Appeals Court to Hear Arguments in March Urging Changes to Portions of HOS Rule

This story appears in the Jan. 7 print edition of Transport Topics.

A federal appeals court in Washington will hear arguments in March urging it to overturn portions of the Federal Motor Carrier Safety Administration’s latest hours-of-service rule.

Two arguments — from American Trucking Associations and Public Citizen — will be before the U.S. Court of Appeals for the District of Columbia Circuit: one claiming the rule is too restrictive; another claiming it’s not restrictive enough.

The court announced Dec. 12 that a three-judge panel would hear the arguments, which have been combined into one case, on March 15 (12-17, p. 6).

The latest version of the rule, issued December 2011 after court challenges, maintained the 11-hour daily driving limit and 70-hour maximum a week.

The new rule also limited the 34-hour restart provision to once in a seven-day period, and required that time frame to include two periods between 1 a.m. and 5 a.m. It is scheduled to take effect in July.

ATA said it will argue that the rule is too restrictive. In previous court filings, the federation has said the rule relied on misrepresentations of the role driver fatigue has played in truck-related crashes and deaths. FMCSA could only justify its rule in a cost-benefit analysis because of the misused fatigue data, ATA said in a July brief (7-30, p. 4).

“We remain optimistic that the court will recognize that the agency misused or ignored the evidence to stack the deck in favor of its preferred outcome, and will not permit the challenged provisions to stand,” Rich Pianka, ATA’s deputy chief counsel, told Transport Topics last month.

On the other hand, advocacy group Public Citizen and its allies want FMCSA to do more to stop fatigue by eliminating the 11th hour of driving and the 34-hour restart. Public Citizen said in a July brief that FMCSA’s governing legislation mandates that it should seek to ensure highway safety and it does not need to rely on cost-benefit analysis to make its case.

“We just don’t think the agency has justified what it did in relation to the goals of the governing legislation, which are to improve safety over what it was under the old rules,” Scott Nelson, a Public Citizen attorney, told TT. He was referring to regulations put in place before 2003, when FMCSA expanded the 10-hour driving day to 11 hours and added the 34-hour restart, which had no restrictions at the time.

Advocates for Highway and Auto Safety, which has joined Public Citizen on the case, is optimistic about its chances.

“We’re looking forward to it,” said General Counsel Henry Jasny. “We’re hoping that we’ll be successful.”

An FMCSA spokesman said the agency does not comment on active litigation.

But in a September brief responding to the challenges, FMCSA said the rule was “reasonable” and reflected its “weighing of scientific evidence and its careful consideration of the potential impacts of health and safety, as well as the costs and the effects of the rule on the public and the regulated industry” (10-1, p. 1).

This is the fourth challenge to hours-of-service rules for the public advocacy groups.

After the 11th hour and 34-hour restart were added in a 2003 rule, Public Citizen and the Truck Safety Coalition challenged the rule in court, and the D.C. court threw it out in 2004, saying FMCSA should not have added driving hours.

After FMCSA reissued a similar rule, the D.C. court again threw it out in 2007, responding to a lawsuit by Public Citizen, Truck Safety Coalition, Advocates for Highway and Auto Safety and the Teamsters union.

FMCSA again kept to similar driving hours, so the four groups sued again in 2009. They agreed to stop their legal action when the agency promised to reconsider the rule, resulting in the December 2011 regulation.

Truck Safety Coalition joined Public Citizen and Advocates for Highway and Auto Safety in the current lawsuit, though the Teamsters did not.