Appellate court panel hears three-pronged debate over HOS regulations

WASHINGTON—The government’s proposed changes to the complex truck driver hours of service regulations had their day in court on the Ides of March and certainly anybody that expected clarity on the issue should have been beware.
 
In the fourth court challenge to the hours of service (HOS) regulations since 2003, this latest legal battle was a three-pronged affair:

• American Trucking Associations, representing carriers, which warned of costly consequences for shippers and the U.S. economy if complicated forced rest breaks effectively reduced drivers’ time behind the wheel;

• Public Citizen, representing three safety advocacy groups, which said the changes don’t go far enough and that it would like effective driving hours reduced by one hour, from 11 to 10 per day; and

• The Justice Department, representing the Federal Motor Carrier Safety Administration, which devised the rules but whose methodology came under scathing attacks from both previous groups, saying the entire process was illegal.

The case was heard on March 15 at the U.S. Court of Appeals for District of Columbia Circuit before Judges Janice Rogers Brown, Thomas B. Griffith and A. Raymond Randolph, who conducted oral arguments for more than an hour in the consolidated challenges to the FMCSA’s 2011 HOS rules.
    
“The existing rules have a proven track record, and the agency’s purported reasons for tinkering with them were baseless,” ATA General Counsel Prasad Sharma said in statement afterward. “We’re hopeful the judges will see through the agency’s mere pleas for deference and after-the-fact explanations for a rule that was agenda-driven rather than evidence-based.”
 
ATA is calling FMCSA’s 2011 changes “arbitrary and capricious,” and would put onerous restrictions on drivers’ ability to effectively manage their schedules. That’s because the proposed rules would limit use of a restart period to once every seven days, as well as inflexibly mandating off-duty breaks during the workday. ATA contended that these changes were not supported by the data available and should be rejected.
 
After hearing ATA attorney Erica Jones attack FMCSA’s methodology, Judge Griffith said he agreed she had made “very persuasive points.” But he was quick to note that the judges were not there to decide which truck safety study was more valid, but rather to decide whether a federal agency has authority to issue such rules.
  
“It may be bad policy judgment, but we’re not here to decide that,” Judge Griffith said. “We have a very slight hand in this. We’re here to decide whether the rules are arbitrary and capricious. It’s beyond (the court’s) experience to decide which expert to agree with.”
  
Separately, a coalition of outside advocacy groups challenged FMCSA’s retention of the 11th hour of driving and the existence of the restart at all.

Scott Nelson, an attorney representing Public Citizen, said his group wanted a return to the pre-2003 ruling that expanded a driver’s legal driving time to 11 hours, from 10 previously, within a 15-hour on-duty day.
 
“Moving to an 11th hour of drive was irrational,” Nelson told the three-judge panel, claiming the cost-benefits of such a move were minimal, perhaps as low as $30 million annually.
 
After the hearing, ATA issued a press release quoting its general counsel Sharma as saying, “Public Citizen and its cohorts also faced tough questions they didn’t have good answers for.  Despite Public Citizen’s arguments, neither the law nor the data support Public Citizen’s contention that FMCSA was obliged to make the hours-of-service regulations more onerous than they are. Nothing they said today changed that.”
  
Jonathan Levy, a Justice Department attorney representing FMCSA, said the DOT agency “acted rationally” in issuing the HOS rules, adding: “The agency acted very rationally and very scientifically.”
 
The heart of ATA’s challenge – which was supported by National Industrial Transportation League, Owner-Operator Independent Driver Association, Truckload Carriers Association, NASSTRAC; as well as another 15 organizations representing shippers or the business community – rests on the agency’s limitations on the restart provisions. These would:

• Limiting it to once per week and requiring that it span two consecutive 1 a.m.-5 a.m. periods);

• Require the mandatory 30-minute break within 8 hours of starting a duty period be completely off-duty (rather than just a break from driving);

• The unannounced application of the break requirement to local delivery drivers. The advocacy groups challenged the existence of the restart at all and the retention of the 11th hour of driving.

ATA argued that the challenged rules are “arbitrary and capricious.” In particular, ATA offered a detailed rebuttal of FMCSA’s justification for the rule changes, saying it was based on flawed data and outdated studies of heavy truck crashes.
  
Levy, the Justice Department attorney, said FMCSA acted well within its legal boundaries in issuing the latest HOS ruling.
  
“These are the kind of decisions agencies make all the time,” he told the court. “You can’t allow parties to come to court and say, ‘We have experts who say you’re wrong.’ You have to show the agency acted unreasonably. That just didn’t happen here.”
 
While ATA says FMCSA is entitled to deference in its rulemaking, that deference is not unbounded. ATA argued the agency must still articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.
  
ATA is arguing that FMCSA’s action is not reasonable if its explanation runs counter to the evidence before the agency, or is implausible.  ATA contends FMCSA justified the rule changes largely on the basis of an analysis from which it concluded that the benefits of the rule changes would outweigh their costs. That analysis was “deeply flawed,” ATA says, in a number of ways:

• The analysis “vastly overstates” the number of truck-involved fatalities that were caused by fatigue, because FMCSA misrepresented the evidence in the Large Truck Crash Causation Study (conducted by FMCSA and the National Highway Traffic Safety Administration).

• The analysis relies on the unsupported assumption that measurable health benefits will accrue to drivers from increases in nightly sleep on the order of less than a minute.

• The analysis assumes, contrary to the evidence, that a small group of drivers consistently works long weeks at the limits of what the rules permit.  ATA says FMCSA simply made the “loaded and implausible assumption” that the same small group of drivers work those long hours week in and week out.

• FMCSA’s justification for the requirement that the 30-minute break be completely off-duty is counter to the evidence the agency relied on, according to the ATA.

• The study FMCSA used did not show any statistically significant difference in the safety benefit of an off-duty break compared to an on-duty break from driving, nor did the agency attempt to explain why one particular type of non-driving break would be more effective than another at reducing the ―time on task effect which it was designed to remedy.

ATA contends that if FMCSA had not made these errors, it would have been clear that the costs of the rule outweigh its benefits. FMCSA’s reliance on the analysis as the primary support for the rule was thus improper, according to the ATA, which wants the government to maintain the current HOS regs that have been in effect for a decade and have helped reduce the rate of trucking-related fatalities.

FMCSA’s 2011 changes would put onerous restrictions on drivers’ ability to effectively manage their schedules by limiting the use of a restart period to once every seven days, as well as inflexibly mandating off-duty breaks during the workday. ATA contended that these changes were not supported by the data available and should be rejected.
 
Separately, Public Citizen challenged FMCSA’s retention of the 11th hour of driving and the existence of the restart at all.
 
“The agency is making a marginal argument that just doesn’t fit with an agency whose mission is to make safety its highest priority,” Public Citizen attorney Nelson told the three judges.
 
To which Judge Randolph replied from the bench: “Why not make it nine hours (of legal driving in a day)? That would make it even more safer.”
 
There’s no deadline for when the court must rule, but ATA is hoping for a swift decision. The agency has said it plans to begin enforcement of the new rules on July 1. ATA asked for a delay in enforcement, saying it would cost the industry approximately $340 million between now and July 1 to prepare for a rule that might never go into effect because of its legal challenge, but was turned down by FMCSA.