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August 6, 2007 7:50 AM, EDT

Opponents Spar Over Impact of Appeals Court’s HOS Ruling

By Sean McNally, Senior Reporter

This story appears in the August 6 print edition of Transport Topics.

Officials on both sides of the debate over revising work rules for commercial drivers presented markedly different interpretations of a recent federal appeals court’s ruling striking down portions of the new plan.
Trucking industry representatives last week said the hours-of-service rules could be easily restored by procedural adjustments by the federal agency that proposed them, while the groups whose suit led to the ruling said the problems cited by the court were significant and that they had a good chance of eventually winning their battle against longer driving hours.
A federal appeals court July 24 vacated portions of a revised HOS rule the Federal Motor Carrier Safety Administration published in 2005, saying the agency failed to provide “an adequate explanation” for extending driving time to 11 hours from 10 hours and allowing drivers to reset their weekly maximum after a 34-hour rest period (7-30, p. 1).
“While ATA is disappointed with the decision, we are encouraged by the fact that the shortcomings identified by the court are procedural in nature and can be readily addressed by FMCSA,” Bill Graves, president of American Trucking Associations, wrote to Transportation Secretary Mary Peters.
Graves urged the agency to defend the struck portions of the rule and ATA said it planned to ask for a stay of the court’s ruling while FMCSA addressed the court’s concerns.
Graves said, “There’s a justifiable case that can be made” for the longer hours, and noted the increased limits came with increased mandatory rest time and that truck-related fatalities had declined in recent years
(7-30, p. 1).
On the other side, Bonnie Robin-Vergeer, representing a coalition led by advocacy group Public Citizen, told Transport Topics, “The court’s intent was clearly to eliminate the 11th hour of driving and to eliminate the 34-hour restart.”
Robin-Vergeer said she did not think the court rejected the increased driving time “as sort of a technicality,” but rather that FMCSA’s failure to explain how it decided to add the 11th hour of driving and the 34-hour restart provision “was arbitrary and capricious.”
Several other trucking industry executives told Transport Topics they thought the provisions, which allowed drivers to be behind the wheel longer during the day and over a week, could be saved if FMCSA provided more information to the court and the public.
“While we got an adverse decision, I don’t see it as that big a problem. It’s really a procedural issue,” said Doug Duncan, president of less-than-truckload carrier FedEx Freight. “Nowhere in the court decision did they say there’s a problem with the rule itself.”
Stephen Campbell, executive director of the Commercial Vehicle Safety Alliance, said the ruling left “the door open for DOT to provide the justification for the rule, and if DOT does that, I suppose the rule could stand.”
However, the attorney challenging the regulation said, “I don’t think it’s a fair reading that the agency could satisfy the court by doing something that’s quick and superficial.”
In 2003, FMCSA initiated its first major overhaul of the hours-of-service rule since the 1930s. That overhaul included an increase in the allowable driving time to 11 hours from 10, with corresponding decreases in the workday to 14 straight hours from 15 hours and rest to 10 hours from eight. Those rules were challenged successfully by Public Citizen and others on the grounds it did not consider driver health, with a ruling in 2004.
After that 2004 ruling, Congress gave FMCSA one year to issue a new rule, which it did in the fall of 2005. That rule retained most of the 2003 rule, including the driving and rest limits, but made changes to how drivers could use their rest periods in sleeper berths. A number of driver groups, including the Owner-Operator Independent Drivers Association, challenged that modification but were unsuccessful.
Robin-Vergeer said the trucking industry “has always wanted this rule,” and was pushing the agency to quickly address the concerns rather than substantively addressing the court’s concerns about the increased driving time.
“We made significant arguments challenging the longer hours,” Robin-Vergeer said.
While the appeals court did not address driver health in its recent ruling, Robin-Vergeer said Public Citizen could press the issue again if FMCSA tries to retain the longer hours.
“If the agency re-adopted the rule a third time . . . [and] if the court is put in a position to review it, I’m feeling good about the chances of success,” she said.
FMCSA Administrator John Hill has not issued a statement. Spokeswoman Melissa DeLaney said the agency was “looking at the decision [and] determining our next steps.”
DeLaney said that until the agency issues further guidance, “Drivers should continue operating as they have, unless the court says otherwise.”
The court’s ruling takes effect in mid-September, but if FMCSA does not act, there would be no daily hour limits for drivers, some industry experts said.
“You can drive as long as you want. There is no rule,” said Steve Keppler, CVSA’s director of policy and programs. “The most recent change to the rule vacated the previous rule, so it doesn’t revert back to the previous rule. That’s the worst-case scenario.”
“FMCSA will have to take some administrative action to put the 10-hour rule back into place,” said Dave Osiecki, ATA vice president of safety, security and operations.