Court Agrees to 3-Month HOS-Rule Delay
By Sean McNally, Senior Reporter
This story appears in the Oct. 8 print edition of Transport Topics.
The federal appeals court that struck down parts of the current driver hours-of-service rule has agreed to delay implementation of its decision for 90 days to give regulators time to address the problems the judges found.
The delay is much shorter than either American Trucking Associations or the Federal Motor Carrier Safety Administration had sought, but an ATA official said the stay was a good sign for the future.
“I have a very positive view of this ruling,” said Robert Digges, deputy general counsel for ATA. He said he thought the move left the door open for keeping the two provisions the court had struck down: extending allowable driving time for one hour to 11 hours and allowing drivers to restart their weekly work period after 34 hours off duty.
“For them to grant a stay, pending what the agency does, is saying that the 11 and 34 [provisions] aren’t unsafe,” Digges said. “We’re not foreclosed from retaining the provisions. . . . This is an endorsement by the court that . . . [FMCSA’s] decision was procedural.”
In July the U.S. Court of Appeals for the District of Columbia ruled that FMCSA failed to give sufficient time for notice and comment on data it used to support increasing allowable driving time to 11 hours a day and allowing the 34-hour restart (7-30, p. 1).
As a result, the court vacated those two provisions but did not rule on the substance of the regulation; rather, it faulted the way FMCSA justified its position.
The three-month stay is less than half the eight months ATA had requested and considerably shorter than the 12-month reprieve sought by FMCSA.
“The clerk is directed to withhold issuance of the mandate in these consolidated cases for 90 days, until Dec. 27,” stated the order, issued Sept. 28 by judges Karen Henderson and Merrick Garland.
In response, FMCSA said it was “carefully evaluating our options.”
While ATA said the decision was favorable, the president of the advocacy group that successfully challenged FMCSA’s rule saw the 90-day stay as a victory and urged the agency to completely revise its hours-of-service rule to shorten allowable driving hours.
“We opposed any delay, but argued that if there was one, it should be no more than 90 days, which the court agreed with,” said Joan Claybrook, president of Public Citizen.
Trucking has pushed for retention of the 11th hour and the 34-hour restart.
However, Claybrook said FMCSA “should use the time to oversee the transition to pre-2003 driving limits, rather than continuing to insist on an hours-of-service scheme that endangers truck drivers and motorists.”
In 2003, FMCSA issued its first update to federal hours-of-service regulations in more than 60 years, boosting the daily driving limit to 11 hours within a 14-consecutive-hour work day, from 10 hours in a 15-hour work period.
The new rule also increased the mandatory rest period to 10 hours from eight hours.
However, in 2004 the entire rule was struck down by an appeals court on the basis of not properly considering driver health.
To address the court’s concern, FMCSA in 2005 reissued a rule that, in effect, was substantively unchanged, although it did add a provision on how drivers may allocate their rest hours in a sleeper berth.
The Owner-Operators Independent Drivers Association and several state trucking associations subsequently unsuccessfully challenged that provision.
In ordering its stay Sept. 28, the court also rejected a request from OOIDA to rehear the entire case.
Over the next 90 days, FMCSA now has time, observers said, to undertake some type of rulemaking process to address the court’s concerns.
In its request for a stay, FMCSA said it “intends to conduct a rulemaking to consider new data, allow notice and comment on any proposed methodology and address the procedural issues identified by the court.”
That process, FMCSA said, should take 12 months, although the agency said in its brief that if the court did not grant a lengthy stay, FMCSA would need “21 days to . . . provide guidance to commercial vehicle operators and law enforcement agencies through the issuance of an interim rule.”
“They’re basically trying to hold FMCSA’s feet to the fire, and giving them 90 days does that,” said Steve Keppler, director of policy and programs for the Commercial Vehicle Safety Alliance.
“Given the court’s direction from the July decision, the narrow focus on the 11th hour and the 34-hour restart,” Keppler said, he “would envision that whatever regulatory vehicle they choose would address just those two issues.”
Whether FMCSA would seek to retain those provisions was “the $64,000 question,” he said.
“The court basically said, ‘We’re not necessarily opposed to these provisions, but we’re concerned with the methodology that you used.’ That’s one way to read it,” Keppler said.
