Appeals court trashes hours of service rules

On Friday, July 16, 2004, the US Court of Appeals for the DC circuit threw out the new hours of service rules that have been in effect since January. The court sided with Public Citizen, an umbrella group of safety lobbyists.

The official decision was issued one week later on July 23, 2004. In response to the ruling, the Federal Motor Carrier Safety Administration has 45 days in which to file an appeal if it wishes. During that 52-day period, the hours of service rules will remain in place as they have been since January 2004. If the agency asks for a delay of as much as 90 days, the rules would remain in effect throughout any period of delay and could possibly remain in effect while the case is under appeal.

The ruling, issued by a three-judge panel, sends the hours of service issue back to FMCSA for a complete rewrite. In the background for the ruling, the court noted that FMCSA is required by Congress to consider the assignment and maintenance of safety as its highest priority. The court also says that the Federal Highway Administration, the predecessor agency to FMCSA, was directed by Congress to revise commercial motor carrier hours of service rules in 1995. The Congressional action directed the agency to issue a notice of proposed rulemaking to deal with a variety of fatigue-related issues such as fitness for duty, rest and recovery cycles, and it ordered the agency to consider automated and tamper-proof recording devices to document compliance with the rules.

Proposed rules issued May 2000

Federal Highway never issued the proposed rulemaking, so it was left to FMCSA to follow through after it was established in 1999. The proposed rules were issued in May 2000. The proposed rules imposed a 24-hour day on the hours of service compared to the 18-hour service cycle recognized by the regulations in effect at the time. The proposal also mandated onboard recorders in place of paper logs, because the agency said that log falsification was widespread.

As finally adopted, the hours of service rules allowed truck operators to drive for 11 hours in a 14-hour on-duty cycle and mandated 10 hours of continuous off-duty time or 10 hours of rest in two sleeper berth periods. The final rule did not include a requirement for onboard recorders, because the agency said that the technology was not standardized among the various vendors, because such a mandate would be unduly costly, and because recorders were considered intrusive by drivers and by trucking companies.

In its decision rejecting the current hours of service rules, the court says that Congress directed the agency to ensure that the operation of a commercial vehicle does not have a deleterious effect on the health of drivers. Finding that FMCSA “wholly failed to comply with this specific statutory requirement, this single objection from petitioners [Public Citizen] is sufficient to establish an arbitrary-and-capricious decision requiring (rejection) of the rule.” The court went on to say that it had “no alternative but to conclude that the agency failed,” and that nothing shows that “it considered the statutorily mandated factor of drivers' health in the slightest.”

Safety not a health factor

The decision says that the only effort by FMCSA to address driver health was to argue that safety is a health factor. The court said that “vehicle safety is a distinct factor the agency must consider, so considering the effect of driver health on safety cannot be equal to considering the impact on the physical condition of the operators.”

The court used the health issue as the entire rationale for its ruling. However, it did comment on other objections to the HOS rules stated by Public Citizen, saying, “We nonetheless note, for a sense of completeness, the troubling nature of [ ] other facets of the rulemaking.”

Saying that it would not rule on other objections to the rules at this time, essentially, the final nine pages of the 22-page decision instruct FMCSA how to write hours of service rules acceptable to the court and provide opponents to any future rules with a guide on how to proceed in objecting to those rules in the future.

The court noted that FMCSA justified the 11-hour driving cycle by reducing the total number of on-duty hours available to a driver. The agency also said that increasing the number of off-duty hours justified the increased driving time from a cost-benefit standpoint. “We have our doubts about whether these two justifications are legally sufficient,” the court wrote. It went on to say that the agency's argument “makes the cost-benefit analysis of questionable value in justifying the increase in daily driving time.”

The court said that agency justifications for the split sleeper berth exception to the 10-hour off-duty period were “unimpressive.”

Commenting on the lack of an onboard recording device mandate in the new hours of service rules, the court's decision said: “The agency's justification for not requiring [electronic onboard recorders] to monitor driver compliance is another aspect of the final [ ] rule of questionable rationality.” Basically arguing for recorders, the decision said: “It stands to reason that requiring [recorders] will have substantial benefits by inducing compliance with [ ] regulations, and the agency concedes that compliance with [ ] regulations has benefits.” Apparently convinced that cheating on logs happens more often than not, the court decision included a quotation from the country song Six Days on the Road in a footnote with emphasis on the lines, “my log books are way behind,” and “I can dodge all the scales all right.”

TAGS: Vehicles
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