The American Trucking Associations believes that Public Citizen - a group that claims to promote highway safety -- continues to disregard the important safety advantages of the commercial drivers' Hours of Service (HOS) regulations that it has attacked in the courts, and that it also disregards the positive safety experience of the motor carrier industry under those regulations.
The ATA says that Public Citizen continues to fail to recognize that the current HOS regulations significantly increased the mandated daily rest period for drivers from 8 to 10 hours and required drivers to complete their daily driving within 14 hours of the beginning of their shifts instead of an extendable 15 hours in the previous regulations. These two changes help ensure that drivers do not suffer from cumulative fatigue and make safer the driver's daily driving tour, including in the 11th hour, according to the ATA.
In response to a challenge from Public Citizen, joined by three other safety groups and the Teamsters union, the U.S. Circuit Court of Appeals for the D.C. Circuit vacated two HOS provisions: one allowing 11 hours of driving time per day and one allowing drivers to restart their weekly clock after 34 hours of rest. ATA, citing positive safety data under the new rules and extreme disruptions to the trucking industry related to a transition to new rules is seeking a stay of decision for 8 months to allow those provisions to stay in place pending further agency action. FMCSA strongly supported that motion, citing the same grounds relied on by ATA, but asked that the stay be 12 months instead of 8.
In a filing opposing the ATA motion, Public Citizen first claimed that the Court had substantively struck down the two challenged provisions and that the Court would unquestionably do so again in future litigation. ATA, in a reply filed Friday, countered that the Court did not rule that those provisions are unsafe, only that FMCSA erred in its rulemaking procedures.
This assertion was supported by express statements made in the Court's opinion. FMCSA agreed as well, noting in its filing that the decision "did not foreclose issuance of a new rule that contains the 11- and 34-hour provisions, assuming the agency provides the requisite notice and comment and adequately explains its reasoning.
Among ATA's other responses to Public Citizen's filing are:
- It failed to address an expert statistician's declaration that validates the FMCSA interpretation of the key fatigue study at issue in the litigation.
- It failed to respond to evidence that in the real world of truck operations, the 34-hour restart does not significantly increase weekly driving hours.
- It failed to respond to the reports of positive effects that the 11- and 34-hour provisions have had on drivers and their health. Under these provisions drivers have more time at home with families, greater scheduling flexibility and opportunities for greater income.
- It offered no proof, only patently wrong assertions, that the dislocation and costs to the industry of a rule change would not be as great as ATA suggests.
- It wrongly stated that productivity benefits of the HOS rule result only from increased driving hours, ignoring the benefits from increased flexibility and enhanced efficiency in equipment usage.
The ATA reply brief completes the briefing process, making a decision on the motion ripe at any time. The Court is under no time limit to decide, but a decision is expected in the next few weeks. ATA's motion for a stay, is also supported by the Commercial Vehicle Safety Alliance law enforcement group, UPS and three prominent shipper groups: the National Industrial Transportation League, the National Small Shipment Traffic Conference and the Health & Personal Care Logistics Conference Inc.
In a separate filing this week, the Canadian Trucking Alliance (CTA) submitted an amicus memorandum supporting the motion for a stay. In the filing CTA points out that Canadian drivers are allowed 13 hours of daily driving time and a 36-hour restart, provisions that have not proven to be a safety concern. CTA also explains the value of the 34-hour restart to Canadian drivers who may have to wait extended periods for their next international load.
The CTA filing and ATA's final brief will be available on ATA online.