FMCSA addresses HOS lawsuits

The Federal Motor Carrier Safety Administration (FMCSA) has responded to lawsuits filed by Public Citizen and the Owner Operator Independent Driver Assn. (OOIDA) against its hours-of-service (HOS) rule. In a brief submitted to the court by the Dept. of Justice, FMCSA defended HOS against from complaints by Public Citizen that challenge the agency's extension of allowable driving time from 10 hours

The Federal Motor Carrier Safety Administration (FMCSA) has responded to lawsuits filed by Public Citizen and the Owner Operator Independent Driver Assn. (OOIDA) against its hours-of-service (HOS) rule. In a brief submitted to the court by the Dept. of Justice, FMCSA defended HOS against from complaints by Public Citizen that challenge the agency's extension of allowable driving time from 10 hours to 11 hours per day, and the 34-hr. consecutive off-duty time needed to restart the weekly clock.

The agency cited a study concluding that drivers were averaging 6.28 hours of sleep per day under the 2003 rule, an increase of more than an hour compared to the old rule.

FMCSA argued that “the costs of imposing a ten-hour limit far outweigh the safety benefits,” primarily because several operational and laboratory studies found “little or no statistically significant difference” in driver performance between the 10th and 11th hours of driving.

FMCSA said that the 34-hour recovery provision is reasonable because drivers appear to use this off-duty time for operational flexibility rather than to maximize driving hours. “Despite fears that drivers would use the restart to maximize their weekly hours, FMCSA's field survey found that 95% of the recovery periods exceeded 34 hours in duration, with 50% longer than 58 hours,” DOJ said.

Public Citizen had complained that under both the 2003 and 2005 rules, drivers could potentially accumulate as much as 77 hours in a seven-day period and 88 in an eight-day period.

“If the recovery provision increases crash risk by allowing drivers to build up cumulative fatigue, as [Public Citizen] contends, one would expect the crash statistics to reflect that,” DOJ said. “But the statistics from 2004 tell a different story. Not only do carriers report lower crash rates, but the data indicate a reduction in fatigue-related crashes.”

The OOIDA lawsuit contends that the 2005 amendment to the sleeper-berth provision — which requires drivers to take at least eight consecutive hours in the sleeper, plus an additional two hours either in the berth or off duty — is arbitrary and capricious.

OOIDA said drivers prefer to have the option of shorter driving periods and more frequent rests, as was possible under the more flexible sleeper berth provision of the 2003 rule.

But DOJ countered that “splitting sleep into shorter periods, even if the periods add up to seven to eight hours, is not sufficient…In one study… researchers concluded that splitting sleep into two periods in a sleeper berth, without eight consecutive hours, increased the risk of fatality over twofold.”

The Court had vacated the 2003 rule, citing FMCSA's failure to fulfill its statutory obligation to consider drivers' health. However, in its court brief, DOJ pointed out that FMCSA had considered factors such as exposure to diesel exhaust, potential harm from driving noise and exposure to vibration in truck cabs to conclude that the number of hours permitted by HOS would not have a negative impact on driver health.

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