Summer Shocker

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WASHINGTON, DC – It could be back to the drawing board for the new U.S. hours of service regulations. That’s because a U.S. appeals court on July 16 ruled them to be illegal because they were “arbitrary and capricious.”

The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit vacated the rule “in its entirety” stating that the government “neglected to consider a statutorily mandated factor of the impact of the rule on the health of drivers.”

The new HOS rules, which went into effect Jan. 4, have now been sent back to the Federal Motor Carrier Safety Administration (FMCSA) for revision.

The appeals court ruling itself, however, can now be appealed to the full appellate court.

So what happened?

In April, a group of organizations filed a petition with the court to have the new hours of service regulations introduced by FMCSA overturned. Public Citizen, a special interest group, was at the head of the pack. The railway-funded CRASH was also involved.

The new regulations represented the first revision of drivers’ hours of service in 65 years.

Under the new HOS rules, drivers’ hours of service on-duty time was reduced from 15 hours to 14 hours in any 24-hour period. But actual driving time was increased from 10 to 11 hours.

In addition to the government’s failure to consider the effect of the rule on drivers’ health, the court panel stated there was “a complete absence of any discussion” of the subject in the ruling, adding that this failure “leaves us with no alternative but to conclude that (the administration) failed to take account of this statutory limit on (its) authority.”

The appeals court also said it had concerns with other parts of the new HOS regulations, including the legality of increasing daily driving hours, its justification for a sleeper-berth exemption and a 34-hour restart rule. It called the legal justification for such measures “problematic.”

“This is a victory for all truck drivers, including Teamsters,” Teamsters president Jim Hoffa said. “Working behind the wheel of a truck is hard, and our concern with this set of rules was that they would increase driver fatigue. We know fatigue creates danger on the highways.”

Be that as it may, FMCSA administrator Annette Sandberg said the existing hours of service rules would remain in place at the very least for a 45-day review period following the July 16 court decision.

So what’s next?

Canadian Trucking Alliance (CTA) officials say the U.S. Court of Appeals for the District of Columbia Circuit will soon issue its formal decision on the matter, which will give the date on which it will become effective; and then the FMCSA will have another 45 days to consider its next course of action. There appear to be three obvious courses of action that FMCSA can take next:

Appeal to the United States Supreme Court – but this can only be done on constitutional grounds;

Rescind the current rules and revert to the previous rules, then eventually come up with new rules within a specified period of time; or

Continue with the current rules and develop new rules within a specified period of time.

Federal authorities and law enforcement have been advised they are to continue enforcing the current HOS rules until otherwise advised, said Sandberg.

But American Trucking Associations officials say they want the FMCSA to seek an even longer delay before the new HOS rules are completely dropped.

The U.S. trucking lobby group says under the court’s rules the government agency can seek a longer delay in the effective date of the appeals court decision (for 90 days or more) by asking the court to issue a stay.

“ATA will encourage FMCSA to seek such a stay to minimize the confusion (and adverse safety consequences) that would result from putting the old HOS rules back in place for some interim period,” the association announced in a release.

ATA believes that switching back and forth between the old and new rules would be confusing to the point of adversely affecting highway safety.

The FMCSA’s failure to expressly consider driver health consequences seems more of a technicality than a significant flaw in the rules, association officials say.

They’re hoping the FMCSA will be able to show that the fatigue-reducing measures in the new rules will also have a beneficial effect on driver health.

The ATA believes the new rules reduce driver fatigue and have “a very positive effect on driver health.”

On this side of the border, Canadian Trucking Alliance chief David Bradley had this to say: “This is clearly a significant decision. However, it is not clear at this point how the FMSCA will respond.

“The decision does not compel the DOT to re-write the rule or to change anything though I suppose they could.

“What the decision told DOT is that they were inconsistent. DOT has the option of basically explaining what and why the rules are written as they are. We’ll have to see. Until then it’s business as usual.”

Transport Canada officials, for their part, are watching the situation closely but it’s not yet clear whether the challenge stateside will pose any difficulties for Canada’s own HOS overhaul which is slated to be implemented in the coming months.

Brian Orrbine, chief of the Road Safety and Motor Vehicle Regulation Directorate for Transport Canada’s Motor Carrier Group, was on vacation and not available for comment, but Transport Canada spokesman Peter Coyles told Truck West “We’re aware of the court decision.

“As for our own process, we’ve published our own regulations in the Canada Gazette Part 1 and we’ve received comments and we’re reviewing them. We’ll certainly monitor ongoing developments in the U.S. closely.”

Meanwhile, the U.S.-based owner/operator group OOIDA told Truck West that its members are confused and frustrated as a result of the latest challenge.

“It’s kind of a mess,” OOIDA executive vice-president Todd Spencer said.

Like most organizations with a vested interest in the future of the nation’s HOS regs, OOIDA doesn’t yet know what to make of the court ruling.

“Right now we can really only speculate about what the court decision may ultimately mean,” Spencer said.

But the challenge may not necessarily be a bad thing, he pointed out – if it forces the FMCSA to factor driver wait time into a revised edition of the HOS rules.

“We look at the issue with mixed emotions,” said Spencer, noting the revamped HOS rules neglected to address wait times drivers are faced with while loading and unloading.

If a forced revision to the regs was to encompass changes that would take driver wait time into account, it could ultimately be a victory for drivers and owner/operators, he said.

He also pointed out the original mandate from Congress said loading and unloading time should be considered when the new rules were drafted.

“Nowhere in that final rule is that subject addressed,” he said.

And until the regulations take wait times into consideration, Spencer said “We won’t have compliance with any hours of service formula.”

“There are still plenty of controversial issues” with the latest HOS rules, added Spencer. “There’s a lot of uncertainty as to which regulations they should be following.”

And while OOIDA isn’t yet certain how all this will play out, Spencer said it could be a non-issue if the FMCSA is able to simply explain how they have addressed driver health issues when drafting the new regulations.

“If they address that issue, in essence they’ve satisfied the judges’ concerns,” he said.

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