ATA Asks Court to Overturn HOS Revisions; Says Decisions Based on ‘Sham’ of Analysis

This story appears in the July 30 print edition of Transport Topics. Click here to subscribe today.

Changes announced in December to the federal hours-of-service rule rely on a “sham” of an analysis and unjustifiable assumptions, American Trucking Associations told a federal court last week, urging the court to overturn the provisions of the rule that restrict the 34-hour restart and require an off-duty break.

A team of interest groups told the same court that day that the Federal Motor Carrier Safety Administration was derelict in its duty to reduce truck driver fatigue when it decided to keep the 34-hour restart and 11-hour driving day largely intact, and asked the court to change those parts of the rule.

The dueling court filings were the first briefs filed in separate lawsuits the two sides filed in February against FMCSA in the U.S. Court of Appeals for the District of Columbia Circuit. The court has put the cases on the same schedule, though they remain separate lawsuits.

“The agency claims that restart restrictions and the off-duty break requirement are justified by the cost-benefit analysis in FMCSA’s regulatory impact analysis,” ATA wrote in the July 24 brief. “That ‘analysis,’ however, is a sham; FMCSA stacked the deck in favor of its preferred outcome by basing its cost-benefit calculations on a host of transparently unjustifiable assumptions.”

The rule, set to take effect in July 2013, restricted how drivers could use the restart provision, which allows a driver to reset the weekly driving limit by not working for 34 hours. Under the changes, drivers can use the restart only once every seven days, and the period must include two spans from 1 a.m. to 5 a.m. — an attempt by FMCSA to encourage nighttime sleep.---It also requires drivers to take a 30-minute break before driving more than eight hours, and rolls back an hours-of-service exemption for regional drivers by including them in the break requirement.

ATA argued that FMCSA relied on a number of improper assumptions to conclude that its rule would result in a net benefit. Among the assumptions is one that 13% of truck-involved crashes are caused by fatigue, a conclusion it reached based on a study of truck-crash causation.

“FMCSA reached its 13% estimate by assuming that, whenever truck driver fatigue is present at the time of a crash, fatigue caused the crash,” ATA said. If FMCSA used the 2% estimate it used for previous rules, its latest rule would have a net cost, not a net benefit, ATA said.

The benefits to driver health that FMCSA used to justify the rule are “wholly fictitious” and rely on assumptions of causal relationships between working hours, sleeping hours and mortality, ATA said.

The agency has argued that nighttime sleep is of better quality than daytime sleep, an argument ATA said is not supported by science.

ATA faulted FMCSA for restricting the regional drivers’ exemption and applying the rest break to them, because the agency did not propose that when it proposed the rule’s other provisions.

Meanwhile, Advocates for Highway and Auto Safety, Public Citizen and the Truck Safety Coalition told the court that FMCSA went against its legislated safety-first mission by not eliminating the 34-hour restart or the 11th driving hour.

Those groups also relied on previous decisions from the D.C. court, in which that court threw out similar hours-of-service rules that some of the groups had challenged.

“Congress has repeatedly and clearly required FMCSA and its predecessor agency to adopt rules that reduce driver fatigue, increase highway safety and protect driver health,” the groups said in their brief. “Instead, FMCSA adopted rules that allow more daily and weekly driving hours than ever before.”

In its December 2010 proposal to overhaul the hours-of-service rule, FMCSA said it favored a 10-hour driving limit. But it ended up keeping the 11-hour day, to the dismay of the public-interest groups.

The agency said it lacked “compelling scientific evidence demonstrating safety benefits” in a 10-hour rule. But the public- interest groups argued that FMCSA set the bar too high, and even if a 10-hour day showed higher costs than benefits, the agency is within its power to adopt that rule.

“Although the Motor Carrier Safety Act requires the agency to consider ‘costs and benefits,’ it does not require adoption of the most cost-effective rule,” the groups stated.

FMCSA did not return a request for comment on either brief. FMCSA Administrator Anne Ferro has previously defended the rule, saying it “follows through on the commitment I’ve made over and over again — which is putting safety as our highest priority.”

The court has ordered the agency to respond with its own brief by Sept. 24.