Court rejects HOS weekly restart, additional hour of driving

The U.S. Court of Appeals for the District of Columbia Circuit today, July 24, invalidated two significant pieces of the Federal Motor Carrier Safety Administration’s hours-of-service regulations – the increase of the daily driving limit to 11 hours from the previous 10 hours, and the 34-hour restart option for drivers’ weekly on-duty limits.

In addition, the court’s three-judge panel rejected the petition filed by the Owner-Operator Independent Drivers Association. OOIDA had objected to changes in sleeper-berth exception, challenged the 14-hour window for driving and contended that FMCSA failed to deal with loading and unloading issues as required by Congress in 1995.

FMCSA’s failings in the case appear to have been mainly in how it put the rules together, rather than in what the rules said. FMCSA “violated the Administrative Procedure Act because it failed to give interested parties an opportunity to comment on the methodology of the crash-risk model that the agency used to justify an increase in the maximum number of daily and weekly hours that truck drivers may drive and work,” said Judge Merrick Garland, writing for the three-judge panel.

The agency also “failed to provide an explanation for critical elements of that methodology,” the court said. Public Citizen had challenged the latest rules both on procedural grounds and on the merits; the court said it did not decide on the merits once it vacated the rule on procedural grounds.

“We are analyzing the decision issued today to understand the court’s findings as well as determine the agency’s next steps to prevent driver fatigue, ensure safe and efficient motor carrier operations and save lives,” FMCSA said in a formal statement. “This decision does not go into effect until Sept. 14, unless the court orders otherwise.” The Sept. 14 date follows from the 45 days that FMCSA has to seek reconsideration and another 7 days for the court’s order to take effect. In any case, for now, drivers may continue to drive for 11 hours per shift and take advantage of the 34-hour restart of cumulative on-duty limits.

The American Trucking Associations today said it will seek a stay from the appeals court to keep current rules in place until FMCSA provides the court with explanations for the 11 hours of driving and the 34-hour restart. ATA said will provide support to FMCSA for re-adoption of the 11-hour daily drive time and 34-hour restart, adding that the good news for the industry is that the flaws were procedural in nature and correctable.

“ATA believes the existing rules have proven to be a significant improvement over the old rules in terms of reducing driver fatigue and related incidents,” said ATA President Bill Graves. “Motor carrier experience and FMCSA data dramatically illustrate this. ATA plans to provide additional real-world documentation of the effectiveness of the current rules.”

If the court declines a stay, the next step isn’t clear. FMCSA could seek a rehearing before all the judges who sit on the D.C. Circuit appeals court and, ultimately, appeal to the U.S. Supreme Court. And Congress could intervene. When the appeals court rejected the first revised hours-of-service regulation in July 2004, Congress held the new rules in place for about a year while FMCSA worked on a new version. It remains to be seen whether a Democrat-controlled Congress will be so inclined to help out the Bush administration. On the other hand, given that the flaws cited are essentially procedural, lawmakers might be willing to hold the current rule in place pending a new rule.

Less likely is a legislated settlement. The Bush administration tried that approach in early 2005 as Congress was considering major highway legislation. It proposed language that would write into law the changes it adopted in 2003. But Congress didn’t go along, and the odds seem even longer now that the Republicans don’t control Congress.

For a copy of the appeals court decision, click here.