ATA Objects to FMCSA’s Fatigue Claims in Latest Court Filing on HOS Lawsuit

This story appears in the Oct. 29 print edition of Transport Topics. Click here to subscribe today.

American Trucking Associations reiterated its objections to parts of the hours-of-service rule last week, rejecting claims federal regulators used to justify the restart provision and off-duty requirements.

The Federal Motor Carrier Safety Administration’s rule, scheduled to go into effect in July, uses unreliable assumptions in calculating the percentage of large-truck crashes caused by driver fatigue and in assessing the benefits of sleep, ATA said in a federal court brief filed in response to an earlier FMCSA brief.

Richard Pianka, ATA’s deputy chief counsel, said FMCSA’s assumption that fatigue is a factor in 13% of large-truck crashes is “vastly overstated.”

“FMCSA assumed that the new rule would essentially prevent all of those crashes,” Pianka told Transport Topics. “Since neither of those assumptions are correct, their benefit side of the ledger in the cost-benefit analysis has a huge thumb on the scale.”

FMCSA does not comment on legal proceedings, a spokesman said.

The rule reduces total weekly driving hours to 70 from 82, retains the maximum of 11 hours of daily driving time and requires that drivers take a 30-minute off-duty break within the first eight hours of driving time.

The rule restricts the restart provision, which allows a driver to reset the weekly limit by not working for 34 hours. Under the change, 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.

FMCSA said it “acted at the height of its expertise and discretion” when it decided to put new restrictions on the restart provision.

ATA filed its lawsuit earlier this year, asking an appeals court to reject the rule. A number of public-interest groups, led by Public Citizen, also have asked the court to block the rule, but in their case, it’s because they believe the rule does not go far enough in limiting driver hours.

ATA’s brief said that a 7% estimate on fatigue-related crashes is “plausible” and would represent “the highest estimate supported by the record.”

FMCSA’s claim that “there is a continuous and causal relationship between sleep and mortality” is faulty, ATA said.

In addition, the agency incorrectly assumes that the new restart restriction would have no effect on drivers. Instead, it removes flexibility from schedules, ATA said.

“The problem is that Public Citizen and Advocates [for Highway and Auto Safety] and the agency to some extent are taking the position basically that the restart is used over and over by the same drivers week after week to regularly drive 70-odd hours per calendar week,” Pianka said. “That’s just not the reality.”

In fact, ATA said, the two-night restriction encourages drivers to sleep at particular hours at the direct expense of their established sleep patterns.

ATA does not have objections to drivers taking a 30-minute break from driving, but the trucking federation believes that requiring an off-duty break is problematic, Pianka said.

“You can be refueling the truck, supervising a load, or doing some paperwork. You don’t need to be sitting there staring off into the distance doing nothing,” Pianka said.

In its own brief filed last week, Public Citizen said the rule increases the number of weekly driving hours.

“The government’s brief attempts to downplay the increased driving time permitted by the restart, but even as modified, the restart allows drivers on eight-day schedules to drive more than 80 hours every eight days and drivers on seven-day schedules to alternate weeks in which they drive 77 hours with weeks in which they drive 60 hours,” Public Citizen said.

Public Citizen also criticized the agency for rejecting the reduction of the number of driving hours to 10 from 11, based on a cost-benefit analysis.

“By choosing a less-safe rule over one that would improve safety . . . FMCSA allowed its pursuit of net benefits unrelated to safety to overcome the statutory command that FMCSA ‘consider the assignment and maintenance of safety as the highest priority,’ ” Public Citizen said.