Groups Aim to Cut Hours, End Restart, in HOS Brief

Several interest groups currently challenging the federal government’s hours-of-service rule said they will ask an appeals court to reduce the maximum daily driving limit to less than 11 hours, reject the rule’s definition of driver off-duty time and eliminate the 34-hour restart provision.

In a “statement-of-issues” brief filed on March 28, attorneys for Public Citizen, Advocates for Highway and Auto Safety, and the Truck Safety Coalition told the U.S. Court of Appeals for the District of Columbia Circuit that the Federal Motor Carrier Safety Administration’s Dec. 23 rule will not “reduce fatigue-related incidents and increase driver alertness” and is “arbitrary and capricious or contrary to law.”

“It’s a bad rule,” said Gregory Beck, co-counsel for the groups. “The rule that was in place prior to this rulemaking is the same rule that the D.C. Circuit has struck down twice. This rule is slightly better, but it’s going in the wrong direction from where the agency should be going.”

The HOS rule, set to go into effect in July 2013, reduces total driving hours to 70 per week from 82, according to FMCSA. The agency retained the 11 hours of daily driving time, despite having expressed a preference in its proposed rule for 10 hours.

“We’re not seeking any particular number of hours,” Beck said. “Pre-2003, the rule was 10 hours and the mandate to the agency was to make the roads safer. I certainly don’t think they have evidence to prove that 11 hours is safer than 10 hours.”

Co-counsel Henry Jasny said that historical data and sleep surveys show that, after eight hours, the crash risk increases dramatically.

“We thought that in light of that, the agency never should have gone from 10 to 11 hours,” Jasny said. “We’re just trying to pull that back to 10 hours.”

Beck said his clients are challenging a provision that allows truck drivers without sleeper berths to spend their off-duty time sitting in the truck cab or napping in the front seat of vehicles.

“The concern is that drivers will take their off-duty time in their trucks and not really get rest,” Beck said. “If there’s mandatory off-duty time, it should be off-duty time, not just sort of sitting waiting to start driving again.”

The groups are also contesting the 34-hour restart provision, because they believe it allows drivers to be behind the wheel more hours than under the prior rule. The provision requires drivers to once a week take a 34-hour rest — including two 1 a.m. to 5 a.m. stretches — before starting a new workweek.

Beck disagrees with FMCSA that the new rule would reduce the maximum weekly driving hours for truck drivers to 70 from 82 hours.

“FMCSA is averaging over a period of weeks,” Beck said. “But the first week you can still drive the same amount of hours that you could before.”

Beck said if a driver took full advantage of the new rule’s restart provision, he could drive as many as 88 hours over the first week and still average 70 hours over a two-week period or longer.

Jasny said that the new rule also fails to address a congressional mandate that the rule ensure that driving hours do not hurt a trucker’s health over his or her lifetime.

“It’s the amount of hours you let a person operate under these conditions that you know creates health and medical problems,” Jasny said.

In its own brief, American Trucking Associations said it will challenge several provisions of the new rule, including a mandatory 30-minute break and a narrowing of certain exceptions for local delivery drivers (3-19, p. 4).

ATA also is asking the court to reject the restart provision, but for a different reason: it would reduce productivity for some motor carriers, particularly for runs in dedicated lanes.

ATA’s lawsuit, filed in February, claimed that the hours rule was based on flawed assumptions and analysis (2-20, p. 1).

In a related development, shipper group Nasstrac on March 23 filed a motion seeking to intervene in the HOS lawsuit in support of FMCSA’s decision to retain the 11-hour driving limit and to “defend” other aspects of the lawsuit in opposition to the public interest groups.