ATA Remains ‘Poised’ to File Lawsuit if HOS Rule Is Unchanged, Windsor Says

This story appears in the March 28 print edition of Transport Topics.

American Trucking Associations is “poised” to file a lawsuit against the Federal Motor Carrier Safety Administration if the agency adopts a proposed rule that could cut driver time to 10 hours a day, ATA Chairman Barbara Windsor said.

“The question is: What should be ATA’s next step if FMCSA comes back with no changes to its current hours-of-service proposal?” Windsor told Transport Topics in a recent interview. “In that case, we would be poised to file suit.”

“We hope things wouldn’t go in that direction,” she added. “We are trying to work together with FMCSA through all of this.”

The proposed hours rule, announced on Dec. 23, adds one hour of off-duty time within an allowed 14-hour workday, limits consecutive driving hours to seven and allows two 16-hour work days a week if the daily driving limit has not been met.

The proposal also would modify the 34-hour reset provision by allowing a driver to begin a new weekly limit after resting for 34 hours, adding that the rest must include two periods between midnight and 6 a.m. The rule also could reduce the maximum allowable daily driving time to 10 hours from the current 11-hour limit.

ATA opposes the proposed rule and has asked that it be withdrawn.

Robert Digges, ATA’s chief counsel, said he already has advised the organization’s executive committee that, at some point, he could recommend taking FMCSA to court, if the agency’s proposed rule becomes final this summer.

“I certainly think Barbara is correct that, if they stay with their current proposal and they have no better explanation or justification for it than they have now, given the tremendous impact on the industry, the next logical step is to challenge them on it,” Digges told TT. “But nobody knows for certain what the agency’s going to do and how the agency’s going to go about justifying it.”

Digges said a lawsuit on the hours rule would be far less costly than ATA’s lawsuit against the Port of Los Angeles’ clean trucks plan, which is now approaching a cost of $3 million.

“But when we decide we need to sue, I’ll go back to the executive committee and tell them what it’s likely to cost,” Digges said.

“When you’re dealing with litigation on an administrative agency ruling, you have the record that’s already before you, made in the rulemaking,” Digges said. “You don’t have a trial, you don’t have discovery, you simply have an appeal based on what was before the agency, and what the agency concluded,” he said.

Indeed, the record already is extensive on the proposed hours-of-service rulemaking. It dates back to 2003, when the agency first issued a proposal that lengthened the Depression-era regulation by an hour, increasing a driver’s maximum duty day to 11 hours. That proposal also cut the permitted work day to 14 hours from 15 after which a driver must take a 10-hour break, and allowed drivers to “reset” their week after resting for 34 hours.

However, the 2003 revisions were successfully challenged in federal court by a coalition led by Public Citizen and the Teamsters union in a series of lawsuits. To settle the most recent lawsuit, FMCSA agreed to revise its rule in 2009, resulting in the current proposal.

As a part of the settlement, the court ordered FMCSA to come up with the final rule by July 26.