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Hours-of-Service Rules Arbitrary, Capricious and Irrational: ATA

Posted: August 1, 2014

WASHINGTON — Arbitrary and capricious: that’s what the American Trucking Associations’ (ATA) are calling the majority of the Federal Motor Carrier Safety Administration’s proposed changes to hours-of-service.

In a brief filed on July 24 with the U.S. Court of Appeals for the District of Columbia Circuit, the ATA said those rules further restrict drivers’ ability to work and drive, adding a cost to the economy, undue burden onto drivers, and providing minimal safety benefits.

ATA said that the once-per-week restriction on the use of the restart provision, the requirment that restarts include two overnight periods, and the off-duty break requirements rest entirely on FMCSA’s conclusion that the safety and health benefits of those changes outweigh their costs.

The agency’s cost-benefit anaylsis is “driven by irrational assumptions and unjustifiable decisions made to inflate the total benefits produced by the rule.”

The brief points to FMCSA’s calculation of safety benefits on what it calls an “unjustifiable claim” that 13 percent of crashes are caused by fatigue. That 13 percent, ATA said, was reached by assuming that when truck driver fatigue was present at a crash, fatigued caused the crash.

“This assumption contradicts both the agency’s own prior reading of the same data and

studies showing that, under the 2003 and 2005 HOS rules, only about 2 percent of large truck crashes are caused by truck driver fatigue,” the ATA writes in the brief. “When a fatigue-caused crash rate consistent with those studies is substituted for FMCSA’s inflated estimate, the final rule has net costs instead of net benefits.”

In regards to the off-duty break rule, ATA said that nothing in the administrative record supports the argument that off-duty breaks are more effective in maintaining safety that working breaks. “To the contrary, the record demonstrates that all types of breaks from driving are equally effective at preventing crashes.”

The restriction requiring every restart to include two 1 a.m. to 5 a.m. periods forces nighttime drivers to flip their schedules, increasing fatigue shifting daily schedules, ATA stated. The agency claims that nighttime sleep is more restful than daytime, but under the rule, drivers must base restarts on their home time zone even if they are on the other side of the country, ATA points out.

Many of the reasons for the new rules run counter to the agency’s prior views, ATA argues, pointing to the Administrative Procedure Act (APA), in which changes can be found arbitrary and capricious if the agency doesn’t acknowledge a change in position or provide an adequate explanation for the departure.

Backing up ATA in the brief the Owner-Operator Independent Drivers Association, the National Industrial Transportation League, the Health & Personal Care Logistics Conference, the National Shipper’s Strategic Transportation Council, the Truckload Carriers Association and William Trescott.

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