Public Citizen Again Challenges HOS Rule

This story appears in the Sept. 7 print edition of Transport Topics.

Advocacy groups led by Public Citizen, once again taking the Federal Motor Carrier Safety Administration to court over its driver hours-of-service regulation, said increasing allowed driving time and allowing a reset of weekly hours have led to more fatalities caused by fatigued driving.

In its third challenge to the driver-hours rules, Public Citizen’s coalition said the 2003 regulation harms drivers’ health and asked a federal appeals court to reject it.

“Rather than improving safety as Congress directed, the agency approved a rule that dramatically increased the number of daily and weekly hours that truck drivers may drive,” the groups said in an Aug. 27 brief filed with the U.S. Court of Appeals for the District of Columbia.

Arguing that the 2003 revision to the Depression-era federal regulation favored trucking industry concerns over driver health, Public Citizen specifically tackled FMCSA’s contention that the rule has not  adversely affected safety.

Despite recent reported declines in truck-related crash fatalities, the coalition said the rules actually caused more fatigue-related deaths.

“National crash statistics are not limited to fatigue-related crashes and cannot isolate the effects of the HOS rule,” Public Citizen said. “Indeed, FMCSA itself has rejected the use of national crash data for precisely these reasons.”

The group acknowledged that since 2003, the rate of truck crashes has declined, but it said the overall rate of crashes for all vehicles has declined faster (7-13, p. 1).

In 2003, FMCSA issued its revised regulation, increasing the allowable driving time by an hour to 11 hours per day but limiting that driving to a 14-hour period. Previously, drivers could work 15 hours but could log on and off at will, allowing them to extend the workday.

The revised regulation also allowed drivers to reset weekly driving limits after a 34-hour break.

The appeals court ruled in 2004 that FMCSA failed to consider the effect of the changes on driver health and overturned the rule.

Since then, the agency has twice reissued the rule in response to court rulings but neither time made major changes to the rule.

“FMCSA is supposed to protect truck drivers and the public from unsafe driving conditions,” Greg Beck, the Public Citizen attorney, said in a statement. “Instead, it only protected the trucking industry.”

Public Citizen, along with Advocates for Highway and Auto Safety, the Truck Safety Coalition and the Teamsters union, said the 34-hour restart “dramatically” increases permissible weekly driving and that daily driving time increased “without establishing that the increase enhances safety.”

In its filing, Public Citizen said that FMCSA’s position that the number of fatigue-related large-truck crashes has been stable since the rule went into effect “lacks any scientific foundation.”

“Between 2003 and 2007, the number of fatal passenger-vehicle crashes per 100 million miles traveled fell by 12%,” Public Citizen said. “During the same period, the number of fatal large-truck crashes per 100 million miles traveled fell by only 7.6%.”

Public Citizen also claimed that fatigue-related truck crashes rose between 2003 and 2007, adding that “to the extent this data suggests anything, it suggests that fatal crashes from driver fatigue have been a drag on what would otherwise have been a larger decline in truck crashes.”

Beck told Transport Topics the fatigue-related crash data comes from the federal government’s Fatality Analysis Reporting System, or FARS, the central database where fatal crash data is stored.

Bob Digges, deputy chief counsel for American Trucking Associations, said, “Virtually all of [Public Citizen’s] arguments made are simply a repeat of arguments previously advanced with very little effort to address the more recent agency findings in support of the rule.

“The continuing improvement of the trucking industry’s safety record under the new rules confirms that the sky-is-falling claims by Public Citizen are simply not true,” Digges said.

The groups also said FMCSA is required to consider driver health when it publishes new regulations, but that “long, irregular driving hours significantly impair driver health, both directly and by increasing exposure to other hazards, such as cancer-causing diesel emissions, excessive noise (causing hearing loss) and vibration (causing back pain and injuries).”

Public Citizen said FMCSA’s “focus on productivity at the expense of driver safety is contrary to its statutory responsibilities.”

In its previous rules, FMCSA has said increases in industry productivity were a reason for maintaining the extra driving time and 34-hour restart.

“No matter how strenuously FMCSA argues that its rule benefits industry, it has failed to comply with Congress’ directive” to ensure the highest level of safety in the trucking industry, Public Citizen said.

FMCSA has until Oct. 13 to respond to Public Citizen’s brief with its own legal filing.