Trucking and shipping interests and consumer advocates alike urged the U.S. Court of Appeals to overturn the latest truck driver hours of service rule Friday, repeatedly calling the Federal Motor Carrier Safety Administration and its latest truck driver work rules “irrational,” a charge the FMCSA tried to refute.
The new rules are too restrictive for the American Trucking Associations and not restrictive enough for Public Citizen and its allies, which would like to see daily driving shifts limited to 10 hours — at the most — and the restart provision that lets truckers reset their weekly work clocks after 34 hours off-duty eliminated.
Unless the appellate court panel decides to send the rules back to the FMCSA for revision, the tighter 34-hour restart provision and a new 30-minute break requirement will take effect July 1, and shippers fear that will slow supply chains, requiring more trucks and drivers and raising costs. Carriers see the rules raising their costs by cutting into productivity and utilization and creating higher demand for hard-to-hire drivers.
The FMCSA, attacked from both sides, portrayed itself as the reasonable party in the court room. “The agency had to balance health and safety and economic interests,” said Jonathan Levy, a Justice Department attorney who represented the FMCSA. He defended the FMCSA’s use of data drawn from studies and broadly criticized by ATA.
“This is a disagreement on very technical and scientific terms about what the agency has done with data,” Levy said. “These are largely simple scientific disputes. I don’t think it is this court’s duty to weigh in on that type of dispute ... The agency acted very carefully, fully rationally and scientifically” in its rulemaking, he said.
Not so, said ATA and Public Citizen, but for different reasons. “Their interpretation (of the data) is not reasonable and should be rejected by this court,” said Erika Jones, an attorney representing ATA. “The data doesn’t say what the agency says it does. We believe (the rule) is arbitrary because it doesn’t match the data.”
The trucking lobby group says the federal agency vastly overestimates the number of accidents caused by truck driver fatigue — 13 percent of truck crashes, according to the FMCSA. “We submit it’s in the range of 2 percent or at the highest 7 percent,” said Jones. “We don’t think it’s anywhere in the realm of 13 percent.”
Jones claimed the agency did not distinguish between “critical events” and “associated factors” when drawing on accident data from the Large Truck Crash Causation Study, released by the FMCSA and National Highway Traffic Safety Administration in 2003. That inflated the number of fatigue-related crashes, she said.
“There’s a lot of data floating around, and it needs to be marshaled, reconciled and explained,” Jones said. She also called the 10-year old LCCTS study obsolete.
It’s not the age of the data, but the size of the database that really matters, Levy told the court. “The LTCCS is the largest most accurate study of its kind done,” he said. The studies ATA relies on, while more recent, were smaller in scale, he said. The federal attorney defended the FMCSA’s interpretation of LCCTS data, noting Public Citizen believes the percentage of fatigue-related accidents to be much higher.
“The ATA says 2 to 3 percent, and Public Citizen says 30 to 40 percent,” Levy said. Seven percent of the accidents in the LCCTS happened when a truck driver fell asleep, Levy said. “Seven percent should be a base level for fatigue-related crashes.”
Public Citizen attorney Scott Nelson argued the FMCSA abandoned its legal responsibilities when it kept the daily driving limit at 11 hours. “The agency acted irrationally by failing to follow its statutory duty by increasing per shift driving time” from 10 to 11 hours — a regulatory change that’s been in place since 2003.
“The agency now admits that the 11th driving hour has significant safety risks, and the only function that restart has is to significantly increase weekly working hours,” he said. On that basis, the agency’s rulemaking decisions are “just irrational ... It’s just not rational to prefer 11 hours to 10 hours,” Nelson told the court.
In its rule-making, the FMCSA said moving to a 10-hour driving limit “might save more lives and prevent more crashes than an 11-hour limit, but at a higher cost.” Nelson characterized that as flouting the agency’s mandate to improve highway safety, but Levy argued the FMCSA had to balance driver health benefits, public safety on the highways and economic costs, weighing “apples and oranges.”
What else isn’t rational? The FMCSA’s analysis of the health benefits of additional sleep, Jones said. “The health benefits (of the rule) are based on the assumption that adding a few minutes of sleep a night will result in hundreds of millions of dollars in benefits, and that’s not rational,” she said.
The ATA also objected to the requirement that a break after eight hours of driving required by the new rule be “off-duty,” excluding all on-duty non-driving activity. Drivers on the road don’t have many “leisure” options, she said. During their break, “they’re going to be at a truck stop or in their truck cab. They’re not going home.”
Levy argued the current hours-of-service debate as typical of federal rule-making, noting “these are the kinds of decisions federal agencies make all the time and courts don't allow parties to come in and say ‘we have an expert who says you're wrong.’ You can't do that.” Based on three previous federal court rulings against the FMCSA and earlier versions of the hours-of-service rule, perhaps you can.
There was some evidence, however, at least one judge was weary of the data duel. “Aren’t these arguments better made before the agency?” Judge Thomas B. Griffith asked Jones. The FMCSA’s rule “may be bad policy," he said, “but is it arbitrary and capricious? We’re not here to measure policy.”