August 2, 2013

Appeals court upholds virtually all of government's driver hours of service rules

Decision may finally end decade-long legal fight, court says.

By Mark B. Solomon

A federal appeals court in Washington, D.C., today let stand virtually all of the federal government's controversial new rules governing the operations of the nation's truck drivers. The ruling may end the decade-long battle between multiple groups over how fleets and their drivers should ply the nation's roads.

The court, with one exception, upheld the Federal Motor Carrier Safety Administration's (FMCSA) 2011 rules for drivers' hours of service, known in the trade as HOS. The court overturned a FMCSA provision requiring a 30-minute break for short-haul drivers, defined in this instance as local delivery drivers such as those working for companies like FedEx Corp. and UPS Inc.

The ruling is a blow to the American Trucking Associations (ATA), which sued the FMCSA in an effort to overturn the rules. Enforcement of the new rules went into effect July 1, 18 months after the policy was proposed.

In its December 2011 rules, FMCSA reduced a driver's seven-day workweek to 70 hours from 82 hours, a 15-percent cut. For the first time ever, drivers also have limits placed on their traditional 34-hour minimum restart period, requiring it to occur once every seven days and to include two rest periods between 1 am and 5 am over two consecutive days. The 2011 rule bars truckers from driving more than eight hours without first taking at least a 30-minute off-duty break.

In its revisions, the agency left unchanged a key provision allowing 11 hours of continuous drive time after a driver has spent 10 consecutive hours off duty, instead of reducing the number of continuous driving hours to 10. That sparked opposition from safety advocacy groups, notably Public Citizen, which said the language would continue to jeopardize the public on the roads.

THIRD TIME'S A CHARM?
Today's decision marks the third time in 10 years that the appeals court has ruled on the issue of driver hours. At the end of its 22-page decision, the court, perhaps tongue in cheek, said, "the third time's a charm." In an effort to add historical context, the court said its action "brings to an end much of the permanent warfare surrounding the HOS rules."

Still, the court couldn't resist chiding the FMCSA, saying the Department of Transportation's truck safety subagency prevailed "not on the strengths of its rulemaking prowess, but through an artless war of attrition." Those following the battle for years have said the FMCSA has not done a stellar job in the past of defending its position in court.

While the court ruling was not a ringing endorsement of the merits of the FMCSA policy, it found that the agency did not behave "arbitrarily and capriciously" in weighing the merits of the restart provisions. The judges added that FMCSA "acted reasonably, if incrementally, in tailoring the restart to promote driver health and safety."

In its statement, ATA chose to focus on the court's decision denying the rest provision for the local delivery drivers. The group also noted that although the court found various flaws with FMCSA's rationale, it declined to second-guess the agency's methodologies and interpretations and instead deferred to its technical expertise in the issue.

Dave Osiecki, ATA's senior vice president of policy and regulatory affairs, said in the statement that the ruling should "serve as a warning to FMCSA not to rely on similarly unsubstantiated rulemakings in the future."

Osiecki said the evidence presented in the rulemaking process made clear that driver fatigue is a minor factor in the cause of crashes involving a truck. "ATA hopes FMCSA will work with the trucking industry to address more pressing safety and driver behavior issues, including those than can be directly affected through proven traffic enforcement activities aimed at unsafe operating behaviors," he said.

Thomas E. Bray, an HOS expert at J.J. Keller & Associates Inc., a Neenah, Wis.-based consultancy that has been working with carriers to prepare for the changes, said today he was surprised by the decision because of FMCSA's past inabilities to sway the courts. Bray said the court essentially found that the FMCSA finally has enough valid data points to support its policy.

The 2011 rules have become some of the most publicly reviled policy changes in transportation history. Carriers say the rules cut into their productivity and require them to deploy more resources to move the same amount of freight they handle now. Shippers say the new rules have led to a 3- to 5-percent decrease in vehicle miles driven, forcing them to reconfigure their manufacturing and distribution networks if they want to get their goods to market in a timely fashion. Drivers claim the rules curtail their ability to earn a living and force rest upon them when they don't need it.

State regulators worry that carriers will put more trucks on the road to offset the productivity losses, straining their enforcement capabilities. Some in Congress have argued the rule creates a safety hazard by forcing commercial drivers onto the highways at the same time as millions of morning rush-hour commuters.

About the Author

Mark B. Solomon
Executive Editor - News
Mark Solomon joined DC VELOCITY as senior editor in August 2008, and was promoted to his current position on January 1, 2015. He has spent more than 30 years in the transportation, logistics and supply chain management fields as a journalist and public relations professional. From 1989 to 1994, he worked in Washington as a reporter for the Journal of Commerce, covering the aviation and trucking industries, the Department of Transportation, Congress and the U.S. Supreme Court. Prior to that, he worked for Traffic World for seven years in a similar role. From 1994 to 2008, Mr. Solomon ran Media-Based Solutions, a public relations firm based in Atlanta. He graduated in 1978 with a B.A. in journalism from The American University in Washington, D.C.

More articles by Mark B. Solomon

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