HOS Combatants Agree Court Ruling Marks End of 17-Year Regulatory Fight
This story appears in the Aug. 19 print edition of Transport Topics.
The chief adversaries in the nearly 17-year battle over federal work rules for commercial drivers agreed that the recent appeals court decision upholding most of the government’s latest regulation closes the book on the overhaul of the so-called hours-of-service rule, which had not changed significantly in 57 years.
But while the trucking industry says it wants to move beyond the issue of truck-driver fatigue, groups that have filed numerous lawsuits aimed at pushing regulators, lawmakers and courts to restrict truckers’ driving hours said they want to make sure the government does not forget about the issue.
“Generally, it’s been settled, yes. The agency is starting with some little tweaks, but all in all, it’s done,” said Bill Graves, president of American Trucking Associations, referring to petitions for exemptions by some carriers in various niches.
“I think the court had case fatigue, and they were just tired of having it come back to the court and wanted to get rid of it,” said Henry Jasny, general counsel for Advocates for Highway and Auto Safety, a group that sued three times to stop the government’s extension of allowable driving time.
“We figure we had overstayed our leave,” Jasny told Transport Topics. “Trying to get three wins on the same issue is pretty difficult.”
However, he said, “We have not at all given up on the idea that fatigue is underreported and that fatigue plays a big role in a lot of crashes.”
When the Federal Highway Administration set out to revise the regulations in 1996, it thought it could have a new set of rules in three years.
“The time has come to modernize the hours of service — at least to begin the process, which is likely to stretch into 1999 and perhaps beyond before the goal is reached,” TT reported in November 1996, when FHWA first announced that it was gathering comments on the congressionally mandated rewrite. At the time, truckers were limited to driving 10 hours a day in a 15-hour work window.
What followed was a proposal in 2000 for a 12-hour driving limit with no distinction between on-duty and off-duty time, a proposal that Congress blocked at the urging of the trucking industry.
Then, in 2003, the Federal Motor Carrier Safety Administration — which took over responsibility for trucking safety from FHWA when it was created in 2000 — increased the daily driving limit to 11 hours and cut the overall workday to 14 hours.
The U.S. Court of Appeals for the District of Columbia Circuit overturned that rule twice; its latest decision, on Aug. 2, is the
first time this court has backed those driving limits and the allowance of a 34-hour restart to reset drivers’ weekly driving clocks.
Jasny’s group convinced the court to overturn the 11-hour limit and 34-hour restart in 2007 and filed a lawsuit again in 2009 when FMCSA decided to keep both provisions. It sued again in 2012 when FMCSA’s 2011 rule kept those provisions.
Public Citizen and the Truck Safety Coalition joined Advocates in the 2007 lawsuit and also persuaded the court to overturn the rule in 2004.
In addition to affirming both the 11-hour day and the restart, the D.C. court’s Aug. 2 decision upheld three restrictions American Trucking Associations had challenged from the 2011 rule, stating that:
• Most truck drivers must take a 30-minute break before driving more than eight hours;
• The restart can be used only once every seven days; and n The restart must include two periods from 1 a.m. to 5 a.m.
The court also ruled that the break should not be required for shorthaul drivers, a win for ATA.
And while this battle apparently is over for the groups that sought to restrict driving hours, they said last week they will keep a close eye on driver fatigue and may push for more changes in the future.
“We’re just going to urge [FMCSA] to collect data on fatigue and see what they can look at in the future,” Jasny said.
Scott Nelson, a Public Citizen attorney who argued the case on his group’s behalf, said his group will keep pressure on the federal government over driver fatigue.
“I don’t think that safety advocates are just going to sit here forever and say that rules that are insufficiently protective are good enough,” Nelson said. “I think that this effort will go on in some manner. It may take it a while before it gets back to the D.C. Circuit.”
But Dave Osiecki, ATA’s senior vice president for policy and regulatory affairs, urged FMCSA to look beyond fatigue.
“There are more effective and efficient ways to improve safety in the trucking industry than continuing to look at fatigue,” he said.
The Owner-Operator Independent Drivers Association, which joined the 2012 lawsuit on ATA’s behalf, similarly said that the issue is over.
“We have long believed that drivers need flexibility to do their jobs safely. That hasn’t changed,” Todd Spencer, OOIDA’s executive vice president, said in a statement. “But the court’s decision has put the issue to bed for now.”
OOIDA urged federal regulators to focus on other issues that it said are more important, such as requiring behind-the-wheel training for new truck drivers.
For its part, the court thought that it had ended the hours-of-service fight.
“With one small exception, our decision today brings to an end much of the permanent warfare surrounding the HOS rules,” Judge Janice Rogers Brown wrote, referring to dropping the 30-minute rest break for shorthaul drivers.
