NPTC counsel: 34-hour weekly restart likely gone

A transportation lawyer said during a webinar Tuesday, Aug. 28, that the 34-hour weekly restart provision of the hours-of-service rules that was vacated by a U.S. appeals court last month isn’t likely to be reinstated — at least not in the near future.

Rick Schweitzer, who also serves as general counsel to the National Private Truck Council, weighed in on the July 24 ruling by the U.S. Court of Appeals in Washington, D.C., that vacated two key components of the current HOS regulations – the 11 hours of driving time and the 34-hour weekly restart.

The current version of the HOS rules were enacted by the Federal Motor Carrier Safety Administration in 2005 after months of legal battles with advocacy groups such as Public Citizen.

Schweitzer said the court most likely will issue a mandate on Sept. 7, requiring FMCSA to comply with the ruling within seven days. If no further legal action happens by Sept. 14, motor carriers no longer will have a 34-hour weekly reset or an 11-hour driving limit, he said.

The court ruling did not require FMCSA to reinsert a prior version of its HOS rules, nor did the ruling order the agency to issue any replacement rules. “All they did is vacate the rules,” Schweitzer said. “It is up to the FMCSA to implement any replacement rules that the agency thinks are appropriate.” If FMCSA does nothing, drivers can legally drive for up to 14 hours after Sept. 14, Schweitzer said.

“I don’t think that’s going to happen,” he said. To date, however, the agency has issued no statement or guidance on what replacement rules it may or may not put into effect to satisfy the court’s ruling. Schweitzer said he expects the agency will issue some guidance by Labor Day, which is Sept. 3.

Will FMCSA revert back to its previous 10-hour driving limit that was superseded by its 2005 rulemaking? Will there be no daily limit? Right now, the answer is anyone’s best guess, Schweitzer said. “It is a question of administrative law,” he said. “Once a rule is vacated by the court, you do not automatically revert back.”

Schweitzer believes that what most likely will happen is that FMCSA will restate the 10-hour daily driving limit and keep the 14-hour daily on-duty limit intact. Even so, this doesn’t mean that all states automatically will have the same 10-hour law, since some states require new HOS laws to be passed by their respective legislatures.

As for the 34-hour reset, Schweitzer said it is very likely that come Sept. 14, it will be gone. “I wouldn’t say gone for good, but at least temporarily.”

With Congress controlled by a Democrat majority, Schweitzer said that it is highly unlikely that Congress will come to the rescue of FMCSA, which is controlled by a Republican administration, to allow the agency to continue with the status quo for HOS rules. “Unlike 2004, Congress is unlikely to grant additional time by statute,” he said.

The reasoning behind the court’s decision was that FMCSA failed to provide an adequate explanation for its 11-hour daily driving limit, as Public Citizen contended. The court focused on the agency’s methodology for risk analysis to justify going from its previous 10-hour to 11-hour driving rule. The data showed that the risk more than doubled from 10 to 11 hours of driving, Schweitzer said. In presenting its model, the court noted that FMCSA said the risk was elevated by 30 percent.

“It appeared that the FMCSA improperly minimized the risk,” said Schweitzer, whose presentation was available during a free webinar hosted by J.J. Keller & Associates and NPTC.