Court Rejects Hours Of Service Rules
A Three-Judge Panel Issued A Scathing Rejection Of FMCSA's Thinking And Rulemaking Processes.
Oliver B. Patton
Washington Editor
The first generation of hours of service rules lasted 60 years. The second lasted just over six months.
On July 16, a federal appeals court threw out the rule because it does not take driver health into account.
Actually, the rule may yet survive. It remains in place until early September while the Federal Motor Carrier Safety Administration decides what to do.
The agency has several choices, according to Ken Siegel, an attorney with the Washington, D.C., law firm Strasburger and Price. It can ask for a stay and appeal the decision to the Supreme Court. It can search the record of the rulemaking for material that would satisfy the appeals court's concerns. Or, it can reopen the rulemaking and begin a rewrite.
In any event, the matter will not be resolved any time soon.
The U.S. Court of Appeals for the District of Columbia was ruling on a suit brought by a coalition of safety advocates, including Citizens for Responsible and Safe Highways (CRASH), Public Citizen and Parents Against Tired Truckers.
The three-judge panel issued a scathing rejection of FMCSA's thinking and rulemaking processes. The judges bounced the rule on grounds that the agency did not consider the impact of the rule on driver health, as is required by law - but they also indicated that several other aspects of the rule could be grounds for dismissal.
Specifically, they found that the agency did not justify its decision to increase driving time from 10 to 11 hours. Neither did it justify the use of split-time in sleeper berths, the 34-hour restart or its decision to postpone electronic onboard recorders (EOBR) to track driver hours.
With respect to the recorders, the author of the decision, Judge David B. Sentelle, wrote:
"We cannot fathom, therefore, why the agency has not even taken the seemingly obvious step of testing existing EOBRs on the road, or why the agency has not attempted to estimate their benefits on imperfect empirical assumptions."
The reference to driver health comes from a phrase in the law that establishes the safety agency's charter: "to ensure that . . . the operation of a commercial motor vehicle does not have a deleterious effect on the physical condition of the operators."
Sentelle wrote, "The FMCSA points to nothing in the agency's extensive deliberations establishing that it considered É drivers' health in the slightest."
The agency had argued that consideration of driver health "permeated the entire rulemaking process." But this missed the point, Sentelle wrote. He said the law requires the agency to consider the rule's impact on the driver, not just the impact of driver health on safety.
"It is one thing to consider whether an overworked driver is likely to drive less safely and therefore cause accidents," he wrote. "Whether overwork and sleep deprivation have deleterious effects on the physical health of the driver is quite another."
Public Citizen President Joan Claybrook cheered the decision. "This is a sweeping victory for the safety of not only truck drivers but for the motoring public as well," she said. "Tired truck drivers are a major danger on our highways, and this rule was a formula for more deaths and injuries. The Federal Motor Carrier Safety Administration ignored its mission and approved a standard that violates its own statute."
The Teamsters union also applauded. "This is a victory for all truck drivers, including Teamsters," said Jim Hoffa, Teamsters general president. "Working behind the wheel of a truck is hard, and our concern with this set of rules was that they would increase driver fatigue. We know fatigue creates danger on the highways."
American Trucking Assns. said it will encourage the safety agency to try to keep the rules in effect while this issue moves through the legal system. "Switching back and forth between the old and new rules would be confusing to the point of adversely affecting highway safety," the association said in a statement.
The Owner-Operator Independent Drivers Assn. had a mixed reaction, according to an account on its web site. "It is next to impossible for FMCSA to hope to create HOS regulations that prevent fatigue with drivers spending as many hours they do on loading and unloading docks," said executive vice president Todd Spencer. "The old rules didn't directly address this issue, and neither do the new ones. But until shippers, receivers and others can be drawn into the real issue of wasting drivers' time to the tune of 33 to 43 hours per week, we won't have HOS rules that will promote safety or drivers' health."
Washington Report continued...
