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FMCSA defends new HOS in court brief

“The HOS rule reflects FMCSA’s weighing of scientific evidence and its careful consideration of the potential impacts on health and safety, as well as the costs and the effects of the rule on the public and the regulated industry,” the agency said in a brief filed with the court late Monday.

The Trucker Staff

9/25/2012

WASHINGTON — The Federal Motor Carrier Safety Administration Monday defended the new Hours of Service rule and in particular three aspects of the regulation that two groups have separately asked the U.S. Court of Appeals for the District of Columbia Circuit to review.

“The HOS rule reflects FMCSA’s weighing of scientific evidence and its careful consideration of the potential impacts on health and safety, as well as the costs and the effects of the rule on the public and the regulated industry,” the agency said in a brief filed with the court late Monday. ‘In weighing this scientific evidence and balancing relevant policy interests, the agency acted at the height of its expertise and discretion and is reviewed with extreme deference. FMCSA’s exercise of its expertise and discretion here was appropriate and reasonable, and, therefore, the petitions for review should be denied.”

Primarily at issue are three sections of the new rule — the limitations on the 34-hour restart rule, the 11-hour daily driving limit and the required 30-minute break.

The American Trucking Associations and a group of intervenors are unhappy with the new 34-hour restart provision, which limits use of the restart to once every 168 hours and requires that two, 1 a.m.-to-5 a.m. periods be included in any restart. They are also unhappy with the 30-minute break. They say both provisions restrict drivers’ ability to work and drive would add tremendous costs to the economy and place an undue burden on drivers while providing minimal possible safety benefits.

Public Citizen and other safety groups also petitioned the court for a review.

The safety groups would prefer a rule with no restart provision and a 10-hour daily driving limit.

In its brief, the FMCSA said the limitations on the 34-hour restart are reasonable and adequately explained by the agency.

“As the agency’s cost/benefit analysis shows, the benefits of the limitations in terms of crash reduction and health effects more than outweigh their productivity costs,” the brief said. “The cost/benefit analysis is based on appropriate data and scientifically sound methodologies, despite petitioners’ claims to the contrary. The contention of ATA petitioners that an unlimited restart is the only rational decision FMCSA could have made here is therefore incorrect.

“The argument of PC (Public Citizen) petitioners that the agency should have eliminated the restart entirely fares no better.”

The brief said the FMCSA’s decision to permit 11 hours of driving after 10 hours off duty is not arbitrary or capricious.“The agency’s cost/benefit analysis shows that, even if there is a small increased risk of crashes associated with driving 11 hours per day, the cost of such crashes is likely to be outweighed by the productivity savings of allowing up to 11 hours of driving per day,” the brief said. “As this Court’s previous opinions note, FMCSA is required to consider this cost, and the agency properly did so when it exercised its discretion to allow up to 11 hours of driving per day. Moreover, the agency conducted a scientifically valid cost/benefit analysis on this issue, and PC petitioners’ challenges to the assumptions and methodologies of that analysis are unsound. This limit has now been in place for almost a decade during which large truck crashes have declined. And the 11-hour limit, like the restart provision, was included in a congressionally-enacted HOS rule.”

The brief said the agency reasonably decided that 30-minute required breaks designed to reduce fatigue must be taken off-duty (that is, not while performing other tasks such as fueling, loading, and unloading) because the scientific data clearly show that off-duty breaks provide the greatest safety benefit.

“ATA petitioners’ challenge to this aspect of the rule is based upon a misreading of the scientific studies,” the brief said. “The agency also reasonably decided to apply the break requirement to short-haul drivers. Such drivers had been put on notice that all of the HOS rules might be applied to them, so they cannot claim surprise that this particular HOS provision was applied to them.”

The court has not set a timeframe for a ruling.

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

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JB Hunt