HOS ruling hurts all of trucking

Aug. 1, 2004
FRIDAY, July 16, was a very bad day for the Department of Transportation (DOT). In the legal equivalent of a 24 between the eyes, the US Court of Appeals

FRIDAY, July 16, was a very bad day for the Department of Transportation (DOT). In the legal equivalent of a 2×4 between the eyes, the US Court of Appeals for the District of Columbia struck down the new hours-of-service rules that took effect at the first of the year.

This wasn't just a majority decision. It was a unanimous verdict in which all three judges on the panel ruled that the hours-of-service final rule was “arbitrary and capricious” because DOT failed to consider the impact of the regulation on driver health.

Public Citizen, Parents Against Tired Truckers, and Citizens for Reliable and Safe Highways filed the court challenge. Amicus briefs in support of the challenge were filed by Advocates for Highway and Auto Safety and the Insurance Institute for Highway Safety. A couple of these groups have a clear anti-truck bias, and this is just their latest attack on the industry.

Defending the new hours of service were attorneys from DOT, Federal Motor Carrier Safety Administration (FMCSA), and Department of Justice (DOJ). American Trucking Associations (ATA) lawyers also joined the defense effort.

The repercussions of the appellate court ruling are still reverberating through DOT and DOJ. Shock waves also rippled across the width and breadth of the trucking industry, leaving confusion in their wake.

The big questions: What comes next, and what should the fleets do? The easy answer is that nothing will change immediately. Truck fleets and their drivers should continue following the hours-of-service rules that took effect in January.

DOT and DOJ have 45 working days (not counting weekends and holidays) to review the appellate court decision and determine whether to file an appeal. The agencies also can request a stay to keep the existing rule in effect while they craft an appeal.

With regard to an appeal, the agencies can request a hearing by the full Court of Appeals (rather than the three-judge panel) or they can take the case directly to the Supreme Court. Other options for DOT and FMCSA would be to fix the parts of the rule that the three-judge panel found objectionable or start over with an entirely new rulemaking.

Whatever the decision, the agencies do face some challenges. The Court of Appeals ruling was narrowly focused — failure by FMCSA to consider driver health in the promulgation of the regulation — but the judges raised a number of other issues that they found troubling.

The judges questioned the validity of raising maximum driving time from 10 hours to 11 hours. They said they had doubts about FMCSA's justification for retaining the sleeper-berth exception. The 34-hour restart raised questions. The judges wondered why FMCSA did not mandate electronic on-board recorders to monitor driver performance.

The uncertainty now surrounding the hours-of-service rules is unfortunate. The previous rules were decades out of date, and the new ones are a clear improvement. The new rules are much easier to understand and follow. Nobody needs a PhD to understand how to fill out a driver's log.

Yes, some productivity was lost, but it has enabled many fleets to get back in the driver seat with their customers. The new hours of service gave many fleets their best opportunity to significantly improve driver wages and working conditions. That's the real tragedy of this court victory by the anti-trucking groups.

We have to hope that DOT and FMCSA will move expeditiously to resolve the legal setback over hours of service. The uncertainty that exists now hurts everyone.

About the Author

Charles Wilson

Charles E. Wilson has spent 20 years covering the tank truck, tank container, and storage terminal industries throughout North, South, and Central America. He has been editor of Bulk Transporter since 1989. Prior to that, Wilson was managing editor of Bulk Transporter and Refrigerated Transporter and associate editor of Trailer/Body Builders. Before joining the three publications in Houston TX, he wrote for various food industry trade publications in other parts of the country. Wilson has a bachelor's degree in journalism from the University of Kansas and served three years in the U.S. Army.