Truck Driver Hours Bounce From Agency To Court To Congress

The Federal Motor Carrier Safety Administration’s (FMCSA) driver hours of service regulations continue to bounce between the agency, the courts and Congress, with no end in sight. The FMCSA published an interim final rule that reinstates the 11-hour daily driving limit and 34-hour weekly reset provisions into the truck driver hours of service regulations. (72 Federal Register 71247, December 17, 2007). The U.S. Court of Appeals for the D.C. Circuit vacated those rules in a decision issued July 24, 2007, but the court stayed the effective date of that decision until December 27, 2007, pending further action from the FMCSA. This interim final rule was the FMCSA’s response to the court’s decision.

In the short term, this means that the driver hours of service rules remain the same as they have been. Although few GAWDA members allow drivers to operate their vehicles as long as 11 hours in one day, many members use the 34-hour reset, in which a driver may reset his weekly 60- or 70-hour on-duty period and begin to drive again after 34 consecutive hours off duty. The agency justified the 34-hour reset because it substituted for two nights of sleep, which research indicates is necessary to overcome the effects of cumulative fatigue.

But the interim final rule already has spurred a new legal challenge from Public Citizen (led by Ralph Nader) and other highway advocacy groups. Public Citizen has filed a motion with the court of appeals to enforce the court’s July 24 decision. The group’s press release argues that the FMCSA’s justification for the IFR is “inadequate,” and claims that the number of heavy truck occupant fatalities has gone up since 2002, before the two rules were put into effect.

Yet the number of overall fatalities from heavy truck accidents has declined in each of the past two years, including a four percent decline from 2005 to 2006, thus undercutting the argument that the 11-hour driving time and 34-hour reset provisions have harmed motor carrier safety.

In developing the IFR, the FMCSA noted that the court of appeals found fault with various procedures related to the agency’s adoption of the 11-hour limit and the 34-hour restart, but not with their substance. This analysis included a review of the safety data concerning motor carrier operations, particularly with respect to fatigue-related fatal crashes. The FMCSA’s analysis found that “the 2005 rule has maintained highway safety outcomes while enhancing operational flexibility for the motor carrier industry.”

The FMCSA responded to the court’s decision as follows: “By re-adopting the 11-hour limit and the 34-hour restart, the agency’s intent is to allow motor carriers and drivers to combine work-rest schedules that follow the optimal 24-hour circadian cycle (10 hours off duty and 14 hours on duty), while maintaining highway safety with operational flexibility. By adopting these rules as interim, the agency is seeking to avoid significant and costly disruption of existing industry compliance and State enforcement practices, while ensuring that the actions and underlying safety analysis are available for comment from all interested parties before issuing a final rule. In the meantime, this will ensure that an uninterrupted safety regime remains in place with State enforcement laws, policies, and personnel.”

The U.S. Senate Surface Transportation Subcommittee held a hearing on motor carrier driver hours of service on December 19. Subcommittee Chairman Frank Lautenberg (D-NJ) criticized the FMCSA’s approach, calling it “misguided.” He stated, “Despite two unanimous federal court decisions that ruled against the Administration’s proposals, the Federal Motor Carrier Safety Administration is going forward as if the court said nothing at all.”

The rules are back in the court of appeals now, which must rule on Public Citizen’s motion and decide whether the FMCSA’s decision to reinstate the 11-hour driving time and 34-hour reset provisions was justified by science and the administrative record. Regardless of the outcome, the losing side is likely to go back to the agency for reconsideration or to Congress to instate a rule into statute.

The only thing for sure at present is that the driving time rules will remain legally uncertain in the foreseeable future.

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Meet the Author
GAWDA Government Affairs and Human Resources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC, in Washington, D.C. Members can reach him at 202-223-3040 and at rpschweitzer@rpslegal.com.