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Safety group expresses disappointment over new HOS; likely headed to court

Henry Jasny, vice president and general counsel for Advocates for Highway and Auto Safety, said his organization was not surprised by the decision to keep the 11-hour driving limit, but more than disappointed. (The Trucker file photo)

The Trucker News Services

12/30/2011

WASHINGTON — Faced with rejection of their most-wanted changes in the final rule on Hours of Service released last week, safety advocacy groups are most likely headed back to court for what has turned into an eight-year battle with the federal government over trucking safety.

“That would appear to be the case,” Henry Jasny, vice president and general counsel for Advocates for Highway and Auto Safety, told The Trucker Thursday. “We’re still analyzing the rule and what the Federal Motor Carrier Safety Administration said in its rationale. Because of the timing just before the holidays we haven’t had time to sit down and decide what actions to take. We do have a court date at the end of January to tell the court what we want to do with the current pending case and so by that time we will have to have made a decision to how we are going to proceed.”

Advocates for Highway and Auto Safety has been one of the plaintiffs in lawsuits filed against the current rule and previous versions published in 2003 and 2005.

The current case resulted in an October 2009 settlement agreement between the petitioners and the FMCSA in which the FMCSA agreed to “review and reconsider” the rule now in place.

The plaintiffs had strongly recommended to the FMCSA that the agency issue a rule with a 10-day daily driving limit and without the 34-hour restart provision, neither of which happened.

Both parties now have until January 23 to file motions to govern further proceedings in the active case.

Could the plaintiffs tell the court that the settlement is not adequate and the current case go right back to court?

“Theoretically that’s possible, but the agreement was not based on whether we liked the outcome of the new rule or not,” Jasny said. “The agreement was that FMCSA issue a new rule and it depends on whether or not that rule is similar to the rule we sued over in 2009. With respect to the 11 hours, it’s similar, but with respect to the 34-hour restart, it’s different.”

Saying his organization was not necessarily surprised at the decision to maintain the 11-hour limit, but was more than disappointed, Jasny questioned when the driving limit was extended in the 2003 rule.

“From what I’ve read of their statements in the rule, what they are saying now that the 11 hours are in place; they don’t have any new evidence to change it and go back to 10,” Jasny said. “Our argument has been two wrongs don’t make a right. They didn’t have any evidence in 2003 to extend it to 11 hours. Now they are saying they don’t have any evidence to change it back to 10. They should have used that as the basis for saying maybe they should not have imposed 11 in the first place.”

Jasny said safety groups did not agree with FMCSA’s assertion that even though the driving limit is still 11 hours, the new 34-hour restrictions and the required breaks would offset the longer driving period and also the claim that the new rule would not allow for as much cumulative driving time each week.

“What they did with the 34-hour rule helps a little bit,” Jasny said. “But they, themselves, say you can work intensely up to 82 hours one week and then you have to have a normal 70-hour week the second week or less to average 70 hours. We don’t think that helps. When you are driving in the 11th hour and crash risk is high already in the 10th hour and is as high if not higher in the 11th hour, that doesn’t help you when you are driving during the 11th hour. The fact that you’ll get 34 hours [off] and two nights sleep after you finish driving is only good if you make it to the end of the 11th hour.”

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Jasny said his organization felt the court had problems with the 34-hour rule in the first two cases litigated.

“We think the court had problems with that in the first two cases because they (the FMCSA) didn’t’ deal with cumulative fatigue,” he said. “Even now they say ‘we’ll let you work longer hours on average.’ It (70 hours) is certainly long enough, but if the rule allows you to work intensely one week, during that week we think drivers will be at an unreasonable risk for crashes.”

The Trucker staff can be reached to comment on this article at editor@thetrucker.com.

 

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