‘Safety’ advocates prove unpersuasive in drivers’ hours exemption challenge

A late-July U.S. Court of Appeals for the D.C. Circuit decision denies a petition to review a final rule expanding a short-haul exemption and modifying a 30-minute break requirement in the Federal Motor Carrier Safety Administration hours of service regulation. The former action entailed a maximum duty period change from 12 to 14 hours, securing HOS compliance flexibility that National Ready Mixed Concrete Association members and staff pursued through years of work with FMCSA staff and Capitol Hill allies.

A three-judge panel acknowledged certain points from the petitioners—Advocates for Highway and Auto Safety, Citizens for Reliable and Safe Highways, International Brotherhood of Teamers and Parents Against Tired Truckers— regarding FMCSA procedures leading to final rule adoption, but determined that the agency acted within parameters Congress granted it to regulate commercial vehicle driver schedules. Petitioners (“Highway Advocates”) challenged expansion of the short-haul exemption on three fronts, arguing FMCSA failed to a) consider the collision risks of driving later in a lengthened workday; b) adequately justify its conclusion that the change to 14 hours would not adversely affect driver health; and, c) reasonably explain its finding that the expansion would not affect drivers’ HOS compliance.

“Each of those arguments fails,” affirms Circuit Judge Patricia Millett, writing for the panel. “The Administration sufficiently explained and factually justified its conclusions that the new short-haul exemption and the 30-minute break requirement would not adversely affect safety, driver health, or regulatory compliance.”

Judge Millett addresses facts and statutes leading to denial of the request for review, especially as petitioners drilled down on the rationale behind the mixer truck drivers’ exemption. In the course of granting the exemption to those drivers and their dump truck and cement bulk tanker counterparts, the FMCSA considered findings of a study on mixer truck crash rates after an initial 12- to

14-hour duty period change was adopted in 2015.

“Looking at accident data, the Administration found that the 14-hour on-duty period did not affect ‘the percentage of concrete mixers in crashes at later hours of the day close to their maximum hours for the day.’ In fact, the percentage of accidents within that timeframe declined over the years studied,” Judge Millett writes in the Highway Advocates v. FMCSA decision. “The Administration noted

too that the share of concrete mixer trucks involved in crashes as a percentage of all large truck crashes did not increase in a statistically significant way in the two years after Congress expanded their short-haul exemption, when compared to the two years before the change.”

“Agencies are entitled to make assumptions about facts within their area of expertise as long as they are reasonable, which this one is,” she concludes. “The Administration thus sensibly weighed the pros and cons of the concrete-mixer study and provided a reasonable explanation for its reliance on that study.” NRMCA Compliance and Operations staff characterizes the decision as a “huge win,” one that “continues to allow the ready mixed concrete industry, and its sister industries, to operate under the current, and more flexible, HOS rules, as opposed to the stringent pre-September 2020 regulations.”

The decision brings additional certainty to concrete, aggregate and cement delivery fleets contending with driver recruitment and retention challenges. It also shows a federal agency defending a policy measure reflecting assertions and data backed by a concrete organization that places an utmost premium on safety.

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