Briefs Due Next Month in Federal Hours of Service Lawsuit

Update on the Hours of Service Lawsuit, thanks to J.J. Keller and Associates
Posted June 21, 2012
The United States Court of Appeals for the District of Columbia Circuit announced the schedule to submit briefs for the lawsuits challenging the federal hours-of-service (HOS) rules. Briefs are due starting July 24, 2012, followed by replies by October 24, and final briefs by November 21.
Earlier this year, the Court consolidated industry and safety advocate suits despite the fact each were challenging the Federal Motor Carrier Safety Administration (FMCSA) HOS rules on different grounds. Industry asserts the new rules are too restrictive, while safety advocates feel the rules did not go far enough.
Industry’s suit
In a filing with the U.S. Court of Appeals for the District of Columbia Circuit, American Trucking Associations (ATA) identified four areas where the recent HOS rule falls short of legal standards for regulatory changes. ATA contends that several aspects of the rule issued by FMCSA are “arbitrary and capricious” and should be overturned.
ATA questioned:

• Changes to the restart provision requiring that it include two consecutive periods between 1 a.m. and 5 a.m.;
• Limits on the frequency with which a driver may use the restart;
• The requirement that a mandatory 30-minute break from driving also exclude all other on-duty activity; and
• Narrowing — without prior notice — certain exceptions to drive-time regulations for local delivery drivers.

Safety advocates' points
Advocates for Highway and Auto Safety, Public Citizen, the Truck Safety Coalition, and two truck drivers filed a lawsuit challenging the new HOS rule. The suit claims that the agency final rule failed to reduce the 11-hour limit on consecutive driving hours to 10 hours, despite the agency’s statement in the proposed rule that “the 10-hour rule is currently FMCSA’s currently preferred option” because it would be most effective in reducing driver fatigue. According to the plaintiffs, although the agency had no data to support its adoption of the longer 11-hour limit in 2004, the agency decided to stand by that mistake even though it comes at the cost of numerous additional fatigue-related crashes.
They also contend that the new final rule fails to eliminate the 34-hour restart provision that encourages cumulative fatigue and allows drivers to exceed weekly driving and work limits. The restart provision, first instituted in 2004, reduces the off-duty time drivers are allowed from 48 or more hours to just 34 hours off-duty after driving up to 70 hours and working more than 80 hours over eight days. The parties claim the changes included in the December 2011 final rule do not prevent the most fatigued drivers, those who work on a schedule of 70 hours of driving in eight-days, from continually using the short and unacceptable 34-hour restart every week, or being required to do so by their trucking company.
The plaintiffs also stated that FMCSA added to the problem of driver fatigue with the new provision that allows truck drivers to sit in the cab of their truck during their 10-hour off-duty rest period instead of sleeping. The plaintiffs believe this will only lead to increased rates of driver fatigue among long-haul drivers who do not have sleeper berths in their trucks.

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