U.S. Appeals Court throws out HOS rule

WASHINGTON, (July 16, 2004) — The U.S. Court of Appeals in Washington, D.C. has thrown out the federal government’s new hours-of-service rules today and sent the case back to the Federal Motor Carrier Safety Administration for review.

The court sided with the lobby group Public Citizen’s argument that the regulations — which took effect on Jan. 4, 2004 — failed to consider the impact on the health of drivers.

The new rules expand the time a driver can drive from 10 to 11 hours a day, but cut back on the number of hours a driver can be on-duty from 15 to 14 hours a day and forces drivers to log non-driving time — like meals, fuel breaks, and loading or unloading time — as on-duty.

While the court had problems with several other aspects of the final rule — including increasing the maximum driving time from 10 to 11 hours; the sleeper berth provision; the 34-hour “restart” provision; and the lack of so-called “black boxes” — it did not make an official decision on those matters because the health issue alone was enough to throw out the regulation entirely. However, it seems the court does expect the FMCSA to consider these matters as well, saying “the agency will be free in its further proceedings to consider the other objections anew in light of this opinion.”

As for the original decision, the court said it agreed with the petitioners that the HOS rule is arbitrary and capricious, adding that FMCSA failed to comply with a statute requiring the agency to consider the impact of the rule on “the physical condition of the operators,” not simply the impact of driver health in respect to commercial motor vehicle safety.

“It is one thing to consider whether an overworked driver is likely to drive less safely and therefore cause accidents,” stated the rule obtained by Today’s Trucking. “Whether overwork and sleep deprivation have deleterious effects on the physical health of the driver is quite another.”

“The agency may of course think that effects (such as sleep deprivation and back pain) on drivers are not problematic, or are outweighed by other considerations like cost, but if so, it was incumbent on it to say so in the rule and to explain why. The agency ‘s failure to consider this factor permeated the entire rulemaking process.”

The FMCSA says it has looked over the court’s decision, and with assistance from the Department of Justice, is currently reviewing the opinion to “determine possible next steps.” Under the court’s rules of procedure, the department has 45 days to decide whether to seek other legal remedies.

In the meantime, the FMCSA stresses that the current hours-of-service rules remain in effect, and the agency is advising enforcement officials and carriers “of their responsibility to continue compliance.”

The court also took exception to other aspects of the new HOS rules, but has not handed down judgements as of yet. They include:

Daily driving time: The court agreed with Public Citizen’s argument that increasing maximum driving time from 10 to 11 hours raises “very real concerns.” While the final rule increased the minimum amount of off-duty time from eight to 10 hours, and decreased permissible driving-eligible on-duty time from 15 to 14 hours, the court had doubts whether these two issues adequately compensated for the increase of driving time from 10 to 11 hours.

“Moreover the agency also increased the maximum weekly on-duty time for those drivers maximizing weekly driving time and who take advantage of the 34-hour ‘restart provision’,” the court stated. “The effects from the increased weekly driving hours may not offset any decrease in fatigue flowing from the fact that drivers have shorter overall tours of duty.”

Moreover, while the court accepted the FMCSA’s position that the “restart” rule helps drivers keep a regular schedule, that should not justify the fact that the provision “dramatically increases the maximum permissible hours drivers may work each week.”

Sleeper Berth: The court’s doubts also extended to the agency ‘s justification for retaining the sleeper-berth exception — which permits solo and team drivers to obtain the necessary 10 hours of off-duty time by splitting their rest in two periods of time spent in sleeper berths, at least one of which is two hours long. The court dismissed the study that FMCSA relied on in its final rule, which justified permitting drivers to obtain the required continuous period of rest in two chunks.

“The study comparing the effects of sleeper berth usage on team drivers and solo drivers says little about whether, as an absolute matter, retaining the exception is safe,” the court stated.

EOBRs: The court also seriously questioned the FMCSA’s decision to not include in the final rule the earlier proposal to require electronic on-board recording devices to monitor driver compliance. The reasons the FMCSA gave in dismissing ‘black boxes’ — that neither the costs nor the benefits of EOBR systems are adequately known; that read-out procedures created by different EOBR vendors are incompatible; and that EOBRs are a direct assault on drivers’ privacy — were not sufficient, in the opinion of the court.

Furthermore, given the fact that falsifying logbooks and non-compliance with HOS rules is a serious regulatory problem, the court did not mince words when it stated it cannot “…fathom why the agency has not even taken the seemingly obvious step of testing existing EOBRs on the road, or why the agency has not attempted to estimate their benefits on imperfect empirical assumptions.”

Once more, the court stressed it was not impressed with the FMCSA’s handling of the rulemaking process. “Regulators by nature work under conditions of serious uncertainty, and regulation would be at an end if uncertainty alone were an excuse to ignore a congressional command to deal with a particular regulatory issue,” it stated.

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