On August 2 the D.C. Circuit Court of Appeals upheld most, but not all, of the new Hours of Service Regulations put into place July 1, 2013.
The court upheld the 34 hour restart provision and the 30 minute rest break mandate. The court vacated the 30 minute rest break for local drivers as defined under 49 CFR 395.1(e). Short haul drivers under this provision operate within a 100 mile radius of their normal work reporting location – 150 miles for non-CDL drivers. This change will become official once the FMCSA publishes the exemption in the Federal Register.
The court agreed with one of the American Trucking Association’s arguments that short haul drivers should not be compelled to comply with the 30 minute break provision – and the court vacated only that portion of the new regulation. The court denied all other arguments by the ATA.
The court also denied Public Citizen’s argument to reduce allowable driving time. The court found no merit in Public Citizen’s request to eliminate the 34 hour restart provision and reduce allowed driving time from 11 hours to 10 hours. The court rejected all of Public Citizen’s claims.
The court identified several flaws in the FMCSA’s justification for the new regulations. However, it refused to “second guess” the Agency’s interpretation of available evidence. It took a “highly deferential” approach to the Agency’s expertise. This means that the court assumed the Agency’s decision is presumed valid and rational. It presumes that highly technical points are best left to the Agency. The court indicated that the Agency implemented unwise policy decisions, but did not find that the Agency acted illegally or irrationally. Government lawyers argued to the court that the trucking industry’s objections to HOS rule changes were nothing more than “simple scientific disputes” and that the court should defer to the government’s judgment in solving such disputes.
The court was clearly fatigued by continual legal challenges to the Hours of Service regulation since 1999, something that Judge Janice Rogers Brown called “protracted rulemaking”.
Judge Brown stated “With one small exception, our decision today brings to an end much of the permanent warfare surrounding the HOS rules. FMCSA won the day not on the strengths of its rulemaking prowess, but through an artless war of attrition, the controversies of this round are ended.”
“While we are disappointed the Court chose to give unlimited deference to the Federal Motor Carrier Safety Administration’s agenda-driving rulemaking, the striking down of the short-haul break provision is an important victory. 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” said Dave Osiecki, ATA Senior Vice President.
What do you do now? Some of us have worked hard to analyze financial and safety data, creating positions, interviewing drivers, and drafting arguments. We are clearly disappointed, but we learned during this process. We know capacity will shrink, shipping schedules will become less flexible, and driver’s ability to earn will diminish.
Fleet operators are looking at rates, costs, and making adjustments to rates and operations. Now that we know we have an Hours of Service regulation we must live with – it might be a good time to reconsider all of your rates, terms, and conditions. We drafted a formal response in the Federal Register that includes a financial analysis. If you’d like a copy of this document, contact us.
