By Peter A. Buxbaum, AJOT
The Federal Motor Carrier Safety Administration's most recent hours-of-service rule for truckers, issued in 2005, may be headed for the trash bin, as was the fate of its 2003 predecessor. That, at least, is the hope of critics of the rule. They have reason to be optimistic.
The United States Court of Appeals for the District of Columbia Circuit heard legal arguments on December 4 from lawyers representing parties challenging the rule and the government, which asked that the rule be upheld. The International Brotherhood of Teamsters, the Owner-Operator Independent Drivers Association, and Public Citizen, a public policy advocacy group, all had petitioned the court to overturn the rule on various grounds.
The same court threw out the 2003 hours-of-service rule on the grounds that it was 'arbitrary and capricious.' If the court takes similar action now, it will likely be on comparable grounds, that the FMCSA failed to take into account its Congressional mandate when promulgating the rule, without passing the merits of the rule itself. The court's decision in the present case is expected in March, at the earliest.
Reform of the hours-of-service rule has had a tortured recent history. Congress ordered the FMCSA to issue a new hours-of-service rule in 1995 in order to make trucking operations safer. The FMCSA finally issued a new rule in 2003.
The 2003 rule allowed truckers to drive for eleven hours straight and for 77 hours in seven days, or 88 hours in eight days. The earlier rule allowed only 10 hours of consecutive driving and 60 hours in the previous seven days, or 70 hours in the previous eight. Under the 2003 rule, total on-duty hours for a seven or eight day period also climbed. Despite having been invalidated by the court, the FMCSA's 2005 rule substantially copied the older version.
In the first lawsuit, the court nullified the rule because the FMCSA had failed to consider the effect of the new rules on the health of truck drivers as it was required to do under its Congressional mandate. It is this rationale that gives opponents of the current rule hope.
During oral arguments, judges on the court seemed most interested in how the FMCSA justified the rule from the standpoint of safety and economic impact. OOIDA, for example, argued three separate bases for attacking the current regulations: that they do not address a Congressional mandate to address loading and unloading; that the regulations do not comply with the court's previous direction to consider the impact of the regulations on drivers' health; and that the FMCSA did not follow the Administrative Procedures Act in arriving at the regulation.
However, Paul Cullen, the lawyer who argued the case for OOIDA, said the three-judge panel seemed most interested in the contention that the FMCSA skirted the requirements of the Administrative Procedures Act. According to Cullen, the APA dictates that the rationale behind a proposed regulation be 'reasonably specific.'
During court proceedings, Judge Merrick Garland questioned government attorney Matthew Colette on the FMCSA's analysis of how increased consecutive hours of driving affected crash risk. Garland noted that the analysis must be reasonable and transparent. Chief Judge Douglas Ginsburg raised similar concerns, noting that the court has often instructed agencies to 'show your work,' in other words, to disclose how the agency arrived at particular regulatory provisions.
Colette defended the FMCSA's reliance on the proposition that the 'length of wakefulness is a bigger factor in fatigue than time on task.' He also argued that drivers 'are not necessarily using [extended on-duty time] to drive a massive number of hours.' 'In any case, the number of hours driving per week is not as significant as reducing fatigue on a daily basis,' he added.
The American Trucking Associations, which has long supported the hours-of-service changes, said in a statement tha
