Appeals Court Hears Challenges, Defense of HOS Rule

WASHINGTON — The federal government told an appeals court that industry objections to its latest changes to the hours-of-service rules for truck drivers boil down to “simple scientific disputes” and that the government should be free to use its discretion in such cases.

Jonathan Levy, a Department of Justice attorney representing the Federal Motor Carrier Safety Administration, told the court that it is “not the court’s duty to weigh in on that kind of dispute,” and that the agency acted reasonably when it wrote the December 2011 regulation requiring drivers to take rest breaks after driving eight hours and limiting use of the 34-hour restart.

Levy’s defense before the U.S. Court of Appeals for the District of Columbia Circuit came after Erika Jones, an attorney with the Mayer Brown law firm representing American Trucking Associations, accused FMCSA of overestimating the societal benefits of the regulatory changes by misinterpreting scientific studies to justify HOS restrictions.

If the data were used correctly, the agency’s cost-benefit analysis would have shown the rule to have a net cost, Jones said.

“This rule is not likely to have been enacted as it was if the agency had used the data correctly,” she said.

ATA filed its lawsuit in February 2012, urging the court to overturn the 34-hour restart changes and the requirement for a 30-minute break in which the driver is off duty. In addition to the once-per-week restriction, the optional restart, which drivers can use to reset their weekly driving limits, must include two periods from 1 a.m. to 5 a.m. under the rule, which is set to take effect July 1.

Following Friday’s arguments, ATA expressed hope that the three-judge panel would agree with its arguments.

“The existing rules have a proven track record, and the agency’s purported reasons for tinkering with them were baseless,” Prasad Sharma, ATA’s general counsel, said in a statement. “We’re hopeful the judges will see through the agency’s mere pleas for deference and after-the-fact explanations for a rule that was agenda-driven rather than evidence-based.”

The court also heard arguments from Public Citizen, which, with other public interest groups is pushing for a return to the 10-hour driving day with no 34-hour restart allowed, like it was before FMCSA added the 11-hour day and restart in 2003.

Scott Nelson, Public Citizen’s attorney, accused the agency of “failing to fulfill its statutory obligation to improve safety” when it chose not to eliminate the 11th driving hour and the restart.