Court Upholds HOS Rule

This story appears in the Aug. 12 print edition of Transport Topics.

A federal appeals court upheld most of the government’s hours-of-service rule for commercial drivers, seemingly closing the latest chapter in the long-running debate over the work rules that govern trucking operations.

The U.S. Court of Appeals for the District of Columbia Circuit on Aug. 2 rejected arguments from American Trucking Associations against the new restrictions on the 34-hour restart provision under which drivers can reset their weekly clocks. The restart can be used once every seven days and must include two rest periods from 1 a.m. to 5 a.m.

The court also upheld the requirement that drivers take a half-hour break before driving eight consecutive hours and rejected arguments from advocacy group Public Citizen that the restart should be banned and that the driving day should be reduced to 10 hours from 11.

The court sided with ATA only in ruling that certain shorthaul drivers should be exempt from the rest-break mandate. The new restart restrictions and the rest break are part of a Federal Motor Carrier Safety Administration rule that was made final in December 2011 and took effect in July.

“Though FMCSA won the day not on the strengths of its rulemaking prowess but through an artless war of attrition, the controversies of this round are ended,” Judge Janice Rogers Brown wrote for a unanimous three-judge panel. “We conclude that what remains of the 2003 final rule . . . are highly technical points best left to the agency.”

FMCSA said it was pleased with the ruling.

“The ruling recognizes the sensible data-driven approach that was taken in crafting this important regulation to increase safety and reduce driver fatigue — a leading factor in truck crashes,” the agency said in a statement. “The ruling also provides added certainty for all affected, moving forward.”

However, Dave Osiecki, senior vice president of policy and regulatory affairs at ATA, accused the court of giving FMCSA “unlimited deference” for its “agenda-driven rulemaking.”

“The court recognized on numerous occasions the shortcomings of the agency’s deliberations, so despite upholding most of the rule, we hope this opinion will serve as a warning to FMCSA not to rely on similarly unsubstantiated rulemakings in the future,” he said.

The court did not address how it intends to define shorthaul drivers. But five days after the ruling, FMCSA said the exemption applies to all truck drivers who remain within a 100-mile radius of their home terminal, as well as drivers who do not require a commercial driver license and stay within a 150-mile radius of the home terminal.

Drivers of trucks weighing between 10,000 pounds and 26,000 pounds must follow the hours-of-service rules but are not required to hold a CDL.

“The agency will immediately cease enforcement of the 30-minute rest-break provision of the HOS rule against shorthaul operations,” FMCSA wrote in a notice to industry and law enforcement, which it posted on its website Aug. 7.

The agency asked law enforcement officers to comply with the policy and said it would soon propose a regulation that would rewrite the rules on the books to reflect the new policy.

“We’re pleased that FMCSA is moving forward to provide swift, reasonable relief to drivers who operate locally,” ATA President Bill Graves said in a statement.

The court said it made the exemption for shorthaul drivers because other FMCSA rules give increased flexibility, such as relief from logbooks and occasionally working longer days, to that segment of the industry.

“Despite the many paragraphs scattered throughout the multiple rulemakings distinguishing short- and longhaul trucking, both in degree and in kind, the 2011 final rule contains not one word justifying the agency’s decision to apply the new requirement to the unique context of shorthaul operations,” the court ruled.

The NAFA Fleet Management Association welcomed the ruling.

“We were definitely pleased to see the court vacate that provision of the rule with respect to shorthaul drivers,” said Patrick O’Connor, NAFA’s government affairs consultant. The majority of truck drivers who work for NAFA members qualify for the exemption, he said.

Meanwhile, Scott Nelson, the Public Citizen attorney, expressed disappointment with the ruling on driving hours.

The court upheld the restart provision by finding that Public Citizen did not have standing to challenge it, which Nelson characterized as “ducking” the issue.

“The restart provision has now been sustained without anybody evaluating its merits,” he said.

In upholding the 11th driving hour, the court trusted FMCSA’s scientific judgments, Nelson said, but the agency didn’t thoroughly examine the science.

“The court really put its finger on it: The agency won by attrition, not really making a persuasive case for its rule,” Nelson said.

Public Citizen and its allies have convinced the court to overturn previous hours-of-service rules with the 11th driving hour and restart in 2004 and 2007, but FMCSA instituted similar rules both times. The groups filed another lawsuit in 2009 but settled when FMCSA agreed to consider the rule again.

That settlement resulted in a December 2010 proposal from FMCSA and the new final rule a year later. ATA and Public Citizen both filed lawsuits over the rule in February 2012, and the court combined them into one case.

ATA asked FMCSA many times this year to delay full implementation of the rule until three months after the court decision, requests the agency denied. The group also asked that the rule be delayed until FMCSA completed a field study of the effects of the restart changes, which was required under MAP-21 but has not been completed.