Hours-of-Service Rules in Doubt

July 26, 2004
Judge David B. Sentelles language is very clear the Federal Motor Carrier Safety Administration (FMCSA) did a poor job of justifying changes in hours

Judge David B. Sentelle’s language is very clear – the Federal Motor Carrier Safety Administration (FMCSA) did a poor job of justifying changes in hours of service rules governing commercial motor vehicle operators.

Writing the opinion for the three-judge panel of the U.S. Court of Appeals, Judge Sentelle hammered the FMCSA for failing to consider driver health in developing and justifying revisions to hours of service rules that have been in effect (with some revisions) since 1965. Judge Sentelle stated in part that “because the agency failed to consider the impact of the rules on the health of drivers,. . . this single objection from petitioners is sufficient to establish an arbitrary-and-capricious decision requiring vacatur of the rule.” However, he went on to note several of the petitioners’ other objections “raised troubling concerns about the decision making process.”

“The FMCSA’s only effort to show that it did consider driver health is to point out that it considered the effect of driver health on vehicle safety and to argue that consideration of the health of drivers therefore ‘permeated the entire rulemaking process,’” said the court decision.

The court did not render a final decision on other objections, but it did voice its concerns on those issues. The court said the FMCSA might wish to consider the effects of increased driving time on the physical condition of drivers. FMCSA justified the increase in daily driving time on the basis of a cost-benefit analysis it conducted and the fact the change decreased the overall daily driving-eligible tour of duty from 15 hours to 14 hours. The FMCSA conceded that studies showed performance begins to degrade after the eighth hour on duty and increases geometrically during the 10th and 11th hours on duty, the court pointed out. But, it cited no studies to support the notion that the decrease in daily driving-eligible time would compensate for these ill effects. While the rulemaking cited studies the court said, “those citations cannot save the rule.” It is “the expertise of the agency, not its lawyers, [that] must be brought to bear on this issue in the first instance.”

Among the driver health issues is the impact of “time on task” which the FMCSA said it disregarded because it did not have sufficient data on the magnitude of such effects.

“Our doubts extend as well to the agency’s justification for retaining the sleeper-berth exception,” the court continued. It called the FMCSA’s justifications “quite weak.” (The sleeper-berth exception allows drivers to take their rest periods in two chunks in the truck’s attached sleeper berth.) On the issue of Electronic Onboard Recorders (EOBRs) FMCSA argued did not require the devices (despite the congressional command to “deal with” automated and taper-proof recording devices as part of its proposed rulemaking) because “neither the costs nor the benefits of EOBR systems are adequately known.” FMCSA did not test the devices, saying very few were currently available. The congressional directive, in the view of the court, required FMCSA to collect and analyze data on the costs and benefits of the EOBRs and to take action. The court responded to this saying, “Regulators by nature work under conditions of serious uncertainty and regulation would be at an end if uncertainty alone were an excuse to ignore a congressional command to ‘deal with’ a particular regulatory issue.”

The court continued, “The agency, as we have discussed, apparently had no problem making estimates based on imperfect empirical assumptions when it estimated the costs of increasing driving time from ten to eleven hours.” That reference was to a statement in the ruling, “The cost benefit analysis purports to show benefits [of increased daily driving time] outweigh costs given increased daily off-duty time. The model disregarded the effects of time on task because the agency said it did not have sufficient data on the magnitude of such data. This assumption makes the cost-benefit analysis of questionable value in justifying the increase in daily driving time.

Hours of Service Timeline:

Hours of service rules have been in place with some revisions since 1962.

1995 – Congress orders Federal Highway Administration to revise existing commercial motor vehicle hours of service rules.

1999 - The Federal Motor Carrier Safety Administration was created by statute and takes on responsibility for the hours-of-service rulemaking.

May 2000 FMCSA in a formal notice of proposed rulemaking (NPR) set out new hours of service regulations.

Proposed rules (2000)
-Maximum workday 14 hours - daily on-duty and driving time limited to 12 hours with two additional hours off during the day.
-10 hours off-duty time after a 14-hour workday.
-Eliminate sleeper-berth exception for solo drivers.
-Mandatory “weekend” of 32-56 hours each week.
-Required use of electronic onboard recorders (EOBRs).

November 2002 – several groups file a lawsuit to force the Dept. of Transportation (DOT) to issue final rules on a number of outstanding issues, including hours of service.

February 2003 – DOT settled the earlier lawsuit by agreeing to issue a series of rules over the next 18 months (including hours-of-service rules).

Proposed rules (2003)
-14-hour work day (including on-duty breaks) with maximum 11 hours driving time.
-10 hours off-duty time after 14-hour work day.
-32-hour restart provision after 34 consecutive hours off duty, work week restarts.
-Sleeper-berth exception allowed 10 hours’ rest in two chunks, one being at least 2 hours.
-Electronic onboard recorders not required “at this time”

April 2003 - FMCSA issues final rule.

January 2004 - New hours-of-service rules go into effect.

April 2004 – Public Citizen files Petition for Review in U.S. Court of Appeals to overturn hours-of-service rules.

July 2004 – U.S. Appeals Court grants Petition for Review and vacates hours-of-service rules.

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