SPECIAL REPORT: Interim HOS rule already challenged in court

| 12/19/2007

Wednesday, Dec. 19, 2007 – Before the interim final rule on hours of service officially went into effect, five groups filed a challenge asking the court to toss out the interim rule.

The motion to enforce the court’s orders was filed Wednesday, Dec. 19, with the U.S. Court of Appeals for the Washington, DC, Circuit by Public Citizen, Citizens for Reliable and Safe Highways, Parents Against Tired Truckers, Advocates for Highway and Auto Safety, and the International Brotherhood of Teamsters.

In the motion, the groups urge the court to vacate the interim final rule – or at least that portion that reinstates the two invalidated provisions. The groups also ask the court to direct FMCSA to issue another interim final rule or other authoritative guidance that limits truck drivers to a 10-hour consecutive driving limit and to the governing 60-hour and 70-hour weekly on-duty limits with no 34-hour restart.

The Federal Motor Carrier Safety Administration announced the interim rule this past week. It was set to go into effect Dec. 27.

The interim rule came after the court denied FMCSA’s request for a one-year stay on the court’s decision to vacate the 11th hour and the 34-hour restart.

Agency officials decided to keep the current rules rather than create confusion within the trucking industry and the enforcement community by issuing revisions to the rule.

“Uncertainty is the enemy of enforcement and compliance; it can only impair highway safety,” FMCSA officials wrote in the interim final rule. “This (interim final rule) will ensure that a familiar, uniform set of national rules govern motor carrier transportation, while FMCSA gathers additional public comments on all aspects of this interim final rule.

“By re-adopting the 11-hour limit and the 34-hour restart, the agency’s intent is to allow motor carriers and drivers to combine work-rest schedules that follow the optimal 24-hour circadian cycle (10 hours off duty and 14 hours on duty) while maintaining highway safety with operational flexibility.”

The two provisions were tossed by the court on procedural grounds – not based on safety concerns.

According to the motion to enforce, when FMCSA’s request for a stay was denied by the court, the agency did not immediately issue an interim rule or other guidance implementing the court’s decision. Instead, it held off until the last minute before issuing the interim rule – essentially granting itself the one-year stay.

The groups also say that by sticking with the current regs in the interim rule FMCSA is not following the correct procedures for implementing regulations and is not complying with the “letter or spirit” of the court’s order that tossed the two provisions.

Even though the HOS interim final rule is facing a court challenge before it goes into effect, the current regulations are still in effect.

The court’s order tossing the change to the 11th hour of driving and the 34-hour restart was not to go into effect until Dec. 27. The interim final rule is currently set to kick in on that same day.

Until the court orders FMCSA to do something different or until FMCSA issues a different interim final rule, truckers are set up to continue operating under the current hours of service regulations, which include the 11th hour of driving and the 34-hour restart.

– By Jami Jones, senior editor