The battle to combat driver fatigue among tractor trailer drivers has been a long one. How many hours a trucker can drive, how long he needs to rest and when, and how the hours of service are documented has been a constant point of contention between the industry and safety advocates for a long time while I have been handling truck wreck cases as a trucking safety, personal injury and wrongful death lawyer in Georgia.
The latest round in that fight was won by the Federal Motor Carriers Safety Administration, though neither the trucking industry nor safety advocates are satisfied. On August 2, 2013, the U. S. Circuit Court of Appeals in Washington, DC, upheld most provisions of new hours of service regulations that went into effect on July 1. The new rule revisions now require: ( 1) 34 hour restart must include two 1am to 5am periods and can only be used once in 7 days, (2) 30 minute break period after 8 hours, and (3) retention of the rule that a trucker can drive only 11 hours within a 14 hour period before going off duty.
As always happened, the new regulations were challenged both by the American Trucking Association and various truck safety groups. The court denied petitions from all the groups with one small exception-the 30 minute break requirement does not apply to short-haul drivers who operate within 100 miles of their reporting location. The court rejected most of the arguments made by the American Trucking Association, Inc. as “highly technical points best left to the agency.”
As I have learned over the years, there are no final victories and no final defeats for either side in these endless lobbying battles.
The new rule is a revision to 49 CFR § 395.3 in the Federal Motor Carrier Safety Regulations administered by the Federal Motor Carrier Safety Administration (FMCSA), the regulator for trucking and bus companies.
“With one small exception, our decision today brings an end to much of the permanent warfare surrounding the fatigue rule,” U.S. Circuit Judge Janice Rogers Brown said about the decision.
We shall see whether this is really an end to fighting over fatigue rules, but for now there may be at least a pause in the fighting between the industry and regulators over drive-time restrictions that led to two previous challenges before the appellate court. Regulators said they weighed industry costs against billions of dollars in health-care savings and reduced crashes in a profession that has more on-the-job deaths than any other in the U.S.
This is not just about road safety. It is also about truck drivers’ health. The average life expectancy of a truck driver is 61, or 16 years less than the U.S. average, according to Centers for Disease Control data. Trucking is the eighth-most dangerous job in terms of deaths per worker, according to the Bureau of Labor Statistics.
Longer rest breaks and updated freight networks could reduce productivity by 3 percent according to Federal Travel Regulations Associates. Experts say that could mean about $18 billion in additional costs for the trucking companies and that could mean consumers are going to feel the cost of the new regulations as well.
This is just the most recent of court decisions in the battle between the trucking industry and the FMCSA since 1999. A 2003 rule allowing longer driving shifts – 11 hours rather than the previous limit of 10 hours — was challenged by consumer groups, which persuaded the court to send it back to the Federal Motor Carrier Safety Administration (FMCSA) to be reworked. A 2005 rule was also challenged in court and sent back. The agency began another rulemaking in 2008, only to hold back and negotiate with safety groups when they threatened litigation. That led to three years of deliberation before the latest regulation was published in December 2011, continuing the rule that truckers may drive 11 hours out of 14 hours on duty.
Safety advocates continue to lobby for less fatiguing truck driving shifts. Retaining the longer work shifts will make the American public less safe, said Henry Jasny, vice president and general counsel of Advocates for Highway and Auto Safety. The FMCSA has put profits of the trucking industry ahead of the public’s safety, Jasny said.
“Upholding this rule will continue to make our trucks rolling sweatshops,” said Joan Claybrook, chairman of the board of Citizens for Reliable and Safe Highways. “Truck drivers will continue to be pushed beyond their limits and will imperil not just their own lives but the safety of all of us sharing the roads.”
As a lawyer representing individuals and families hut by fatigued truck drivers, I will work with whatever the rules are at any given time.
Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.