This story appears in the Oct. 8 print edition of Transport Topics.
The federal appeals court that struck down parts of the current driver hours-of-service rule has agreed to delay implementation of its decision for 90 days to give regulators time to address the problems the judges found.
The delay is much shorter than either American Trucking Associations or the Federal Motor Carrier Safety Administration had sought, but an ATA official said the stay was a good sign for the future.
“I have a very positive view of this ruling,” said Robert Digges, deputy general counsel for ATA. He said he thought the move left the door open for keeping the two provisions the court had struck down: extending allowable driving time for one hour to 11 hours and allowing drivers to restart their weekly work period after 34 hours off duty.
“For them to grant a stay, pending what the agency does, is saying that the 11 and 34 [provisions] aren’t unsafe,” Digges said. “We’re not foreclosed from retaining the provisions. . . . This is an endorsement by the court that . . . [FMCSA’s] decision was procedural.”
In July the U.S. Court of Appeals for the District of Columbia ruled that FMCSA failed to give sufficient time for notice and comment on data it used to support increasing allowable driving time to 11 hours a day and allowing the 34-hour restart (7-30, p. 1).
As a result, the court vacated those two provisions but did not rule on the substance of the regulation; rather, it faulted the way FMCSA justified its position.
The three-month stay is less than half the eight months ATA had requested and considerably shorter than the 12-month reprieve sought by FMCSA.
“The clerk is directed to withhold issuance of the mandate in these consolidated cases for 90 days, until Dec. 27,” stated the order, issued Sept. 28 by judges Karen Henderson and Merrick Garland.
In response, FMCSA said it was “carefully evaluating our options.”
While ATA said the decision was favorable, the president of the advocacy group that successfully challenged FMCSA’s rule saw the 90-day stay as a victory and urged the agency to completely revise its hours-of-service rule to shorten allowable driving hours.
“We opposed any delay, but argued that if there was one, it should be no more than 90 days, which the court agreed with,” said Joan Claybrook, president of Public Citizen.
Trucking has pushed for retention of the 11th hour and the 34-hour restart.
However, Claybrook said FMCSA “should use the time to oversee the transition to pre-2003 driving limits, rather than continuing to insist on an hours-of-service scheme that endangers truck drivers and motorists.”
In 2003, FMCSA issued its first update to federal hours-of-service regulations in more than 60 years, boosting the daily driving limit to 11 hours within a 14-consecutive-hour work day, from 10 hours in a 15-hour work period.
The new rule also increased the mandatory rest period to 10 hours from eight hours.
However, in 2004 the entire rule was struck down by an appeals court on the basis of not properly considering driver health.
To address the court’s concern, FMCSA in 2005 reissued a rule that, in effect, was substantively unchanged, although it did add a provision on how drivers may allocate their rest hours in a sleeper berth.
The Owner-Operators Independent Drivers Association and several state trucking associations subsequently unsuccessfully challenged that provision.
In ordering its stay Sept. 28, the court also rejected a request from OOIDA to rehear the entire case.
Over the next 90 days, FMCSA now has time, observers said, to undertake some type of rulemaking process to address the court’s concerns.
In its request for a stay, FMCSA said it “intends to conduct a rulemaking to consider new data, allow notice and comment on any proposed methodology and address the procedural issues identified by the court.”
That process, FMCSA said, should take 12 months, although the agency said in its brief that if the court did not grant a lengthy stay, FMCSA would need “21 days to . . . provide guidance to commercial vehicle operators and law enforcement agencies through the issuance of an interim rule.”
“They’re basically trying to hold FMCSA’s feet to the fire, and giving them 90 days does that,” said Steve Keppler, director of policy and programs for the Commercial Vehicle Safety Alliance.
“Given the court’s direction from the July decision, the narrow focus on the 11th hour and the 34-hour restart,” Keppler said, he “would envision that whatever regulatory vehicle they choose would address just those two issues.”
Whether FMCSA would seek to retain those provisions was “the $64,000 question,” he said.
“The court basically said, ‘We’re not necessarily opposed to these provisions, but we’re concerned with the methodology that you used.’ That’s one way to read it,” Keppler said.
