More groups file lawsuits challenging HOS rule
February 27, 2012
When the American Trucking Associations filed a petition with the U.S. Circuit Court of Appeals for the District of Columbia, asking the court to review the Federal Motor Carrier Safety Administration’s final rule for truck drivers Hours-of-Service (HOS) issued late last year, it was hardly surprising.
And neither was news late last week that the rule is now the subject of a similar lawsuit by the Advocates for Highway and Auto Safety, Public Citizen, the Truck Safety Coalition, and two truck drivers on the grounds that the final HOS rule still fails to make needed improvements to protect the public from tired truckers and should be subjected to judicial review.
“Given the FMCSA’s mission to prevent truck-related deaths and injuries, it is appalling that the agency issued yet another rule that fails to adequately address truck driver fatigue and puts the public’s safety at risk,” said Henry Jasny, vice president and general counsel, Advocates for Highway and Auto Safety, in a statement.
In December 2010, the FMCSA rolled out its proposed HOS rules changes, which subsequently received decidedly mixed reviews in terms of their potential impact, in terms of its potential for an increase in the cost of doing business, as well as questions from trucking industry stakeholders as to whether or not these rules need to be changed from their current version, which have been in effect since 2004.
The final HOS rule is comprised of the following, according to FMCSA:
-the maximum number of hours a truck driver can work within a week has been reduced by 12 hours from 82 to 70;
-truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes, and drivers can take the 30-minute break whenever they need rest during the eight-hour window;
-the final rule retains the current 11-hour daily driving limit (the FMCSA was considering lowering it to 10 hours) and will continue to conduct data analysis and research to further examine any risks associated with the 11 hours of driving time;
-truckers who maximize their weekly work hours to take at least two nights’ rest when their 24-hour body clock demands sleep the most—from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule’s “34-hour restart” provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty. The final rule allows drivers to use the restart provision only once during a seven-day period; and
-carriers that allow drivers to exceed the 11-hour driving limit by 3 or more hours could be fined $11,000 per offense, and drivers could face civil penalties of up to $2,750 for each offense.
FMCSA officials said that commercial truck drivers and companies must comply with the HOS final rule by July 1, 2013.
In regards to the 34-hour restart provision, the organizations filing this lawsuit explained that the 34-hour restart provision encourages cumulative fatigue and allows drivers to exceed weekly driving and work limits. They added that the restart provision, which has been intact since 2004 without any supporting data or research, reduces drivers’ off-duty time from 48 or more hours to 34 hours off duty after driving up to 70 hours and working more than 80 hours over eight days.
What’s more, the organizations said that driver surveys sponsored by the FMCSA demonstrated that under the current HOS rule, 65 percent of truck drivers admitted they drove while tired, with another 48 percent said they have fallen asleep behind the wheel in the past year.
When the ATA filed its lawsuit, ATA officials pulled no punches in their reasoning for bringing this matter to court, which has long been expected in industry circles.
“We regret that FMCSA and the Obama administration have put ATA and its member companies in a position to take this legal action,” ATA President and CEO Bill Graves said. “The rules that have been in place since 2004 have contributed to unprecedented improvement in highway safety. The law is clear about what steps FMCSA must undertake to change the rules and we cannot allow this rulemaking, which was fueled by changed assumptions and analyses that do not meet the required legal standards, to remain unchallenged.”
The ATA leader added that FMCSA’s own analyses show that even when they overstate the safety benefits of these changes, the costs created by their rule still outweigh those benefits.
“We need this issue to be resolved in a credible manner, taking into account the undisputed crash reduction since 2004, so we can focus limited government and industry resources on safety initiatives that will have a far greater impact on highway safety,” concluded Graves.
While the final rule is not set to take effect for more than a year for now, shippers are—and have been largely skeptical in regards to the impact of the final rule.
One of the many questions posed by shippers is if the final rule will have a substantial impact on their supply chain operations and the ability to serve customers based on what the loss in hours could do.
“We think that it will decrease overall capacity and result in tighter market conditions,” said Craig Boroughf, director of indirect sourcing and transportation at USG, last year. “Based on our length of haul of less than 300 miles, we think the service implications will be minimal although we will feel the capacity impact and a tighter regulatory environment, too. We are looking at the impacts of these changes on our business model more than whether we agree or disagree with whether they are required.”
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