The new federal rule made Dec. 16, 2011 by the Federal Motor Carrier Safety Administration (FMCSA) for commercial driver hours of service (HOS) is being challenged in court by Advocates for Highway and Auto Safety, Public Citizen, the Truck Safety Coalition and two truck drivers. The lawsuit, filed on Feb. 23, claims that the new rule doesn’t make needed improvements to protect the public from tired truckers.

The FMCSA’s final rule reinstated the 11-hour limit on consecutive driving hours, despite the agency's statement in the proposed rule that "the 10-hour rule is currently FMCSA's preferred option."

"Given the FMCSA's mission to prevent truck-related deaths and injuries, it is appalling that the agency issued yet another rule that fails to adequately address truck driver fatigue and puts the public's safety at risk," said Henry Jasny, vice president and general counsel, Advocates for Highway and Auto Safety.

The new final rule also did not eliminate the 34-hour restart provision that encourages cumulative fatigue and allows drivers to exceed weekly driving and work limits, according to the groups challenging the rule. The restart provision, first instituted in 2004, reduces the off-duty time drivers are allowed from 48 or more hours to 34 hours off-duty after driving up to 70 hours and working more than 80 hours over 80 days.

The petitioning group states that changes included in the December 2011 final rule do not prevent the most fatigued drivers — those who work on a schedule of 70 hours of driving in eight-days — from continually using the 34-hour restart every week, or being required to do so by their trucking company.

The new FMCSA rule includes a “loophole,” the group adds, allowing truck drivers to sit in the cab of their truck during their 10-hour off-duty rest period instead of sleeping, which could lead to increased rates of driver fatigue among long-haul drivers who do not have sleeper berths in their trucks.

Driver surveys sponsored by the FMCSA show that under the current HOS rule, two-thirds of truck drivers (65%) acknowledge that they drive while tired, and nearly half (48%) admit to falling asleep behind the wheel in the previous year.

In 2004, and again in 2007, the Court of Appeals unanimously ruled in favor of safety organizations that challenged the HOS rule. In the first case, the Court found the agency's decisions to allow truckers to drive for more hours, both consecutively and weekly, was at odds with the agency's research and findings of fact that show increases in driving hours results both in higher levels of driver fatigue in each 11-hour shift and in higher levels of cumulative fatigue every week.

"Despite the fact that truck crash fatalities increased by nearly 9% in 2010, and more than 100,000 people were injured, at a cost to society of nearly $42 billion, the FMCSA Administrator has chosen to imperil public safety by keeping unsafe and illegal driving limits for truck drivers," according to Joan Claybrook, chair of the Board of Citizens for Reliable and Safe Highways, which is part of the Truck Safety Coalition.

"Unfortunately, industry pressure trumped public safety," said Daphne Izer, founder of Parents Against Tired Truckers, also part of the Truck Safety Coalition. "The research is clear and compelling. However, FMCSA's decision to keep the longer, more dangerous 11 hours of driving time rather than returning to the 10-hour limit will put the public and truck drivers at risk."

On Feb. 16, another group, the American Trucking Associations, filed a petition asking the District of Columbia’s U.S. Circuit Court of Appeals to review the FMCSA rule.