In a decision issued July 24, 2007, the U. S. Court of Appeals for the District of Columbia Circuit has thrown out the Federal Motor Carrier Safety Administrations 11-hour limitation on commercial driving (without a 10-hour break) and the provision allowing a driver a clean slate (or restart) after 34-consecutive hours off duty.
As background, in 1995 Congress instructed the FMCSA's predecessor, the Federal Highway Administration, to promulgate new hours-of-service regulations. The FMCSA finally issued new regulations in April 2003. The new rule increased maximum allowed driving time from 10 hours to 11 hours (after a minimum break of 10 hours) and allowed the driver to restart his cumulative permissible hours of on-duty time if he had 34 consecutive hours of duty. The new rule increased the minimum amount of break time from 8 hours to 10 hours between shifts. After a legal challenge by Public Citizen, in 2004 the D.C. Court of Appeals threw out the new rules as arbitrary and capricious "because the agency failed to consider the impact of the rule on the health of drivers, a factor the agency must consider under its organic statute." The Court also expressed concerns regarding how allowing a commercial driver to drive more comported with the Congressional mandate to consider driver health and to devise a rule the better promoted safety.
FMCSA went back to the drawing board after it received a temporary reprieve from Congress while the April 2003 rule continued in effect.
In August 2005, FMCSA proposed yet another rule which was the rule under review in the decision issued today. FMCSA spit in the face of the Court because the August 2005 rule differed little from the April 2003 rule that the Court had already found to be arbitrary and capricious. The only significant difference is that the 2005 rule allows a driver to split his 10-hour break by having 8-hours in the sleeper berth. The FMCSA argued in its decision promulgating the 2005 rule the Court's concerns over the failure of FMCSA to address driver health raised in the 2004 Court decision.
In promulgating the 2005 rule (the fraternal twin of the 2003 rule) the FMCSA used a cost-benefit analysis to support the increase of the pre-2003 allowed driving time (10 hours) to 11 hours allowed by the 2003 rule and the 2005 rule. It used the same analysis to support the 34-hour restart provision. The agency used an operator fatigue model essentially balancing the benefits to the motor carrier by increased productivity (more money for the motor carriers) against the impact on safety.
In the decision issued today in Owner-Operator Indep. Drivers ***'n v. FMCSA, the Court set aside portions of the 2005 rule based on the agency's failure to abide by the notice provisions of the Administrative Procedures Act. Public Citizen had challenged the agencies use of a new methodology to justice the increase of allowed driving time to 11 hours and the 34-hour restart contending that FMCSA did not provide notice and the opportunity for public comment on the use of this new methodology in violation of the Administrative Procedures Act. The Court agreed, stating as follows:
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We have no difficulty in concluding that the agency's failure to disclose the methodology of the operator-fatigue model in time for comment was prejudicial. The arguments that the petitioner has raised before this court amply demonstrate that it would have mounted a "credible challenge" had it been afforded the opportunity to do so.
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The Court went on to find that the FMCSA's "complete lack of explanation for an important stet in the agency's analysis was arbitrary and capricious."
The Court took the FMCSA to the woodshed for failing to explain once again its rationale for increasing allowed driving time stating as follows:
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We express no view on the validity of FMCSA's statistical method, but we agree with Public Citizen that --once again -- the agency offered no explanation for its decision during the rulemaking and failed even to respond to the petitioner's argument in its brief. Although we apply a deferential standard of review to an agency's use of a statistical model, we cannot uphold a rule based on such a model when an important aspect of its methodology was unexplained.
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In other words, the FMCSA may be right, but it fumbled the ball badly by (a) failing to provide public notice and the opportunity for public comment of the methodology used for its statistical and cost-benefit analysis as required by the Administrative Procedures Act, and (b) failing to provide any rationale for the use of its statistical model.
In the same decision, the Court rejected a challenge by the Owner-Operator Independent Driver Association (OOIDA) to the portion of the 2005 rule requiring a driver to begin his 10-hour daily break not later than 14 hours after he first went on-duty. The Court also addressed OOIDA's challenge to the rule limiting splitting of sleeper berth time to a minimum of 8 hours in the sleeper berth. The Court found that the FMCSA provide adequate justification by FMCSA for both of these rules.
The impact of this decision will, in my opinion, impact the less-than-truckload segment of the trucking industry the most. Roadway Express, Inc. and Yellow Transportation have each had several major changes of operations essentially realigning runs and reshuffling others to different terminals in order to take advantage of the 11-hour driving rule. Roadway closed terminals at North Lima, OH and White Pine, TN as part of a major change of operations. Roadway also transferred 129 drivers out of Greenville, SC and reassigned them to Atlanta, Winston-Salem, and Meridian, MS while realigning runs based on the 11-hour rule. The cost of transferring drivers back and possibly reopening terminals are likely to be substantial.
With respect to the truckload segment of the industry, the loss of the available driving time through the 34-hour reset will place a further demand on the driver shortage now existing. Perhaps the increased demand will result in increased pay and better benefits for non-union drivers.
In any event, FMCSA's effort to increase driving time supposedly to make drivers healthier and the public safer is, in all likelihood, history.
A copy of the Court's decision can found by following this link:
http://pacer.cadc.uscourts.gov/docs/...7/06-1035a.pdf
Paul Taylor
Truckers Justice Center
Employment Lawyer Burnsville Minnesota Wrongful Termination Whistleblower Attorney
NOTHING IN THIS POST SHOULD BE CONSTRUED AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP.
Court Strikes Down Truckers' Hours Rule (AP via Yahoo! Finance) 
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