ATA, FMCSA Urge U.S. Court to Reject HOS Rule Appeal
By Sean McNally, Senior Reporter
This story appears in the Jan. 14 print edition of Transport Topics.
American Trucking Associations and the Federal Motor Carrier Safety Administration last week asked a federal court to reject the latest attempt to roll back key provisions of the federal driver-hours rule, the latest step in several years of litigation that observers predicted would keep the rule in flux until after President Bush leaves office next year.
In separate filings, ATA and FMCSA argued against a December request by advocacy group Public Citizen that the U.S. Circuit Court of Appeals order the agency to reissue its revised hours-of-service rule without provisions, allowing 11 hours of driving before a mandatory rest and permitting drivers to restart a week’s clock after being off duty for 34 hours.
Public Citizen said it would continue its attempts to block the 11th hour and 34-hour restart. This statement led a top truck-safety official to say he expected the current rule would remain in place for the duration of the Bush presidency, unless there is another court ruling or congressional action.
“My sense is that it’s going to continue to be the way it is until a new administration [is in office],” said Steve Keppler, director of policy and programs for the Commercial Vehicle Safety Alliance. CVSA represents law enforcement agencies.
Keppler said he thought opponents of the longer-hours rule were likely to raise their concerns next year, once a new administration is in place. President Bush’s term expires on Jan. 20 next year.
The rule’s opponents are saving all their arguments, Keppler said. “They’ve just put it in a box labeled ‘next administration’ and said ‘Let’s try again when there’s a new president’.”
In its Jan. 7 filing, ATA said FMCSA’s decision to issue an interim final rule last month that included the 11th hour and the 34-hour restart was “fully consistent with the court’s orders.” In July, the court vacated the two provisions on the grounds that FMCSA had failed to justify including those provisions, and last month the agency reissued the same rule with amplified justifications (12-17, p. 1).
That brought yet another court challenge from Public Citizen, whose attorney told Transport Topics Jan. 9 that the group’s goal is to enforce the court’s ruling to “vacate the two provisions increasing driving time. . . . Our motion was very clear in asking the court to order FMCSA to make sure that drivers are governed by the old limits.”
“As long as they insist on [a rule with] the longer hours, we will insist in challenging it,” said Bonnie Robin-Vergeer, an attorney with Public Citizen. She added Public Citizen would file a response “in the next couple of days.”
Attorneys for both sides said they thought the court would rule on the motions quickly, but even that may not settle the case.
“There’s no doubt that they have the ability to challenge” the interim final rule, said Bob Digges, ATA deputy general counsel, who added that Public Citizen also could challenge the final rule when it is issued.
Robin-Vergeer said Public Citizen will submit comments to FMCSA on the interim rule as part of the rulemaking process, and then look at the final rule and “at that point, we can decide whether we want to challenge it.”
However, she said she didn’t think any resolution was close on the issue “because the agency has shown no interest” in reducing the number of hours truckers may drive.
In its latest argument opposing Public Citizen, ATA said the advocacy group believed the court had directed FMCSA to “transition to HOS rules with a 10-hour driving limit and no restart.”
“What the petitioners actually want the court to do is apparent from their preference for a hybrid rule consisting of the portions of the 2005 HOS rule that they like and the portions of the pre-2003 HOS rule that they like,” ATA said.
The 2005 rule was FMCSA’s latest attempt to revise the 60-year-old hours-of-service rule; an earlier effort in 2003 was subsequently tossed out by the court.
In both revisions, FMCSA in-creased the maximum driving time to 11 hours and included the 34-hour reset while limiting drivers to 14 consecutive hours of work before a mandatory 10-hour rest. Before 2003, drivers could drive 10 hours in a 15-hour work day, but the clock could be stopped for breaks during the day, and drivers were required to take just eight hours off duty.
This story appears in the Jan. 14 print edition of Transport Topics.
American Trucking Associations and the Federal Motor Carrier Safety Administration last week asked a federal court to reject the latest attempt to roll back key provisions of the federal driver-hours rule, the latest step in several years of litigation that observers predicted would keep the rule in flux until after President Bush leaves office next year.
In separate filings, ATA and FMCSA argued against a December request by advocacy group Public Citizen that the U.S. Circuit Court of Appeals order the agency to reissue its revised hours-of-service rule without provisions, allowing 11 hours of driving before a mandatory rest and permitting drivers to restart a week’s clock after being off duty for 34 hours.
Public Citizen said it would continue its attempts to block the 11th hour and 34-hour restart. This statement led a top truck-safety official to say he expected the current rule would remain in place for the duration of the Bush presidency, unless there is another court ruling or congressional action.
“My sense is that it’s going to continue to be the way it is until a new administration [is in office],” said Steve Keppler, director of policy and programs for the Commercial Vehicle Safety Alliance. CVSA represents law enforcement agencies.
Keppler said he thought opponents of the longer-hours rule were likely to raise their concerns next year, once a new administration is in place. President Bush’s term expires on Jan. 20 next year.
The rule’s opponents are saving all their arguments, Keppler said. “They’ve just put it in a box labeled ‘next administration’ and said ‘Let’s try again when there’s a new president’.”
In its Jan. 7 filing, ATA said FMCSA’s decision to issue an interim final rule last month that included the 11th hour and the 34-hour restart was “fully consistent with the court’s orders.” In July, the court vacated the two provisions on the grounds that FMCSA had failed to justify including those provisions, and last month the agency reissued the same rule with amplified justifications (12-17, p. 1).
That brought yet another court challenge from Public Citizen, whose attorney told Transport Topics Jan. 9 that the group’s goal is to enforce the court’s ruling to “vacate the two provisions increasing driving time. . . . Our motion was very clear in asking the court to order FMCSA to make sure that drivers are governed by the old limits.”
“As long as they insist on [a rule with] the longer hours, we will insist in challenging it,” said Bonnie Robin-Vergeer, an attorney with Public Citizen. She added Public Citizen would file a response “in the next couple of days.”
Attorneys for both sides said they thought the court would rule on the motions quickly, but even that may not settle the case.
“There’s no doubt that they have the ability to challenge” the interim final rule, said Bob Digges, ATA deputy general counsel, who added that Public Citizen also could challenge the final rule when it is issued.
Robin-Vergeer said Public Citizen will submit comments to FMCSA on the interim rule as part of the rulemaking process, and then look at the final rule and “at that point, we can decide whether we want to challenge it.”
However, she said she didn’t think any resolution was close on the issue “because the agency has shown no interest” in reducing the number of hours truckers may drive.
In its latest argument opposing Public Citizen, ATA said the advocacy group believed the court had directed FMCSA to “transition to HOS rules with a 10-hour driving limit and no restart.”
“What the petitioners actually want the court to do is apparent from their preference for a hybrid rule consisting of the portions of the 2005 HOS rule that they like and the portions of the pre-2003 HOS rule that they like,” ATA said.
The 2005 rule was FMCSA’s latest attempt to revise the 60-year-old hours-of-service rule; an earlier effort in 2003 was subsequently tossed out by the court.
In both revisions, FMCSA in-creased the maximum driving time to 11 hours and included the 34-hour reset while limiting drivers to 14 consecutive hours of work before a mandatory 10-hour rest. Before 2003, drivers could drive 10 hours in a 15-hour work day, but the clock could be stopped for breaks during the day, and drivers were required to take just eight hours off duty.
