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FMCSA wins HOS battle ‘through artless war of attrition,’ says appeals court

Thus ends — unless Congress decides to intervene — a 10-year skirmish among the trucking industry, safety advocates and the FMCSA. (Photo courtesy The Trucker)

By LYNDON FINNEY
The Trucker Staff

8/2/2013

WASHINGTON — Declaring that the Federal Motor Carrier Safety Administration “won the day not on the strengths of its rulemaking prowess, but through an artless war of attrition,” the United States Court of Appeals for the District of Columbia Friday brought an end to much of what the court called “the permanent warfare surrounding the Hours of Service rule” by upholding the new HOS regulations with one minor exception.

Thus ends — unless Congress decides to intervene — a 10-year skirmish among the trucking industry, safety advocates and the FMCSA that resulted in all or portions of two Hours of Service “final rules” being overturned by the appeals court and a third being essentially withdrawn by the agency with the promise to write a completely new rule, which it issued in December 2010 as a Notice of Proposed Rulemaking and in December 2011 as a final rule.

Unlike the previous three lawsuits that were brought by safety advocates, this time the trucking industry — led by the American Trucking Associations — jumped into the fray only to have the court side with the FMCSA.

The lone exception was a decision by the court not to apply the new 30-minute break rule to short-haul drivers, or those whose routes take them 150 air miles or less from their home terminal.

Trucking interests were — and likely still will be — unhappy with the 2011 rule’s 34-hour restart provision that limits the use of restart to once a week (rather than unlimited use during a one-week period) and the requirement that all restarts include two consecutive 1 a.m.-to-5 a.m. time periods.

And they opposed the 30-minute break requirement that says a driver must take a 30-minute break no more than eight hours after going on duty. The driver must go off-duty during the break, although he or she can stay in the truck so long as they do no work.

Safety advocates were strongly opposed to the 11-hour driving limit, preferring the 10-hour limit that was in place prior to 2004, and were hoping to see the 34-hour restart eliminated entirely; however, the court found that the safety advocates were without standing to challenge the restart provision.

FMCSA said of the court's decision: “We are pleased with the court’s decision to uphold the department’s Hours of Service requirements for truck drivers. The ruling recognizes the sensible data-driven approach that was taken in crafting this important regulation to increase safety and reduce driver fatigue – a leading factor in truck crashes. The ruling also provides added certainty for all affected, moving forward. The Federal Motor Carrier Safety Administration is reviewing the court’s opinion and will soon take additional action, as needed, for its full implementation.”

Reaction was swift from the ATA, the Owner-Operator Independent Drivers Association and safety advocates.

“While we are disappointed the court chose to give unlimited deference to the FMCSA’s agenda-driving rulemaking, the striking down of the short-haul break provision is an important victory,” said Dave Osiecki, ATA senior vice president of policy and regulatory affairs.

“The court recognized on numerous occasions the shortcomings of the agency’s deliberations, so despite upholding most of the rule, we hope this opinion will serve as a warning to FMCSA not to rely on similarly unsubstantiated rulemakings in the future. One thing this rulemaking makes clear is that fatigue is a small problem when viewed through a crash-causation lens. 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.”

“As far as Hours of Service, we have long believed that drivers need flexibility to do their jobs safely. That hasn’t changed. But the court’s decision has put the issue to bed for now,” said OOIDA Executive Vice President Todd Spencer. “That being said, hopefully we can now move on to addressing the biggest safety gap in the trucking industry and that’s the lack of basic training standards for new drivers.”

Henry Jasny, vice president of Advocates for Auto and Highway Safety, said safety advocates were also disappointed with the ruling.

“We think this is a blow to safety and we were hopeful the court would have picked up on the issues that the first panel did back in 2004,” he said. “They’re giving the agency the credit for keeping with the 11-hour limit even though [in] most of the evidence the agency revealed the limit should never have been decreased to 11 hours in the ruling.”

Jasny said safety advocates would “just keep talking to the agency about collecting data to show the problem with the driver fatigue and convince them that they still need to be vigilant about that.”

As for the 34-hour restart, the court rejected ATA’s claim that FMCSA essentially acted “capriciously and arbitrarily” when it changed its previous position on the 34-hour restart and wrote the one-time-a-week provision in the new rule.

“Since the agency previously argued in favor of an unlimited 34-hour restart, the administrative record reveals some tension between earlier statements and the agency’s present call for additional safety  requirements,” the court wrote. “ATA highlights these inconsistencies as proof the record will not bear FMCSA’s current interpretation (or in the same vein, that the agency has acted arbitrarily in failing to distinguish its ‘prior positions’).

FMCSA responds that “new evidence caused a change in the agency’s view,” the court said.

“As explained in the 2010 NPRM, drivers and carriers disabused the agency of its previously held views when they ‘stated at the listening sessions and in their comments that, especially on the road, drivers do indeed take the minimum restart allowed,’ with some carriers even acknowledging ‘that they have used the restart to add one work shift a week,’” the court wrote.

“In light of these new developments, we cannot say FMCSA acted arbitrarily or capriciously in recalibrating the HOS regulation to reflect its changed understanding of how the 34-hour restart is used in practice. Agencies are free to change their views provided they offer reasonable explanations and justifications for their departure.”

In upholding the two 1 a.m.-to-5a.m. overnight periods, the court pointed to a 2010 study that showed that the two-night provision works better than one night to mitigate driver fatigue in nighttime drivers.

“ATA takes issue with the study’s methodology and the conclusions FMCSA draws from it, but we must unquestionably defer to an agency’s expertise in weighing and evaluating the merits of scientific studies,” the court said. “In sum, we think the agency has acted reasonably, if incrementally, in tailoring the restart to promote driver health and safety.”

The court noted that the safety advocates had suggested that the FMCSA’s decision on the 11-hour driving limit was one “based on a misunderstanding of its authority.”

The court said it was rejecting the safety advocates’ claim that FMCSA based its decision on an erroneous view of the law when it suggested that there were not “adequate and reasonable grounds under the Administrative Procedure Act for adopting a new regulation” because there was an “absence of compelling scientific evidence demonstrating the safety benefits of a 10-hour driving limit, as opposed to an 11-hour limit.”

To see the decision, click here: http://www.cadc.uscourts.gov/internet/opinions.nsf/D6BADB06E71C018F85257BBB004DEFAD/$file/12-1092-1449738.pdf

The Trucker staff can be reached to comment on this article at editor@thetrucker.com.

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