Blog Written By Attorney Cory Reiss:

I was recently passing a tractor-trailer on the left when the truck proceeded to merge into my lane.  When that happens, your first thought is: Is my lane really getting smaller or am I imagining it?  Your second thought is, frankly, better left unpublished.

I survived by moving into the shoulder, where rumble strips send an unnerving teeth-chattering signal that a terrible mistake is presently being made, and by leaning on my horn.  The driver finally recognized he was about to kill me and retreated, acknowledging his error with a weary wave while I put him in my rear view mirror as fast as I could.

I figured the driver had to be either blind or asleep.  Probably not blind, but the chances his eyelids were at half mast actually were not too remote.

Thousands of people die each year because a truck driver didn’t get enough sleep.  In fact, in 2009, 3,380 people died in truck crashes and 74,000 more were injured.  Fatigue is often a factor in these accidents.  Since about 500 of the fatalities were the truck drivers themselves, clearly the worst impact is sustained disproportionately by the driving public at large.

There’s no way to prevent all these deaths and injuries.  Basic physics dictates the unhappy result when an eighteen-wheeler loaded with freight is matched up against the family sedan.  But there is something a bit distasteful about the debate going on in Washington since 2003, when the Federal Motor Carrier Safety Administration, part of the Department of Transportation, proposed new rules curbing the amount of consecutive driving hours that truckers are allowed without a decent sleep.  At bottom, the fight is over how much money it would cost to strengthen the rules governing required sleep for truck drivers—a measure that, while impossible to avoid in a political debate, just doesn’t matter when you’re being run off the road.

The 2003 rules were invalidated by a federal court after being challenged by safety advocates who contended they didn’t go far enough.  The agency went back to the drawing board and returned in 2005 with a rule requiring more sleep, but that drew a lawsuit from safety advocates and truckers.  A federal court in 2007 vacated the rules on technical violations of administrative process.   Yet another version attracted litigation from safety advocates and truckers, resulting in an agreement to reconsider the latest proposed rules.  Last year, the agency offered a plan with, among other things, two options: limiting drivers to 10 or 11 hours of driving time after a period of at least 10 consecutive hours off duty.

No one seems to like the latest proposal, which to me is a sign that it’s probably fair overall.  But members of a House subcommittee recently shrieked disapproval in a hearing titled “The Price of Uncertainty: How Much Could DOT’s Proposed Billion Dollar Service Rule Cost Consumers This Holiday Season?”  The hearing was intended to point out that the rule is “jeopardizing our fragile economic recovery,” in the words of Chairman Jim Jordan, R-Ohio.  According to him, the rule is “a solution in search of a problem.”

Jordan and foes of the rule in the trucking industry point out, correctly, that the data show a decline in trucking accidents through 2009, and contend that means there is no need for stronger rules.  Foes of the rule who say it isn’t strong enough contend, correctly, that the 2009 deaths were the equivalent of a large airplane disaster every other week.  We certainly wouldn’t tolerate that degree of risk from our airlines, but supposedly we should tolerate that risk on our roads.

Because of the way government rulemaking works, however, money is a major driver of these debates.  The 10-hour limit would cost the economy about $1 billion a year but yield $1.4 billion in safety and economic benefits, according to the DOT.  The 11-hour rule would cost the economy $520 million a year with benefits of about $1 billion.  Either way, the cost isn’t that much when considering that trucks move about $8.2 trillion worth of merchandise annually.  But what is a big deal is that some lawmakers and the trucking industry think that 3,380 dead and 74,000 injured, the tallies for 2009, demonstrate that enough safety has been achieved.

Interestingly, those record low numbers may be tied to the recession.  Some studies have suggested, and the DOT sees signs in its own data that support this theory, that truck crashes decline during recessions and increase when business picks up.  Intuitively, that makes sense.  Anne S. Ferro, the FMCSA administrator, testified that preliminary data for 2010 show that truck crashes picked up in the second half of last year as the economy showed signs of recovery.  Meaning a strong holiday shopping season with increasing demand on shippers could actually spell doom to more consumers without the new rules in place.

Ultimately, the impact associated with the dead and injured in these accidents can only be assessed in courts across the country or in conference rooms where settlements are made.  Trucking companies ought to recognize that one way or another, they will pay for sleeping at the wheel.  But the true cost, the actual loss, cannot really be counted.