U.S. Defends HOS Changes Before Court

This story appears in the March 25 print edition of Transport Topics.

WASHINGTON — Lawyers representing the federal government told an appeals court that industry objections to the latest changes to hours-of-service rules for truck drivers are nothing more than “simple scientific disputes” and that the court should defer to the government’s judgment in solving such disputes.

In a March 15 defense of the Federal Motor Carrier Safety Administration’s HOS regulation, Jonathan Levy, a Department of Justice attorney, said it is “not the court’s duty to weigh in on that kind of dispute,” and he asked that the December 2011 regulation requiring drivers to take rest breaks after driving eight hours and limiting use of the 34-hour restart be allowed to stand.

Days after the arguments before the court, Republican and Democratic leaders in the House Transportation and Infrastructure Committee asked Transportation Secretary Ray LaHood to delay implementing the rule until three months after the court decides the case.

FMCSA rejected such a plea from American Trucking Associations just last month.

In arguing the case for ATA, Erika Jones, an attorney with the Mayer Brown law firm, told the U.S. Court of Appeals for the District of Columbia Circuit that FMCSA overestimated the benefits of the regulatory changes by misusing scientific studies.

If the data were not misused, the agency’s analysis would have shown the rule to have a net cost, Jones said. “This rule is not likely to have been enacted as it was, if the agency had used the data correctly,” she said.

Thomas Griffith, one of the three judges hearing the case, told Jones she presented “very persuasive points,” but he doubted that it justified interference by the court.

“It may be bad policy,” Griffith said, “but we’re not here to measure bad policy.”

Jones disagreed. She noted that FMCSA concluded that 13% of truck crashes were caused by truck driver fatigue, which she said was based on an old study that did not actually make that finding. Other research has estimated that 2% to 7% of truck crashes are caused by fatigue, and if the agency used that figure, the regulation would have a net cost.

FMCSA’s action was neither reasonable nor rational, Jones told the court, so it must be overturned.

In their March 18 letter, the Transportation Committee leaders told LaHood that delaying the rule’s July 1 enforcement date would avoid “costly and unnecessary training” for law enforcement and the trucking industry if the court alters or overturns the rule. The letter was signed by the committee chairman, Rep. Bill Shuster

(R-Pa.); the ranking minority member, Rep. Nick Rahall (D-W.Va.); the chairman of the highways subcommittee, Rep. Tom Petri (R-Wis.); and the subcommittee’s ranking member, Peter DeFazio (D-Ore.).

“The trucking industry and law enforcement community will invest substantial resources to train personnel and adjust management systems to comply with the rulemaking,” the lawmakers said. “Most of the training will occur three months before the rule’s compliance date.”

In a separate letter, transportation appropriations leaders from both parties urged FMCSA Administrator Anne Ferro for a delay in the July 1 compliance date.

“Delaying the July 1 effective date of the rule is the most responsible course of action to take given the uncertainty of where the court will come down,” read the letter signed by Sen. Susan Collins (R-Maine), ranking member of the Senate Committee on Appropriations Subcommittee on Transportation, Housing and Urban Development, and Related Agencies. Rep. Thomas Latham (R-Iowa), chairman of the same committee in House, and Rep. Ed Pastor (D-Ariz.), the committee’s ranking member, also signed.

In rejecting ATA’s petition Feb. 22, FMCSA said that such a request would likely not be approved by the court if ATA filed for a stay of the rule.

ATA filed its lawsuit in February 2012, urging the court to overturn the 34-hour restart changes and the requirement for a 30-minute break in which the driver is off duty. In addition to the once-per-week restriction, the optional restart — which drivers can use to reset their weekly driving limits — must include two periods from 1 a.m. to 5 a.m. under the rule, set to take effect July 1.

The court also heard from Public Citizen, which, with its allies, has challenged FMCSA for not reducing the 11-hour driving day to 10 hours and eliminating the 34-hour restart, two provisions the agency added in 2003.

Scott Nelson, Public Citizen’s attorney, accused the agency of “failing to fulfill its statutory obligation to improve safety.” Reducing driving hours would have improved safety by cutting fatigue, even if it would increase economic costs, he said.

FMCSA made “unreasonable assumptions” to justify keeping the 11th hour and the restart, Nelson said, and its explanation for doing so “is just irrational.” Nelson argued that when

Congress created FMCSA in 1999, it told the agency to prioritize safety.

But Griffith asked whether such logic would become a slippery slope, on which FMCSA could continue to cut driving hours. Nelson responded that FMCSA ought simply to put a “thumb on the scale” to weigh safety heavily.

Levy said the agency “acted very rationally, very reasonably and very scientifically.” While FMCSA did not use ideal data to determine the new restrictions, he said all of those decisions were within its discretion.

Levy also defended the estimate that 13% of truck crashes are caused by fatigue. Jones had said that the Large Truck Crash Causation study, where FMCSA got that figure, said only that drivers were fatigued in 13% of the crashes.

“You can’t tell for certain what caused an accident,” he said, calling it a “fair assumption” that if the driver was fatigued, fatigue caused the crash.

To Public Citizen’s challenge, Levy said FMCSA has the discretion to say how it should prioritize safety. “There was a balancing here,” he said, adding that a 10-hour limit would have a large cost with “no commensurate safety benefit.”

Following the March 15 arguments, ATA expressed hope that the judges would agree with its arguments.

“The existing rules have a proven track record, and the agency’s purported reasons for tinkering with them were baseless,” Prasad Sharma, ATA’s general counsel, said in a statement. “We’re hopeful the judges will see through the agency’s mere pleas for deference and after-the-fact explanations for a rule that was agenda-driven rather than evidence-based.”

FMCSA spokesman Duane DeBruyne declined to comment on the arguments, citing a policy against commenting on pending litigation.

But Charles Bunting, a training analyst with the agency, explained the details of the changes, including the new restrictions on the 34-hour restart and the new required rest break, to truck drivers and trucking executives at the Mid-America Trucking Show in Louisville, Ky., March 21.

“The only guidance I have from an agency standpoint is that we’re moving forward unless the court ruling affects it.”

The appeals court has overturned the hours-of-service rules in 2004 and 2007, saying both times that the 11th hour and 34-hour restart should not be allowed. Public Citizen filed both lawsuits.