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7/16/2004
SPECIAL REPORT: U.S. Appeals Court chucks FMCSA’s HOS rules; says drivers’ health the deciding factor

A federal appeals court July 16 threw out the Federal Motor Carrier Safety Administration's new hours-of-service rules - which extended the amount of time commercial truckers can drive between breaks - mostly because the HOS changes did not consider driver health.

"We agree with the petitioners that the rule is arbitrary and capricious because the agency failed to consider the impact of the rules on the health of drivers . Because the agency has wholly failed to comply with this specific statutory requirement, this single objection from petitioners is sufficient to establish an arbitrary and capricious decision requiring (that the rule be vacated)," the judges wrote in the decision, which was handed down by the U.S. Court of Appeals for the District of Columbia Circuit.

So what does this mean for truck drivers?

The DOT and FMCSA issued the following statement:

"With assistance from the Department of Justice, we are currently reviewing the opinion to determine possible next steps.

"Under the court's rules of procedure, the department has 45 days to review the decision and decide whether to seek other legal remedies. During that period of time, the current hours-of-service rule, announced in April 2003, remains in effect."

FMCSA said it would advise federal authorities and state law-enforcement partners of their responsibility to continue compliance with the current rule. In addition, FMCSA will advise major industry associations to educate motor carriers and drivers of the continued need for HOS compliance.

The appeals court ruling is a victory for safety advocates, including Joan Claybrook's Public Citizen watchdog group, Parents Against Tired Truckers and Citizens for Reliable and Safe Highways - also known as PATT and CRASH - who challenged the Bush administration's hours-of-service rule, which went into effect this year. It's a defeat for the FMCSA and the American Trucking Associations, which defended the rule.

After the appeals court ruling was announced, truckers almost immediately began calling the offices of the Owner-Operator Independent Drivers Association. Executive Vice President Todd Spencer said reactions were varied.

"We look at the whole mess with mixed emotions," Spencer said.

"It is next to impossible for FMCSA to hope to create HOS regulations that prevent fatigue with drivers spending as many hours they do on loading and unloading docks. The old rules didn't directly address this issue, and neither do the new ones. But until shippers, receivers and others can be drawn into the real issue of wasting drivers' time to the tune of 33 to 43 hours per week, we won't have HOS rules that will promote safety or drivers' health."

Citing federal law, the appeals court said FMCSA was required to ensure the operation of commercial motor vehicles does not have a harmful effect on the physical condition of the operators.

However, "the FMCSA points to nothing in the agency's extensive deliberations establishing that it considered the statutorily mandated factor of drivers' health in the slightest," the court said.

The appeals court added: "It is one thing to consider whether an overworked driver is likely to drive less safely and therefore cause accidents. Whether overwork and sleep deprivation have deleterious effects on the physical health of the driver is quite another."

Other concerns

The court said the lack of any consideration of driver health issues was enough by itself to throw out the new rule.

Therefore, the appeals court didn't fully consider other objections stated by the petitioners, but said it had several concerns about those objections.

Increase in driving time

For example, FMCSA justifies increasing maximum driving time by citing the rule's overall decrease in overall daily driving-eligible "tour of duty" from 15 to 14 hours. It also said the increase in mandatory off-duty time from eight to 10 hours justified the increase in daily driving time in light of the cost-benefit analysis it had conducted.

"We have our doubts about whether these two justifications are legally sufficient," the court said.

Sleeper berth concerns

The appeals court also questioned studies FMCSA cited about retaining sleeper berth exceptions.

"For one, the agency's citation to the study for the idea that sleeping in a berth is less restorative than sleeping in a bed supports eliminating, not retaining, the exception. Similarly, the agency's observation that solo drivers less effectively use sleeper berths than do team drivers also supports eliminating the exception for solo drivers .

"In sum, we have grave doubts about whether the agency's explanation for retaining the sleeper-berth exception would survive arbitrary and capricious review," the court said.

EOBRs

The appeals court also said FMCSA should have collected and analyzed data on the costs and benefits of requiring electronic on-board recorders.

FMCSA said the costs and benefits of EOBRs were unknown, because cost estimates vary enormously.

"But nothing prevented the agency from itself estimating the costs. The agency's job is to exercise its expertise to make tough choices about which of the competing estimates is most plausible .

"We cannot fathom, therefore, why the agency has not even taken the seemingly obvious step of testing existing EOBRs on the road . ." the three-judge appeals court said.

Thirty-four hour restart

"One further problematic aspect of the agency's explanation for the rules concerns the 34-hour restart provision," the ruling said.

FMCSA's explanation seems sound, the court said, but "it does not even acknowledge, much less justify, that the rule . dramatically increases the maximum permissible hours drivers may work each week."

-by Dick Larsen, senior editor

Dick Larsen can be reached at dick_larsen@landlinemag.com.

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