off-duty period must include two consecutive midnight to 6:00 am periods. 49 CFR § 394.103(a)(3), § 394.161. The mandatory weekend and nights off provisions will have a substantial impact on the food distribution industry’s ability to provide consumers with fresh products.

Specifically, as noted above, distribution of food to retail outlets occurs 24 hours per day. In fact, many deliveries are made between midnight and 6:00 am. Overnight deliveries assure that product is in the stores and available to morning customers who expect to see fresh perishable products on the shelves.   In addition, many companies find it more efficient to schedule drivers to deliver to retail stores during the late night and early morning hours when there are fewer passenger vehicles on the roads. Many municipalities encourage deliveries during these hours to reduce traffic congestion during peak hours.

Accordingly, FMI member companies are tremendously concerned about FMCSA’s proposal to prohibit drivers from driving during two consecutive midnight to 6:00 a.m. periods each week. If adopted, this provision will result in reduced availability of fresh product to consumers and in increased times for drivers to deliver their product, causing a significant decrease in the efficiency of the overall food distribution. Perhaps most importantly, the proposed requirement will result in more trucks on the road at times when there are a greater number of passenger vehicles sharing the roadways, making our nation’s roadways even more congested than they are now.


Reduction in daily and weekly hours of service. Under the current hours of service regulations, drivers may be on-duty for up to fifteen hours, provided that they do not drive for more than ten hours during the on-duty period. 49 CFR § 395.3. The proposed regulations will reduce on-duty time while increasing the percentage of time that drivers may operate commercial motor vehicles during the on-duty period. See proposed 49 CFR § 394.167. However, as explained more fully below, food distribution industry drivers often spend a substantial amount of on-duty time performing non-driving activities. Therefore, the proposed decrease in on-duty time will require our members to increase the number of trucks and drivers simply to achieve the same level of operating efficiency. As increasing the number of trucks and inexperienced drivers on the road will not enhance highway safety, we recommend that FMCSA withdraw the proposed limitation on on-duty operating periods and continue to permit additional on-duty time for non-driving activities.

FMI’s members uniformly confirm that the reductions in on-duty time called for in the proposed regulations will force them to put more trucks on the road to deliver the same volume of products. The additional trucks will require additional drivers; however, our members are greatly concerned that they simply will not be able to find enough drivers qualified to meet the increased demand as a result of the well-documented, on-going driver shortage. The driver shortage currently poses substantial difficulties for our members, despite the fact that food distribution industry drivers are well-compensated and return home almost every night. In these circumstances, the proposed regulations requiring more trucks and drivers will result in less experienced and less qualified drivers on the road, often during peak traffic periods.

While the number of additional drivers that will be needed will vary from company to company depending upon the nature of their operations, it is quite clear that the net effect in the food distribution industry will be a substantial increase in the number of trucks and drivers on the road. Truck fleets operated by the larger food retailers and wholesalers travel more than 40 million miles each year. The average food chain employs eighty drivers to operate a truck fleet that travels over 700,000 miles every four weeks, shipping 6.3 million cases of product to stores. According to the Bureau of Labor Statistics, food retailers and wholesalers employed approximately 140,000 truck drivers in 1998; the current proposal could easily increase that number to a significant degree – if qualified drivers can be found.

One of our members provided the following example to illustrate the impact that the proposed regulations would have on its operations. The member operates a medium-sized perishables distribution center that serves approximately 90 grocery stores using 45 to 48 trucks per day. The drivers typically work four days per week and spend approximately 40 percent of their on-duty time performing non-driving activities. Most of the drivers working out of this distribution center would be categorized as Type 4 drivers, who would be limited to 12 consecutive on-duty hours per workday under the proposal. Therefore, to maintain its current level of service to stores under the proposed regulations, this company estimates that it will be necessary to schedule an additional 5 to 8 drivers per day and to purchase 5 additional trucks, just to maintain current service levels. The result would be an increase from 45 or 48 trucks per day to 50 or 53 trucks per day for this one distribution center.

Additional trucks would be required in order to compensate for the decrease in on-duty time that would be allowed under the proposed regulations. Specifically, the current rules permit truckers at this distribution center to drive 10 hours per day and to be on duty in a non-driving capacity for up to 5 additional hours per day. The proposed rule’s 12-hour total on-duty time per day will require the distribution center to reduce work times and hire additional drivers to compensate for the decrease in permitted on-duty time, despite the fact that the drivers’ overall driving time would not be affected by the proposal. Unfortunately, the proposed regulation does not reflect the fact that many truck drivers in the food distribution industry spend a substantial amount of their on-duty time engaged in non-driving activities.

The above discussion provides just one conservative example of the real world impact of the proposed regulations. The average grocery industry distribution center receives close to 500 in-bound trucks each week carrying about 500,000 cases of product. Larger distribution centers, which ship more than 3 million cases to stores each week, would need to hire even more drivers and send many more additional trucks on to our roads and highways every day. There are at least 500 food warehouse distribution centers in the United States. If each of these warehouses must engage an additional 5 trucks per day, the proposed regulation would result in an additional 2,500 trucks on the road every day, just to get food from distribution centers to supermarkets. Again, we consider these to be conservative estimates and believe the actual numbers would be much higher. Surely such a dramatic increase in the number of trucks on the road during peak hours, driven by less experienced drivers will not promote truck safety.

Lack of flexibility. FMI member companies are very concerned about the lack of flexibility in the proposed regulations. Food distribution, as noted, is an ongoing 24 hour per day, 365 days per year operation. There are times, especially during holiday periods, when additional flexibility is needed to enable product to reach stores with products consumers need. We urge FMCSA to modify the proposed regulations to allow food distributors to serve their customers in these circumstances.      


Loading and Unloading Practices. The proposed regulations require carriers to inform drivers of their responsibility for providing loading and unloading services with respect to their cargo. Proposed 49 CFR § 394.169; see also proposed 49 CFR § 395.169. FMI supports this provision. All too often drivers are confused or misinformed about these responsibilities when they arrive at distribution centers with their shipments. We believe that it is the carriers’ responsibility to advise their drivers accurately concerning their obligations at the receiving dock.

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The food distribution industry remains strongly committed to pursuing a safer transportation environment for our truck drivers, and the communities and customers we serve. However, for the reasons stated above, the Food Marketing Institute is strongly opposed to the proposed hours of service regulations and we urge FMCSA to withdraw the proposal. We look forward to working with the Department in a cooperative manner to develop a more effective approach to improving safety on our nations’ highways.

Respectfully submitted,

George R. Green
Vice President
General Counsel