Year in Review: Hours Battle Continued in ’07 as Adversaries Went to Court

By Sean McNally, Senior Reporter

This story appears in the Jan. 7 print edition of Transport Topics. Click here to subscribe today.

The eyes of the trucking industry were firmly fixed on Washington for much of 2007, first watching a federal court deliberate over the fate of the hours-of-service rule, then looking to the Federal Motor Carrier Safety Administration to see how it would address the court’s ruling.

In December 2006, FMCSA defended its rule before the U.S. Court of Appeals for the District of Columbia in two lawsuits. One was from a group headed by Public Citizen arguing that the rule was too permissive, and the second was from a group fronted by the Owner-Operator Independent Drivers Association that contended the rule was not flexible enough (12-11-06, p. 1).

Then for nearly eight months, the industry waited for word from the court over the fate of the hours rule, until on July 24, the court issued its opinion. Citing inadequate data and other procedural issues, the three-judge panel struck down the 11th hour of driving and the 34-hour restart, as requested by Public Citizen, but rejected the OOIDA-led suit (7-30, p. 1).

The court said FMCSA’s “failure to disclose the methodology” it used in expanding the maximum allowable driving time to 11 hours from 10 hours and for crafting the 34-hour restart provision was “prejudicial.”

“FMCSA failed to provide an adequate explanation for its decision to adopt the 11-hour daily driving limit and the 34-hour restart provision,” Judge Merrick Garland wrote for the court.

The decision was immediately hailed by safety and labor groups but decried by trucking industry organizations.

“It was kind of bad news all the way around,” Truckload Carriers Association President Chris Burruss said after the ruling.

Teamsters union President James Hoffa said the ruling “forces the Bush administration to start paying attention to highway safety.”

Bonnie Robin-Vergeer, the attorney who successfully represented Public Citizen, noted that the ruling was the second unanimous one from the D.C. court overturning all or part of the hours rule.

In 2004, a different group of judges from the same court struck down the entire rule for failing to properly account for its effect on driver health.

After the ruling, the agency, trucking and the advocacy community wrestled with its meaning. FMCSA and the trucking industry asserted the ruling was mostly procedural, and easily correctable, while the advocacy community said the ruling was a complete repudiation of the agency and should result in wholesale changes to the rule.

American Trucking Associations President Bill Graves, in a letter to Transportation Secretary Mary Peters, said there was “a justifiable case” for maintaining the longer hours. On the other side, Robin-Vergeer said “the court’s intent was clearly to eliminate the 11th hour of driving and to eliminate the 34-hour restart.”

ATA, FMCSA and other groups spent the summer petitioning the court to either rehear the case or delay implementing its ruling to let the agency address the court’s concerns.

The legal filings and maneuverings, which ultimately culminated in FMCSA asking for a one-year stay of the ruling and ATA requesting an eight-month delay, kept the rule in place until late September.

In a Sept. 27 announcement, the court said it was staying the mandate, or implementation of its ruling, for 90 days, giving the agency a brief reprieve to prepare its response (10-8, p. 1).

The waiting began again, and industry officials and FMCSA staff said the resources being devoted to the hours revisions, as well as their effect on other rules — such as the proposed electronic onboard recorder rule published in January — had stalled several of the agency’s regulations (10-8, p. 4).

During the interim period, industry sources, including Graves, predicted FMCSA would retain the controversial provisions in a new rule.

FMCSA Administrator John Hill said several times during deliberations on the rule that the industry and advocacy communities need to move beyond the hours issue.

In November, Hill said at a safety conference in Baltimore that other safety issues, such as increasing the use of technology or safety belts, “are really larger in scope than hours-of-service related issues [but] people are . . . wanting to focus on the certain negative aspects of what we do and continue to make capital on that issue” (12-3, p. 36).

The agency ended speculation about its intentions regarding the rule in December, by announcing it was retaining the 11th hour and the 34-hour restart, submitting a new interim rule that provided greater statistical support and analysis for the increased driving time.

“We intend to give drivers a work-rest schedule that follows the optimum 24-hour circadian rhythm schedule: 10 hours off duty, 14 hours on duty, while maintaining highway safety and operational flexibility,” Hill said. He added that the agency now had “comprehensive safety data” showing that highway fatalities related to trucks have fallen under the new rules, while the number of crashes related to fatigue has remained similar (12-17, p. 1).

The announcement set off a flurry of praise from the trucking industry, but Public Citizen threatened further legal actions that would keep the future of the rule uncertain.

“We’re prepared to go to court to defend this rule if need be,” Hill said.