As truck drivers across the country struggle to familiarize themselves with the complexities of the Federal Motor Carrier Safety Administration’s new hours-of-service rule, which governs all aspects of a driver’s workday, safety advocates have gone to court in an attempt to have the new rule thrown out and a new one written.

On April 13, a three-judge panel for the District of Columbia’s U.S. Court of Appeals heard oral arguments for and against the rule.

Public Citizen, a national consumer advocacy group founded by Ralph Nader, was joined by Citizens for Reliable and Safe Highways (CRASH) and Parents Against Tired Truckers (PATT) in the suit filed against the FMCSA.

In their brief, submitted prior to oral arguments, the safety advocates argued: “Because Congress explicitly made reducing fatigue-related crashes and improving truck safety the overriding considerations, FMCSA cannot meet its statutory obligations merely by considering’ or balancing’ costs and benefits of safer rules against those that would enhance industry productivity, but must place a thumb on the safety side of the scale.'”

By seeking such a balance in its considerations for the hours of service rule, FMCSA failed to fulfill its congressional mandate. Therefore, “the Court should vacate the final rule and remand to FMCSA to promulgate a new final rule.”

Federal Motor Carrier Safety Administrator Annette M. Sandberg said the agency designed its new rules to include the latest research on driver fatigue and allow for flexibility in the highly diversified trucking industry.

“We tried to create an overall framework in the rule to ensure all the different kinds of businesses had the ability to operate and do business efficiently,” Sandberg said in an interview with the ATA’s “Transport Topics.”

Daphne Izer, co-founder of Parents Against Tired Truckers, disagrees. The new rules “abandon virtually every principle that FMCSA has proclaimed necessary for new hours-of-service rules,” she said.

The American Trucking Associations, the national trade organization representing 3,000 trucking companies, filed a brief supporting the FMCSA and the current rule while also orally arguing in its favor.

Mike Russell, vice president for public affairs at ATA, stated that his organization intervened in the matter because ATA participated in the rulemaking and can be affected by any ruling on the matter.

Joan Claybrook, president of Public Citizen, contends ATA supports the regulations because it gives companies “more hours on the roads.” She said the rules interrupt the rhythm of the body by not allowing truckers to go to sleep and arise at approximately the same time each day.

“We’re suing them for issuing new rules that don’t comport with the research and science on this issue,” Claybrook said. “It increases by 20 percent the amount of time that can be worked. They can drive 11 hours a day. There are tremendous crashes when they fall asleep. It requires a tremendous amount of concentration. It’s been established that crashes geometrically increase after eight hours.”

Teamsters spokesman Rob Black said, “(This rule) is something that helps the companies because they can work drivers harder and put them on longer runs.”

Bonnie I. Robin-Vergeer, a Public Citizen Litigation Group attorney, was first in line to argue against the rule. Finding the justices initially hard to read, Robin-Vergeer later stated: “I wasn’t sure they were getting it. But then, when the attorney representing the agency (FMCSA) stood up, the court just hammered him.

“So, I came out of the argument very optimistic. Naturally, you can’t be too confident on the outcome of a case based only on oral argument, but both I and others who had watched the argument had a strong impression.”

However, it may be awhile before the court decides the issue.

“It may take six months or more before the court of appeals issues its decision so we just hold tight,” Gillan said.

Meanwhile, in the real world, drivers are trying to figure new ways to falsify their logs to make up for time that shippers and receivers waste. In spite of a lot of hoopla from the trucking industry proclaiming the contrary, this driver has seen a very significant decline in both productivity (not necessarily bad) and his paycheck (in spite of per mile pay increases).

While I applaud Public Citizen’s attempt to hold the FMCSA to their congressional mandate, I must agree with the Owner-Operator Independent Drivers Association and the International Brotherhood of Teamsters who say the new rules fail to address real issues facing truck drivers.

According to Todd Spencer, OOIDA’s executive vice president, “The real issue is unproductive and unpaid time truckers are forced to donate,’ which actually contributes to fatigue. The feds didn’t address the heart of the matter, which is the tremendous loss of productivity that actually works against goals the government wants to achieve.”

While bureaucrats and lawyers argue, truck drivers remain on the outside, no closer to attaining either social or economic justice than they were last year.

Well, maybe a little closer.

Guy Bourrie has been hauling on the highways for 20 years. He lives in Washington, Maine, and can be reached at redhaven.pivot.net.

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