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Safety groups claim 'abuse of discretion' in HOS suit

The safety advocates have long held that when combined, the 34-hour restart and 11-hour rules allow drivers to legally exceed the 60 hours in seven days schedule and the 70 hours in eight days schedule, provisions that are also part of the current rule.

By Lyndon Finney
The Trucker Staff

7/25/2012

WASHINGTON — The Federal Motor Carrier Safety Administration has repeatedly ignored a Congressional mandate to adopt Hours of Service rules that reduce driver fatigue, increase highway safety and protect driver health by adopting a rule that allows more weekly driving hours than ever before, a coalition of safety advocacy groups says in a brief filed Tuesday in a lawsuit that wants a federal court to vacate two major elements of the current HOS rule — the 34-hour restart provision and the 11-hour daily driving limit.

The coalition — which includes Public Citizen, Advocates for Highway and Auto Safety, the Truck Safety Coalition and truck drivers Mildred A. Ball and Dana E. Logan — also claim that because the U.S. Court of Appeals for the District of Columbia had previously vacated the 34-hour restart provision, the FMCSA committed an abuse of discretion by failing to consider the option of revoking the restart when it issued the current rule.

“This Court has already twice vacated the restart, first for FMCSA’s failure to consider its effect on the health of drivers, and then for the agency’s failure to consider the effect of cumulative fatigue from long hours of driving,” the brief said. “The agency now admits that the restart negatively impacts both driver health and cumulative fatigue, but has made no effort to quantify those effects or to consider whether they render the 34-hour restart unsafe. Moreover, the agency has now disavowed each of the reasons that it originally relied on to support the restart. In light of its failure to remedy the defects identified by this court, and its lack of any justification for the provision, FMCSA abused its discretion by failing to consider the option of revoking the restart.”

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The 11-hour driving limit and the 34-hour restart have been part of the HOS rule since 2004.

The safety advocates have long held that when combined, the 34-hour restart and 11-hour rules allow drivers to legally exceed the 60 hours in seven days schedule and the 70 hours in eight days schedule, provisions that are also part of the current rule.

“The new 11-hour driving limit and restart provision, in combination, dramatically increased the number of permissible driving hours,” the brief said. “A driver on a 60-hours in seven days schedule who drove 21-hour rotations and took 34 off-duty hours could drive 77 hours in seven days — 28 percent more than under the pre-2003 rule.”

A driver on a 70-hours in eight-days schedule could drive 88 hours in eight days, a 26 percent increase over the pre-200 rule, they also claim.

The advocates noted that the FMCSA had considered the possibility of eliminating the 11-hour driving limit when it wrote the current rule, “but decided not to based on the mistaken belief that the Administrative Procedure Act (APA) requires ‘compelling scientific evidence’ of cost effectiveness to justify a 10-hour driving limit.”

The brief claims the FMCSA’s decision misconstrued the scope of its authority to change the rule and disregarded its statutory mandate to improve highway safety.

“Because the agency’s rejection of a 10-hour limit was based on an erroneous view of the law, its decision was an abuse of discretion,” the brief said. “In addition, FMCSA’s uncertainty about the cost-effectiveness of a 10-hour limit was a product of the agency’s failure to exercise its discretion to resolve questions of fact. The agency’s cost-benefit analysis was unable to determine the relative cost-effectiveness of a 10-hour limit because it left unresolved three critical questions — average driver sleep, base fatigue level and discount rate — that the agency had the expertise and authority to resolve.”

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