Challenge denied

| March 05, 2008

Appeals court says no to Public Citizen’s HOS request.

The U.S. Court of Appeals for the District of Columbia Circuit on Jan. 24 issued an order denying Public Citizen’s request to invalidate the recently issued hours-of-service Interim Final Rule (IFR).

The 11-hour daily driving time limit and 34-hour restart provision now will remain standing pending further consideration of a final HOS rule by the Federal Motor Carrier Safety Administration.

Public Citizen claimed that the court’s prior decisions in the case effectively prohibited FMCSA from issuing an IFR that included the 11- and 34-hour provisions.

The American Trucking Associations, FMCSA and shipper interests all filed briefs opposing Public Citizen’s motion. Those filings argued the need for retention of the 11- and 34-hour provisions to avoid significant industry and law enforcement disruptions, as well as the safety gains achieved under the current HOS rules.

The court did note that its denial of the motion did not preclude Public Citizen from challenging the IFR in a separate legal proceeding. However, such a proceeding potentially would take months to pursue, even if expedited. A final HOS rule will likely be issued before any litigation could be completed.

Under the IFR made public Dec. 11, truck drivers will continue to be limited to driving only 11 hours within a 14-hour duty period, after which they must go off duty for at least 10 hours. The IFR also retains the provision of the hours rules that allows drivers to restart their cumulative on-duty limits by taking 34 consecutive hours off duty.

The agency issued the new hours-of-service rule in response to the decision by the D.C. appeals court vacating those two key provisions of the existing rules. The IFR took effect Dec. 27 – the same day that a stay granted by the appeals court expired. In order to ensure no gap in coverage of the rules, the IFR temporarily reinstated those two provisions while the agency gathered public comment on its actions and the underlying safety analysis before issuing a final rule.

In its July opinion, the court voided the 11 hours of driving and the 34-hour restart on the grounds that the public didn’t have adequate notice of FMCSA’s methodology for analyzing crash risk. The IFR was developed after new data showed that safety levels have been maintained since the 11-hour driving limit was first implemented in 2003, FMCSA said.

After the IFR became effective Dec. 27, a 60-day period began for the public to comment on the proposal and its underlying safety analysis. Further analysis after that could take “a few weeks or even a few months,” says FMCSA Administrator John Hill.

Once a final rule has been established, FMCSA will review longstanding concerns from drivers and carriers over the provision that restricts the sleeper berth split to eight-hour and two-hour periods, Hill said.

FMCSA also is working to finalize a proposed rule that would require drivers and trucking companies with serious or repeat hours-of-service violations to track their hours of service using electronic onboard recorders.
- From Staff Reports

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