Groups File Another Lawsuit Challenging Latest HOS Rule

By Timothy Cama, Staff Reporter

This story appears in the March 5 print edition of Transport Topics.

Three advocacy groups filed a lawsuit last month to challenge the federal hours-of-service rule published in December, seeking to overturn the rule, which they say does not go far enough to prevent fatigue among truck drivers.

The lawsuit is the fourth challenge to HOS regulations from two of the groups, which twice succeeded in convincing the District of Columbia

circuit federal appeals court to overturn the Federal Motor Carrier Safety Administration’s hours-of-service regulations.

The groups argue that FMCSA should have restricted truck drivers to 10 hours of driving time each day, instead of the 11-hour limit in the December rule, and that restrictions on the 34-hour restart provision have a loophole, said Henry Jasny, general counsel for Advocates for Highway and Auto Safety.

“The fact that they’ve stated that they don’t have any data or information to go back on the 10th versus 11th hour only underscores our claims that there was no data to go to the 11th hour in the first place,” Jasny told Transport Topics. FMCSA added the 11th driving hour in 2003, when it revised the rule that had been in place since 1939.

Jasny’s group, along with Public Citizen, the Truck Safety Coalition and the Teamsters union, filed a lawsuit in 2009 against the rule written in 2007, which was similar to the 2003 revision. The lawsuit prompted FMCSA to rewrite the rule as part of a settlement in which the groups agreed to halt their legal action, and the December rule was the result (1-2, p. 1).

Despite stating in its December 2010 proposal that it “favored” restricting the driving day to 10 hours, FMCSA’s final rule stated that it lacked adequate data for either the 10-hour or 11-hour driving day, and “the current driving limit should therefore be allowed to stand for now.”

“If they don’t have sufficient evidence now to say whether 10 or 11 is better, then they obviously couldn’t have had that information nine years ago,” Jasny said, referring to the 2003 revised rule.

Shortly after the groups filed their lawsuit Feb. 24, the appeals court combined it with a lawsuit American Trucking Associations filed Feb. 14 against the rule. The court did not explain its decision to combine the lawsuits.

ATA filed its lawsuit in part to challenge FMCSA’s restrictions on the 34-hour restart, ATA Chairman Dan England told TT (2-20, p. 1). The provision would reduce the efficiency of the dedicated fleet of his company, C.R. England Inc., by 10% or more, he said.

“It’s a sad state of affairs that we have to sue the FMCSA to try and retain our ability to be as productive as we have been,” England said.

FMCSA’s rule restricts use of the 34-hour restart to once a week and requires that the restart period include two spans of time between 1 a.m. and 5 a.m. The agency said the restrictions are meant to reduce cumulative fatigue among drivers and allow them to rest better during the restart.

Responding to the Feb. 24 lawsuit, ATA spokesman Sean McNally said the group is “certainly not surprised that these special interest groups have chosen to sue again.” He said ATA would review the arguments in the lawsuit once the groups file their “statement of issues,” but declined to comment further.

Jasny also said the restart restrictions leave a loophole in which drivers on an eight-day weekly schedule can take two restarts a week. The restrictions were crafted with seven-day-a-week drivers in mind, he said.

“Our goal is not necessarily to eliminate it, but to make sure that the improvements that they’ve made for seven-day-a-week drivers also apply to eight-day-a-week drivers,” Jasny said.

Public Citizen and the Truck Safety Coalition convinced the D.C. court to overturn the hours regulations in 2004 and 2007. In both cases, the groups pushed for a return to the 10-hour driving day. The Teamsters and Advocates joined the later lawsuit.

In the 2004 and 2007 rulings, the D.C. court directed FMCSA to rewrite the rules, calling them “arbitrary and capricious,” one of the standards by which courts overturn federal regulations.

After both rulings, FMCSA issued similar rules that kept the 11th driving hour and 34-hour restart provisions in place.

In 2009, all four groups challenged the rule again. FMCSA agreed to reconsider the regulations seven months later, bringing the December final rule.

The Teamsters did not join the latest lawsuit, and spokesman Galen Munroe declined to comment further.

The lawsuit includes Mildred Ball and Dana Logan, both truck drivers, as plaintiffs. It does not identify Ball’s employer or Logan’s.

Greg Beck, Public Citizen’s attorney — who also represents Ball and Logan — did not return a request for comment.