HOS is O-U-T
Court dumps new rules, but they’re still in effect — for now

The Federal Motor Carrier Safety Administration’s new hours-of-service rules were thrown out in July by a federal appeals court, which ruled that the regulations did not properly consider drivers’ health.

In its decision, announced July 16, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit called the new HOS rules “arbitrary and capricious.”

Here’s what truckers need to know for now:

  • The rules that went into effect in January 2004 are still in effect. That will likely be true as long as the litigation is alive, Bill MacLeod, a spokesman for FMCSA, told Land Line.
  • The FMCSA has up to 45 days to decide whether to pursue further appeals. While the agency is mum on what its options are at the end of that period, it will have some guidance for truckers at that time regarding what regulations they must follow.

“We certainly want to assess this in a way that gets the maximum opportunity for safety and certainly for compliance by drivers,” MacLeod said. “They don’t want to dislocate the industry.”

Although the agency’s officials declined comment on its legal options, OOIDA’s Executive Vice President Todd Spencer said the FMCSA doesn’t have many:

  • The agency could petition the Court of Appeals to hear the case again, this time before the entire court rather than a panel of three judges.
  • The agency could petition the U.S. Supreme Court to review the July 16 decision.
  • The agency could consider the concerns of the three judges and fix the rules.
  • The agency could explain how it did consider the drivers’ health in writing the new rules.

Spencer said he thinks it is likely FMSCA will ask the appeals court to grant the agency more time to explore its options.

The court said federal law required the agency to consider drivers’ health, but “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.

“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.”

FMCSA Administrator Annette Sandberg quickly issued a statement.

Sandberg said her agency would advise federal and state authorities of their responsibility to continue compliance with the current rules. In addition, FMCSA will advise major industry associations to educate motor carriers and drivers of the continued need for compliance.

The appeals court ruling is a victory for some 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 new hours-of-service rules. It’s a defeat for the FMCSA and the American Trucking Associations, which defended the rules.

After the appeals court ruling was announced, truckers almost immediately began calling the offices of the Owner-Operator Independent Drivers Association. Spencer said their 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.

“The 1995 directive by Congress to change the hours-of-service rules mentioned ‘loading and unloading operations’ specifically as an element that must be considered in revising the HOS rules. At numerous hearings and public forums, the FMCSA heard from OOIDA and many others about the significant impact that loading and unloading has on the time and fatigue of drivers.

“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.”

Other HOS concerns
The appeals court said the driver health issues alone were enough to throw out the rules. Therefore, the court didn’t fully consider the petitioners’ other objections, but did note several concerns about them:

  • Increase in driving time from 10 to 11 hours — The court said it doubted the FMCSA’s justifications for increasing maximum driving time were “legally sufficient.”
  • Sleeper berth concerns — The court had “grave doubts” about the explanation for retaining the sleeper-berth exception.
  • EOBRs — The court said FMCSA should have collected and analyzed data on the costs and benefits of requiring electronic on-board recorders.
  • Thirty-four hour restart — The judges were concerned, saying it “dramatically increases the maximum permissible hours drivers may work each week.”

— by Dick Larsen, senior editor

Dick Larsen can be reached at Mark Reddig and Sandi Soendker of the Land Line staff contributed to this report.