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October 9, 2012 11:00 AM, EDT

Interest Groups Relied on Faulty Arguments To Challenge HOS Provisions, ATA Asserts

By Timothy Cama, Staff Reporter

This story appears in the Oct. 8 print edition of Transport Topics. Click here to subscribe today.

A coalition of interest groups relied on faulty arguments that were often out of context and used little or no data in their objections to a recent truck driver hours-of-service rule that kept both the 11-hour workday and the 34-hour restart, American Trucking Associations told a federal court last week.

The groups, led by Public Citizen, used “misinterpretations, non sequiturs, statements torn from context, unpreserved arguments, and conclusory assertions backed by only occasional — and misleading — citations to actual data,” ATA said in its brief, which defended the Federal Motor Carrier Safety Administration in the interest groups’ lawsuit challenging the 11-hour day and 34-hour restart provisions.

Public Citizen filed the lawsuit in February, saying FMCSA was derelict in its duty to prevent driver fatigue when it issued a rule in December that kept both provisions, which have been in place since 2003 (3-5, p. 3).

The U.S. Court of Appeals for the District of Columbia Circuit combined that lawsuit with one ATA filed earlier that month, which said the agency should not have put restrictions on the 34-hour restart or required rest breaks during the driving day.

ATA’s brief, filed Oct. 1, responded to Public Citizen’s opening brief from July (7-30, p. 4).

Public Citizen and the Truck Safety Coalition did not respond to requests for comment. Henry Jasny, general counsel for Advocates for Highway Safety, another petitioner in the lawsuit, declined to comment.

FMCSA’s decision to preserve the 11-hour day “did not result from the application of a faulty legal standard,” ATA told the court. The agency used proper discretion in concluding that any safety benefits of a 10-hour driving day would be offset by the cost of losses in productivity, the group said.

Public Citizen also had no basis for its assumption that FMCSA overstated the amount of sleep truck drivers get and understated the average number of hours they drive, ATA said.

The trucking group criticized Public Citizen’s contention that “at least 13%” of all truck-involved crashes are caused by truck-driver fatigue: “Public Citizen has failed to point to any evidence competent to support that claim.”

Public Citizen relied in part on a study of crash causation that ATA criticized in its July brief, in which it said the 13% figure counts crashes in which a driver was fatigued, not just crashes caused by fatigue.

The interest group also cited analyses from the National Transportation Safety Board, but those reports do not prove the group’s point, ATA said.

“Neither analysis even purports to say anything about the overall rate of truck-driver fatigue,” ATA said. “Instead, both are confined to a small subset of accidents fatal to the truck driver.”

In its defense of the 34-hour restart, ATA called it a “flexibility tool” that was not intended — nor is it used — to maximize the amount of driving time.

Public Citizen’s argument “that the restart is a nefarious device basically used by unscrupulous drivers and carriers to maximize hours cannot be squared with the record,” ATA said.

Trucking safety also has improved since the restart was first allowed in 2003. The number of fatalities from truck-involved crashes fell 33% from 2003 to 2009, and injuries dropped 39%.

“Public Citizen does not even pretend to have any actual evidence suggesting that either version of the restart is unsafe,” ATA said, referring both to the original restart provision and to the amendments that FMCSA made to it in the most recent rule, which is set to take effect in July 2013.

The interest groups are scheduled to respond on Oct. 24 to ATA, as well as to FMCSA’s Sept. 24 brief defending the entire rule. The court has not yet scheduled oral arguments in the case.

Public Citizen and the Truck Safety Coalition convinced the court to overturn hours-of-service rules in 2004 and 2007 that allowed an 11-hour day and a 34-hour restart, but FMCSA kept both provisions each time.

A 2009 lawsuit against the provisions by those groups, as well as Advocates for Highway and Auto Safety and the Teamsters, was settled when the agency agreed to reconsider the rule, resulting in the December 2011 version.